By Nicole Narea
Law360 (April 12, 2019, 10:58 PM EDT) — U.S. Attorney General William Barr has proposed speeding up deportation proceedings and encouraging the Board of Immigration Appeals to issue affirmances without opinion, steps the immigration bar fears may hamper due process.
The proposal was initially introduced in 2008 under the Bush administration, but was revived earlier this month when it was added to the Office of Management and Budget‘s unified agenda.
According to the 2008 Federal Register notice, the proposal would allow BIA members to issue affirmances of immigration judges’ decisions without explaining their reasoning and allow only a few members to determine whether a decision can be designated as binding precedent.
Attorneys expressed concern that the rule would diminish the BIA’s ability to serve as a check on immigration judges by allowing them a means of issuing swift, boilerplate affirmations. They were also alarmed by the possibility that the BIA and courts of appeal could be locked into bad precedents.
“These kinds of policies that speed up proceedings have the guise of reducing the immigration court backlog, but in practice, we’ve found that they result in various violations of due process,” Claudia Valenzuela, an attorney for the American Immigration Council, said. “It is difficult to produce a well-reasoned decision when you’re devoting less time to decision-making.”
Boilerplate Affirmances
An affirmance without opinion is a decision issued by a single board member, rather than a panel of members, affirming an immigration judge’s decision without offering any reasoning.
There are currently specific categories of cases for which affirmances without opinion may be issued, but the new rule makes them entirely discretionary, according to Stephen Legomsky, a professor at Washington University School of Law. In doing so, the U.S. Department of Justice is seeking to resolve a circuit split over whether courts of appeal can review the board’s decision to issue an affirmance without an opinion, rather than a fully reasoned opinion, he said.
“DOJ hopes that making the decision whether to use the [affirmance without opinion] process discretionary will insulate that decision from judicial review,” he said, noting that the proposal would not affect appeals courts’ ability to rule on BIA cases on their merits.
Legomsky said that allowing the BIA to issue such discretionary affirmances without opinion, however, is “highly problematic.”
He noted that most of the cases heard by the board are from immigration judge decisions ordering removal and that BIA members will have a “strong incentive to affirm those decisions rather than reverse” if they can do so in a one-line order.
“They can affirm the [immigration judge’s] decision simply by issuing the boilerplate [affirmance without opinion] language required by the regulations,” he said. “Given their crushing caseloads, this incentive is huge.”
Moreover, he noted that the mere act of writing a full opinion forces judges to weigh their reasons carefully to ensure they are convincing, whereas in affirmances without opinion, they can issue “casual affirmances in cases where the stakes for the individual are enormous.”
He said the risk of a legally erroneous decision is even higher because immigration judges are already operating under “highly rushed circumstances.” Last year, the DOJ introduced case quotas for immigration judges tied to their performance reviews, pushing them to decide more cases more quickly in order to reduce the immigration court backlog, which currently stands at over 800,000 cases, according to the Transactional Records Access Clearinghouse at Syracuse University.
Valenzuela said affirmances without opinion might also lead to more appeals to circuit courts, thereby creating another immigration case backlog in the federal court system. She noted that many courts, the Ninth Circuit included, have seen their dockets become increasingly immigration-based.
“It may be a consequence of streamlining proceedings and erroneous decision-making,” she said.
Expanding Precedent
The rule would also lower the bar for issuing precedential BIA decisions. Currently, only the entire board sitting en banc or the attorney general can designate a decision as precedential. The rule would allow only a three-member BIA panel to vote to do so if it circulates an advance copy of its proposed decision to the full board, thus giving it a chance to take up the issue en banc. The decision could become precedent if a majority of the panel deems it so.
But the full BIA can only review so many cases, given the “crush of a massive backlog,” and may not even have sufficient time to fully consider whether proposed precedents are worth taking up en banc, Legomsky said.
“This means that two of the 21 authorized board members will be able to bind not only all [Department of Homeland Security] adjudicators and all immigration judges, but even future BIA panels,” Legomsky said. “The safeguard of advance circulation of the proposed opinion to the full board, while mitigating the risk of a poorly reasoned or objectionable precedent, is an inadequate protection.”
Legomsky said that, in enabling the BIA to issue more precedential decisions, the DOJ is trying to contravene appellate court decisions with which it disagrees. Several courts of appeals, he noted, have held that courts need not give Chevron deference to any legal conclusions contained in non-precedential BIA decisions.
Continuing Sessions’ Legacy
Kevin Johnson, the dean of the University of California, Davis School of Law, said the rule appears to be a continuation of former U.S. Attorney General Jeff Sessions’ administrative changes to the immigration court system. He had pursued similar goals in intervening in BIA cases to take procedural steps to expedite decision-making, as well as imposing case quotas on immigration judges as part of their performance reviews.
Under the Administrative Procedure Act, the attorney general has the power to “certify” decisions issued by the BIA for further review. In recent decades, attorneys general have been expected to use certification sparingly so as to preserve the BIA’s decision-making authority. Sessions, however, certified eight decisions in less than two years.
In so doing, he stripped immigration judges of their ability to “administratively close” cases they deemed unworthy of pursuit and established narrow circumstances under which they may grant “continuances” to pause deportation proceedings, leaving them with little means of controlling their own dockets. The previously closed cases could now go back on immigration court dockets, according to the DOJ, expanding the backlog even further.
Sessions also instructed immigration judges to resolve cases quickly and implemented a new case quota system by which they would be evaluated. Those developments, coupled with the BIA decisions restricting the discretion of immigration judges, have led to a renewed push to make immigration courts independent of the DOJ, attorneys said.
As evidenced by Barr’s rule, the same administrative policy goals seem to have carried over into his tenure, Valenzuela said.
“It may not matter who the players are,” she said. “This is an agenda that has long been in the works.”
–Editing by Breda Lund and Michael Watanabe.
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