BIA Rarely Holding Oral Argument

The Third Circuit is one of around a dozen circuit courts in the United States. Circuit courts are the second of three major levels of federal courts: the top level is the U.S. Supreme Court, the middle level are over a dozen circuit courts, and the lowest main level are federal district courts. (There are other courts that I'm not covering in this overview, including magistrate courts and bankruptcy courts.)

Congress created a structure where over 200 immigration judges (who work in the Department of Justice) make the first ruling in a deportation case and the appeal goes to the Board of Immigration Appeals (known as the BIA), which is also part of the Department of Justice and is located in Virginia.

Congress also requires that an appeal from the BIA go to the circuit court that covers the place where the immigration judge's decision was issued. The Third Circuit covers Delaware, New Jersey, Pennsylvania, and the Virgin Islands.

Then-Attorney General John Ashcroft announced changes to the BIA in February 2002 that were extremely controversial. As part of the changes, he got rid of a number of BIA judges and created a method for the BIA to deny appeals without having to list any reasoning other than that they agree with whatever reasoning the immigration judge stated.

Can the public watch the BIA in operation? In theory, yes, because the BIA has the option of holding oral argument where lawyers can discuss their appeal briefly to the judges, who can explore and develop the issues by asking questions to the lawyers.

But how often does the BIA hold oral argument? You won't find a list of upcoming oral arguments on the BIA web site (unlike circuit courts, who hold oral argument almost every day and post the schedule prominently on their web sites). If you call the BIA, there's no recorded list of upcoming oral arguments. In fact, as of October 2005, there are zero scheduled oral arguments and the staff does not know when the BIA might hold an oral argument again.

Lawyers have frequently challenged the method by which the BIA issues an opinion that says they adopt what the immigration judge said as unconstitutional. However, circuit courts have ruled that the controversial procedure does not violate people's Constitutional rights to a fair hearing and an opportunity to be heard.

The solution will either be to convince the federal courts of what's truly happening or lobbying Congress to force the Department of Justice to review appeals in immigration cases much more stringently.