Refugee roulette in an administrative law context: The déjà vu of decisional disparities in agency adjudication

Stanford Law Review

Volumn 60, Issue 2, 2007, Pages 475-501

  Taylor, Margaret H ^a  

^a WAKE FOREST UNIVERSITY   (United States)

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EID: 38749124798     PISSN: 00389765     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (267)

1. A snapshot of the "disconcerting variability" of administrative justice in the asylum adjudication system is captured in the Asylum Study's findings regarding applications from China. Jaya Ramji-Nogales, Andrew I. Schoenholtz & Philip G. Schräg, Refugee Roulette: Disparities in Asylum Adjudication, 60 STAN. L. REV. 295, 303 (2007) [hereinafter Asylum Study]. In one regional asylum office, the grant rates for applications from China varied from zero to sixty-eight percent. Sixty percent of the officers in that regional office deviated from their office's mean for granting applications from China by more than fifty percent.
2. Id. at 321. A Chinese asylum seeker who appears in immigration court in Atlanta has a seven percent chance of success on her claim. Nationwide, immigration judges grant Chinese applications in forty-seven percent of cases. In Orlando, that figure is seventy-six percent.
3. Id. at 330. When an applicant from China loses at the Board of Immigration Appeals and seeks a petition for review in the U.S. courts of appeals, her chance of success varies greatly depending on the circuit where the petition is heard. From 2003 to 2005, the Fourth Circuit did not remand a single case from China (i.e., the court never decided in favor of the applicant), while the Ninth Circuit remanded in thirty-seven percent of cases.
4. Id. at 362.
5. The law review literature is cited in the Asylum Study, supra note 1, at 300-01 nn.2-7, 303 n.12.
6. The inconsistent findings of twenty-eight empirical studies assessing whether male and female judges decide cases differently are summarized in Christina L. Boyd, Lee Epstein & Andrew D. Martin, Untangling the Causal Effects of Sex on Judging app. a (April 24, 2007) (unpublished manuscript), available at http://epstein.law.northwestern.edu/research/genderjudging. pdf.
7. Several of these studies, and their conflicting outcomes, are also noted in the Asylum Study, supra note 1, at 343-44.
8. Asylum Study, supra note 1, at 342.
9. This criticism is explained in Boyd et al., supra note 2, which posits that empirical studies of the role of sex in judging reach inconsistent results because the predominant statistical models-variants of regression analysis-are ill-suited to establish causal inferences in this context.
10. Id. at 2, 9-12. The authors explain that because female judges are, on average, more liberal than their male colleagues, the data are unbalanced. This means that using regression analysis to asses the impact of sex on voting patterns could lead to misleading results.
11. Id. at 10-12. The authors instead apply non-parametric matching methodology to test these effects, using a dataset of sex discrimination suits in the federal circuits, and observe substantial individual and panel effects.
12. Id. at 14-28.
13. Asylum Study, supra note 1, at 344.
14. Each level of the study draws asylum claims from a different source and adjudicates them under different procedures. For this reason, the authors appropriately do not attempt any cross-level statistical comparisons. We cannot assess, for example, whether asylum officers who decide cases after an informal interview on the whole are more generous than immigration judges who preside over adversarial removal hearings because the pool of claims being adjudicated is quite different at those two levels. For criticism of a study that attempts this comparison, see infra note 10.
15. I elaborate on how the structure of agency adjudication might impact decisional uniformity infra Part H.A. See also Stephen H. Legomsky, Learning to Live with Unequal Justice: Asylum and the Limits to Consistency, 60 STAN. L. REV. 413, 457-62 (2007).
16. This point is difficult to make without getting mired in the technical details of Appendix I, which explains the methodology the authors employed for selecting cases at each level of the study. One can note, for example, that all data excludes Mexican asylum applicants, and that detained asylum applicants are removed, as much as possible, from the immigration court analysis. Asylum Study, supra note 1, at 312, 395. These exclusions make sense to those well versed in asylum law and procedure, and they enhance the study's design. But they might not occur to someone lacking the substantive expertise of the study authors.
