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Cite as "Posted on AILA InfoNet at Doc.
No. 02032031 (Mar. 20, 2002) ."
Cite as “Posted on AILA InfoNet, Doc. No. 02032031 (March
20, 2002 ).”
March 20, 2002
Hand Delivered
Charles K. Adkins-Blanch, General Counsel
Executive Office for Immigration Review
5107 Leesburg Pike, Suite 2400
Falls Church, VA 22041
Re: Board of Immigration Appeals: Procedural Reforms to Improve
Case Management
67 Fed. Reg. 7309 (Feb. 19, 2002)
Dear Mr. Adkins-Blanch:
The American Immigration Lawyers Association (AILA) submits the
following comments on proposed regulations published in the Federal
Register in February 19, 2002 that would revise the structure and
procedures of the Board of Immigration Appeals (BIA).[1] AILA is
a voluntary bar association of more than 7,800 attorneys and law
professors practicing and teaching in the field of immigration and
nationality law.
AILA takes a very broad view on immigration matters because our
member attorneys represent tens of thousands of U.S. families who
have applied for permanent residence for their spouses, children,
and other close relatives to lawfully enter and reside in the United
States. AILA members also represent thousands of U.S. businesses
and industries that sponsor highly skilled foreign professionals
seeking to enter the United States on a temporary basis or, having
proved the unavailability of U.S. workers, on a permanent basis.
Our members also represent asylum seekers, often on a pro bono basis,
as well as athletes, entertainers, and foreign students.
AILA appreciates this opportunity to comment on the proposed regulations.
Our members frequently appear before the BIA and are vitally interested
in that body’s processes and procedures. While AILA shares
the concerns expressed by the Bush Administration and others about
both the backlogs at the BIA and the time taken to complete cases,
we oppose the bulk of the Administration’s proposed solutions.
Namely, we fear that the Administration’s proposal would tilt
the balance in favor of expeditiousness, instead of fostering careful
and just adjudications, thereby impairing the due process rights
of individuals while undermining the Board's capacity to provide
meaningful appellate review.
While it is vitally important to improve the efficiency and effectiveness
of immigration adjudications, any changes must satisfy due process
requirements. When viewed in the aggregate, the proposed changes
signal a drastic and unwarranted move in the wrong direction—a
direction that triggers substantial due process alarms. As discussed
below, there are more appropriate options to achieving the goals
set forth in the proposed rule—options that comply with fundamental
notions of fairness and due process.
We direct your attention to the following specific comments on
selected portions of the Administration’s proposed rule.
We also request an extension of the 30-day deadline for submitting
comments. Thirty days offers insufficient time to comment on a complicated
issue that has enormous consequences for immigrant communities nationwide.[2]
I. INTRODUCTION
The February 19, 2002, proposed rule would make a number of structural
and procedural reforms at the BIA, including cutting the number
of Board Member positions from the current 23 permanent positions
to 11. The preamble to the proposed rule states that the proposed
reforms are intended to accomplish the following four objectives:
(1) eliminate the backlog of approximately 55,000 cases currently
pending before the Board; (2) eliminate unwarranted delays in the
adjudication of administrative appeals; (3) utilize the resources
of the Board more efficiently; and (4) allow more resources to be
allocated to the resolution of those cases that present difficult
or controversial legal questions.[3] Specific reforms set forth
in the proposed rule include:
Single-Member Review and New Criteria for Three-Member Panel
Review. The proposed rule would mandate single-member review
for all cases except those falling within one of five enumerated
categories. Those five categories include cases in which there is
a need to: (1) settle inconsistencies between the rulings of different
immigration judges (IJs); (2) clarify ambiguous laws, regulations,
or procedures; (3) correct a decision by an IJ or the Service decision
that is plainly not in conformity with the law or with applicable
precedents; (4) resolve a case or controversy of “major national
import”; or (5) correct a clearly erroneous factual determination
by an IJ. Cases falling within one of these categories would be
adjudicated by a three-member panel, as is the current practice.
Under the proposal, all cases would initially go to a “screening
panel,” on which single members would decide the majority of
cases. Each member of the panel would individually screen cases
and would either adjudicate the case him- or herself, or determine
that the case merits three-member panel review. The BIA Chairman
would have the discretion to allocate members to the screening panel
and three-member panels, as he or she “deems appropriate.”
Elimination of De Novo Review. The proposed rule also would
eliminate the BIA’s de novo review of factual issues, requiring
members to accept the factual findings of the IJ unless they are
“clearly erroneous.” The proposed rule thus also would
prohibit the introduction and consideration of new evidence in proceedings
before the Board. In addition, the proposal would restore a regulatory
provision that requires the Board to dismiss summarily an appeal
that is filed for an improper purpose, such as to cause unnecessary
delay.
Time Limits. The new rule also would establish a series
of time limits geared toward expediting the adjudication process.
IJs would have to complete their review of the decision transcripts
within 14 days. Parties would still have 30 days to file an appeal,
but would have to brief the case simultaneously within 21 days.
Current procedures allow each party 30 days in which to file their
respective briefs. The single members of the new screening panel
would have 90 days in which to either decide the case or refer it
for three-member panel review, and the three-member panels normally
would have to decide the case within 180 days.
If the Board Member drafting the opinion is unable to meet the
180-day deadline, he or she could request from the BIA Chairman
an extension of up to 60 days. If the decision of panel majority
is still not completed at the end of the 60-day period, the Chairman
either would have to decide the case her- or himself, within 14
days, or refer the case to the Attorney General for a decision.
If a dissenting or concurring panel member fails to complete his
or her opinion by the end of the 60-day extension period, the majority
decision would be rendered without that dissent or concurrence attached.
The Chairman would be required to notify the Director of the EOIR
or the Attorney General if any Board Member repeatedly fails to
meet assigned deadlines, and compliance with such deadlines would
be reported each year in annual performance reviews. The rule would
provide an exception to these time limits in cases where an impending
decision by the U.S. Supreme Court or a court of appeals would “substantially
determine the outcome of a case or group of cases pending before
the Board.” In such cases, the Chairman would have the discretion
to hold the case until such decision is rendered.
Prioritization, Case Management System, and Transfer of Some
Cases to OCAHO. The proposed rule also would require the Board
to give priority to cases involving detained persons, and would
require the Chairman to establish a case management system for the
expeditious resolution of all appeals. In addition, jurisdiction
over appeals of USCIS decisions imposing administrative fines would
be transferred from the BIA to the Office of the Chief Administrative
Hearing Officer (OCAHO).
New Procedures to be Implemented Immediately and Applied to
the Backlog. The new procedures outlined above would begin immediately
upon the rule’s effective date, and would apply both to incoming
cases and retroactively to cases currently pending in the backlog.
The rule envisions that the Board will have eliminated the backlog
at the end of a 180-day “transition period,” with no case
pending for longer than ten months from the completion of the record
on appeal.
Reduction in Number of Board Members. At the conclusion
of the 180-day "transition" period, the rule would reduce
the number of Board Members to 11, with the Attorney General designating
the membership. The Chairman would allocate members to the new screening
panel and to the three-member panels as she or he deems appropriate.
II. GOALS AND CONSTITUTIONAL REQUIREMENTS BY WHICHREFORMS
MUST BE MEASURED
There are four goals of any administrative review process: accuracy,
efficiency, acceptability, and consistency.[4] Accuracy reflects
the need to determine the truth. Efficiency encompasses minimizing
the monetary costs to the parties and to the public as well as the
costs of the waiting time and the decision-makers’ time. Acceptability
recognizes the importance of having a procedure that the litigants
and the general public perceive as fair. Consistency enhances stability
and helps ensure equal treatment of similarly situated litigants.
Consistency is undermined when the opinions of the administrative
body are of poor quality and are frequently overruled. Consistency
also promotes the conservation of resources by decreasing the need
to reconsider questions of law that have been clearly resolved,
and by offering clear and uniform guidelines to those who enforce
the law.
Any administrative review system must also comply with the due
process clause of the U.S. Constitution, which provides that “no
person shall…be deprived of life, liberty, or property, without
due process of law.”[5] Due process is a fundamental principal
of fairness in all legal matters.[6] In Mathews v. Eldridge,[7]
the U.S. Supreme Court set forth a three-part balancing test to
determine whether administrative reforms will yield procedures that
are constitutionally sufficient. These factors are: (1) the private
interest that will be affected by the administrative action; (2)
the risk of an erroneous deprivation of such interest through the
procedures used; and (3) the government’s interest, including
the fiscal and administrative burdens, that new procedures would
entail.[8]
The Attorney General’s proposed reforms of the immigration
appeal function must be measured against the three-part test of
Matthews v. Eldridge, as well as satisfy the four goals of accuracy,
efficiency, acceptability, and consistency. If the proposed reforms
promoted accurate and consistent decisions and enhanced the efficiency
and acceptability of its operations, everyone would benefit. Such
reforms would yield high-quality opinions that would withstand appeal,
and the perception that the BIA provides justice would be strengthened.
In addition, uniformity in the interpretation of the law by judges,
enforcement of the law by the USCIS, and understanding of the law
by the public would be enhanced.[9]
Unfortunately, the Attorney General’s proposed rule would
undermine rather than enhance the administrative appeals process.
As set forth in more detail below, the proposed changes would thwart
accuracy, diminish efficiency, and undermine the acceptability and
consistency of the BIA’s important work. The proposed reforms
also fail to ensure due process protections by significantly increasing
the risk of erroneous deprivation of private interests, while doing
little to decrease the government’s fiscal and administrative
burdens.
