Flooding the Courts

An administrative reform made by former Attorney General John Ashcroft inadvertently set the stage for more asylum cases to be appealed to the U.S. Court of Appeals for the 7th Circuit in Chicago .

In 2002, Ashcroft was trying to clear up a logjam at the Virginia-based Board of Immigration Appeals, or BIA, where immigrants facing deportation first appeal their cases after losing at one of the 53 immigration courts across the nation. At that time, the BIA had 23 judges who met in three-judge panels to review decisions on petitions for asylum or similar matters made by immigration judges.

But this process had created a backlog of more than 56,000 cases nationwide, with about 10,000 cases waiting for at least three years to be reviewed. “Such delays encouraged unscrupulous lawyers to file frivolous appeals,” Ashcroft said in a press release. “Even though they could not win, such lawyers could exploit the system to guarantee their clients additional years within the United States .”

Only after a BIA ruling can an immigrant bring a case before a federal appellate court. An attorney would have to point to a legal mistake of the lower courts in order to ask the appellate court to review the case.

To erase the backlog, Ashcroft reduced the number of judges to 11 and ended the use of three-judge panels in most cases. It now addresses only “clearly erroneous” legal standards applied by immigration judges and no longer examines the facts of each case.

After the reform, the BIA began upholding scores of initial decisions with mere one-sentence explanations, if at all.

The absence of detailed explanations opened the door for the appellate courts to look directly at the rulings of the immigration judges.

On Dec. 18, 2003 , for example, the 7th Circuit ruled in favor of Erion Bace, an Albanian asylum seeker, forcing the BIA to re-examine his case. At his initial hearing on Jan. 5, 2000 , Bace testified that he was active in the Albanian Democratic Party and was commissioned to work as a poll watcher. He saw cases of voter fraud and refused to certify the referendum. His action angered the party in power—the Socialist Party. On the day of the referendum, Bace said he was beaten by masked men and cut with a razor.

In the next month and a half, the attacks continued. In the last attack, Bace’s wife was raped in front of him and relatives. The Baces then came to the United States to apply for asylum.

An immigration judge denied the asylum bid. The Baces then appealed to the BIA. On Oct. 4, 2002 , the BIA upheld the decision without any explanation.

In the Baces’ appeal, the appellate judges wrote that an immigration judge made a “cursory” ruling without addressing whether the Baces’ story was credible and whether what happened to them constitutes persecution.

In March, the Baces were granted temporary asylum, pending their security clearance.

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