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FEBRUARY 6, 2002


            It is my pleasure to appear before you to discuss the functions, organization, and case processing systems of the Executive Office for Immigration Review (EOIR).

            EOIR was established in 1983 when the Department of Justice (Department) created the Office of the Chief Immigration Judge and its Immigration Courts and combined this function with the existing Board of Immigration Appeals (Board). EOIR is an administrative hearing tribunal, which presides over both trial and appellate immigration cases throughout the United States. Prior to the creation of EOIR, the initial hearing function had been performed by special inquiry officers at INS. The functional move of cases from INS to EOIR was to ensure impartiality in the immigration adjudication context by having cases decided by a different entity than the one that prosecuted them.

            In 1987, a third component, the Office of the Chief Administrative Hearing Officer (OCAHO), was added to EOIR. Administrative Law Judges within OCAHO interpret the laws sanctioning the hiring of illegal aliens, immigration-related employment discrimination and immigration-related document fraud.

             EOIR’s primary function is to provide a uniform interpretation and application of immigration law, through an adjudication process involving individual cases, and to provide due process and fair treatment to all parties involved.

The Three EOIR Components and Their Missions

Office of the Chief Immigration Judge and the Immigration Courts:

            The Chief Immigration Judge provides overall program direction, articulates policy, and establishes priorities for the Immigration Judges. The Immigration Courts are comprised of 211 Immigration Judges in 51 Immigration Courts throughout the United States, with 18 of the 51 Immigration Courts located in either detention centers or prisons. Additionally, Immigration Judges travel to over 100 other hearing locations to conduct proceedings. In FY1984, there were approximately 127,000 matters brought before the Immigration Judges. In FY 2001, EOIR’s Immigration Judges received over 284,000 matters.

            Immigration Judges preside over ten types of hearings. The most common hearing is a removal hearing, in which INS charges that an alien is unlawfully in the United States and should be removed. However, while almost all hearings include the issue of removability, the outcome of many of these hearings does not turn on this issue, but rather on the issue of relief from removal. Even if an alien is removable, he or she may file an application for relief from removal, such as asylum, voluntary departure, suspension of deportation, cancellation of removal, adjustment of status, registry or a waiver of inadmissibility. Immigration Judges are experts in the many and varied issues of immigration law, and are often called upon to determine such complex issues as derivative citizenship claims or interpretation of state or federal criminal laws as they relate to immigration.

            Immigration Judges also preside over bond redetermination hearings. Bond redeterminations are held when an alien in custody seeks release on his or her own recognizance, or a reduction in the amount of bond imposed by the INS. Immigration Judges completed over 30,000 bond hearings in FY 2001. On October 31, 2001, the Department issued a regulation modifying the bond determination rules to provide for an automatic stay of an Immigration Judge’s decision ordering the release of an alien where the INS had set a bond of at least $10,000, or determined that the alien should not be released. The INS must request this automatic stay and the stay is in effect for ten days. In that period, the INS must appeal the Immigration Judge’s decision to the Board or the stay lapses. If the Board upholds the Immigration Judge’s decision, another automatic stay arises for five days for the INS to determine if it wishes to refer the Board’s decision to the Attorney General. The stay terminates if no referral to the Attorney General is made. If the appeal is made, the stay remains in effect until the Attorney General makes a decision on the appeal.

            One of the most significant activities our judges perform is providing removal hearings for aliens convicted of criminal offenses who are incarcerated in prisons across the United States. Our judges travel to 44 states (and Puerto Rico) and 72 prisons on regular details. EOIR has coordinated the implementation of expanded programs with the INS to ensure the optimal placement of resources based upon the volume and geographic concentration of detained, asylum, and criminal alien workload.

