In 2010, the Board of Immigration Appeals (BIA), our nation’s highest administrative body for interpreting and applying immigration law, issued 33,000 decisions.

There are 15 Board members.

On the average, this means 2,200 decisions per Board member per year.

180 decisions per Board member per month.

Assuming a 40 hour week, 50 weeks per year, each Board member works 2,000 hours per year.

That’s 55 minutes per case.

If absences due to illness, training, conferences, or even coffee breaks are calculated, the time spent on each appeal is even less.

In such a system, it’s an open question whether justice, fairness, and due process for immigrants truly exists.

BIA Improvement . . .  Or Not?

Juan Osuna, acting director of the immigration court system, proudly testified about the progress made by the BIA in recent years at a Senate Judiciary Committee two weeks ago.

He noted the number of appeals going to federal courts are now about ½ what were they were at the high-water mark in 2005.

As part of the Bush administration’s streamlining reforms for immigration courts, the BIA implemented an affirmance without opinion (AWO) policy shortly after he took office.

Under this approach, a single member of the BIA was allowed to affirm a decision of an immigration judge without opinion.  One sentence.  Nothing more.

Before streamlining, all appellate decisions required three Board members.

The policy was intended to apply only in a limited category of cases.  Yet, by 2002, AWOs accounted for 36% of Board decisions, most of which denied appeals filed by immigrants.

Fighting to remain in the country, immigrants took their cases to the next level, federal appellate courts.

In 2002, immigration appeals were 8% of Ninth Circuit cases.  Three years later, they constituted 48%.

Faced with the flood of new cases, federal judges lambasted the streamlining process.  Their criticisms helped change how the BIA handles appeals.

At least in part.

Today most BIA decisions are longer than one sentence.  Including  long-winded opening recitals of case history, opinions are often 2-3 sentences . . . even when the issues appear to merit longer analysis.

It’s the 55 minute rule.

The problem is no longer affirmances without opinion.

Now, it’s affirmances without thought.

The Legacy Of Streamlining

To be fair, labeling all BIA opinions as affirmances without thought is a bit exaggerated.

Some cases, after all, are easier than others.  They take less time to handle.  55 minutes may be sufficient.

Still, many immigration appeals revolve around difficult issues.  In these matters, Board members cannot read the court transcripts, study the pleadings, motions, and evidence filed by the parties, and research the legal and factual issues under dispute in such a short window.

The problem stems from the legacy of streamlining.

Although the BIA has reduced the number of AWOs, other aspects of streamlining remain in place.

Like the elimination of the Board’s authority to conduct de novo fact finding.

In its place, the BIA’s review of case facts and credibility determinations was changed to a “clearly erroneous” standard – a more stringent standard which hinders the Board’s ability not only to correct mistakes by immigration judges, but also to check against unwarranted disparities among judges in factually similar cases.

The full effect of this shift is not clear.  Yet, there are some clues.

Prior to the 2002 changes, immigrants won 25% of their appeals with the BIA.  Shortly after, the number of appeals granted dropped to 10%.  The current figures are unknown.

In addition, two issues are conspicuously missing from the Department of Justice’s FY 2010 Statistical Year Book:

  • How much time, on the average, does the BIA spend on appeals filed by the government vis-a-vis those filed by immigrants?
  • How often, in terms of percentage, does the BIA grant appeals filed by the government vis-a-vis those filed by immigrants?

The BIA As Rubber-Stamp: Perception Or Reality?

Proving a “clearly erroneous” mistake is difficult business.  The task is far harder when the parameters of issues under review are poorly defined.

For example, in Immigration Appeals: The Need To Reform BIA Procedures, I discussed the frustration of two colleagues who had presented the same issue in separate cases.  At their hearings, the issue was interpreted in two different ways by two different judges from the same immigration court.

One judge noted the immigrant’s testimony about his relocation plans was not specific enough.  The other held against the immigrant because his testimony about relocation was too specific.

Both filed appeals with the BIA.

Logically, there is a mid-point. Unfortunately, neither statute nor case law has shed much insight on the subject.

On appeal, rather than resolve the apparent contradiction, the BIA did not find either position “clearly erroneous.”  It ignored the issue altogether in the first case.  In the second matter, the Board minimized the issue, choosing to affirm  the judge’s analysis without opinion, and likely without deep thought.

Both immigrants lost their appeal.

In the view of many Riverside immigration attorneys, this type of outcome is not unusual.

The BIA’s penchant for truncated decisions, regardless of case complexity, fuels a perception that the Board operates as a rubber stamp for immigration judges.

It’s hard to disagree when the judges are on a 55 minute time clock.

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