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FEBRUARY 5, 2002

         Good Afternoon, Mr. Chairman. Thank-you for calling this hearing in order to examine the components of the Executive Office for Immigration Review that are tasked with adjudicating immigrant removal cases, the Board of Immigration Appeals (BIA) and the Immigration Courts. This hearing will also examine the backlogs in those tribunals and its recent decisions interpreting and applying various provisions of the Act.


            Attorney General Ashcroft has signed off on a proposed rule that would make procedural reforms at the Board of Immigration Appeals (BIA), including cutting the number of Board Members from the current 19 down to 11. An advanced summary of the proposed regulatory change states that the proposed reforms are intended to the following things: eliminating the backlog of approximately 55,000 cases currently pending before the Board; eliminating delays in the adjudication of administrative appeals; and enhancing the quality of BIA decisions.


            However, while the attempt appears admirable and well intentioned on its face, I do have some concerns. The Board of Immigration Appeals, although underneath the umbrella of the Department of Justice remains an "independent" Board, and should be free from politics. If these changes are made, then it should be up to Congress to make sure that immigrants’ civil liberties are not curbed and that judges who have ruled in favor of immigrants are not the ones who are weeded out. This would be politically motivated.


            Some 30,000 decisions from immigration courts and the Immigration and Naturalization Service are appealed each year. Most experts agree that the majority of cases are decided in the government’s favor. It was the Clinton Administration that expanded the number of BIA members from 5 to 21 in 1995, and the Bush administration added two positions. However, the added personnel did not significantly speed up the process. Also, part of this proposal calls for sending certain cases to a single judge instead of the current system of three judge panels. This single judge can arbitrarily deny an appeal. Having a single appellate judge serve as screener will effectively remove the ability of a panel to correct an aberrant judge. There is nothing in the proposal that permits review of an erroneous decision by a single judge. 

            I am also concerned about the backlog and am aware that some cases have routinely languished for two years. This proposal would build on procedures put in place in 1999 to allow a single judge to rule on routine matters. Under the proposal, three-judge panels would hear only the most significant cases, including those to clarify ambiguous laws or resolve cases of "major national import."

            I agree with the Chairman of the Senate Immigration subcommittee when he says, "These are drastic changes being proposed and we need time to carefully review them." As the Ranking Member of this House subcommittee, I am concerned about the attempt to further reduce an immigrant’s right to seek review of his or her case before an appellate judge." I also take seriously the words of Pamela Goldberg, the director of the immigrant-rights clinic at the City University of New York law school, who called this move an "absolute disservice to our system of justice, and the Bush administration is looking for every possible way to minimize the number of non-U.S. citizens in this country."

            If scholars and the Chairman of the Senate Immigration subcommittee share my concern, then I think the Administration has a ways to go to get the Congress’ support for this proposal. I still question whether these existing backlogs are the result of inefficiency or a lack of resources. I also wonder if eliminating the BIA’s de novo factual review will increase dramatically both the number of cases remanded and the number of appeals taken to the federal courts. I also think that an immigrant has a better chance of receiving real due process with a three-judge panel, than one judge deciding his fate at the appellate level.

            Finally, The AG's detention campaign has resulted in a number of very serious violations of the rights of people in immigration proceedings, including access to counsel. Secrecy has been excessive. In a number of cases, INS attorneys are using novel legal theories, such as the so-called "mosaic" theory, to deny bond to people against whom there is no evidence of danger or flight risk. Under this theory, intelligence gathering is a sufficient basis for detaining people who the government does not even accuse of personal involvement in terrorism. The BIA rejected the mosaic theory in the Al Maktari case, the same individual who later testified before the Senate Judiciary Committee about violations of his rights. What if his appeal had been rubber stamped by a single aberrant judge? Immigration Judges and the BIA are there to keep INS honest, not to rubber stamp decisions.

Mr. Chairman, I look forward to hearing from the witnesses.

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