- The number of cases that are remanded by circuit courts to the Board of Immigration Appeals (BIA) is the best gauge of the BIA's performance.
- From FY 2016 through FY 2019, the number of circuit court remands has fallen, precipitously, from 1,340 to 602 — a 55 percent decrease, and a decline of 66.5 percent from the 12-year high of 1,799 in FY 2008. Through the first two quarters of FY 2020, that figure is 293, on track for fewer than 600 remand orders this fiscal year.
- Those remands have decreased despite the fact that the number of BIA case appeals completed increased from 19,286 in FY 2016 to 19,448 in FY 2019 — with significant increases in between. And the number of BIA case appeal completions in the first two quarters of FY 2020 was 13,741, a trend that if it continues would equal more than 27,000 completions for the fiscal year.
- The number of board members has not kept up with the hiring of immigration judges in recent years. The number of immigration judges increased from 289 in FY 2016 to 489 through the second quarter of FY 2020 — a more than 69 percent jump. It is only in the past few months that the number of board members has been increased — by nine permanent board members since August 2019, for a total of 19 permanent board members and six temporary board members at the present time.
- That hiring is crucial to keep up with a jump in pending administrative appeals, which have increased more than sevenfold, from 11,128 in FY 2016 to 95,422 through the first two quarters of FY 2020.
- In considering the process for hiring of BIA board members, it is important to keep in mind the fact that they have no statutory authority of their own, but merely exercise authority delegated by the attorney general — whom Congress has designated as the ultimate arbiter of immigration determinations and rulings.
A recent article in Law 360 details complaints by private immigration attorneys that the hiring process for appellate immigration judges (formerly, and still widely, known as "board members") has become "too politicized", and that an expansion of the Board of Immigration Appeals (BIA) under the Trump administration has allowed the Executive Office for Immigration Review ("EOIR", the Department of Justice (DOJ) component that oversees the BIA and immigration courts) to "implement ideological changes to court policies and procedures." Whatever perspective one may have, the best tool to gauge the quality of decisions issued by the BIA is the number of times its decisions are remanded by the circuit courts, and that number is falling.
As government agencies go, EOIR provides a lot of transparency into its work, specifically on its workload and adjudication statistics page. The easy-to-read charts and graphs therein tell you how many cases are pending before the immigration courts (1,122,697 through March 31, 2020, the end of the second fiscal quarter), how many are pending before the BIA (95,422 through the second quarter of FY 2020), the number of removal orders issued in removal proceedings (144,548 out of 192,247 decisions, or 75 percent through the second quarter of FY 2020), and asylum denial rates (53.67 percent for FY 2020, through the first quarter), among dozens of other statistics.
That page also contains the sorts of information that government agencies generally try to hide, like the number of complaints filed against immigration judges (25 through the first quarter of FY 2020). And, most pertinently for this discussion, the number of circuit court remands filed (293 through the second quarter of FY 2020).
By way of background, aliens have a right to appeal adverse immigration-court decisions to the BIA, but must file a petition for circuit-court review of an adverse BIA decision in accordance with section 242(b) of the Immigration and Nationality Act (INA) (as I have explained previously, the Department of Homeland Security cannot seek federal court review of adverse BIA decisions). Circuit courts will then, generally, do one of three things: (1) dismiss for lack of jurisdiction or on other grounds; (2) affirm the decision of the BIA; or (3) reverse the decision and remand it to the BIA for further proceedings in accordance with the circuit court's determinations.
The number of circuit court remands, therefore, as a general rule, reflects the degree to which the courts of appeal conclude that the BIA made the right decision. The higher the number of remands, the more times the circuit courts concluded that the BIA erred, and conversely, the fewer the remands, the more times that the circuit courts concluded the BIA was correct.
How important is the remand rate? Much was made of the fact that EOIR had set a case completion goal of 700 cases per immigration judge in 2018 (so-called quotas according to opponents of the plan) that immigration judges must meet as part of their performance evaluations. Little if anything was said of the fact that those goals also contained a remand rate from the BIA and circuit courts for those judges of 15 percent.
