Five Veteran BIA Members Forced To Resign

IMMIGRATION LAW & POLICY

Removal Procedures and Defenses

FIVE VETERAN BIA MEMBERS FORCED TO RESIGN
Immigrants' Rights Update, Vol.17, No. 3, June 3, 2003

In a move that some observers called a purge, Bush administration officials have pressured five of the longest-serving and most "pro-immigrant" members of the Board of Immigration Appeals to resign, according to a Mar. 12, 2003, Los Angeles Times article. The BIA hears appeals of Bureau of Citizenship and Immigration Services (BCIS) and immigration judge decisions and is the highest administrative body within the U.S. Dept. of Justice (other than the attorney general) that interprets U.S. immigration law. The Justice Dept. itself to date has made no official announcement of the decision to ask these members to leave the BIA, or of their resignations.

This development follows the attorney general's Sept. 2002 issuance of a final rule providing that the BIA would be reduced from 23 to 11 members after a 6-month transitional period. During that period, the BIA's substantial case backlog was to be reduced. The reduction in the BIA's size is just one component of the rule's provision for "streamlining" BIA procedures, which also includes eliminating the BIA's jurisdiction to review factual findings de novo, making most appeals subject to review by a single Board member rather than a 3-member panel, making it easier to summarily dismiss appeals, allowing immigration judges' decisions to be affirmed without a BIA opinion, and setting strict time limits for deciding cases (see "Attorney General Issues Final Rule to Reform BIA," IMMIGRANTS' RIGHTS UPDATE, Sept. 10, 2002).

The members who were asked to leave the BIA were Noël Brennan, Cecelia Espenoza, John Guendelsberger, Paul Schmidt, and Gustavo Villageliu. Schmidt had served for a time as BIA chairman. Critics charge that these members were targeted for removal from the BIA mainly for ideological reasons. According to the supplementary information to the rule providing for the reduction in the Board's size, the reduction is intended to help the BIA "reach consensus on legal issues." The critics say that eliminating dissenting voices is one way of accomplishing that goal.

A spokesperson for the Center for Immigration Studies, which advocates more severe limits on immigration, endorsed the removal of the five members. "Even if this were a way to remove particular officials because of their pattern of decisions, there would be nothing wrong with that," the Times quoted Mark Krikorian as saying. ". . . Board members should clearly represent the attorney general's views, since they are carrying out his responsibility."

The pressure to decide cases quickly and in line with the attorney general's views has resulted in a dramatic rise in the percentage of BIA rulings that go against immigrant appellants. On Jan. 5, the L.A. Times reported that BIA members had been deciding cases in minutes, often issuing two-line decisions, and that in Oct. 2002, 86 percent of all rulings on appeals were going against immigrants compared to a 59 percent rulings-against rate at the same time a year before. According to the Times, some Board members were deciding 50 cases a day.

Immigrants' advocates have challenged the rule that restructures the BIA. The Capital Area Immigrants' Rights (CAIR) Coalition and the American Immigration Lawyers Association (AILA) filed a federal lawsuit alleging that the attorney general issued the rule without taking into account the views of the public, including nongovernmental organizations that filed comments on the rule before it was issued. In their comments, groups had argued that the proposed changes would put great pressure on BIA members to decide cases in a way that was pleasing to the administration and that fairness would be sacrificed in the race to decide cases quickly. The suit, filed on Oct. 25, 2002, also charges that the Justice Dept. did not articulate a reasoned basis for the changes. On May 21, 2003, a U.S. district court judge in Washington, D.C., granted the defendants' motion for summary judgment, ruling that the Justice Dept. adequately explained its decision to resolve most BIA cases through the single-member review and summary affirmance policy required by the rule. Significantly, the judge concluded that the CAIR Coalition had standing to bring the case and that the rule was subject to judicial review.

Two federal courts of appeal have ruled that the affirmance without opinion procedure instituted by the BIA reform rule was not unlawful as applied to the petitioners in the cases on which the courts were ruling. The American Immigration Law Foundation's Legal Action Center has prepared a practice advisory with arguments for distinguishing those cases, which is available at the following URL: http://www.ailf.org/lac/lac_pa_postalbathani_032503.pdf.

Other cases challenging the procedure are pending in the Third and Ninth Circuits. While no federal court of appeal has yet explicitly rejected the new procedure, AILF's Legal Action Center reports that many cases challenging the procedure have been remanded to the BIA for reconsideration. Moreover, in some petition-for-review or habeas corpus cases challenging an affirmance without opinion, the government has asked that the case be remanded to the BIA because the case was erroneously affirmed without opinion, and the BIA itself has reportedly sua sponte reopened proceedings when a petition for review was pending. AILF has asked that information about similar cases to be sent to lhall@ailf.org.

At the request of the American Bar Association's Commission on Immigration Policy, Practice and Pro Bono, the law firm of Dorsey & Whitney is conducting a study called "Board of Immigration Appeals: Procedural Reforms to Improve Case Management" and has asked practitioners to provide information about cases affected by the rule changes, especially affirmance-without-opinion cases, brief order cases, one-judge-review cases where the wrong standard of review may have been applied, or where de novo review would have led to a different result, or where simultaneous filing of briefs caused prejudice, confusion, or waste. Details of such cases should be sent to moccio.kathleen@dorseylaw.com.

For most immigrants, the BIA is the court of last resort. Review beyond the BIA is limited by statute, judicial deference to BIA decisions, and the inability of immigrants to pay for or find lawyers who can appeal their cases. The BIA's independence and fairness has long been questioned, because both it and the Immigration and Naturalization Service were part of the Justice Dept., subject to decisions of the attorney general. The legislation creating the Dept. of Homeland Security (DHS) abolished the INS, and its enforcement and service activities now reside in the DHS. The immigration court system, including the BIA, remains in the Justice Dept.. The new appeal procedures and the removal of BIA members sympathetic to immigrants' rights make clear that the BIA's independence and fairness are even more in question now.