III. THE BOARD ALREADY HAS IN PLACE PROCEDURES TO HANDLE ITS
GROWING CASELOAD WITH PROVEN SUCCESS
Annual appeals filed with the BIA have increased ten-fold since
1984. According to statistics from the EOIR, in fiscal year (FY)
1984 the Board received fewer than 3,000 cases; in 1994, more than
14,000 cases; and in 2000, nearly 30,000 cases. In addition, the
BIA now reviews the decisions of over 200 IJs, up from 69 judges
in 1990 and 86 in 1994.
The BIA has grappled with its burgeoning caseload in several ways.
Since 1995, it has expanded the number of permanent Board Members
on several occasions, growing from five permanent positions to the
current 23 Board Member positions, four of which remain vacant.
Significant staff increases have accompanied the expansion of the
Board.
On October 18, 1999, the EOIR published a final rule in the Federal
Register establishing a streamlined appellate review procedure for
certain categories of cases. This streamlining procedure permits
a single Board Member to issue affirmances without opinion in cases
where: (1) the result below was correct; (2) any errors in the decision
were harmless or immaterial; and (3) either the issue on appeal
is squarely controlled by existing BIA or federal court precedent
or the factual or legal issues raised are so insubstantial that
three-member panel review is not warranted. The streamlining procedures
also allow for single member disposal of certain motions, withdrawals
of appeals, summary remands, summary dismissals, and other procedural
or ministerial issues, as determined by the BIA Chairman.
The streamlining program is being implemented in four phases.
Phases I and II involved the conversion of certain categories of
cases to single member review. Building upon those initial phases,
Phase III (the Streamlining Pilot Project) began on September 5,
2000, and incorporated for the first time the summary affirmance
procedures provided for in the regulation. Phase IV will consist
of the permanent implementation of the streamlining program.
An outside auditor recently conducted an independent assessment
of the Streamlining Pilot Project to evaluate its effectiveness
and to make recommendations to implement the project’s final
phase. According to a summary of the audit, the assessment included
an analysis to compare and contrast changes that have occurred as
a result of streamlining, and the impact on the process and productivity
of the Board’s non-streamlined aspects. The audit team concluded
that the “overwhelming weight of both ‘objective’
and ‘subjective’ evidence gathered and analyzed indicated
that the Streamlining Pilot Project has been an unqualified success.”[10]
Specifically, the report found that streamlining has “significantly
improved” productivity, both in terms of the number of cases
completed and the average number of days required for a case to
be processed.[11]
The report notes that although the efficiency of streamlining
is expected to eliminate the remainder of pending cases eligible
for streamlining within 20 months, the program should remain viable
and can be sustained based solely upon the incoming stream of cases.
For example, the report continues, the Board in FY 2001 received
an average of 2,350 new cases per month, approximately 35 percent
of which were completed by the streamlining panel. Assuming the
continuation of this trend, the report adds, streamlining should
dispose of approximately 825 cases per month plus any additional
cases made appropriate for streamlining by changes in the statute,
regulations, case law, or expansion of the streamlining categories.[12]
IV. THE PROPOSED REFORMS RAISE SIGNIFICANT DUE PROCESS CONCERNS
AND WOULD ADVERSLY AFFECT INDIVIDUALS’ RIGHTS TO MEANINGFUL
APPELLATE REVIEW
The many members of AILA who practice before the BIA fully support
the Attorney General’s goal of achieving timely and efficient
adjudications and backlog reduction. It serves no one’s interest,
not the attorney and certainly not the foreign national respondent,
to have appeals languishing while the respondent either remains
in detention or otherwise awaits a final decision that will determine
his or her fate.
It may have been the case in some instances in the past that a
person could achieve some benefit from delay. Accrual of time toward
qualifying for certain forms of relief from deportation; the passage
of time in which new changes in law provided new benefits; higher
court decisions that set new precedent that might determine the
outcome of certain cases: all of these factors potentially could
benefit a person awaiting BIA action on their case.
However, changes in our immigration laws enacted by Congress in
the Illegal Immigration Reform and Immigrant Responsibility Act
of 1996 (IIRAIRA)[13] largely eliminated any possible benefit of
delay. The “stop time” rule enacted in IIRAIRA §
309(c)(5) eliminated accrual of time toward qualifying for relief.
And the uncertainty facing a respondent whose grant of relief is
being challenged by the USCIS is an incredibly stressful factor that
every respondent wants ended by a final adjudication by the administrative
appellate body.
AILA has argued strenuously for timely adjudications of petitions
and applications for USCIS benefits, and supports the USCIS Commissioner’s
goal of achieving six-month adjudications for all immigration cases.
AILA also strongly supports the Attorney General’s stated goal
of having the BIA complete adjudications within a six-month time
period. This time period should be much shorter for persons who
are detained by the USCIS during their appeal process. AILA also fully
supports the Attorney General’s goal of completely clearing
the current BIA backlog of 56,000 cases within a reasonable period
of time.
However, AILA does not believe that the methods the Attorney General
has proposed for achieving timely adjudications and backlog elimination
will succeed, for the following reasons:
A. Existing Backlogs Are Not The Result Of Inefficiency But Reflect
A Lack Of Resources. A Reduction In The Number Of Board Members
Does Not Genuinely Serve The Interests Of Fairness Or Efficiency
Existing backlogs are not the result of inefficiency but reflect
a lack of resources. A reduction in the number of Board Members
will not genuinely promote efficiency because the Board will be
unable to ensure accurate, acceptable and consistent decisions.
Although the BIA currently has 23 permanent positions, four are
vacant, and the four newest members of the Board had no prior expertise
in immigration law.
Contrary to the Attorney General’s assertion, the Board does
not take “an inordinately long time” to resolve cases.[14]
Staggering under numerous statutory and regulatory changes, the
still understaffed Board has steadily increased its adjudications
despite an increasingly complex caseload.
With the support of about 120 staff attorneys, the Board is expected
to adjudicate annually about 30,000 to 35,000 cases, many of which
must now reflect multiple changes in the immigration laws. Where
the original five-member Board adjudicated approximately 3,000 cases
a year, the current 19 members are responsible for ten times the
annual caseload, as well as whittling away at a backlog of more
than 56,000 cases.[15]
Management initiatives, such as the streamlining measures that
took effect a little more than one year ago, have begun to show
results. Case completions have increased from an average of about
20 per staff attorney per month to about 40 to 50 per staff attorney
per month.[16]
The proposed reduction in the Board by more than half would do
little to alleviate the current backlog. The proposal would require
each of the 11 remaining Board Members to complete an average of
over 50 cases each week to keep current with incoming receipts.
Even presuming that nine staff attorneys support each Board Member,
the proposed workload is staggering. We fear that Board Members
would be forced to rubber-stamp IJ decisions without thorough and
thoughtful review and analysis. The ability of the Board to provide
a sound basis for circuit court review would be compromised. The
fairness of the adjudicatory process would suffer.
Assuming that the Chairman exercised the option of appointing
temporary Board Members under proposed 8 CFR § 3.1(a)(4), the
learning curve facing this class of members would likely further
impair efficiency. Because their service is limited to terms of
six months or less, these itinerant adjudicators would lack the
expertise necessary to efficiently produce accurate and consistent
decisions. Further, the ability to appoint an unlimited amount of
temporary members would appear to defeat the purpose of reducing
the number of permanent Board Members.
It is counterintuitive to think that eliminating Board Members
while caseloads continue to increase will resolve backlog problems.
Speed is not efficiency. Ironically, the Attorney General proposes
applying any “savings” from the implementation of this
plan to address delays and backlogs at the USCIS. The Department of
Justice has experienced previous success in addressing backlogs
in asylum processing and naturalization cases, primarily through
increased personnel and other resources; it is disingenuous to expect
the Board to maintain the quality of its adjudications and increase
its productivity in the face of handicapping reductions in resources.
During the last several years, Congress has provided for hundreds
of additional Border Patrol and other USCIS officers to enhance enforcement.
As more USCIS enforcement officers resulted in more apprehensions
and created more deportation and removal cases, Congress also provided
substantial increases in funding for more IJs to handle those cases.
Now that these increased efforts have produced a greater backlog
at the BIA, the Attorney General proposes to reduce this backlog
not by increasing its staff but by cutting it in half. Somebody
is not doing it right—either Congress (and everybody else)
is wrong by increasing personnel to deal with workload, or the Attorney
General is wrong in imagining that more appeals can be handled faster
by half the personnel.
The importance of the work of the members of the BIA must not
be underestimated. Board Members often make decisions that will
determine whether someone who has been persecuted and tortured will
live or die, whether a U.S. family will be divided, or whether a
permanent resident who has lived here for decades will be returned
to a country where he/she has no ties. Board Members have to make
these decisions in a dynamic framework, oftentimes against a backdrop
of uneducated, unrepresented, frequently traumatized foreign nationals,
poor quality transcripts, and ill-trained IJs. Country and political
conditions also frequently change, further affecting the decisions
that Board Members must make. Moreover, Congress has enacted important
changes in our immigration laws several times in the last five years,
and ambiguities exist with regard to some aspects of those changes.
The Board will be much more capable of addressing difficult or
controversial legal questions if there are a sufficient number of
Board Members to do the job. Each new Congress or Administration
has different ideas about immigration policy. It is constantly changing.
In the last 15 years there have been major overhauls of the immigration
laws in 1986, 1990, and 1996. In addition there have been several
significant technical amendments since that time. In addition, new
changes in the law or procedures relating to forms of relief, including
for example NACARA, Temporary Protected Status, ABC Settlement,
the LIFE Act and most recently the Supreme Court’s decision
in USCIS v. St. Cyr[17] have created new legal issues for the Board.
