Coming Soon to Your BIA Appeal: Summary Dismissal
The Attorney General has announced a plan to reorganize the Board of Immigration Appeals, which hears administrative appeals from immigration court proceedings and from many types of immigration benefits decisions (particularly from family cases and waivers of removal grounds). The plan seems to be an extension of reforms that took place in 1995 through 1997 designed to reduce opportunities and incentives for aliens to pursue poorly grounded administrative and court appeals as a means to remain in the U.S. longer, perhaps while pursuing other relief.
Under the proposal, all cases will be reviewed by ONE board member, who will summarily dismiss the appeal or designate it for review by a three-member panel within 90 days. Any panel review must be completed within 180 days of designation. Cases in which the alien is in INS custody will be given priority. Board members will have new personal incentives to make timely decisions and render timely opinions. The plan is for no case to take more than 10 months for decision after the transcript of any hearing is completed, with rare exceptions. These rules will apply even to pending cases once they take effect; thus, their effect must be considered now in cases that may be destined for appeal.
After a transitional period to reduce existing backlogs, the size of the board will be reduced from the present 19 to 11, and the Attorney General will decide who remains a member (making it likely, under the present administration, that the more alien-oriented members of the present board will remain).
The rules also reflect an intention more actively to identify "frivolous" appeals, which can result in sanctions upon the attorneys who brought them and sometimes upon the aliens themselves.
The net result of the changes will be the swifter denial of the overwhelming majority of appeals of removal orders and other adverse INS decisions. The number of aliens actually benefiting from such swiftness will be very few-- primarily those with very well-founded appeals who are being held in detention, who now can better "afford" to appeal a removal order in light of the prospect of less further detention pending appeal.
A particular effect will be a further reduction of the incentive for asylum applications or other types of relief from removal unless the alien has a good chance of success. Aliens not in removal proceedings whose asylum claim is denied by an asylum officer already become swiftly placed into proceedings where the claim is reviewed on a "fast track" by an immigration judge without meaningful opportunity for interim employment authorization. Nevertheless, the prospect of a two or three-year process of BIA review of the immigration judge's denial on a lengthy transcript and voluminous evidence has continued to provide some incentive to file asylum claims that are not well calculated for success. While the case was pending, the alien could try to arrange some other form of relief upon which he could move to reopen the underlying case before the board decided the appeal, and in any event the board often has granted 30 days' "voluntary departure" to unsuccessful asylum appellants.
Under the new rules, the swiftness of summary dismissal (and thus, administrative finality) of most cases will eliminate much of the incentive to apply for asylum (or any other type of relief) in immigration court primarily as a means to delay removal. One must also wonder whether a grant of voluntary departure will continue to accompany summary dismissals, even in asylum cases. Giving up all claims to relief and requesting up to 120 days' "voluntary departure" from the immigration judge in the first place will become more attractive. More often than before, only aliens with a claim for asylum or other relief having a meaningful chance of being granted will be well advised to apply rather than forego voluntary departure. In other words, the rules are likely to accomplish their intent.
The new rules increase the chance that even a well founded appeal will be summarily dismissed by a single member of a reduced board who faces personal pressure to dispose of cases quickly. The 1996 Act's elimination of jurisdiction for federal courts to review many types of BIA decisions increases the risk of absolute finality of a bad summary decision. Charitable agencies that champion alien rights will surely challenge the new rules in court once they are implemented, but those challenges are unlikely to be successful in the end.
Attorneys filing appeals will develop strategies to get past summary dismissal by one board member. To qualify for review by a three-member panel (the only way to overturn the underlying decision), a case must present one of the following: (1) The need to settle inconsistencies between the rulings of different immigration judges (and demonstrating this requires some awareness and ability to present the decisions of immigration judges that generally are not published); (2) the need to establish a precedent to clarify ambiguous laws, regulations, or procedures; (3) the need to correct a decision by an immigration judge or by the INS that is plainly not in conformity with the law or with applicable precedents; (4) the need to resolve a case or controversy of major national import; or (5) the need to correct a clearly erroneous factual determination by an immigration judge.
One thing is clear: The proposed rules will increase the importance of excellent lawyering in the pursuit of BIA appeals of immigration decisions and in the proceedings that lead up to those appeals.
About The Author
Robert C. Divine is the leader of the Immigration Team of Baker Donelson Bearman & Caldwell, P.C., a full-service law firm with over 250 lawyers and public policy advisors in TN, MS, GA, Washington DC, and Beijing, China. He is the sole author of Immigration Practice (Juris Publishing 2001), a 1,500 page handbook/treatise on all aspects of immigration law that is fully updated and republished in one softbound volume each year. His team handles the full array of immigration matters, including business and family cases, and represents clients in immigration court and administrative and federal court appeals. He was a Morehead Scholar at the University of North Carolina at Chapel Hill and received his J.D. from Vanderbilt University School of Law in 1985. He is the Chair of the Midsouth Chapter (covering 5 states) of the American Immigration Lawyers Association. His Team's new comprehensive web site is www.immigration.bakerdonelson.com. He can be reached at firstname.lastname@example.org.