Last month we reported on a new proposal that the Board of Immigration Appeals establish a system to streamline the appeals process. Under the plan, individual BIA judges could review cases and dismiss those that are not "close calls." The proposal allows such appeals to be denied without a written opinion. Cases with a "realistic chance" of reversal must be referred to a three-member panel.

Philip G. Schrag, a Professor at Georgetown University's law school, is leading a fight against the proposed rules. Schrag has produced a sign on letter for immigration experts and refugee and human rights organizations that outlines problems with the proposed rules.

According to Schrag, elimination of the requirement for written opinions "would represent an abdication of the Board's important reviewing role."

Schrag is not bothered by the idea of allowing single judges to issue opinions. In fact, Schrag believes that aspect of the plan might actually increase the quality of BIA decisions. Aside from potentially speeding up the whole process (it now takes more than a year for an appeal to be heard in many cases), some immigration lawyers believe immigrants may benefit. The theory holds that the BIA is dominated by anti-immigrant judges and more sympathetic judges are routinely outvoted. Single judge rulings would give a greater voice to pro-immigration judges.

Schrag notes in his letter that written opinions have at least three other important values:

- written rulings enable a losing party to accept the legitimacy of an appellate decision. If an alien feels that there arguments were understood and treated fairly, they may be less likely to appeal the case further.

- written opinions ensure that harried adjudicators really read the cases and formulate a reasoned response, and

- in cases where further judicial review is permitted, written reviews are needed to provide the higher courts with insight into why the BIA did not agree with the appellant's contentions.

Schrag also criticizes the proposed rules use of inconsistent language to describe when a case must be referred to a three-judge panel. At one point in the regulation's preamble, the Board states that a BIA member will refer to a panel all cases deemed to have "realistic chance" of reversal and the other cases would be affirmed without opinion. Elsewhere in the preamble, the Board says the correct standard to be applied is when there is a "chance that the result below was incorrect." Elsewhere, the standard is described in terms of whether "the appellant makes a substantial argument" for reversal. And the rule contains a completely different standard. It allows a single BIA member to affirm whenever he or she concludes that there "is no" legal or factual basis for reversal, or where he or she determines that the result under review "was" correct. According to Schrag, this standard contradicts the preamble language because it suggests that "the member should make an appellate determination of the correctness of the decision below, not a threshold assessment of whether any other Board member might reasonably think that reversal would be warranted." Schrag believes the "realistic chance" standard is unworkable because members will each have a different view of what is realistic. If a referral rule is adopted, however, Schrag recommends a lower standard where a Board member only affirms decisions when it is clear that no reasonable Board member could support reversing the opinion.

Schrag also criticizes the rules because they appear to include a systematic, institutional bias against alien appellants. Affirming lower court opinions is relatively easy since no written opinion is required. Reversing decision requires more work since a full opinion is required. Statistically, it is much more likely that an alien ordered deported will appeal than the INS appealing the Immigration Judge's decision not to deport. The proposed rule, according to Schrag, creates the appearance of systematically favoring the deportation of aliens. Instead, the BIA should allow a single member to reverse without referring to a panel if it is clear that no reasonable BIA member would vote to affirm the Immigration Judge's decision.

Another flaw in the proposed rules, according to Schrag, is that it allows the selective delegation of authority. The BIA Chairman has the power under the proposed rules to "determine who from among Board members or the Chief Attorney Examiner is authorized" to affirm cases without opinion or to dismiss appeals summarily. No provisions are made for rotating such responsibilities and no standards are set for how the responsibility should be delegated. One could abuse this authority by selectively choosing members who share a certain viewpoint. Schrag notes that Federal Appeals Court panels were once chosen by the Chief Judge of a circuit, but the system was abandoned in favor or a random selection system.

Finally, Schrag reminds the BIA that the cases most needing speedy processing are not covered by the proposed rule. Detained aliens with pending appeals actually have to wait for months behind bars because there are not enough typists to type case transcripts for BIA members to review.

If you wish to access the letter on the worldwide web, go to http://www.tidalwave.net/~sarahsam/.