An immigration judge found that Loulou was not credible and had failed to provide easily obtainable documentation to support her claims. Loulou appealed and the BIA affirmed the removal decision without opinion under its recently adopted streamlined review procedure.

On appeal to the 8th Circuit, Loulou argued that the BIA's summary affirmance violated her due process rights because it failed to give individualized attention to her case and frustrated federal court review. In considering Loulou's due process argument, the three-judge panel explained how the streamlined procedures came about.

In 1999, in response to an exploding caseload, the Immigration and Naturalization Service (INS) established streamlined review procedures, Judge George C. Fagg noted in the 8th Circuit opinion. Although an immigration judge's decision was ordinarily reviewed by a three-member panel of the BIA, the streamlined process allows an individual BIA member to affirm the immigration judge's decision without opinion when the following conditions are met:

• the individual member decides that the result was correct;
• that any errors were harmless or nonmaterial, and
• that the issue on appeal is squarely controlled by existing BIA or federal court precedent and does not involve a novel factual situation; or
• that the factual and legal questions raised are so insubstantial that threemember review is not warranted.

When an individual BIA member streamlines an appeal, the immigration judge's order is the final agency determination for the purposes of judicial review, Fagg observed.

The 8th Circuit then went on to join the 9th, 7th, 11th, 5th and 1st U.S. Circuit Courts of Appeal in concluding that the streamlined review procedure does not violate due process. Fagg observed in the 8th Circuit opinion that an alien does not have a constitutional or statutory right to an administrative appeal, and that any such rights are created by regulations issued by the U.S. Attorney General. Under the regulations, aliens have no right to a full opinion by the BIA. The judge further explained that the streamlined procedure does not compromise the court's ability to review the INS's decision because it can review the immigration judge's decision directly.

"In this case, Loulou received a full hearing before an [immigration judge], a detailed and reasoned opinion from the [judge], an opportunity to present arguments to the BIA, and a decision from a BIA member," wrote Fagg. "There is no evidence the BIA member did not review the facts of Loulou's case or otherwise failed to conduct the required review."

Thus, the 8th Circuit concluded that the BIA's summary affirmance did not violate any due process rights. The court also determined that substantial evidence supported the immigration judge's denial of Loulou's request for asylum.

Say anything

Igbanugo told Minnesota Lawyer that he was not surprised by the decision, but was disappointed both on the due process ruling and the ruling on the merits of the case.

The BIA formerly reviewed immigration judges' decisions through threemember panels, he explained. "At least you got the impression that somebody looked at your case, evaluated the case and made a decision. The decision of the BIA was not always reasoned, but at least you got a decision."

Minneapolis immigration attorney Jerome B. Ingber agreed. "It's unfortunate because there is something [about an affirmance without opinion] that goes against the grain of due process," he said. "It was an opportunity for the federal courts, for the 8th Circuit, to get into constitutional protections and due process, but they chose not to. That's disappointing."

Ingber added that he would like to see BIA judges say something about the case - at least give an "indication as to why [the decision is affirmed]. When there's nothing, it's very tough to know," he said.

University of St. Thomas School of Law Assistant Professor Virgil O. Wiebe said the 8th Circuit's ruling sends a message to immigration judges that in reality their decisions "are going to be less scrutinized than they have [been] in the past."

The temptation for BIA members is to push cases through quickly when they don't have to make written decisions, Wiebe added. "There is no way to know if a judge spent two days or 20 minutes on a case."

Minneapolis attorney Phillip F. Fishman, who has been practicing immigration law for more than 25 years, told Minnesota Lawyer that over time he's noticed a decrease in the length of BIA decisions. He said that opinions have been steadily eroding in content and analysis, to the point now where they are almost nonexistent.

"That's sad," Fishman observed. "Particularly in cases of asylum where someone is saying that something terrible is going to happen to them."

Objections abound

Despite the various circuit courts' approval of the streamlined procedures, immigration attorneys have numerous objections to the changes, contending that they violate due process by depriving asylum seekers of individualized attention, encourage cursory review by BIA members and prevent significant judicial review.

