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The Battle in the "Times" over the Immigration Court; By Danielle Beach-Oswald

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A battle is brewing in the New York Times over the performance of the Executive Office of Immigration Review.  On January 2, 2012, an Editorial in the New York Times issued a rather scathing review of the Board of Immigration Appeals.  The opinion piece in the New York Times was based on Judulang v. Holder.  In the 9-0 decision written by Justice Kagen, the Supreme Court stated that the BIA's approach is "arbitrary and capricious" and that an "when an administrative agency sets policy, it must provide a reasoned explanation for its action.  This is not a high bar, but it is an unwavering one.  Here, the BIA failed to meet it."


In Judulang, the Court addresses whether a lawful permanent resident who had been in the United States for nearly 30 years could be removed based on a 1989 voluntary manslaughter conviction.  Under the older version of INA 212(c) which was in place when Judulang was convicted of involuntary manslaughter, there is a "waiver of excludability" which would allow a noncitizen to enter the country despite a criminal conviction.  The Supreme Court reversed the BIA and 9th Circuit's upholding  arguing  that the BIA used false reasoning in trying to find a comparable ground for a "crime of violence" with the crime that Judulang actually committed.  The New York Times opinion on the case was harsh and stated, "The board's decision-making process reflects the dysfunction of the overburdened immigration system, which is in need of a complete overhaul."


Juan Osuna, Director of the Executive Office for Immigration Review, responded in a letter to the New York Times on January 9.  Osuna asserted that the BIA does more than rubber stamp IJ opinions, as the New York Times article claimed.  Additionally, Osuna also noted that the Board has largely eliminated the use of "affirmance without opinion."


This fight in the New York Times however doesn't mention one of the critical issues - the need for some reform in the immigration court system.  The dockets of immigration judges are lengthy and often dilatory. Syracuse University noted last year that the current wait time for the Immigration Court system is over 300 days.  In certain cities, such as New York and Los Angeles, the wait time was over 650 days.  There clearly is a need to hire more immigration judges to reduce the dockets or eliminate the issuance of Notice to Appear charging documents that may often not be necessary.  Additionally, IJs should be staffed with clerks that are well trained in country conditions for those that are seeking relief as an IJ is only able to make a proper decision if they truly know the situation in the country of nationality.


Although the BIA may be innundated with appeals, their structure is also in need of some change.  15 members may not be enough, three member reviewing panels may not be enough, and the lack of oral arguments that the BIA grants each year is minimalistic.   A written brief can only provide limited information and  with Board members unable to ask even clarifying questions, how can justice be properly served?

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  1. Nolan Rappaport's Avatar
    I worked at the Board as an attorney advisor for more than 20 years. You may be right that more than 15 Board Members are needed to properly handle the current case load, but an underlying assumption in making that assertion is that it is possible to fill the additional positions with qualified people. If you look at the history of new Board members, you will see that some of them have come to the Board without any immigration law experience and many without strong backgrounds in immigration law. Incidentally, the same thing has happened with the appointment of new immigration judges.

    A better solution would be to reduce the caseload. I suggest considering the method that was used at the Occupational Safety and Health Review Commission when I worked there. Appeals from administrative law judges would not automatically be reviewed by the Commission. They would be screened first. If any of the Commissioners directed review, the appeal would get a full review. If not, the judge's decision would become final by operation of law in 30 days without being reviewed other than when the initial screening was done.

    Of course, it would be better to do full, thoughtful reviews of every case; but that isn't happening now and without enough qualified people to do it, it never will happen. It just isn't possible when the Board has so many cases, and the cases have already been reviewed by an immigration judge in removal proceedings. Although I know unqualified judges were appointed, I reviewed thousands of cases and was very impressed generally by the care that cases normally received at the hearings.

    If the weak appeals are screened out without a Board review, I think the volume would be low enough to make it possible to do justice to the ones that are reviewed. And it would make it easier for the Board members to spend a substantial amount of their time working on decisions that will become published precedents. I think that providing the guidance of published precedents should be the main function of the Board.
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