Section Review

Restricting Immigration Appeals: Efficiency Over the Right of Due Process

Halim MorisHalim Moris is a staff attorney with the Immigration Unit of Greater Boston Legal Services and a member of the Massachusetts Chapter of the National Lawyers Guild and the American Immigration Lawyers Association.

The sweeping changes in immigration law in the aftermath of September 11 have touched every aspect of the lives of non-citizens in America. From the USA Patriot Act,1 which expanded the grounds of removal and length of detention of non-citizens suspected of being involved in terrorist activities, to the new regulations requiring certain non-citizens to register immediately upon entering the United States,2 immigration practitioners are facing ongoing restrictions imposed on their clients in the wake of September 11. These restrictions were recently expanded to include a non-citizen's right to appeal his or her case to the Board of Immigration Appeals (BIA).3 Framed as an effort to "reform" and "reorganize" the BIA, the Executive Office for Immigration Review (EOIR),4 under the instruction of the Attorney General, John Ashcroft, issued regulations revising the structure and procedures of the BIA.5 The final version of these new regulations was published in the Federal Register on Aug. 26, 2002, and took effect on Sept. 25, 2002.6 The stated objectives of the said regulations are "to improve the adjudicatory process" of the BIA, via "streamlining," to reduce the BIA's significant backlog of pending cases,7 and to create a new mechanism by which the BIA is able to adjudicate immigration appeals "effectively and efficiently."8

The new regulations include a number of drastic changes to the structure and procedure of the BIA. For many of the immigration advocates, these new changes would certainly lead to further restrictions of a non-citizen's right to judicial review by the BIA, thus depriving many of these non-citizen appellants due process of law. The most significant changes to the BIA's procedures that would clearly restrict non-citizens appellate rights involve the elimination of the BIA's de novo review of factual issues by retaining and expanding the use of "affirmance without opinion" and summary dismissals of appeals, as well as the new requirement that most cases be decided by a single member of the BIA (as opposed to three-member panels as was the practice prior to the new regulations), and the reduction in the length of time that an appeal can be pending before the BIA until it is decided.9

"Affirmance without opinion" is authorizing a single BIA member to summarily affirm the result of a decision by an immigration judge or a district director below, without providing an opinion or any reason(s) for the "affirmance."10 Under the old regulations, "affirmance without opinion" was discretionary.11 The new regulations, however, made "affirmance without opinion" mandatory, if the appeal satisfies all of the criteria listed in 8 C.F.R ß 3.1(e)(4)(i).12 Normally, "affirmance without opinion" is a three-sentence decision that is considered a disposition on the merit of the appeal. In such a decision, the deciding BIA member would state that he or she is affirming the decision below, but no reason(s) is/are provided as to how and why the decision is reached.13 Topically, the decision would state that "the BIA affirms, without opinion, the result of the decision below." "Affirmance without opinion" is particularly problematic, and is a clear violation of due process rights and a contradiction to a long history of legal precedents. "An agency rule would be arbitrary and capricious" if the agency fails to "articulate a satisfactory explanation" for its decision.14 A recent Ninth Circuit Court of Appeals decision found that "affirmance without opinion" is a violation of due process, since the BIA affirmed without opinion an underlying decision that is based on "clear...errors of law."15

In addition to "affirmance without opinion," the new "streamlining" regulations would allow for the expansion and acceleration of the BIA's authority to summarily dismiss appeals.16 Unlike "affirmance without opinion" in summary dismissal, the BIA never decides the case on the merits. Rather, the case is dismissed on procedural grounds. These procedural grounds include the appellant's failure to sufficiently articulate reason(s) for the appeal, failure to file a legal brief when the appellant has indicated that he/she would do so, and when the appeal is filed for an "improper purpose."17 Summary dismissal is particularly problematic for the estimated 58 percent of unrepresented non-citizens who appear before immigration courts annually,18 particularly since many of these unrepresented non-citizens have language barriers.19 Once again, the Ninth Circuit Court of Appeals found that the BIA's "failure to give any advance warning before an appeal is dismissed, can result in a violation of due process rights of an alien."20 The court further found that the standard that the BIA uses in summarily dismissing appeals is "rather stern," especially on pro se appellants.21 The court further noted that the BIA's "stern specificity standard" imposed on appeals is challenging not only to pro se appellants but also to trained attorneys.22

The new rules further create a mechanism by which most appeals will be adjudicated by a single BIA member, as opposed to three BIA members (as was the practice prior to the enactment of the new rules), unless the single BIA member determines that such appeal is "appropriate for a review by a three-member panel."23 The rules also set a time frame for the adjudication of all appeals. For example, appeals that are decided by a single BIA member have to be adjudicated within 90 days of the completion of the record,24 and appeals assigned to a three-member panel must be decided within 180 days.25 Finally, the new rules mandate the reduction of BIA members, from 23 members to 11.26

