The New Techniques for Managing High-Volume Asylum Systems

Iowa Law Review

Volumn 81, Issue 3, 1996, Pages 671-704

  Legomsky, Stephen H ^a  

^a UNIVERSITY OF WASHINGTON   (United States)

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EID: 0030492709     PISSN: 00210552     EISSN: None     Source Type: Journal    
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References (173)

1. One reform thus far considered only in Europe is also discussed. See infra notes 45-47 and accompanying text (describing the safe country of origin strategy).
2. See generally Stephen H. Legomsky, Immigration Law and Policy, ch. 9 (1992 & Supp. 1994) [hereinafter Legomsky, Immigration Law].
3. Immigration and Nationality Act ("INA") § 101(a)(42), 8 U.S.C. § 1101(a)(42) (1994). This definition is modeled on that of the United Nations Convention Relating to the Status of Refugees, July 28, 1951, 189 U.N.T.S. 137, art. 1(A) (2) [hereinafter U.N. Refugee Convention], as amended by the United Nations Protocol Relating to the Status of Refugees, Jan. 31, 1967, 19 U.S.T. 6223, 606 U.N.T.S. 267, T.I.A.S. No. 6577, art. 1 [hereinafter U.N. Refugee Protocol].
4. See INA § 207, 8 U.S.C. § 1157 (1994) (authorizing the President to admit refugees).
5. For a discussion of the procedure for admitting overseas refugees, see Lawyers Committee for Human Rights, The Implementation of the Refugee Act of 1980: A Decade of Experience (Mar. 1990). See also Stephen H. Legomsky, The Making of United States Refugee Policy: Separation of Powers in the Post-Cold War Era, 70 Wash. L. Rev. 675, 696-713 (1995) (proposing an independent board to make annual refugee selections).
6. For a discussion of the procedure for admitting overseas refugees, see Lawyers Committee for Human Rights, The Implementation of the Refugee Act of 1980: A Decade of Experience (Mar. 1990). See also Stephen H. Legomsky, The Making of United States Refugee Policy: Separation of Powers in the Post-Cold War Era, 70 Wash. L. Rev. 675, 696-713 (1995) (proposing an independent board to make annual refugee selections).
7. INA § 243(h), 8 U.S.C. § 1253(h) (1994). This provision is sometimes called "withholding of deportation," but since 1980 it has been available in exclusion proceedings as well.
8. INA § 209(b), 8 U.S.C. § 1159(b) (1994). This section authorizes adjustment of status after one year.
9. INA § 208, 8 U.S.C. § 1158 (1994).
10. 8 C.F.R. § 208.4(c)(1) (1995).
11. 8 C.F.R. § 3.10 (1995).
12. See 8 C.F.R. § 3.1 (b) (1,2) (1995) (defining the time limit for an appeal).
13. INA § 106(a), 8 U.S.C. § 1105a(a) (1994) (making deportation orders reviewable by petition for review in courts of appeals); INA § 106(b), 8 U.S.C. § 1105a(b) (making exclusion orders reviewable by habeas corpus in district courts).
14. In such a case, the initial application is often called an "affirmative application."
15. See INS Finalizes Asylum Reform Regulations, 71 Interpreter Releases 1577, 1578 (1994) (citing the statistical data associated with asylum claims) [hereinafter INS Finalizes].
16. See 55 Fed. Reg. 30,674-87 (1990) (defining the role of the asylum officer in processing asylum claims).
17. 8 C.F.R. § 208.9 (1995).
18. Id. §§ 208.14(a), 208.16, 208.17 (1995).
19. Id. § 208.18(b) (1995).
20. Fiscal year 1994 is the year ending September 30, 1994.
21. INS Finalizes, supra note 15, at 1578.
22. Id.
23. 8 C.F.R. § 208.14, as amended by 59 Fed. Reg. 62,284, 62,300 (1994). The only exception is for applicants who have valid nonimmigrant status. Because no ground for deportation proceedings exists in those cases, asylum officers either grant or deny asylum. Id.
