The Need To Fix Immigration Appeals
Deportation defense, quite often, does not end at your immigration court trial.
Win or lose, many immigrants are forced to fight their case a second time. They are forced to battle the government again in an immigration appeals.
If an immigrant loses their case, their only option to challenge the judge’s decision.
Many times, when an immigrant wins their case, the government will file an appeal to overturn the ruling.
In either situation, an immigrant’s struggles are not over.
The Nightmare Of Immigration Appeals
Immigration appeals, for many immigrants, are often bigger nightmares than immigration court hearings.
The nightmares became worse after 2002.
Shortly after 9/11 the government took advantage of the American public’s fear of terrorists from other countries. New immigration laws were passed. New regulations went into effect. There was little resistance to the changes, except from lawyers who defend immigrants.
From an immigration appeals attorney perspective, the reality matched our fears.
For the past eight years, as an Escondido immigration lawyer fighting to protect immigrant rights on appeals has been like boxing with one hand tied behind the back.
The changes started under the guise of improving the immigration appellate process. Called “streamlining”, the 2002 regulations were implemented to reduce the backlog and delay of immigration appeals.
The reality went far deeper. The reality went in the opposite direction.
It 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 seemed to be a contradiction.
Actually, it was quite symbolic. The immigration appellate process went backward, not forward.
The Folly Of One Judge Immigration Appeal Decisions
Before 9/11 most 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. 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.
These short decisions are 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.
Scope Of Appellate Review Limited
Another 2002 change involved taking away the BIA’s ability to conduct de novo fact facting.
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 erroreous” standards. This type of review is less rigorous. Under this approach, appellate courts are more likely to defer to the decision of the immigration judge. This change 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 BIA judges.
The Fight To Restore Immigrant Rights 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. 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, their review was restricted. They could no longer review the entire record, only limited issues. Second, they were 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 systme.
Let’s hope these changes are implemented sooner rather than later. Before more hard-working and honest immigrants are deported due to the nightmarish regulations currently in place.
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