Each new change in the law brings with it numerous and significant
legal issues. Controversial and difficult legal issues have therefore
been the norm, not the exception. A cursory review of the variety
and number of perplexing legal questions faced by the Board since
1996 alone is proof of the difficulty of its task. For this reason,
we urge the Attorney General to expand, not cut, Board membership.
The Administration’s proposal to reduce the number of Board
Members also raises troubling concerns about how the Attorney General
will determine who would stay on the Board and who would be dismissed.
If the dismissals are not based on seniority or some other objective
and defensible criterion, the Administration leaves itself open
to the charge that the Attorney General will have fired Board Members
for other than merit-based assessments. Even a determination based
on seniority will adversely impact the composition of the Board,
eliminating the depth created in recent years by the addition of
Board Members from diverse backgrounds.
Equally troubling is the potential impact of these future dismissals
on the independent decision-making of all BIA Members during the
six- to nine-month transition period. The proposal to have the BIA,
acting as individual Board Members, dispose of the entire existing
backlog during a brief transitional period, after which the Attorney
General will reduce the BIA to approximately half its presently
authorized size, is bound to be perceived by some as political extortion.
It creates the perception that the Attorney General will, after
reviewing the Board Members’ efforts during the transition
period, eliminate those more independent-minded members. The perception
will be that, by eliminating independent-minded BIA Members, the
Attorney General seeks to create a BIA even more receptive to the
legal positions of the USCIS than is presently the case. Such a perception
will insure litigation, more appeals and generally detract from
the public perception of impartiality necessary to maintain the
integrity of the removal process.
Furthermore, the proposed regulations would require Board members,
often single Board members, to adjudicate roughly 86,000 cases without
the benefit of responsive briefing in an abbreviated period of time,
under a new judicial review standard. Clearly, the quality of decisions
will be compromised. In many cases Board members will “rubber
stamp” decisions, knowing that their failure to comply with
the time limits imposed could result in sanctions. Federal courts
will be confronted with a deluge of appeals from poorly reasoned
and poorly drafted Board decisions. Many of these appeals may question
the retroactive change in the standard of review or the review process
itself. It is more likely than not that a plethora of these decisions
will be remanded to the Board, resulting in even more delay.
As stated above, the Board membership should not be reduced. However,
if there is to be any change in the membership of the Board, such
changes should continue to maintain the diversity of backgrounds
and opinion of the existing Board. Failure to have a cross-section
of opinion on the Board will make it difficult, if not impossible,
to competently and fairly address novel and controversial issues.
If the Attorney General insists on reducing the membership, guidelines
should be outlined as to the qualifications sought for present (and
future) Board Members. The proposed regulations indicate that at
least eight Board Members will be removed. Except for the emphasis
on speedy adjudication, there is no indication of what qualities
are to be measured in determining the Board’s composition.
AILA urges that fairness, legal skills, understanding of immigration
laws, and accuracy be given equal consideration in the selection
process.
B. Eliminating The BIA’s De Novo Factual Review Will Increase
Dramatically Both The Number Of Cases Remanded And The Number Of
Appeals Taken To The Federal Courts
Proposed new 8 CFR § 3.1(d)(3) would eliminate de novo fact
review, a power the Board has exercised for over 50 years. AILA
opposes this change as unnecessary and counterproductive, and recommends
this subparagraph be stricken.
Proposed subparagraph 3.1(d)(3) states:
Review of factual issues. The Board will not engage in de novo
review but will accept the determination of factual issues by an
immigration judge, including findings as to the credibility of testimony,
unless the determination is clearly erroneous. Except for taking
administrative notice of commonly known facts such as current events
or the contents of official documents, the Board will not engage
in fact-finding in the course of deciding appeals. A party asserting
that the Board cannot properly resolve an appeal without further
fact-finding must file a motion for remand. If further fact-finding
is needed in a particular case, the Board may remand the proceeding
to the immigration judge or, as appropriate, to the Service. This
paragraph does not preclude the Board from reviewing mixed questions
of law and fact, including, without limitation, whether an alien
has established a well-founded fear of persecution or has demonstrated
extreme hardship, based on the findings of fact made by the immigration
judge.
The Supplementary Information to the proposed rule states:
The proposed rule also adds a new Sec. 3.1(d)(3) to eliminate the
Board’s de novo review of factual issues. Under the proposed
rule, the Board must accept the factual findings of the immigration
judges, disturbing them only if they are “clearly erroneous.”
This provision also generally prohibits the introduction and consideration
of new evidence in proceedings before the Board, except for taking
administrative notice of current events or the contents of official
documents such as country condition reports prepared by the Department
of State. Where it is established that an appeal cannot be properly
resolved without further findings of fact, the Board will remand
the proceeding to the immigration judge or, where appropriate, the
USCIS.
AILA opposes the inclusion of this subparagraph for several related
reasons, summarized as follows, and detailed below: no rationale
is given for the proposal; the proposal does not promote efficiency
and will create even more delay; the proposal undermines the traditions,
stability and authority of the Board; and the proposal will be as
harmful to the USCIS as it will be to other parties before the Board.
1. No rationale given
The Supplementary Information in the Federal Register does not
provide any reason for this sudden and 180-degree change in over
50 years of law and practice before the Board. The Supplementary
Information does not allege that this venerable rule has caused
or contributed to delay, nor to unjust or inequitable results. The
change is simply proposed with no justification whatsoever. AILA
is aware that the BIA is a creature of regulation, and that the
Attorney General may make such changes to it from time to time as
he sees fit. Nevertheless, completely reversing a 50-year-old practice
for no stated reason is puzzling, to say the least. (On February
6, 2002, Attorney General Ashcroft gave a news conference during
which he made reference to the change, but his comments are not
part of the rulemaking process, and display a dismaying ignorance
of administrative law. For example, Mr. Ashcroft stated that the
BIA “routinely ignores” principles of appellate review,
giving aliens an “advantage” over U.S. citizens. It appears
that Mr. Ashcroft either was not aware of his predecessors’
explicit approval of de novo fact review, discussed below, or he
was deliberately attempting to misinform or mislead the press. Further,
Mr. Ashcroft should be aware, as his delegates are, that many administrative
appellate bodies enjoy the same de novo fact review power as does
the BIA; it is not an uncommon practice in administrative law. Finally,
Mr. Ashcroft should be aware, as his delegates are, that all laws
and regulations apply to all parties before the BIA alike: aliens
cannot enjoy any “advantage” over the USCIS or U.S. citizens
in any way.)
2. Elimination of de novo review is inefficient and will cause
even more delay
A stated motivation behind the proposed rule is efficiency and
backlog reduction. A moment’s reflection reveals that elimination
of de novo fact review will create mounting inefficiencies and cause
even more delay. The parties will of necessity create an entirely
new genre of “satellite litigation” regarding the need
for (or opposition to) remands for fact-finding. The same will happen
with disputes over what is, or is not, a “mixed question of
law or fact,” which remains subject to review by the Board,
and what findings by the IJs are, or are not, “clearly erroneous.”
And these satellite disputes will carry over into judicial review
of Board decisions at the federal district court and circuit court
levels, further burdening those bodies.[18]
Making the BIA a “Court of Error” will force the courts
to re-evaluate standards of review that have long been employed.
Generally, the federal courts give substantial deference to the
decisions made by the BIA. That deference is reflected in the standard
of review applied to various factual and legal determinations made
by the Board. However, the justification for this substantial deference
has always been the traditional de novo review employed by the BIA
in its administrative review of the IJ decisions. Because of the
Board’s authority to review the findings and conclusions of
the IJ de novo, the courts have assumed that any errors of the IJ
were corrected by such review and that the BIA’s decision constitutes
the last, best decision of the Attorney General.[19] For this reason,
the courts generally do not review the decisions of the IJ but look
only to the Board’s decision. The Fifth Circuit Court of Appeals,
for example, certainly one of the more deferential circuits, has
noted that the “the BIA is not a court of error” and “reviews
the record de novo.”[20]
Absent the curative effects of this de novo review, however, even
the deferential Fifth Circuit will scrutinize the IJ decision and
assume that any IJ errors not clearly corrected by the BIA have
infected the Board’s decision as well.[21] In other words,
where the BIA simply gives its “boilerplate stamp of approval”
to the IJ’s decision, without expressly correcting errors in
that decision, the courts may not apply the “substantial deference”
to the Board that has traditionally been the case.[22]
A few years ago, questions arose concerning whether the BIA was
actually applying the de novo standard in reviewing IJ decisions.
The Board was harshly criticized when the courts suspected that
it was sometimes reviewing de novo, and sometimes deferring to IJs
without clearly enunciating the standard.[23] The Board was forced
to clarify its review policies in Matter of Burbano,[24] noting
that, even where the Board elected to adopt the findings and conclusions
as stated by the IJ, its review of IJ decisions was de novo.
If the traditional de novo standard of review is eliminated at
the BIA level and replaced by a “clearly erroneous” standard,
it can hardly be expected that the federal courts will review BIA
decisions with the same deference traditionally employed. Quite
simply, the decision of one out of 220 IJs, reviewed by one BIA
member applying a “boilerplate stamp of approval” is not
entitled to the same deference as a BIA decision made by a panel
engaging in de novo review. New standards of review will have to
be formulated by the district courts and circuit courts of appeal,
and the new standards will almost certainly be less deferential
than those now employed.
Eliminating de novo review will defeat uniformity. Less deference
in the courts means more scrutiny of the administrative decisions.