24. See infra notes 125-41 and accompanying text.
25. Violent Crime Control and Law Enforcement Act of 1994, Pub. L. No. 103-322, § 130005, 108 Stat. 1796, 2028 (1994). In this Act, Congress also allocated $90 million to the INS for fiscal year 1996, $93 million for fiscal year 1997, and $91 million for fiscal year 1998. Id.
26. See infra notes 152-59 and accompanying text.
27. One Year Later: Asylum Claims Drop by 57 Percent, 73 Interpreter Releases 45, 45-47 (1996) [hereinafter One Year Later].
28. Id.
29. Id.
30. See Legomsky, Immigration Law, supra note 2, at 952-53 (citing relevant sources for further discussion).
31. See id. at 955-57 (citing relevant sources for further discussion).
32. See, e.g., David A. Martin, Reforming Asylum Adjudication: On Navigating the Coast of Bohemia, 138 U. Pa. L. Rev. 1247, 1291-92 (1990) (advocating procedural norms that would remove the incentives to file marginal asylum claims).
33. INS Proposes Asylum Reform Regulations, 71 Interpreter Releases 445, 446 (1994) [hereinafter INS Proposes].
34. The United Nations High Commissioner for Refugees (UNHCR) estimates a current population of 14.5 million refugees who have crossed international borders and another 5.4 million "internally displaced people." United Nations High Commissioner for Refugees, The State of the World's Refugees 19-20 (1995). The latter individuals would also satisfy the United States refugee definition, which does not require the crossing of international borders. See INA § 101(a)(42)(B), 8 U.S.C. § 1101 (a)(42)(B) (1994) (defining a person as a refugee based on the location within a country).
35. Bill Frelick, Haitian Boat Interdiction and Return: First Asylum and First Principles of Refugee Protection, 26 Cornell Int'l L.J. 675, 682 (1993) [hereinafter Frelick, Haitian Boat].
36. Much has been written on the Haitian interdiction program. For a small sampling, see generally id.; Harold H. Koh, The "Haiti Paradigm" in United States Human Rights Policy, 103 Yale L.J. 2391 (1994); Stephen H. Legomsky, The Haitian Interdiction Programme, Human Rights, and the Role of Judicial Protection, 2 Int'l J. Refugee Law, Special Issue at 181 (1990); Hiroshi Motomura, Haitian Asylum Seekers: Interdiction and Immigrants' Rights, 26 Cornell Int'l L.J. 695 (1993).
37. Much has been written on the Haitian interdiction program. For a small sampling, see generally id.; Harold H. Koh, The "Haiti Paradigm" in United States Human Rights Policy, 103 Yale L.J. 2391 (1994); Stephen H. Legomsky, The Haitian Interdiction Programme, Human Rights, and the Role of Judicial Protection, 2 Int'l J. Refugee Law, Special Issue at 181 (1990); Hiroshi Motomura, Haitian Asylum Seekers: Interdiction and Immigrants' Rights, 26 Cornell Int'l L.J. 695 (1993).
38. Much has been written on the Haitian interdiction program. For a small sampling, see generally id.; Harold H. Koh, The "Haiti Paradigm" in United States Human Rights Policy, 103 Yale L.J. 2391 (1994); Stephen H. Legomsky, The Haitian Interdiction Programme, Human Rights, and the Role of Judicial Protection, 2 Int'l J. Refugee Law, Special Issue at 181 (1990); Hiroshi Motomura, Haitian Asylum Seekers: Interdiction and Immigrants' Rights, 26 Cornell Int'l L.J. 695 (1993).
39. Frelick, Haitian Boat, supra note 35, at 691.
40. See Exec. Order No. 12,807, 57 Fed. Reg. 23,133 (1992) (ordering interdiction); Jamaica, Turks and Caicos Islands to Help U.S. Process Haitians, 71 Interpreter Releases 743-44 (1994) (announcing the change from a policy of forcible return in place since May 1992).
