It is impossible to analyze the current state of the BIA without understanding the radical changes the Board went through in 2002.
The John Ashcroft Experiment
In August, 2002, Attorney General John Ashcroft announced a radical change to the Board of Immigration Appeals. The official explanation from the Department of Justice was that the Board had become inefficient and was taking too long to decide cases.
The solution, called “streamlining,”encouraged the Board to issue more summary decisions without explanations.
The new rules that were put into place resulted in a dramatic shift not just in the efficiency of the Board but in the ratio of denials versus approvals coming from the Board. In October, 2002, 86 percent of all rulings on appeals were going against immigrants compared to a 59 percent at the same time a year before. Under streamlining, some Board members were deciding 50 cases a day.
The Attorney General also reduced the size of the Board from 23 members to 11 (it’s hard to understand why a reduction in staff by over 50% is supposed to increase the output). Critics complained that Ashcroft was actually purging “dedicated civil servants based on a perception of their policy views.”
A later study by Peter J. Levinson, showed that the “purge” in fact removed the five Board members with the highest percentages of rulings in favor of non-citizens. As a result, the remaining members reduced their percentage of pro-immigrant opinions.
A 2009 article for the Duke Law Journal by Ashcroft and Kansas Secretary of State Kris Kobach (who served in the Ashcroft Justice Department) discusses the 2002 purge without discussing any of the controversy. A Stephen Legomsky article from 2010 explains that Ashcroft’s reforms actually “greatly exacerbated” the problems they were said to address, which led to drastic increases in anti-immigrant decisions and, consequentially, an exponential increase in the number of federal circuit court appeals filed by immigrants.
As Legomsky explains “the more time and attention the BIA was able to give to a case, whether by assigning the case to a three-member panel, providing a reasoned opinion, or both, the more likely the immigrant was to prevail.”
Following the 2002 purge, the Bush Justice Department began unlawfully appointing immigration judges based on political affiliation.
Monica Goodling admitted, and internal Department of Justice investigation revealed, that from 2004 to 2006, immigration judges were appointed for their Republican party affiliation rather than their ability.
10 years later, in 2014, the effects of the Ashcroft experiment are still being felt at the BIA. For example, an Ashcroft decision in Matter of D-J- is now being cited to deny mothers and children bonds in the cases being litigated at the detention center in Artesia, New Mexico.
Certain IJs who were elevated to status during the Monica Goodling days are still in place. And the Board remains “streamlined,” with less members and less power than in 2002. Although the Board issues less summary decisions now, its review power (and, consequently, an immigrant’s ability to win on appeal before the Board) remains limited.