On August 23, 2002, the Attorney General issued a Final Rule that restructured
the Board of Immigration Appeals (BIA or Board). The rule revised the organization
and procedures of the Board to enable it to reduce delays in the administrative
review process, eliminate the existing backlog of cases, and focus more attention
and resources on those cases presenting significant issues for resolution. The
following summarizes the status of this initiative to date.
The restructuring regulation has been successfully implemented and has allowed
the Board to allocate its limited resources to adjudicate the more than 40,000
new appeals and other matters filed annually. The regulation was designed to address
extensive backlogs and lengthy delays, which encouraged abuse and delayed decisions
to aliens who merited relief from deportation. The pending caseload has been steadily
reduced from 56,000 when the restructuring initiative was announced to approximately
32,000 by September 2004.
The regulation expanded the existing streamlined procedures to resolve more cases
with single Board Member decisions. Under the restructuring regulation, all cases
are adjudicated by a single Board Member unless they fall into one of six specified
categories, which are handled by a panel of three Board Members. A single Board
Member decision can be quite detailed, while many three Board Member cases can
be short and straightforward. Furthermore, the regulation mandates the use of
summary affirmances (or affirmances without opinion (AWO) as they are also known)
in certain instances. Only about one-third of the Board’s decisions
fall into the category of AWO.
Federal courts have rejected every challenge brought against the restructuring
regulation. Each circuit has issued a decision holding that the regulation is
permissible and does not violate due process. In fact, most, if not all, of the
courts where challenges were filed employ similar summary affirmance mechanisms
in the interest of efficient, yet effective jurisprudence.
the Federal Circuit Courts
It is the rate of appeal (up from an historical 5 percent to close to 25 percent)
that primarily accounts for the upsurge in petitions for review in the Federal
circuit courts. For example, monthly petitions for review previously numbered
about 125, but now range from 1,000 to 1,200 since the new procedures have taken
effect. The Board’s increased case completions account for a rise of about
200, and the remaining 800 to 1,000 new filings are due solely to the higher percentage
of cases appealed.
Following implementation of the new regulation, the increase in the rate of appeals
from Board decisions was attributable, in large measure, to challenges to the
restructuring regulation. However, new petitions for review have not dropped off
despite the courts’ rejection of challenges to the regulation. There is
no evidence that the affirmance and reversal/remand rates of BIA decisions has
changed significantly in the wake of the restructuring regulation. This indicates
that the quality of the Board’s jurisprudence has remained consistent and
unaffected by its increased use of AWOs and single Board Member review as required
by the regulation.
A factor which may be contributing to the rise in the rate of appeals is the reduced
time involved in completing cases appealed to the Board. Thus, for those aliens
who wish to postpone deportation, filing an appeal to the circuit courts may be
a much more attractive option than in the past. To the extent that the courts
are routinely granting stays of deportation pending their review, the incentive
to file an appeal and to request a stay will be high.
Because only the alien, and not the Government, may appeal adverse decisions to
the Federal courts, the courts never see cases where an alien has been granted