17. To control for the variable of nationality differences in caseload, the authors narrow their dataset by comparing grant rates only for cases of nationals from Asylee Producing Countries (APCs). These are countries with a significant number of applicants (over 500) and a national grant rate of at least thirty percent before the asylum office or immigration court in fiscal year 2004. Id. at 311.
18. Another study purporting to explain disparities in asylum adjudication, published in a public policy journal, is premised on a misunderstanding of asylum procedures. Ming H. Chen, Explaining Disparities in Asylum Claims, 12 GEO. PUB. POL'Y REV. 29 (2007). The author of this study apparently did not know that asylum officers have legal authority to "deny" only those cases where the applicant is in authorized immigration status.
19. See Asylum Study, supra note 1, at 306 n.22. Because asylum officers denied, on average, nine percent of cases during her study period, the study author calculated an average ninety-one percent "grant rate" in asylum offices.
20. Chen, supra, at 34 figs.2 & 36;
21. cf. Asylum Study, supra note 1, at 314 (finding that most asylum officers grant asylum to nationals of APCs at a rate between thirty and forty-five percent). Further extrapolating from this incorrect figure, she then concluded that "asylum officers refer less than 10% of the cases they adjudicate" to immigration court.
22. Chen, supra, at 41. These startlingly inaccurate figures prompted the author to examine a mistaken hypothesis: that asylum officers are far more generous than immigration judges in granting asylum.
23. Id. at 36. The Asylum Study found no such disparity in the grant rates of asylum officers and immigration judges.
24. See Lee Epstein et al., On the Effective Communication of the Results of Empirical Studies, Part I, 59 VAND. L. REV. 1811 (2006);
25. Lee Epstein et al., On the Effective Communication of the Results of Empirical Studies, Part II, 60 VAND. L. REV. (forthcoming 2007), available at http://epstein.law.northwestern.edu/research/ communicating.html;
26. Mark A. Hall & Ronald F. Wright, Systematic Content Analysis of Judicial Opinions, 95 CAL. L. REV. (forthcoming 2007), available at http://ssrn.corn/abstract=913336.
27. This point is especially well made in R. Shep Melnick's essay, Administrative Law and Bureaucratic Reality, 44 ADMIN. L. REV. 245 (1992).
28. See also Keith Whittington, Crossing Over: Citation of Public Law Faculty in Law Reviews, LAW & COURTS, Spring 2004, at 5.
29. These models are generally missing from legal scholarship, which labors to "build a wall of separation between law and politics." Barry Friedman, The Politics of Judicial Review, 84 TEX. L. REV. 257, 267 (2005). Professor Friedman's article is an important effort to dismantle this wall.
30. Asylum Study, supra note 1, at 302.
31. The classic work on the attitudinal model is JEFFREY A. SEGAL & HAROLD J. SPAETH, THE SUPREME COURT AND THE ATTITUDINAL MODEL REVISITED (2002).
32. See also Virginia Hettinger et al., Comparing Attitudinal and Strategic Accounts of Dissenting Behavior on the U.S. Courts of Appeals, 48 AM. J. POL. SCI. 123 (2004);
33. Cass R. Sunstein et al., Ideological Voting on Federal Courts of Appeals: A Preliminary Investigation, 90 VA. L. REV. 301 (2004).
34. LEE EPSTEIN & JACK KNIGHT, THE CHOICES JUSTICES MAKE (1998);
35. Lee Epstein et al, The Supreme Court as a Strategic National Policymaker, 50 EMORY L.J. 583 (2001).
36. For a critique of political science's positive approach to judicial behavior, see Pauline T. Kim, Lower Court Discretion, 82 N.Y.U. L. REV. 383, 385 (2007) ("[T]he law has independent normative force that cannot be reduced to purely strategic explanations.").
