DOCUMENT NUMBER: FR58-99

FEDERAL REGISTER CITE: 64 FR 56135

DATE OF PUBLICATION: October 18, 1999

BILLING CODE: 4410-30

DEPARTMENT OF JUSTICE

8 CFR Part 3

[EOIR No. 122F; AG Order No. 2263-99]

RIN 1125-AA22

Executive Office for Immigration Review; Board of Immigration

Appeals: Streamlining

AGENCY: Department of Justice.

ACTION: Final rule.

SUMMARY: This final rule establishes a streamlined appellate review procedure for the Board of Immigration Appeals. The final rule responds to an enormous and unprecedented increase in the caseload of the Board. The rule recognizes that in a significant number of appeals and motions filed with the Board, a single appellate adjudicator can reliably determine that the result reached by the adjudicator below is correct and should not be changed on appeal. In these cases, the rule authorizes a single permanent Board Member to review the record and affirm the result reached below without issuing an opinion. This procedure will enable the Board to render decisions in a more timely manner, while concentrating its resources primarily on cases where there is a reasonable possibility that the result below was incorrect, or where a new or significant issue is presented. In addition, the rule provides that a single Board Member may decide certain additional types of cases, motions, or other procedural or ministerial appeals, where the result is clearly dictated by statute, regulation, or precedential decision.

EFFECTIVE DATE: This rule is effective on October 18, 1999.

SUPPLEMENTARY INFORMATION:

Background

    The mission of the Board of Immigration Appeals is to provide fair and timely immigration adjudications and authoritative guidance and uniformity in the interpretation of the immigration laws. Rapid growth in the Board's caseload has severely challenged the Board's ability to accomplish its mission and requires the adoption of new case management techniques.

    In 1984, the Board received fewer than 3,000 new appeals and motions. In 1994, it received more than 14,000 new appeals and motions. In 1998, in excess of 28,000 new appeals and motions were filed. There is no reason to believe that the number of matters filed with the Board will decrease in the foreseeable future, especially as the number of Immigration Judges continues to increase.

    As the number of appellate filings has increased, the need for the Board to provide guidance and uniformity to the Immigration Judges, the Immigration and Naturalization Service, affected individuals, the immigration bar, and the general public, has grown. The Board now reviews the decisions of more than 200 Immigration Judges. There were, in comparison, 69 Immigration Judges in 1990 and 86 Judges in 1994. Frequent and significant changes in the complex immigration laws over the last several years, inclu ding a major overhaul of those laws in the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, heighten the need for the Board's authoritative guidance in the immigration area, particularly in view of the fact that the 1996 legislation drastically reduced aliens' rights to judicial review.

    To meet its overriding objective of providing fairness in adjudicating appeals, the Board must achieve four goals. It must: (1) Promote uniformity in dispositions by Immigration Judges by providing authoritative guidance in high quality appellate decisions; (2) decide all incoming cases in a timely and fair manner; (3) assure that individual cases are decided correctly; and (4) eliminate its backlog of cases.

    To accomplish these goals under current conditions, the Board must limit its use of three-Member panels to cases where there is a reasonable possibility of reversible error in the result below. The Department published a proposed rule on September 14, 1998, at 63 FR 49043 (Sept. 14, 1998), with written comments due by November 13, 1998. The proposed rule included a new provision, now designated as 8 CFR 3.1(a)(7), 1/ designed to allow single permanent Board Members, selected by the Board Chairman, to affirm the results reached below without an opinion where (1) the result reached in the decision under review was correct; (2) any errors in the decision under review were harmless or nonmaterial; and (3) either (a) the issue on appeal was squarely controlled by existing Board or federal court precedent and did not involve the application of such precedent to a novel fact situation; or (b) the factual and legal questions raised on appeal were so insubstantial that three-Member review was not warranted.

