Appeal process is largely ineffective
Question: I lost at the Immigration Court level. I appealed the decision about six months ago to the Board of Immigration Appeals (BIA). Now, I just received a decision of the BIA. The entirety of the decision essentially states that the case is denied without giving any reasoning whatsoever. There is nothing else written on the decision. There is no reasoning to the opinion and no discussion as to why it was affirmed without an opinion. I do not know what to do at this point. I do not know how I can appeal as I cannot tell why the BIA denied the case. Can you help?
Answer: Unfortunately, it is becoming more common for the BIA to issue decisions in this manner. It is very unfair as it does not discuss any merits to the appeal, nor does it discuss why they agree with the Immigration Judge. This is a practice that has become all but common.
Over the past several months, the courts of appeals have issued several decisions directly (and indirectly) addressing the BIA’s summary affirmance without opinion (AWO) procedure. The AWO procedure allows a single BIA member to affirm the underlying immigration judge’s decision, without giving any reasons and without adopting the reasoning of the immigration judge.
To date, all of the courts to address AWO’s have turned aside challenges to the validity of the regulations. Nonetheless, most of the published decisions do not foreclose all challenges to AWO’s. Many of the AWO-related court decisions address only limited aspects of the AWO procedure or are limited to the facts of the case.
Question: Does this mean that I should appeal to the Circuit Courts?
Answer: Yes, you should do what is known as a Petition for Review to the Circuit Courts of Appeal. While people have been trying for months to get the AWO overturned, there have not been any conclusive decisions on this matter. Therefore, it is necessary to read closely the controlling cases in your circuit and argue for a narrow interpretation of the AWO cases.
In particular, one argument that has not been foreclosed is that the BIA failed to comply with its own regulations because the case did not meet the criteria for an AWO decision.
Essentially, the BIA member must find that the case satisfies three regulatory criteria before he or she can issue an AWO decision. Specifically, the BIA member must find 1. That the result reached by the immigration judge was correct; 2. That any errors in the decision below were harmless or nonmaterial; and either 3. (a) That the issue on appeal is squarely controlled by existing Board or federal court precedent and does not involve the application of precedent to a novel fact situation; or (b) That the factual and legal questions raised on appeal are not so substantial that a written decision is warranted.
In order to show that the BIA is not complying with its own regulations, it is important to brief fully the merits of your case. Thus, although there necessarily will be additional reasons for remanding the case to the agency, urge the court to remand for the reason that the BIA member did not comply with the AWO regulations.
Therefore, while it will not be easy, you should not give up and keep fighting to try to get the summary decision without opinion overturned. Otherwise, the BIA will simply be a rubber-stamp for whatever the judge did and not a real appellate body.