37. Asylum Study, supra note 1, at 355-61.
38. Id. at 386 (citation omitted).
39. Id.
40. See generally 2 RICHARD J. PIERCE, JR., ADMINISTRATIVE LAW TREATISE § 9.9 (4th ed. 2002);
41. Michael Asimow, When the Curtain Falls: Separation of Functions in Federal Administrative Agencies, 81 COLUM. L. REV. 759, 759-65 (1981);
42. James E. Moliterno, The Administrative Judiciary's Independence Myth, 41 WAKE FOREST L. REV. 1191, 1219-36 (2006).
43. Daniel J. Gifford, Adjudication in Independent Tribunals: The Role of an Alternative Agency Structure, 66 NOTRE DAME L. REV. 965, 978-80 (1991);
44. Moliterno, supra note 20, at 1126. The Supreme Court has affirmed broad agency discretion to choose rulemaking or adjudication as the vehicle for policymaking. NLRB v. Wyman-Gordon Co., 394 U.S. 759 (1969);
45. SEC v. Chenery Corp., 332 U.S. 194 (1947).
46. See generally Charles H. Koch, Jr., Policymaking by the Administrative Judiciary, 56 ALA. L. REV. 693 (2005);
47. M. Elizabeth Magill, Agency Choice of Policymaking Forum, 71 U. CHI. L. REV. 1383 (2004).
48. Ronald A. Cass, Allocation of Authority Within Bureaucracies: Empirical Evidence and Normative Analysis, 66 B.U. L. REV. 1, 10-14 (1986).
49. Asylum officers are one example. See infra note 31.
50. See Daniel J. Gifford, Federal Administrative Law Judges: The Relevance of Past Choices to Future Directions, 49 ADMIN. L. REV. 1 (1997);
51. Antonin Scalia, The ALJ Fiasco - A Reprise, 47 U. CHI. L. REV. 57 (1979);
52. Jeffrey A. Wertkin, A Return to First Principles: Rethinking ALJ Compromises, 22 J. NAT'L ASS'N. ADMIN. L. JUDGES 365, 389-91 (2002) ("The APA's conception of the ALJ's role . . . involves a curious mixture of autonomy and subservience.").
53. Gifford, supra note 21;
54. Jeffrey S. Lubbers, APA-Adjudication: Is the Quest for Uniformity Faltering?, 10 ADMIN. L.J. AM. U. 65 (1996).
55. Asylum Study, supra note 1, at 386-87. The Asylum Study recommends a "statutory Article I court," but also argues for an "independent federal agency" for immigration adjudication.
56. Id. These are in fact two distinct variations of the complete separation model.
57. See infra notes 27-28.
58. See generally Harold H. Bruff, Specialized Courts in Administrative Law, 43 ADMIN. L. REV. 329 (1991);
59. Rochelle Cooper Dreyfuss, Specialized Adjudication, 1990 BYU L. REV. 377.
60. See generally Gifford, supra note 21;
61. Paul R. Verkuil & Jeffery S. Lubbers, Alternative Approaches to Judicial Review of Social Security Cases, 55 ADMIN. L. REV. 731, 773-77 (2003) (discussing the split-enforcement model and various proposals for an Article I court within the context of Social Security disability cases).
62. NAT'L ASS'N OF IMMIGRATION JUDGES, AN INDEPENDENT IMMIGRATION COURT: AN IDEA WHOSE TIME HAS COME 13 (2002).
63. See id.;
64. U.S. COMM'N ON IMMIGRATION REFORM, BECOMING AN AMERICAN: IMMIGRATION AND IMMIGRANT POLICY 175-83 (1997);
65. Maurice A. Roberts, Proposed: A Specialized Statutory Immigration Court, 18 SANDIEGOL. REV. 1 (1980).
66. See generally Gregg A. Beyer, Affirmative Asylum Adjudication in the Untied States, 6 GEO. IMMIGR. L.J. 253 (1992);
67. Gregg A. Beyer, Establishing the United States Asylum Officer Corps: A First Report, 4 INT'L J. REFUGEE L. 455 (1992);
68. Gregg A. Beyer, Reforming Affirmative Asylum Processing in the United States: Challenges and Opportunities, 9 AM. U. J. INT'L L. & POL'Y 43 (1994);
