Oversight Hearings on the Executive Office for Immigration Review

Statement by Michael J. Heilman

Former Board Member, Board of Immigration Appeals

The hearing today will focus on the functions of, and issues relating to, the Board of Immigration Appeals (BIA), and Immigration Judges (IJ’s), located administratively with the Executive Office for Immigration Review. My comments and suggestions, will, I hope, highlight those matters that would be of interest to you in your oversight of these Department of Justice components. My observations and suggestions derive from my almost 3 decades of experience dealing with immigration matters at the Board of Immigration Appeals, the Immigration and Naturalization Service and the Department of State.

As the backlog of pending appeals at the BIA has been a concern both in- and outside of the BIA for a number of years, I would like to begin with that subject. It cannot be over-emphasized that this backlog of pending cases is not some elemental force of nature. The backlog is a product of policy choices made primarily within the Department of Justice, usually at the EOIR level. The backlog can be reduced to a reasonable level. But before I offer my suggestions for reform of the hearing and appeal process, I would like to offer some background as to the processes and procedures that characterize the work of the BIA and the IJ’s.

Background

To begin, it should be understood that at neither the hearing before an IJ, nor on the appellate level before the BIA, is deportability generally at issue. Deportability is almost always conceded at the outset of the hearing or easily established by the submission of documentary evidence by the Immigration and Naturalization Service (INS). Commonly, not only is deportability conceded, but the alien also concedes that no relief from deportability is available to him and he agrees to voluntary departure.

In those hearings where the alien does not wish to leave the U.S., even after deportability has been established, the issue addressed is that of eligibility for relief from deportation. In such contested hearings, relief from deportation is the only matter of interest to the alien other than release on bond. In recent years, this has meant as a practical matter that the alien wishing to avoid removal applies for asylum and for deferral of removal under the provisions of the Convention Against Torture. Applications for relief, not issues of deportability, consume the time of the Immigration Judge at the hearing level, and subsequently, the time of the BIA if an appeal is taken.

In considering changes at the hearing and appeals level, then it should be understood that we are not considering matters that underlie the fundamental question of whether the alien is deportable. The present system from beginning to end seldom gets into that subject as a matter of dispute. To the alien who wishes to remain in the U.S., the single subject of importance is whether he can benefit from any statutorily provided method to legalize his status or suspend the effect of the deportation order.

This makes sense, because in the vast majority of cases, lacking a claim to U.S. citizenship or permanent resident status, the vast majority of aliens in the removal process have either illegally crossed the U.S. border, or overstayed or violated the conditions of their nonimmigrant visa. They know that they have done this.

The concerns you may have regarding the nature of immigration proceedings should not center so much on procedures for establishing deportability, but rather on procedures and processes for claiming benefits that can be made under the immigration law to trump the consequences of the aliens’ otherwise easily determined illegal presence. This means, in turn, that the focus of changes at both the hearing and appeals levels should zero in on relief from removability, as well as on asylum and withholding of deportation and the Convention Against Torture.

Another important point that needs to be emphasized is that contrary to what is commonly asserted, there is nothing particularly complicated about the administrative hearing process or the appeal process. The hearing process begins with the service of a notice of intent to remove, which states the grounds for removal and informs the alien of his rights in the process. The alien appears before an Immigration Judge who again tells the alien what his rights are and who explains the charges. The Immigration Judge then asks the alien to plead to the charges. If, as is usually the case, the alien concedes deportability, the Immigration Judge explores the possibility of relief or voluntary departure. The alien is usually the only person who appears, other than his attorney and the INS attorney. There is commonly no need for witnesses relating to the charge of deportability. Usually, if deportability is contested by the alien, it is established by simple questioning on the part of the Immigration Judge or the submission of a report of investigation by INS. The whole hearing is carried out on the record, and Immigration Judges take care to follow required procedures, which insure that a person lawfully in the U.S. will not be run over roughshod and unlawfully removed.