            The Institutional Hearing Program (IHP) provides the framework for hearings that determine the immigration status of aliens convicted of criminal offenses who are incarcerated in prisons across the United States. For FY 2001, the Immigration Courts completed 10,989 IHP cases. In concert with the INS, EOIR has concentrated on the Federal prison system and those in the seven states most affected by illegal immigration: California, Texas, New York, Florida, Arizona, New Jersey, and Illinois. There are also programs in virtually all other states, the District of Columbia, Puerto Rico, the Virgin Islands, and selected municipalities. The seven state programs, known collectively as the Enhanced IHP, account for the vast majority of the state program caseload, as well as that of the total IHP. Consequently, Enhanced IHP is a central component of a variety of initiatives designed to expedite the removal of criminal aliens who are found removable from the United States. This involves close coordination with INS, the Federal Bureau of Prisons, and state and local correctional authorities.

            In the aftermath of the tragic events of September 11th, the Office of the Chief Immigration Judge has implemented new procedures in handling special security cases. In order to protect the privacy of the alien and the witnesses, certain special security cases have been closed to the public. Immigration Judges have always had the authority to close cases under section 3.27 of Title VIII of the Code of the Federal Regulations. Immigration Judges may close hearings for the purpose of protecting witnesses, parties or the public interest. Additionally, the Board and the OCIJ have adopted interim measures to accommodate persons whose business with the Board or with the Immigration Courts in New York City was affected by the terrorist attacks on September 11, 2001.

            To enhance the implementation of the asylum reforms, EOIR expanded the number of Immigration Judges in many courts and established several new courts. EOIR’s computer system has been modified to facilitate the implementation of asylum reform by enhancing case tracking capabilities and by allowing several INS asylum offices limited access to the system. INS personnel can now access the Automated Nationwide System for Immigration Review (ANSIR) system and schedule cases for Immigration Judge hearings immediately upon their decision to refer the denial of an application for asylum to EOIR. INS regional service centers can access the ANSIR database and ascertain the status of cases to determine an alien’s eligibility for employment authorization. This interactive scheduling system is available to INS nationwide for all case types.

            EOIR has also been active in the regulatory area, publishing regulations that include provisions allowing the use of stipulated removals, thereby enabling the expedited removal of criminal aliens in applicable cases. Regulations also authorize the Immigration Judges to conduct telephonic hearings as well as video electronic hearings, which are particularly effective in providing hearings in remote detention settings.

The Board of Immigration Appeals:

            The Board was established over 60 years ago to ensure uniformity and a national standard. Under the direction of the Chairman, the Board hears appeals of decisions of Immigration Judges and certain decisions of INS officers in a wide variety of proceedings in which the Government of the United States is one party and the other party is either an alien, a citizen, or a transportation carrier. Board decisions are binding on all INS officers and Immigration Judges unless modified or overruled by the Attorney General or a federal court. The Board’s purpose is to provide a nationally uniform application of the immigration laws, both in terms of the interpretation of the law and the exercise of the significant discretion vested in the Attorney General. The majority of cases before the Board involve appeals from orders of Immigration Judges entered in immigration proceedings. The Board has received approximately 30,000 cases per year for the last several years, an extremely large volume for an appellate body. This is a dramatic increase from the number of cases received in the early 1990's. For example, in 1992, the Board received only 12,774 appeals or motions, less than half of the current number of cases now received annually. In FY 2001 the Board received approximately 28,000 appeals or motions and completed approximately 32,000 appeals or motions, in large part due to initiatives implemented by Board management.

            Processing an increasing caseload has been a challenging task in a time of major legislative action in the immigration arena. The number of appeals from the Immigration Courts has risen from 10.9% in FY 1996 to 15.7% in FY 2001. The Board has provided the principal interpretation of the Immigration Reform and Control Act of 1986 (IRCA); the Immigration Amendments of 1988; the Anti-Drug Abuse Act of 1988; the Immigration Act of 1990 (IMMACT 90); the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA); the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA); the Nicaraguan Adjustment and Central American Relief Act of 1997 (NACARA); and the Haitian Refugee Immigration Fairness Act (HRIFA) of 1998. New challenges will include interpretation of the Victims of Trafficking and Violence Protection Act of 2000 (VTVPA), the Legal Immigration and Family Equity Act of 2000 (LIFE), and the PATRIOT Act of 2001. These laws have represented the most fundamental restructuring of the Immigration and Nationality Act (INA) since its enactment in 1952, and have presented a myriad of new issues of statutory construction. The Board’s mission requires that national policies, as reflected in immigration laws, be identified, considered, and integrated into its decision process.

