BIA Backlog Merely Shifted To Federal Courts, Study Finds

IMMIGRATION LAW & POLICY

Removal Procedures and Defenses

BIA BACKLOG MERELY SHIFTED TO FEDERAL COURTS, STUDY FINDS
Immigrants' Rights Update, Vol. 17, No. 8, December 18, 2003

As a result of reforms in the way the Board of Immigration Appeals operates that were instituted in 2002, the percentage of appeals to the BIA that the Board grants has plummeted from 25 percent before the changes were instituted to 10 percent now. And as a result of this dramatic change, the percentage of BIA decisions that were appealed to the federal courts tripled between Oct. 2001 and Oct. 2002, from 5 percent to 15 percent. These are among the findings of a study conducted by the law firm of Dorsey & Whitney at the request of the American Bar Association Commission on Immigration Policy, Practice and Pro Bono.

Under the procedural reforms instituted in 2002, the merits of most appeals may now be decided by a single BIA member, who may issue only a brief order without a written opinion. Before the reforms, single-member review was allowed in only a very limited number of cases; most cases were decided by three-member panels. Now, review by three-member panels is limited to cases in which the original single reviewer decides that it is necessary in order to settle inconsistencies among decisions issued by different immigration judges, establish precedent, or correct a clear legal error, violation of precedent, or an IJ's "clearly erroneous" determination of fact. However, the decision to refer such a case to a three-member panel is not mandatory; and single members can, and have, reversed IJs' decisions. (For more details about the BIA procedural reforms and immigrant rights advocates' responses to them, see "Five Veteran BIA Members Forced to Resign," IMMIGRANTS' RIGHTS UPDATE, June 3, 2003, p. 3, and "Attorney General Issues Final Rule to Reform BIA," IRU, Sept. 10, 2002, p. 1.)

The Dorsey & Whitney study found that the procedural reforms, set in place ostensibly to streamline the immigration appeals process and pare down the large backlog of cases waiting to be decided, instead has shifted much of the backlog burden to the federal courts. And since the courts end up remanding many of the cases to the BIA, in the long run the backlog is destined to end up back with the BIA.

Based on the study's findings and the obvious deficiencies of the new procedures, the ABA Commission on Immigration Policy, Practice and Pro Bono, has called on the U.S. Justice Dept. to discard the 2002 reforms and reinstitute the prior procedures. In the likely event that the reforms are not reversed, the commission recommends a number of changes to the present procedures, an important one being that "At a minimum, each case should have a written decision that addresses the errors raised by the appellant, the basis for determining that the case was correctly decided below, the specific legal precedents on which the decision is based, and the reason that the case was assigned to a single Board member."

The ABA commission's summary of the study's findings and its complete set of recommendations in response to them ("Seeking Meaningful Review: Findings and Recommendations in Response to Dorsey & Whitney Study of Board of Immigration Appeals Procedural Reforms," Oct. 2003) is available at www.abanet.org/immigration/bia.pdf. The law firm's own summary of its study's findings is available at www.dorsey.com/files/upload/Summary-Conclusion_DorseyABAStudy.pdf.