If the BIA will no longer engage in de novo review of the IJ decisions,
the courts will be increasingly scrutinizing IJ decisions rather
than those of the Board. There are 12 circuit courts of appeal,
which have jurisdiction to review removal orders. In addition, under
USCIS v. St. Cyr,[25]and Calcano-Martinez v. USCIS,[26] many removal
orders must be reviewed in federal district courts. The result of
eliminating de novo review by a BIA panel, then, will be that 12
circuits and district courts across the United States will now be
reviewing findings and conclusions of 220 IJs, rather than a single
Board of Immigration Appeals. Instead of the BIA imposing consistency
and uniformity (which, as noted, is its primary purpose), the USCIS
and alien respondents will be confronted with conflicting decisions
from every circuit and district court in the country. The resulting
cacophony of decisions will then be cited as precedents to those
220 IJs in new cases, with the result that no one will know what
the law is. Surely the Attorney General cannot have intended such
a result.
De novo fact review is essential to fair and accurate decision-making.
As noted almost 50 years ago, if the BIA were “precluded from
overruling the special inquiry officer on factual issues, the net
result would be that the possibility of a successful appeal on such
issues would be reduced to the vanishing point and such a course
might well be considered as in conflict with the constitutional
requirement of procedural due process.”[27] That case, Matter
of B-, bears close study: the USCIS asserted that the BIA should defer
to the factual findings of the IJ, and asserted that the BIA lacked
de novo fact review power. In a detailed and well-supported decision,
the Board noted that it had enjoyed such power since the Board’s
inception in the early 1940s. Upon certification to the Attorney
General, the Attorney General agreed with the Board’s position.
No court decision, regulation, or Attorney General opinion has challenged
this view since 1956.
Moreover, the Attorney General’s desire to remove de novo
fact review authority from the Board is simply not credible in light
of his decision issued March 5, 2002, in Matter of Y-L-.[28] In
footnote one of that decision the Attorney General explicitly reserves
to himself the very power he seeks to deny the BIA: de novo fact
review authority. Keeping such power at the IJ level and the Attorney
General level, but not in-between at the BIA level, robs the BIA
of all legitimacy as an adjudicative body.
Under the proposed regulations, the BIA would be denied the opportunity
to review the facts and testimony of the underlying case in making
its decision unless they are “clearly erroneous.” The
result would be that the BIA would engage only in a cursory review
of matters that often rise or fall on the particular facts of a
given case. Although regulations require that immigration hearings
be recorded, in the vast majority of cases IJs render oral decisions
immediately upon the completion of testimony. They do not review
the recorded testimony, but instead rely on their memory and any
notes taken during the proceedings. As a result, IJs will occasionally
misstate or omit important factual information in their decisions.
The BIA should have the opportunity to correct these errors when
they affect the outcome of cases.
An IJ faces numerous obstacles in attempting to assess the facts,
including: huge caseloads and pressure to complete asylum cases
within 180 days; little or no legal support to assist in reviewing
the evidence prior to the hearing or during the decision-making
process; extensive documentary records which he or she must review,
especially in the asylum area; a high percentage of pro se applicants,
often seeking asylum, and often with limited education and ability
to state their case clearly; a large percentage of asylum claims
frequently from countries where the political conditions are confusing
or change rapidly; and various discretionary factors which must
be measured in granting relief. All of the above factors guarantee
there will be factual errors in cases.
De novo review of credibility determinations is the bulwark against
removing the most vulnerable. Many judges view testimony of noncitizens
through the lens of their own experience and biases. The people
IJs are most likely to find incredible are those who have suffered
the most and who differ from them the most. Asylum seekers, victims
of domestic violence, children, and women from cultures in which
norms of communication vary from the dominant culture in the United
States, all have suffered at the hands of ignorant and antagonistic
judges. These noncitizens often find it difficult to recount their
harrowing stories or explain them in a cultural framework unfamiliar
to an IJ. De novo review is the fastest way to remedy the harm done
by such judges. Remanding such cases to antagonistic, biased and
ignorant judges undermines efficiency as well as fairness and accuracy.
The examples in the attached Appendix illustrate the problems with
IJ credibility and factual assessments. They are but the tip of
a large iceberg of cases, including many pro se claimants who never
receive redress.
De novo review in the sensitive kinds of cases noted above also
is essential because the facts change. Even with a streamlined review
process, the BIA must have the flexibility to deal with changed
country conditions and the development of new facts that can have
a decisive effect on the outcome of a case. Where the outcome of
a case can literally be a matter of life and death, administrative
burdens must be properly balanced against the need to review all
of the facts and circumstances surrounding the case.
Fifty-six percent of all people who appear before an immigration
judge do not have an attorney.[29] When combined with the language
barriers that many people face, immigration decisions are sometimes
based on confusion or on the innocent mistakes of an unrepresented
person. Our system strongly favors a ruling on the true facts of
a case, and the Board should continue to have the opportunity to
examine all aspects of the case. Where factual errors, mistakes
or confusion can be cleared up on appeal, the Board should not be
denied the opportunity to make the correct ruling simply because
of inability to meet the very difficult burden of proving that the
findings were “clearly erroneous.”
Any proposed reforms must be considered in light of the balancing
test set forth in Mathews v. Eldridge.[30] The Matthews test assesses
the private interest that will be affected by official action, the
risk of an erroneous deprivation of such interests through the procedures
used as well as the value of additional safeguards, and the nature
of the government’s interests. In particular, the proposed
elimination of the BIA’s de novo factual review raises concerns
vis-à-vis the Mathews test, in that such elimination might
raise significantly the risk of an erroneous deprivation of due
process. This is particularly true for pro se respondents, for those
who have no appeal to a federal court, and for those for whom stakes
are high: those fleeing torture, death, rape, domestic violence
and other serious harm.
3. The proposal is harmful to the USCIS
While it is true that the USCIS files fewer appeals at the BIA than
do alien (and sometimes citizen) respondents, the number of USCIS-filed
appeals is not insignificant. In those cases, the USCIS, no different
from any party appellant, wants the appellate body to exercise as
much authority as possible to correct perceived error. Stripping
the BIA of de novo fact review authority would hurt the USCIS in the
very same ways it would hurt other parties.
In sum, removing de novo fact review power from the Board risks
significant unfairness to all litigants before the Board, will cause
further delays and inefficiencies, and undermines the very character
of the Board, a venerable institution with a long and proud history.
AILA recommends deleting proposed 8 CFR § 3.1(d)(3) completely.
C. The Proposed Single-Member Screening Process Would Violate Principles
Of Accuracy, Efficiency, Acceptability, And Consistency
As noted above, proposed 8 CFR § 3.1(e)(6) would mandate
single-member review for all cases except those falling within one
of five enumerated categories. Those five categories include cases
in which there is a need to: (1) settle inconsistencies in the rulings
of immigration judges (IJs); (2) clarify ambiguous laws, regulations,
or procedures; (3) correct an IJ’s decision that does not comport
with the law; (4) resolve a case or controversy of “major national
import”; or (5) correct a clearly erroneous factual determination
by an IJ. Cases falling within one of these categories would be
adjudicated by a three-member panel, as is the current practice.
Under the proposal, all cases would initially go to a “screening
panel,” on which single Board Members would decide the majority
of cases.[31] Each member of the panel would individually screen
cases and would either adjudicate the case him- or herself, or determine
that the case merits three-member panel review. The BIA Chairman
would have the discretion to allocate members to the screening panel
and three-member panels, as she or he deems appropriate.
To facilitate this new screening process, proposed 8 CFR §
3.3(b) would require an appellant who asserts that an appeal warrants
review by a three-member panel to identify in the Notice of Appeal
(NOA) the specific factual or legal basis for that contention.
This proposed shift toward single-member review appears to assume
that the vast majority of BIA appeals do not involve complex questions
of law or legal interpretation. This assumption, however, is erroneous.
The vast changes in our nation’s immigration laws since 1996
require much interpretation. The law is not crystal clear, congressional
intent is often ambiguous, the USCIS itself often argues positions
that courts later hold are contrary to congressional intent, complex
interplays of transition rules and retroactivity provisions must
be sorted out, and circuit courts of appeals constantly review,
refine, and even overturn Board precedent.
Furthermore, a significant number (34 percent)of BIA cases are
brought pro se.[32] In these cases, the Board does not have the
benefit of legal briefs to assist it in analyzing the complex legal
issues that may be presented. In this ever-changing and challenging
environment, the interplay of diverse legal minds and opinions is
important. In fact, the Department of Justice has taken important
steps toward expanding the diversity of the Board by recruiting
members from academia, government service and private practice.
Such diversity disperses any biases and permits the exchange and
testing of ideas. To allow one perspective to rule the outcome of
a single case would limit the value of the Department’s effort
and increase the likelihood of an aberrant decision.
Relying on a single decision in the majority of cases also eliminates
the opportunity for written dissenting opinions. Dissenting opinions
are an important part of the appellate process and the evolutionary
nature of our laws. These opinions help shape the legal arguments
that are made in future cases, and enhance the critical thinking
that enriches our judicial system.
The use of appellate panels and the filing of dissenting opinions
also promote efficiency when the decisions are subject to review
by federal judges. Panels promote a full exploration of all aspects
of a case, and the existence of dissenting opinions offers proof
that divergent views were considered on appeal. This process makes
it less likely that a federal court will overturn or remand a decision
for failure to consider the proper facts and law. This promotes
overall efficiency in the immigration review system.
