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Jason Dzubow on Political Asylum

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I recently wrote about Chief Immigration Judge O'Leay's comments at the AILA Conference.  Another EOIR official who spoke was David Neal, the Acting Chairman of the BIA. 


Mr. Neal told us that the Board of Immigration Appeals receives about 3,000 new cases per month.  This is slightly down from years past, and Mr. Neal speculates that this is because there are more detained respondents-detained respondents are less likely to appeal.  Mr. Neal says that detained cases should be processed within 150 days of arrival at the BIA and, in fact, 95% of detained cases are completed in less than 150 days.  The average time for a detained case at the Board is 95 to 100 days. 


Mr. Neal also mentioned the Emergency Stay section of the BIA, and he praised their dedication.  I strongly second that opinion.  The Emergency Stay sections deals with respondents who are in imminent danger of being deported.  I had occasion to interact with the Emergency Stay clerks a few years ago for a Lozada motion to reopen case (a motion to reopen based on the previous attorney's ineffective assistance of counsel).  The Emergency Stay clerks always returned my calls promptly, did what they told me they would do (and in a timely manner), and provided helpful assistance.  Thanks to their assistance, the Board reopened my client's case, he was released from detention, and he ultimately received his lawful permanent residence.  


Mr. Neal also told us that the Board's practice of "affirmance without opinion" has been greatly reduced.  Three years ago, 30% of cases were decided without a written opinion.  Today, only 4% of cases are decided that way, and most of those are bond appeals.  He also said that more decisions are made using a three-Member panel (as opposed to a single Board Member).  Currently, 11% of cases are decided by three Board Members.  A few years ago, 7% of cases were decided by three Members.  Mr. Neal noted that three-Member decisions are uncommon because it takes a lot of resources for three Board Members to work on a single appeal.


Another area that takes more resources is published decisions.  Mr. Neal stated that the Board is issuing more precedent decisions than previously; the numbers are up by 20 or 30% over past years.  He responded to a criticism that the BIA tends to publish precedent decisions in cases where the alien is pro se (without a lawyer).  This situation could be problematic, as an unrepresented alien may not make the most effective arguments in his case, and this could result in more unfavorable precedential decisions.  Mr. Neal stated that the Board prefers not to issue precedential decisions in cases where the alien is unrepresented.  He noted that very few recent precedential decisions involved unrepresented aliens.


Finally, Mr. Neal noted that the trend in the circuit courts was to uphold more BIA decisions.  Over the last few years, reversal rates have declined from 20% to 10%.  The biggest improvements (well, improvements from the BIA's point of view) have been in the Second and Ninth Circuits.


I have a few items on my wish list for the BIA.  For one, I would like to see more precedent decisions.  Such decisions are important because they give more guidance to IJs.  Although precedential decisions require more time and resources, over the long run, if the Immigration Judges have more guidance, they might make better and more consistent decisions.  This would result in less work for the Board.  Second, the average time for a non-detained appeal (at least for my cases) is almost two years.  I know this wait time is substantially lower today than it was 10 years ago, but I would like to see it reduced further.  Finally-and this is more of a pet peeve-I would like the Board to give more time to prepare the appellate brief.  Currently, after an appeal is filed, the BIA sends the transcript of proceedings to the alien's attorney.  The attorney then has three weeks (plus a three-week extension upon request) to file the brief.  I can see no reason for such a short turn around time, especially when it takes the Board close to two years to reach a decision once the brief is filed.  Why not give attorneys more time to file the brief, say 60 days.  That would allow us to prepare better briefs and would accommodate our often busy schedules.

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