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

(v)
(vi)
The need to review a clearly erroneous factual
determination by an immigration judge; or
The need to reverse the decision of an immigration judge or
the Service, other than reversal under § 3.1(e)(5). 78
En banc proceedings are possible, but are not favored under the “Procedural Reforms.” 79
The primary purpose of an en banc proceeding is identified by the EOIR as interpretation of the
Immigration and Nationality Act through precedent decisions. 80 Thus, an en banc proceeding is
to “occur only when necessary to address an issue of particular importance or to secure or
maintain consistency of the BIA’s decisions.” 81 The BIA may on its own motion, by a majority
vote of the permanent members, or by direction of the Chairman, consider any case en banc, or
reconsider any case already reviewed by a three-member panel. 82
Elimination of De Novo Review of Factual Issues
The “Procedural Reforms” eliminate the BIA’s de novo review of factual issues,
requiring Members to accept the factual findings of the Immigration Judge, including findings as
to the credibility of testimony, unless they are “clearly erroneous.” 83 The introduction and
consideration of new evidence in proceedings before the BIA is prohibited. 84 The only recourse
for a party asserting that the BIA cannot properly resolve an appeal without further fact-finding
is a motion for remand to the Immigration Judge, or where appropriate to the Service, for
additional fact-finding. 85
The rationale given for this change in the BIA’s authority is EOIR’s assertion that the
vast majority of Immigration Judge decisions are “legally and factually correct.” 86 Thus, the
“Procedural Reforms” recognize “the primacy of immigration judges as factfinders and
determiners of the cases before them.” 87 Under the “Procedural Reforms,” no other independent
de novo factual reviews are permitted.
This change does not, however, preclude the BIA from “reviewing mixed questions of
law and fact, including, without limitation, whether an alien has established a well-founded fear
of persecution or has demonstrated extreme hardship, based on the findings of fact made by the
78 8 C.F.R. § 3.1(e)(6) (2003); see also 8 C.F.R. § 3.1(e)(5) (2003) (providing for reversal by a single-member when “consistent with and
required by intervening Board or judicial precedent, or by an intervening final regulation”).
79 Final Rule, supra note 40, at 54880. To convene the full BIA en banc, a majority of the permanent BIA members constitute a quorum of
the BIA. See 8 C.F.R. § 3.1(a)(5) (2003) (codifying “Procedural Reforms”).
80 Final Rule, supra note 40, at 54880.
81 8 C.F.R. § 3.1(a)(5) (2003).
82 Id.
83 8 C.F.R. § 3.1(d)(3)(i) (2003).
84 8 C.F.R. § 3.1(d)(3)(iv) (2003) (although the board can take “administrative notice of commonly known facts such as current events or the
contents of official documents”).
85 8 C.F.R. § 3.1(d)(3)(iv) (2003).
86 Final Rule, supra note 40, at 54880 (quoting former Board member Michael Heilman’s House testimony that the “overwhelming
percentage of immigration judge decisions . . . [are] legally and factually correct”).
87 Id.
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