Study of Board of Immigration Appeals Procedural Reforms - ILW.com

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the last two years had no immigration background or expertise. It took them time to learn a new body of law and become proficient at their work, and during this time the number of cases which could otherwise be reviewed and adjudicated decreased. 24 In the Justice Department’s Public Affairs Office press release of September 25, 2001, the EOIR announced the professional backgrounds of three appointments to the BIA (Kevin A. Ohlson, Frederick D. Hess, and Roger Pauley). The two common denominators for these three appointments seem to have been a significant period of service on law enforcement and prosecutorial functions within the Department of Justice Criminal Division combined with the absence of any prior immigration law experience or background. Mr. Pauley had served more than 27 years, Mr. Hess had served more than 19 years, and Mr. Ohlson had served more than a decade in the Criminal Division before their respective appointments to the BIA. None appears to have previously held any other administrative or immigration law functions in the federal government. On the other hand, during 2003, five experienced BIA members with immigration expertise have “left” or shortly will “leave” the BIA. The circumstances of their departures were not disclosed. Paul Schmidt had a long career in the INS general counsel’s office, then eight years experience on the BIA, including six years as chairman. Gustavo Villageliu, a Cuban immigrant himself, had been practicing immigration law since 1978, as a BIA staff attorney, then an Immigration Judge, then a BIA Member. Cecilia Espenoza, before joining the BIA, had been a professor of immigration law and legal services attorney. Noel Brennan, prior to being appointed to the BIA, had been a deputy assistant attorney general in the Department of Justice, responsible for community justice programs, and a longtime pro bono and legal services lawyer. John W. Guendelsberger was also a professor of immigration law and legal services lawyer before his appointment to the BIA. Historical Data THE BOARD OF IMMIGRATION APPEALS BACKLOG During the 1990s, the United States had record immigration: 9,095,417 people immigrated, more than any decade in American history. 25 Also during the 1990s, the number of aliens expelled from the United States more than quadrupled. 26 Most of these aliens were expelled because they entered the United States illegally, were unauthorized to stay in the United 24 EOIR Hearing, supra note 19, at 9-10 (2002) (statement of the Honorable Lauren R. Mathon). 25 See Appendix 4. 26 See Appendix 5, 6. 12
States, or committed criminal acts while in the United States. 27 In any event, the numbers of expulsion proceedings skyrocketed, from 30,039 in 1990 to 185,731 in 2000. 28 At the BIA, the number of appeals filed per year more than doubled (from 12,823 in 1992 to 29,972 in 2000). 29 The number of appeals decided per year increased as well, but did not double (from 11,720 in 1992 to 21,498 in 2000). 30 The backlog, as a result, grew significantly during the 1990s (from 18,054 in 1992 to 63,763 in 2000). 31 Causes of the Backlog The backlog was caused by a number of factors, principally: (1) the increased case load at the BIA; (2) the frequent, significant changes in United States immigration laws; and (3) the number of members and other staffing issues at the BIA. While each of these will be addressed here in turn, and independently, it is likely that they worked in combination to create the backlog. The Increased Caseload at the BIA One factor commonly mentioned as leading to the backlog is the increasing number of new appeals that the BIA receives. The BIA case load has increased significantly over the past ten years. A large part of this increase appears due to the increase in the number of Immigration Judges from 75 Judges in 1987 to over 225 Judges in 2003. 32 The number of judges whose work is reviewed by the BIA, therefore, has tripled. By FY 2001, the larger cadre of Immigration Judges was able to handle more than 284,000 matters. 33 The rate at which Immigration Judge decisions were being appealed to the BIA has also increased: from 10.9% in FY 1996 to 15.7% in FY 2001. 34 Both factors (a 300% increase in the number of Immigration Judges and a 50% increase in the rate at which their decisions are being appealed) have led to a steep increase in cases being handled by the BIA. Changes in United States Immigration Law 27 See Appendix 7. 28 See Appendix 6. 29 See Appendix 8. 30 See Appendix 9, 10. 31 See Appendix 11, 12, 13. 32 EOIR Hearing, supra note 19, at 9 (statement of the Honorable Lauren Mathon). 33 See id. at 21 (statement of Kevin Rooney). 34 See id. at 22 (statement of Kevin Rooney, Director, Executive Office of Immigration Appeals). 13
Page 3 and 4: TABLE OF CONTENTS TABLE OF APPENDIC
Page 5 and 6: TABLE OF APPENDICES 1. Board of Imm
Page 7 and 8: SOURCES AND METHODOLOGY The America
Page 9 and 10: absentia under such exceptional cir
Page 11 and 12: The BIA has nationwide jurisdiction
Page 13: majority vote of the permanent BIA
Page 17 and 18: Congress that the increase in the n
Page 19 and 20: Chairman was empowered to “design
Page 21 and 22: From the data that was available, A
Page 23 and 24: Single-Member Review The “Procedu
Page 25 and 26: immigration judge.” 88 Questions
Page 27 and 28: cause, extend the period for filing
Page 29 and 30: who may face permanent separation f
Page 31 and 32: esulted from the summary affirmance
Page 33 and 34: “PROCEDURAL REFORMS”: LEGAL CON
Page 35 and 36: manner.’” 169 What constitutes
Page 37 and 38: discussed more fully in the followi
Page 39 and 40: order” until the BIA acts. Accord
Page 41 and 42: squarely controlled by existing Boa
Page 43 and 44: Although a stated goal of the new r
Page 45 and 46: seven to ten more occasions. 260 Mr
Page 47 and 48: Mr. Herbert appealed to the BIA. Th
Page 49: In remanding, the First Circuit hel
Page 94 and 95:
Appendix 5 Number of Aliens Expelle
Page 96 and 97:
Appendix 7 Reasons for Expulsion, 1
Page 98 and 99:
Appendix 9 BIA Appeals Decided, 199
Page 100:
Appendix 11 BIA Backlog, 1992-2002
Page 139:
Appendix 20 Total BIA Cases Receive
Page 238 and 239:
Appendix 25 BIA Summary Decisions,
Page 240 and 241:
Appendix 27 Number of Appeals of BI
Page 242 and 243:
Appendix 29 Number of Immigration S
Page 244:
Appendix 31 Rise in Backlog at Fede
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