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

the Department’s enactment of the Procedural Reforms was “not arbitrary or capricious, or
otherwise in violation of the law.” 145
The plaintiffs had argued that three aspects of the final rule were arbitrary and capricious:
(1) “the decision to adopt the streamlining provision as the dominant method of adjudication;”
(2) “the provision reducing the size of the Board from 23 members to 11;” and (3) “the sixmonth
transition period designed to reduce the Board’s backlog.” 146 The court addressed each of
these issues in turn.
First, the court held that the Department made a reasoned decision to adopt the expanded
streamlining procedures articulated in the “Procedural Reforms” based upon three factors which,
although “not altogether free from doubt,” tended to support the Department of Justice’s
decision: (1) “Andersen’s favorable audit of the streamlining initiative,” (2) “Congressional
testimony reflecting a continued need for Board reform,” and (3) “the Department’s own internal
statistics and assessment.” 147 The court concluded that the Department’s “decision to expand the
streamlining procedure to most Board cases is supported ‘by substantial evidence.’” 148
Second, the court held that the Department of Justice’s decision to reduce the size of the
BIA was influenced by “two important intervening events . . . that convinced the Department to
adopt a revised policy of Board reduction: Arthur Andersen’s favorable audit of the 1999
streamlining project and the February 6, 2002, hearing on immigration reform before the House
Subcommittee on Immigration.” 149 It found that based upon these two events, the Department’s
conclusion to reduce the size of the BIA was reasonable and appropriate as the Department had
“examine[d] the relevant data and articulate[d] a satisfactory explanation for its action.” 150
Finally, the court examined the challenge to the six-month transition period. The court
rejected the plaintiffs’ argument “because its statistical basis is flawed and does not recognize the
positive impact streamlining has already had on the case backlog.” 151
At the time this Study was released, there had been no appellate review of the district
court’s judgment or reasoning.
145 See id. at *21.
146 Id. at *9.
147 Id. at *10.
148 Id. at *15.
149 Id. Reliance on the Andersen Report as support for the “Procedural Reforms” seems misplaced. The Andersen Report actually concluded
that the “Streamlining Rules” had been an “unqualified success” and “should remain viable and can be sustained…” That report does not
discuss or support a reduction in the number of BIA board members. See Andersen Report, supra note 74. The Andersen Report does not
support the 2002 rule changes; rather, the Andersen Report seems to provide a reason not to promulgate them.
150 CAIR Opinion, supra note 143, at *19 (quoting Motor Vehicles Mfrs. Ass’n v. State Farm Mut. Automobile Ins. Co., 463 U.S. 29, 42
(1983)).
151 Id. at *20. The court also noted that because the extended transition period was close to completion, plaintiffs’ challenge to this aspect of
the Procedural Reforms was not timely. Id. at *21, n.23.
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