I would like to make one further observation in regard to the administrative hearing process. This observation is based on my years of experience working on the appellate level and with consular and refugee programs. Many people are quite convinced that the average alien in removal proceedings is simple-minded, ignorant and bewildered by his situation. I think this view mischaracterizes completely the typical alien who has made his way to the U.S. Aliens who come to the U.S. are a self-selected group with initiative and a certain amount of resourcefulness and daring. They have by and large figured out the immigration system and understandably wish to work it to their own advantage. They are persons who have had the sense to assess their life and opportunities in their own country and have decided that life in the U.S. is preferable. They are not persons who are easily bowled over by the immigration laws and processes of this country. Many are indeed students of the immigration system’s weaknesses and opportunities. If they lose out in the end, in the sense that they cannot make a case for receiving an immigration benefit, it is certainly much more likely that this is so because they simply do not qualify, not because they have been victimized or have fallen through the cracks.

Administrative Hearing and Appeal Process

With that background, I would like to shift over to some points relevant to the two major aspects of the immigration removal process, the administrative hearing before the Immigration Judge and the appeal process before the BIA.

First, the role of the Immigration Judge is unequivocally paramount in any quantitative or qualitative sense. The Immigration Judges hear and finally decide about 85% of all cases that are brought by INS in removal hearings. This 85% figure represents the historical percentage of all the cases that are brought to a hearing. This means, for purposes of illustration, that if INS brings 200,000 aliens into proceedings in a given year, the Immigration Judges will issue a final decision in 170,000 of those cases. The remaining 15 % represents the historical percentage of cases where the alien files an appeal once the Immigration Judge enters a decision. This final decision by the Immigration Judge will contain a ruling on deportability and eligibility for relief if that was sought, and an order of removal, and usually an alternate order of voluntary departure, the latter order usually giving the alien 30 to 90 days to depart at his own expense.

I reviewed over 100,000 appeals over a 15- year period at the BIA. I would state without hesitation that the overwhelming percentage of Immigration Judge decisions that I reviewed were legally and factually correct, and that the subsequent appeals were without any substantial basis on any ground. Again, the important point here is that in considering changes in the immigration process as a whole, it is the Immigration Judges who issue final decisions and orders in a huge percentage of the cases brought. If one accepts my proposition that the Immigration Judges issue the correct decision in almost all of the cases they hear, most certainly on the issue of deportability, then any effort to reform or change the administrative hearing and appeals process should take this factor in to account when allocating resources and personnel.

As to the second part of the administrative process, the appellate review carried out by the BIA, that function can be stated in simple terms: it is to consider any appeal brought for any reason by an alien or INS. I will pass over appeals filed by INS because they constitute less than 1% of the total filed at the BIA. The BIA, as noted, receives appeals in about 15% of the cases decided by the Immigration Judges. This means that as the number of cases filed with the Immigration Judges increases so does the number of appeals filed with the BIA.

As an initial question, one can fairly ask why, if the BIA dismisses the great percentage of appeals it receives, about 85% or more, what incentive is there for the typical alien to appeal from an Immigration Judge’s decision? One part of the answer lies in the fact that the appeal filing fee is very low, $110, with that fee being waived by the BIA in about 50% of the appeals, oftentimes even where an alien is represented by an attorney. The alien is not charged for copies of the record or for the transcript of the hearing, which often exceeds 50 pages. All of these costs are absorbed by EOIR. By contrast, to my knowledge, no-cost appeals on a civil level are a rarity.

Of course, the answer as to why an alien appeals to the BIA lies less in the merits of the case, than in the effect the filing of the appeal has on the removal process. The filing of the appeal with the BIA suspends the effect of the Immigration Judge’s order. The Immigration Judge's order is still final, but it cannot be enforced until the BIA decides the appeal. This fact is well-known and probably is the single greatest incentive for an alien to appeal.

Once the appeal is received at the BIA it is set into an administrative processing stage that is about as abbreviated as it can realistically get. The BIA Clerk’s Office is inundated with appeals and paper and tries to deal with a volume of appeal forms and related papers that would probably sink most administrative offices. Within the blizzard of paper they receive, they manage to set briefing schedules and enter the files into the tracking system. There is very little that can be done in this part of the process that would have any appreciable beneficial effect on the amount of time an appeal sits at the BIA. Plans the BIA has to dispense with “paper” files and records are commendable but have no chance of meaningful implementation in the foreseeable future.

