Proposed Rule to Make Changes to Board of Immigration Appeals

Attorney General John Ashcroft has proposed a rule to make changes to the Board of Immigration Appeals (BIA). The stated purpose of the changes is to eliminate the backlog of cases, enhance the quality of BIA decisions, focus BIA resources on cases which present disputed legal issues, eliminate delays in adjudicating administrative appeals and more efficient utilization of BIA resources.

The proposed rule includes some major changes. First, when an appeals case comes to the BIA, instead of automatically being reviewed by a panel of three members, an appeal would now be sent to a review panel made up of five BIA members. The case would then be reviewed by only one member of the initial review panel to determine if it merits a full review by a three-member panel. In order to qualify for a three-member panel review a case would have to present one of the following issues: 1) be a case which could settle inconsistencies between different rulings by immigration judges; 2) be a case which could clarify ambiguous laws, regulations or proceedings; 3) be case in which the initial decision by the immigration judge clearly does not conform with the law; 4) be a case that presents an issue or controversy which has national importance; or 5) be a case that clearly contains a wrong factual determination by the immigration judge.

Another change would be to eliminate the BIA’s current power of de novo review of factual issues. Under the proposed rule, the BIA would have to accept the factual findings of the immigration judges and could only review them in instances where the factual findings were clearly wrong. Therefore, no new evidence could be introduced or considered by the BIA in most cases.

Under the proposed rule, a new timeline is established for the hearing of appeals starting with parties given 30 days to file a notice of appeal from a decision by an immigration judge. Immigration judges would have 14 days to complete a review of the decision transcript. In addition, parties to the case would have to simultaneously brief the case within 21 days for the BIA. Once the BIA received the appeal, a single member would have 90 days either to decide the case or decide that the case needed review by a three-member panel. Finally, the three-member panel would initially have 180 days to make a decision and issue their opinion. After the initial period, the member who is in charge of authoring the opinion could request a 60 day extension. If at the end of the 60 day extension, the opinion still is not completed, the BIA Chairman must decide the case himself in 14 days or send the case the Attorney General to make a decision. In addition, if at the end of the 60 day extension, the concurring or dissenting opinion has not been completed, then the majority opinion will be published by itself.

In instances where a member has a pattern of missing deadlines, the Chairman must notify the Director of EOIR and the Attorney General and missed deadlines will also be reported in the members’ annual performance reviews. The only time the time limits may be ignored is if an BIA appeals case would be substantially determined by the outcome of a case awaiting a decision from the U.S. Supreme court or a U.S. Court of Appeals. In addition to the new general timeline, the BIA is to assign priority to cases that involve detained individuals and develop an appropriate system to identify and expedite such cases. Another change would involve the jurisdiction over appeals of INS decisions imposing administrative fines transferring to the Office of the Chief Administrative Hearing Officer (OCAHO).

According to the proposed rule, these changes would take place during a 180 day transition period immediately after the proposed rule takes effect. These changes would be implemented on all cases, including those already pending at the BIA. Finally, at the end of the 180 day period to implement the changes, the BIA would reduce the number of its members for 19 to 11 with the Attorney General deciding the membership of the Board at that time.

The proposed rule is expected to be published in the Federal Register soon. While the stated goals of the proposed rule, such as speeding up the adjudication of cases and giving priority to cases where individuals have been detained, are positive goals, there is concern in that the changes that Attorney General has proposed will not achieve the stated goals. Instead, there is real concern that these changes will not achieve these goals and will negatively impact the fairness of the appeals process and present procedural concerns.

  Summary of the Proposed Rule  (PDF/99 KB, 2 pages)