COLLAPSE OF JUSTICIAL STANDARDS AT THE BOARD OF IMMIGRATION APPEALS

The Board of Immigration Appeals (“BIA”) is charged with administrative review of removal proceedings and is required to provide a fair and impartial review of immigration judge decisions. The BIA has been devastated by staff reductions, and compromised by a mandate from the Department of Justice to reduce its backlog of cases. The result has been the issuance of decisions which do not conform to existing case law, and merely rubberstamp decisions of the immigration judges without comment. The Los Angeles times has determined that some judges have issued as many as 50 decisions per day, decisions issued at a rate that challenges any reasonable persons’ definition of fair consideration and due process as required by the United States Constitution.

At the beginning of 2003, the BIA had a backlog of 56,000 cases. Attorney General John Ashcroft gave a deadline of March 25, 2003 to clear this backlog. This to a staff which was reduced from a 23 member board to 11 members. The result?, decisions issued at estimated ten minute intervals over the course of a nine hour workday. One way to accomplish this rapid rate of dismissal is the simple affirmation or “rubberstamp” of removal or deportation orders.

The Ninth Circuit Court of Appeals is now swamped with as many as 150 appeals per week the result of the BIA dumping its cases with little or no review. The District Court’s concern with the Board’s judicial standards is reflected in the court’s decision in Aleula v. INS 45 F.3d 1379 (9th Cir. 1995) which stated that adoption of a Board of Immigration Appeal decision is proper only where “it is clear” “that it gave individualized consideration to the particular case”. This issue also came up in the United States Federal Register where the concern of BIA review “will somehow be cursory or will give a “boilerplate stamp of approval”. (67 Federal Register 54878 (Aug 26, 2002) The Register states that that due process failure will be avoided through a multistage review by Board staff, a Board member, consideration of whether the record is complete, and whether the decision of the immigration judge is legally correct.

Clearly with the issuance of as many as 50 decisions in one day the BIA has abused its discretion in issuance of summary affirmances, and is in direct violations of the standards set forth in Aleula and other 9th circuit cases which follow Aleula.

Many observers believe that the BIA’s issuance of summary affirmance decisions are in reality summary dismissals. Dismissals of cases without review of the case file, and without consideration of the applicable laws governing an Immigration Judge’s decision. The Ninth Circuit court has held that Summary Dismissals are allowed under very limited circumstances as set forth under Casas-Chavez v. INS 300 F.3d 1088 and 8 C.F.R. §3.11(d)(2)(i)(D). A nationwide survey of immigration lawyers is currently underway in order to determine the scope and gravity of the BIA’s abuse of discretion with regard to its summary affirmance procedures

In a recent case brought to the attention of the Reeves firm, the BIA decision simply read “The Board affirms, without opinion, the results of the decision below. The decision below is therefore, the final agency determination. See 8 C.FR. §1003.1(e)(4)” The Board cites to its power for summary dismissal when in fact it is charged with applying the standard for affirmation.

Persons who have had their appeal rejected by the BIA in this matter must file an appeal with the Ninth Circuit Court of Appeals. Now that the Board of Immigration Appeals appears to have abandoned its mission in reviewing Immigration Judge decisions, the Ninth Circuit appears to be the only way persons can get fair consideration of their administrative appeals.