Justice Department Rules Place Speed above Justice for Refugees Seeking Asylum in the United States

NEW YORK – The U.S. Department of Justice issued on Aug. 27th new regulations to speed up and curtail adjudication at the U.S. Board of Immigration of Appeals in such drastic ways that the appeals process for refugees seeking asylum will be rendered all but meaningless. The regulations go into effect on Sept. 25th.

“These regulations place a premium on speed and turn a blind eye to justice,” said Elisa Massimino, Director of Human Rights First Washington D.C. Office. “They ask judges to make life or death decisions about complicated asylum cases in the time it takes most people to take a shower.” The Board’s appeals process was established to allow those who flee from torture and persecution to have mistaken decisions in their asylum cases corrected.

Human Rights First expresses deep concern relating to the following elements of the new regulations:

• Resolution of Backlog in 180 days: Under the new regulations, the Board must eliminate a backlog of about 55,000 cases in 180 days. At this rate, each judge would have to decide 32 cases every work day, or one every 15 minutes. This unrealistic demand will inevitably result in sloppy legal and factual analysis; Human Rights First fears the dismissal of cases that would have proved deserving of asylum given more thorough review.
• Elimination of de novo review: The new regulations provide that, in many cases, the Board simply “accept the determination of factual issues by an immigration judge” without engaging in review. Human Rights First believes this will allow mistaken factual determinations to go unnoticed by immigration judges. In the past, de novo review has resulted in correcting crucial mistaken determinations in many cases. In one well-known case, Fauziya Kassindja, a refugee fleeing female genital mutilation in Togo, was granted asylum based upon the independent review of the Board.
• Summary Decisions: Individual Board members may summarily affirm the decisions of the immigration judges under the new regulations, without opinion or issue brief orders. The regulations specify that such summary decisions may only be made in cases where “the factual and legal issues raised on appeal are not so substantial.” Human Rights First believes that the phrase “not so substantial” is vague and leaves too much room for misinterpretation.

Human Rights First recognizes the need to improve the efficiency of the process at the Board of Immigration Appeals. Yet the new regulations will deprive asylum seekers and other non-citizens of their due process rights.