DOJ Defends AWO
In response to mounting criticism of the BIA's AWO procedure from circuit courts, participants in the political process, and not least of all, Immigration Daily, the DOJ today issued a "fact sheet" on the Affirmance Without Opinion (AWO) procedure. We excerpt portions of this document below and offer some comments which should be of interest to all immigration attorneys, not merely to those who appear before the BIA.
While we understand and commiserate with the unfortunate predicament of the BIA, we believe it bears part of the blame by continuing to uphold the AWO procedure in the face of its obvious weaknesses. However, we do believe that the final responsibility lies squarely with the Congress on this issue. We call upon Congress to do the right thing by undoing the disastrous 1996 amendments which have entrapped millions of immigrants in the 3/10 year bars. We realize that it is easy for us to criticize Congress on this matter and much harder for members of Congress to defend their votes on immigration matters. However, the nation's work must be done and we are confident that members of our legislative branch will not let America down.
- "It is the rate of appeal (up from an historical 5 percent to close to 25 percent) that primarily accounts for the upsurge in petitions for review in the Federal circuit courts. For example, monthly petitions for review previously numbered about 125, but now range from 1,000 to 1,200 since the new procedures have taken effect. The Board's increased case completions account for a rise of about 200, and the remaining 800 to 1,000 new filings are due solely to the higher percentage of cases appealed."
Our comment: attorneys may want to note that circuit court litigation is thus up eight-fold in the last two years and totals over 10,000 new cases per year. This bolsters our contention that removal related litigation is the only area of immigration law that has not experienced a downturn since the recession of a few years ago. Despite this, many large immigration law firms continue to focus solely on business immigration and have not added a significant litigation division. In light of these numbers, attorneys may want to think through the business implications thereof.
- "Only about one-third of the Board's decisions fall into the category of AWO."
Our comment: we believe this is a significant statement by the DOJ and may signal a small retreat from the AWO procedure in the near future.
- "There is no evidence that the affirmance and reversal/remand rates of BIA decisions has changed significantly in the wake of the restructuring regulation ... A factor which may be contributing to the rise in the rate of appeals is the reduced time involved in completing cases appealed to the Board. Thus, for those aliens who wish to postpone deportation, filing an appeal to the circuit courts may be a much more attractive option than in the past. To the extent that the courts are routinely granting stays of deportation pending their review, the incentive to file an appeal and to request a stay will be high."
Our comments: (1) the not-too-subtle suggestion by the DOJ that aliens take appeal purely to stay in the US longer is indicative of the "deport-em-all" mentality that we have decried. (2) the assertion that the affirmance and reversal remand rates have not changed does not alter the basic point that a procedure, where agency appellate review of a 500 page file is accomplished within a few minutes, must be fundamentally unfair. Is it humanly possible to adjudicate fairly in the circumstances that the Attorney General has created at the BIA? (3) we are sympathetic to the underlying problem for the EOIR/BIA here. The BIA has become a political football as a consequence of the evasion of hard policy decisions by the legislative branch. However, the plain fact remains that the net effect of AWO is to overload the circuit courts unreasonably. While we would be the last to belittle the importance of immigration in the American scene today, surely the proportion of immigration cases before our circuit courts should not be as large as it has become post-AWO. It is unfortunate that the so-called pro-immigration institutions have not considered the size of the federal judiciary's caseload a matter of importance to all. We urge observers of the federal judiciary to objectively examine the immigration caseload before our federal judges and render their considered opinion.
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EOIR Issues Fact Sheet On BIA's Restructuring Regulation
The Executive Office for Immigration Review issued a fact sheet on the BIA Streamlining's Regulation Procedures.
Is DOJ Owed Chevron Deference After Creation Of DHS?
In Lagandaon v. Ashcroft, No. 02-73216 (9th Cir. Sep. 9, 2004), the court in dicta raised the issue of whether Chevron deference is owed to the DOJ or the DHS subsequent to the creation of the DHS. Editor's Note: If no Chevron deference is owed to the DOJ, the Attorney General is likely to lose much current litigation.
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Immigration attorneys as a group care not a bit about any American worker - you can see this by the shallow commentary offered by alleged "experts" in immigration law, who try and convince the disbelieving public that legalizing 10,000,000 law breakers will not erode the earning power of many Americans. Phooey. If you all truly believe that cheap foreign labor is so beneficial to the US, let's engage a "guest worker immigration attorney" program. Yes, let's import 5000 foreign immigration attorneys annually, cap their hourly billing rate at $25 per hour and sit back to hear the moaning and whining from immigration attorneys, who, remarkably, will likely then be far less supportive of those "guest workers."
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