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

equire that this statement come from the BIA rather than the IJ.” 200 At least nine of the federal
circuits have held that the BIA can adopt the decision of the Immigration Judge without further
opinion. 201 If the BIA comes to the conclusion that the Immigration Judge “got it right,” it need
not “go through the idle motions of dressing the IJ’s findings in its own prose.” 202 As the D.C.
Circuit held, summary affirmance for the reasons given by the Immigration Judge is “not only
common practice, but universally accepted by every other circuit to have addressed the issue.” 203
The situation presented by the new affirmance without opinion procedures, however, is
distinguishable from that presented in each of these other cases. Where, in the past, summary
affirmance has been approved, the BIA has explicitly adopted the reasoning of the Immigration
Judge, typically using the following language: “based upon and for the reasons set forth in the
IJ’s decision.” 204 Under the affirmance without opinion regulations, on the other hand, the BIA
member is required to state, “The Board affirms, without opinion, the result of the decision
below.” 205 The BIA member must affirm without opinion where all the necessary factors are
satisfied, even where she disagrees with the reasoning of the Immigration Judge. 206 As the First
Circuit found in Albathani, “this means that courts of appeals are forced to review a decision
which may or may not contain the reasoning of the BIA.” 207 As stated above, the First Circuit
concluded that this did not prevent a meaningful review because the courts continue to have the
record and the Immigration Judge’s decision, which the regulations declare to be the “final
agency determination,” 208 upon which to base their review. 209
It is not at all clear, however, that this is the correct result. Litigants challenging the
regulations contend that the Immigration Judge’s decision, regardless of what the regulation
states, is not in fact the final decision of the agency; they argue that the agency has not finally
ruled until the BIA has spoken. At least two circuits have held in the past that the “final order”
of the agency for purposes of review is that of the BIA. As the Third Circuit explained:
Congress has granted [the federal courts] power to review only
“final order[s] of removal.” Because an alien facing removal may
appeal to the BIA as of right, and because the BIA has the power
to conduct a de novo review of IJ decisions, there is no “final
200 Albathani v. INS, 318 F.3d 365, 377 (1st Cir. 2003).
201 See, e.g., Giday v. INS, 113 F.3d 230, 234 (D.C. Cir. 1997); Chen v. INS, 87 F.3d 5, 7-8 (1st Cir. 1996); Prado-Gonzalez v. INS, 75 F.3d
631, 632 (11th Cir. 1996); Urokov v. INS, 55 F.3d 222, 227-28 (7th Cir. 1995); Alaelua v. INS, 45 F.3d 1379, 1382 (9th Cir. 1995); Maashio
v. INS, 45 F.3d 1235, 1238 (8th Cir. 1995); Panrit v. INS, 19 F.3d 544, 545-46 (10th Cir. 1994); Arango-Aradono v. INS, 13 F.3d 610, 613
(2nd Cir. 1994). These circuit decisions, of course, are upholding BIA decisions reached by three-member BIA panels, not single-member
affirmances.
202 Chen, 87 F.3d at 7.
203 Giday, 113 F.3d at 234.
204 Giday, 113 F.3d at 234; Chen, 87 F.3d at 7-8; Prado-Gonzalez, 75 F.3d at 632; Urokov, 55 F.3d at 227-28; Alaelua, 45 F.3d at 1382;
Maashio, 45 F.3d at 1238; Panrit, 19 F.3d at 545-46; Arango-Aradono, 13 F.3d at 613.
205 8 C.F.R. § 3.1(e)(4)(ii) (2003) (emphasis added).
206 8 C.F.R. § 3.1(e)(4)(i) (2003).
207 Id. at 377.
208 8 C.F.R. § 3.1(e)(4)(ii) (2003).
209 Id. at 377-78.
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