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With its recent proposal to truncate the Board of Immigration Appeals, the Department of Justice (DOJ) has taken a dramatic step toward reducing immigrants’ rights, which could go into effect as early as this summer. While national security and efficiency concerns underscore DOJ’s proposal, it is likely to prove unnecessarily broad and harmful to the many immigrants who come to the United States each year in search of a new and better life. Each year, several thousand refugees come to the United States seeking political asylum. Many of these asylum seekers have been beaten, tortured or raped in their native countries on such bases as their beliefs, race or ethnicity. Many have witnessed similar treatment — or worse — of family members. Their troubles are not over when they arrive here. To stay in this country, asylum seekers must file an asylum application and obtain U.S. government approval. Now it appears this approval process is going to become much less fair, because there will be far fewer appeals judges to review their cases. The case of each refugee who claims asylum upon arriving in this country is decided by one of 220 U.S. immigration judges. Claimants — and the Immigration and Naturalization Service (INS) — frequently appeal the immigration judge’s decision to the Board of Immigration Appeals, which is the administrative “supreme court” for most immigration claims. Board members often reverse. The decisions rendered in asylum cases are enormously important. They can mean the difference between life in the U.S. and likely persecution, or even death, in the refugee’s home country. Yet, DOJ, in the name of improved case management, is expected to issue new rules soon that will effectively limit individual board members to just a few minutes to decide most cases. Granted, the board has a huge backlog of cases, and better management is needed. However, these new rules mandate reducing the number of board members from 19 to 11, a reduction DOJ claims is viable because “streamlining” measures will hasten decision-making, enabling the board to clear the backlog of more than 50,000 cases while keeping current with new appeals (about 30,000 a year) within six months. This is hard to believe. Eliminating the backlog in 180 days will, on average, require each board member to decide a staggering 32 cases a day — roughly one case every 15 minutes. Considering that appeal files often contain hundreds of pages, this goal is unattainable unless board members merely skim cases. Board members will be forced to rubber-stamp decisions made by immigration judges. While this process may reduce the number of cases pending before the board, it will also reduce accuracy and fairness. Alarmingly, DOJ seemingly accepts this outcome: Under the new rules, performance reviews of board members will highlight quantity of cases decided, not quality. The emphasis on quantity is bound to be amplified by the new rules’ emphasis on summary decisions. These single-sentence decisions — stating only the appeal’s outcome — are currently issued only in specified situations. But summary decisions will be the norm under the new rules, even though such decisions provide no stated justification for the board member’s determination. Accordingly, there will be no record proof — which a written decision otherwise would provide — that the determination was reached after careful consideration. Summary decisions by a single board member will preclude the collaborative decision-making that the board’s three-member panels provide. HASTE MAKES WASTE Given the important liberty interests at stake, a summary decision procedure does not comport with constitutional due process as articulated by the U.S. Supreme Court in Mathews v. Eldridge. Summary decisions also fail to provide adequate guidance on immigration issues — which the board is charged with providing — to the INS, practitioners and immigration judges. Immigration judges especially need guidance from the board: The rate at which different judges grant asylum varies tremendously. And summary decisions will nullify any benefit of expediting cases by prompting remands from federal courts back to the board. Such remands are probable under the new rules, given that the board will no longer have de novo review authority. Yet there are multiple examples of the board reversing immigration judges’ factual determinations — based on pro se claimants’ confusion, faulty interpreter translations or overly vague trial opinions — that serve as vivid reminders of the need for meaningful appellate review. Moreover, ensuring the consistency of immigration judge decisions demands that board members be empowered to review appeals thoroughly and explain their conclusions carefully. Without de novo review authority, however, and with the increasing use of summary decisions, the board will be powerless to fulfill an important part of its duties. The U.S. legal system relies heavily on appellate bodies to ensure that justice is dispensed fairly and consistently. Yet in its rush both to eliminate a massive backlog and to slash the board almost in half, DOJ has ignored this self-evident fact, and the equally important principle of due process. DOJ should rethink its misguided approach to case management. Ronald A. Schechter is a partner, and Thaddeus R. McBride is an associate, at Washington, D.C.’s Arnold & Porter.

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