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Immigration Daily August 18, 2004
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Editor's Comments

AWO Again

In Berishaj v. Ashcroft, No. 03-1338 (3rd Cir. Aug. 5, 2004), the 3rd Circuit makes a number of critical points which echo themes Immigration Daily (and practically no one else) has sounded before. The particular problem that concerned the court in this case was the out-of-date documentation in the record for the asylum petition:

"Considering the rapid, frequent political changes in countries from which asylum and CAT applicants usually come, and the potentially dire consequences of sending such an applicant back to his country of origin to face possible persecution or torture on the basis of such a stale report, we call on Congress, the Department of Justice, the Department of Homeland Security, and the BIA to improve the structure and operation of the system, so that all may have the confidence that the ultimate disposition of a removal case bears a meaningful connection to the merits of the petitioners claim(s) in light of contemporary world affairs."
As to why the current system produces out-of-date records, the 3rd Circuit hit the nail on the head: the Affirmance Without Opinion (AWO) procedure at the BIA a.k.a. the streamlining regulation. While the circuit courts have found this procedure to be legal, Immigration Daily has pointed out numerous times that it overburdens the Circuit Courts and jeopardizes their functioning. Without calling for wholesale rejection of the AWO procedure, the 3rd Circuit does ask the BIA to act:
"The trigger for the recent spate of out-of-date records is, we suspect, the streamlining regulations noted above, which permit the BIA to summarily affirm an IJs decision without issuing its own opinion. See 8 C.F.R. 3.1(e)(4). The naturalthough surely unintendedconsequence of the streamlining regulations is summary affirmance by the BIA of stale, backlogged decisions by IJs. When it does so, the BIA may have shirked its role and duty of ensuring that the final agency determination in an immigration case is reasonably sound and reasonably current. ... The streamlining regulations exist to save an overburdened BIA from unnecessary and redundant tasks. They are not a license for the BIA to say not our problem. Outdated administrative records are the BIAs problem, at least as things now stand, and the BIA needs to confront them. We therefore call on the BIA to adoptby opinion, regulation, or otherwisepolicies that will avoid the Court of Appeals having to review administrative records so out-of-date as to verge on meaningless."
The real issue is that summary removal is not in keeping with our country's tradition of due process, and due process necessarily means an expensive and lengthy proceeding which will usually be of great advantage to aliens. The answer to the massive volume of cases flooding the immigration courts is to open up massive avenues of legal immigration - attempts at massive deportation will succeed only in destroying the foundations of our own government. The fundamental problem at this level of policy is always the procedure, here is what the 3rd Circuit says, quite rightly, it should not do (and what the pre-AWO BIA would have done).
"we will not scour a 700-plus page record (well over half of which is devoted to documentary materials) for evidence unnoticed and unanalyzed by the IJ to uphold the IJs decision."
Bear in mind that the 3rd Circuit is hardly acting here in the alien's interests. Recognizing that "in the majority, country conditions had improved, weaking the alien's case for relief" the court says "we encourage the Department of Justice to adopt a policy that encourages its attorneys to file motions to reopen when the adjudication of an applicants claim would benefit from an updated administrative record."

The bottom line is that the "deport-'em-all" mentality that dominates in the post-9/11 DOJ/DHS appears to believe that there is no baby in the bath water to be thrown out. Immigration is good for America, and so is due process, and so of course is security. There will not be any due process conflict with large-scale, secure, channels of legal immigration. It is only when anti-immigrationists seek to artificially restrict natural immigration that these due process conflicts arise. Those who fear what large scale immigration can do to America have as little confidence in our country as the America-hating multi-culturalists do. The USA deserves better.


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Letters to the Editor

Readers are welcome to share their comments, email:

Dear Editor:
There is a lot of debate recently to not only halt illegal immigration but to possibly do the same with legal immigration. I support a permanent bar to any amnesty that rewards illegal immigration and a very thorough screening of all legal immigrants. I know Chucky's ambitious proposal to ban the H-1B visa is unlikely to pass but it should help put some pressure on Congress to not raise the H-1B cap when there is no justification.

O. Sanchez

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