41. Clinton Modifies Haitian Interdiction Policy, 71 Interpreter Releases 627, 628 (1994).
42. See Frelick, supra note 35, at 683-87 (discussing regional solutions).
43. S. 269, 104th Cong., 1st Sess., §§ 141, 148, 193 (1995) (authorizing summary exclusion, authorizing detention or parole pending decision, and limiting asylum rights, respectively). An alien who claims asylum would receive an interview, either in person or by video, with a specialized asylum officer. Id. § 141. The alien would have to prove a "credible fear" of persecution; otherwise, he or she would be ordered "specially excluded" and would never appear before an immigration judge. Id. There would be no administrative review except that those aliens who are physically present in the United States would receive some form of "prompt supervisory review." Id. §§ 141, 193.
44. 113 S. Ct. 2549 (1993).
45. First asylum, as used here, refers to the place of immediate refuge, where the person may stay while awaiting permanent resettlement elsewhere.
46. See, e.g., Frelick, Haitian Boat, supra note 35, at 682-83 (describing the efforts of the United States to maintain first asylum in Asian countries for the Vietnamese boat people), 690-92 (describing the erosion of the moral authority of the United States to advocate first asylum, because of its own unwillingness to honor the principle).
47. See generally Kay Hailbronner, The Concept of "Safe Country" and Expeditious Asylum Procedures: A Western European Perspective, 5 Int'l J. Refugee L. 31, 36-48 (1993) (surveying state asylum practices).
48. See infra notes 111-21 and accompanying text.
49. Hailbronner, supra note 45, at 49-58. Almost all the advantages and disadvantages of the safe country approach discussed in this subsection have been taken from Hailbronner.
50. This practice is prevalent in Western Europe. See generally Hailbronner, supra note 45.
51. 8 C.F.R. § 208.14(d)(2) (1995); see also INA. § 207(c)(1), 8 U.S.C. § 1157(c)(1) (1994) (requiring "firm resettlement" for admission under overseas refugee programs); INA § 209(b)(4), 8 U.S.C. § 1159(b)(4) (1994) (denying adjustment of status to permanent resident for an asylee who is firmly resettled in another country).
52. H.R. 3363, 103d Cong., 1st Sess., § 201(a) (1993) (proposing INA § 208(a)(2)(C)(v), 8 U.S.C. § 1158(a)(2)(C)(v)).
53. H.R. 2202, 104th Cong, 1st Sess., § 526(a) (1995) (adding INA § 208(b)(3)(vi), 8 U.S.C. § 1158(b)(3)(vi)).
54. For a description of the common devices for speeding the adjudication of cases initially assessed as lacking merit, see infra notes 111-24 and accompanying text.
55. See generally Arthur C. Helton, Toward Harmonized Asylum Procedures in North America: The Proposed United States-Canada Memorandum of Understanding for Cooperation in the Examination of Refugee Status Claims from Nationals of Third Countries, 26 Cornell Int'l L.J. 737 (1993).
56. See Bill Frelick, Who's on First? The Canada-U.S. Memorandum of Agreement on Asylum, 73 Interpreter Releases 217, 217-25 (1996).
57. This is a different question from that of free movement by nationals of the cooperating countries. See, e.g., Treaty of Rome, arts. 48-51 (1957), reprinted in Common Mkt. L. Rep. 612-13 (1992) (allowing free movement of workers); Single European Act, art. 13 (1986), reprinted in 25 Int'l Legal Materials 506, 510-11 (1986) (adding article 8A to Treaty of Rome).
58. Hailbronner, supra note 45, at 58-59.
59. Id. at 59.
60. The best known example is the Convention Determining the State Responsible for Examining Applications for Asylum Lodged in one of the Member States of the European Communities [the Dublin Convention], June 15, 1990, art. 10.1(e), reprinted in 2 Int'l J. Refugee L. 469 (1990). See also Convention on the Application of the Schengen Agreement of 14 June 1985 relating to the Gradual Suppression of Controls at Common Frontiers, between the Governments of States Members of the Benelux Economic Union, the Federal Republic of Germany and the French Republic, June 19, 1990, art 29.2, excerpted in 3 Int'l J. Refugee L. 773 (1992).
