New Refugee Rules Favor Efficiency Over Fairness

Today, new Justice Department regulations take effect that will dramatically weaken the ability of the country’s most important immigration tribunal to review asylum-related decisions. The department is placing efficiency above fairness by mandating that the Board of Immigration Appeals process a staggering number of cases under unrealistic deadlines.

Board members will be forced to simply rubber-stamp the decisions of overworked immigration judges, even when the reasoning behind those decisions contains errors. The new regulations also will limit the use of three-member panels that provide the sort of checks and balances that are integral to our government and that traditionally have considered most appeals. Instead, single board members will make most decisions, usually without explanation.

The Justice Department contends that these and other “streamlining” measures will enable the board to reduce its backlog of cases, which is indeed large. Yet the department also intends to reduce the number of board members by almost half, even though appeals continue to increase.

When asylum applicants do finally present their claim, sometimes after months of waiting, they may be forced to do so from jail, with an immigration judge watching via videoconferencing in a distant courtroom. Because the video camera may break in the middle of a hearing or testimony may be lost in translation, it is essential to have a potent appellate tribunal to provide a meaningful opportunity for appeal. After all, once asylum seekers are turned down, they are promptly deported to their native countries.

Take, for instance, Chen, a woman who, after a forced abortion, fled China to escape that country’s one-child-per-family law. Despite her credible testimony and a law specifically allowing for such people to be granted haven in the U.S., the immigration judge denied Chen asylum.

With the help of her pro bono attorneys, Chen prepared an appeal to the board, which unanimously reversed the decision of the immigration judge and ordered a second trial, at which Chen was granted asylum. But under the new procedures, it is unlikely that Chen would have had a meaningful opportunity to appeal and instead would have been unjustifiably sent back to a life of suffering in China.

Under these new regulations, how will mistakes like the one in Chen’s case be rectified? They won’t, because the practical effect of the rules is to limit board members to about 15 minutes to review each appeal. Yet for many who escape persecution, being returned to their native country is a death sentence.

Countless refugees flee human rights abuses each year. They deserve due process and a meaningful review of their cases. Sadly, under these new rules, they won’t get it.