U.S. Immigraton Judge (Retired)
Director, Immigrant Legal Defense Program, Justice & Diversity Center of the Bar Assn. of San Francisco.
Jeffrey S. Chase Blog
Coordinator & Chief Spokesperson, Round Table of Former Immigration Judges
Retired U.S. Immigration Judge
Member Round Table of Retired Judges
Former Appellate Immigration Judge, BIA
Source:
Denverdemocrats.org
U.S. Immigration Judge (Ret.)
Source: Twitter
The Round Table of Former Immigration Judges is composed of 47 former Immigration Judges and Appellate Immigration Judges of the Board of Immigration Appeals. We were appointed by and served under both Republican and Democratic administrations. We have centuries of com- bined experience adjudicating asylum applications and appeals. Our members include nation- ally-respected experts on asylum law; many regularly lecture at law schools and conferences and author articles on the topic.
Our members issued decisions encompassing wide-ranging interpretations of our asylum laws during our service on the bench. Whether or not we ultimately reached the correct result, those decisions were always exercised according to our “own understanding and conscience,”1 and not in acquiescence to the political agenda of the party or administration under which we served.
We as judges understood that whether or not we agreed with the intent of Congress, we were still bound to follow it. The same is true of the Attorney General, Secretary of Homeland Security, and for that matter, the President.
INTRODUCTION
Initially we note that the current practice of reducing the time for notice and comment, severely undermines the ability for the public to digest and comment on rules. The reduction of time to
1 See Accardi v. Shaughnessy, 347 U.S. 260, 266-67 (1954). 1
30 days violates the intent of Congress to give full deliberation to regulatory changes. As experi- enced adjudicators, we are in a unique position to contextualize these changes, but even with our experience, the breadth of these proposed regulations should allow for additional time to review and comment.
Next, we note that the Notice of Proposed Rulemaking (NPRM), contains changes that continue to diminish the role and function of the Board of Immigration Appeals (BIA) as an independent adjudicatory body free from political pressure. For example, the granting of certification author- ity to judges who are supposed to be subject to the appellate review of the BIA, does not further the objectives of finality or due process. Further, these rules are slanted in ways that diminish actions and take away tools used by Immigration Judges and Board to manage dockets and en- sure consideration of changed circumstances that might arise for either party. Under the NPRM, the Department of Homeland Security is invited to utilize unlimited power to reopen cases for negative information, and all opportunity for respondents to obtain reopening for new infor- mation have been removed.
In our review we do not object to the clarifications and changes regarding: 1) finality; 2) the ex- pansion of the authority to grant voluntary departure to the BIA; and 3) having cases that only need security checks being placed on hold by the BIA.
However, we do object to: 1) the proposed shortened briefing schedule; 2) simultaneous briefing in non-detained cases; 3) the prohibition from receiving new evidence on appeal, remanding a case for the immigration judge to consider new evidence in the course of adjudicating an appeal, or considering a motion to remand based on new evidence; 4) the elimination of the ability of immigration judges to consider issues beyond the express scope of the remand; 5) giving Immi- gration Judges Certification Authority over BIA decisions; 5) the proposed elimination of admi- nistrative closures; 6) the proposed elimination of the delegation of sua sponte reopening author- ity; 7) removal of BIA certification authority; 8) the imposition of new deadlines and timeframes for adjudication of appeals with those failing to be adjudicated in the specified time being re- ferred to the EOIR Director for adjudication; and 9) the elimination of Immigration Judge review of transcripts.
In short, there is little in the NPRM, that furthers the interests of ensuring a fair and neutral adju- dication. We are concerned with the overall diminishment of the BIA as an appellate body.
Read the full 17-page comment with the names of all the signers here:
BIA restructure regulation comments_FINAL
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Many thanks to Ilyce, Jeffrey, Joan, Cecelia, and Rebecca for spearheading this effort!
B/T/W, “diminishment’ is a polite term for “dumbing down!” In this case, “further dumbing down.”
Due Process Forever!
PWS
09-26-20