Today the Office of Inspector General released a troubling report on the efficiency of the Immigration Courts and the BIA. While I disagree with the focus of the report, which ultimately seems to be that “continuances” are bad, there is some revealing information about BIA processing times that is worth discussing. The OIG can’t possibly be able to determine whether the Immigration Judge did a good job just by looking at the numbers – whether the Immigration Judge granted one continuance or four continuances. Some cases don’t need a continuance and some need several. The numbers alone don’t get you there.
But that’s not what we’re interested in. The OIG report also focused on the BIA’s case processing rates, and the news isn’t great. While the BIA “completed more appeals of immigration court decisions than it received from FY 2006 through FY 2010,” these appeals still “took long periods to complete.” From the report:
In our sample, the BIA averaged more than 16 months to render decisions on cases involving non-detained aliens, as compared to 3½ months for cases involving detained aliens. However, EOIR’s performance reporting does not reflect the actual length of time to review and decide those appeals because EOIR does not count processing time for one- and three-member reviews from the date the appeal was filed. Rather, EOIR begins the counting process once certain work is completed by the BIA and/or its staff. As a result, EOIR’s performance reporting data underreports actual processing time, which undermines EOIR’s ability to identify case processing problems and take corrective actions.
The bottom line is that inefficiencies in the system encourage attorneys and immigrants to game the system – which often means filing an appeal just to delay removal. And yet, the solution is not to turn the Board into a giant Rubber Stamp and increase affirmances without opinion or simply stop issuing reasoned decisions. The balance is somewhere in the middle. Hopefully immigration reform happens in the next four years and that reform provides the immigration appellate system a much-needed overhaul.