Attorney General Issues Final Rule to Reform BIA

IMMIGRATION LAW & POLICY

Removal Procedures and Defenses

ATTORNEY GENERAL ISSUES FINAL RULE TO REFORM BIA
Immigrants' Rights Update, Vol. 16, No. 5, September 10, 2002

The attorney general has issued a final rule that will fundamentally change the size, composition, and functioning of the Board of Immigration Appeals, the principal purpose being to expedite the processing of appeals. The final rule retains most of the features of the proposed rule that was announced in Feb. 2002 (see "Attorney General Proposes Major Changes at BIA," Immigrants' Rights Update, Feb. 28, 2002, p. 1).

Under the rule, after a six-month transitional period, the BIA will be reduced from 23 to 11 members. The final rule also significantly changes the procedure for filing and pursuing appeals, eliminates the BIA's jurisdiction to review factual findings de novo, expands on existing "streamlining" regulations allowing for summary dismissal of appeals and summary affirmation of immigration judge decisions, and makes most appeals subject to review by only a single BIA member. In rejecting the criticisms of many commentators, the rule's supplementary information sets out at length the view of the Dept. of Justice that the rule comports with due process. The final rule takes effect on Sept. 25, 2002.

The rule establishes a transition period of 180 days, starting from the rule's effective date, in which the BIA is expected to significantly reduce its current backlog of cases. The supplementary information notes that, in anticipation of the rule and by making use of existing "streamlining" procedures, the BIA already has increased its production of decisions, from an average of 2,600 dispositions per month during 2001, to 3,300 in Feb. 2002, and to over 5,200 dispositions per month in recent months. After this transition period, the BIA will be reduced to 11 members, with the attorney general to decide which members will remain. The supplementary information explains that the reduction is intended to enhance the ability of the BIA "to reach consensus on legal issues." It is expected that the BIA will function with two three-member panels and five BIA members deciding cases individually.

The rule authorizes the BIA chair to set up a case management system in which each appeal will be screened by a single member, who will either decide the case or determine that it should be heard by a three-member panel. Three-member panels may be assigned only if necessary for the following:

to settle inconsistencies between rulings by different immigration judges;
to establish precedent construing the meaning of laws, regulations, or procedures;
to correct the decision of an IJ that plainly fails to conform with the law;
to resolve a case or controversy of major national import;
to review a clearly erroneous factual determination by an IJ; or
to reverse a decision of an IJ or the Immigration and Naturalization Service.

The supplementary information published with the rule explains that single member review will become the norm, with three-member panels reserved for cases that present novel or complex issues.

An appellant who seeks to have his or her case reviewed by a three-member panel must identify the specific factual or legal basis for that contention in his or her notice of appeal. This showing must be made in the notice of appeal, and the Notice of Appeal form (EOIR-26) is being revised for this purpose. In pending cases, where the notice of appeal was filed on or before Aug. 26, 2002, the rule gives the respondent until either Sept. 25, 2002, or the due date for respondent's brief, whichever is later, to make this showing.

The final rule also sets forth new standards for summary dismissals. Under the rule, in addition to using any of the grounds currently specified in the regulations for summary dismissal, a single BIA member could summarily dismiss an appeal if, after review of the record, the member determines that the appeal was filed for an improper purpose or to cause unnecessary delay or that the appeal lacked an arguable basis in fact or law. Filing an appeal that is summarily dismissed may also constitute frivolous behavior that can be cause for discipline.

The rule requires the BIA to accept an IJ's factual findings unless they are found to be "clearly erroneous." Except when taking administrative notice, the BIA would not consider new evidence. Accordingly, the rule states that the proper method of developing factual issues is to remand the case to the IJ or the INS. Because of logistical difficulties, the "clearly erroneous" standard for factual findings will only apply to appeals filed on or after the rule's Sept. 25, 2002, effective date.

The rule retains the 30-day deadline for filing a notice of an appeal from the decision of an IJ. However, the appeal will then be referred to a screening panel, where it is to be reviewed by a single BIA member. The reviewing member is to promptly dismiss any appeal subject to summary dismissal under the regulations. In cases that are not summarily dismissed, the screening panel will arrange for completion of the record of proceedings and transcript.

Once a case is transcribed, the BIA is to set a briefing schedule. In cases in which a party is in detention, both parties will be given 21 days in which to file simultaneous briefs. Reply briefs may be filed only by leave of the BIA. In cases not involving detention, the appellant first will be given 21 days to file a brief, and the appellee then will have 21 days to file an opposing brief. For good cause shown, the BIA may extend the time for filing a brief for up to 90 days.

The BIA member who initially reviewed the case, or another member assigned under the case management system, is then to decide the appeal. He or she may affirm the IJ's decision without opinion if the IJ's decision is correct, the errors allegedly committed by the IJ are harmless or nonmaterial, and if

the issues on appeal are squarely controlled by BIA or federal court precedent and are not being applied to novel factual situations, or
the factual and legal issues raised on appeal are not so substantial that the case warrants the issuance of a written opinion in the case.

If the BIA member considers that a written opinion is needed, he or she should issue "a brief order affirming, reversing, modifying, or remanding the decision," unless the BIA member designates the case for review by a three-member panel under the criteria described above.

Except in exigent circumstances, the BIA must dispose of all appeals assigned to single BIA members within 90 days of completion of the record and transcript or within 180 days after the appeal is assigned to a three-member panel. In exigent circumstances, the BIA chair is accorded discretion to grant an extension of up to 60 days.

67 Fed. Reg. 54,878-905 (Aug. 26, 2002).