As the Bush Administration attempts to crackdown on terrorism and to secure U.S. borders, a chilling side-effect of this effort has been the dramatic increase in deportations and negative rulings against aliens in the United States based on recent decisions by the Board of Immigration Appeals (BIA). The BIA is a 23-member panel that reviews the rulings of the 220 federal immigration judges nationwide, and is often the last hope for aliens to appeal their case before they are deported from the United States. However, despite the fact that the violations are often minor in nature or are insufficient to warrant deportation, it appears the BIA has increasingly been failing to consider many of these factors as many of these aliens are torn away without explanation from their family and a livelihood they have spent years building in the U.S.
Federal regulations announced by the Bush Administration in February of 2002 have put tremendous pressure on the BIA to adjudicate cases more quickly, and have likely contributed to the significant increase in the number of negative rulings by the BIA that often results in an alien’s deportation from the United States. In addition, the Bush Administration’s increased pressure is producing a lack of due process or fair consideration of an alien’s case.
One of the federal regulation’s provisions requires a reduction in size of the current 23-member board to 11 members, meaning that 12 positions outright will be eliminated. U.S. Attorney General John Ashcroft has already announced that a BIA member’s productivity in deciding cases will be a factor in deciding which members will be retained and which ones will be eliminated. Therefore, BIA members now have a vested interest in clearing their 56,000 case backlog as quickly as possible. As a result, according to news reports, many of the BIA members apparently have expedited the review process, taking as little as 10-15 minutes to both review each case and issue a decision.
While some of these cases may be simple matters that can be completed in such time, it is likely that many of these cases contain more complex legal and immigration issues and require thoughtful analysis and consideration before a decision should be reached. However, because of the new federal regulations and the additional pressures placed on BIA members, it appears that some of these members may be failing to consider relevant facts or evidence that might prevent an alien from being deported from the U.S.
The numbers appear to support these conclusions. In March 2002 for example, just after the announcement of the new regulations, 38 percent of the BIA’s decisions were “summary rulings” meaning that the BIA upheld the decision of the immigration judge without explanation. This was a sharp jump from the 9 percent of total cases that were summary rulings just the month before. In addition, in October 2002, the BIA denied 86 percent of the appeals of immigration court judgments versus 56 percent of these cases in October 2001.
There have already been several examples of questionable decisions made on cases before the BIA. In one case, a substance abuse counselor in Boston who has been in the United States since the 1980’s and is married to an American citizen, was ordered deported after the BIA rejected his appeal without any explanation, leaving open the possibility that the BIA member failed to consider all the facts in the case or failed to even read the file. In another case a seamstress from Thailand was ordered deported by an immigration judge for failing to show up to a court appearance even though the notice was mailed to the incorrect address. The BIA member issued a two-paragraph decision rejecting the appeal, however, and failed to even note that the Immigration Court mailed the notice to the wrong address.
As a result, aliens who are appealing to the BIA should be prepared to encounter difficulties. They should make sure that they are able to present a strong legal argument to the BIA why it should overturn the Immigration Court’s judgment and be sure to include as many relevant facts and evidence to help buttress their case. If after such a presentation, the BIA denies the appeal and fails to provide an explanation or commits an error in its analysis of the case, the alien may then appeal to the U.S. Court of Appeals. Based on the recent decisions by the BIA, this may be the only way of obtaining relief from an order of deportation and the answer to receiving the relief the alien is seeking.