This week the Justice Department announed the final rule radically altering the current structure and functioning of the Board of Immigration Appeals. The BIA is the appellate court in the Executive Office for Immigration Review, and is often the last place where people have an opportunity to make their case to be allowed to remain in the US. Attorney General John Ashcroft, who upset many when the rules were first proposed in February 2001, says they will improve not only the speed with which the Board hears cases, but also the quality of its adjudications.
In announcing the new rule, Ashcroft spoke harshly about the Board’s performance, saying that delays at the Board undermined enforcement of immigration law. He also accused it of, through its slowness, encouraging people to pursue frivolous efforts to remain in the US.
Those opposed to the new regulations, while agreeing that much needs to be done to improve efficiciency at the Board, where 56,000 cases were pending in February, 10,000 of them for three years or more, say that making the system more efficient should not come at the cost of sacrificing immigrants’ rights. Many also believe that the new regulations are not so much about improving the BIA as creating an opportunity to remove members who’s views do not match those of the administration.
Historically, three member panels reviewed all cases. However, as the number of cases grew, this became increasingly difficult. In 1999, the Attorney General created a way for single judges to review cases that did not present difficult or novel issues. In 2001, 58 percent of cases were disposed of in this way. The new regulation would expand the use of this procedure. The most significant expansion comes in the elimination of the rule that a Board member cannot affirm an Immigration Judge’s opinion and write their own opinon, but must allow the case to be heard by a three judge panel.
The regulation would also reduce the size of the Board, from 19 members to 11. According to the Justice Department, reducing the size of the Board will make it easier for it to reach a consensus, saying that its size had made it difficult for it to reach decisions. Another way the new rule proposes to make it easier for the Board to reach consensus decisions is by no longer allowing the Board to review decisions before it under a de novo standard, which allowed it to examine the facts and reach its own conclusions.
Significant new time limits are also imposed by the regulations. In cases that a single member will decide the case, they must either issue a decision within 90 days or refer it to a three member panel for review. Three member panels must issue a decision within 180 days.
These rules, which go into effect on September 25, 2002, will apply to all cases pending at the Board. In those cases pending when the final rule was published, August 26, 2002, a motion may be made to present arguemetns about why the case should be heard by a three judge panel rather than a single member.
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