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The court of last resort for many immigrants is about to undergo a radical transformation that lawyers say will result in more deportations and fewer grants of asylum. According to new regulations recently announced by Attorney General John Ashcroft, the jobs of eight of the 19 members of the Board of Immigration Appeals will be slashed, and the board must eliminate its entire backlog of cases by next March. Speculation is already swirling about who will be ousted. The board also has to immediately institute a new case management method that will result in far fewer judges reviewing each case. The Justice Department argues that the changes are needed to achieve speed and uniformity at a court that has grown bloated and slow. “The Board of Immigration Appeals needed a complete overhaul,” Ashcroft said in an Aug. 23 announcement. “The board had become a bottleneck in the system, undermining the enforcement of our country’s immigration laws.” But the immigration rights community is outraged and says the new regulations will mean less due process for those hoping to make a new home in the United States. “This is an exercise that is not just streamlining,” says Elisa Massimino, director of the Washington, D.C., office of the Lawyers Committee for Human Rights. “Ultimately, the Justice Department wants to ensure that the [board] doesn’t present an obstacle to any of its objectives, which include swift and scanty reviews of the deportation of immigrants.” The Board of Immigration Appeals is not a federal court. It is part of the Executive Office of Immigration Review, which is itself a division of the Justice Department. The judges and board members are DOJ employees — not administrative law judges, who by law are given a level of independence from the agency whose decisions they review. The Immigration and Naturalization Service — which arrests, detains and prosecutes illegal immigrants — and the Executive Office are separate agencies. But both report to the attorney general, who retains ultimate power in all immigration cases. Ashcroft can overrule decisions of the Board of Immigration Appeals whenever he chooses. Today the board has 23 slots, 19 of which are filled, and handles about 30,000 appeals each year, most from people fighting against deportation or for asylum. In years past, most appeals went to a three-judge panel. In 1999, under then-Attorney General Janet Reno, the agency instituted a “streamlining” project that steered certain cases to individual judges. The agency’s case completion rate has since shot up. And it’s getting faster. According to the Justice Department, when streamlining began, the board completed 1,800 cases a month. By February 2002, the number was 3,300 cases a month. Now, the board is finishing 5,200 cases a month. STREAMLINING OR GUTTING? Ashcroft’s regulations are substantially the same as those he proposed in February. Although he received significant opposition, the DOJ altered little in the regulations. In addition to cutting the board’s size, Ashcroft’s new rules expand the streamlining efforts and require that almost every appeal be reviewed by a single judge, rather than a panel. Only cases that present “difficult or novel” issues will get a three-judge review. The regulations spell out six criteria that could trigger three-judge review, and board Chairwoman Lori Scialabba will develop a protocol for identifying such cases. Ashcroft also is eliminating the board’s power of de novo factual review, except in cases where lower-level judges are “clearly erroneous” in their finding of facts in a case. Other changes include shorter time limits for filing appeals and briefs and for issuing decisions. “It’s going to restrict the unlimited flow of appeals of immigration judges’ decisions,” says Michael Hethmon, staff counsel for the Federation for American Immigration Reform, a D.C.-based organization that advocates for tougher restrictions on immigration. “The backlog will be reduced because the intake will be reduced. The board will have less discretion to rule on a case because they like the fact pattern.” Says Michael Heilman, a 15-year veteran of the board who left last year: “A lot of the appeals that come to the board are baseless. The great majority are simply for the person to gain time. It keeps the INS off their backs.” To others there is little to like in Ashcroft’s changes. With fewer judges, cases will get more-cursory looks, and more lower-level decisions, most of which side with INS initiatives to seek deportation or deny asylum, will be upheld, critics argue. They also say immigrants may find it more difficult and more expensive to get a lawyer willing to handle their appeals due to the shortened time frames for filing appeals and briefs. About 36 percent of the aliens who appealed to the board in 2001 did not have legal counsel, DOJ statistics show. Immigrants in certain cases can appeal board decisions to a federal appeals court. And immigration experts say those courts will not look kindly on the board’s expediting efforts. Already the board has come under attack from various appeals courts — including the 9th U.S. Circuit Court of Appeals — for cursory appellate review. Critics say unfavorable federal decisions will only increase after these changes, leading to a rise in the number of cases that are sent back to the board by the federal judiciary. The looming ouster of the judges is generating the largest outcry. “This is an effort to get rid of certain board members,” says University of Southern California law professor Niels Frenzen, who has worked on several high-profile immigration cases. “By going to the single-board-member review, one board member would have much more power. The only way [Ashcroft] can neutralize the liberals on the board while going to a one-board-member system is to get rid of them.” Several board members are seen as likely targets because of their dissents and opinions. At the top of the list is Lory Rosenberg, who served on the American Immigration Lawyers Association’s board of governors and frequently dissents. Others seen as vulnerable include Cecelia Espenoza, Juan Osuna and Paul Schmidt. All were appointed by Clinton Attorney General Reno. The Board of Immigration Appeals referred questions to the Justice Department. According to a Justice Department spokesman, no decisions have been made about who will be losing their position on the board. “Political affiliation and number of dissents will not be factors in the attorney general’s decision making,” says the spokesman. “The attorney general will look for appropriate judicial temperment, stature in the field, expertise, and respect for the rule of law.” The tinkering has many in the immigration rights community muttering about the independence of the immigration courts. The National Association of Immigration Judges, which represents judges at the trial level, has been lobbying to separate all the judges and the INS from each other as part of the government’s creation of a new Department of Homeland Security. But where the INS and the Executive Office of Immigration Review will end up is far from settled. Competing administration and congressional proposals call for different outcomes, from moving the judges and the INS together, to separating them and making the judges more independent. “[The board's] legitimacy in the eyes of the public and among the immigrant community is based on its ability to act in an independent and fair-minded way,” says T. Alexander Aleinikoff, a professor at Georgetown University Law Center and former INS general counsel. “If the attorney general uses his authority to pack and stack the board with members who tend to agree with the immigration service, that is not impartial justice.”

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