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Letters to the 107th Congress

February 6, 2002

Rep. George W. Gekas
Chair, Subcommittee on Immigration and Claims
Committee on the Judiciary
U.S. House of Representatives
Washington, DC 20510

Dear Mr. Chairman:

The American Bar Association is keenly interested in the quality of the American system of justice, including the rules of practice before the immigration courts and Board of Immigration Appeals. Decisions in the immigration context often have profound implications for American citizens as well as for noncitizens.

Access to fair hearings before impartial administrative immigration judges and independent administrative and appellate court review is vital for providing due process and diminishing the opportunity for arbitrary decisions. A desire to improve the fairness of decisionmaking in immigration cases led to significant reforms in 1983 when the Board of Immigration Appeals and Executive Office for Immigration Review were combined into one agency within the Department of Justice, separate from the Immigration and Naturalization Service. Since that time, the immigration law has been amended on numerous occasions, the corps of immigration judges has been enlarged, and the caseload of both the immigration courts and Board of Immigration Appeals has continued to grow.

While this Subcommittee was organizing this oversight hearing, the Department of Justice and the National Association of Immigration Judges were, independent of each other, also examining aspects of the functioning of the Executive Office for Immigration Review. The ABA has not yet had the opportunity to analyze fully the proposals of each group; however, we care a great deal about the operations of the immigration court system and how well it dispenses justice to the unique and often vulnerable population of noncitizens who seek justice before it. We have many concerns regarding how the Department's proposal would impact the independence of the judiciary and the efficiency of immigration court system.

It is important to recall that the immigration laws under which cases come before the Board have dramatically changed since 1996, and in many significant ways. The Board's primary functions are to provide guidance to immigration judges below through the interpretation of the law; to assure uniformity and consistency of decisions rendered by the 200-plus immigration judge corps; and to assure the correctness of the results in individual cases. In addition to these objectives, the Board faces the challenge of providing timely review of all appealed decisions with limited resources. The DOJ proposal to reduce the number of Board members strikes us as an unusual approach, because the impetus for reform is the burgeoning caseload. When the INS asylum backlog grew to the hundreds of thousands in the 1990's, the Department increased personnel and accelerated processing of the newest cases while working through the older ones. This appears to have been a successful recipe for dealing with a staggering backlog and may be a better approach for the Board to consider.

Nearly all of the cases before the Board involve individuals who are not familiar with U.S. laws or our judicial system, and who often do not speak English. A significant portion of these cases, moreover, involve indigent individuals with little education who have no legal assistance and represented themselves below in an adversarial proceeding where the government was represented by an experienced trial lawyer. At the same time, the interests at stake for these individuals are great - the potential separation of family and loss of all that makes life worth living. In this context, the quality of the administrative appeal is crucial.

Despite the stakes involved with immigration cases, there is only one administrative evidentiary hearing before the case reaches the Board. In an overwhelming majority of appeals, the Board is the court of last resort and its decision is final. This can be true for a number of reasons: the parties accept the Board's decision; there is statutorily no opportunity for review beyond the Board; or the parties lack the resources to pursue judicial review, when available.

We have concerns that the combination of changes proposed, including accelerated and simultaneous briefing schedule, single member review and summary dismissal, may amount to a denial of review. We recognize the Board's burgeoning caseload and administrative burdens and we share this subcommittee's desire to increase the Board's efficiency. However, we do not believe that the answer is to integrate the Board and/or immigration judge corps into the INS. The separation of the immigration judges from the INS in the 1980s immeasurably improved the quality of the immigration court system.

Since we have concerns about the Department's current plan, we urge the Department to refrain from moving forward with this approach. While it is a good place to begin discussion, we suggest that the Department convene a process to bring together the interested constituencies to examine alternative approaches and models for administrative review. We offer our assistance in crafting a more appropriate solution while preserving due process.

Thank you for consideration of these views.


Robert D. Evans
Director, Governmental Affairs Office

107th Congress Letters Home

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