Michael M. Hethmon, Tsunami Watch on the Coast of Bohemia: The BIA Streamlining Reforms and Judicial Review of Expulsion Orders, 55 Cath. U. L. Rev. 999 (2006)
Removal is the ultimate criterion for the viability of a national system of immigration law. All sovereign states establish rules as to who may be admitted into the national territory, and on what terms. These rules, in all cases, presume the ability of the sovereign state to expel persons– primarily aliens–who are unlawfully present within the state.
Most modern states have also developed a body of law providing relief from expulsion, typically on humanitarian or foreign policy grounds. 2 In conditions of mass immigration, the adjudication of this specialized and normally obscure body of law takes on broad national policy implications.
In the United States, a system of administrative Immigration Judges (IJs), under the U.S. Department of Justice (DOJ)’s Executive Office for Immigration Review (EOIR), adjudicate expulsion at the primary level. 3 The Board of Immigration Appeals (BIA) hears appeals from the decisions of administrative IJs. 4
This Article examines the widely reported surge in appeals of BIA decisions since the implementation between 1999 and 2002 of the so-called “streamlining reforms,” and surveys the response of the federal circuit courts that were required to rule on constitutional challenges to streamlining. This analysis focuses on thirteen reported cases in which the federal circuit courts unanimously affirmed the BIA summary review procedures. 5Then, this Article takes a critical look at these reforms within the broader substantive context of the law of relief from expulsion.
The BIA has stated that … read more.