Lawsuit Challenges BIA Restructuring Regulations

IMMIGRATION LAW & POLICY

Removal Procedures and Defenses

LAWSUIT CHALLENGES BIA RESTRUCTURING REGULATIONS
Immigrants' Rights Update, Vol. 16, No. 7, November 22, 2002

Two organizations concerned about preserving immigrants' rights have filed a lawsuit to challenge the final rule issued by Attorney General John Ashcroft to reduce the size of the Board of Immigration Appeals and streamline its work. The lawsuit, filed in federal district court in the District of Columbia, is based on the Administrative Procedure Act (APA). The plaintiffs contend that in issuing its final rule to implement the changes, the Dept. of Justice failed to properly consider public comments. The suit further contends that the agency acted arbitrarily and capriciously in establishing a rule that dramatically changes the structure and procedures of the BIA.

The DOJ issued a proposed rule to reduce and restructure the BIA on Feb. 19, 2002. The agency proposed to reduce the BIA from 23 to 11 members, with the reduction to be complete at the end of a six-month transitional period following the final rule's effective date. The agency also proposed to change significantly the procedure for filing and pursuing appeals, eliminate the BIA's jurisdiction to review factual findings de novo, and limit appellate review in most cases to review by only a single BIA member.

Despite providing only a 30-day period for public comment, the proposed rule elicited detailed comments from more than 68 organizations. The comments mostly expressed serious concerns with and objections to the proposal. Nonetheless, on Aug. 26, 2002, the DOJ issued a final rule which, in most respects, adopted verbatim the language of the proposed rule (for further background on the proposed rule and the final rule, see "Attorney General Proposes Major Changes at BIA," Immigrants' Rights Update, Feb. 28, 2002, p. 1, and "Attorney General Issues Final Rule to Reform BIA, Immigrants' Rights Update, Sept. 10, 2002, p.1).

The plaintiffs contend that in issuing the final rule, the DOJ failed to respond reasonably to significant comments and adverse evidence, departed without explanation from its own past practices, and failed to provide reasoned and consistent explanations for important aspects of the rule. The plaintiffs also contend that a series of memoranda issued by the acting chair of the BIA prior to the adoption of the final rule constituted an evasion of the APA's notice-and-comment requirements. The memoranda expanded the categories of cases subject to "summary affirmance" under the 1999 "streamlining regulations."

The lawsuit was filed on Oct. 25, 2002. The plaintiffs in the case are the Capital Area Immigrants' Rights Coalition and the American Immigration Lawyers Association.