Ashcroft's Immigration Threat
Reprinted from The Washington Post
February 26, 2002
By T. Alexander Aleinikoff and David A. Martin
During our tenures as general counsel to the Immigration and Naturalization Service, INS lawyers litigated thousands of cases before the Board of Immigration Appeals (BIA). The board, located within the Department of Justice, hears appeals from the more than 200 immigration judges around the country who decide deportation and asylum cases. Our lawyers won -- and they continue to win -- the vast majority of those cases. But even when the INS lost and we disagreed with the board's decisions, we respected its professionalism. Recently, however, Attorney General John Ashcroft issued a set of proposals for changing the Board of Immigration Appeals that indicates he does not share that respect. The changes, although they address some genuine problems, pose a real threat to the integrity of the immigration process and the independence of the board.
The board plays a crucial role that has grown more important in recent years. For most non-citizens subject to removal proceedings, it serves as the supreme court of immigration law. This is so because of the expense of an appeal to a federal court and because of Congress's enactment in 1996 of legislation that cut back substantially on judicial review. The same legislation added significant new complexities to the law. Thorough consideration by the board is vitally important for careful interpretation and uniform application of the law throughout the nation.
Ashcroft is right to call attention to the huge backlog of cases at the board. Average waits of more than a year for a decision do not serve the interests of the government or of immigrants with meritorious claims. And some of the attorney general's proposals could be seen as justifiable fine-tuning of a streamlining initiative the board implemented in 1999, such as better case management, including new deadlines for board members to complete their opinions.
But the proposals
go so far beyond these measures that they suggest a deeper and more
Another piece of the package is even more disturbing. It simply declares that the backlog (which exceeds 50,000 cases) will be so thoroughly mastered within 180 days that the board will then be cut from 23 members to 11. This is too transparent. It is exceedingly unlikely that the backlog reduction goals can be met in six months -- even with the new screening process in place. And yet the cut in the number of board members is announced now.
This suggests that more might be at play here. A hint can be found in the reported comment of an unnamed top aide that the attorney general wants to make sure that the board and the department are "on the same page." The not-so-subtle threat is that the attorney general will use the next six months to monitor individual decisions and then purge those members whose substantive views don't conform to the attorney general's stated and unstated policy objectives, whatever their best professional judgment of the law.
If the attorney general disagrees with a substantive decision of the board, current regulations permit him to have the final word, but in a way that is truer to the rule of law. Under established procedures, he may personally take BIA cases for review. But when that happens, the process is public and open, and the attorney general must write an opinion that carefully analyzes the legal questions and justifies his conclusions -- without intruding on the independence of board members as they make their decisions resolving individual cases.
The proposals for the board must be put in the broader context of Ashcroft's actions toward immigrants. He has lengthened the time immigrants can be held without charge, has indicated that their conversations with their lawyers may be monitored, and has claimed that those who criticize these and other measures give aid to terrorists. Now, apparently, he wants to take on the judges.
step in and put a hold on the attorney general's proposals until
there can be a more thorough consideration of alternatives to tackle
the administrative backlog. Compromising the Board of Immigration
Appeals' independence and its vital function as chief expositor
of the nation's immigration laws hardly serves the ideal of the
rule of law.
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