1. The criteria for referral to a three-member panel are illusory
and would cause a lack of consistency and a decrease in efficiency
As noted above, the proposed regulations provide that each individual
member of the screening panel would evaluate cases for referral
to three-member panels, employing five highly subjective criteria,
and without any internal review or coordination of the application
of those criteria. It is certain that one individual BIA Member’s
construction of these subjective criteria will vary from another’s,
yet the decision of whether to dispose of the case individually
or refer it to a panel is left to the unreviewed “judgment
of the single Board Member on the screening panel to whom the appeal
is assigned.”[33] With no internal review or coordination,
and no uniform standards for applying the criteria, the inevitable
result will be that many cases will be decided by single Board Members
even when, in the judgment of other Board Members, they may meet
the criteria for panel review. Moreover, to determine whether a
case meets the criteria for referral to a three-member panel, the
individual members of the screening panel would have to review fully
the case records and the corresponding law and precedents in the
area. If the case is then sent to a three-member panel, that panel
will also have to engage in a similar review, with the result being
that much duplicative work will occur under the proposal as currently
drafted. Hence, uniformity will be defeated and efficiency impaired,
rather than promoted.
For example, the screening BIA Member is expected to refer to
a three-member panel cases where there is a “need to settle
inconsistencies between the rulings of different immigration judges.”[34]
However, with the various members of the screening panel independently
reviewing decisions from 220 IJs, how will one BIA Member know that
the IJ ruling he or she is reviewing is inconsistent with that made
by another IJ being independently reviewed by a different member
of the screening panel? And if the individual BIA Member does not
know about the inconsistency, then the default rule of single-member
review will be applied with the result being that the inconsistencies
go unaddressed. By making independent, single-member review the
rule, the process of identifying and addressing inconsistencies
between the 220 IJs across the United States will be severely hampered.
Since the primary purpose of the BIA is to provide uniform, nationwide
guidance to IJs, this is an extremely serious flaw in the proposal.
In addition, the proposal provides that three-member panel review
is warranted where there is a “need to establish a precedent
to clarify ambiguous laws, regulations, or procedures.”[35]
What level of ambiguity, however, is sufficient to trigger referral
to a panel? It appears that the individual Board Members on the
screening panel would be empowered with drawing that bright line.
Moreover, what ensures that one member of the screening panel will
not find ambiguity where another finds clarity?
Decisions by an IJ or the USCIS that are “plainly not in conformity
with the law or with applicable precedents” also would be referred
for panel review,[36] as would cases or controversies of “major
national import.”[37] Again, however, how will members of the
screening panel determine whether the decision below “plainly”
fails to conform? BIA Members sitting en banc often disagree on
this very issue. And how will there ever be a consensus among the
individual members of the screening panel as to what constitutes
“major national import?”
Finally, the proposed regulations would mandate panel review where
there is a need “to correct a clearly erroneous factual determination
by an immigration judge.”[38] As with the other categories
of cases set forth above, however, the decision as to what is erroneous,
let alone “clearly” erroneous, is amenable to broad interpretation.
When IJs misunderstand or ignore important facts, they necessarily
misapply the law to the facts. The Appendix contains examples of
asylum seekers and women and children harmed by just such IJ decisions.
These decisions include wrongful findings that the respondents were
not credible, and misstatements of facts resulting in misapplication
of the law. In all these cases, three-member panel review prevented
the wrongful removal of victims of persecution and violence. By
raising the bar for factual review and placing that decision in
the hands of a single Board Member, the proposed regulations ensure
that many individuals in the same situation will be removed.
The law keeps changing, as immigration lawyers know better than
most. As a result, even under the present structure, IJ’s are
frequently called upon to interpret statutes or regulations in new
and unique circumstances, or to construe new court decisions, without
the guidance of BIA or federal court precedent. The longer it takes
the system to generate those precedents, the longer the issues remain
uncertain. Uncertainty in interpreting the law encourages more appeals;
the more appeals taken during this period of uncertainty, the more
cases that must ultimately be remanded when the issues are resolved.
In other words, uniformity is necessary to promote efficiency and
anything that impedes uniformity is therefore counterproductive
to the goal of efficiency. As noted above, the individual screening
of cases by independent BIA Members rather than panels will make
it more difficult to identify inconsistencies with the result that
it will take longer to develop uniformity and reduce uncertainty
in the law.
2. The single-member screening process fails to provide for
meaningful checks against abuse of discretion and would lead to
impaired accuracy
It is a basic tenet of our professional and personal lives that
multiple viewers provide the best quality control. The more viewers
contributing their perspective, knowledge and experience to analyzing
a situation, the more likely the final vision will be accurate.
These regulations eliminate that quality control and proffer no
other mechanism for checking inaccurate screening. Absent such a
mechanism, inconsistent outcomes in similarly situated cases will
abound, raising the specter of arbitrary agency action.[39] Under
the proposed regulations, the individual members of the screening
panel would be making decisions regarding whether a given case falls
under the legal criteria for panel review, and that legal decision
must be consistent with other screening determinations in order
to maintain consistent national immigration law.[40]
The proposed regulations also appear to allow the same Board Member
to review motions to reopen or reconsider his or her incorrect decisions.[41]
If a member of the screening panel wrongfully denies a case, a motion
to reopen or reconsider is the only way to correct that decision
in the administrative system. Minimal due process requires that
a different person or group of people review whether the individual
screening member misapplied the law or the criteria for review.
Even if the case goes to a different Board Member on the screening
panel for the motion to reopen, that motion is still decided by
a single adjudicator. This is inadequate protection against wrongful
removals and the attendant violations of congressional will and
international obligations.
The summary content of the decisions compounds the problem. BIA
decisions do not affect only the individual parties involved. They
correct inaccurate applications of the law by IJs, explain why factual
analyses are inadequate or inappropriately applied to the law, and
ensure that the law is applied uniformly nationwide. They also examine
and rectify USCIS errors and serve as a training mechanism for USCIS
personnel. Without a clear articulation of the rationale behind
a decision, these ameliorative functions are lost.
In the immigration arena, the federal courts serve as the final
arbiter of what is “acceptable” in an administrative process.
A system so profoundly lacking in due process invites federal court
intervention. Federal courts will find little of use to review in
summary decisions, except the patent violation of due process posed
by their summary nature. They are likely to routinely remand these
cases to the BIA for further procedures and rationale articulation.
This will decrease the Board’s efficiency; more importantly,
it will help only noncitizens with the wherewithal to pay competent
attorneys.
For those who lack such resources, the BIA is the court of last
resort. Some applicants may be unable to access appellate review
at all.[42] For instance, since cancellation of removal for victims
of domestic violence involves showing extreme hardship and a favorable
exercise of discretion,[43] it is not clear that a federal court
would have reviewed the denials in the cases set forth in the Appendix
had they been made by a single BIA Member on a screening panel.
Fortunately, BIA three-panel review prevented deportation in these
cases.
As recently stated by two past USCIS General Counsels, “[t]he
Board plays a crucial role that has grown more important in recent
years. For most noncitizens subject to removal proceedings, it serves
as the supreme court of immigration law….If this new proposal
is adopted, it could mean that thousand of immigrants will get no
effective review of their cases, before either the Board of Immigration
Appeals or a federal court.”[44]
In sum, instituting single-member screening based on subjectivecriteria,
while severely curtailing de novo review of factual issues[45] contravenes
the goals of administrative review set forth above: acceptability,
accuracy, consistency, and efficiency. Such a broad screening mechanismwould
place enormous, and potentially unreviewable discretion in the hands
of individual Board Members to determine whether a three-member
panel should review cases. Since individual BIA Members would be
applying criteria amenable to subjective interpretation, uniform
and accurate application of the law would suffer. Efficiency would
decline because the screening process requires duplicative record
review and legal determinations. Traffic between the Board and the
IJs would increase, as cases the Board could adjudicate are remanded
back to the IJ for further proceedings. Federal courts would become
even more involved in reviewing and remanding cases because numerous
individuals whose cases are wrongfully denied by individual members
of the screening panel will seek relief for violations of their
due process rights under Mathews v. Eldridge.[46] Since the decisions
by individual Board Members may, themselves, be summary, the federal
courts will routinely remand cases to the BIA for better articulation
of its decisions.
3. The BIA has already successfully implemented procedures that
allow it to streamline and expedite cases
As noted earlier in these comments, the current streamlining program
has allowed the Board to allocate resources more effectively and
to adjudicate the growing caseload by concentrating on more significant
cases that may require greater deliberation or that may present
novel legal questions. For example, many appeals filed with the
Board raise complex issues of law arising from broad antiterrorism
and immigration reform legislation that was passed in 1996, as well
as critical issues arising from subsequent legislation.
According to the independent audit recently conducted, the pilot
phase of the streamlining program directly contributed to a 53 percent
increase in the overall number of BIA cases completed during its
implementation period from September 2000 through August 2001.[47]
Specifically, between 1997 and 2001, the average number of BIA cases
completed in less than 90 days increased from 25 percent to 56 percent,
while the average number of cases that remained open 181 days or
longer dramatically decreased from 42 percent to 13 percent.[48]
Rather than implementing the overly broad and untested reforms
envisioned in the Attorney General’s proposal, the Board should
continue to fine-tune the current streamlining initiative, working
within the existing framework to build upon its proven success.
However, if streamlining is to be expanded, bond decisions might
be suitable for single-member Board decisions. There is no transcript
of testimony to review in such cases, and the record is limited
to the IJ’s memorandum of decision and the documentary exhibits.
Three-member panels have provided fairness and accuracy for decades
in the review of immigration decisions. The Attorney General’s
proposal is radical in nature. The continued fine-tuning of the
existing streamlining process will carry forward the success the
Board has had in expediting review of appeals, while simultaneously
safeguarding due process.
