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

own behalf; and (3) the right to an individualized determination of her interests. 179 In addition,
due process has been held in this context to guarantee the right to an impartial decision-maker. 180
Litigants who seek to establish that the affirmance without opinion procedure is a
violation of due process point to a series of Supreme Court cases finding that an agency’s
statement of reasons is one of several minimal due process requirements that must be observed in
administrative proceedings in which a liberty interest is at stake. 181 At least two circuits, the
Tenth and the Seventh, have held that BIA decisions which do not provide a meaningful
opportunity for judicial review “can be considered so deficient as to deny the petitioner due
process.” 182
Some courts have held that an alien has no due process right to any administrative appeal
at all. 183 As one federal circuit court said, “[t]he Attorney General could dispense with the
Board and delegate her powers to the immigration judges, or could give the Board discretion to
choose which cases to review.” 184 It is “immigration proceedings as a whole,” rather than one
part of them, that are governed by due process. 185 An alien is entitled to due process in
“deportation proceedings.” 186
Due process challenges to the affirmance without opinion procedure have been denied in
the five circuits that have addressed the issue 187 In Albathani v. INS, for example, although it
noted that “[i]mmigration decisions, especially in the asylum cases, may have life or death
consequences, and so the costs of error are very high,” 188 the First Circuit also noted that an alien
does not have any constitutional right to an administrative appeal at all. 189 It concluded that the
regulations “do not render the scheme a violation of due process or render judicial review
impossible,” 190 apparently because it understood due process requirements to apply to the entire
administrative process as a whole, rather than to the appeal process in an isolated fashion. As
179 See Torres-Aguilar v. INS, 246 F.3d 1267, 1270 (9th Cir. 2001); Abdulai v. Ashcroft, 239 F.3d 542, 549 (3d Cir. 2001); Llana-Castellon v.
INS, 16 F.3d 1093, 1096 (10th Cir. 1994); Rhoa-Zamora v. INS, 971 F.2d 26, 34 (7th Cir. 1992).
180 Torres-Aguilar, 246 F.3d at 1270.
181 See Wolff v. McDonnell, 418 U.S. 539 (1974) (prison disciplinary proceeding); Morrissey v. Brewer, 408 U.S. 471 (1972) (parole
revocation); Gagnon v. Scarpelli, 411 U.S. 778 (1973) (probation revocation); Dunlop v. Bachowski, 421 U.S. 560 (1975) (decision not to
challenge union election); Willner v. Comm. Character & Fitness, 373 U.S. 96 (1963) (admission to state bar).
182 Llana-Castellon v. INS, 16 F.3d 1093, 1098 (10th Cir. 1994); Rhoa-Zamora v. INS, 971 F.2d 26, 36 (7th Cir. 1992); see also Paramasamy
v. Ashcroft, 295 F.3d 1047, 1050-51 (9th Cir. 2002) (tying the due process requirement of an “individualized determination” to a
requirement that the BIA “provide a comprehensible reason for its decision sufficient for us to conduct our review and to be assured that the
petitioner’s case received individualized attention”).
183 Albathani v. INS, 318 F.3d 365, 376 (1st Cir. 2003); Mendoza v. Attorney General, No. 02-13235, 2003 WL 1878422, at *4 (11th Cir. Apr.
16, 2003); Guentchev v. INS, 77 F.3d 1036, 1037-38 (7th Cir. 1996). See also Abney v. United States, 431 U.S. 651, 656 (1977) (holding
there is no constitutional right to appeal in criminal cases).
184 Guentchev, 77 F.3d at 1037-38.
185 Ramirez-Alejandre v. Ashcroft, 319 F.3d 365, 380 (9th Cir. 2003).
186 Reno v. Flores, 507 U.S. 292, 306 (1993).
187 See Carriche v. Ashcroft, ___ F.3d___, 2003 WL 21639040, at *1, *4 (9th Cir. July 14, 2003); Mendoza v. Att’y Gen., No. 02-13235, 2003
WL 1878422, at *4 (11th Cir. Apr. 16, 2003); Abera v. INS, No. 02-2206, 2003 WL 1861566, at *1 (4th Cir. Apr. 11, 2003); Soadjede v.
Ashcroft, No. 02-60314, 2003 WL 1093979, at *2-*3 (5th Cir. Mar. 28, 2003); Albathani, 318 F.3d at 377. The Third Circuit will consider
this issue en banc in Dia v. Ashcroft, No. 02-2460, after having refused to consider it in Tang v. Ashcroft, 2003 WL 1860549 (3d Cir. Apr.
4, 2003) (holding that the summarily affirmed Immigration Judge’s decision was wrong and thus not reaching the constitutionality issue).
188 Albanathi, 318 F.3d at 378-79.
189 Id. at 376.
190 Id. at 377.
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