A recent editorial in the New York Times on Judulang v. Holder, titled “Irrationality in Deportation Law,” raised important concerns about consistency in immigration decisions. But it also included a common misconception: that when the Board of Immigration Appeals (BIA) affirms a removal order without issuing a written opinion—a process known as Affirmance Without Opinion (AWO)—it somehow limits a noncitizen’s right to appeal in federal court.
That’s not quite how it works.
What is AWO?
AWO is a streamlined procedure the BIA uses when it agrees with the immigration judge’s decision and sees no need to write a separate opinion. The practice expanded under Attorney General Ashcroft in 2002 but has since been scaled back due to concerns about due process and accountability.
Does AWO Block Federal Review?
No. Even when the BIA issues an AWO, the noncitizen still has the right to appeal to a federal circuit court. The difference is procedural: instead of reviewing the BIA’s reasoning, the court reviews the immigration judge’s decision directly.
In some ways, this can actually hurt the agency’s case. Immigration judges are under intense pressure—often managing thousands of cases at once—and mistakes can happen. When the BIA issues a written decision, it often corrects or clarifies the record. AWO skips that step, leaving the IJ’s opinion as the basis for federal review.
Why This Matters
The larger point raised by Judulang—and rightly echoed by the Times—is that immigration adjudication must be consistent, fair, and transparent. AWO can undermine that goal if overused or applied carelessly. But it’s important not to overstate its impact on access to judicial review. Immigrants still have the right to appeal. And courts still have the authority to scrutinize the underlying decisions.