69. David A. Martin, Making Asylum Policy: The 1994 Reforms, 70 WASH. L. REV. 725, 728-31 (1995).
70. See WALTER A. EWING & BENJAMIN JOHNSON, AM. IMMIGRATION LAW FOUND., ASYLUM ESSENTIALS: THE U.S. ASYLUM PROGRAM NEEDS MORE RESOURCES, NOT RESTRICTIONS (2005), available at http://www.ailf.org/ipc/policy_reports_2005_asylumessentials.asp (stating that case completion guidelines require asylum officers to conduct eighteen asylum interviews each two-week pay period); Memorandum from Joseph E. Langlois, Chief, Asylum Div., U.S. Citizenship and Immigration Servs., to All Asylum Office Personnel (Oct. 10, 2006) (on file with author) (detailing asylum office's success in meeting case processing goals).
71. Asylum Study, supra note 1, at 308. AILA's quality assurance referral sheet details those categories of cases that must be referred to headquarters for review prior to issuance of a decision. U.S. Citizenship and Immigration Servs., Quality Assurance Referral Sheet (Nov. 6, 2001) (on file with author).
72. When Congress created DHS, responsibility for immigration enforcement was moved from the former INS to DHS. The INS was, like EOIR, lodged within the Department of Justice, giving the Attorney General authority over both the enforcers and the adjudicators of immigration law. See Margaret H. Taylor, Behind the Scenes of St. Cyr and Zadvydas: Making Policy in the Midst of Litigation, 16 GEO. IMMIGR. L.J. 271, 288-95 (2002). When Congress abolished the INS and created DHS, but left EOIR within the Department of Justice, it created an unusual agency structure: one presidential appointee (the Attorney General) exercises policy control over EOIR adjudicators, but a second (the Secretary of DHS) presides over a separate agency with authority over immigration enforcement.
73. See David A. Martin, Immigration Policy and the Homeland Security Act Reorganization: An Early Agenda for Practical Improvements, INSIGHT (Migration Policy Inst., Washington, D.C), Apr. 2003, at 1, 18-19.
74. 8 C.F.R. §1003.1(h) (2007). The regulation does not specify any substantive criteria for referral. Rather, it delineates those who have authority to invoke this mechanism of policy control. Referrals of BIA decisions to the Attorney General are rare, but this option does give the Department of Justice final say in adjudicated matters of immigration policy. For an explanation of how referral operated before the creation of DHS, see Taylor, supra note 34.
75. Authorities Delegated to the Director of the Executive Office for Immigration Review, and the Chief Immigration Judge, 72 Fed. Reg. 53,673 (Sept. 20, 2007) (to be codified at 8 C.F.R. pts. 1003, 1240).
76. The phrase "administrative law judge" is a term of art; it is not (as many law students mistakenly assume) a generic phrase that can be used to describe any agency adjudicator. Instead, administrative law judges decide claims under the APA's provisions for formal adjudication. See 5 U.S.C. §556(b)(3) (2000) ("There shall preside at the taking of evidence [in a formal adjudication] . . . one or more administrative law judges as appointed under section 3105 of this title."). The vast majority of agency adjudications are not formal adjudications under the APA; procedures for these so-called informal adjudications are established by the agency's governing statute and regulations. The term "informal" is not meant to describe the actual formality of a hearing. Removal proceedings conducted by an immigration judge are a good example of administrative adjudications that look quite formal but are not governed by the APA.
77. See generally Lubbers, supra note 25.
78. See generally Jeffrey S. Lubbers, Federal Administrative Law Judges: A Focus on Our Invisible Judiciary, 33 ADMIN. L. REV. 109, 112-20 (1981). An oft-criticized feature of the statutory selection criteria for ALJs is the veteran's preference, which adds points to the eligibility score of veterans and restricts an agency's ability to pass over a qualified veteran to choose an applicant without veteran status. 5 U.S.C. §§2108, 3309 (2000). Women are significantly underrepresented in the ALJ corps by operation of the veteran's preference.