    Under the proposed rule, if the single permanent Board Member found the case to be appropriate for affirmance without opinion, that Board Member would sign a simple order to that effect, without additional explanation or reasoning. If the Board Member found affirmance without opinion to be inappropriate, the case would be assigned to a three-Member panel for review and decision. Thus, the proposed rule described an affirmance without opinion as a determination that the result reached below was correct and that the case did not warrant three-Member review. The proposed rule also authorized three-Member panels to affirm without opinion, where such a disposition was determined to be appropriate.

    The proposed rule at 8 CFR 3.1(a)(5) (now 8 CFR 3.1(a)(7)) also included provisions that would authorize the Chairman to designate certain categories of cases as suitable for affirmance without opinion by a single permanent Board Member or by a three-Member panel. These categories could include, but would not be limited to, the following: (1) Cases challenging findings of fact where the findings below are not against the weight of the evidence; (2) cases controlled by precedents of the Board where there i s no basis for overruling the precedent, or by precedents of the relevant United States Court of Appeals, or the United States Supreme Court; (3) cases seeking discretionary relief for which the appellant is clearly ineligible; (4) cases challenging discretionary decisions where the decision maker has neither applied the wrong criteria nor deviated from precedents of the Board or the controlling law from the United States Court of Appeals or the United States Supreme Court; and (5) cases challenging only pr ocedural rulings or deficiencies that are not material to the outcome of the case.

    The proposed rule also contained provisions that would authorize the Chairman to designate the permanent Board Members who would be authorized to affirm cases without opinion.

    The proposed rule also suggested amendments to the regulation regarding motions to reconsider. Under proposed 8 CFR 3.2(b)(3), a motion to reconsider based solely on an argument that the case should not have been summarily affirmed--that a full opinion was required--would be barred. Otherwise, the standard motions to reconsider and/or reopen are allowed, but are subject to all the regular requirements and restrictions regarding motions, including the time and number limitations.

    In addition to describing a new procedure for affirmance without opinion by a single Board Member, the proposed rule also included provisions that would empower a single Board Member or the Chief Attorney Examiner to rule on certain dispositive motions or to issue other orders disposing of appeals on procedural or ministerial grounds. Presently, the regulations allow a single Board Member to adjudicate unopposed motions or motions to withdraw an appeal. See 8 CFR 3.1(a). The proposed rule identified addit ional categories of cases that were deemed suitable for disposition by a single Board Member. Unlike the one-line affirmances by single Board Members that the proposed rule would authorize, these dispositions generally would not affirm a result below. Rather, in these cases, a single fact, easily identified in the record of proceedings, dictates the result through a straightforward, nondiscretionary application of a statute, a regulation, or a controlling precedent. Dispositions under this procedure are s eparate and distinct from affirmances without opinions.

    Under § 3.1(a)(1) of the proposed rule, a single Board Member would be authorized to issue orders (1) remanding an appeal from the denial of a visa petition where the Regional Service Center Director requests a remand for further consideration of the appellant's arguments or evidence raised on appeal; (2) remanding to correct for a defective or missing transcript; and (3) disposing of other procedural or ministerial matters designated by the Chairman (possible examples might include dismissal of an appeal a s moot where the alien has since become a lawful permanent resident).

    The proposed rule also set forth proposed amendments to the regulation regarding summary dismissals of appeals. This regulation, presently codified at 8 CFR 3.1(d)(1-a), generally provides for dismissals on grounds that do not go to the underlying merits of a case. The proposed revisions to this provision, redesignated as § 3.1(d)(2), would add to the existing rule's listing of the types of cases that are appropriate for summary dismissal, authorize a single Board Member to dispose of such cases, and empow er the Chairman to designate who from among the Board Members may exercise this authority. Summary dismissal under proposed section 3.1(d)(2) would be separate and distinct from affirmance without opinion.

    The proposed rule also would augment existing grounds for summary dismissals, authorizing dismissal of (1) cases in which the appeal or motion does not fall within the Board's jurisdiction; (2) cases in which jurisdiction over a motion lies with the Immigration Judge rather than with the Board; (3) untimely appeals and motions; and (4) cases in which it is clear that the right of appeal was affirmatively waived.

