Brian D. Lerner Immigration Attorney & Deportation Lawyer Blog

Question: I lost at the Immigration Court level. I appealed the decision about six months ago to the Board of Immigration Appeals (BIA). Now, I just received a decision of the BIA. The entirety of the decision essentially states that the case is denied without giving any reasoning whatsoever. There is nothing else written on the decision. There is no reasoning to the opinion and no discussion as to why it was affirmed without an opinion. I do not know what to do at this point. I do not know how I can appeal as I cannot tell why the BIA denied the case. Can you help?

Answer: Unfortunately, it is becoming more common for the BIA to issue decisions in this manner. It is very unfair as it does not discuss any merits to the appeal, nor does it discuss why they agree with the Immigration Judge. This is a practice that has become all but common.

Over the past several months, the courts of appeals have issued several decisions directly (and indirectly) addressing the BIA’s summary affirmance without opinion (AWO) procedure. The AWO procedure allows a single BIA member to affirm the underlying immigration judge’s decision, without giving any reasons and without adopting the reasoning of the immigration judge.

To date, all of the courts to address AWO’s have turned aside challenges to the validity of the regulations. Nonetheless, most of the published decisions do not foreclose all challenges to AWO’s. Many of the AWO-related court decisions address only limited aspects of the AWO procedure or are limited to the facts of the case.

Question: Does this mean that I should appeal to the Circuit Courts?

Answer: Yes, you should do what is known as a Petition for Review to the Circuit Courts of Appeal. While people have been trying for months to get the AWO overturned, there have not been any conclusive decisions on this matter. Therefore, it is necessary to read closely the controlling cases in your circuit and argue for a narrow interpretation of the AWO cases.

In particular, one argument that has not been foreclosed is that the BIA failed to comply with its own regulations because the case did not meet the criteria for an AWO decision.

Essentially, the BIA member must find that the case satisfies three regulatory criteria before he or she can issue an AWO decision. Specifically, the BIA member must find 1. That the result reached by the immigration judge was correct; 2. That any errors in the decision below were harmless or nonmaterial; and either 3. (a) That the issue on appeal is squarely controlled by existing Board or federal court precedent and does not involve the application of precedent to a novel fact situation; or (b) That the factual and legal questions raised on appeal are not so substantial that a written decision is warranted.

In order to show that the BIA is not complying with its own regulations, it is important to brief fully the merits of your case. Thus, although there necessarily will be additional reasons for remanding the case to the agency, urge the court to remand for the reason that the BIA member did not comply with the AWO regulations.

Therefore, while it will not be easy, you should not give up and keep fighting to try to get the summary decision without opinion overturned. Otherwise, the BIA will simply be a rubber-stamp for whatever the judge did and not a real appellate body.

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Question: I appealed to the Board of Immigration Appeals (BIA). The decision took only three months and there was no analysis. I read an article of yours last week on a similar subject. Is there anything being done about the way the BIA is making there decisions?

Answer: Actually, since last week, the American Bar Association (ABA) which is the organization that all attorneys in the United States must follow, issued a scathing report on how the new regulations of how the BIA makes it decisions violates the due process of the immigrants.

The American Bar Association today called on the Board of Immigration Appeals to discard procedures it adopted in 2002 or, failing that, to adopt a series of changes in order to unclog federal court dockets and achieve justice for immigrants and their families.

The findings of the study confirm concerns that the ABA has had from the time the changes were proposed, and about which the ABA has communicated with the Department of Justice.

“This study concludes that changes billed as simple procedural matters are having a serious and sweeping effect on the administration of justice,” said ABA President Dennis W. Archer. “After reviewing it, the ABA is recommending that the Department of Justice quickly discard the procedural changes and reinstate prior procedures.”

Question: What exactly does the study represent?