79. See Elaine Golin, Note, Solving the Problem of Gender and Racial Bias in Administrative Adjudication, 95 COLUM. L. REV. 1532, 1549-50 (1995). The statutory selection criteria for ALJs also reflect an overemphasis on litigation experience, and an underemphasis on judicial temperament and substantive expertise.
80. See Charles H. Koch, Jr., Administrative Presiding Officials Today, 46 ADMIN. L. REV. 271, 292-95 (1994). The Administrative Conference of the United States (ACUS) has criticized the criteria and procedures used to select ALJs and recommended various changes.
81. See PAUL R. VERKUIL ET AL., REPORT FOR RECOMMENDATION 92-7: THE FEDERAL ADMINISTRATIVE JUDICIARY, in 2 ADMINISTRATIVE CONFERENCE OF THE UNITED STATES, RECOMMENDATIONS AND REPORTS 777, 954-67 (1992).
82. 5 U.S.C. § 554(d) (2000).
83. 5 U.S.C. § 4301(2)(D) (2000).
84. See generally Jeffrey S. Lubbers, The Federal Administrative Judiciary: Establishing an Appropriate System of Performance Evaluation for ALJs, 7 ADMIN. L.J. AM. U. 589 (1993);
85. L. Hope O'Keeffe, Note, Administrative Law Judges, Performance Evaluation, and Production Standards: Judicial Independence Versus Employee Accountability, 54 GEO. WASH. L. REV. 591 (1986).
86. 5 U.S.C. § 7521(a) (2000).
87. 5 U.S.C. § 557(b) (2000).
88. The APA specifies that "[o]n appeal from or review of the initial decision [of an ALJ], the agency has all the powers which it would have in making the initial decision." Id. Reviewing courts have limited an agency's ability to overturn ALJ decisions that are based on witness credibility or demeanor.
89. See Loomis Courier Serv., Inc. v. NLRB, 595 F.2d 491 (9th Cir. 1979);
90. Penasquitos Vill., Inc. v. NLRB, 565 F.2d 1074 (9th Cir. 1977).
91. JERRY L. MASHAW, BUREAUCRATIC JUSTICE: MANAGING SOCIAL SECURITY DISABILITY CLAIMS (1983)
92. [hereinafter MASHAW, BUREAUCRATIC JUSTICE]. Professor Mashaw was also the project director for an earlier study sponsored by the National Center for Administrative Justice, then an entity of the American Bar Association.
93. JERRY MASHAW ET AL., SOCIAL SECURITY HEARINGS AND APPEALS (1978)
94. [hereinafter MASHAW ET AL., SOCIAL SECURITY HEARINGS AND APPEALS].
95. A third oft-cited book is a study by a political scientist: DONNA PRICE COFER, JUDGES, BUREAUCRATS, AND THE QUESTION OF INDEPENDENCE: A STUDY OF THE SOCIAL SECURITY ADMINISTRATION HEARING PROCESS (1985).
96. See, e.g., Frank S. Bloch et al., Developing a Full and Fair Evidentiary Record in a Nonadversary Setting: Two Proposals for Improving Social Security Disability Adjudications, 25 CARDOZO L. REV. 1 (2003);
97. Charles H. Koch, Jr. & David A. Koplow, The Fourth Bite at the Apple: A Study of the Operation and Utility of the Social Security Administration's Appeals Council, 17 FLA. ST. U. L. REV. 199, 229 (1990);
98. Richard E. Levy, Social Security Disability Determinations: Recommendations for Reform, 1990 BYU L. REV. 461;
99. Verkuil & Lubbers, supra note 28;
100. Jeffrey Scott Wolfe, Are You Willing to Make the Commitment in Writing? The APA, AUs, and SSA, 55 OKLA. L. REV. 203 (2002).