Once the Clerk’s Office is finished with its business, the case is assigned to a staff attorney, and follows one of two tracks: a regular case assignment or a “streamlining” track. The “streamlined” cases are those appeals that fall within the category of cases that BIA Members have agreed may be subjected to an abbreviated, and one hopes, faster, review. Such “streamlined” cases include those where the sole issue on appeal is an issue already decided and controlled by BIA or federal court binding precedent. These “streamlined” cases are assigned to specified staff attorneys for disposition with model draft decisions.

Once the staff attorney drafts a proposed decision, the record and decision go to a panel of 3-4 BIA Members. The BIA has 5-6 designated panels which receive draft decisions from staff attorneys assigned to that panel. In the past 2-3 years, the “streamlining” panel has considered an ever-growing number and percentage of the cases decided by the BIA, almost as many as the other regular panels combined. For a variety of reasons, the productivity of the regular BIA panels has varied widely over time, and it seems clear that if the “streamlining” panel did not exist the backlog of undecided appeals would be substantially greater.

You will, I am sure, have heard that the “streamlining” panel is the major focus of the BIA in grappling with its caseload. Its work is to be commended in this regard, but it should also be kept in mind that there were similar approaches to this “streamlining” panel tried in the past, which went under other names, such as the “intake” panel. Those panels, and other specialized panels which dealt with certain defined categories of cases, also were highly productive, but the backlog still grew and grew in the past 20 years.

Growth has also characterized the BIA as an institution, to the point that it bears no real resemblance to the body that was known as the BIA for about the first 50 years of its existence. In 1986, when I was appointed to the BIA, there were 5 Members and about 25 staff attorneys. Now there are about 20 Members and over 100 staff attorneys, and an enormously larger administrative staff in addition.

But while one can focus on the numbers of appeals decided or undecided, and do interesting analyses of cases decided per BIA employee, focus on this subject to the exclusion of other matters would be a trap. Historically, the BIA has had two functions, that of deciding individual cases, which is what EOIR and the Department of Justice fixate on, and that of issuing precedent decisions for guidance to the INS and Immigration Judges. BIA precedent-setting historically has also played a major role in consideration of immigration cases on the federal court level. This is so because the BIA has been the voice through which the Attorney General has spoken regarding interpretation of the immigration laws, and under long-standing U.S. Supreme Court precedent in turn, has been accorded deference.

This precedent-setting function of the BIA can be lost sight of, and arguably has been lost sight of, in recent years. If the BIA existed in a vacuum, or if it existed only to issue precedent decisions for its internal use, this matter of precedent decisions would not be so important. Precedent decisions, however, were intended to be used outside the BIA by all parties and federal agencies involved in the administration of the immigration laws. This function was designed to insure a uniform application of the immigration laws on a nationwide basis. While one can look at the precedent decisions of the BIA issued in the last several years, and remark on the volume of pages alone as refuting any argument that the precedent decision function has been lost in the fixation on case numbers, the fact of the matter is that the page volume is more an indicator of the current verbosity of the BIA than its precedent-decision making qualities. There has been a huge increase in the number and length of the separate and dissenting opinions, and a corollary drop in the utility of the majority decisions as precedents for who are supposed to use and apply them, and that includes the BIA itself. Many majority decisions read as legal treatises and serve more as platforms for internal BIA disputes than as vehicles for useful interpretations by the BIA’s audience.

It was inevitable that the ability of the BIA to issue precedent decisions, to say nothing of useful precedent decisions, would be lowered as the number of Board Members increased. This development was either not understood or was a matter of no concern to the Department of Justice. The major concern the department had in increasing the number of Members was in increasing the number of appeals decided. The simple equation applied was that more Members would equal more cases decided, which was more or less the result, without regard to output per Member, which has varied greatly.

