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

Summary of “Procedural Reforms” 67
THE “PROCEDURAL REFORMS” (2002)
According to the Department of Justice, the “Procedural Reforms” were intended to
“revise the structure and procedures of the Board of Immigration Appeals, provide for an
enhanced case management procedure, and expand the number of cases referred to a single
Board member for disposition.” 68 The preamble to the proposed rules states that the “Procedural
Reforms” are intended to: (1) eliminate the backlog of approximately 55,000 cases pending
before the BIA, (2) eliminate unwarranted delays in the adjudication of administrative appeals,
(3) utilize BIA resources more efficiently, and (4) allow more resources to be allocated to the
resolution of those cases that present difficult or controversial legal questions. 69
In promulgating the final version of the “Procedural Reforms,” the EOIR stated that the
purpose of the BIA as an entity is to “identify clear errors of fact or errors of law in decisions
under review, to provide guidance and direction to the immigration judges, and to issue
precedential interpretations as an appellate body, not to serve as a second-tier trier of fact.” 70
With this redefined role in mind, the “Procedural Reforms” make a number of changes to the
BIA appeal process:
• The use of single-member review of Immigration Judge decisions
is expanded, making such review the rule rather than the exception
for all cases except those falling within one of five enumerated
categories;
• De novo review of factual issues by the BIA is eliminated; an
Immigration Judge’s factual findings are now subject to a clearly
erroneous standard of review;
• The use of summary dispositions is expanded to include mandatory
dismissal of appeals filed for improper purposes or without
arguable basis in fact, and the ability to affirm without opinion is
increased;
• The size of the BIA is reduced from 23 members to 11; and,
• Various case management practices to be followed by the BIA are
set forth, including rules for simultaneous filing of briefs and time
limits for disposition of appeals.
67 See Final Rule, supra note 40.
68 Board of Immigration Appeals: Procedural Reforms to Improve Case Management, 67 Fed. Reg. 7309, 7309 (proposed Feb. 19, 2002)
(codified at 8 C.F.R. Part 3) [hereinafter Proposed Rule].
69 Id. at 7310. In an advance summary of the proposed rule, a fifth objective – enhancing the quality of BIA decisions – was identified. See
Letter from American Immigration Lawyers Association, to Mr. Charles Adkins-Blanch, General Counsel, EOIR, U.S. DOJ (Mar. 20,
2002) (commenting on the proposed Procedural Reforms) [hereinafter AILA Comments]. This fifth objective was dropped for unknown
reasons from the published version of the proposed rule.
70 Final Rule, supra note 40, at 54880.
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