September 11, 2001 : Attack on America
Attorney General Ashcroft News Conference - Administrative Change to Board of Immigration Appeals; February 6, 2002

Attorney General Transcript

News Conference - Administrative Change to Board of Immigration Appeals
Wednesday, February 6, 2002
DOJ Conference Center

ATTY GEN. ASHCROFT: Good afternoon.

On November the 8th, I pledged that the Department of Justice would undertake a series of reorganizations to serve better our mission of protecting America from terrorist attack, our mission of enforcing our nation's laws and safeguarding our civil liberties.

A critical part of our mission is enforcing our immigration laws -- enforcing them fairly, deliberately, and without delay. Today, to accomplish that objective, I am announcing a reorganization of the Board of Immigration Appeals.

The immigration court system receives a staggering 271,000 cases a year, most of which move through the trial-level immigration courts in a timely manner. However, the Board of Immigration Appeals, which adjudicates appeals in immigration cases, is badly in need of comprehensive reform. The board is broken in several respects. Most notably, it has allowed the accumulation of a massive backlog of more than 56,000 pending cases. This bottleneck in the immigration court system gravely undermines the enforcement of our country's immigration laws.

Both a cause and a consequence of this backlog is the fact that the board takes an inordinately long time to resolve cases. More than 34,000 of those pending cases are over a year old, and more than 10,000 cases are over three years old. That kind of delay is unacceptable in any court, anywhere.

Even worse, there are some cases pending before the board that are more than seven years old. It's often said that justice delayed is justice denied.

But when a case takes seven years, justice isn't merely denied, it's derailed.

Such shocking delay creates other adverse consequences. The backlog gives unscrupulous lawyers an incentive to file frivolous appeals in which the immigrant has no valid argument. Even though they cannot win, they are able, using the system, to guarantee the client additional years within the border of the United States. By exploiting this bottleneck in the system, such lawyers allow individuals who are here in violation of our laws to remain here even longer.

The languishing of cases before the board allows many to become fugitives, exacerbating the problem of fugitives from final judgments. We have over 314,000 aliens who have been adjudicated as susceptible to deportation. They have completed and exhausted their legal rights and they have been ordered deported, and yet they have just merged into the American landscape. They have escaped from justice.

For example, in a case involving an alien accused of trafficking $50 million worth of heroin, the board took more than five and a half years to reach a decision. During that time, the individual became a fugitive -- in other words, left points of identification in the culture -- and he still remains at large. Now, we cannot and we will not allow an administrative bottleneck to threaten our national security.

The board's current procedures have also fostered bad decision- making. It's a well-settled principle of our judicial system that courts of appeals do not lightly reopen the factual findings -- factual findings of trial courts below. Reading a cold transcript long after the trial, appellate courts are too removed from the evidence accurately to evaluate the evidence. They don't observe the demeanor of witnesses, they don't observe their appearance in testifying and the wide variety of items that you are familiar with relating to the trials that are conducted. They can't look the witness in the eye and assess the credibility of the witness. Consequently, appellate courts normally disrupt the factual findings of trial courts only when the findings rise to the level of being clearly erroneous.

However, the Board of Immigration Appeals routinely ignores this fundamental principle of appellate review.

In effect, the board gives immigrants two bites at the apple, two opportunities to present their facts. And this is an advantage that our own citizens do not enjoy when they are confronted with an opportunity to adjudicate matters in the federal courts.

Today, the Department of Justice is sending to the Office of the Federal Register new rules promulgated under the statutory discretion of the attorney general. These reforms will eliminate the backlog, prevent unwarranted delays and improve the quality of board decision- making while ensuring that those in our immigration court system enjoy the full protections of due process. I will briefly highlight some of the most salient reforms.

At the center of the proposed rules is an expansion of the board's streamlining initiative which was introduced in 1999. Under the initiative, a pilot project, certain categories of appeals that do not involve difficult questions have been decided by a single board member rather than by a three-member panel. This initiative has proven extremely successful, resulting in a 50 percent increase in overall board productivity in fiscal year 2001.

Moreover, an independent audit concluded that streamlining and the streamlining that took place did not result in either aliens or the Immigration and Naturalization Service prevailing more often in immigration cases.

At this point, I want to express my gratitude to Kevin Rooney, who is with me here today, the director of the Executive Office for Immigration Review. It was under his leadership that this successful effort to implement the streamlining initiative has taken place.

Now, under the new rules, all immigration appeals will be sent initially to a screening panel, where single board members will either decide the cases or determine that they are appropriate for review by a three-member panel. Instead of squandering the time and attention of three-member panels on cases that are relatively simple, the board will be able to focus the resources of three-member panels where they are most needed. Three-member panels will be used in five general categories of situations.

First, to settle inconsistencies between the rulings of different immigration judges. You're aware of the fact that it's a common appellate practice to harmonize different rulings coming from different parts of a system, and you harmonize that at the appellate level.

Ultimately, in our court system, the Supreme Court settles differences.

A second circumstance -- to resolve ambiguities in the immigration laws. If there is an immigration law ambiguity that's alleged, it's appropriate that we have multiple individuals involved in making the decision.

Third, to decide appeals involving matters of national importance.

Fourth, to correct a decision that is plainly not in conformity with the law.

And fifth, to correct a factual determination that is clearly erroneous.

