AG Barr’s Proposed Changes to Immigration Appeals Will Backfire

Recently, Attorney General William Barr announced changes to the Board of Immigration Appeals (BIA) in a stated effort to reduce the huge backlog in immigration courts (approaching 1 million pending cases).  There are two main changes. First, it allows the BIA to issue decisions without explanation (called an AWO) in many more cases than it does currently. Second, it allows the BIA to set precedent decisions (which are binding on the whole Immigration Court system) if two of the three panel Judges agree to make it precedent. Previously, such precedent required (at a minimum) the agreement of all three Judges on a three-member panel, or the majority of the Judges sitting en banc (meaning a panel of all the Judges). The changes are expected to be approved by the White House.

The push to change the immigration court system comes after President Trump suggested that he will fix the problems with the immigration courts by getting rid of asylum and of Immigration Judges. This proposal is clearly illegal because only Congress has the power to take such drastic measured and they are limited by due process and fundamental fairness mandates of the Constitution.

The first proposal will likely have the effect of substantially increasing the backlog at the Immigration Courts, which is the opposite of Barr’s stated intent. This is exactly what happened in 2002 when the Bush administration created the AWO policy. A few months after the policy was implemented, the number of pending cases more than doubled. A Cornell Law School study that assessed the effects of the policy change showed the number of decisions that the Board of Immigration Appeals needed to review had skyrocketed from 53,546 decisions in the months before it was enacted to 110,548 decisions just a few months later. Many cases with AWOs were then appealed outside of the immigration court system, to the federal Circuit Courts, significantly lengthening proceedings.

The Trump administration has long pledged to help alleviate the backlog and pressure on the Immigration Courts. However, they have enacted policies that have done just the opposite. In April 2018, former Attorney General Jeff Sessions imposed a quota of 700 case closures a year on immigration judges. The move actually compounded the immigration court backlog reportedly, because when judges are visibly under pressure to rush through their caseloads, defendants are much more likely to appeal their rulings. Then in May 2018, Sessions stopped the use of administrative closures, whereby judges could opt to withhold rulings on certain cases while immigrants filed applications with USCIS, allowing the judges to prioritize and streamline their caseloads.

All of these changes have reduced access to due process for immigrants, which may result in more deportations but also results in more appeals. These proposed changes to the BIA will put additional burdens on the federal appeals courts that eventually hear those cases which were given unfair treatment in immigration court and at the Board of Immigration Appeals.