Comments

    In response to the proposed rule, the Department received 24 comments pertaining to the proposed summary affirmance procedures. Because a number of these comments overlap or endorse the submissions of other commenters, the comments are addressed by topic rather than individually. Before describing the comments and the Department's responses, it is important to mention two changes that the Department has decided to make to the proposed rule for reasons not presented in the comments.

    First, although the Department did not receive any comments criticizing our proposal to change the summary dismissal regulation, we have determined that an additional change is warranted. In particular, current 8 CFR 3.1(d)(1-a)(i)(D) will be deleted to avoid confusion in light of the new summary affirmance procedure. Current § 3.1(d)(1-a)(i)(D) allows summary dismissal when, "[t]he Board is satisfied, from a review of the record, that the appeal is filed for an improper purpose, such as to cause unnecess ary delay, or that the appeal lacks an arguable basis in law or fact unless the Board determines that it is supported by a good faith argument for extension, modification or reversal of existing law." This summary dismissal authority is virtually never used by the Board, and retaining it could lead to confusion concerning the relationship between this provision and the new summary affirmance procedure. Accordingly, this part of the existing summary dismissal regulation will be deleted.

    A second change that was not advocated by any commenter concerns the proposed rule's references to the Chief Attorney Examiner. Because that position was eliminated after publication of the proposed rule, references to the Chief Attorney Examiner will be eliminated from the final rule.

    The Department has also concluded, in the course of preparing this streamlining rule, that the regulations governing BIA procedures have become unduly complex and that a complete reorganization of part 3 of 8 CFR is needed. The Executive Office for Immigration Review is presently working on such a reorganization. This final rule is being published in

advance of that reorganization because of the overriding need to

implement the streamlining procedures.

Single Board Member Summary Affirmance Without Opinion

    Comments : Twenty-three commenters objected to the proposal to allow a single permanent Board Member to affirm the result reached below by issuing a form, one-line affirmance order. Most of the commenters recognized the difficulties the Board faces in managing its expanding caseload, and several offered alternatives for accomplishing that task. However, the commenters uniformly stated that an appellate body such as the Board should meaningfully address the issues before it by providing reasons for its decisions. A number of the commenters cited Mathews v. Eldridge , 424 U.S. 319 (1976), as support for their contention that the Due Process Clause of the Fifth Amendment requires the Board to provide a rationale for its decisions. Some pointed out that several courts of appeals have criticized the Board when it did not provide an adequate rationale, suggesting that the proposed rule could therefore be struck down in court. Some suggested that, given the Board's caseload, there would be a temptation to avoid detailed review or consideration of complex issues.

    Response and Disposition : The Department has carefully considered the comments regarding the proposal to allow one permanent Board Member to affirm a decision by issuing a one-line form order, and has decided to retain the regulation as proposed. To operate effectively in an environment where over 28,000 appeals and motions are filed yearly, the Board must have discretion over the methods by which it handles its cases. The process of screening, assigning, tracking, drafting, revising, and circulating cases is extremely time cons uming. Even in routine cases in which all Panel Members agree that the result reached below was correct, disagreements concerning the rationale or style of a draft decision can require significant time to resolve. The Department has determined that the Board's resources are better spent on cases where there is a reasonable possibility of reversible error in the result reached below.

    Appellants have a right to a reasoned administrative decision. In cases that are adjudicated by one Board Member, that right will be protected by a written decision by the Immigration Judge or the INS Director and a determination by the Board that the result below is correct. A permanent Board Member will review and consider every case. The decision rendered below will be the final agency decision for judicial review purposes. Under this new system of streamlined review, complex and significant cases wil l not be avoided, nor will they be adjudicated by one Board Member. Rather, they will be given additional time and consideration by three-Member panels of the Board. The most important of the three-Member panel cases may receive en banc review (either full or limited) by the Board.