61. U.N. Refugee Convention, supra note 3, art. 1.A(2).
62. INA § 101(a)(42)(B), 8 U.S.C. § 1101(a)(42)(B) (1994).
63. See Frelick, Haitian Boat, supra note 35, at 689-90; see also Ralston Deffenbaugh, Resettlement as Protection: New Directions in the U.S. Refugee Program, Refugee Reports, Apr. 29, 1994, at 10-11.
64. See Frelick, Haitian Boat, supra note 35, at 689-90.
65. See supra notes 35-44 and accompanying text.
66. Frelick, Haitian Boat supra note 35, at 689-90; Ricardo Inzunza, The Refugee Act of 1980 Ten Years After - Still the Way to Go, 2 Int'l J. Refugee L. 413, 421-22 (1990).
67. Frelick, Haitian Boat, supra note 35, at 689.
68. H.R. 2202, supra note 51, § 703.
69. U.N. Refugee Convention, supra note 3.
70. U.N. Refugee Protocol, supra note 3; see H.R. 2202, supra note 51, § 703.
71. Id.
72. H.R. 2202, supra note 51, § 526(f)(1)(A)(i) (adding INA § 208(f)(1)(A)(i)).
73. H.R. 2202, supra note 51, § 526(f)(1)(A)(ii).
74. See Eight Days and Counting: Panel Continues Reform Bill Mark-Up, Promises End is Near, 72 Interpreter Releases 1447, 1449 (1995).
75. Philip G. Schrag, Don't Gut Political Asylum, Wash. Post, Nov. 12, 1995, at C7.
76. Id.
77. Id.
78. Id.
79. INA § 235(b), 8 U.S.C. § 1225(b) (1994).
80. See 8 C.F.R. § 235.5(b)(c) (1995) (authorizing the inspecting officer to detain aliens arriving without documentation, with fraudulent documentation, or who appear to be inadmissible).
81. Id.
82. INA § 242(a), 8 U.S.C. § 1252(a) (1994).
83. H.R. 3223, 103d Cong., 1st Sess., § 4 (1993).
84. Id.
85. Id. A more recent bill would require the Attorney General and the Secretary of Defense to study that last possibility. See S. 269, supra note 41, § 152 (establishing "a pilot program for up to two years to determine the feasibility of the use of military bases . . . as detention centers" for the INS).
86. 8 C.F.R. § 208.7(a) (1994), superseded by 8 C.F.R. § 208.7(a) (1995).
87. Id. § 208.7(b).
88. 8 C.F.R. § 208.20 (1994), superseded by 8 C.F.R. § 208.20 (1995), which now requires an alien intending to be employed to apply to the INS for authorization and requires the INS to issue that authorization within 30 days of the application's receipt.
89. 8 C.F.R. § 208.7(a)(1) (1995).
90. If the asylum denial occurs during the first 150 days, there will have been no application for work authorization. If the asylum denial occurs during the next 30 days, the new regulations mandate denial of work authorization. Id.
91. 8 C.F.R. § 208.20 (1995).
92. See commentary to final regulations, 59 Fed. Reg. 62,284, 62,290-91 (1994) (arguing that the costs outweigh the benefits).
93. 59 Fed. Reg. at 62,290.
94. One Year Later, supra note 27, at 46.
95. 59 Fed. Reg. 14,779, 14,780 (1994) (commentary to proposed rule). Actually, the added incentive extends this period to 180 days, since as noted earlier the regulations provide that work authorization must be denied if asylum is denied during the 30-day window.
96. 59 Fed. Reg. at 62,290.
97. See 8 C.F.R. § 103.7(b) (1995) (prescribing the amounts of various fees); 8 C.F.R. § 274a.13(a)(2) (1995) (prescribing fee for renewal or replacement of employment authorization but not for initial application); 59 Fed. Reg. 14,779, 14,781 (1994) (proposing a rule that would impose a $130 fee for filing asylum applications).
