Capital Area Immigrants v. U.S. Dept. of Justice

• Decision Date: 21 May 2003
• Docket Number: No. CIV.A.02-2081 (JDB) EC.,CIV.A.02-2081 (JDB) EC.
• Parties: CAPITAL AREA IMMIGRANTS' RIGHTS COALITION, et al., Plaintiffs, v. U.S. DEPARTMENT OF JUSTICE, et al., Defendants.
• Court: U.S. District Court — District of Columbia

264 F.Supp.2d 14

CAPITAL AREA IMMIGRANTS' RIGHTS COALITION, et al., Plaintiffs, v. U.S. DEPARTMENT OF JUSTICE, et al., Defendants.

No. CIV.A.02-2081 (JDB) EC.

United States District Court, District of Columbia.

May 21, 2003.

COPYRIGHT MATERIAL OMITTED

Lawrence Schneider, Jean Engelmayer Kalicki, Thomas Sydnor, Kendall Millard, Leslie Marie Hill, Arnold & Porter, Washington, DC, for Plaintiffs.

Mark Walters, Margaret Perry, Audrey Benison Hemesath, U.S. Department of Justice, Office of Immigration Litigation, Civil Division, Washington, DC, for Defendants.

MEMORANDUM OPINION

BATES, District Judge.

Plaintiffs Capital Area Immigrants' Rights Coalition ("CAIR") and American Immigration Lawyers Association ("AILA"), both non-profit immigrant rights advocacy organizations, have asserted a broad challenge under the Administrative Procedure Act ("APA"), 5 U.S.C. § 701 et seq., to regulations issued by the Department of Justice ("Department" or "DOJ") establishing procedural reforms for the Board of Immigration Appeals ("BIA" or "Board"). See 67 Fed.Reg. 54878 (August 26, 2002). Defendants, the Department of Justice, the Executive Office for Immigration Review, and the Attorney General, have moved to dismiss plaintiffs' complaint for lack of standing, mootness, unreviewability under the APA, and failure to state a claim. The parties have also cross-moved for summary judgment.

I. BACKGROUND

Under the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1101 et seq., Congress delegated authority to the Attorney General for administration and enforcement of laws relating to the immigration and naturalization of aliens, and authorized the Attorney General to promulgate regulations and rules for carrying out this responsibility. See 8 U.S.C. § 1103(a)(1)(3). In 1983, in an effort to consolidate the adjudicatory framework for immigration matters, the Attorney General established the Executive Office for Immigration Review ("EOIR"), an administrative division within the Department of Justice under the direction of the Attorney General. See 52 Fed.Reg. 2931 (Jan. 29, 1987); 8 C.F.R. § 1003; 28 C.F.R. § 0.115.¹ Since 1940, Attorneys General have delegated their authority to the BIA to resolve administrative appeals from immigration judges who adjudicate immigration matters. See 8 C.F.R. § 1003.1(d); see also Accardi v. Shaughnessy, 347 U.S. 260, 266, 74 S.Ct. 499, 98 L.Ed. 681 (1954). The Board consists of several administrative judges and is charged with interpreting and applying the nation's immigration laws and providing precedent for immigration judges. "The mission of the Board of Immigration Appeals is to provide fair and timely immigration adjudications and authoritative guidance and uniformity in the interpretation of the immigration laws." 64 Fed.Reg. 56135, 56136 (Oct. 18, 1999). Because Board decisions can only be challenged in federal court in limited circumstances, the Board is often the final authority for adjudicating appeals from rulings of immigration judges and officers of the Immigration and Naturalization Service ("INS"). The Board decides critical immigration matters such as deportation, exclusion, removal and asylum, as well as matters arising under the United Nation's Convention Against Torture.

Since 1990, the Board has experienced an unprecedented increase in the number of immigration cases. In 1984, for example, the Board received fewer than 3,000 appeals, but by 1992 the number had grown to almost 13,000, and by 2000 it had increased to nearly 30,000 appeals annually. Administrative Record ("A.R.") 425, 690. There were only 69 immigration judges in 1990, but by the end of the decade the number had swollen to 200. A.R. 679. Compounding the dramatic increase in immigration cases, Congress made "[fjrequent and significant changes in the complex immigration laws" over the last several years. 64 Fed.Reg. at 56136. Indeed, since 1986, there have been several major overhauls in the immigration laws, severely challenging the Board's ability to resolve appeals in a timely manner and provide guidance and precedent for immigration judges.² To help the Board cope with this growing caseload, the Attorney General steadily increased the Board's size from 5 members to 12 members in 1995, to 15 members in 1998, to 19 members in 1999, and to 23 members by 2001. See A.R. 690; see also 64 Fed.Reg. at 56139. Due to unfilled vacancies and reassignment, there were 19 Board members when plaintiffs filed their complaint. A.R. 690. Prior to 1999, the Attorney General had authorized the Board chairman to divide the Board into three-member panels (like federal appellate courts) that decide cases by majority vote and issue written opinions. See 8 C.F.R. § 1003.1(a)(1) (1998).

