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The Need To Fix Immigration Appeals

May 17, 2010

The Immigration Appeals Fix:
A Cure Worse Than The Disease

broken-immigration-appeals-system

It seems a simple question.

“My mother just lost her immigration case. Can we fight the judge’s decision?”

The answer is not.

Technically speaking, all immigrants have the right to appeal.

However, an immigrant’s odds of prevailing if an appeal is filed – the real unspoken inquiry – have been substantially reduced over the past decade.

In the name of justice.

The Dark Age Of Immigration Law Begins

In 1997 a broad piece of federal legislation, the Illegal Immigration Reform and Immigrant Responsibility Act (IIRAIRA) went into effect. Congress made no efforts to conceal their intent.

Falsely claiming that the country’s borders were under siege from an invasion of illegal immigrants, Congress asserted the Act was needed to limit their ability to win legal immigration benefits.

The anguish such policies would cause mixed status families – part undocumented, part legal – was not a consideration for most members of Congress or President Clinton.

The push back for immigration lawyers occurred in the realm of immigration appeals.

In order to preserve family unity, each and every nuance warranted legal challenge.

The immigration nightmare grew worse after 2002, plunging the nation into an unprecedented Dark Age Of Immigration Law. The nation has yet to recover.

Following the terrorist attacks on September 11, 2001, a heightened public distrust of immigrants surfaced.

The harsh reaction was not unanticipated.

From my perspective as an immigration appeals attorney, the cries for retaliation matched my deepest fears upon learning of the attacks.

In part, such anger towards our immigration policies was legitimate. The culprits had entered the U.S. from abroad on immigrant visas.

Contemporary Immigration Appeals: A Legal Delusion?

In part, such anger towards our immigration policies was legitimate. The culprits had entered the U.S. from abroad on immigrant visas.

The degree of blind disgust opened the door for immigrant opponents to launch a political offensive against the immigration appeals process.

The Bush administration switched from discussing a range of immigration reform options to implementing a series of restrictive measures to curb challenging immigration judge decisions.

Coupled with the earlier legislative changes of 1997, the due process rights of immigrants teetered on constitutional life support.

New immigration laws were passed.  New regulations went into effect. 

There was little resistance to the changes, except from lawyers who defended immigrants fighting removal under the new rules. (And even many of these lawyers stayed quiet on the sideline afraid to rock the boat of frenzied public opinion.)

Since that time, as an Escondido immigration lawyer the battle to protect immigrant rights on appeals has resembled boxing with one hand tied behind the back.

Immigration reform opponents alleged the appellate changes, deemed “streamlining”, were designed to address backlogs and delays – which presumably had enabled abuse of the immigration system, like that of the 9/11 terrorists.

The real goal of these changes went far deeper – and in a direction contrary to their publicly espoused purpose.

In other words, the cure was worse than the disease.

A Misguided Reduction Of Board Members

The accelerated push for streamlining started with reducing the amount of BIA members from 23 to 11.

Since the expressed goal was to catch up on backlogged cases, less judges seems a contradiction.

Actually, the reduction was quite symbolic. 

Under the streamlining measures, the appellate process went backward, not forward.

The Folly Of One Judge Immigration Appeal Decisions

In actuality, a few years before 9/11, the “streamlining process” began with the one judge rule.

Before this change, immigration appeals were decided by a panel of three judges.  Only a few cases qualified for single-judge review.  After the 2002 changes, a larger group of cases qualified for review by single judge.

Within the next twelve months, more than 1/3 of immigrant appeals filed at the BIA were decided by a single judge.

In these singe judge cases, the changes also allowed the BIA judge to simply “affirm” the immigration judge’s decision without opinion.  This means the BIA judge does not have to give any reasons why he agreed with the trial judge. 

Although there are fewer single judge decisions today, many BIA opinions are still only 2-3  sentences.

Short decisions are often unfair to immigrants.  Immigrants have a right to know why their cases are denied, especially harder cases.  Without this information, their chances of winning if they file another appeal with a higher court are reduced.

A Narrowed Scope Of Appellate Review

Another 2002 change involved taking away the BIA’s ability to conduct de novo fact finding.

Under a de novo process, appellate judges are allowed to review the immigration court’s reasoning and fact-finding from the beginning.  This allows them to closely review the full case record. 

De novo review is a high level of scrutiny which can lead to more reversals of an immigration judge’s decision.

Instead, the Board’s authority was limited to a review of “clearly erroneous” adjudications. 

This type of review is less rigorous.  Under this approach, appellate courts are more likely to defer to the decision of the immigration judge. 

In essence, this change from de novo fact finding to a clearly erroneous standard greatly diminished the BIA’s authority to correct mistakes by immigration judges.

Less Time To Study Appellate Cases

The time limit for judges to make decisions was reduced.  Under the new rules, singe-member decisions had to made within 90 days. 

Even for those cases still requiring a panel of three judges, the time allowed to BIA judges to study cases and make decisions was also reduced, to only 180 days. 

These limits place a heavy burden on immigrants and their lawyers.   In difficult cases, these deadlines are far too short for immigrants, their immigration attorneys, and, if the truth be told, to DHS lawyers and BIA judges.

Restoring Due Process In Deportation Appeals

Even if the true goal of streamlining was to reduce the backlog of immigration appeals, it should not have been carried out in a way which stripped the rights of immigrants.

To reduce the amount of judges meant more cases for fewer judges.  Despite having more cases per judge, they were told to finish their review of each case faster than before. 

Logistically, this was impossible – unless immigrants’ rights were stripped.

And they were.

How could immigration judge handle more cases in less time? 

The plan was two-fold. 

First, judicial review was restricted.  BIA members would no longer review the entire record, only a set of limited issues.  

Second, the Board was allowed to write shorter, one-sentence decisions.

In recent years, the misguided logic of the 2002 changes to the immigration appellate system has become clear to more and more legal scholars. 

The most recent criticism was issued a few weeks ago by the American Bar Association. 

In its report, Reforming the Immigration System: Proposals to Promote Independence, Fairness, Efficiency, and Professionalism in the Adjudication of Removal Cases (PDF), the ABA laid out several proposals to fix the immigration appellate system.

As an immigration advocate, I hope such changes are implemented sooner rather than later . . . before more hard-working and honest immigrants are deported due to the nightmarish regulations currently in place.

By , Immigration Law, Policy, And Politics

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