Interim BIA Rule

Download EOIRTempMembBIAFR.rtf  Issued on December 7, 2007, this interim rule amends the Executive Office for Immigration Review (EOIR) regulations relating to the organization of the Board of Immigration Appeals by adding four Board member positions, thereby expanding the Board to 15 members. This rule also expands the list of persons eligible to serve as temporary Board members to include senior EOIR attorneys with at least ten years of experience in the field of immigration law.

Lory Rosenbery, a former BIA member, posted the following comments on the interim rule on the Immprof listserve: 

. . . Note: This rule is issued contemporaneously with some in the Senate interested in considering statutory reform of the BIA’s administration and practices]. Notably, there are presently 3 temporary members of the 11 members on the BIA, leaving 8 full permanent Board Members. This rule would permit (an apparently intended) appointment of 4 more temporary members so that, of 15 members, there would be the Chairman plus an equal number of 7 permanent and 7 temporary members. Internal appointments would completely avoid the recruitment process and would allow EOIR to avoid consideration of the benefits of diversity among adjudicatory personnel. Of the 8 permanent Board members serving today, one is an African American woman and one is an Hispanic man, yet the 3 temporary appointments made were of three Caucasian men. This practice also perpetuates the absolute dominance of Board Members who are perennial federal government employees without any private or nonprofit practice or related immigration experience. The rule makes no mention of the fact that when the Ashcroft purge reduced the Board from 19 to 11 members in 2003, individual members either left in anticipation of removal, or “voluntarily” took other positions in the EOIR. Any Board openings could be offered to those individuals, who were fully vetted and had been appointed to those positions and then forced out. Half the members on the BIA would have no voice in en banc conferences and decisions, based on the unsubstantiated and questionable contention that ” permanently expanding the Board beyond a certain number would be likely to” . . . “impair[] its ability to review cases en banc.” This specious argument — that more than 11 members cannot have a meaningful or effective en banc conference — is belied by the fact that the 238 precedent decisions issued in the 7.5 years between September 1995 and May 2003 were issued en banc (with the exception of a few 3 member precedents) when the Board had 12 or more members.

****

In any event, the interim rule would not seem likley to put much of a dent into teh large backlog or meaningfully improve the quality of BIA decision-making, which has been much criticized in recent years by, among others, Judge Richard Posner. 

KJ