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Affirmance Without Opinion: BIA Cure Worse Than Appellate Disease

– Posted in: Immigration Law, Policy & Politics | Immigration Appeals

On July 2, 2019, the Department of Justice published amended rules governing appeals of immigration court decisions. The new rules take effect September 3, 2019.

The rules attempt to resuscitate Affirmance Without Opinion, a BIA procedure discredited during the Bush and Obama administrations.

The problem?

Affirmance Without Opinion (AWO) sacrifices constitutional due process for political expediency.

In the name of justice.

What Is Affirmance Without Opinion?

Affirmance Without Opinion is a Department of Justice regulation that authorizes a single BIA member to affirm the decision of a lower immigration court judge by a summary written order without issuing a separate written opinion.

In essence, AWO decisions are denials of appeals filed by immigrants. (Although not prohibited, I’ve not heard about an AWO issued in a case filed by government attorneys.)

An AWO Order simply states the following: “The Board affirms, without opinion, the result of the decision below. The decision below is, therefore, the final agency determination”

BIA Appeals Under Barr: A Legal Delusion

It seems a simple question.

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

The answer is generally yes. All immigrants have the right to challenge an immigration ruling. All immigrants have the right to file an appeal.

However, the odds of prevailing – the unspoken meaning of the inquiry – have been substantially reduced over the past two decades.

Recent changes to appellate regulations imposed by Attorney General William Barr continue this downward trend.

According to Barr, the changes to Board of Immigration Appeals procedures are necessary to reduce the backlog of immigration court cases. But the Attorney General’s policies move in a direction contrary to their espoused purpose.

His plan not only ignores the root causes of overloaded dockets, but also pushes the entire immigration court process backward, not forward.

The cure is worse than the disease.

Why The AWO Appeals Policy Is Misguided

Over the past two decades, immigration hearings have often resembled kangaroo court proceedings.  Worse, when challenges are filed at the Board of Immigration Appeals, it is not uncommon for the BIA to adopt the role of a rubber stamp.

The Attorney General’s new rules do nothing to dispel this notion.

Not surprisingly, public confidence in the immigration court process has eroded.

To explore how this has occurred, let’s take a closer look at a pair of immigration court proceedings.

A few months ago, as I sat in the immigration court lobby, a distressed colleague stopped to ask me a question.  He had received an unfavorable ruling.  An immigration judge ordered his client to be removed from the United States.  The judge held that his client’s testimony lacked credibility because it was not specific enough about his family’s relocation plan if he was deported.

About 15 minutes later, another fellow bar member stormed out of a different courtroom across the hall.  She, too, was upset because her client had lost his case.  The judge held against her client because his testimony was too specific about his family’s relocation plans and suspected fabrication.

Both colleagues filed appeals.  Both lost.

Unfortunately, neither statute nor case law has shed much insight on the subject.

Logically, a gap exists between too little and too much evidence that would explain the disparity.  But under AWO, BIA members can approve decisions without having to provide reasons why they agreed with the trial court.

Although both cases cried out for judicial clarification, they came up empty handed.

Therein lies the fundamental legal flaw of the Affirmance Without Opinion policy.

Related Articles:

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

The Absence Of Neutrality At Immigration Court

Too Much Due Process For Immigrants In Deportation Hearings?

IIRAIRA And The Birth Of AWO 

Affirmance without opinion is not a new concept. The roots were planted during President Clinton’s term of office.  .

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 would 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 the president.

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

To preserve family unity, every nuance warranted legal challenge.

Opponents countered. In 1999, streamlining was born. Affirmance Without Opinion provisions were part of the streamlining reforms.

Prior to this change, all Board decisions required three Board members.  No longer.

The immigration nightmare grew worse after September 11, 2001.  The nation plunged into an unprecedented Dark Age Of Immigration Law. We have yet to recover.

Following the terrorist attacks, 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.

Social anger towards our immigration policies was unavoidable. 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 more restrictive measures to curb challenging immigration judge decisions.

The 2002 Appellate Streamlining Revolution

In 2002, streamlining took a huge leap forward. Those changes, similar to the current set of rules, were designed to amplify the impact of AWOs – to speed up appellate decisions and to reduce appellees’ chances of overturning lower court decisions.

The 2002 AWO and streamlining package encompassed four main changes to the BIA appellate process:

Expansion of the types of cases appropriate for AWOs

By the end of first year, AWOs accounted for 36% of Board decisions.  Over time, the figure decreased due to various legal challenges.  If history is our guide, a surge in decisions by AWO is likely to start taking place again by the end of this year.

Eliminated the BIA’s authority to conduct de novo fact finding

Under a de novo process, appellate judges are allowed to review the immigration judge’s reasoning and fact-finding from the outset of a case.  This enables them to closely study the full case record.

The 2002 changes limited the Board’s authority to review fact and credibility determinations under a “clearly erroneous” standard.

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

Imposed time limits for rendering decisions

Under this reform, singe-member decisions have to made within 90 days.  For cases requiring a panel of three judges, the time allowed to BIA judges to study cases and issue decisions was lowered to 180 days.

In difficult cases, these deadlines are too short for immigrants and their attorneys.  Equally significant, such limits also serve as an irrational incentive for truncated appellate opinions.

Reduced the size of the BIA from 23 to 11 members

The logic of this reduction seems incongruent with a desire to complete BIA appeals in an  expedited manner.

The size of the Board is now back to 15 members.  This number is still too low to handle the current backlog as well as new appeals.

Affirmance Without Opinion 2019 Revival: Political Intent, Legal Impact 

Coupled with the earlier legislative changes of 1997, the due process rights of immigrants has teetered on constitutional life support for over two decades.

As a San Bernardino immigration lawyer, the battle to protect immigrant rights on appeals has resembled boxing with one hand tied behind the back since that time.

The Barr-mandated changes are an attempt to further stiffen barriers against immigrants’ ability to contest adverse decisions.

In particular, the new streamlining efforts dictate that when AWO opinions are issued, courts must assume the BIA thoroughly considered all issues, arguments, and claims, even though they are not mentioned in the condensed order.

These policy adjustments, claim Barr and his cohorts, are critical to address court backlogs and delays.  The real goal – the political imperative – is to minimize the due process rights of immigrants.

But many will not go away quietly.

As I’ve noted before, when it comes to immigration, under the current administration the more things change, the more they remain the same.

The renewed push to use AWO decisions on a widespread basis ignores lessons of history.

In the early years of 2000, fighting to remain in the country, a larger number of immigrants started taking their cases beyond the BIA, to the next level, to federal appellate courts.

Federal judges were not amused.

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 BIA streamlining process and opened the door to challenges of AWO opinions.

Courts of appeal held BIA judges who adopt immigration court decisions without a full articulation of their reasoning sit in the shoes of the lower magistrates and adopt all the legal warts and moles of their brethren.

Eventually, their criticisms helped change how the BIA handled appeals.  AWO decisions subsided.  Today most BIA decisions are longer than one sentence but often less than 1- 2 pages, even when the issues appear to merit longer analysis.

The problem then, like the problem now, is not merely affirmances without opinion.

It’s affirmances without thought.

By Carlos Batara, Immigration Law, Policy, And Politics