According to the Justice Department since March 2002, shortly after the a proposed version to the rules were published and implemented,27 the BIA has "completed an average of about 5,000 cases a month, nearly double the average 2,600 cases a month it resolved during the last fiscal year."28 However, immigration advocates argue that the new rules have not created a genuine efficiency but, rather, they created an ongoing deprivation of a non-citizen's right to appeal. "These new procedures are really denying asylum seekers Due Process... The BIA is just acting as a rubber stamp."29 "Elimination of the Board's de novo factual review would increase the number of appeals to the federal courts. Any system that routinely involves remands for purposes of clearer decisions by immigration judges is extremely inefficient."30 Finally, advocates question the real motive behind the new regulations. They allege that the real motive behind the new regulations is to "pack the BIA with more conservative judges and deprive immigrants of Due Process,"31 as well as getting rid of the pro-immigrant members of the BIA. After all, it is "counter-intuitive" to try to achieve efficiency by "slashing the BIA members from 23 back down to 11,"32 despite the increasingly large number of appeals filed annually with the BIA.

End notes

1. Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA Patriot) Act of 2001, Pub. L. No. 107-56, 115 Stat. 272 (2001). [back]

2. 67 Fed. Reg. 40581-86 (June 13, 2002). These new regulations require non-immigrants from certain countries, such as Lybia, Syria and Iran, to register and submit fingerprints and photographs upon their arrival in the United States, and to report to the Immigration and Naturalization Service periodically once they enter the country. If an individual fails to register, he/she will be reported to the law enforcement agencies and subjected to a $1,000 fine and removal proceedings. Id.[back]

3. The Board of Immigration Appeals (BIA) is the highest administrative tribunal in the immigration field. The BIA Jurisdiction covers all of the United States, and its authority is found in 8 C.F.R. ß 3.1 (d)(4). The BIA hears appeals from immigration judges' decisions in removal proceedings, as well as decisions by INS district directors. The BIA has 23 authorized permanent members. Cases before the BIA are generally adjudicated by sitting panels of three members, who render decisions by a majority vote. See 8 C.F.R. ß 3.1(a)(1) (2002). The BIA is located in Falls Church, Virginia. The BIA is seen as the tribunal of last resort of the vast majority of non-citizens who are seeking judicial review of decisions by the immigration judges or district directors. [back]

4. The Board of Immigration Appeals is a component of the Executive Office for Immigration Review (EOIR), which is a part of the Department of Justice, and operates under the authority and supervision of the Attorney General. For a discussion of the role of the EOIR and its structure, see 67 Interpreter Releases 1221 (Oct. 29, 1990).[back]

5. These regulations were first published on Feb. 19, 2002, with a public comments period that ended on March 21, 2002. See 67 Fed. Reg. 7309-18 (Feb. 19, 2002). In announcing the new regulations, Attorney General John Ashcroft stated that the new regulations were needed to "eliminate" the BIA backlog and to create a more "efficient" system of handling the appeals before the BIA. Cheryl W. Thompson, Ashcroft Moves to Cut Immigration Appeal Backlog, Wash. Post, Feb. 7, 2002, at A11. [back]

6. 67 Fed. Reg. 54878-905 (Aug. 26, 2002). [back]

7. On Sept. 30, 2001, an estimated 57,597 cases were pending before the BIA. See 79 Interpreter Releases 1273 (Aug. 26, 2002).[back]

8. U.S. Department of Justice, Press Release, Board of Immigration Appeals: Final Rule, Aug. 23, 2002.[back]

9. For a summary of all of the new procedural and structural changes to the BIA, see 79 Interpreter Releases 1454 ( Sept. 30, 2002).[back]

10. The authority of a single BIA member to affirm without an opinion is found under 8 C.F.R. ß 3.1(e)(5)(2002).[back]

11. See 8 C.F.R. ß 3.1(a)(7).[back]

12. Under 8 C.F.R. ß (e)(4)(i), a single BIA member must issue an "affirmance without opinion" decision if the following criteria are met. First, the decision below must be correct. Second, any errors in the decision below must be harmless and nonmaterial. Third, the issue on appeal must be squarely controlled by the existing BIA or federal court precedent and cannot involve the application of precedent to a novel factual situation or the factual and legal issues raised on appeal must not be so substantial that the case warrants the issuance of a written opinion. Id. "Affirmance without opinion" can be applied to all types of immigration cases, including asylum, suspension of deportation, and cases of non-citizens seeking protection under the Convention Against Torture. (emphasis added).[back]

