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Statement of Hon. Lauren R. Mathon before the Committee on the Judiciary Subcommittee on Immigration and Claims   February 6, 2002


            It is my pleasure to appear before you to discuss the operations of the Executive Office for Immigration Review.  I hope to highlight some of the reasons for the current case backlog at the Board of Immigrations Appeals, to note what current management initiatives are effectively working and to outline my proposed changes for the Board of Immigration Appeals.

I have spent 15 years working in the field of immigration law.  I have spent a large portion of my career in this fascinating field of law, and I am truly concerned that the adjudicative process in continue to have integrity and continue to be just and fair to all concerned - to the aliens, to the Immigration and Naturalization Service, to the Attorney General and to the citizens of the United States.

BIA Backlog

            The current caseload at the Board of Immigration Appeals is crushing.  It receives over 30,000 filings each year and has a backlog of 55,000 cases.  The reasons for the backlog and increasing caseload are many.

            First, although the number of Board Members was greatly increased in 1994-1995, a large backlog existed at that time.

            Second, radical changes in 1996 under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) and the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) represented a fundamental change in immigration law.  Immigration Judges, the Board, and federal courts have all attempted to interpret these changes.  Extensive litigation ensued and often resulted in the Board and Immigration Judges adjudicating the same case twice.  The Board is still interpreting the 1996 law, and these issues are still being litigated in federal court.  The U.S. Supreme Court ruled on two of these issues last year.  Its ruling in INS v. St. Cyr (cite) resulted in hundreds, if not thousands, of remands to the Board and to Immigration Judges.

            Third, the number of Immigration Judges has greatly expanded to meet its own caseload.  I was one of 75 judges when I was appointed in 1987.  Today there are over 225 judges.  The increase in judges has resulted in an increase in the number of appeals.

            Fourth, the Board experienced management difficulties from 1995-2000.  For example, the former Chairman tried to implement and enforce time limits for Board Members to adjudicate cases and write their separate opinions and achieved only limited success.  He rarely imposed any penalties on offenders.

            Fifth, although the number of Board Members greatly expanded over the past few years, four of the Board Members appointed in the last two years had no immigration background or expertise.  It took them time to learn a new body of law and become proficient at their work, and during this time the number of cases which could otherwise be reviewed and adjudicated decreased.

Effective Management and Regulatory Initiatives

            Three distinct initiatives at the Board have been implemented and are working well.

            First, the Streamlining process is a regulatory initiative, and it allows the Board to adjudicate noncontroversial cases by a single Board Member.  This specialized panel has dramatically increased the overall production of the Board.  Today this panel is responsible for about a third of the overall production.  From its inception in 1999, the Streamlining panel has worked effectively to screen all incoming cases for legal issues raised on appeal and adjudicate the noncontroversial cases by a single Board Member.  It is staffed by high volume producing and high quality attorneys, paralegals and Board Members, and it is expertly managed by an outstanding supervising attorney.

            Second, the Jurisdiction panel effectively and efficiently adjudicates all cases with jurisdictional issues.  Each month hundreds of appeals and motions are filed beyond the regulatory time and numerical limits.  This panel adjudicates these issues without the necessity of addressing the merits of the cases.  Moreover, this panel wrote the BIA Practice Manual, which is a valuable tool for immigration practitioners all over the country.

            Third, one of the panels at the Board is specifically devoted to adjudicate backlog cases.  It has been successful in making a big dent in the backlog.  Rather than spread these cases among all the panels, the decision to allocate specific resources to this task has proved to be a good one.

Proposed Changes

            To address the Board’s caseload and make Board Members accountable, I would propose these changes:

1.                  Set specific time limits for the Board to render decisions on all incoming cases.  The time limit can be shorter for cases involving detained aliens, but in no case should it be longer than 180 days from the date of receipt of the transcript.

2.                  Mandate a result if the Board does not meet these time limits.  I would propose that the Immigration Judge’s decision be affirmed without opinion.

3.                  Mandate the Board to enforce the regulatory numerical and temporal deadlines for filing appeals and motions.  See 8 C.F.R. 3.1 and 3.2 and Matter of J-J-, 21 I&N 976 (BIA 1997).  The Board should not routinely ignore regulatory filing deadlines, as it is now doing, nor should it ignore the numerical limits for motions to reopen and motions to reconsider.

4.                  Mandate the Board to consider only those issues raised on appeal.  The Board should not raise issues on behalf of a party, if the party did not raise these issues on appeal.

5.                  Set a short and specific time limit for a Board Member to write a separate opinion or dissent.  Enforce a sanction if the Board Member does not comply.  For example, if a Board Member votes to dissent, the Board Member should have a 3-week period to prepare a written dissent.  If he or she fails to do so within that time period, the decision of the majority should be made and distributed without the Board Member’s full dissent.

6.                  Reduce the number of Board Members to a total of 16, 15 Board Members and Chairman.  Create 5 BIA panels and assign 3 Board Members to each panel.

7.                  Hire more paralegals to help screen all incoming cases for potential adjudication by Streamlining panel and to write decisions in noncontroversial cases.  Hire more attorneys to help write decisions.

8.                  Add more categories of cases for adjudication by a single Board Member on the Streamlining panel.  Set up a task force to propose additional categories.

9.                  Set a goal to complete adjudication of the backlog.  The Board has successfully adjudicated the backlogs of 1992 - 1994, and it should continue to allocate some of its resources full time to this project.

10.              Promote consistency of decisions among the panels.  One of the missions of the Board is to provide a uniform interpretation and application of immigration laws.  Different panels at the Board should not reach opposite conclusions in cases with similar fact patterns or similar legal issues.  Results should not routinely depend on the particular composition of Board Members on the panel.  The Board should have a uniform standard of review and should not routinely invoke its authority to conduct de novo review when it seeks to achieve a particular result.  See Matter of Burbano, 20 I&N Dec. 872 (BIA 1994).


Thank you for this opportunity to appear before the Subcommittee.  I would be pleased to answer any questions you may have.