Regarding the standard of review applied by the board, the new regulations bring it into conformity with appellate courts throughout America. The rules allow the board to review only legal questions de novo, which means that they need not -- pardon me -- which means that they need not defer to the court below. In contrast, factual determinations will be ruled and reviewed under the "clearly erroneous" standard. When further fact-finding is needed, the board will henceforth remand such cases back to the immigration judges. And immigrants will retain their right to appeal any board decision to the U.S. Court of Appeals.

The new regulations also establish reasonable deadlines for the completion of board decisions. Cases will no longer sit idle before the board for several years. Such absurd delays of justice will come to an end. As a result, immigrants who have a valid legal basis for their appeals will gain vindication much more quickly, and those who violate our laws will be removed promptly, which helps the INS. And perhaps most importantly, individuals who are in detention during their appeals will be confined for shorter periods of time.

These reforms also address the size of the board. Beginning in 1995, the Department of Justice incrementally increased the number of board members from five to 23. However, the increased size of the board had no appreciable impact on the annual completion of cases. We now know that the backlog is not a personnel problem; rather, it is fundamentally a problem of the procedure.

The proposed rule that we are now filing establishes a six-month transition period for the current board to apply the new rules to eliminate the backlog so that no case is pending for more than 10 months. The board will then be returned to the appropriate size of 11 members, which is sufficient to provide for both single-member review and three-member review, where it is warranted, in a way consistent with the criteria which I previously outlined.

Finally let me say a word about the savings that will flow from this reorganization. Once these reforms take place, the Department of Justice will save up to $30 million a year. We will realize such savings through personnel reductions and by detaining immigrants for shorter periods of time Those resources will then be transferred to the processing of immigration applications.

The Immigration and Naturalization Service is currently laboring under a huge backlog of more than 4 million applications from those who wish to enter our country legally or adjust their immigration status. Applications to reunite husbands and wives are talking an average of two years to process. Reuniting parents and children takes an average of three years and eight months. When government incapacity causes a separation of families in such an extended and harmful way, we have a moral duty to act. The millions of dollars that we save each year by making the Board of Immigration Appeals more efficient will go a long way toward reuniting families sooner and making legal immigration less burdensome and the process more expeditious.

America is a nation built on immigration, and we welcome those who come here legally. At the same time, our nation's security demands that our immigration laws be enforced efficiently, fairly and without delay. In the wake of the September 11th occurrences of last year, such concerns rise to a new level of importance. Today's announced reorganization of the Board of Immigration Appeals will meet these objectives while protecting due process. We ask immigrants who come to America to respect our laws. However, we also need an immigration court system that commands our own respect, one that is fair, one that is prompt, one that is efficient.

I'm pleased to have been able to announce this and to commend Kevin for his outstanding work on the pilot project which provided the blueprint for these improvements. And I would be willing to answer questions at this time.

Yes, sir?

Q General Ashcroft, you previously indicated that among the evidence that we know that John Walker was conspiring to kill Americans was that he was bombed by U.S. aircraft. In light of his attorney's remarks today in court that he was merely fighting the Northern Alliance, how do we know that he was fighting Americans and not just other Afghanistanis?

ATTY GEN. ASHCROFT: Well, the United States of America takes the case of John Walker Lindh very seriously, and we will litigate that matter seriously in court. We believe that the evidence, as I've indicated, that is outlined in the indictment and which was contained in the charges is a firm basis for our moving forward.

And I won't be commenting on evidence in addition to that, outside the courtroom.

Yes, sir?

Q On a related topic, are you at all concerned that your public statements so far may have prejudiced Lindh's chances for a fair trial --



Q His attorney has asserted that the government has essentially pulled out a cannon, in his words, to get a mouse in this case, meaning that his client may not be -- or his case may not rise to the level of seriousness that you ascribe to it. Can you respond to that?

ATTY GEN. ASHCROFT: Well, I would just say that I was very pleased with the judge's ruling in Alexandria this morning. We outlined the indictment against Walker Lindh yesterday, and the American people can be confident that Walker Lindh will receive every protection under the Constitution in our courtrooms and that justice will be served. And I think it's best for us to undertake this case with the kind of seriousness that we believe it deserves and the kind of seriousness that we believe the courts will give it.

Yes, sir?

Q General Ashcroft, today Walker Lindh's lawyers complained that you had gone too far yesterday, that you even violated Department of Justice protocol in the way, the manner in which you described this case. Can you just react to that?

ATTY GEN. ASHCROFT: I would just say that I'm pleased with the way the court handled this matter this morning, and we will litigate this matter very seriously. We consider these offenses to be serious, and our approach will be a serious approach.

Q But what about --

STAFF: Last question.

Q But what about the sort of allegation that you had gone too far in this case in your comments yesterday?

ATTY GEN. ASHCROFT: I believe that the court is handling this case appropriately. We'll litigate this case further in court.

Yes, sir?

Q I had another terrorism-related question. Last Thursday in Tennessee, FBI agents -- you may or may not be aware of this story, and I was looking for a comment -- FBI agents announced they had bought 900 law enforcement badges, including badges of FBI agents, Secret Service, state and local law enforcement agents, off the Internet. Are you aware of the story, A? B, are you concerned about the ability of people, possibly terrorists, to buy badges of law enforcement agents off the Internet? C, what's the legality around this?

And D, do you support any restrictions against -- (off mike)?

ATTY GEN. ASHCROFT: Well, you know, in a variety of law enforcement settings, whether it be the kind of security we need at our borders or in other settings, fraudulent documents are a challenge. And any kind of fraudulent, misleading document that would encourage or otherwise provide a basis for individuals to do what they should not otherwise do are a matter of concern to us, yes.

Thank you.

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