D. The Proposed Rule’s Simultaneous Briefing Requirement
And Other Time Limits Are Impractical And Would Further Impair Efficiency
And Accuracy, While Leading To A Diminution Of Due Process
1. The BIA should retain its current briefing schedule
Current BIA procedures allow each party 30 days in which to file
their respective briefs.[49] The proposed rule would require both
appellant and appellee to file their briefs simultaneously, within
a 21-day briefing period, unless a shorter period is specified by
the Board, and reply briefs would be permitted only by leave of
the Board.[50]
Generally, responsive briefing—whereby the appealing party
files a brief and the appellee responds with a brief due some time
afterwards—is the rule in the federal courts and has been the
rule before the BIA. Responsive briefing allows the appellee to
address the specific issues raised by the appellant with the result
that the appellate tribunal is provided with more direct and focused
legal argument. The proposed rule’s institution of a 21-day
simultaneous briefing schedule, together with the provision for
reply briefs only upon leave of the Board, will result in one of
two equally undesirable results.
If the briefs are, indeed, filed simultaneously, the appellee
will not have the benefit of having seen the appellant’s brief
and will be forced either to address every conceivable argument
that may be raised or risk missing the point of the appellant’s
arguments. Briefs, the purpose of which should be to help the BIA
resolve the issues on appeal by highlighting the appropriate facts
and law, will be considerably longer, and/or less helpful because
the appellee will not know which facts and what law is appropriate
to the appellant’s unseen arguments. In either event, efficiency
would again suffer.
To secure the benefits of responsive briefing, appellees will be
forced to seek leave of the Board to file reply briefs. This means
the Board Members will have to decide motions or requests for leave
to file reply briefs, as well as review the reply briefs themselves.
All of these additional motions, requests and briefs will consume
considerably more time at the BIA than could ever be saved by the
proposed simultaneous briefing requirement. Responsive briefing
should therefore be retained.
Thorough and responsive briefs are a decision-maker’s “best
friend,” enabling him or her to review thoroughly and expeditiously
the issues in a case. Such briefs eliminate the need for the decision-maker
to independently research the issues. Courts provide for responsive
briefing to enable them to be better apprised of the various issues
and possible responses. The requirement of simultaneous briefing
will thus slow the appellate process by requiring Board Members
and their staff to research the issues themselves. The regulations
require briefing of cases appropriate for “merit review.”
Upon receiving the brief, the Board Member to whom a case is assigned
must affirm the decision of the Service or IJ without opinion if
the issues on appeal are squarely controlled by precedent or if
the factual and legal issues are not so substantial as to warrant
a written opinion. This is a great responsibility to place upon
a single Board Member without the benefit of responsive briefing.
How is the Board Member to know if the case is squarely controlled
by precedent or if legal and factual issues are so substantial as
to require more thorough review?
If the Board Member determines that a decision is not appropriate
for affirmance without opinion, he or she must issue a brief order
affirming, reversing, modifying, or remanding the decision unless
the Board Member designates the case for decision by a three-member
panel. Panel decisions are appropriate to settle inconsistencies
between the rulings of different judges, to establish a precedent
or to clarify ambiguities, to correct a decision that is not in
conformity with law, to resolve a case of major import, or to correct
a clearly erroneous factual determination. Again, simultaneous briefing
would make it more difficult for Board Members to identify the presence
of these factors.
2. The proposed 14-day transcript schedule is unrealistic and
would lead to a higher rate of error
Proposed 8 CFR § 3.5 would impose a 14-day time limit within
which IJs would have to review and approve the decision transcripts.
Currently, there is no such time limit imposed on IJs.
Obviously, an accurate transcription of the proceedings before
the IJ is necessary for a fair and effective review. By imposing
a 14-day time limit on the IJ’s review of the transcript, the
accuracy of the transcription process will suffer. IJ’s are
already under tremendous time constraints, with several cases scheduled
daily and only a few hours reserved each week for all administrative
duties including deciding motions, preparing written decisions,
scheduling conferences and reviewing transcripts. Simply requiring
that the transcript review take no more than 14 days does not create
more hours in an IJ’s week. Imposing a 14-day limit on review
of transcripts insures one of two results, either of which would
be counterproductive to efficiency. Either the IJ’s review
of the transcripts will become less effective and the transcripts
will contain more errors, or the IJs will devote the same attention
to transcripts and be forced to prioritize transcript review to
comply with the deadlines. More errors in the transcripts will impair
effective and efficient review at the BIA level, and generate more
remands or other delays for clarification of matters that could
have been caught had the transcript been reviewed more thoroughly.
Prioritizing transcript review at the expense of the IJ’s other
administrative responsibilities will delay the adjudication of motions,
issuance of written decisions and other tasks necessary to keep
pending cases moving in the Immigration Court.
A better approach would be the employment of professional transcribers
who timely and accurately transcribe the oral hearing. It is not
unusual for it to take contract transcribers several years for the
preparation of transcripts from the time a decision is rendered.
The poor quality of transcription often renders it difficult if
not impossible for an IJ to review and approve a transcript in a
timely manner. Such quality control at the transcriber level would
enable the IJs to promptly review and edit accurately transcribed
decisions, rather than rewriting inaccurately and poorly transcribed
decisions, and would not have the detrimental impact on accuracy
that the proposed rule’s 14-day deadline for IJ transcript
review would have.
3. The proposed time limits for completion of cases should be
guidelines, not mandates
Under proposed 8 CFR § 3.1(e)(8), the single members of the
new screening panel would have 90 days in which to either decide
the case or refer it for three-member panel review, and three-member
panels would normally have to decide the case within 180 days.
While the proposed 90- and 180-day time limits for completion
of cases are a worthwhile objective on an experimental basis, they
should serve as a guideline, not as a mandate. The proposed regulations
imply that there will be some type of sanction against Board Members
who regularly fail to meet the proposed time limits. Such implied
threats are not helpful and should be removed. Accuracy and fairness
in the decision making process are as (or more) essential than speed
in determining appeals where an individuals safety, liberty or life
may be on the line.
Even if the Attorney General is going to consider this type of
monitoring of the speed with which the Board adjudicates appeals,
it should be postponed until it is determined whether the 90- and
180-day guidelines are realistic or workable. It is very possible
that in many cases they will not be. They should be tried on a probationary
basis at first.
The proposed regulations wisely add that there may be cases where
decisions may be delayed if there is pending or anticipated litigation
at the Supreme Court or court of appeals level. The time limits
may be suspended in these cases. If the proposed rule’s time
limits are to be implemented, this idea should in turn be expanded.
For example, there may be other instances where the issue on appeal
is sufficiently complicated that the Board needs additional time
to address it, and provision for such an occurrence should be made
in the regulations.
It makes no sense to place narrow time constraints on the decision
making process and, at the same time, eliminate the tools that enable
decision-makers to properly, accurately and efficiently render their
decisions. Taken together, the proposed time limits, coupled with
the elimination of responsive briefing, would likely lead to poorly
reasoned and poorly drafted decisions, and even lengthier delays
as such decisions are appealed and remanded and/or reversed.
4. The implied threat of sanctions against Board members who
“fail to meet assigned deadlines” should be eliminated
The proposed regulations contain ominous language regarding implied
or direct sanctions against Board Members who fail to meet deadlines.
That language is not appropriate, especially when taken in context
with other comments made in the press about the Board’s need
to be “on the same page” with the USCIS. The Board has a
difficult task and members are chosen based in part on their knowledge
and ability to complete difficult tasks. Board Members understand
the need for efficient and timely adjudications. There is no provision
in the proposed regulations for discipline or sanction of Board
Members who may have difficulty in performing other necessary functions
relating to legal accuracy or fairness, e.g., repeated legal errors
resulting in frequent motions to reconsider or judicial remands.
Hence, the regulations should not single out for sanctions Board
Members who fail to meet the proposed rule’s deadlines without
also addressing additional Board Member conduct, such as the rendering
of fair and accurate decisions.
E. The Retroactive Application Of The Proposed Rule Would Impinge
Upon Individuals’ Appellate Rights
The Attorney General plans to take further actions that will undermine
the rights of individuals who have appealed their cases to the Board.
“The proposed rule reflects the Attorney General’s direction
that, once this rule is adopted in final form, the Board will immediately
implement the procedural and structural changes described above
with respect to all appeals pending before the Board at the time
this rule takes effect.”[51] (Emphasis added).
As we have discussed throughout these Comments, most of the proposed
rules in this proceeding—if they become final rules—will
work tremendous hardships on individuals who seek relief from removal
from the BIA. However, to add insult to injury, the Department of
Justice plans to immediately apply the rules to all cases pending
in the BIA “pipeline” at the time of implementation. This
result cannot stand.
For example, the proposal requires that an individual “who
asserts that the appeal may warrant review by a three-member panel
under the standards of § 3.1(e)(6) must identify in the Notice
of Appeal the specific factual or legal basis for that contention.”
[52] (Emphasis added). In other words, the individual must affirmatively
specify in his or her NOA at least one of the five grounds that
will appear in the revised rule § 3.1(e)(6).
AILA asserts that it is both nonsensical and patently unfair to
apply this requirement retroactively to all cases pending in the
Board pipeline as of the effective date of the final rules. Individuals
who filed their appeals before the effective date of the final rules
clearly have no way of knowing about such a requirement, and their
appeals should not be prejudiced by the retroactive application
of this rule. Instead, proposed § 3.3(b) should not be applied
to any cases filed before the effective date.
The Supreme Court has stated, in the context of rulemaking, that
“[r]etroactivity is not favored in the law.”[53] Nevertheless,
retroactive application of adjudicative decisions is sometimes appropriate.
