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49 Minutes For Immigration Appellate Justice

August 21, 2014

Immigration Appeals: 49 Minutes For Justice, Fairness, And Due Process

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According to the Department of Justice, the Board of Immigration Appeals completed 36,690 cases in 2013.

There are 15 Board members.

On the average, this means 2,446 decisions per Board member per year.

203 decisions per Board member per month.

Assuming a 40 hour week, 50 weeks per year, each Board member works 2,000 hours per year.

That’s 49 minutes per case.

In a best case scenario.

If absences due to illness, training, conferences, or even coffee breaks are calculated, the time spent on each appeal is even less.

In such a system, it’s an open question whether justice, fairness, and due process for immigrants truly exists.

BIA Efficiency . . . Or Not?

In early 2011, I published a similar analysis regarding how much time the Board of Immigration Appeals was spending on each appeal. My loftiest evaluation, at the time, was about 55 minutes per case.

Prior to beginning research for this post, I assumed conditions had improved at the BIA.

Given the many news articles asserting the deportation and removal caseload was slowing down at immigration court, it seemed a likewise trend would be found with immigration appeals.

Although I have not believed the immigration court claims, I thought deferred action measures might have at least slowed down the number of appellate cases.

I was wrong.

My original post was written shortly after Juan Osuna, acting director of the immigration court system, had testified about the administrative progress made by the Board in recent years at a Senate Judiciary Committee.

He noted the number of appeals going to federal courts had dropped to about ½ what were they were at the high-water mark in 2005.

The federal court appeals were due, in large part, to the Bush administration’s streamlining reforms for immigration courts. Under this approach, the BIA implemented an affirmance without opinion (AWO) policy shortly after he took office. This allowed for a single member of the BIA to affirm a decision of an immigration judge without opinion.

One sentence. Nothing more.

Before streamlining, all appellate decisions required three Board members.

The policy was intended to apply only in a limited category of cases. Yet, by 2002, AWOs accounted for 36% of Board decisions, most of which denied appeals filed by immigrants.

Fighting to remain in the country, more and more immigrants started taking their cases to the next level, to federal appellate courts.

Federal judges were not amused.

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In 2002, immigration appeals were 8% of Ninth Circuit cases. By 2005, they constituted 48%.

Faced with the flood of new cases, the federal judiciary lambasted the streamlining process. Eventually, their criticisms helped change how the BIA handles appeals.

At least in part.

Today most BIA decisions are longer than one sentence.

Including long-winded opening recitals of case history, opinions are often 2-3 paragraphs . . . or 2-3 sentences . . . even when the issues appear to merit longer analysis.

It’s the 49 minute rule.

The problem is no longer affirmances without opinion.

Now, it’s affirmances without thought.

The Legacy Of BIA Judicial Streamlining

To be fair, labeling all BIA opinions as affirmances without thought is a bit exaggerated.

Some cases, after all, are easier than others. They take less time to handle. 49 minutes may be sufficient.

2013 DOJ Statistics show that of the 34,790 appellate decisions rendered, 5, 594 cases were based on appeals from Department of Homeland Security decisions. On the whole, DHS matters requires a different time frame to adjudicate than immigration court rulings.

Still, many immigration appeals revolve around difficult issues. In these matters, Board members cannot read the court transcripts, study the pleadings, motions, and evidence filed by the parties, and research the legal and factual issues under dispute in such a short 49 minute window.

The problem stems from the legacy of streamlining.

Although the BIA has reduced the number of AWOs, other aspects of streamlining remain in place.

Like the elimination of the Board’s authority to conduct de novo fact finding.

In its place, the BIA’s review of case facts and credibility determinations was changed to a “clearly erroneous” standard – a more stringent standard which hinders the Board’s ability not only to correct mistakes by immigration judges, but also to check against unwarranted disparities among judges in factually similar cases.

The full effect of this shift is not clear. Yet, there are some clues.

Prior to the 2002 changes, immigrants won 25% of their appeals with the BIA. Shortly after, the number of appeals granted dropped to 10%. The current figures are unknown.

In addition, two issues are conspicuously missing from the Department of Justice’s FY 2013 Statistical Year Book:

  • How much time, on the average, does the BIA spend on appeals filed by the government vis-a-vis those filed by immigrants?
  • How often, in terms of percentage, does the BIA grant appeals filed by the government vis-a-vis those filed by immigrants?

Moreover, one can only wonder how the Central American refugee situation will impact the Board of Immigration Appeals.

The 2013 Department of Justice figures show there were 6,120 BIA decisions affecting immigrants from El Salvador, Guatemala, and Honduras. I anticipate a jump in these numbers for the next few years.

Depending how the administration decides to handle these matters, there could be a huge increase in the amount of challenges to immigration judge decisions based on their treatment of the refugee children cases.

If additional appellate resources are not added to handle such cases, this is a strong possibility the skimpy 49 minutes allotted per case could diminish even further.

In short, the need to fix the immigration appellate system remains as alive and well as ever.

The BIA As Rubber-Stamp: Perception Or Reality?

Even in the unlikely event the BIA’s short window for appellate review has no adverse effect on the dispensation of justice, it raises an appearance of impropriety.

For example, in Immigration Appeals: The Need To Reform BIA Procedures, I discussed the frustration of two colleagues who had presented the same issue in separate cases. At their hearings, the issue was interpreted in two different ways by two different judges from the same immigration court.

One judge noted the immigrant’s testimony about his relocation plans was not specific enough. The other held against the immigrant because his testimony about relocation was too specific.

Both filed appeals with the BIA.

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Logically, there is a mid-point. Unfortunately, neither statute nor case law has shed much insight on the subject.

On appeal, rather than resolve the apparent contradiction, the BIA did not find either position “clearly erroneous.”

The Board ignored the issue altogether in the first case. In the second matter, the Board minimized the issue, choosing to affirm the judge’s analysis without a comprehensive opinion, and likely without deep thought.

Both immigrants lost their appeal.

In the view of many San Diego immigration attorneys, this type of outcome is not unusual.

The BIA’s penchant for truncated decisions, regardless of case complexity, fuels a perception that the Board operates as a rubber stamp for immigration judges.

It’s hard to disagree when the judges are on a 49 minute time clock.

By , Immigration Law, Policy, And Politics

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