DOJ Issues Rule on Changes to BIA
Posted Aug 30, 2002

The U.S. Department of Justice (DOJ) issued a final rule on August 26, 2002 entitled "Board of Immigration Appeals; Procedural Reforms to Improve Case Management." We first reported on these changes when they were proposed, in our February 22, 2002 MurthyBulletin article, Attorney General Restructures Appeals Board, available on MurthyDotCom. The changes by the BIA are purportedly aimed at clearing the backlog of appeals cases pending with the Board of Immigration Appeals (BIA) and avoiding the creation of similar backlogs in the future.

One primary provision changes the number of board members who decide a case. Previously, three-member panels decided most cases; the entire board decided cases of major importance; and one board member reviewed routine cases only. Under the new regulations, a single board member decides most cases. The three-member panels are reserved for the more complex cases. The total number is reduced from 19 to 11 board members.

Another very significant change is the standard for review of the facts in a case. Previously, many of the appeals cases were given a de novo review of the facts. That is, the BIA could determine the facts of a case itself based on the evidence and testimony of record, rather than relying on the trial court's determination of the facts. The BIA will have to accept the facts as stated by the trial court, unless the finding of fact meets the new standard of being "clearly erroneous."

The timeframes for case review have been greatly accelerated. A single Board member has 90 days to review the case to either decide the matter or refer it to a three-member panel for review. The three-member panel must issue a decision within 180 days of referral. Of course, these shorter timeframes require an expedited schedule for applicants / attorneys to submit briefs and other supporting documentation.

The new rule is effective from September 25, 2002. There is a six-month transition period for the decrease in the BIA's membership.

Many immigration law attorneys are concerned that these efforts to improve efficiency of the immigration court system could abridge the rights of those seeking refuge under our laws. The American Immigration Lawyers Association (AILA) issued a strongly worded opposition to these changes. AILA is of the opinion that the changes will severely compromise due process and the independence of the immigration court system. Many of the cases appealed to the BIA involve claims of asylum or relief under the U.N. Convention Against Torture. In such a case, one is asserting that s/he will be tortured or persecuted if returned to the country of origin. Whether the person lives or dies may well depend upon the outcome of his or her case. The challenge is to find a balance between efficiency and fairness.