Due Process - BIA Purged of Several Members
The Los Angeles Times reported on March 12 that five members of the Board of Immigration Appeals (BIA) had been told they would be terminated from the Board, the administrative unit that hears the appeals of immigration judge decisions.
Termination of members that might tend to rule in favor of immigrants was not unexpected, given Attorney General Ashcroft's recent policies. In February 2002, the Justice Department published proposed rules to "streamline" the BIA. The proposed reforms included having most cases brought before the Board resolved in a summary decision by a single member; barring a reconsideration of the factual determinations of immigration judges on a de novo basis; setting specific time limits for the disposition of cases and for the reduction of a case backlog; and the reduction by more than 50% of the size of the Board. That the Justice Department allowed 30 days for public comment on this major restructuring of the Board was a signal that the Department had already made up its mind, and was providing a minimum comment period only because it was required by law to go through that formality. As expected, the final rule published in August was little changed from the proposed rule.
In January, the Los Angeles Times published the results of its study of BIA decisions. The study indicated that the streamlining procedures were turning the BIA into little more than a rubber stamp certifying the decisions of immigration judges. The number of summary decisions increased dramatically, as did rejections of appeals, after the streamlining initiative began. Decisions were being made in record time.
Immigration Judges can make mistakes, and the role of the appeals board is to consider the correctness of the original judge's decision. Given the fact that a significant number of cases that the BIA adjudicates involve individuals who face potential persecution, torture, or even death if sent back to their native countries, the focus on quantity of decisions rather than quality is especially troubling. From a more practical standpoint, with summary decisions issued by the Board without comment, lawyers representing immigrants turned down by the BIA cannot tell if the Board member handling the case had even read the immigrant's file. As a result, appeals to the federal courts have skyrocketed.
With changes clearly meant to reward speed at the expense of due process, advocates feared that, when it came to reducing the size of the Board after the backlog was reduced, the decision on who would stay and who would be let go would be based on how tough the judges would be. That now seems to have happened.
According to a former Board member, the five who were given notice to leave were "definitely pro-immigrant," and three were among the Board's most senior members (including a past Chairman).
(When the proposed rule was issued in February 2002, the Forum issued a statement, which can be found at: http://www.immigrationforum.org/press/articles/032002_bia.htm.)
The actions by the Attorney General make a strong case for the need for an independent immigration court, which might not only restore the function of the BIA as an appeals unit, but might resolve other issues of authority over the enforcement of immigration law that now seem to be shared between the Justice Department and the Department of Homeland Security. A position paper (from January 2002) on the subject by the National Association of Immigration Judges can be found at: http://www.ifpte.org/federal/pdfs/Immigration.pdf.
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