Proposed Rule on BIA Decision-Making

The decions of the Board of Immigration Appeals have been the subject of intense critical commentary in recent years.  We have reported, for  example, on Judge Richard Posner’s scathing criticism of the quality of the Board’s decioninmaking.  What does the Department of Justice do?  It proposes a rule that, at least in party by affording the Board “greater flexibility” to issue affirmances without opinions, to make matters worse.  The new proposed rule of the Executive Office for Immigration Review, to appear in the federal register tomorrow provides:

“This proposed rule would amend the Department of Justice (Department) regulations regarding the administrative review procedures of the Board of Immigration Appeals (Board) in three ways. First, this rule provides greater flexibility for the Board to decide, in the exercise of its discretion, whether to issue an affirmance without opinion (AWO) or any other type of decision. This rule clarifies that the criteria the Board uses in deciding to invoke its AWO authority are solely for its own internal guidance, and that the Board’s decision depends on the Board’s judgment regarding its resources and is not reviewable. The revision related to AWO is needed to address divergent precedent in the United States Courts of Appeals regarding the reviewability of the Board’s decision to issue an AWO. Finally, this revision clarifies that when the Board issues an AWO or a short decision adopting some or all of the immigration judge’s decision, the decision is generally based on issues and claims of errors raised on appeal and is not to be construed as waiving a party’s obligation to raise issues and exhaust claims of error before the Board.

Second, this rule expands the authority to refer cases for three- member panel review for a small class of particularly complex cases involving complex or unusual issues of law or fact.

Third, this rule amends the regulations relating to precedent decisions of the Board by authorizing publication of decisions either by a majority of the panel members or by a majority of permanent Board members and clarifying the relevant considerations for designation of precedents. These revisions implement, in part, the Memorandum for Immigration Judges and Members of the Board of Immigration Appeals issued by the Attorney General on August 9, 2006.”

KJ