Although there has been much discussion lately (including by me) about the backlogs before the Immigration Courts, the courts are not the only bottleneck preventing the efficient adjudication of removal cases.
In its recent report on backlogs in the immigration courts, the Government Accountability Office (GAO) also described the backlogs facing the Board of Immigration Appeals (BIA). According to the Executive Office for Immigration Review (EOIR), the Justice Department agency with jurisdiction over the BIA:
The [BIA] is the highest administrative body for interpreting and applying United States immigration laws. The BIA is authorized 17 Board Members, including a Chairman and Vice Chairman. Primarily, the BIA reviews appeals from certain decisions that immigration judges and district directors of the Department of Homeland Security (DHS) render, ensuring that the immigration laws receive fair and uniform application. The BIA decides each appeal on a case-by-case basis, affording each case the necessary time and consideration to ensure fairness. BIA decisions are binding on all immigration judges and DHS officers.
Unlike the swelling backlogs in the immigration courts, the GAO found that "[t]he appeal backlog — the number of appeals pending at the start of each fiscal year — declined by 40 percent" between fiscal year (FY) 2006 and FY 2015. While this might seem to be a success story, the truth is somewhat different.
Specifically, GAO found that between FY 2006 and FY 2015, "the number of new appeals filed with the BIA decreased by 37 percent while the number of appeals completed declined by 33 percent." It concluded: "Because new appeal receipts declined at a faster rate than appeals completed from fiscal year 2006 to fiscal year 2015, the appeal backlog decreased, from about 42,000 appeals pending at the start of fiscal year 2006 to about 25,000 at the start of fiscal year 2015."
Even with the decrease in the number of appeals filed with the BIA, according to GAO: "Cases that were pending at the start of fiscal year 2015 had a median pending time of 211 days." While this was "19 days shorter than the median pending time for appeals that had been pending at the start of fiscal year 2006", this means that the median pending time per appeal at the BIA only decreased by just over 8 percent between FY 2006 and FY 2015, while the number of new appeals filed with the BIA (according to GAO) declined by 37 percent during the same period.
Even if the differences in these percentages were lower, however, 211 days for the BIA to issue a decision is still too much time, particularly considering the fact, as GAO found, that "[a]t the start of [FY] 2015, immigration courts had a backlog of about 437,000 cases pending and the median pending time for those cases was 404 days." This means that on average, it took EOIR 615 days to complete a single case at the administrative level.
The BIA's inability to improve its performance more, given its caseload, is all the more problematic given the fact that, as GAO notes: "From fiscal year 2006 to fiscal year 2015, single BIA members annually reviewed 90 percent or more of completed appeals." BIA decisions were issued by three-member panels up until 1999, when, as the American Bar Association has noted, a new "rule permitted a single Board member to issue decisions in a limited range of cases." That said, the Justice Department admitted that: "Over 58 [percent] of all new cases in 2001 were sent to be summarily decided by single Board member review through streamlining."
[S]hall establish a case management system to screen all cases and to manage the Board's caseload. Unless a case meets the standards for assignment to a three-member panel under paragraph (e)(6) of this section, all cases shall be assigned to a single Board member for disposition.
Pursuant to the referenced provision, 8 C.F.R. § 1003.1(e)(6):
Cases may only be assigned for review by a three-member panel if the case presents one of these circumstances:
(i) The need to settle inconsistencies among the rulings of different immigration judges;
(ii) The need to establish a precedent construing the meaning of laws, regulations, or procedures;
(iii) The need to review a decision by an immigration judge or the Service that is not in conformity with the law or with applicable precedents;
(iv) The need to resolve a case or controversy of major national import;
(v) The need to review a clearly erroneous factual determination by an immigration judge; or
(vi) The need to reverse the decision of an immigration judge or the Service, other than a reversal under § 1003.1(e)(5).
The last referenced provision, 8 C.F.R. § 1003.1(e)(5), states:
Other decisions on the merits by single Board member. If the Board member to whom an appeal is assigned determines, upon consideration of the merits, that the decision is not appropriate for affirmance without opinion, the Board member shall issue a brief order affirming, modifying, or remanding the decision under review, unless the Board member designates the case for decision by a three-member panel under paragraph (e)(6) of this section under the standards of the case management plan. A single Board member may reverse the decision under review if such reversal is plainly consistent with and required by intervening Board or judicial precedent, by an intervening Act of Congress, or by an intervening final regulation. A motion to reconsider or to reopen a decision that was rendered by a single Board member may be adjudicated by that Board member unless the case is reassigned to a three-member panel as provided under the standards of the case management plan.
Logically, were the 16 current members of the BIA to issue more decisions in three-member panels, the BIA's backlog would likely increase, and it would take more time for the BIA to issue a decision.
That said, there are certainly instances beyond those listed in statute where a three-member panel would be preferable. Each BIA member, like each judge, evaluates evidence differently. Explanations that may appear reasonable to one member may not appear the same to two others.
In addition, and again logically, additional review would result in better decisions, and fewer cases would be reversed by the courts of appeals were three BIA members to reach a conclusion than just one. According to the Department of Justice, in 2016 the courts of appeals remanded to or reversed the BIA in 11.3 percent of the appeals in which they issued decisions. This is much lower than 2006, when the courts of appeals reversed or remanded 17.5 percent of all of the appeals they considered, but still higher than the 9.3 percent remand or reversal rate in 2012.
Increasing the number of BIA members, and broadening the range of decisions that three-member panels hear, therefore, might both improve the quality of the BIA's decisions as a whole, and shorten the appeal period for the cases the BIA reviews.
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, as well. 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 board's performance, however and increase the number of members, in the interests of expediency and justice.