    The streamlined review process that the Board will follow is different from the "leave to appeal" and certiorari systems that some appellate courts and administrative tribunals use to control their dockets. These systems often look to a variety of factors apart from whether the decision for which appellate review is sought reached a correct result. In contrast, the summary affirmance system that the Department is adopting will continue to focus on the importance of correct results, even in cases that do n ot present significant legal or factual issues or a question requiring guidance from the Board. The summary affirmance system represents a careful balancing of the need to ensure correct results in individual cases with the efficiencies necessary to maintain a viable appellate organization that handles an extraordinarily large caseload. The streamlining system will allow the Board to manage its caseload in a more timely manner while permitting it to continue providing nationwide guidance through published precedents in complex cases involving significant legal issues.

    In Mathews v. Eldridge, supra , the Supreme Court held that due process is a flexible concept and identified three factors that agencies and courts must consider in determining the administrative procedures that due process requires in a particular setting. Those factors are, "[f]irst, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government's interest, including the function involved and the fiscal and administrative burden s that the additional or substitute procedural requirement would entail." 424 U.S. at 334-35.

    In the case of immigration proceedings, the private interests at stake are undoubtedly very weighty, as many commenters have pointed out. However, the Department believes that the risk of erroneous decisions resulting from the streamlining of Board procedures is minimal. Most appellants will already have had a full evidentiary hearing before an Immigration Judge; some will have had their cases considered by an INS Director. The case will then be considered on its merits by a permanent Member of the Board. If that Board Member finds a reasonable possibility that the result reached below was incorrect, the case will be referred to a three-Member Panel, and a written decision will be provided. Only if the permanent Board Member determines, after review of the appeal, that the regulatory criteria are satisfied and, consequently, that there is no reasonable possibility that the result below was incorrect, will he or she issue a one-line, form order affirmance. The Department believes that appellants' rights are protected by these procedures.

    Finally, as noted earlier, the Government's interests are also significant here. The number of appeals filed with the Board in recent years has exceeded the Board's capacity to give meaningful, three-Member consideration to each appeal, and to issue written decisions in every case. The summary affirmance process is a reasonable response to the current situation, because it allows the Board to concentrate its resources on cases where there is a reasonable possibility of reversal, or where a significant issu e is raised in the appeal, while still providing assurances that correct results are achieved in all cases under the Board's appellate jurisdiction.

    The Department is aware of one federal appeals court decision indicating that due process requires the Board to state reasons for its decisions. See De la Llana-Castellon v. INS , 16 F.3d 1093, 1098 (10th Cir. 1994) (due process "requires that the decisionmaker actually consider the evidence and argument that a party presents"). In addition, several other appeals court decisions have struck down, on statutory grounds, Board decisions that were found to have lacked adequate explanations of the Board's reasoning. See, e.g., Velerde v. INS, 140 F.3d 1305, 1310-11 (9th Cir. 1998) (BIA abused its discretion by failing to provide reasoned basis for its decision); Sanon v. INS, 52 F.3d 6 48, 651 (7th Cir. 1995) (in reviewing BIA denials of asylum requests, court requires "some proof that the Board has exercised its expertise in hearing a case."); Turri v. INS, 997 F.2d 1306, 1308 (10th Cir. 1993) (to survive statutory review, Board decision must contain terms sufficient to demonstrate that the Board heard, considered, and decided the case); Diaz-Resendez v. INS, 960 F.2d 493, 495 (5th Cir. 1992) (Board decision will be reversed as arbitrary if it "fails to address meaningfully all material factors").

