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The U.S. Department of Justice is moving toward the adoption of a far-reaching plan to change immigration appeals in the United States. It has drawn sharp opposition from some immigration lawyers and advocacy groups. As they await the unveiling of the final rules, critics say that they will eliminate due process for appellants, many of whom are without legal representation. The proposal would change the way the Board of Immigration Appeals, which reviews decisions of immigration judges, does business. Among other things, the board reviews deportation orders and denials of asylum sought by refugees claiming political persecution or the threat of harm. The rules were proposed in February. They seek to eliminate the board’s backlog of about 50,000 cases and to improve its efficiency, according to a Justice Department summary. The appeals board and immigration judges are part of the Justice Department. Board members, who are attorneys, not judges, are appointed by the U.S. attorney general. Appeals are languishing for two or more years, with some pending for more than five years, the DOJ says. Since 1995, new board members have been added as the backlog has continued to mount. The problem lies in procedures that bog down the board with unworthy cases, the department said in its proposal. Attorneys who represent immigrants are chafing. In every respect, “the proposed rules heighten the opportunity for erroneous board decisions,” Deborah Ann Sanders, executive director of Capital Area Immigrants’ Rights Coalition in Washington, D.C., wrote to the attorney general. What worries many immigrant attorneys is the proposal’s emphasis on speed. “There are repeated references to efficiency, efficiency, efficiency and not a single reference to accuracy and fairness,” says Eleanor Acer, director of the asylum program at the Lawyers Committee for Human Rights in New York, which recruits and assists attorneys in New York, New Jersey and Washington handling asylum cases pro bono. The appeals process would become a rubber-stamping without explanation of decisions by the 220 immigration judges in 52 courts, she says. Appellants “are losing a very significant opportunity to have meaningful review,” she says. “For some asylum seekers, this may be their only chance.” However, the plan is being cheered by anti-immigration groups who say it would hasten the deportation of aliens whose appeals are delaying tactics. The reform is a “modest step” toward balancing the application of the immigration laws, which have favored would-be immigrants, says Mark Krikorian, director of the Center for Immigration Studies, a Washington think tank favoring tighter immigration law enforcement. SIX-MONTH DEADLINE The proposal sets a six-month deadline for eliminating the 50,000-case backlog. This prompted the Capital Area Immigrants’ Rights Coalition to estimate that each backlogged case will get 15 minutes, with each board member reviewing 32 a day. Also under the proposal: � How asylum appeals are reviewed would change. All would first be examined by an individual board member who could summarily affirm without writing an opinion or consulting colleagues on the board’s three-member panels. Members also could dismiss appeals summarily if deemed to be filed for an improper purpose, such as delay, or if the appeal lacks an arguable basis in fact or law. A DOJ summary of the proposal says most cases would be resolved this way. The rule expands summary disposition powers begun in a 1999 streamlining program. Under that program, board members may issue summary decisions, but in limited circumstances. � After the backlog is erased, the size of the appeals board would be cut from 23 to 11 members. (There are four current vacancies.) The proposal did not say how the attorney general would decide who stays and who goes. � The board no longer could revisit factual determinations of immigration judges unless the decision is “clearly erroneous.” � The three-member panels would hear only cases to: settle inconsistencies between rulings of immigration judges, establish a precedent or clarify the law, correct a decision by an immigration judge or resolve a major case or controversy of national significance. � Appeals board members would be subject to strict time limits for deciding cases. After receiving briefs, a member would have 90 days to decide whether to affirm a case summarily or designate it for panel review. Panels would have 180 days to issue a decision and opinion. For the first time, board members would be reviewed for their ability to meet deadlines. � Board members who couldn’t meet the 180-day deadline could ask for a 60-day extension. If the case was not completed by then, the board chairman must either decide the case himself in 14 days or refer the case to the attorney general for a decision. If a dissenting or concurring panel member failed to complete an opinion by the end of the extension period, the decision would be rendered without it. Board members repeatedly failing to meet deadline would be reported to the attorney general. 