U.S. Department of Justice
Executive Office for Immigration Review
Office of the Director
5107 Leesburg Pike, Suite 2400
Falls Church, Virginia 22041
Contact: Office of Public Affairs
(703)305-0289, Fax: (703) 605-0365
EOIR Publishes Final Rule for Streamlining Appeals Process
The Executive Office for Immigration Review (EOIR) published a final rule in the Federal Register today to establish for the Board of Immigration Appeals (Board) a streamlined appellate review procedure for affirming decisions in certain categories of cases. The proposed rule was published September 14, 1998.
The streamlined review process was adopted to address the unprecedented, continual growth in the number of appeals received by the Board in recent years. Appellate cases have doubled in the past 5 years, from 14,233 cases filed in fiscal 1994 to 28,146 cases in fiscal 1998. The rule recognizes that the Board reviews a significant number of cases in which the decision under appeal is correct and will not be changed on appeal. In these cases, a single permanent Board Member will be given authority to review the record and affirm the result below (i.e., the decision or determination under appeal) without issuing an opinion in the case. The opinion below, usually from an Immigration Judge, would stand as the final agency decision.
An affirmance without opinion will be issued only if the result below was correct, any errors in the decision below were harmless or immaterial, and either the issues in the case are controlled by precedent or the factual or legal issues raised are so insubstantial that a three-member panel review is not warranted. If an appellant makes a realistic argument that the underlying decision should be reversed, the case would not be appropriate for affirmance without opinion.
This rule is a major step forward because it would allow the Board to allocate resources more effectively and to adjudicate the growing caseload by concentrating on more significant cases that may require greater deliberation or that may present unusual or interesting legal questions. For example, many cases raise critical issues of law arising from anti-terrorism and immigration reform legislation of 1996 and later.
The streamlined procedure will also promote fairness by enabling the Board to render decisions in a more timely manner, while allowing it to concentrate its resources primarily on those cases in which the decision under appeal may be incorrect, or in which a new or significant legal or procedural issue is presented. It will aid the Board in accomplishing its dual mission of providing fair and timely adjudications and providing authoritative guidance and uniformity in the interpretation of immigration law. It will also allow the Board Members more time for essential functions such as writing opinions in published cases and hearing oral arguments in selected cases.
In addition, the final rule provides that a single Board Member may adjudicate certain motions or procedural or ministerial appeals, where the result of the case is clearly dictated by the statute, regulations, or precedent decisions.
The final rule published in the Federal Register on October 18, 1999, and effective immediately, amends Title 8 of the Code of Federal Regulations (8 CFR) by amending sections 3.1 and 3.2.