Justice Enshrouded

by Michael J. Ortiz

During this year's Academy Awards Ceremony, Whoopi Goldberg could not help taking a jab at Attorney General John Ashcroft. She covered-up an Oscar statuette in reference to his alleged order to cover the bare-breasted statue, "The Spirit of Justice," which has graced the Great Hall of the Justice Department since the '30s. Ashcroft denied having anything to do with ordering the covering of the statue. The Attorney General, it was said, had more important matters to attend to than putting blue drapes in front of semi-naked sculpture.

One of those important matters is to undermine the independence of the Board of Immigration Appeals (BIA), the highest level for administrative review of immigration matters within the Justice Department. In February, Ashcroft announced a plan with the avowed purpose of reducing the BIA's backlog of more than 56,000 cases. While making the immigration board more efficient is a laudable goal, Ashcroft's plan would compromise fair review, curtail rights, and, in the end, streamline nothing.

The BIA is the highest level for administrative review of immigration matters. The BIA rules on appeals from decisions issued by immigration judges and the Immigration and Naturalization Service (INS) District Directors. There are 221 Immigration judges nationwide who currently handle more than 260,000 matters each year. The numbers were not always that high. As immigration court caseloads have gone up, so too have the number of appeals filed with the BIA. In 1984 the BIA received fewer than 3,000 cases, whereas in 2000, the docket had increased tenfold, to nearly 30,000 new appeals.

How does the Attorney General propose to "streamline" immigration appeals? By cutting the number of immigration appeal judges from 23 to 11. Incredibly, he believes that having fewer judges to decide cases will make the backlog shrink. But more importantly, Ashcroft -- who is always the party whose decision is being appealed -- will choose who stays and who goes. Ashcroft wants to "unpack the court" to his liking.

The Attorney General also proposes to narrow the grounds on which appeals can be made, limit evidence the BIA can consider, and shorten the time for submitting legal arguments. Because these features do not account for the backlog of appeals, they will not streamline procedures, but result in railroading parties through the system.

In most cases, "deportability" is not even the issue under review by the BIA. Rather, the vast majority of the cases involve some statutory benefit or relief that the immigrant is seeking. Ashcroft's proposal effectively eviscerates the ability of the grieving party to correct any government error in denying the benefit or relief in a fair and impartial administrative forum.

Ashcroft's overall plan is contrary to the view of the National Association of Immigration Judges, who are seeking more independence from the Attorney General. Their position paper states, "When reduced to its simplest form, in the current structure the Attorney General supervises both the prosecutor and the judge in Immigration Court proceedings. One does not need legal training to find this a disturbing concept which creates, at the very minimum, the appearance of partiality. Thus, it is not surprising that the public perceives this system as 'rigged.'"

The above criticism from these judges is in regard to the current structure, which is as yet unaltered by the proposed regulation. If the regulation is adopted, the impartiality and fairness of the system will be placed in further doubt. Yet, the impartiality of the BIA is essential to the fair administration of the immigration laws. Its role has become increasingly more important in light of recent limits congress has placed on federal court review over immigration matters. Organizations such as the Washington Lawyers Committee for Civil Rights and Urban Affairs, International Institute of Boston and Asian Law Caucus have called on the Attorney General to provide more opportunity for comment and to find ways to meaningfully address the backlog while at the same time ensuring a fair and independent appeal process. So far, those requests have fallen on deaf ears. Under Ashcroft's proposals, due process takes a back seat to expediency largely at the expense of the immigrant. Especially at a time when we uphold the U.S. system of justice to world scrutiny, the Attorney General's plan is a naked power grab that undermines public trust.

Ashcroft's politicization of immigration appeals should be rejected, or he will succeed in enshrouding justice itself, not merely its figurative symbol. The spirit of justice should not be relegated to the dark.

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Michael J. Ortiz is the Directing Attorney of the Immigration Unit of the Legal Aid Foundation of Los Angeles

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