In February 2002, Attorney General John Ashcroft announced that the Justice Department was implementing reforms in order to reduce the backlog of over 56,000 cases at the Board of Immigration Appeals (BIA).  However, these reforms have shifted the backlog of cases to the federal courts.

In September, the Administrative Office of the U.S. Courts stated that circuit court appeals from decisions made by the BIA increased by approximately 400% from March 2002 to March 2003, for a total of 8,446 immigration administrative agency appeals filed in federal court.  These appeals mainly came from immigrants who were unable to win relief from deportation orders.

In March 2002, total administrative agency appeals of BIA decisions increased by 48%, and rose to 73% in April.  By February 2003, monthly filings of these appeals grew to 357%.  Currently, there is a backlog of over 5,000 appeals.  The Second and Ninth Circuits received the largest portion of these appeals.  From February 2002 to February 2003, filings in the Second Circuit increased by 781% and filings in the Ninth Circuit increased by 385%.

This overwhelming number of petitions sent to the courts of appeals is attributed to the increased production by the BIA as a result of the Attorney General’s reforms of the BIA.  However, the Attorney General did meet his goal to clear the backlog of cases, and the BIA’s monthly production has risen by 30%.

The purpose of the BIA is to decide individual appeals by immigrants who have been found by immigration judges to be deportable.  The BIA then issues precedential decisions in order to guide immigration judges, immigrants and others within the immigration system. 

Before 1999, the BIA sat in three-member panels to decide appeals and issued written opinions of its decisions.  After 1999, in an attempt to decrease the caseload and backlog of the BIA, the Justice Department allowed members of the BIA to sit alone in affirming the decisions of immigration judges without written opinions.  By December 2001, it appeared that this idea was working.  Ashcroft’s new rules, implemented in February 2002, expanded the use of affirmances without opinion by single board members, preserved the three-member panels for complex and precedential cases, eliminated de novo review of facts, imposed time limits for processing appeals and reduced the size of the board from twenty-three to eleven members.

These new rules were criticized, particularly the reduction in members of the board.  Critics said that the five members who were asked to leave were those who tended to be “pro-immigrant.”  Another criticism was that affirming more decisions without opinions and the elimination of de novo review allowed for major mistakes in decisions.  By allowing the BIA to affirm a decision without an opinion, the circuit courts can no longer look to a BIA opinion for information behind the decision.  Also, some circuit courts are sending remanding cases back to the BIA due to errors in decisions that were summarily affirmed by the BIA.

The American Bar Association’s Commission on Immigration Policy, Practice and Pro Bono requested an analysis of the immigration appeals system as a result of the changes made at the BIA.  About fifty lawyers and legal assistant at Minneapolis’ Dorsey & Whitney conducted a pro bono study in order to assess the surge in appeals.  The study found that due to the increased production at the BIA, immigrants and their attorneys have been dissatisfied with BIA decisions.  It reported that courts are finding mistakes in some decisions, with little or no review by the BIA. 

The Dorsey report also found that before the spring of 2002, the BIA reversed one in four appeals in favor of immigrants.  After this time, reversals in favor of immigrants have decreased to one in ten.  By the end of 2001, about 10% of BIA decisions were summary affirmances.  By March 2002, this rose to over 50%.  The Justice Department has called this study “baseless.”