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

Delay is bad for law-abiding aliens, particularly when they are detained throughout the
course of appeals, and particularly when they have children. 44 Delay is also bad for all
Americans, when it allows those who threaten our safety or security to remain here when they
should be expelled. 45
The Department of Justice also believes that the backlog creates an “unfair enforcement”
of immigration laws, harming those aliens who may have a strong basis for appeal while
permitting some respondents to remain in the United States illegally to “acquire additional
equities and to abuse the immigration system.” 46
Previous Efforts to Combat the Backlog
Various efforts have been made to combat the backlog of cases before the BIA. The
earliest of these primarily involved increasing the number of positions on the Board from 5 to
23. 47 Other efforts included attempts by the BIA Chairman, in 1995-2000, to implement and
enforce time limits. 48 As noted above, these efforts were not very successful; the backlog
increased by close to 30,000 cases during the 1995-1999 period alone.
Summary Affirmances
THE “STREAMLINING RULES” (1999)
In 1999, the BIA began a new attempt to deal with its rapidly increasing caseload. 49 Its
so-called “Streamlining Rules,” set forth in 8 CFR Part 3, became effective on October 18,
1999. 50
The “Streamlining Rules” made a number of changes in BIA procedure. Single BIA
members were empowered to dispose of a wide range of “procedural or ministerial issues.” 51
Most importantly, under the “Streamlining Rules,” permanent BIA members could act alone in
affirming certain decisions of Immigration Judges and the Service without opinion. 52 The BIA
44 See EOIR Hearing, supra note 19, at 29 (statement of Stephen Yale-Loehr); see also Ramirez-Alejandre v. Ashcroft, 319 F.3d 365, 385 (9th
Cir. 2003) (noting that the court had repeatedly “directed the BIA to give particular attention to whether a deportation will disrupt the lives
of children, especially those who have remained in the country during their early formative years due to the delay caused by the INS or
BIA.”) (citing Casem v. INS, 8 F.3d 700, 703 (9th Cir. 1993); Gutierrez-Centeno, 99 F.3d 1529, 1534 (9th Cir. 1996); Prapavat v. INS, 662
F.2d 561, 563 (9th Cir. 1981)).
45 See FAIR Comments, supra note 37, at 4.
46 See EOIR Hearing, supra note 19, at 20 (statement of Kevin Rooney).
47 See id. at 4 (statement of the Honorable Sheila Jackson Lee, a Representative from the State of Texas).
48 See Schmidt Memorandum, supra note 12.
49 The procedural rules governing the BIA appeal process prior to the enactment of the “Streamlining Rules” were codified at 8 C.F.R. §§ 1.1-
3.11 (1999) and are attached as Appendix 15.
50 Executive Office of Immigration Review; Board of Immigration Appeals: Streamlining Rules, 64 Fed. Reg. 56,135 (codified at 8 C.F.R.
Part 3) [hereinafter Streamlining Rules]. A copy of the “Streamlining Rules,” as promulgated in the Federal Register and effective October
18, 1999, is attached as Appendix 16.
51 8 C.F.R. § 3.1(a)(1) (2000) (codifying “Streamlining Rules”).
52 8 C.F.R. § 3.1(a)(7)(i) (2000).
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