Washington, DC – The American Immigration Lawyers Association (AILA) will continue to press for meaningful appellate review in immigration cases, after a Federal Court on May 21 denied a challenge to the Attorney General’s decision making process that has lead to a radical restructuring of the Board of Immigration Appeals (BIA).

“The BIA is often the court of last resort for many people and its decisions can mean the difference between life and death, family unity or separation,” said AILA President Jack Pinnix. “Any changes to the court should reflect these facts and should involve increasing the number of Board Members, improving the screening of cases that have limited factual or legal disputes, and instituting programs to provide free legal representation in meritorious matters. Yet, the Attorney General’s changes go in exactly the opposite direction,” said Pinnix.

AILA and the local Capital Area Immigrants’ Rights (CAIR) Coalition had challenged the BIA “reform” regulations, which were published on August 26, 2002 and went into effect on September 25, 2002, by bringing an action under the federal Administrative Procedures Act (APA) that governs agency rulemaking. The regulations increase the use of single BIA member decisions, including affirmances without opinion, reduce the number of BIA members to 11 from 23, and establish a six-month transition period for clearing out the backlog of tens of thousands of cases. “These changes were implemented with the alleged goal of backlog reduction, but ignored the positive results of the Streamlining Pilot Project the BIA already had implemented to eliminate the backlog without diminishing due process protections,” continued Pinnix.

In their lawsuit, AILA and CAIR argued that the government violated the APA because it had not engaged in reasoned decision making prior to promulgating the final rule. The court ruled that it had jurisdiction to review the notice-and-comment promulgation of the BIA's final rule, but concluded that the government had engaged in reasoned decision making. The case is CAIR v. US DOJ, CV No. 02-2081 (D.D.C. May 21, 2003).

"This decision takes the fight against the new regulations into the appeals courts, where individuals subject to the new summary decisions are arguing that the process deprives them of meaningful review," said AILA President Pinnix. “The Legal Action Center of the American Immigration Law Foundation (AILA’s sister organization) has filed amicus briefs in more than 35 of these individual cases.” On May 28, 2003, the Third Circuit Court of Appeals, sitting en banc, will hear oral argument in one of these cases, Dia v. Ashcroft.

In Dia, a single member of the BIA summarily affirmed the flawed decision of an immigration judge denying his application for asylum. “Given the life and death consequences of asylum cases, it is crucial that the BIA engage in a careful, individualized review of each case,” said Pinnix. In Dia, not only did the BIA member fail to correct an erroneous decision by the immigration judge, but the member provided no explanation for upholding the decision, thereby calling into question whether the member engaged in a meaningful review.

Nadine Wettstein, Director of the American Immigration Law Foundation’s Legal Action Center, will argue on behalf of the amici curiae. “Congress needs to stop the Attorney General’s efforts to gut the immigration appellate process of any meaningful review. It is vitally important that immigration courts be independent, impartial and include meaningful checks and balances. Due process requires no less. Accordingly, AILA urges the creation of an independent immigration court system that can assure that each person has his or her day in court and review before an impartial administrative body,” concluded Pinnix.

Posted on AILA InfoNet at Doc. No. 03052744 (May 27, 2003)