⚖️ BIA EXPANDS TO 28 APPELLATE JUDGES! — PLUS BONUS COVERAGE: "Lest We Forget: The Ashcroft Purge of the BIA!"

Jennings12@aol.com

April 2

Dan Kowalski reports:

This document is scheduled to be published in the Federal Register on 04/02/2024

"On April 1, 2020, the Department of Justice ("the Department" or "DOJ") published an interim final rule ("IFR") with request for comments that amended its regulations relating to the organization of the Board of Immigration Appeals ("Board") by adding two Board member positions, thereby expanding the Board to 23 members. This final rule responds to comments received and adds five additional Board member positions, thereby expanding the Board to 28 members. The final rule also clarifies that temporary Board members serve renewable terms of up to six months and that temporary Board members are appointed by the Attorney General. DATES: This rule is effective on [April 2, 2024]."

[Note: Applicants are encouraged to apply NOW on the theory that spillover from the applicant pool for the current openings here and here might be considered for the additional five slots.]

Daniel M. Kowalski

Editor-in-Chief

Bender's Immigration Bulletin (LexisNexis)

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Ironically, particularly for those of us directly affected, the BIA had 23 authorized members a little over two decades ago!

Then, the infamous "Ashcroft purge" cut that number back to 12, citing bogus "efficiency grounds" to cover a scheme that ousted those BIA Judges who consistently stood up for due process, fundamental fairness, and migrants' legal rights!

That sent the EOIR system into a tailspin which shook the Circuit Courts when almost immediately flooded with a tidal wave of deficient EOIR decisions, particularly relating to erroneous "adverse credibility rulings."

The emasculated BIA, of course, rapidly proved too small to function in even a minimally competent manner. To "cover up" the adverse effects of Ashcroft's political scheme, and to conceal the institutional failures of DOJ to protect individual rights of migrants, particularly those of color, Administrations of both parties resorted to the "gimmick" of quietly appointing "Temporary Board Members" from among BIA senior staff to keep the ship (sort of) afloat. Temporary Board Members were not allowed to vote at en banc conferences, had uncertain tenure, and had every incentive not to dissent or otherwise "rock the boat" if they wanted to compete for future "permanent" vacancies. (Although, arguably, the whole point of the Ashcroft purge was that all BIA judges were essentially "temporary" in the eyes of a GOP AG).

Over the decades following the purge, the DOJ gradually added permanent BIA Judge positions, without ever publicly acknowledging Ashcroft's political scheme and its debilitating effects.

For a comprehensive history of the now long-forgotten "Ashcroft purge" at the BIA, see Peter Levinson's scholarly masterpiece "The Facade of Quasi-Judicial Independence In Immigration Appellate Adjudications," linked here: https://immigrationcourtside.com/2018/05/17/courtside-history-lest-we-forget-the-ashcroft-purge-at-the-bia-in-2003-destroyed-the-pretext-of-judicial-independence-at-eoir-forever-heres-how-read-peter-levinson/