Attorney General Restructures Appeals Board
Posted Feb 22, 2002

On February 6, 2002, Attorney General (AG) John Ashcroft announced a major restructuring of the Board of Immigration Appeals (BIA or Board). The BIA hears appeals on a variety of matters, including decisions by trial level immigration judges in removal (formerly deportation) cases, decisions by the INS on family preference (I-130) petitions, and certain bond and detention matters. The Board designates certain cases as establishing legal precedent, meaning that they form a basis for decisions in future cases. Other decisions are not precedent cases, but nonetheless have substantial impact upon the individual/s involved.

The stated purpose of the restructuring is to follow through with a streamlining initiative begun in 1999. With more than 56,000 pending cases, the Board is substantially backlogged. According to the information released by the AG, 34,000 cases are more than a year old and more than 10,000 cases are over three years old. There are some cases which have been pending for more than seven years.

The AG's solution to this problem is to significantly change the Board's procedures and to raise the legal standard a case must meet in order to succeed. After six months under these rules, the number of board members will be reduced from twenty-three to eleven. Within that six-month period, the backlog is to be eliminated so that cases take no more than ten months.

A significant change has been made to the number of Board members who will decide a particular case. At present, three-member panels review most cases. Some major cases are decided en banc or by the entire board. A single board member decides limited types of routine cases. Under the AG's plan, a single board member will decide most cases. Only very limited types of cases, such as those involving matters of national importance, will receive review by three members.

The AG's plan raises the legal standard for case review. The legal standard for review is essentially the "hurdle" the appellant (appealing party) must meet. The higher the standard, the harder it is to meet. With a high standard, denials become more commonplace. At present, the Board will at times review factual matters de novo, meaning anew or from the beginning, rather than simply accepting the trial court's statement of the facts. This willingness to review the facts is unusual because appeals courts generally do not review the facts. Rather, appeals consider legal principles or procedural issues. The BIA's standard for review has been criticized in the past as "haphazard."

Under the AG's plan, only issues of law will be reviewed de novo. This means the Board will determine the applicable law and the manner in which it is to be applied without regard for the trial court's decision. Issues of fact will be reviewed under what is referred to as a "clearly erroneous" standard. That is, the trial court's decisions regarding what the facts are in the case, which witnesses to believe, how much weight to give evidence, etc. will not be disturbed unless they are clearly wrong. This is a very high standard.

The AG states that the reorganization will meet the objectives of due process while enforcing immigration laws fairly. Not everyone agrees. According to The Washington Post the timing of the announcement, which was one hour before a House of Representatives hearing on the BIA, prompted congressional criticism regarding whether the AG intentionally tried to undermine the hearing. The Washington Post quotes Representative John Conyers, Jr. (D-MI), as calling the announcement "very troubling" and suggesting that the BIA be taken out of the control of the U.S. Department of Justice. A letter in opposition and signed by 15 national organizations, including the American Immigration Lawyers Association and 38 local organizations, was sent to the AG in response to the proposed changes.

Clearly, case backlog at the BIA is a serious problem. While the AG characterizes many of the appeals as "frivolous," filed by "unscrupulous" lawyers, it should be noted that the INS also files appeals with the BIA. The history of immigration law shows many instances of cases routinely denied, only to prevail after appeals and lawsuits. While there will always be those who misuse a process, many worry the reforms will be so sweeping that justice will be denied to legitimate claimants. This concern is especially relevant to many of the removal cases, like those seeking relief based upon persecution and/or torture. Careful, considered review is essential when a person's life could be at stake.

The AG expressed fear that individuals who have cases pending appeal could disappear and become "fugitives." He indicated that there might be security issues with respect to these individuals. He also mentioned in the same context that removal orders are "stayed," or put on hold, pending appeal. Even though removal orders are stayed, however, people who have outstanding orders could be put into detention. Therefore, the issue of disappearance relates more to INS problems in tracking and supervising people and is separate from the appeals issue.

What does the BIA restructuring effort mean for our readers? Regardless of whether one has a case before the BIA, news items of this type provide an indication of the government's current policy considerations. Such changes in policies and procedures reflect attitudes toward immigrants and immigration and the protections afforded to those seeking to become an integral part of this great nation.