Igbanugo argues that lack of a BIA decision impacts an appellate court's decision-making process.

"I'm not sure that it doesn't frustrate the circuit court's ability to rule on the case because they have to go back and dig deep into the record," he said.

Igbanugo also stressed the importance of having more than just one immigration judge review the case and make the removal decision.

"If you get a crazy judge you would hope that the BIA would take a look at it and at least you'd get a second administrative chance when you had a three-judge panel taking a look at it," he said.

"So I think it gives the respondent one less crack at the system and also tends to negatively impact respondents. ... Unfortunately, the 8th Circuit didn't see it that way."

McKenzie, the director of the Refugee and Immigration Program for Minnesota Advocates for Human Rights, pointed out that another problem with the streamlined process is that a single BIA member can issue an affirmance without opinion without necessarily adopting the immigration judge's reasoning.

"There is no assumption that just by affirming without opinion the board is actually adopting the judge's rationale," she said. "They may think that his reasoning was completely wrong, but ... as long as they believe the outcome was correct, they don't need to explain what rationale would be appropriate."

This raises the problem that the asylum seeker isn't actually getting an agency decision, McKenzie said. "But the court has not found that to be troubling," she added.

Attorneys also contend that the BIA's streamlined process merely shifts the burden of asylum appeals from an administrative agency to the federal courts.

"It hasn't really changed the number of cases out there, it has just shifted the burden onto a different branch of the government to deal with them," said McKenzie. "The number of cases before the circuit courts has skyrocketed ... since those procedures changed."

McKenzie added that shifting the burden has not addressed the issue of whether the immigration court is providing an adequate review of the case in the first instance.

"We've seen cases going through that have clear legal errors that they needed to address," she said. "The circuit courts have been remanding some cases to the board to deal with more appropriately. But that all presumes representation. Doing this kind of complex litigation just isn't something that pro se aliens generally are able to do competently."

Because there is no right to counsel in these cases aliens must find free or lowcost lawyers or handle their case pro se - which occurs in a fairly large proportion of cases, according to McKenzie.
"[Some] people will just get a decision that denies their case and move on without ever dealing with that," she said. "That's really troubling from our perspective."

Post 9/11

Some immigration practitioners see connections between changing immigration laws and the terrorist attacks of Sept. 11, but most are reluctant to link the changes entirely to those events.

Fishman said that while there has been a push over the last several years to make it more difficult for new arrivals to remain in the United States, he doesn't believe that terrorism has played a major role in the phenomenon.

"It may have happened on its own just because more and more people are coming into the country and to unemployment," he said. "So I wouldn't tie it directly to 9/11 or terrorism. ... I think probably what's going on is a gate-keeping function."

Igbanugo is concerned about the trend around the country regarding the treatment of immigrants and asylum seekers.

"You see what's happening with immigration laws, with the PATRIOT Act, with all the laws that came out [after 9/11]," he said. "There is so much anti-immigrant history in this country, more than I've ever seen before."

According to Igbanugo, courts are simply finding ways to kick out asylum cases as quickly as possible to reduce the backlog, without adequately reviewing the facts. "That's what it is - it's just managing the law in the fastest way they can," he said.

Wiebe agreed that the effort to reduce the number of cases before the BIA, combined with last year's reduction in the number of BIA members from 23 to 11, is problematic. He pointed out that with an increasing number of cases coming out of a much smaller BIA, "one has to wonder about the quality of that decision making."

To reduce the backlog, there has been a massive paper shuffle going on, said Wiebe, adding that the concern is that legitimate cases are getting lost in the shuffle. "What does that give to the appearance of justice and due process?" he questioned.

Fishman added that it would be nice to know that immigration decisions are being made on the merits rather than on the need for "political expediency."

Wiebe stressed that the United States has a strong and proud tradition of providing refuge. "It's a delicate balance we have to strike between making sure that those who apply [for asylum] are legitimate refugees and denying refuge to those who shouldn't have it," he said.

Republished here with the permission of the Minnesota Lawyer.