Bush Administration Proposed Changes to BIA Threaten Due Process

Advocates Call on Attorney General to Promote Reform that Affirms the Independence and Impartiality of the Board of Immigration Appeals

Washington D.C. – The Attorney General issued on February 19 a proposed regulation that would negatively impact how the Board of Immigration Appeals (BIA) functions by compromising due process and the independence of the immigration court system. The BIA is the highest administrative appeals body for immigrants and reviews decisions made by immigration judges and INS officials in individual cases. Board members make decisions that ultimately can determine whether someone who has been persecuted and tortured for his beliefs will live or die and whether U.S. families will be united or divided.

"The BIA often is the court of last resort for the vast majority of people seeking review of decisions by immigration judges. It is vitally important that the BIA remain a robust and vigorous review body," said Dawn Lurie AILA Washington DC Chapter Chair. "It is puzzling that the Bush Administration would reach out to immigrants on the one hand and pull the appellate rug out from under them with the other."

The proposed regulation goes in the wrong direction, especially given recent sweeping changes in our nation’s immigration laws. Immigration laws are incredibly complex and often unclear. Congressional intent is ambiguous. The INS itself frequently argues positions that courts later hold are contrary to congressional intent. Yet the Administration’s proposed changes seem to assume that the appeals heard by the Board do not involve complex questions of law.

"AILA fully shares the Attorney General’s concern that the Board achieve timely and efficient adjudications and backlog reductions. But the Administration’s proposal would sacrifice justice in the name of expediency," said Dawn Lurie.

AILA, along with dozens of our coalition partners, called on the Attorney General in a February 11 letter to bring together interested constituencies to examine and recommend proposals to improve administrative review in a way that will affirm the independence and impartiality of the BIA, facilitate immigrants’ access to the BIA, enhance due process, and promote an efficient adjudications system.

Both due process and efficiency concerns would be met best by increasing the number of Board Members, improving the screening of cases that have limited factual or legal disputes, and instituting programs to provide free legal representation in meritorious matters. Immigration courts must be independent, impartial, and include meaningful checks and balances. To that end, AILA advocates the creation of a separate and independent immigration court and appellate system outside of the Department of Justice. These and other issues are detailed in testimony AILA presented before the House Immigration Subcommittee during a February 6 hearing.

"Who would feel comfortable going to traffic court knowing that the judge worked for the police?" asked Dawn Lurie. "The time has come for an independent court."

Founded in 1946, AILA is a nonpartisan, nonprofit organization that provides its Members with continuing legal education, information, professional services and expertise through its 35 chapters and over 75 national committees. AILA also advocates before Congress and the Administration, as well as providing liaison with the INS and other government agencies in support of pro-immigration initiatives. AILA is an Affiliated Organization of the American Bar Association and is represented in the ABA House of Delegates.