The MPI Breakfast Briefing on the Reform of the Board of Immigration Appeals examined the impact of these changes. In particular, comments focused on the expedited appeals process, whereby a single board member may rule on an immigrant’s appeal. Decisions regarding appeals had usually required a three-member panel. Panelists also addressed the Attorney General’s decision to reduce the size of the BIA once the backlog has been completely reduced. It is now down to 12,000 or 13,000 cases. Five of the current board members have apparently been told that they will not be invited to return to their positions once the size reduction plans take effect. Opening the briefing, Alex Aleinikoff noted that the many cases currently being decided by a single BIA judge raise questions of due process and fairness. Moreover, while figures from October 2001 indicated that 59% of appeals were rejected, a year later that number had climbed to 86%.

Philip Schrag, a professor at Georgetown University Law Center and director of the Center’s asylum law program, began by noting that the second “streamlining” rule of the Board of Immigration Appeals (2002) has sped up the production of decisions by the Board, which is now very often deciding cases by summarily affirming immigration judges’ decisions, without Board opinions. But the speedup appears to have heavy costs.

First, Professor Schrag said, even asylum cases involving life and death may not be getting serious consideration by the Board. Thus the Board may not be performing the task it was set up to accomplish. Second, aliens who lose such cases may be unable to appeal further to the U.S. Courts of Appeal because the formal procedures and requirements of those courts require much higher litigation expenses, which are beyond the reach of many asylum-seekers. Third, though most aliens may be deported because they can not afford to appeal, some aliens will be able to appeal either because they have money or because they can find pro bono counsel. In these cases, the Board’s abdication will impose the burden of more frequent and more searching review on the U.S. Courts of Appeal, which are already experiencing heavier caseloads as a result of the rules change. Finally, in some types of cases, the aliens will have no effective review at all, because the 1996 immigration law barred the Courts of Appeal from considering certain issues (such as the applicability of exceptions to the one-year asylum filing deadline).

Professor Schrag predicted that through hundreds of remands, the Courts of Appeal would eventually force the Board, or some new entity replacing the Board, to become a more effective reviewing body. But it will take years before the crisis caused by those remands and the delays resulting from them will produce change, and in the meanwhile, many aliens will be deported unfairly. Some of them may be tortured and killed because they did not receive adequate appellate review of errors made in consideration of their applications for asylum.

Lory Rosenberg, current director of the Defending Immigrants Partnership at the National Legal Aid and Defender Association, is a former member of the BIA. She stressed the need for a close examination of the supplementary information accompanying the final BIA reform regulations, which explains the underlying assumptions, rationale, and processes behind the new streamlining rules mandating affirmance without opinion. For example, the Attorney General and Department of Justice (DOJ) assume that immigration judges are most often legally and factually correct in their decisions. They also assume that the vast majority of appeals involve relief from removal that is subject to the Attorney General’s discretion, in which an applicant’s due process interests arguably are diminished. These faulty assumptions result in an erroneous perception of the role played by the BIA in reviewing the decisions of immigration judges. The decision of the First Circuit in Albathani v. INS provides an example of the ways in which flaws in individual affirmances without opinion could, if shown to be systemic, provide a strong argument against the mandatory streamlining procedures.

Regarding the dismissal of Board members, Ms. Rosenberg noted that the BIA is structured so that an individual Board Member has increasingly limited authority to determine the outcome of an appeal. This has been exacerbated by the new regulations, which provide that an individual Board member may only overturn a judge’s decision if a new precedent has been set in the intervening time period between the initial decision and its review. Otherwise, the options available to the Board member are to affirm the decision (which is adverse to the respondent in more than 90-95% of the cases), to affirm the decision with a short explanation of the affirmation, or to remand the case to the immigration judge. This last option is looked upon with disfavor because it increases the immigration judge’s docket and extends the time necessary to issue a final order in the case. On average, at the rate at which decisions are reportedly being made, each case receives 15 minutes of review. Ms. Rosenberg concluded that the Board members who were notified that they would not be asked to remain on the BIA tend to be immigrant-friendly, but that the reduction in the number of Board members is being conducted in a manner that lacks transparency, obscuring any criteria that may have been used to select either the individuals who will remain or those who will have to step aside. By resorting to a process of “voluntary transfers,” the Attorney General and DOJ ostensibly will be relieved of any accountability for what appear to be arbitrary dismissals and an unreasonable reduction in the number of members on the BIA.

Attorney Tom Sydnor of the law firm Arnold & Porter discussed the case he has brought on behalf of the Council on American Islamic Relations (CAIR) and the American Immigration Lawyers Association (AILA) to challenge these reforms. If successful, the case, which was argued on February 25, will invalidate the 2002 streamlining procedures. Those approved in 1999 will remain effective.

The panelists comments were followed by audience questions on the role of staff attorneys in the Board of Immigration Appeals.

Alex Aleinikoff concluded by noting that Kevin Rooney’s office in the Department of Justice had been invited but declined to attend.