The effect of this equation on the precedent writing portion of the BIA’s function seems not to have been considered. Leaving aside differences in legal interpretations and legal philosophies of individual Members, the BIA also came to be marked by internal divisions based on personality conflicts. The tone and language used in BIA decisions began to display the differences among the Members and display a coarseness of spirit. This change in the content of the precedent decisions was also evidenced in panel decisions and internal divisions within panels mirrored those found at the BIA as whole. An understandably jaundiced view of the quality and value of the BIA came to be possessed by those who read the decisions. This was particularly true on the part of many Immigration Judges, who came to see their decisions being subjected to intemperate and even personal critiques by certain BIA Members. Panels began to issue conflicting decisions and the number of cases remanded to the Immigration Judges increased significantly. Many Immigration Judges came to believe that their decisions were not being subjected to a reasonable review, but rather the whims of individual Members.

To an extent not previously seen during the BIA’s prior 50-year history, the BIA began to experience intervention by the Department of Justice, often invited to do so by INS, and one suspects, other branches of the Department of Justice involved in immigration litigation and policy-making. The Attorney General began to certify to her office BIA decisions that had been brought to her attention, in order to review BIA decisions. While this intervention may have been well-intended and necessary in certain cases, it was also often ill-advised and detrimental to the administration of the immigration laws and the BIA’s role. As one example, one might point to the debacle that occurred when at the behest of INS, the Attorney General certified for her review issues arising under the waiver of deportation provisions under the former section 212(c) of the Immigration and Nationality Act. The end result was years of litigation, thousands of BIA and Immigration Judge decisions in limbo, and the ultimate reconsideration of thousands of those cases to no good purpose, because the laws had changed in the interim.

While events such as these were unfolding, there were substantial changes in the immigration laws in 1996 and thereafter that demanded the BIA’s attention. Such matters as the retroactivity and applicability of the new laws to pending cases and to aliens already served with notices to appear in deportation proceedings required the BIA’s interpretation and resolution. These matters proved exceedingly difficult for the BIA to address, again, because of the size of the BIA and the disparate viewpoints of its Members. Even where a majority for a particular outcome exists in a body this size, it is often the case that the reasons for the outcome may differ from Member to Member. Writing a decision that can coherently take different views into account can be very difficult. The number of Members was also continuously being increased during this time, and so issues apparently resolved one month had a way of becoming unresolved as new votes and new voting patterns appeared. In a nutshell, what happened was that the BIA increasingly was deciding cases in a time warp, trying to decide appeals filed years before the changes in the law, while Immigration Judges and INS were trying to deal with new case filings under the new laws. This state of affairs also affected the BIA internally, as staff attorneys had difficulty deciphering the BIA’s own majority position on any given subject. BIA panels more and more often issued decisions that varied widely in interpretation of the laws and outcome, as well as decisions that showed different views of the BIA’s role as an appellate body.

This is the backdrop against which the BIA and the Immigration Judges operate today. This situation need not continue as it is. It is a result of policy choices made intentionally and by default, and they can be unmade for the better.

The BIA is presently viewed within the Department of Justice and certainly by policy makers within EOIR as more of an administrative benefits agency, rather than as a quasi-judicial administrative appellate body, which it had been at its inception. While the BIA should be setting legal directions for those involved in the administrative hearing process, deciding issues of significance, it has become more of an adjunct of the administrative hearing process, where an alien unhappy with the outcome of the hearing below may ask, at no cost, for a readjudication of his case. By accepting all appeals, and more recently by issuing panel decisions in which the BIA has given the impression that it may nullify those portions of the immigration laws which certain Members disagree with, and by continuing to have a large pending appeal backlog, the BIA invites appeals, and it is logical to assume that aliens will be happy to continue to file appeals in large, if not increasing numbers.

In my view, approaching this situation as if a large caseload of appeals is a given and that the only way to deal with it is to appoint yet more BIA Members and staff attorneys, will insure that the system as presently constituted will ultimately collapse of its own weight. There are, however, ways to help the BIA and the Immigration Judges to do the best what they have historically done best.