CLINIC, for one, complained: "It seems clear that the only way to meet these quotas would be to greatly reduce the number of cases that are set for trial, and to increase removal orders." Really? If that were true, there would be no remand rate requirement at all because some removal cases should be dismissed, and some applications for immigration relief should be granted — two situations in which "removal orders" would be inappropriate, and a remand is sure to follow. These standards are more akin to the baseball axiom of "pitch fast, throw strikes", or in other words, get it right and do so quickly.
Critically, since FY 2017, the number of circuit court remands has fallen, precipitously. In FY 2016, 1,340 circuit court remands were filed, a number that dropped by more than 50 percent, to 667 in FY 2017. Remands ticked up slightly (to 693) in FY 2018 from the year before, before dropping again, to 602 in FY 2019 (a 55-percent decrease over FY 2016, and a 66.5 percent decrease from the 12-year high of 1,799 in FY 2008). Through the second quarter of FY 2020, the number of remands was 293, a trend that would result in fewer than 600 remands this fiscal year.
The decrease in the number of remands is not explained by a decrease in the number of case appeals completed by the BIA. In FY 2016, the BIA completed 19,286 case appeals, a number that increased to 21,454 in FY 2017. BIA case appeal completions dropped slightly to 20,987 in FY 2018 and again to 19,448 in FY 2019 — a decrease of just more than 9 percent over that two-year period, but still 162 more than in FY 2016. The number of BIA case completions in the first two quarters of FY 2020, however, was 13,741, again a trend that if it continues would equal more than 27,000 completions for the fiscal year.
Now, of course, remands are a "lagging indicator", because it takes time for an appeal to be filed and the circuit court to issue a decision. That said, the number of board members and the makeup of the BIA varied between FY 2016 (between 14 and 16 members, with four temporary members) and FY 2018 (between 15 and 16 members, with between six temporary members and none at all). All of them must have been doing something right.
There has been a significant increase in the hiring of board members in the last few months. The BIA had between 15 and 20 members with between three and six temporary members in FY 2019, and between 16 and 20 members with four to seven temporary members in the first two quarters of FY 2020. Given the fact that the number of pending appeals has jumped from 11,128 in FY 2016 to 95,422 through the first two quarters of FY 2020, however, that increase in staffing is plainly necessary, and should be lauded, not criticized. If anything, the number of board members should be significantly increased.
It should be noted that the number of board members hired, however, failed to keep up with the increase in the number of immigration judges in the first two years of the Trump administration. The number of immigration judges increased from 289 in FY 2016 to 489 through the second quarter of FY 2020 — a more than 69 percent jump. As the figures above show, there was not a comparable rate of hires of board members.
Some nine new board members have come on board since August 2009. The hiring of those new board members was the focus of the Law 360 article, which states:
The allegedly politicized hiring could be a result of new procedures that were made public Tuesday through FOIA litigation brought by the American Immigration Lawyers Association [AILA] and the American Immigration Council.
A memo, signed by Attorney General William Barr in March 2019, sped up the hiring process for board members and gave [James] McHenry, the EOIR director, more flexibility in deciding which candidates to select, including by eliminating a scoring system for candidates.
The first sentence begs the question whether the hiring of board members has been "politicized" ("allegedly" or otherwise) at all. That said, however, "spe[e]d[ing] up the hiring process" for board members was plainly necessary — the BIA is swamped with cases.
I will discuss those new procedures, and the resulting hires, in a later post. The important point to keep in mind is that the BIA does not exercise any statutory authority of its own (it has none). Rather, it is exercising the authority that the attorney general himself has been given by Congress under section 103(a)(1) of the Immigration and Nationality Act (INA), which states "determination and ruling by the attorney general with respect to all questions of law shall be controlling."
The attorney general has delegated that authority to the BIA in 8 C.F.R. § 1003.1, but still retains the ultimate authority to rule on administrative appeals in subsection (h) therein, the determinations of the BIA notwithstanding. And, as I have previously testified, given the fact that immigration determinations are closely tied to the foreign policy of the United States (an area in which the executive branch has sole authority), that is how it should be.