    Notwithstanding these decisions, eight federal courts of appeals have rejected direct challenges to the Board's practice of affirming decisions of Immigration Judges, where appropriate, for the reasons given in those decisions. See Giday v. INS, 113 F.3d 230, 234 (D.C. Cir. 1997) (Board's summary affirmance of an Immigration Judge's decision for the reasons given by the Immigration Judge is "not only common practice, but universally accepted by every other circuit that has squarely confronted the issue"); C hen v. INS, 87 F.3d 5, 7-8 (1st Cir. 1996) ("[I]f the Board's view is that the Immigration Judge "got it right," the law does not demand that the Board go through the idle motions of dressing the Immigration Judge's findings in its own prose."); Prado-Gonzalez v. INS, 75 F.3d 631, 632 (11th Cir. 1996); Urokov v. INS, 55 F.3d 222, 227-28 (7th Cir. 1995); Alaelua v. INS, 45 F.3d 1379, 1382 (9th Cir. 1995); Maashio v. INS, 45 F.3d 1235, 1238 (8th Cir. 1995); Panrit v. INS, 19 F.3d 544, 545-46 (10th Cir. 1994) (distinguishing Turri v. INS); Arango-Aradondo v. INS, 13 F.3d 610, 613 (2nd 1994). In addition, two other federal courts of appeals have treated summary affirmance by the BIA as a proper method of disposing of appeals, sustaining such summary affirmances against merits challenges after review of the reasoning set forth in the Immigration Judge decisions that the BIA affirmed. See, e.g., Gomez-Mejia v. INS, 56 F.3d 700, 702 (5th Cir. 1995) (court will review the Immigration Judge's decision where the Board affirms without any additional reasoning); Gandarillas-Zambrana v. BIA, 44 F.3d 1251, 1255 (4th Cir. 1995) (where the Board relies on the Immigration Judge's decision, the immigration Judge's reasoning will be the sole basis for the court review).

    It is therefore well-established that the Board may decline to write a full decision in any given case, and may instead summarily affirm the Immigration Judge's decision. The summary affirmance procedure set forth in this streamlining rule makes clear that a summary affirmance does not necessarily indicate that the Board Member is adopting the Immigration Judge's or Service Officer's decision in it entirety, including all its reasoning; rather, it is a determination by the Board Member, upon review of the r ecord, that the result reached below is correct. For purposes of judicial review, however, the Immigration Judge's decision becomes the decision reviewed.

    In addressing any due process concerns, it is also important to point out that due process does not confer a right to appeal, even in criminal prosecutions. See Ross v. Moffitt, 417 U.S. 600, 611 (1974) ("[W]hile no one would agree that the State may simply dispense with the trial stage of proceedings without a criminal defendant's consent, it is clear that the State need not provide any appeal at all."); Griffin v. Illinois, 351 U.S. 12, 18 (1956) (plurality opinion) (noting that "a State is not required b y the Federal Constitution to provide appellate courts or a right to appellate review at all") (citation omitted). Indeed, one federal court has specifically stated that "[t]he Constitution does not entitle aliens to administrative appeals * * *. The Attorney General could dispense with the Board and delegate her power to the immigration judge's, or could give the Board discretion to choose which cases to review." Guentchev v. INS, 77 F.3d 1036, 1037 (7th Cir. 1996).

    It is true that the power to eliminate appeals does not carry with it the power to maintain a procedurally deficient appellate process. See, e.g., Evitts v. Lucey, 469 U.S. 387, 400-05 (1985) (although due process does not require that a state provide any appeal, it does require that a defendant receive effective assistance of counsel on the first appeal as of right, if such an appeal is provided); Mayer v. Chicago, 404 U.S. 189, 198 (1971) (if the Government chooses to provide for appeals, an impecunious defendant in a petty offense prosecution "cannot be denied a record of sufficient completeness to permit proper (appellate) consideration of his claims" (internal quotation marks omitted)); see also M.L.B. v. S.L.J., 519 U.S. 102, 117-124 (1996) (state cannot use parent's inability to pay record preparation fees as grounds for denying an appeal in a proceeding that could result in permanent termination of her parental rights). However, the omission of a case-specific statement of reasons for an appellate ru ling does not represent a constitutional deficiency in appellate procedure.

    In sum, appeals are not constitutionally required, and an endorsement of the result reached by the decision-maker below satisfies any conceivable due process requirement concerning justifications for the decisions made in any appellate process that the government decides to provide. The Department believes it is within the Attorney General's authority to provide for the streamlining of BIA procedures in appropriate cases as described in this final rule.