This sponsored column is by Law Office of James Montana PLLC. All questions about it should be directed to James Montana, Esq., Janice Chen, Esq., and Victoria Khaydar, Esq., practicing attorneys at The Law Office of James Montana PLLC, an immigration-focused law firm located in Falls Church, Virginia. The legal information given here is general in nature. If you want legal advice, contact us for an appointment.
In court, one side wins and one side loses. Immigration Court is no different. Sometimes, the side that lost ought to have won. In order to correct errors at the trial level, immigration court cases are appealable to the Board of Immigration Appeals, which sits right here in Falls Church, Virginia.
The Trump Administration has proposed a massive change to how the Board of Immigration Appeals works. It is no exaggeration to say that it effectively abolishes the right of appeal for immigrants facing deportation. (Jason Dzubow, who for our money is the preeminent asylum lawyer in DC, has dubbed the new appellate court “The Board of Imitation Appeals,” and we wish we were that clever.)
The purpose of this advertorial is to explain our readers how, and why, the Trump Administration is effectively abolishing the right of appeal.
By way of background, the Board of Immigration Appeals is just one court, with just eighteen judges. There are seventy-four immigration courts in the United States. This is an unworkable ratio. Each individual Appellate Immigration Judge is individually responsible for handling the appellate output of four immigration courts, which might be staffed by a dozen trial judges each. Unsurprisingly, wait times for appeals are measured in years, and the case backlog is in the hundreds of thousands.
Nobody likes the current system. We can imagine constructive suggestions for improvement. The Trump Administration, with its usual flair for the quickest, most destructive solution, has decided to do its best Miley Cyrus impression and come in like a wrecking ball. How? It’s simple: according to The New Rules, the Board of Immigration Appeals won’t review almost any decisions by the immigration courts, because “The Board cannot—and does not need to—adjudicate every case on the merits.” (Note well, kids: When you don’t feel like doing your algebra homework, simply tell your teachers that children cannot—and do not need to— solve quadratic equations.) Instead of actually adjudicating cases, the Board of Immigration Appeals will dismiss every single appeal by default, within fifteen days of receiving a Notice of Appeal, unless a majority of current board members – ten, at current staffing levels – vote to accept the appeal. A majority of the current Board was appointed by President Trump. If this regulation goes into effect, rely on it: the Board will vote to dismiss the vast majority of appeals.
So, imagine you’re an asylum applicant. What happens after the New Board of Immigration Appeals rubber-stamp denies your appeal? Under the new regulation, you appeal again, directly from the Board of Immigration Appeals to the Federal Circuit Courts of Appeals. Lawyers in the audience will recognize how wild that is: the Federal Circuit Courts of Appeals are the last stop before the U.S. Supreme Court, and reviewing the output of the immigration courts would, by our rough estimate, double their caseload.
Immigrant legal advocacy organizations have already sued to block the new rule. Our bet is that they’ll succeed in getting an injunction. What happens after that is anyone’s guess. The Trump Administration has a peculiar habit of thumbing its nose at court orders. (A little Easter Egg: lead counsel for the plaintiffs in the lawsuit is one Erez Reuveni, who would be working at the Department of Justice at this very moment if the Trump Administration obeyed court orders.)
As always, we are happy to answer any questions from the commentariat.