In SEC v. Chenery Corp.,[54] after deciding that an agency could
proceed by adjudication at its discretion, the Court declared that
the fact that an adjudication “might have a retroactive effect
was not necessarily fatal to its validity. Every case of first impression
has a retroactive effect, whether the new principle is announced
by a court or by an administrative agency.”[55] The Court then
announced a balancing test to determine when adjudicative decisions
could apply retroactively: “such retroactivity must be balanced
against the mischief of producing a result which is contrary to
a statutory design or to legal and equitable principles. If that
mischief is greater than the ill effect of the retroactive application
of a new standard, it is not the type of retroactivity which is
condemned by law.”[56]
This test has been fleshed out by the circuit courts. Seven circuits
use a five-factor test, first announced by the D.C. Circuit in Retail,
Wholesale & Department Store Union v. NLRB,[57] to determine
whether the result of an adjudication could be applied retroactively.[58]
The D.C. Circuit’s analysis considers:
(1) whether the particular case is one of first impression, (2)
whether the new rule represents an abrupt departure from well established
practice or merely attempts to fill a void in an unsettled area
of law, (3) the extent to which the party against whom the new rule
is applied relied on the former rule, (4) the degree of the burden
which a retroactive order imposes on a party, and (5) the statutory
interest in applying a new rule despite the reliance of a party
on the old standard.[59]
Other circuits apply the Chenery retroactivity test on a case-by-case
basis.[60] From its discussion of the validity of adjudication in
Bell Aerospace, the Supreme Court has also derived the doctrine
that “an administrative agency may not apply a new rule retroactively
when to do so would unduly intrude upon reasonable reliance interests.”[61]
These tests, though not fully defined by the Supreme Court, offer
some guidance as to when an adjudicative decision may be applied
retroactively.
F. The Proposed Rule’s Replacement of the Provision For Discretionary
Summary Dismissal With Mandatory Summary Dismissal Language Would
Violate The Due Process Rights Of Respondents, Cause Further Backlogs,
And Further Impair Efficiency
Currently, 8 CFR § 3.1(d)(2)(i) provides that the Board “may
summarily dismiss any appeal or portion of any appeal in any case
in which:
(A) The party concerned fails to specify the reasons for the appeal
on Form EOIR-26 or Form EOIR-29 (Notices of Appeal) or other document
filed therewith;
(B) The only reason for the appeal specified by the party concerned
involves a finding of fact or a conclusion of law that was conceded
by that party at a prior proceeding;
(C) The appeal is from an order that granted the party concerned
the relief that had been requested;
(D) The party concerned indicates on Form EOIR–26 or Form
EOIR–29 that he or she will file a brief or statement in support
of the appeal and, thereafter, does not file such brief or statement,
or reasonably explain his or her failure to do so, within the time
set for filing;
(E) The appeal does not fall within the Board's jurisdiction, or
lies with the Immigration Judge rather than the Board;
(F) The appeal is untimely, or barred by an affirmative waiver
of the right of appeal that is clear on the record; or
(G) The appeal fails to meet essential statutory or regulatory
requirements or is expressly excluded by statute or regulation.”
Proposed 8 CFR § 3.1(d)(2)(i) would remove completely the
Board’s discretion with regard to these summary dismissal provisions
by replacing the current discretionary language (“the Board
may summarily dismiss”) with new mandatory dismissal language
(“a single Board member shall summarily dismiss”) (emphasis
added). AILA believes that such a removal of discretion will lead
to unlawful results in many cases, thus generating significant litigation
in the federal courts, attendant remands to the BIA, and impaired
efficiency throughout the immigration appeals process.
As an example, the proposed rule would preclude the Board from
considering the appeals of respondents who set forth their clear
eligibility for certain forms of discretionary relief on the Form
EOIR–26, “Notice of Appeal to the Board of Immigration
Appeals of Decision of Immigration Judge,” and who then fail
to submit a brief or statement in support of their appeal after
having indicated an affirmative intent to do so on the form. Such
scenarios occur regularly, particularly with respect to pro se litigants,
and the Board currently exercises its expertise and its discretion
in deciding whether to consider the merits of such an appeal. A
recent example of such a situation occurred after the June 25, 2001,
Supreme Court decision in USCIS v. St. Cyr,[62] under which a large
class of individuals suddenly became eligible for discretionary
relief under former INA § 212(c). Currently, the Board routinely
remands back to the IJ appeals that set forth the respondents’
eligibility for discretionary relief under St. Cyr, even in the
absence of a brief. Under the proposed rule, Board Members would
have no discretion to remand these cases for consideration of INA
§ 212(c) relief, even where the respondent is clearly eligible.
Such a result would likely spawn a new round of litigation for this
class of individuals, once again impairing the efficiency of the
immigration appeals process.
AILA also reminds the Attorney General that it would be unlawfulfor
the Department of Justice to implement the proposed regulations
without first amending the Form EOIR–26. As currently drafted,
the form warns respondents that “[t]he failure to specify the
factual or legal basis for the appeal may lead to summary dismissal
without further notice….” (emphasis added). Because proposed
8 CFR § 3.1(d)(2)(i) would replace the Board’s discretionary
ability to dismiss summarily certain enumerated categories of appeals
(or portions thereof) with mandatory language requiring their dismissal,
the Form EOIR–26, as currently drafted, fails to provide adequate
notice to respondents as to what they must specify in their appeal
to avoid mandatory summary dismissal thereof. The federal courts
have previously found that an earlier version of the Form EOIR–26
provided insufficient notice to respondents of the possibility that
their appeals could be summarily dismissed.[63] Should the Justice
Department now promulgate a final rule making such summary dismissal
mandatory, without first amending the Form EOIR-26 to provide notice
of this change, courts will undoubtedly find such failure to be
an unlawful deprivation of due process. Such a finding would further
impair the efficiency of the adjudicatory system by resulting in
a high volume of federal court appeals, and a concomitant number
of remands to the Board for consideration on the merits.
G. The Proposed Restoration Of A Previously Deleted Summary Dismissal
Provision Is Unwarranted And Inefficient And, Coupled With The Other
Proposed Changes, Would Lead To An Increase In Erroneous Summary
Dismissals
The proposed rule would also restore a previously deleted provision
mandating summary dismissal of appeals “that are filed for
an improper purpose or that lack an arguable basis in fact or law,”
unless the Board determines that such appeal is supported by a good
faith argument for extension, modification, or reversal of existing
law.[64] Cases are to be identified for summary dismissal, and any
matter so dismissed may constitute frivolous behavior under §
3.102(j).[65]
The Supplementary Information to the proposed rule notes that
this provision was previously deleted based on the Board’s
acknowledgement that such authority was “virtually never used,”
as well as on concerns that the exercise of such authority would
lead to confusion with procedures for summary affirmance. In 2001,
the EOIR promulgated detailed rules of professional conduct, including
sanctions for filing frivolous appeals or abuse of the appeals process
for improper purposes. See 8 CFR § 3.102(j). The sanctions
provision includes an exhaustive list of offending behaviors, and
provides ample opportunity for the Board to both identify and deter
the rare offender.
The Department of Justice notes that the existing sanction is
“not actively enforced,” but wrongly speculates that the
reason is the lack of any mechanism to identify frivolous appeals.
The Department’s insistence on this provision, despite the
Board’s rejection of it as unnecessary and confusing, appears
to be based on a misconception of the removal and appeals process.
Starting from the erroneous assumption that there are rarely any
real issues regarding removability, and that questions of relief
only turn on established facts, the Justice Department faultily
concludes that, because the majority of appeals are unsuccessful,
those filings obviously lacked any basis in fact or law, or must
have been filed for purposes of delay. Perhaps the Department hopes
that, given this additional sanction, the Board may deter abuse
of the system and further reduce its caseload.
The obvious, alternative explanation—that such abuses are
both rare and already addressed by existing rules of professional
conduct—begs the question of whether the provision has any
value other than confusion with the existing streamlining procedures.
While AILA strenuously opposes the filing of frivolous appeals,
the proposed rule would provide insufficient protections to correctly
determine whether summary dismissal under this provision was warranted.
To accurately determine whether a case should be summarily dismissed
and sanctions investigated requires more careful review than that
envisioned as part of the case management and screening process.
As a result, we will either continue to see few cases identified
where sanctions might be warranted, or a stark increase in erroneous
summary dismissals.
Moreover, the determination as to which appeals should be considered
“frivolous” is both highly subjective and ever shifting.
The immigration laws are in a frequent state of flux, with the result
being that an appeal which today might seem frivolous could tomorrow
be considered meritorious. For example, in 1999, an appeal taken
from a removal order based on a conviction for driving under the
influence (DUI) could have been considered by some as frivolous,
since the case law at the time held that a DUI conviction was an
“aggravated felony” for immigration purposes, thus rendering
individuals with such convictions ineligible for discretionary relief.
Today, however, an appeal from a removal order based on a DUI conviction
could certainly be considered meritorious, as several circuit courts
have ruled that such a conviction is not considered a “crime
of violence” under 18 USC § 16(b), and hence, not an aggravated
felony.[66]
Again, the proposed rule’s provision for mandatory, single-member
summary dismissal of frivolous appeals would generate substantial
litigation in the federal courts, myriad remands back down to the
BIA, and would further impair the efficiency of the immigration
appeals process.
V. CONCLUSION
The proposed regulations correctly focus on the need for timely
and efficient adjudication of appeals, and the fourfold objectives
outlined by the Attorney General are appropriate objectives. The
proposed means of accomplishing these objectives, however, are not
only counterproductive, they are so drastic as to negate other appropriate
goals of the Board—namely, fairness, thoroughness, accuracy,
and due process.
