How to Streamline Immigration Appeals  

IRLI shows a bloated appellate court will make things worse  

WASHINGTON—On Friday, the Immigration Reform Law Institute (IRLI) filed a stinging public comment with the Justice Department’s Executive Office for Immigration Review (EOIR) about EOIR’s plan to enlarge the Board of Immigration Appeals (BIA), the nation’s administrative appeals court for immigration. 

At issue is the huge backlog of cases pending before the immigration courts. At first blush, it might seem that having more appellate judges working on appeals of these cases would help speed up the process of reducing that backlog. As IRLI demonstrates, though, past experiments in enlarging the BIA show that more appellate judges only create more complicated, and less clear, case law, inviting more and more appeals that make cases drag on longer and longer. In addition, activist BIA judges, when out voted in a case, often would file protest “dissents” that were legally meritless but had the intended effect of stimulating yet more appeals. 

In short, more appellate judges just made more work for themselves—much more than they could handle. IRLI urges that EOIR, rather than make that mistake again, instead enact a menu of proposals that really would increase efficiency and reduce the backlog. For example, the BIA should devise a workable definition of a “frivolous” appeal to enable more summary dismissals for frivolity, or only hear appeals after first granting a petition for review, as is the practice in the Supreme Court.  

“We are disappointed that EOIR is considering again enlarging the BIA,” said Dale L. Wilcox, executive director and general counsel of IRLI. “As shown by past experience, that is a policy of bloat and delay, and makes it even harder to reduce the backlog of cases caused by decades of neglect in enforcement. An immigration legal system that encourages removable aliens to stay in the country longer by filing frivolous appeals is not in the national interest. Instead, we strongly urge EOIR to adopt streamlining procedures that actually would work.” 

The comment is on Expanding the Size of the Board of Immigration Appeals, DOJ Docket Number EOIR-20-0010.