Sometimes I wonder whether the BIA saves up my transcripts so that it can mail them all to me at the same time. Yesterday, I received four transcripts from the Board, all with briefs due on the same date. Along with a new detained appeal we were hired in yesterday, I now have five (5) BIA briefs due on January 10th.
The BIA’s policy on briefing deadlines is harsh to say the least. When appealing an IJ’s removal order, you file the notice of appeal and wait for the Board to send a transcript and briefing schedule (right now, they are taking about two months). But the Board only grants 21 days from the date it sends the transcript to have the brief filed. Usually the transcript and briefing schedule take several days to be received (they only use regular USPS mail to get it to you), and it takes at least a day to get the completed brief back to the Board – meaning you really only have about 15 to 18 days to write the brief. That is not much time, especially for a complicated appeal.
The BIA does entertain a single request for an extension of briefing, but there is no method for electronic filing. This means that in the 18 day window of brief writing, you have to assess whether you’re going to get the brief done in time. If not, you have to file the briefing extension request with enough time to get an answer back from the BIA before the brief is due. This chaos almost always means that a briefing extension request has to be sent as soon as we receive the briefing schedule, which, like much of the procedural morass surrounding BIA appeals, makes little sense.
Several things would help this mess. First, there is no reason the BIA cannot e-mail the transcript and briefing schedule to attorneys and immigrants with e-mail access. We would prefer a full PACER-type system where documents can be viewed and submitted online, but that is probably a decade away. Second, in addition to e-mailing transcripts (and potentially accepting briefs filed by e-mail), the BIA should permit fax-filing, at least for motions and procedural requests. If there are errors in the transcript, I have to file a motion for a corrected transcript right away, and sometimes the BIA hasn’t acted on my motion yet when my brief is due. Third, the BIA should consider giving parties more time to submit their briefs. It makes sense that the agency does not want to drag out the process. But most non-detained appeals take at least a year to adjudicate (I have one currently that has been pending for 3 years, and I’ve recently seen an appeal that was decided after pending for 8 years). Is an extra 15 days for an attorney to write a more-persuasive, better cited brief all that difficult?