The Attorney General should focus instead on fine-tuning the present
system without eviscerating it. BIA membership should be expanded,
and political considerations that have led to inadequate appointments
must be eliminated. The Board’s current structure and authority
should be maintained, and the already successful streamlining process
should be continued as is. A well-developed record, in which issues
and arguments are thoroughly developed and briefed, enables the
decision-maker to render accurate, efficient, and consistent decisions.
Briefs must therefore be responsive and an adequate briefing time
period must be allotted.
The Board of Immigration Appeals has a long and successful history
of adjudicating a high volume of cases in a competent and efficient
manner. As former Board Chairman Maurice Roberts noted over 25 years
ago:
The expertise concentrated in the Board, with its relatively small
staff, makes it the ideal place for the formulation of what is now
the definitive decision in this highly complex field of law. In
terms of actual cost to the Government, good Board decisions are
a bargain. More opinions can be ground out, of course, in less time
and with an even more inadequate staff; but the resulting dilution
in quality, while not only unfair to the parties involved, would
also cost much more in the long run. Economies of this sort can
only result in passing the buck to others with less expertise. The
slack would have to be taken up elsewhere in the Department; if
not, the already overburdened courts will have to confront the task,
for dilution in the quality of Board decisions can only cause greater
recourse to the courts for redress. If Service errors are to be
screened out and corrected, it is more efficient in the long run
that this be done by the Board.[67]
We urge the Attorney General to revisit these proposals in light
of these comments.
Sincerely,
AMERICAN IMMIGRATION LAWYERS ASSOCIATION
[1] Department of Justice, Proposed Rule, “Board of Immigration
Appeals: Procedural Reforms to Improve Case Management,” AG
Order No. 2559–2002, RIN 1125–AA36, EOIR 131P, 67 Fed.
Reg. 7309 (Feb. 19, 2002) (to be codified at 8 CFR Parts 3 &
280).
[2] AILA previously requested an extension of the comment period
via a letter to Attorney General John Ashcroft, dated February 11,
2002, with a copy of that letter forwarded to the EOIR’s General
Counsel on March 6. AILA received no response to its request.
[3] Interestingly, a fifth objective was set forth in an advance
summary of the proposed rule circulated by the Department of Justice.
That objective—enhancing the quality of BIA decisions—was
dropped from the published version of the rule, perhaps out of a
recognition that the proposed reforms would diminish rather than
enhance the quality of decisions.
[4] See generally Stephen Legomsky, Forum Choices for the Review
of Agency Adjudication: A Study of the Immigration Process, 71 Iowa
L. Rev. 1297, 1313 (1986).
[5] U.S. Const. amend. V.
[6] Gerald Hill & Kathleen Hill, Real Life Dictionary of the
Law (1995).
[7] Mathews v. Eldridge, 424 U.S. 319, 341–47 (1976).
[8] Id.
[9] Legomsky, supra note 4, at 1316–17.
[10] U.S. Department of Justice, Executive Office for Immigration
Review, “Board of Immigration Appeals Streamlining Pilot Project
Assessment Report,” at 1 (hereinafter “Streamlining Report”).
[11] Id. at 1–2.
[12] Id. at 2.
[13] Pub. L. No. 104–208.
[14] Statement of Attorney General John Ashcroft at a February
6, 2002, news conference.
[15] Department of Justice press release, “Department of Justice
Unveils Administrative Rule Change to Board of Immigration appeals
in Order to Eliminate Massive Backlog of More than 56,000 Cases,”
Feb. 6, 2002.
[16] Streamlining Report, supra note 10, at 5–6.
[17] USCIS v. St. Cyr, 121 S. Ct. 2271 (June 25, 2001).
[18] The Administrative Office of the U.S. Courts reported on March
13, 2002, that appeals filed in federal courts continued a six-year
surge to record levels in fiscal year (FY) 2001. The number of filings
in the 12 circuit courts of appeals hit 57,464 in FY 2001, up five
percent from FY 2000. Washington Post, Mar. 14, 2002, at A10.
[19] See, e.g., Balazoski v. USCIS, 932 F.2d 638 (7th Cir. 1991);
Adebisi v. USCIS, 952 F.2d 910 (5th Cir. 1992); Yepes-Prado v. USCIS,
10 F.3d 1363, 1366 (9th Cir. 1993).
[20] Ghassan v. USCIS, 972 F.2d 631, 635 (5th Cir. 1992).
[21] Mikhael v. USCIS, 115 F.3d 299 (5th Cir. 1997).
[22] Id. at 306.
[23] See, e.g., Ortiz-Salas v. USCIS, 992 F.2d 105 (7th Cir. 1993);
Yepes-Prado v. USCIS, 10 F.3d 1363 (9th Cir. 1993).
[24] Matter of Burbano, 20 I&N Dec. 872 (BIA 1994).
[25] USCIS v. St. Cyr, 121 S. Ct. 2271 (2001).
[26] Calcano-Martinez v. USCIS, 121 S. Ct. 2268 (2001).
[27] Matter of B-, 7 I&N Dec. 1 (BIA, Comm’r 1955; A.G.
1956).
[28] Matter of Y-L-, 23 I&N Dec. 270 (A.G. 2002).
[29] U.S. Department of Justice, Executive Office for Immigration
Review, “Statistical Desk Book,” Dec. 2001, at J1 (hereinafter
“Statistical Deskbook”).
[30] 424 U.S. 319, 335 (1976).
[31] Proposed 8 CFR § 3.1(e)(1).
[32] Statistical Desk Book, supra note 29, at K1.
[33] 67 Fed. Reg. 7309, 7311 (Feb. 19, 2002).
[34] Proposed 8 CFR § 3.1(e)(6)(i).
[35] Proposed 8 CFR § 3.1(e)(6)(ii).
[36] Proposed 8 CFR § 3.1(e)(6)(iii).
[37] Proposed 8 CFR § 3.1(e)(6)(iv).
[38] Proposed 8 CFR § 3.1(e)(6)(v).
[39] See Davilo-Bardales v. USCIS, 27 F.3d 1, 5–6 (1st Cir.
1994) (even if unpublished BIA decisions are not “‘precedent’
in the technical sense, the prospect of a government agency treating
virtually identical legal issues differently in different cases,
without any semblance of a plausible explanation, raises precisely
the kinds of concerns about arbitrary agency action that the consistency
doctrine addresses (at least where the earlier decisions were not
summary in nature…).”)
[40] See id.
[41] 67 Fed. Reg. 7309, 7311 (Feb. 19, 2002) (amending 8 CFR §
3.2(i)).
[42] See previous discussion on the proposed elimination of de
novo review of factual issues.
[43] INA § 240A(b)(2).
[44] Aleinikoff & Martin, “Ashcroft’s Immigration
Threat,” Washington Post, Feb. 26, 2002, at 21.
[45] See discussion below.
[46] Mathews v. Eldridge, 424 U.S. at 341–47.
[47] Streamlining Report, supra note 10, at 5.
[48] Id. at 7.
[49] See 8 CFR § 3.3(c)(1) and (2).
[50] Proposed 8 CFR § 3.3(c)(1).
[51] 67 Fed. Reg. 7309, 7312 (Feb. 19, 2002).
[52] Id. at 7316, discussing proposed 8 CFR § 3.3(b).
[53] Bowen v. Georgetown Univ. Hosp., 488 U.S. 204, 208 (1988).
See also Hughes Aircraft Co. v. United States, 520 U.S. 939, 945-50
(1997) (applying the presumption against statutory retroactivity);
Landgraf v. USI Film Products, 511 U.S. 244, 263-86 (1994) (applying
the presumption against statutory retroactivity with an extensive
discussion of the rule).
[54] SEC v. Chenery Corp., 332 U.S. 194 (1947).
[55] Id. at 203.
[56] Id.
[57] 466 F.2d 380, 390 (D.C. Cir. 1972).
[58] See Microcomputer Tech. Inst. v. Riley, 139 F.3d 1044, 1050
n.4 (5th Cir. 1998) (describing six circuits, besides the D.C. Circuit,
that have adopted the five-factor analysis).
[59] Retail, Wholesale, 466 F.2d at 390.
[60] See Microcomputer Tech. Inst., 139 F.3d at 1050 n.4.
[61] Heckler v. Community Health Servs. of Crawford County, Inc.,
467 U.S. 51, 60 n.12 (1984).
[62] St. Cyr, 121 S. Ct. at 2271.
[63] See, e.g., Padilla-Agustin v. USCIS, 21 F.3d 970, 976 (9th Cir.
1994) (holding that “when EOIR–26, the BIA’s standards
of specificity, and the practice of dismissing appeals without notice
are linked, that concatenation is so misleading that it can result
in a denial of due process to the alien.”).
[64] Proposed 8 CFR § 3.1(d)(2)(i)(D).
[65] Proposed 8 CFR § 3.1(d)(2)(ii), (iii).
[66] See, e.g., United States v. Chapa-Garza, 243 F.3d 921 (5th
Cir., March 1, 2001) (holding that a felony DUI is not a crime of
violence under 18 USC § 16(b)), petition for reh’g en
banc denied, No. 99-51199 (Aug. 20, 2001); ); Dalton v. Ashcroft,
257 F.3d 200 (2d Cir. 2001) (vacating the petitioner’s deportation
order and holding that a felony conviction under New York state
law for driving while intoxicated (DWI) does not constitute a “crime
of violence” under 18 USC § 16(b)); Bazan-Reyes v. USCIS,
No 99-3861, 2001 WL 748157 (7th Cir., July 5, 2001) (holding that
a felony DUI is not a crime of violence under 18 USC § 16(b)).
[67] Maurice Roberts, The Board of Immigration Appeals: A Critical
Approach, 15 San Diego L. Rev. 29, 38 (1977–1978).
(08/27/2002)
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