Double the Injustice, Twice the Harm: The Impact of the Board of Immigration Appeal's Summary Affirmance Procedures
Evelyn Haydee Cruz
Arizona State University (ASU) - Sandra Day O'Connor College of Law
Stanford Law & Policy Review, Vol. 16, p. 481, 2005
In 2002, the Department of Justice issued regulations that dramatically altered appellate procedures before the Board of Immigration Appeals (BIA). The regulations, which have been found to satisfy procedural due process by multiple circuit courts, have lengthened the trail of tears immigrants must travel to achieve fairness and justice. The recent changes in the regulations both increase immigrants' dissatisfaction with the immigration system and dangerously and unjustly narrow their access to due process under the law.
This article explores the impact of the regulatory changes and the influence the BIA has on the delivery of due process to immigrants. The Supreme Court reserved some basic due process rights for immigrants that the new summary affirmance regulations compromise. This article provides an overview of the due process rights of immigrants and discusses the realities immigrants face in trying to enforce their due process rights at the U.S. Citizenship and Immigration Services and at the immigration courts. The current immigration adjudication process fails to provide adequate due process safeguards. Circuit courts must take a critical and holistic view of the present immigration procedures to reestablish the equilibrium between fairness and plenary power. This article suggests ways to reestablish this balance, such as improving procedural avenues at the lower adjudicative levels and strengthening immigrants' trust in the fairness of the process.
Number of Pages in PDF File: 32
Keywords: immigration, due process, Board of Immigration AppealsAccepted Paper Series
Date posted: July 7, 2009
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