98. 59 Fed. Reg. 14,779, at 14,781, 14,784 (1994). Pending legislation would expressly authorize the Attorney General to impose filing fees for asylum, work authorization, and adjustment of status of asylees. H.R. 2202, supra note 51, § 526 (adding INA § 208(f)(1)(C) (1995)).
99. 59 Fed. Reg. at 14,781; see also 31 U.S.C. § 9701(a) (1994) (requiring that each service provided by a federal agency be "self-sustaining to the extent possible").
100. Id.
101. Australia and the Netherlands charge fees of $30 and $25, respectively. 59 Fed. Reg. 62,284, 62,286 (1994).
102. An alternative possibility would be to treat the applicant as taking out a loan, to be repaid by successful claimants when they apply later for adjustment of status, and by others if they ever seek immigration benefits in the future. Recouping some of the cost would be better than recouping none. See 59 Fed. Reg. at 62,287 (1994) (discussing these alternatives and deleting the fee proposal from the final rule).
103. 59 Fed. Reg. at 62,286.
104. 8 C.F.R. § 292.3(a)(15) (1995) (emphasis added), mandated by INA § 242B(d), 8 U.S.C. § 1252B(d). "Frivolous behavior" will be found when the attorney or representative "knows or reasonably should have known" that his or her argument, application, motion, or appeal "lack[s] an arguable basis in law or in fact" or is "taken for an improper purpose, such as to cause unnecessary delay." 8 C.F.R. § 292.3(a)(15)(i).
105. H.R. 2202, supra note 51, § 526 (adding INA § 208(h)(1) (1995)). For purposes of that provision, any "willful misrepresentation or concealment of a material fact" will automatically render the application "frivolous". INA § 208(h) (2).
106. Spouses and children of United States citizens are among the classes of aliens ordinarily permitted to immigrate to the United States. INA § 201(b)(2)(A)(i), 8 U.S.C. § 1151(b)(2)(A)(i) (1994).
107. See supra notes 20-22 and accompanying text (quantifying the degree of backlog for fiscal year 1994).
108. See discussion infra Part III.B.2 (detailing the LIFO method).
109. The Immigration Reform and Control Act of 1986 (IRCA), Pub. L. 99-603, 100 Stat. 3359 (1986), among other things created three different ad hoc legalization programs: a general program, a program for agricultural workers, and a program for Cubans and Haitians. See generally Legomsky, Immigration Law, supra note 2, at 547-53. In addition, two permanent provisions for regularizing the status of undocumented aliens with long-term residences in the United States are suspension of deportation, INA § 244(a), 8 U.S.C. § 1254(a) (1994), and registry, INA § 249, 8 U.S.C. § 1259 (1994).
110. The Violent Crime Control and Law Enforcement Act of 1994, Pub. L. 103-322, § 130005, 108 Stat. 1796, 2028 (1994), specifically authorizes the Attorney General to "provide for the expeditious adjudication of asylum claims." In addition to appropriating funds, id. § 130005(c), that language might be read as endorsing a policy of prioritizing asylum cases vis-à-vis other immigration cases.
111. INA §§ 242(i), 242a, 8 U.S.C. §§ 1252(i), 1252a (1994).
112. See INS Proposes, supra note 33, at 446 ("About 35 percent of new asylum applications are scheduled for an interview, and the INS tries to decide those cases within 120-150 days. The other 65 percent are simply added to this growing backlog, with no time table for adjudicating those cases.").
113. Massive media attention followed. See, e.g., David Cole, Legal Times, Dec. 27, 1993, at 26; David Crosland, Don't Fence in America, Wash. Post, Aug. 8, 1993 at C-7; San Diego Union-Tribune, May 22, 1993, at A-8; Atlanta J. & Const., Mar. 30, 1993, at 12.
114. Massive media attention followed. See, e.g., David Cole, Legal Times, Dec. 27, 1993, at 26; David Crosland, Don't Fence in America, Wash. Post, Aug. 8, 1993 at C-7; San Diego Union-Tribune, May 22, 1993, at A-8; Atlanta J. & Const., Mar. 30, 1993, at 12.
