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October 17, 2003

Introduction

On Friday, October 17, 2003, the Migration Policy Institute welcomed Dorsey & Whitney, LLP and the American Bar Association to a breakfast briefing to release findings from their study on the effects of recent Board of Immigration Appeals “Procedural Reforms.” The study is available at www.dorsey.com. Presenting the study were Paul Klaas, a Partner in the Trial, Regulatory, and Technology Group and Chair of International Arbitration and Litigation at Dorsey and Kathleen Moccio an Attorney in the Labor Practice group where she practices exclusively in the area of immigration and nationality law. Carol Wolchok, Staff Director of the American Bar Association Commission on Immigration Policy, Practice, and Pro Bono, articulated ABA recommendations in light of Dorsey’s report. Alex Aleinikoff, Senior Associate at MPI and Associate Dean and Professor of Law at Georgetown University Law Center moderated the briefing.

Background

Under the umbrella of the Department of Justice, the Board of Immigration Appeals (BIA) is the chief administrative law body for immigration law. The BIA is the court of last resort for most immigration cases.

Over the last decade, a significant backlog of cases developed at the BIA. The backlog led the Board to issue “streamlining” regulations in 1999, which empowered single members of the Board to affirm decisions of immigration judges in certain classes of cases. In 2001, the Executive Office of Immigration Review (EOIR) and the Board of Immigration retained Andersen LLP –an independent consulting firm now known as Accenture– to perform an audit of the “Streamlining Rules.” Andersen found that the streamlining project was an “unqualified success” and, furthermore, that it was a “viable” means toward reducing case backlog (for more information please see p. 23 of the Dorsey & Whitney Study available at www.dorsey.com).

Despite the report of by Andersen that the streamlining rules were having a positive effect, the Department of Justice greatly expanded streamlining in rules issued in February 2002. These new rules—known as the “Board of Immigration Appeals: Procedural Reforms to Improve Case Management” –took effect September 25, 2002. They raised concerns in the immigration law and policy communities because of the high number of appeals of immigration judge decisions that the Board would now reject without issuing an opinion or statement of reasons.

The American Bar Association (ABA) Commission on Immigration Policy, Practice and Pro Bono asked Dorsey & Whitney, LLP to undertake a study to examine the effects of the new rules. Dorsey & Whitney’s massive report represents more than a million dollars of pro bono activity for the firm.

Presentation

Aleinikoff began the presentation by applauding Dorsey for undertaking the country-wide study and introducing the data publicly.

Paul Klaas followed by highlighting the major findings of the study which sought to answer the question: “What, as a matter of data, have been the effects of the Board of Immigration Appeals ‘Procedural Reforms’ 2002.” Klaas noted the failure of the “Procedural Reforms” to adequately reduce case backlog. He also reported that the rules had produced a huge increase in appeals filed in federal Court of Appeals—in essence, the streamlining rules have shifted a portion of the backlog from the Board to the federal courts.

Kathleen Moccio continued the presentation by discussing the nature of the DOJ “Streamlining” process. She noted that the reforms allowed one BIA member to make render summary decisions. Initially applied to a narrow range of cases, acting Chair Lori Scialabba significantly expanded the category of eligible cases by designating asylum cases on March 15, 2002, and then all cases on May 3, 2002.

Klaas further stressed the dramatic increase in BIA Summary decisions based on the new procedures. He noted that in October 2001, 10 percent of BIA decisions were summary judgments, climbing to 60 percent the following year. Additionally, the report found that prior to implementing the new procedures one in four cases were found in favor of the appellant-immigrant. Post “Procedural Reforms” however, only one in ten cases were decided in support of appellants. Moreover, “Affirmance Without Opinion” decisions do not necessarily mean that the panel member agrees with the lower judges’ decision, only that any error in the latter’s decision was harmless or immaterial. Klaas again emphasized that these decisions were often unexplained.

Moccio then discussed three cases of application for asylum that were denied by BIA under the streamlined rules only to be remanded by federal courts of appeals: Yong Tang, a Chinese national who had been persecuted throughout his life; Azim Tuhia, a political activist in Bangladesh and Zebenwork Haile Georgis from Ehtiopia who had been raped and imprisoned for his political activities. Federal judges reviewing these cases found errors in the decisions of the immigration judges—errors not identified under the streamlining rules of the BIA. In terms of numbers, the rising backlog at the federal courts has increased from approximately 1,000 in October 2001 to more than 5,000 cases in March 2003.

Overall, the Dorsey study finds that the BIA 2002 Procedural Reforms undercut significant functions of BIA: “setting precedents; providing fair and reasoned review; and catching mistakes before innocent people get hurt.”

Representing the American Bar Association Commission on Immigration Policy, Practice, and Pro Bono, Carol Wolchok continued the discussion by articulating ABA recommendations in light of the report’s findings. For more on the ABA’s position please see: www.abanet.org/immigration/policy/home.php . The ABA advocates a complete repeal of the 2002 Procedural Reforms. Short of their abolition, they recommend the following modifications:
· Each case should have a written decision that addresses the errors raised by the appellant;
· There should be no single-member review where judicial review is unavailable;
· Referral to a three-member panel should be mandatory in all of the categories where it is now only permitted;
· The BIA must be diligent in ensuring the correctness of results of individual cases –a critical function of BIA review;
· De novo review is a valuable tool and must be maintained;
· More time must be allowed to prepare appellate briefs;
· The increasing number of cases calls for an increase in number of board members rather than the contrary;
· Judicial independence of Board members from political officers and pressures must be ensured; and
· Judicial review of immigration decisions is paramount and must be preserved.

Wolchok further emphasized the “bad policy” of shifting case backlog from the BIA to Federal Courts.

Question & Answer

Have Federal Judges spoken with Ashcroft to declare these procedures invalid?

Though both the 9th and 2nd Courts of Appeals have appointed court personnel to look into this issue, there has been no direct judicial intervention.

What is the proper kind of BIA reform to facilitate and speed up the decision process?

A reasoned approach to streamlining similar to the form initially announced by the BIA..

Doris Meissner, Senior Fellow at MPI added that written decisions should also be emphasized, as they are a source for legal precedent and direction in immigration law.

What is not reflected in the Dorsey data?

The human dimension and impact is not represented in the data, particularly the stories of individuals who do not have access to higher (appeals) courts because of financial handicaps.