An editorial in the New York Times
today about the Judulang
decision inaccurately described the effect of the BIA’s “affirmance without
opinion” policy (regularly referred to as AWO) on an immigrant’s chances of filing a federal court appeal. First, a bit of
background: in 2002, Attorney General Ashcroft made wider use of an
already existing practice at the Board. In cases where the Board did not
disagree with the IJ’s underlying decision, the BIA would issue a summary
opinion saying only that it was affirming the IJ’s decision with an opinion.
But the much wider use of this practice called into question whether the BIA
was actually doing its job, and the BIA today has made very limited use of the
In the NYT article, called “Irrationality in Deportation Law,” the author said:
The board’s ruling in this case was irrational, but at least
it issued a written opinion. Often, the board rubber-stamps deportation rulings
with no written opinion or explanation, making it almost impossible to appeal
in the federal courts.
That’s just not true. If the BIA affirms without opinion, the immigrant can still appeal to a federal circuit court. The only difference is that the Circuit Court will then review the IJ’s underlying decision, rather than the BIA’s decision. The agency actually does itself a huge disfavor when it uses the AWO procedure, because IJs often make silly mistakes. The BIA, in issuing a new opinion, takes the opportunity to clean up whatever mistakes the IJ made, even if BIA eventually dismisses the appeal. The circuit court on appeal then reviews the BIA’s cleaned up decision, not the IJ’s decision. This may sound like a distinction without a difference, but the NYT editorialist was simply incorrect. AWO decisions do not make it “almost impossible” to appeal to the federal courts.