56 PERCENT LAWYERLESS Arrayed against the rules are 60-some immigrant advocacy groups, including the American Immigration Lawyers Association, Capital Area Immigrants’ Rights Coalition and the Lawyers Committee for Human Rights. Among them is Stephen Yale-Loehr, who teaches immigration law at Cornell University and testified before a congressional committee about the proposal on behalf of the American Immigration Lawyers Association. He told the House immigration subcommittee in February that what’s troubling about emphasizing efficiency and limiting review is that 56 percent of people who appear before an immigration judge and 34 percent who appeal their cases don’t have lawyers. “When combined with the language barriers that many people face, immigration decisions are sometimes based on confusion or the innocent mistakes of an unrepresented person,” he says. Particularly in asylum cases, he said, the need for de novo review of a judge’s factual findings is compelling. The appeals board needs flexibility, he says. To make a successful case for asylum, a petitioner must show a “well-founded fear” that life or freedom is threatened because of race, religion, nationality, membership in a political or social group or political opinion. Asylum cases, “deserve the most careful, meaningful appellate review” because the wrong decision could result in persecution, torture or possibly death, says Michael L. Sozan, a former staff attorney at the board and now an associate at Arnold & Porter in Washington, D.C., which has an active pro bono immigration practice. Eliminating de novo review would remove a “critical safeguard” protecting refugees from being unfairly denied asylum, according to the Lawyers Committee for Human Rights. It cites the case of Fauzija Kassindja, a young woman who fled Togo fearing genital mutilation. The appeals board reviewed Kassindja’s testimony and granted her asylum, the group said. Many appellants can’t afford lawyers and don’t know that board decisions may be appealed to federal courts of appeals, Sozan says. If they take that route, they also must get a stay of their deportation within 30 days after the appellate ruling or risk being deported while their appeal is pending, says Acer. Appeals board decisions are considered final orders, she says. The six-month goal to erase the backlog strikes the Hebrew Immigrant Aid Society (HIAS) as laudable but dangerous. “Imposing strict time limits on disposition of cases will mean forcing harried and incomplete decisions made under the pressure of a ticking clock,” wrote Leonard Glickman, HIAS president and chief executive. Immigration lawyers are discussing a possible constitutional challenge but are making no plans. GAMING THE SYSTEM? The plan’s supporters argue that appellants with meritorious cases won’t suffer. Many in the backlog and among the 30,000 appeals filed annually are frivolous cases in which the would-be immigrant is taking advantage of the lengthy appeals process, says Michael M. Hethmon, staff counsel to the Federation for American Immigration Reform, a Washington public interest group that argues for curtailing immigration. Appellants are “typically a self-selected and resourceful group far more knowledgeable about our immigration system than most highly educated citizens, and have no scruples about gaming the system,” Hethmon wrote to the Justice Department in support of the proposal. He calls nonsense the idea that the appeals board is an independent judiciary. “The BIA is an administrative tribunal responsible for improving the consistent enforcement of immigration law, not an independent court of claims for aliens,” he wrote. There’s no reason why board members shouldn’t be judged on their efficiency, Hethmon wrote. “The Board is an administrative quasi-judiciary body, and it is entirely appropriate that such civil servants be managed, evaluated, and constrained by considerations of efficiency and productivity,” he wrote. Some critics argue that the reform represents Attorney General John Ashcroft’s efforts to remove immigrant-friendly members of the appeals board and exert his influence on the immigration appeals process, says Yale-Loehr. A Justice Department spokesperson did not return calls seeking comment. The reform proposal enters a political scenario already buzzing over the issue of conflicts of interest in immigration law. In January, the National Association of Immigration Judges proposed to Congress that immigration judges and the Board of Immigration Appeals be removed from the Justice Department and placed into a newly created executive branch agency. Its main argument for secession is that the Justice Department shouldn’t oversee both prosecutors and judges in immigration cases.

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