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Belbruno Litigation

In an ever increasing hostile environment towards immigrants, the Fourth Circuit dealt the final death blow to a fair administrative appellate procedure in Blanco de Belbruno v. Ashcroft___F.3d__ (4th Cir. 2004). For a copy of this case, please enter this site. Four issues were raised in the Belbruno litigation: 1) whether the Board of Immigration Appeal?s streamlining procedures were consistent with the Immigration and Nationality Act (INA); 2) whether the streamlining procedures were impermissible retroactive as applied to the litigants; 3) whether the streamlining procedures violated the Fifth Amendment?s due process clause; and 4) whether substantial evidence stood for the proposition that the Belbruno family merited political asylum in the United States.

For background information, the streamlining procedures are a regulatory enactment created in October 1999 to manage the case load of the Board of Immigration Appeals (BIA), the highest administrative tribunal in immigration law. Prior to the regulatory change, aliens who lost their deportation or removal hearing before the Immigration Judge had a right to file an appeal to the BIA. A panel of three BIA members adjudicated the appeal and issued a lengthy opinion stating its reasons for agreeing or disagreeing with the alien. The BIA possessed de novo review of both issues of fact and law.

In October 1999, the BIA changed its regulatory process and created the streamlining procedures. Instead of permitting three Board members to review the case, the BIA reduced the number of Board members per case from three to one. Also, the regulatory change mandated for that Board member to issue a two liner opinion stating that he or she agreed with the Immigration Judge?s decision, albeit, not necessarily the judge?s rational.

The Belbruno family lost their case with the Immigration Judge and filed a timely appeal. The Belbruno family filed the administrative appeal prior to the enactment of the streamlining procedures.

> As evidence of the unfairness of the streamlining procedures, the Belbruno family submitted evidence showing that after the streamlining procedure, aliens only prevailed in 10 percent of their cases, whereas prior to the enactment of the regulatory change, aliens prevailed in 25 percent of their cases. The Fourth Circuit rejected that argument and ruled that the streamlining procedures were consistent with the Immigration and Nationality Act, that the procedures were not impermissible retroactive and that they were fair and therefore met constitutional muster. Finally, the Fourth Circuit dismissed the asylum claim.


The Fourth Circuit was the final circuit to address the issue of whether the streamlining procedures were constitutional. In every case, the government prevailed.


The practical consequence of this defeat is that now, more than ever, cases in Immigration Court must be extremely well prepared. Prior to the regulatory changes, aliens could count on the BIA to provide meaningful review of a deportation or removal case. That is no longer the case; the alien must treat Immigration Court almost as the forum of last resort.