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Faiza W. Sayed

Publication Date

1-22-2023

Abstract

Each year, the Board of Immigration Appeals (BIA)—the Justice Department’s appellate immigration agency that reviews decisions of immigration judges and decides the fate of thousands of noncitizens—issues about thirty published, precedential decisions. At present, these are the only decisions out of approximately 30,000 each year, that are readily available to the public and provide detailed reasoning for their conclusions. This is because most of the BIA’s decision-making happens on what this Article terms the “immigration shadow docket”—the tens of thousands of other decisions the BIA issues each year that are unpublished and nonprecedential. These shadow docket decisions are generally authored by a single BIA member and consist overwhelmingly of brief orders and summary affirmances. This Article demonstrates the harms of shadow docket decision-making, including the creation of “secret law” that is accessible to the government but largely inaccessible to the public. Moreover, this shadow docket produces inconsistent outcomes where one noncitizen’s removal order is affirmed while another noncitizen’s removal order is reversed—even though the deciding legal issues were identical. A 2022 settlement provides the public greater access to some unpublished BIA decisions, but it ultimately falls far short of remedying the transparency and accessibility concerns raised by the immigration shadow docket.

The BIA’s use of nonprecedential, unpublished decisions to dispose of virtually all cases also presents serious concerns for the development of immigration law. Because the BIA is the final arbiter of most immigration cases, it has a responsibility to provide guidance as to the meaning of our complicated immigration laws and to ensure uniformity in the application of immigration law across the nation. By publishing only 0.001% of its decisions each year, the BIA has all but abandoned that duty. This dereliction likely contributes to well-documented disparities in the application of immigration law by immigration adjudicators and the inefficiency of the immigration system that leaves noncitizens in protracted states of limbo and prolonged detention. This Article advances principles for reforms to increase transparency and fairness at the BIA, improve the quality, accuracy and political accountability of its decisions, and ensure justice for the nearly two million noncitizens currently in our immigration court system.

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