115. Massive media attention followed. See, e.g., David Cole, Legal Times, Dec. 27, 1993, at 26; David Crosland, Don't Fence in America, Wash. Post, Aug. 8, 1993 at C-7; San Diego Union-Tribune, May 22, 1993, at A-8; Atlanta J. & Const., Mar. 30, 1993, at 12.
116. See generally H.R 2202, supra note 51, §§ 302, 306; S. 269, supra note 41, §§ 141, 142, 171.
117. See, e.g., S. 269, supra note 41, § 171 (excluding those aliens with "forged, counterfeit, altered, falsely made, [or] stolen" documents and those who "fail to present [the necessary entry] document to an immigration officer upon arrival").
118. House Subcommittee Approves Sweeping Asylum Inspections Reform Bill, 70 Interpreter Releases 1397, 1398 (1993) (referring to INS decisions whether to release asylum seekers from detention).
119. Hope M. Frye, From Bad to Worse, Am. Immigr. Law. Ass'n Dispatch, Sept. 1994, at S-1. As she eloquently puts it: "You are given minutes to cross language, cultural and religious barriers to describe how and when and how often you were touched, probed or penetrated. You must tell this to a border cop, almost always male, often with badges and uniforms - tokens you recognize as danger signals, not beacons of safety." Id.
120. S. 1333, supra note 112, § 1, (as amended by Committee on the Judiciary, 1994), which would have added INA § 235 (d)(5).
121. H.R. 2602, 103d Cong., 1st Sess., § 208 (1993).
122. See Asylum Reform Act of 1993: Hearing Before the House Subcomm. on International Law, Immigration and Refugees of the Comm. on the Judiciary, 103d. Cong., 1st Sess. 167, 263 (testimony of Robert Rubin and Warren Leiden, respectively), reported in U.S. Comm. for Refugees, 14 Refugee Rep., issue 5, at 4 (May 31, 1993).
123. Article 33.1 prohibits the return of a refugee to territories where the applicant's "life or freedom would be threatened" on certain grounds. U.N. Refugee Convention, supra note 3, art. 33.1. Article 33.2 makes exceptions, but only for those refugees who either endanger national security or were convicted of "particularly serious" crimes. Id. art 33.2. The Convention provides no exception for fraudulent documents.
124. See testimony of Hon. Doris Meissner before Senate Judiciary Committee (June 15, 1994), reported in Senate Committee Holds Hearing on Immigration Reform, 71 Interpreter Releases 825, 827 (1994) (estimating 3.8 million undocumented aliens in the United States).
125. INS Proposes, supra note 33, at 446.
126. H.R. 2202, supra note 51, § 526 (adding INA § 208(f)(2)(A)(iii)(1995) ; see also H.R. 3223, supra note 81, § 4.
127. Hailbronner, supra note 45, at 40.
128. Other variables include differences in the ethnic or ideological composition of the applicant pool, the overall legal system, asylum criteria or procedures, and the propensities of the adjudicators.
129. The 1994 regulations have reduced but not eliminated the separation between those two steps. See supra notes 23-24 and accompanying text (describing the new grant-or-refer procedure).
130. See Martin, supra note 32, at 1344 (arguing against multiple layers of de novo review).
131. The new regulations continue to require written reasons for INS denials of asylum claims. 8 C.F.R. § 208.17. Under new § 208.14(b), however, only a few exceptional categories of applications are subject to denial; the others must be either granted or referred to immigration judges. 8 C.F.R. § 208.14(b). See generally discussion infra Part III.C.3 (discussing the effects of eliminating certain components of the hearing procedure).
132. See infra notes 160-67 and accompanying text.
133. These and other rationales appear in Martin, supra note 32, at 1324, 1346-52.
134. H.R. 2202, supra note 51, § 526 (adding INA § 208(f)(2)(1995)).
135. See supra notes 23-24 and accompanying text (discussing the changes made by the 1995 amendment to the regulation).
136. See generally discussion infra Part III.C.3 (discussing deletions of various procedural components).
137. This possibility is expressly approved by the new regulations. See 8 C.F.R. § 242.17(e) (1995).
138. 59 Fed. Reg. 62,284, 62,296 (1994).