13. See 67 Fed. Reg. 7309-18 (Feb. 19, 2002).[back]

14. Motor Vehicle Manufacturers Association of the United States v. State Farm Mutual Automobile Insurance Co, 463 US 29-43, 103 S. Ct. 2856 (1983). Also See Schaffer Transp. Co. v. United States, 355 U.S. 83, 90- 93 (1957) (remanding an Interstate Commerce Commission's decision back to the agency because the agency has failed to make adequate factual findings to support its decision); SEC V. Chenery Corp., 332 U.S. 194, 196-97 (1946) (requiring an agency to explain the reasons behind its decision and stating that such requirement is fundamental);Tourus Records, Inc. v. Drug Enforcement Admin., 259 F.3d 731, 737 (D.C. Cir. 2001) (explaining that an agency must set forth reasons for the decisions it makes to avoid acting in an arbitrary or capricious manner). In addition, the same legal principal was articulated in the context of immigration law/practice. See Mary Kenney, How to Challenge an Affirmance without opinion a BIA member, American Immigration Law Foundation (2002). "Federal courts have routinely required the BIA to provide an explanation for a decision that is sufficient to allow the court to carry out a review. See, e.g., Panrit v. INS, 19 F.3d 544, 546 (10th Cir. 1994) quoting Turri v. INS, 997 F.2d 1306, 1310 (10th Circ. 1993) (noting that the BIA has an obligation to articulate a reasoned basis for its decision); Mousa v. INS, 223 F.3d 423, 430 (7th Cir. 2000) (BIA must consider all claims and give careful, individualized, rational explanations for its decisions)" Id. at 5.[back]

15. Farjado v. INS, 2002 U.S. Lexis 16045 (9th Cir. Aug. 9, 2002). [back]

16. The BIA's authority to summarily dismiss appeals stems from 8 C.F.R. ß 3.1(d)(2)(i). Like "affirmance without opinion" summary dismissal can be applied to all types of immigration appeals, including asylum, cancellation of removal, and Convention Against Torture protection. [back]

17. 8 C.F.R. ß 3.1(d)(2)(i) (2002).[back]

18. See U.S. Department of Justice Executive Office for Immigration Review, Statistical Year Book 2001, Public Affairs Office, J11, March 2002. The percentage of unrepresented non-citizens facing removal proceedings was 58% in 2001, and 56 percent in 2000. [back]

19. An estimated 86.2 percent of completed cases in 1997 involved individuals who spoke languages other than English. Id. at H1. [back]

20. Vargas-Garcia v. INS, 287 F. 3d 882, 885 (9th Cir. 2002).[back]

21. Id. at 884.[back]

22. Id. [back]

23. 8 C.F.R. ß 3.1(e)-(e)(1). The new rules limit three-member review only to appeals that would help to settle inconsistencies among immigration judges, establish legal precedents, resolve cases of major national importance, and overturn a clearly erroneous factual determination by an Immigration Judge. See 8 C.F.R. ß 3.1 (e)(6) (2002).[back]

24. 8 C.F.R. ß 3.1(e)(8) (2002).[back]

25. Id.[back]

26. 8 C.F.R. ß 3.1(a)(1) (2002).[back]

27. A proposed version of the regulations was published and implemented on Feb. 19, 2002, with a public comments period that ended on March 21, 2002. See supra note 5.[back]

28. U.S. Department of Justice, Press Release, Attorney General Issues Final Rule Reforming Board of Immigration Appeals Procedures, Aug. 23, 2002. [back]

29. Mae M. Cheng, Immigration Appeal: Asylum seekers claim process failing, Newsday, Sept. 1, 2002, at A 26.[back]

30. Stephen Yale-Lahore, Let Judges Judge, 24 Nat' L. J. 23 (2002). After the enactment of the new regulations, various federal circuit courts, including the 9th Circuit, reported a substantial increase of petitions for review relating to immigration issues. "The court has been hit with a flood of immigration appeals, clocking in at around 100 per's probably the result of efforts to clear immigration backlogs at the Justice Department." Jason Hoppin, Crowding the Docket, the Recorder, July 10, 2002, at 1. [back]

31. Eric Lichtblau, Lisa Getter, The Nation Seeking Speedier Deportations: Ashcroft Plans Judicial Reform, L.A. Times, Feb. 7, 2002, at A 24.[back]

32. Id. "This is an effort to get rid of certain BIA members. By going to the single-board-member review, one board member would have much more power. The only way Ashcroft can neutralize the liberals on the board while going to a one-board-member is to get rid of them." Deirdre Davidson, Immigration Judges Now in the Line of Fire, San Fran. Recorder, Sept. 4, 2002, at 3. On Sept. 30, 2002, one BIA member who is considered by many to be the BIA's most liberal member, Lory Rosenberg,, announced her resignation from the BIA. See 79 Interpreter Releases 1469 (Sept. 30, 2002).[back]

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