Asylum Protection News:
Special Edition

New Justice Department Rules Gut Due Process for Refugees Seeking Asylum in the United States

Justice Department Wants Speed to Come First
at the Board of Immigration Appeals;
New Rules Would Allow Only 15 Minutes Per Case

Attorney General John Ashcroft is seeking to speed up adjudication at the U.S. immigration appeals board, in such drastic ways that asylum advocates say his proposed changes could render the appeal process meaningless. The new rules would eliminate de novo review in most cases, greatly increase the use of summary decisions, and require simultaneous briefing with shorter briefing deadlines. The Attorney General would also require the appeals judges to clear their current backlog of about 55,000 cases within 180 days - so fast that each judge would have to decide 32 cases every work day, or one every 15 minutes.

"Justice delayed is justice denied," Ashcroft said as he announced the new rules. The Justice Department points out that appeals to the Board of Immigration Appeals (BIA) routinely take two years, and some cases languish for as long as five years. But advocates say that the constraints on deliberation the new rules will place on the Board puts justice at risk. Even the period allowed for commenting on the new rules was abbreviated, to 30 days instead of the usual 60 days. During that time many advocacy groups, including Human Rights First, alarmed at the effect the new rules might have on due process, submitted comments. We understand that the final rules may be issued as early as mid-May.

Elimination of de novo review

The Attorney General's proposal would eliminate de novo review of factual findings by immigration judges except where the Board concludes that those findings are "clearly erroneous." In many past cases, as Human Rights First pointed out in its formal comments on the new rules, the BIA has concluded that immigration judges were wrong about the facts on which their decisions were based. A well-known example is the case of Fauzija Kassindja, a young woman who fled Togo in fear of female genital mutilation. The BIA conducted an independent review of Ms. Kassindja' testimony and granted her asylum. De novo review is a critical safeguard to protect refugees from being unfairly denied asylum.

Asylum cases are particularly dependent on facts, since an asylum seeker must prove that her fear is "well-founded." The opportunity for full appellate review is especially important in cases where the credibility of survivors of torture and other trauma, who often have difficulty testifying about their traumatic experiences, is at issue. And many asylum seekers are unable to afford a lawyer to help them prepare and put on their case, which often means that the critical facts are presented inexpertly, as the Cornell University law professor Steven Yale-Loehr pointed out in testimony on the proposed rules before the House Judiciary Committee in February. In such cases, de novo review is essential to ensure that refugees are not erroneously denied protection.

Summary decisions

Under the proposed rule, most cases would be decided by a single appellate board member, not a panel, who would either summarily affirm the decision of the judge below - agreeing without comment - or would issue a brief order affirming, reversing, or modifying each decision, or sending it back to the judge below for re-hearing. Summary affirmances would be used in cases where "factual and legal issues raised are not so substantial." As Human Rights First pointed out in its comments, the phrase "not so substantial" is vague and undefined.

Human Rights First also argued that summary affirmance is especially inappropriate in cases where an asylum-seeker is barred by the rule that requires applicants to file for asylum within one year of arriving in the United States. The exceptions to that rule are complicated and difficult to interpret, and like other issues to be decided in asylum cases, they can make all the difference in the life (or death) of an asylum-seeker. The law bars federal courts from hearing appeals on the filing deadline issue, so curtailing administrative review by the BIA could mean that a deserving refugee is denied protection without any judge -- or anyone in the government -- hearing the merits of the claim.

New time limits for adjudication

Under the new rules, both parties would be required to write briefs simultaneously, within the same 21-day period, instead of the current 30 days. Attorneys prefer the current rule, where one side briefs first, and then the other can write in response to those arguments. Also, since many asylum-seekers are represented pro bono, if at all, shorter deadlines will make it even harder for them to find lawyers willing to handle their appeals.

The BIA itself would also be subject to strict new deadlines. Each new case would either have to be decided by a single appellate board member within 90 days, or referred to a three-member panel. Such panels would have 180 days to decide cases. If any BIA member repeatedly fails to meet deadlines, the Chairman of the BIA will report him or her to the Attorney General.

Resolution of backlog and size of board

Under the proposed rules, the BIA must clear its backlog of about 55,000 cases in 180 days, and then eight of the board's members will be fired. Since only 19 of the 23 permanent BIA judgeships are now filled, that means that 19 judges must decide all the accumulated cases - as well as new ones - in 180 days, which comes to about 15 minutes per case, as the Capitol Area Immigrants Rights (CAIR) Coalition pointed out in the comments on the proposed rules that it submitted jointly with the law firm of Arnold & Porter.

"This proposed workload is unrealistic and staggering and threatens to compromise each member's ability to conduct a thorough analysis of relevant law and facts," Human Rights First commented. Human Rights First urged the Justice Department to allow more time for eliminating the backlog, so as not to "reward 'efficiency' over accuracy and fairness." The new rules may not even be efficient, some suggest, since rapid-fire decisions are more likely to be appealed to the federal courts, and remanded to the Board itself. Steven Yale-Loehr made this argument in testimony on the proposed rules before the House Judiciary Committee, soon after they were first proposed in February.