Despite these repeated increases in size, however, the pending caseload of the Board outpaced the addition of new members to the Board. In 1992, the Board had just over 18,000 pending appeals, but by 2001, despite a four-fold increase in the number of Board members, the caseload had grown to more than 57,000 pending cases. 67 Fed.Reg. at 54878.

Given the dramatic rise in the Board's pending caseload, DOJ promulgated a new regulation in 1999 to "streamline" the Board's appellate review procedures by limiting the use of three-member panels to cases "where there is a reasonable possibility of reversible error in the result below." 64 Fed.Reg. 56136. This streamlining regulation authorized a single Board member to summarily affirm, without a written opinion, cases in which (1) the result below was correct; (2) any errors below were harmless or nonmaterial; or (3) either the issue on appeal was squarely controlled by existing Board or court precedent and did not involve a novel fact situation, or the factual and legal questions on appeal were so insubstantial as not to warrant a three-member panel. 8 C.F.R. § 1003.1(a)(7)(ii). If an appeal fell within any of these categories, a single Board member could issue a short statement affirming the result of the decision below. Id. at § 1003.1(a)(7)(iii). The intent was to enable the Board to render decisions in a more timely manner, while concentrating its resources primarily on cases in which there is a reasonable possibility that the result was incorrect, or where new or significant issues are presented.³

In 2001, the Department of Justice commissioned an external audit by Arthur Anderson to evaluate the effectiveness of the 1999 streamlining regulation. A.R. 516-611. Arthur Anderson issued its Assessment Report on December 13, 2001, finding that streamlining contributed to an overall 53 percent increase in the number of cases resolved by the Board. A.R. 523.⁴ The report concluded that "[t]he overwhelming weight of both `objective' and 'subjective' evidence gathered during the conduct of this study indicates that the Streamlining Pilot Project has been an unqualified success." A.R. 539. At the same time, Anderson cautioned that "[s]treamlining has not been implemented long enough to provide a sufficient amount of historical data to objectively evaluate its effect upon the quality of decisions rendered." A.R.528.

Citing the success of the 1999 streamlining regulation, DOJ proposed a more sweeping streamlining regulation on February 19, 2002. See 67 Fed.Reg. 7309. The proposed 2002 streamlining regulation expanded the number of cases referred to a single Board member, with the result that most Board appeals would be resolved by summary affirmance without opinion, and only a limited category of cases would qualify for review by a three-member panel. A.R. 7. DOJ also proposed to reduce the number of Board members from 23 to 11 within six months of the regulation taking effect. 67 Fed.Reg. at 7310. Similarly, the regulation proposed to address the Board's massive backlog of pending cases within a six-month transition period. Id. at 7312.

The proposed 2002 streamlining regulation was intended to reduce appeal delays, enable the Board to better manage its growing caseload, and resolve the Board's existing backlog of cases—in turn giving the Board more time to focus its attention on significant cases:

Under its current structure and procedures, the Board has been unable to adjudicate incoming cases quickly enough to eliminate the unacceptable backlog that has existed for several years.... Since 1995, the problem of the mounting backlog of cases has been addressed by incremental increases in the size of the Board. However, in retrospect, it is now clear that the addition of new Board members has not appreciably reduced the backlog of cases. The problem is not one of personnel. Rather, the problem is rooted in the structure and procedures of the Board, which make it nearly impossible for Board members to accomplish their mission. The devotion of the Board's time and resources to cases that present no colorable grounds for appeal has made it extremely difficult to address in a timely manner those cases that most need the Board's review.

67 Fed.Reg. at 7310. DOJ concluded that "[t]he one change in the Board's procedures that has produced positive results in recent years is the streamlining initiative." Id.

DOJ listed four overlapping objectives for the proposed 2002 streamlining regulation: (1) eliminate the current backlog of cases pending before the Board; (2) eliminate unwarranted delays in the adjudication of administrative appeals; (3) utilize the resources of the Board more efficiently; and (4) allow more resources to be allocated to the resolution of cases that present difficult or controversial legal questions. Id. The proposed regulation was submitted for a 30-day comment period, during which 68 submissions were received, including comments from nongovernmental organizations, members of Congress, and private attorneys, as well as plaintiffs CAIR and AILA. See 67 Fed. Reg. at 54879. The proposed 2002 streamhning regulation would amend and supercede the 1999 streamlining regulation.

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