Vol. 37, Number 2 —February 2005

BIA Appeals Remain High in 2nd and 9th Circuits

In the last four years, administrative agency appeals filed in federal courts from challenges to the decisions of the Board of Immigration Appeals (BIA) have rocketed upward 515 percent. And the Second and Ninth Circuits have seen the greatest number of these cases.

These cases come to the federal courts through the BIA. An alien or a citizen who loses their appeal to the BIA of a decision rendered by an immigration judge or a district director of the Department of Homeland Security (DHS) may file an appeal in a federal court of appeals. Since fiscal year 2001, for the 12-month periods ending September 30, the Second Circuit saw the number of BIA appeals filed in their circuit increase from 170 to 2,632 in FY 2004, a 1,448 percent increase. In the Ninth Circuit, the 954 BIA appeals filed in FY 2001 increased to 5,368 appeals in FY 2004, for a 463 percent increase.

Unlike the immigration crime cases in the district courts along the southwest border courts, the appeals finding their way to the Second and Ninth Circuits are generally asylum cases—people seeking relief from oppression in their native countries. For example, in the Second Circuit, Elizabeth Cronin, Director of Legal Affairs for the Circuit, says 70-80 percent of the appellants are Chinese seeking asylum to escape their homeland’s family planning policies. Confounding expectations that these would be predominately pro se cases, 80 percent of the cases have legal counsel. In the Ninth Circuit, a typical asylum case is not as clear, with nationals from Mexico, China, India, Guatemala, Armenia, the Philippines, Russia, and Indonesia bringing appeals.

For all immigration appeals cases in the Ninth Circuit, slightly less than a quarter of the appeals involve Mexican nationals. According to experts in the Ninth Circuit, the overwhelming majority of Mexicans seek cancellation of removal. This is a form of relief where the person must prove they’ve lived continuously in the U.S. for a certain number of years, and show that their removal would cause extreme hardship to a qualifying U.S. citizen-relative.

BIA appeals initially rose in all the circuits after February 2002 when Attorney General John Ashcroft pledged that the Department of Justice would clear a backlog of 56,000 immigration cases at the BIA and subsequently mandated reforms to the BIA’s adjudication process. The backlog was cleared quickly. With new processing timeframes and other streamlining initiatives in place, the BIA is able to hear more cases and resolve cases faster. A greater percentage of these cases are, in turn, appealed to the federal courts.

Ceiling on Outside Income

With the January 1, 2005, increase in the basic pay for Executive Schedule employees, the ceiling on outside earned income for federal judges also increased, from $23,715 in 2004 to $24,315 in 2005. The ceiling applies only to outside earnings and not to investment income, royalties, pensions, and similar income sources that are specifically excluded by regulation.

The Ethics Reform Act prohibits high-ranking government officials from having outside earned income exceeding “15 percent of the annual rate of basic pay for Level II of the Executive Schedule.” Effective January 1, 2005, the basic pay for Level II increased to $162,100.