EOIR's Troubling New Regulations
On July 2, the Department of Justice published final regulations impacting how decisions of immigration judges will be reviewed, both on appeal to the Board of Immigration Appeals and by certification to the Attorney General. I plan to cover the topic in depth in a later article, but I wanted to post my quick take on the fact that the new rule encourages the BIA to decide cases using two sentences of boilerplate language (plus a citation) that provides no insight into its determination process. However, the regs imbue such decisions with a presumption that the Board “properly and thoroughly considered all issues, arguments, and claims raised or presented by the parties on appeal or in a motion that were deemed appropriate to the disposition of the appeal or motion, whether or not specifically mentioned in the decision.”
Just to be clear, the boilerplate denials look like this (in their entirety):
“ORDER: The Board affirms, without opinion, the result of the decision below. The decision below is, therefore, the final agency determination. See 8 C.F.R. § 1003.1(e)(4).”
The above decision is referred to as an “affirmance without opinion,” or “AWO” for short. In its commentary accompanying the publication of the final rule, the Department of Justice addressed a commenter’s concern that the BIA may use such AWOs to quickly deny cases even if a favorable disposition is warranted where “the Board member reviewing the case simply lacked the time or inclination to spend his or her resources writing a reasoned, public opinion for that particular case.’’ The Department responded by summarizing the BIA’s process of having staff attorneys first review the record of proceedings before making a recommendation to the Board member. The Department offered such process as proof that “the use of an AWO does not reflect an abbreviated review of a case, but rather reflects the use of an abbreviated order to describe that review…”
Several facts are at odds with this claim. There is an excellent corps of staff attorneys at the BIA, but over the past few years, those staff attorneys have been pushed to decide more cases in less time or risk discipline or termination. Staff attorneys are encouraged to produce 40 decisions per month that are actually signed by Board Members, but are being assigned increasingly difficult cases to decide. One staff attorney reported needing 18 hours to complete one decision on a very unique legal issue, but was still expected to meet the overall quota. Such extreme pressure would make it tempting if not necessary for attorneys to resort to AWOs simply to keep their jobs. Furthermore, as the present EOIR Director has downgraded the staff attorney positions to entry level with no upward progression, and as the agency is strapped for funds, the Board is extremely short of such attorneys at present, further increasing the pressure on those remaining to decide more cases more quickly.
As for review by the Board Members themselves, there were always those who were known to sign anything handed to them. In a 2007 decision of the U.S. Court of Appeals for the Seventh Circuit, former Judge Richard Posner noted that one Board Member, Ed Grant, “was discovered to have decided more than 50 immigration cases in one day, requiring a decision ‘nearly every 10 minutes if he worked a nine-hour day without a break,’” or 7 minutes per case if he worked an 8 hour day and took lunch. See Kadia v. Gonzales, 501 F.3d 817, 820 (7th Cir. 2007). I hope we can all agree that reviewing a complete record of an immigration court hearing, plus the decision drafted for such case, in seven minutes does in fact reflect an abbreviated review of the case.
In its comments to the new regs, the Department further defended its presumption argument by citing the language from a Ninth Circuit decision, Angov v. Lynch, 788 F.3d 893, 905 (9th Cir. 2015), relating to the reliability of a State Department consular investigation which undermined some of the factual claims of an asylum claim. In that case, the court (in a 2-1 decision) upheld the IJ’s reliance on the report (in spite of its author’s unavailability to testify), stating that such reports “aren't just a collection of statements by disconnected individuals. Rather, they are the unified work product of a U.S. government agency carrying out governmental responsibilities. As such, the report itself, and the acts of the various individuals who helped prepare it, are clothed with a presumption of regularity.”
However, the situation in Angov was not analogous to a BIA decision. In carrying out an investigation to confirm or disprove factual aspects of the asylum claim, the issue of reliability in Angov related to the likelihood of government misconduct: i.e., whether the investigator lied, and in fact had not taken the investigatory steps claimed in the report. The presumption cited by the court was that the State Department officials did their job “fairly, conscientiously, and thoroughly,” that none had a personal stake in the outcome, and that “no one lied or fabricated evidence.” It should also be noted that the Court found that, because the petitioner had not formally entered the U.S., he had no constitutional due process rights, and thus could not challenge the admission of the report on such grounds. And the court conceded that the outcome would have been different had the claim arisen in the Second Circuit, whose case law favored the petitioner’s argument.
However, in the context of the BIA’s review on appeal, the question isn’t whether the single Board member fabricated facts or had a personal stake in the claim. The question is whether the Board Member got it right - i.e. whether he or she properly interpreted the law, and applied that law correctly to the proper facts. History has demonstrated that they often do not, nor would they be expected to when signing a decision every seven minutes.
Yet through the new regulations, the Department of Justice is essentially saying that, due to the crushing case load, just trust that it is doing everything correctly, and defer to its two-sentence boilerplate decisions without requiring further explanation of its reasoning. The retort to this may be found a little later in Judge Posner’s decision in Kadia: “Deference is earned; it is not a birthright. Repeated egregious failures of the Immigration Court and the Board to exercise care commensurate with the stakes in an asylum case can be understood, but not excused, as consequences of a crushing workload that the executive and legislative branches of the federal government have refused to alleviate.” Kadia, supra at 821 (emphasis added). I am not aware of any other court that would expect Circuit Court judges to grant them carte blanche to simply affix rubber-stamp denials on appeals, particularly those involving life-or-death determinations arising in the asylum context. Furthermore, regular readers of my blog or that of my friend Paul Schmidt will know that the BIA errs not infrequently in its interpretation of fact and law. And for the record, the caseload has become far more crushing in the 12 years since Judge Posner penned those words in Kadia.
Take for example a recent decision of the Fourth Circuit. In Orellana v. Barr, No. 18-1513 (4th Cir. May 23, 2019), the court found that the BIA had distorted the evidence of record in order to conclude that the government had been willing and able to control the non-government persecutor by ignoring the many credible instances in which the police did not respond to the petitioner’s call for help, and instead focusing on the few isolated incidents in which they did respond. So had the BIA chosen to decide the case with a two-sentence AWO, should the same circuit court have credited the Board with properly considering and weighing all of the police’s responses and non-responses, without such distortion, because government employees are presumed to properly carry out their duties? The Third Circuit reversed the BIA for its troubling, erroneous overreach in Alimbaev v. Att’y Gen. of U.S., 872 F.3d 188 (3d Cir. 2017), finding the Board to have violated its proper standard of review, and then wrongly reversed based on false insinuation and nitpicking. Had the BIA relied on a two-sentence AWO in that case, should the circuit court have just assumed that none of those errors had occurred, and that the BIA had instead reached the correct conclusion for the right reasons?
The BIA has certainly not earned the deference the Department of Justice believes it deserves based on the regulatory presumption. Hopefully, the circuit courts will waste no time in pointing this out in future appeals of the AWOs we can expect to see frequently from the BIA.
Copyright 2019 Jeffrey S. Chase. All rights reserved.