More than a decade ago, Liberian native Jimmy Johnson deserted the army of the National Patriotic Front of Liberia, associated with strongman Charles Taylor, and sought asylum in the U.S.
But in 1995, the Board of Immigration Appeals determined that Johnson had failed to show that he was persecuted for his political opinions, according to a federal appeals court’s account of the BIA ruling.
Nor, the BIA ruled, had Johnson shown that his “persecution” was “solely the result of the guerrillas’ aim in seeking to fill their ranks in order to carry out the war with the government and pursue their political goal, their political motive being irrelevant.” The BIA opinion placed the word “persecution” in quote marks, according to the appeals court account. Johnson v. Gonzales, 416 F.3d 205 (3d Cir. 2005).
Though Taylor has long since abdicated, Johnson’s asylum case lives on. So do tens of thousands of others, the result, paradoxically, of the Justice Department’s streamlining procedures designed to ease the BIA’s “extensive backlogs.”
But while fast-tracking may have helped to clear the administrative load, it has moved the logjam from the BIA to the federal appeals courts, according to immigration lawyers. It’s an “administrative disaster,” says Marshall Fitz, associate director of advocacy with the Washington, D.C.-based American Immigration Lawyers Association.
Although Johnson’s appeal involved a written BIA decision, Fitz says, “What we’re seeing in a typical case is that the immigration judge makes an oral decision, the noncitizen appeals that decision and the BIA invokes the streamlining regulations,” allowing the BIA to affirm the IJ’s decision without opinion.
The IJ opinions “are incredibly difficult to understand, and are all over the place. There’s no clear picture of why they ruled the way they have,” Fitz adds. “That leaves the noncitizen and counsel with their hands up in the air trying to figure out the basis for the affirming decision.”
Nor are the appeals courts happy. “We’ve seen a lot of opinions coming out of the circuit courts that express great displeasure with the streamlining regulations,” Fitz says. “The BIA getting reversed so frequently and the tenor of the decisions–that’s what has become distinctive over the last two years.”
Case in point: Niam v. Ashcroft, 354 F.3d 652 (7th Cir. 2004). Calling the IJ’s analysis “so inadequate as to raise questions of adjudicative competence,” appellate judge Richard Posner slammed the BIA. “The elementary principles of administrative law, the rules of logic and common sense seem to have eluded the board,” Posner wrote.
A Case of First Impression
Lately, the appeals courts have begun ordering attorney fees for aliens filing claims. In July, the 3rd U.S. Circuit Court of Appeals based in Philadelphia required the federal government to pay more than $10,000 in fees to cover the cost of Johnson’s attorney, Visuvanathan Rudrakumaran of New York City.
The court held that an alien who prevails on his petition for review before the appellate court but whose case is remanded to the BIA for further proceedings (and who therefore may not ultimately prevail in the case) may nevertheless be considered a prevailing party–and thus entitled to attorney fees–under the Equal Access to Justice Act, 28 U.S.C. § 2412(d)(1)(A).
A case of first impression in the 3rd Circuit, the ruling follows similar decisions in two other circuits busy with immigration cases. In 1997, the San Francisco-based 9th Circuit Court of Appeals rejected the government’s argument that “petitioners were not prevailing parties within the meaning of the EAJA because they merely secured a remand for further agency action.” Rueda-Menicucci v. INS, 132 F.3d 493.
The Chicago-based 7th Circuit adopted this position last year. Muhur v. Ashcroft, 382 F.3d 653. In allowing the fees, the 3rd Circuit granted Johnson’s petition for review, holding that the BIA’s decision was not supported by “substantial evidence when it failed even to consider Johnson’s testimony from his second asylum hearing (which the immigration judge found credible in a finding not disturbed by the BIA) in reviewing the IJ’s decision resulting from that hearing.”
Frustration on Every Front
The attorney fee cases mark only the latest pang of frustration in the growing trend of asylum appeals from the BIA to the circuit courts, only to be handed right back to the BIA for further review. Most lawyers and judges point to the Justice Department’s streamlining rules.
Adopted in 1999, the procedures were designed to accelerate the growing number of asylum cases. The most dramatic change, according to observers, was moving some categories of cases to single BIA board members, rather than traditional three-member panels.
But the cases kept piling up, so the rules were further modified in 2002, expanding the number of cases referred to single members, eliminating de novo review of factual issues and expanding the grounds for mandatory dismissal.
The Justice Department credits streamlining for reducing the BIA’s case backlog from 56,000 in August 2002, when the modifications were made, to about 33,000 by last October.
But the Administrative Office of the United States Courts says BIA decisions have become a launching pad for appeals. In the last four years, appeals filed in federal courts from challenges to the BIA “rocketed upward” 515 percent.
The 2nd and 9th Circuits have borne the greatest number, according to the office. From fiscal year 2001 to FY 2004, 2nd Circuit BIA appeals increased from 170 to 2,632, a 1,448 percent jump. In the 9th Circuit, the 954 board appeals filed in FY 2001 increased to 5,368 appeals in FY 2004, a 463 percent leap.
The 2nd and 9th Circuits’ “dockets have been flooded by immigration appeals over these streamlining regulations,” Fitz says.
A BIA representative declined a request for an interview, noting that “we do not comment on specific cases.”
According to the Justice Department, the number of BIA decisions appealed to the federal courts compared with the total number of BIA decisions has increased from 5 percent before 2002 to a current level of 25 percent. Before the new regulations, federal courts were receiving about 125 BIA case appeals a month; now they are receiving about 1,000 to 1,200 per month, the DOJ says.
The DOJ says decisions not accompanied by a written opinion, known as affirmances without opinion, account for about a third of the BIA’s total decisions.
But immigration lawyers are critical. “The BIA streamlining rules permit a single administrative law judge to issue a summary affirmance–essentially a postcard denial–of an appeal from an immigration judge’s decision,” says immigration lawyer Jayne Fleming of the Oakland, Calif., office of Reed Smith. “Naturally, an asylum applicant feels frustrated when this happens because there is no assurance the board has fully and fairly considered his arguments on appeal.”
In July, Fleming won asylum for Reina Garcia-Martinez, now a San Francisco-area resident, who was raped by soldiers in Guatemala in 1993.
“The problem is compounded when the applicant files a petition for review in the circuit court and the court issues a nonpublished opinion that does not contain a developed analysis,” Fleming says. “In cases where a petition for review is denied, the applicant is fated to deportation with no real explanation for the denial of their claim.”
Fleming says asylum seekers are looking for transparency. “The summary affirmance and nonpublication practices are in tension with notions of judicial transparency and accountability,” Fleming says. “And while it is true that not every case presents a novel legal issue, publication of fully developed opinions in asylum cases provides a guarantee of intellectual discipline. This discipline, in turn, guarantees that our application of human rights laws is evolving rather than frozen in time.”
Constitutional challenges to streamlining have been shot down by the circuits. Congress has considered measures to undo the procedures and establish an independent structure, but no bill has progressed very far.
Meanwhile, as Johnson’s case enters its second decade, Rudrakumaran says his client has been pursuing online courses and hopes one day to attend law school. “He says when he becomes a lawyer he might finally get asylum,” Rudrakumaran says.