Answer: Its results demonstrate that: While 1 in 4 appeals were granted before the procedural changes, just 1 in 10 are now; The rate at which BIA decisions are being appealed to the federal courts tripled from 5 percent in 2001 to 15 percent in 2002. The 2nd, 9th, 5th and 3rd circuits have been particularly hard hit by higher rates of appeals; Reducing the number of BIA members who must review each case and imposing strict time periods for decision-making, measures purportedly aimed at eliminating the backlog, have backfired. Overworked board members have insufficient time to carefully consider the facts and legal arguments of each case;

Allowing affirmance without written decision creates a clear incentive for board members to meet case processing guidelines by affirming removal orders without regard to the merits of the appeal. Board members are not required to articulate the basis for their decisions. The lack of written decisions gives courts of appeal less guidance in reviewing decisions; and massive changes in immigration law, not lack of diligence or efficiency by individual board members, played a large part in the increased backlogs between 1996 and 2002.

Question: Are there any recommendations the ABA gives to the BIA.

Answer: Yes. The suggest the following: That each case have a written decision that addresses errors raised by the appellant, the basis for determining that the case was correctly decided below, specific legal precedents on which the decision is based, and the reason that the case was assigned to a single board member; Prohibit single-member review in cases where judicial review would be foreclosed; Prohibit single-member review for reversing an order of an immigration judge to terminate proceedings or grant relief to a non-citizen; Make available reconsideration of whether or not a case was appropriately decided whenever a removal order is affirmed by a single member; Ensure that time frames sufficiently accommodate the practical impediments many respondents face in preparing briefs or finding counsel; Expand board membership, rather than reduce it; Ensure decisional independence of board; and preserve access to judicial review of immigration decisions, as the federal courts provide important oversight.

As you can see, the way the BIA has been issuing decisions and the unfairness of those procedures has now reached much farther than the immigrant. If we keep fighting, eventually, we can get these matters overturned and make them fairer for the immigrant.

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Question: I have had my case denied in Immigration Court and I have heard about the REAL ID act and am very confused if I can get some type of judicial review of my case. Can you clarify?

Answer: The REAL ID Act did not change the language of either subpart (i) or (ii) of the statute giving/denying review. Rather, the Act made two changes to the paragraph preceding these subparts. First, it specified that the phrase “notwithstanding any other provision of law” applied to “statutory and nonstatutory” law and included the habeas corpus statute, the mandamus statute, and the All Writs Act. Second, the REAL ID Act also expanded the scope of § 242(a)(2)(B) so that it now applies “regardless of whether the [discretionary] judgment, decision, or action is made in removal proceedings.” Prior to the REAL ID Act, some – though not all – courts had held that § 242(a)(2)(B) was applicable only in removal cases. Presumably, this amendment was intended to reverse these earlier court decisions.

Question: Do these amendments eliminate all mandamus and other types of affirmative suits?

Answer: No, these changes do not eliminate all jurisdiction over mandamus and other affirmative lawsuits in non-removal cases. To determine whether jurisdiction remains available in a particular case, it is necessary to carry out a several step analysis. This analysis is essentially the same as the analysis to determine whether jurisdiction exists in a removal case involving agency discretion. Consequently, court decisions interpreting § 242(a)(2)(B) in the removal context will be helpful in determining whether the provision applies in a non-removal case.

Question: What steps are involved in determining whether a court has jurisdiction under § 242(a)(2)(B) in a removal or non-removal case?

Answer: There are several items that one must look at to determine if this section applies. 1. Does the issue/case fall completely outside the scope of INA § 242(a)(2)(B)? A. INA § 242(a)(2)(B) only limits jurisdiction over certain discretionary actions and decisions. B. INA § 242(a)(2)(B) does not apply to asylum decisions.

C. INA § 242(a)(2)(B) also does not apply to naturalization decisions and D. INA § 242(a)(2) should not apply to S, T and U visas.

Question: What if the case is one that appears to have fallen under the provision not permitting discretionary review?

Answer: Again, it is necessary to do an analysis. First, has there been an actual exercise of discretion? Even where there has been an actual exercise of discretion, is this exercise of discretion the issue in the case? Is the challenged action or decision discretionary? Is the decision or action specified by statute to be discretionary? Is the grant of discretion one of pure discretion unguided by legal principles? (9th Circuit cases.)

Thus, while the REAL ID Act may seem to completely limit judicial review of cases, if you fight the matter and analyze the case, there are different ways to still get judicial review of your case.

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