Suggestions for Change

In the case of the BIA, the first step in the right direction would be a shift by the Department of Justice away from the view that the BIA’s caseload can only be addressed at the rear end of the process. This means shifting from a focus on the output of decided appeals and attempts to tinker with the present processes to somehow increase efficiency, to a focus on means of reducing the input of appeals to the BIA. The BIA does not need to accord an appeal forum to every alien who is put in proceedings and who chooses to appeal. The BIA’s primary purpose should be to consider cases on a precedential level and those where a clear case has been made that an Immigration Judge has made an incorrect application of the law below.

This approach, where an appeal would not be of right, but rather by leave of the BIA, would focus BIA resources on those appeals where an alien could plausibly argue on appeal that an Immigration Judge has misapplied law or precedent, not those cases where the alien is simply dissatisfied with the result below and knows that an appeal will gain him time in the U.S. This approach would take into account several factors, the first being that there are, and properly so, many more Immigration Judges than Board Members. Secondly, that the Immigration Judges get the vast majority of their decision correct, legally and factually. It only makes common sense to aim for a system where the decision making process begins and ends as near the opening stage of the process as possible. It is one thing for the BIA to be deciding issues of legal interpretation, what a statute means, for instance, and quite another for it to simply be substituting its judgment on matters such as the reasonable interpretation of evidence by, or exercise of discretion by, an Immigration Judge. There is a world of difference between an incorrect decision and a decision that a Board Member would like to change because it suits an individual Member’s particular view of the world.

Offered for your consideration are the following suggestions for change:

1(a). Require the alien to file a brief within 30 days of filing the appeal in which he would be required in an opening jurisdictional statement to identify any legal errors committed by the Immigration Judge, with a statement of and citation to, legal precedent to back the assertions. An inadequate statement of legal error would result in dismissal of the appeal.

1(b). As an alternative to the above, or as a corollary change, set by regulation or statute a time limit within which the BIA would have to render a decision on the merits of the appeal, perhaps 120 days. If a decision is not rendered within this time, the Immigration Judge’s decision will become the final decision and can be enforced.

Both of these suggestions, alone or in tandem, recognize that the Immigration Judges are the persons who can best deal with and do deal with the lion’s share of the immigration proceedings caseload.

2. A further step would be to reduce the number of Board Members to no more than 9. The evidence is plain that a large number of Members simply do not improve the appellate process qualitatively. The evidence to the contrary is much stronger based on the experience of the last several years. The phenomenon of factions and conflicting opinions is not surprising, if one looks to other judicial bodies with large numbers of judges. This reduction in the number of Members would be consistent with a commensurate reduction in appeals to the BIA.

3. A third, and less significant change would be to charge the appealing alien with the cost of the appeal. There are significant expenses absorbed by the Department of Justice because it foots the bill for the appeal process. As a rule, in civil proceedings, which the immigration proceedings have been seen to constitute, the appealing party pays the cost of the appeal, including the transcript. The fact that any particular individual might be unable to bear this cost has not deterred this general practice in civil proceedings.

4. A fourth suggestion would free up Immigration Judge resources. This change would abolish the present practice by which an alien may have an asylum application heard by both an INS asylum officer and an Immigration Judge. Present regulations allow an alien whose asylum application has been denied by an asylum officer to receive a new hearing before an Immigration Judge. This makes no sense, if the asylum officer’s decision to grant asylum is accepted at face value, then the decision to deny should be given equal weight.

5. A fifth suggestion for change is to have cases screened by INS attorneys before a notice to appear in removal proceedings may be filed with an Immigration Judge. Under the present regulatory system, about a dozen different categories of INS officers may begin removal proceedings. This is done without regard to the Immigration Judges’ or the INS trial attorneys’ caseload, the legal sufficiency of the notice issued, or any present or future ability or intention on the part of the INS district office to enforce any removal order issued by an Immigration Judge. The present system is akin to a police officer or tax assessor being able to issue an indictment without the approval or involvement of a prosecutor or states attorney. A change of this nature might result in a more rational and systematic approach to enforcement of the immigration laws.

The suggested changes outlined above could potentially address some of the basic weaknesses of the present administrative/appellate process. Other persons who appear before you may well have reform proposals of equal or greater appeal. I am certain, though that attempting to reform the present system around the edges and to alleviate the problems that are evident by spending more money on more personnel and more equipment is to engage in a futile exercise.