            In response to the continuously increasing caseload associated with increased INS apprehensions and legislative developments, the Board has initiated a variety of management and regulatory improvements designed to increase efficiency, while maintaining due process guarantees for all parties.

            In addition to its numerous management initiatives, EOIR has continued to improve programs through the regulatory process. For example, the Board’s jurisdictional and procedural regulations have been amended to expedite the motions and appeals practice to allow the Board to assume direct control of appellate filings, replacing a cumbersome and decentralized system of filing at local Immigration Courts.

            A much broader regulatory initiative, called “streamlining”, was also recently implemented. Under these published regulations, noncontroversial cases that meet specified criteria may be reviewed and adjudicated by a single Board Member. The type of case amenable to this “streamlining” procedures include: unopposed motions, withdrawals of appeals, summary remands, summary dismissals, other procedural and ministerial issues determined by the Chairman, and affirmances of Immigration Judge decisions without opinion. This latter category is limited to the following:(1) where the result reached in the decision under review was correct and that any errors in the decision were harmless or nonmaterial and (2) where the issue on appeal is squarely controlled by existing Board or federal court precedent and does not involve the application of precedent to a novel fact situation; or (3) where the factual and legal questions raised on appeal are so insubstantial that three Member review is not warranted. This initiative is currently being implemented through a pilot project, and the results of this project are being used to implement streamlining on a permanent basis. For FY 2001 approximately 58% of all incoming cases were sent to the streamlining panel. The streamlining panel issued 15, 372 decisions which helped the Board increase its productivity by 50% for the last fiscal year. An independent audit concluded that streamlining did not result in an appreciable difference in the ultimate outcome of a case, nor did it affect the rate of legal representation of aliens in appeals before the Board. The independent auditor also concluded that the Streamlining Project has been an “unqualified success”.

            The Department recently submitted a proposed regulatory amendment that addresses additional procedural changes in how the Board adjudicates cases. The Department incorporates many of the streamlining procedures presently utilized by the Board. These proposals will promote additional expeditious review of all pending and incoming appeals. I would be pleased to discuss these initiatives in general terms with you today.

Office of the Chief Administrative Hearing Officer:

            The Office of the Chief Administrative Hearing Officer (OCAHO) is comprised of a Chief Administrative Hearing Officer (CAHO) and three Administrative Law Judges (ALJs). The ALJs adjudicate individual cases according to the Administrative Procedures Act. OCAHO cases involve: (1) the unlawful hiring, recruiting, referring for a fee, or continuing employment of unauthorized aliens by employers, and their failure to comply with employment verification requirements (employer sanctions); (2) immigration-related unfair employment practices; and (3) immigration document fraud. Complaints under these sections of the Act are brought by the INS, the Office of Special Counsel for Immigration-Related Unfair Employment Practices, or private individuals. All decisions by this office are considered final unless overturned by a Federal court or the Attorney General.

            In the area of document fraud, a settlement was recently approved in the class action lawsuit of Walters v. Reno, the case which has effectively suspended enforcement of the civil document fraud provisions of Section 274C of the INA and resulting cases for the past four years. Settlement of the Walters case could increase OCAHO’s caseload substantially as INS resumes enforcement of Section 274C, since the coverage of the statute was broadened considerably by amendments to the law in 1996 and because a higher percentage of respondents in document fraud cases can be expected to request an ALJ hearing with the adoption of new procedures included in the settlement.

            OCAHO judges have been empowered to assist Board panels in the adjudication of Board cases as temporary Board Members.

            Thank you for this opportunity to appear before the Subcommittee. I look forward to working with members of the Subcommittee and would be pleased to answer any questions you may have.

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