DOJ to Expand the Board of Immigration Appeals

By Andrew R. Arthur on March 1, 2018

In a July 26, 2017, post captioned "Expand the Board of Immigration Appeals", I called on the Department of Justice (DOJ) to expand the number of board members on the Board of Immigration Appeals (BIA) from its then-current authorization of 17 board members. At that time and continuing to the present day, the BIA consists of 16 full-time members, with additional temporary board members appointed for limited terms.

As I explained in that post:

It should also be noted that 11 of the BIA's current 16 members were appointed by attorneys general selected by Democratic presidents, while five were appointed by attorneys general selected by Republican presidents. Adding additional BIA members would give the president the opportunity to address this imbalance. ... At a minimum, the president should appoint a 17th BIA Member.

Just as there is no perfect process for an adjudicator to follow in reaching a decision, there is no perfect number of BIA members. The president should evaluate the current number of BIA members and the [BIA's] performance, however, and increase the number of members, in the interests of expediency and justice.

Recognizing the need for additional board members, the attorney general published a final rule this week in the Federal Register expanding the number of board members by four to 21. As DOJ explains therein, the Executive Office for Immigration Review (EOIR), which has jurisdiction over the immigration courts and BIA:

[I]s currently managing the largest caseload the immigration court system has ever seen. At the end of FY 2016, there were 518,545 total cases pending before the immigration courts, marking an increase of 58,988 cases pending above those at the end of FY 2015. See 2016 EOIR Statistics Yearbook W1. As of January 1, 2018, there were 667,292 total cases pending before the immigration courts. This total increase included an increase in the number of pending cases of detained aliens. EOIR's highest priority is the efficient and timely adjudication of detained alien cases, and EOIR requires additional resources to handle the increased caseload.

The Department is taking steps to address the unprecedented pending caseload. The Department hired 64 additional immigration judges in FY 2017 and continues to hire new immigration judges. The Department expects that, as these additional immigration judges enter on duty, the number of decisions rendered by the immigration judges nationwide will increase, and the number of appeals filed with the Board will increase as a result. The Department is also taking a number of management steps to more efficiently address the pending caseload, which EOIR expects will result in an increase in immigration judge decisions and, in turn, an increase in the flow of appeals to the Board.

In fact, as that final rule explains, there has already been an increase in appeals to the BIA, with "the number of appeals increas[ing] throughout FY 2017, from 2,618 in October 2016 to 3,035 in September 2017."

Expanding the BIA makes sense for a number of reasons beyond just those listed in the final rule. First, additional board members will enable the BIA to control its backlog and limit the number of days that it takes to issue each individual decision. The longer that it takes for the BIA to issue decisions, the more equities alien appellants acquire in the United States, and logically the less likely they are to appear if they are ordered removed.

Second, and as important, expanding the number of board members will enable the BIA to issue more thoughtful, reasoned, and complete decisions. This in turn will limit the number of petitions for review filed with the courts of appeal and limit the number of reversals and remands of BIA decisions issued by those courts.

According to the most recent statistics from DOJ, the courts of appeal reversed or remanded 10 percent of the 461 BIA decisions that they considered between September and November of 2017, an improvement over the period January to November 2017 as a whole, when the courts of appeal reversed the BIA 12 percent of the time in the 1,543 cases they considered.

Limiting the number of petitions for review filed with the circuit courts, and the number of reversals and remands from those courts, will serve three purposes: First, it serves the interests of justice generally by ensuring that the correct result is reached in each case as quickly as possible. Second, it will limit the period of time that it takes for U.S. Immigration and Customs Enforcement (which represents the government before the immigration courts and BIA) and the Office of Immigration Litigation (OIL, the DOJ component that represents the government before the courts of appeals) to obtain final orders of removal against removable aliens, making it more likely that those aliens will actually be removed. Third, it will also ensure that those aliens who merit dismissal of the immigration charges against them and/or merit relief have their cases heard in an expeditious manner, enabling them to proceed with their lives in the United States more quickly.

It is now up to DOJ to fill those additional board member positions as quickly as possible, and with the best candidates available. That said, the BIA should continue to assign immigration judges from the field as temporary BIA members even after this expansion. This will, as a primary matter, ensure that the backlog of appeals remains at a reasonable level. It will also give those immigration judges the opportunity to better understand the immigration laws generally and the appellate process specifically, resulting in better immigration court decisions.