139. 59 Fed. Reg. 62,284, at 62,293-94, 62,300 (1994), amending 8 C.F.R. § 208.12(a) (1994).
140. See supra note 127.
141. Approximately 50% of the NOIDs generated rebuttals, but only about 2% of the rebuttals produced reversals. President Transmits "Expedited Exclusion" Proposal to Congress, Am. Immigr. Law. Ass'n Monthly Mailing, Sept 1993, at 647, 649.
142. 8 C.F.R. § 208.11 (1994); INS Proposes, supra note 33, at 448. Over the years the BHRHA opinions became less detailed, and Justice Department adjudicators began assigning them less weight. See generally Legomsky, Immigration Law, supra note 2, at 931-34.
143. 8 C.F.R. § 208.11 (1995).
144. See the State Department's Annual Country Reports on Human Rights Practices, mandated by 22 U.S.C. § 2151n(d) (1994).
145. Kasravi v. INS, 400 F.2d 675, 677 n.1 (9th Cir. 1968); T. Alexander Aleinikoff, Political Asylum in the Federal Republic of Germany and the Republic of France: Lessons for the United States, 17 U. Mich. J. L. Ref. 183, 194-95 (1984); Human Rights Watch and Lawyers Comm. for Human Rights, Critique - Review of the Department of State's Country Reports on Human Rights Practices (periodic publication).
146. E.g., Paul D. Carrington, et al., Justice on Appeal 2-3 (1976); David P. Leonard, The Correctness Function of Appellate Decision-Making: Judicial Obligation in an Era of Fragmentation, 17 Loy. L.A. L. Rev. 299, 299-302 (1984).
147. E.g., Paul D. Carrington, et al., Justice on Appeal 2-3 (1976); David P. Leonard, The Correctness Function of Appellate Decision-Making: Judicial Obligation in an Era of Fragmentation, 17 Loy. L.A. L. Rev. 299, 299-302 (1984).
148. Stephen H. Legomsky, Political Asylum and the Theory of Judicial Review, 73 Minn. L. Rev. 1205, 1210-11 (1989).
149. See Stephen H. Legomsky, Immigration and the Judiciary - Law and Politics in Britain and America 280-98 (1987) (arguing that courts and administrative tribunals have complementary roles); Martin, supra note 32, at 1355-56.
150. See generally Henry M. Hart, The Power of Congress to Limit the Jurisdiction of Federal Courts: An Exercise in Dialectic, 66 Harv. L. Rev. 1362 (1953). I thank Gerald Neuman for raising this question.
151. These issues include detention, denying or delaying work authorization, filing fees, attorney sanctions, legalization, fast tracks for unfounded cases, discretionary review, case priorities, last-in-first-out, and deleting selected procedural ingredients. Other issues, discussed below, are also relevant to review. They include removal speed, resource allocation, and degree of specialization. The time period for initiating review is also worthy of consideration, but at present not much time could be shaved. An applicant has only ten days to file a notice of appeal with the BIA, 8 C.F.R. § 3.38(b) (1995), and 90 days to petition for judicial review of a deportation order, INA § 106(a)(1), 8 U.S.C. § 1105a(a)(1) (1994) (noting an exception for aggravated felons, who must file within 30 days). The time limit for reviewing petitions was recently shortened from six months. It could be shortened further, but efficiency gains would be limited, because the INS is not required to wait the full 90 days before removing an alien who has been ordered deported and who has not filed a petition for review.
152. See Roger C. Cramton, Administrative Procedure Reform: The Effects of S. 1663 on the Conduct of Federal Rate Proceedings, 16 Admin. L. Rev. 108, 111-12 (1964) (discussing the criteria for evaluating proposed changes in administrative procedures); Stephen H. Legomsky, Forum Choices for the Review of Agency Adjudication: A Study of the Immigration Process, 71 Iowa L. Rev. 1297, 1313-14 (1986) (discussing the goals of a review system and the benefits of consistency of administrative procedures) [hereinafter Legomsky, Forum Choices].
