AMERICAN BAR ASSOCIATION CALLS ON BOARD OF IMMIGRATION APPEALS TO DISCARD PROCEDURAL CHANGES ADOPTED IN 2002

WASHINGTON, D.C., Oct. 13, 2003 — The American Bar Association today called on the Board of Immigration Appeals to discard procedures it adopted in 2002 or, failing that, to adopt a series of changes in order to unclog federal court dockets and achieve justice for immigrants and their families. 

The announcement follows an ABA review of a study on the impact of the procedural changes at the BIA, undertaken pro bono by Dorsey and Whitney LLP at the request of the ABA Commission on Immigration Policy, Practice and Pro Bono.  The “Study of Board of Immigration Appeals Procedural Reforms to Improve Case Management” represents the views of the authors and editors and has not been adopted as policy by the ABA House of Delegates.  The findings of the study confirm concerns that the ABA has had from the time the changes were proposed, and about which the ABA has communicated with the Department of Justice.

“This study concludes that changes billed as simple procedural matters are having a serious and sweeping effect on the administration of justice,” said ABA President Dennis W. Archer.  “After reviewing it, the ABA is recommending that the Department of Justice quickly discard the procedural changes and reinstate prior procedures.” 

Research for the study was conducted over five months by a team of 50 legal professionals, and focused on the impact through July 2003 of procedural changes instituted by the Department of Justice in 2002.  Its results demonstrate that the changes are having a negative impact on both the quality and quantity of BIA decisions, concluding that:

• While 1 in 4 appeals were granted before the procedural changes, just 1 in 10 are now;
• The rate at which BIA decisions are being appealed to the federal courts tripled from 5 percent in 2001 to 15 percent in 2002.  The 2nd, 9th, 5th and 3rd circuits have been particularly hard hit by higher rates of appeals;
• Reducing the number of BIA members who must review each case and imposing strict time periods for decision-making, measures purportedly aimed at eliminating the backlog, have backfired.  Overworked board members have insufficient time to carefully consider the facts and legal arguments of each case;
• Allowing affirmance without written decision creates a clear incentive for board members to meet case processing guidelines by affirming removal orders without regard to the merits of the appeal.  Board members are not required to articulate the basis for their decisions.  The lack of written decisions gives courts of appeal less guidance in reviewing decisions; and
• Massive changes in immigration law, not lack of diligence or efficiency by individual board members, played a large part in the increased backlogs between 1996 and 2002.  Thus, the rationale underlying the procedural reforms is questionable.

“We have been concerned about these procedural reforms since they were first proposed,” noted Esther Lardent, chair of the ABA Commission on Immigration Policy, Practice and Pro-Bono. “The results of the study show those concerns were well-founded, and we are calling on the Department of Justice to make the changes needed to ensure justice for newcomers to our country.”

After its review of the study, the ABA Commission prepared a report, also not adopted as ABA policy, which concludes, as a minimum, that the following modifications are necessary if the Board of Immigration Appeals does not discard the 2002 procedures:

• Require that each case have a written decision that addresses errors raised by the appellant, the basis for determining that the case was correctly decided below, specific legal precedents on which the decision is based, and the reason that the case was assigned to a single board member;
• Prohibit single-member review in cases where judicial review would be foreclosed;
• Prohibit single-member review for reversing an order of an immigration judge to terminate proceedings or grant relief to a non-citizen;
• Make available reconsideration of whether or not a case was appropriately decided whenever a removal order is affirmed by a single member;
• Allow de novo review, which allows the board to re-examine the facts, clear up any factual errors, mistakes or confusion, and decide a case on its true facts.  De novo review also would reduce the pressures on the federal courts;
• Ensure that time frames sufficiently accommodate the practical impediments many respondents face in preparing briefs or finding counsel;
• Expand board membership, rather than reduce it;
• Ensure decisional independence of board; and
• Preserve access to judicial review of immigration decisions, as the federal courts provide important oversight.

The ABA report is posted at www.abanet.org/immigration/home.html.  The “Study on Board of Immigration Appeals Procedural Reforms to Improve Case Management,” as well as an executive summary of the study and related appendices, can be viewed at www.dorsey.com/aba_biaReport.

The American Bar Association is the largest voluntary professional membership association in the world.  With more than 405,000 members, the ABA provides law school accreditation, continuing legal education, information about the law, programs to assist lawyers and judges in their work, and initiatives to improve the legal system for the public.