Attorney General Proposes Major Changes at BIA

IMMIGRATION LAW & POLICY

Removal Procedures and Defenses

ATTORNEY GENERAL PROPOSES MAJOR CHANGES AT BIA
Immigrants' Rights Update, Vol. 16, No. 1, February 28, 2002

The U.S. Dept. of Justice has issued a proposed rule that would reduce the size of the Board of Immigration Appeals from 23 to 11 members and significantly change the procedure for filing appeals. The rule would eliminate the BIA's jurisdiction to review cases de novo, impose new time limits, and create new consequences for failing to meet time limits.

The attorney general's proposal assumes that the BIA will significantly reduce its current backlog of over 55,000 cases within 180 days. After this 180-day transition period, the reduction in the BIA's size to 11 members would take effect. The attorney general would decide which members would remain on the Board, while the BIA chair would retain authority to allocate members to screening panels and to three-member panels.

The proposed rule would authorize the BIA chair to set up a case management system in which each appeal would be screened by a single member, who would either decide the case or determine that it is appropriate for a three-member panel to hear. Three-member panels would be assigned only if necessary for the following:

to settle inconsistencies between rulings by different immigration judges;
to clarify ambiguous laws, regulations or procedures;
to correct the decision of an IJ that is plainly not in conformity with the law;
to resolve a case or controversy of major national import; or
to correct a clearly erroneous factual determination by an IJ.

An appellant who asserted that a three-member panel is warranted for a case would have to identify the specific factual or legal basis for that contention in his or her notice of appeal.

The interim rule also sets forth new standards for summary dismissals. Under the rule, in addition to using any of the grounds currently specified in the regulations for summary dismissal, a single Board member could summarily dismiss an appeal if, after review of the record, the member determined that the appeal was filed for an improper purpose or to cause unnecessary delay or that the appeal lacked an arguable basis in fact or law. Filing an appeal that is summarily dismissed would also constitute frivolous behavior that could be cause for discipline.

The proposed rule would require acceptance of an IJ's factual findings unless they were deemed to be clearly erroneous. Except when taking administrative notice, the BIA would not consider new evidence. Accordingly, the rule states that the proper method of developing factual issues would be to remand the case to the IJ or the INS.

The interim rule sets forth the following timelines for appeal procedures and decisions:

The rule retains the 30-day deadline for filing a notice of an appeal from the decision of an IJ. However, the appeal is then to be referred to a screening panel, where it is to be reviewed by a single Board member. The reviewing member is to promptly dismiss any appeal subject to summary dismissal under the regulations. In cases that are not summarily dismissed, the screening panel will arrange for completion of the record of proceedings and transcript.

Once a case is transcribed, the Board is to set a briefing schedule giving both parties 21 days in which to file simultaneous briefs, "unless a shorter period is specified by the Board." Reply briefs may be filed only by leave of the Board. For good cause shown, the Board may extend the time for filing a brief for up to 90 days.

The Board member who initially reviewed the case, or another member assigned under the case management system, is then to decide the appeal. He or she may affirm the IJ's decision without opinion, if the IJ's decision is correct, the errors below are harmless or nonmaterial, and if

the issues on appeal are squarely controlled by BIA or federal court precedent and are not being applied to novel factual situations, or
the factual and legal issues raised on appeal are not so substantial that the case warrants the issuance of a written opinion in the case.

If the Board member considers that a written opinion is needed, he or she should issue "a brief order affirming, reversing, modifying, or remanding the decision," unless the Board member designates the case for review by a three-member panel under the criteria described above.

Except in exigent circumstances, the BIA must dispose of all appeals assigned to single Board members within 90 days of completion of the record and transcript or within 180 days after the appeal is assigned to a three-member panel. In exigent circumstances, the BIA chair is accorded discretion to grant an extension of up to 60 days.

In cases where a panel is unable to issue a decision within the time limits, the BIA chair must either decide the case him or herself within 14 days or refer the case to the attorney general for a decision. If a member wishes to dissent or concur but fails to complete the decision within the extension, the decision must be issued without a separate opinion.

The only exception to these time limits is for cases whose outcome depends on a case pending before the U.S. Supreme Court or a U.S. court of appeal. In such an instance, the BIA chair may hold the case in abeyance until the court decision is rendered.

The BIA chair must notify the director of the Executive Office for Immigration Review and the attorney general if any BIA member repeatedly fails to meet assigned deadlines for the disposition of appeals or fails to adhere to the standards of the case management system. In addition, the BIA chair must, on an annual basis, prepare a report assessing each Board member's timely disposition of cases.

The new rule also proposes the transfer of cases involving the INS's imposition of administrative penalties to the Office of the Chief Administrative Hearing Officer.

In statements released prior to the publication of the proposed rule, the Justice Dept. indicated that the BIA must begin to implement procedural changes in April, when the rule is anticipated to take effect. During the transition period, members must apply the rule's new procedures to all cases already pending and to all incoming cases. The Justice Dept. hopes that by the end of the transition period, no case will remain pending for longer than ten months.

Comments on the proposed rule are due by Mar. 21, 2002.

67 Fed. Reg. 7,309-18 (Feb. 19, 2002).