153. See Roger C. Cramton, Administrative Procedure Reform: The Effects of S. 1663 on the Conduct of Federal Rate Proceedings, 16 Admin. L. Rev. 108, 111-12 (1964) (discussing the criteria for evaluating proposed changes in administrative procedures); Stephen H. Legomsky, Forum Choices for the Review of Agency Adjudication: A Study of the Immigration Process, 71 Iowa L. Rev. 1297, 1313-14 (1986) (discussing the goals of a review system and the benefits of consistency of administrative procedures) [hereinafter Legomsky, Forum Choices].
154. Maurice A. Roberts, Proposed: A Specialized Statutory Immigration Court, 18 San Diego L. Rev. 1 (1980).
155. See infra notes 160-67 and accompanying text.
156. For more comprehensive analyses of specialized immigration courts, see Legomsky, Forum Choices, supra note 147, at 1386-96 (discussing the proposal of a specialized immigration court in terms of quality, efficiency, and possible side effects); Peter J. Levinson, A Specialized Court for Immigration Hearings and Appeals, 56 Notre Dame Law. 644 (1981) (advocating a specialized immigration court); Roberts, supra note 148 (same).
157. H.R. 2202, supra note 51, § 305.
158. See supra notes 20-22 and accompanying text.
159. In January 1996 the INS estimated that it was approving 20% of all asylum claims. One Year Later, supra note 27, at 45-47. Eighty percent of the 150,000 claims filed annually would be 120,000.
160. Id. The expected increase in the BIA workload is hard to estimate. Unknowns include the percentage of claims that immigration judges will approve (probably very low because all these cases will be ones that the INS has already declined to approve) and the percentage of immigration judge denials that will be appealed to the BIA (presumably lower than the historical one-half because these cases have already been rejected twice).
161. See supra notes 20-29 and accompanying text.
162. Stephen H. Legomsky, Reforming the Asylum Process: An Ambitious Proposal for Adequate Staffing, 16 Loyola L.A. Int'l & Comp. L.J. 191 (Supp. 1994) [hereinafter Legomsky, Reforming].
163. Pending legislation would take a similar stance, but utilize retired federal employees and retired military officers, rather than recent law school graduates. See H.R. 2202, supra note 51, § 523 (authorizing the temporary hiring of 300 retired federal employees to reduce the asylum application backlog); S. 269, supra note 41, § 173 (same).
164. Legomsky, Reforming, supra note 156, at 193-94. The costs of the program are now higher. First, the backlog has grown. Second, with the inauguration of the new grant-or-refer system, this proposal now requires more immigration judges as well as increased BIA and judicial funding.
165. See, e.g., Reforming the Affirmative Asylum Procedures, U.S. Comm. for Refugees, 14 Refugee Rep. issue 5, tbl. at 6 (1993).
166. See Martin, supra note 32, at 1338-44 (advocating a "corps of specialized, well-trained professional adjudicators").
167. See 55 Fed. Reg. 30,674, 30,674-80 (1990) (outlining procedures to be followed by specialized asylum officers).
168. Martin, supra note 32, at 1338-39.
169. Id. at 1341-42.
170. Examples of common issues include the meaning of persecution, the human rights conditions prevailing in particular countries, and the meaning of political opinion.
171. For a more general study of specialized adjudication, see generally Stephen H. Legomsky, Specialized Justice - Courts, Administrative Tribunals, and a Cross-National Theory of Specialization (1990). The criteria for determining whether a given subject matter would benefit from specialized adjudication are considered in chapter two.
172. See Aleinikoff, supra note 141, at 234 (describing the subspecialization of officers in France and West Germany); Walter Kalin, Troubled Communication: Cross-Cultural Misunderstandings in the Asylum-Hearing, 20 Int'l Migration Rev. 230, 239 (1986) (emphasizing cultural differences that hamper communications).
173. Martin, supra note 32, at 1342.