BIA resists the normal way a court controls its docket.

Thursday, August 28th, 2014
By: Jonathan MontagJ.D.

A few months ago I attended a talk by a judge on the 9th Circuit Court of Appeals. She stated that about two thirds of immigration appeals before the court are resolved before the cases are briefed. Because of active efforts by the court to reduce the docket, by compelling mediation, by reviewing cases initially to see if they are properly filed, and by ruling on initial motions to dismiss, the court is working to control its docket.

Recently, I received a notice from the Board of Immigration Appeals, the administrative appellate body above the immigration courts. Regarding motions to remand – motions to send the case back to the immigration court, the Board wrote:

The Board generally does not separately adjudicate motions to remand. Due to the Board’s heavy caseload, it cannot be predicted when a decision will be rendered in this case. If a briefing schedule has been set in this matter, the filing of [a] motion to remand does not change the deadlines. The briefs must arrive at the Board by the dates set in the briefing schedule.

Hypothetically, suppose a motion to remand is filed with the Court of Appeals and at the same time, in another case, a motion to remand is filed with the Board of Immigration Appeals. Now, suppose the opposing parties notify the Court of Appeals and the Board of Immigration Appeals that they do not oppose the remand motions.

In the case of the Court of Appeals, desiring to reduce its docket, will review the motion and non-opposition, and because the parties agree and assuming no glaring error has been discovered when the case is reviewed, remand the case. The case then moves to the next forum and can be presumably be resolved quickly. The Court of Appeals rids itself of a case, a decision is made quicker, needless briefing that no one will read is eliminated, and the entire system becomes more efficient and cheaper to the litigants and to the taxpayers that pay the judges and pay the government’s litigators.

In the case of the BIA, despite an unopposed remand motion, the case sits on the shelf. The parties get no resolution. The BIA’s docket remains large, meaning the case will take even longer to be looked at. The BIA may even require briefing on issues that the parties have indicated do not need resolution. The BIA’s docket remains large, the case is not resolved, and the system remains bogged down.

The BIA should reconsider its policy of letting easily-resolvable cases fester on its storage shelves. Culling the easily resolved cases will speed up justice and save money. It may even make participants in the system a little less cynical about how the immigration court and BIA function. Maybe. Posted August 28, 2014.


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