EOIR Needs Reforms to Make it Fast AND Accurate

by Jonathan D. Montag

Two developments in immigration law occurred last week that relate to each other quite significantly. Firstly, Attorney General John Ashcroft proposed revolutionary changes to the Board of Immigration Appeals (BIA). Also last week, the Ninth Circuit Court of Appeals, in Gui v. INS, 2002 U.S. App. LEXIS 2006 (9th Cir. Feb. 8 2002), reversed the BIA in an asylum case with a remarkable set of facts.

First, regarding the Attorney General's proposed changes to the BIA, the impetus is his frustration with the undiminished backlog in cases before the BIA and long delays in adjudication of cases. The Attorney General quoted William Gladstone's statement, "Justice delayed is justice denied," to accentuate his concern. Mr. Ashcroft's recommendations include changing the BIA's standard of review in cases of discretion from a de novo review to one of reversing the findings of immigration judges only when they are "clearly erroneous." He also proposes one-member panels in discretion cases and close scrutiny of the productivity of Board members. He also proposes firing between eight and twelve board members - a curious strategy to reduce backlogs.

There is a lot to be worried about in these reforms. Mr. Ashcroft's starting point is an assumption - that the BIA administers justice and the delays are denying justice. Having great faith in the competence of his Board members and his Immigration Judges, he is only concerned with their speed, not their accuracy. While speed is certainly a concern of immigration attorneys, at least for me, accuracy is a greater concern. By accuracy, I mean the agencies making the right decisions and conducting proceedings in a fair manner. In far too many cases, the Immigration Judges and BIA make the wrong decisions. In legal matters, the BIA has been reversed with alarming frequency in recent years on very fundamental issues, many regarding the changes in the law in 1996. The BIA has been reversed in the Supreme Court or in the Ninth Circuit in decisions that include mandatory detention, eligibility for 212(c) relief, what is a drug crime, the effect of expungements of drug crimes, and definitions of good moral character and aggravated felony. The Attorney General has been reversed by the Supreme Court in issues that include life-long detention of non-arriving aliens, mandatory detention, and the availability of habeas corpus review. Of course, just because the Justice Department is reversed does not necessarily mean it is wrong - it simply means the Supreme Court and courts of appeals, institutions specialized in statutory and constitutional interpretation, come to different conclusions from the Justice Department about what Congress means when it writes laws and what the Constitution expects of the Justice Department.

Reversals do not only occur in legal issues. Reversals occur frighteningly often in discretionary matters as well - frightening if you believe that wrongful deportations are frightful matters. The 1996 laws may have done away with most discretionary review in removal matters involving crimes (The recent St. Cyr case makes conclusions difficult in this matter.) but judicial review still exists in asylum cases. The circuit courts have been active in disagreeing with the decisions of immigration judges and BIA. It is just such a decision that was the second immigration law occurrence last week. The Ninth Circuit Court of Appeals decision was in Gui v. INS.

Gui is a remarkable case because the INS, Immigration Judge, and BIA got it so unambiguously wrong despite all the administrative checks. The case involved a man seeking asylum from Romania because of persecution he endured there. How the Ninth Circuit opinion in Gui describes the oral decision of the Immigration Judge makes the decision sound almost comical, until you realize that sending Mr. Gui back to Romania would not have been funny. The Immigration Judge apparently concluded that Mr. Gui was not credible and thus unworthy of asylum because he lived to tell of his persecution. The Immigration Judge speculated, according to the Court of Appeals, that if Mr. Gui was really being persecuted by Romanian authorities, he would not have been rear ended at a train crossing or run off the road into a three-foot deep ditch, but rather run off the road at an overpass or simply shot dead.

One would assume Attorney General Ashcroft wants his agencies to perform at the highest levels of excellence. The system of administrative review is one method of reducing the rate of bad decisions. The administrative system of checks and balances failed in the Gui case. I am nearly certain the Attorney General is not going to launch an inquiry into how his asylum office and INS, and more remarkably, his Immigration Judge and BIA let this bizarre case happen. And this case is not an isolated incident. Immigration lawyers are quite familiar with equally outrageous decisions as well as other problems in the administration of justice by the INS, Immigration Courts and BIA. Effective mechanisms simply do not exist to police the decisions and abuses of the INS, Immigration Judges and the BIA - except for judicial review (also not faultless, one should add in fairness to the executive branch) for those fortunate enough to afford it and, all too often these days, patient enough to languish in detention while administrative appeals are exhausted and the federal courts, also backlogged, decide the cases.

It is not irrational for Attorney General Ashcroft to want to reduce the multi-year backlog in BIA adjudications. For aliens with clearly meritorious appeals and where there is an accurate decision, justice delayed is indeed justice denied. However, along with mechanisms to speed up the administrative appeals process must be mechanisms to make the administrative process fairer and the decisions generally regarded as correct ones. Instead of measuring judges and board members on speed alone, tests of their accuracy should be implemented. The decisions of judges and board members should be monitored to see reversal rates and cases monitored to see what kind of problems are evident in the transcripts and decisions. "Undercover" observers should be sent into immigration courtrooms to monitor what is going on. Users of the court, i.e., immigration lawyers, should be approached not only about what is wrong with the present system, as is done now, but who is wrong in the present system. The data obtained should then be used to fix problems. If indeed reforms will result in BIA decisions being made faster, other reforms are needed so those who are eligible for relief or who imminently will be eligible for relief, can ask for it before they must leave the country, particularly when departing the country will result in long-term bars to re-admission.

Congress has already hurt the accurate administration of justice in the immigration arena by restricting judicial review in the interest of speed. Attorney General Ashcroft's goal of speeding up BIA adjudications is a rational goal, but he should do it in ways that increase the accuracy of the system, not further degrade it. In addition to noting that justice delayed is justice denied, William Gladstone also wrote, "National injustice is the surest road to national downfall." Imagine John Ashcroft citing this quotation and then acting on it.

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