It sounds like when the Board of Immigration of Appeal (BIA) has conducted a full merit review of an immigration judges (IJ) ruling, and upholds the ruling, the standard to be applied by the Federal Courts in reviewing a BIA decision is "deferential, ‘substantial-evidence standard.’
For a court that has found all sorts of ways to dismantle the administrative state/regulatory agency determinations, applying "a deferential, ‘substantial-evidence standard’ for review of agency factual findings" doesn't sound like a particularly bad thing.
The question it begs for me is this. The first layer of appeal of an IJ ruling open to an asylum seeker is to the BIA. The next layer is appeal of the BIA ruling to the Federal Courts. But the felon's DOJ has effectively eliminated BIA review. The DOJ has changed the rules to implement a default of summary dismissal for most appeals. That is, appeals are automatically dismissed within 15 days unless a majority of permanent BIA members vote to review the case on its merits.
So, the BIA will be conducting few merit reviews. If the new automatic dismissals are considered a judgement upholding the IJ, does that judgment merit "deference" given that it was reached by default?
I'm hoping Popok will provide an analysis of the full implications of the SCOTUS decision.
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