It is not uncommon for a written decision of the BIA to contain obvious typographical or drafting errors (so, if you get a written decision from the Board, read it closely).
I’m not sure how this happens, as most BIA decisions are first drafted by a staff attorney and then reviewed and signed by the Board member issuing the decision, meaning two sets of eyes should have reviewed it.
Consider this description from Mohammed v. Gonzales, 400 F.3d 785 (9th Cir. 2005):
“The BIA’s opinion was nonsensical: It referred to a direct appeal rather than to a motion to reconsider or reopen; the second page began mid-sentence and was unrelated to the first page, making the reasoning difficult to follow; and it stated that the new evidence did likely affect the outcome of Mohamed’s case, even though it went on to deny the motion.”
In the Board’s decision denying a motion to reopen for changed country conditions, the BIA said it had thoroughly reviewed the State Department Human Rights reports for China, while our client wasfrom Venezuela. It also said it was concerned that none of the evidence referred to her by name when at least 4 pieces of evidence listed her name.
These mistakes matter, although the BIA often gets away with such sloppiness. As Judge Calabresi remarked in his dissent in Michel v. I.N.S., to assume an agency meant one word when it used another
“is like saying green is puce; it isn’t, and no amount of talk will make it so. Words matter. And I cannot subscribe to an approach that, in order to affirm a result the court deems desirable, allows an agency to employ language in ways that are at war with the words it uses. I believe instead it is the job of the courts to make agencies describe exactly what they are doing. I believe this because only in this way can agencies be held responsible to Congress and ultimately to the people.”
Typographical errors can also indicate that the BIA has issued a “boilerplate” decision. See de la Llana-Castellon v. I.N.S., 16 F.3d 1093, 1098 (10th Cir. 1994); Castillo v. INS, 951 F.2d 1117, 1121 (9th Cir. 1991).
We didn’t win our case in the Eighth Circuit; the court presumed the BIA looked at the right evidence and just misspoke. Other courts have let the agency off the hook for similar errors.
But in most cases people should continue pressing this issue, because an immigrant’s right to have their case reviewed by a neutral body on appeal is stifled when the BIA does not adequately communicate the reasons for its decision.
The Circuit Courts are left guessing what the Board meant and are asked by the Department of Justice’s attorneys to just take their word for it. Double negatives and references to the wrong country are just the most obvious examples.
If these most glaring errors can get through the multiple layers of scrutiny at the Board, it is tough to imagine the more nuanced, less-easy-to-identify errors that most probably occur regularly.