101. Congress's "watchdog agency," the U.S. General Accounting Office (now known as the U.S. Government Accountability Office), has issued numerous reports on disability adjudication. The general tenor of these reports is captured in the following titles: JANE L. ROSS. U.S. GEN. ACCOUNTING OFFICE, SSA ACTIONS TO REDUCE BACKLOGS AND ACHIEVE MORE CONSISTENT DECISIONS DESERVE HIGH PRIORITY (1997), available at http://www.gao.gov/archive/1997/ he97118t.pdf
102. [hereinafter U.S. GEN. ACCOUNTING OFFICE, SSA ACTIONS TO REDUCE BACKLOGS];
103. U.S. GEN. ACCOUNTING OFFICE, DISAPPOINTING RESULTS FROM SSA'S EFFORTS TO IMPROVE THE DISABILITY CLAIMS PROCESS WARRANT IMMEDIATE ATTENTION (2002), available at http://www.gao.gov/new.items/d02322.pdf;
104. U.S. GEN. ACCOUNTING OFFICE, MORE EFFORT NEEDED TO ASSESS CONSISTENCY OF DISABILITY DECISIONS (2002), available at http://www.gao.gov/new.items/d04656.pdf
105. [hereinafter U.S. GEN. ACCOUNTING OFFICE, CONSISTENCY OF DISABILITY DECISIONS].
106. For a succinct summary of the claims adjudication process and the most recent proposed reforms, see SCOTT SZYMENDERA, CONG. RESEARCH SERV., SOCIAL SECURITY DISABILITY INSURANCE (SSDI) AND SUPPLEMENTAL SECURITY INCOME (SSI): PROPOSED CHANGES TO THE DISABILITY DETERMINATION AND APPEALS PROCESS (Apr. 24, 2006), available at http://www.opencrs.com/ rpts/RL33179_20060424.pdf. The independent, bipartisan Social Security Advisory Board has also issued reports on SSA adjudication.
107. See SOC SEC. ADVISORY BD., DISABILITY DECISION MAKING: DATA AND MATERIALS (May 2006), available at http://www.ssab.gov/ documents/chartbook.pdf
108. [hereinafter SOC SEC. ADVISORY BD., DISABILITY DECISION MAKING];
109. SOC. SEC ADVISORY BD., IMPROVING THE SOCIAL SECURITY ADMINISTRATION'S HEARING PROCESS (Sept. 2006), available at http://www.ssab.gov/ documents/HearingProcess.pdf
110. [hereinafter SOC SEC ADVISORY BD., HEARING PROCESS REPORT].
111. THE LEWIN GROUP ET AL., EVALUATION OF SSA'S DISABILITY QUALITY ASSURANCE (QA) PROCESSES AND DEVELOPMENT OF QA OPTIONS THAT WILL SUPPORT THE LONG-TERM MANAGEMENT OF THE DISABILITY PROGRAM (2001), available at http://www.disabilitydoc.com/ssa-disability-quality-assuran.
112. MASHAW, BUREAUCRATIC JUSTICE, supra note 43, at 18.
113. SOC. SEC ADMIN., SSA PUBL'N NO. 13-11700, ANNUAL STATISTICAL SUPPLEMENT TO THE SOCIAL SECURITY BULLETIN tbls.2.F5 & 2.F6 (2007), available at http://www.socialsecurity.gov/policy/docs/ statcomps/supplement/2006/2f4-2f6.pdf (displaying combined totals of Disability Insurance and Social Security Insurance claims received in fiscal year 2005).
114. SZYMENDERA, supra note 45, at 1 (noting that in fiscal year 2004, ALJs issued rulings in 495,029 appeals of initial disability denials).
115. Koch & Koplow, supra note 44, at 229.
116. The disability adjudications discussed in this essay encompass two programs administered by the Social Security Administration. The first, Social Security Disability Insurance, provides cash benefits and medical coverage to persons under sixty-five who meet the statutory definition of disability and have worked a requisite number of qualifying quarters. The second, Supplemental Security Income, is a means-tested welfare program for persons of limited income who are disabled. Under both programs, "disability" is defined as an "inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months." 42 U.S.C. §§423(d)(1)(A), 1382(c)(a)(3)(A) (2000).
117. See generally SZYMENDERA, supra note 45, at 1-3;
118. Koch & Koplow, supra note 44, at 204-25.
119. MASHAW ET AL., SOCIAL SECURITY HEARINGS AND APPEALS, supra note 43, at xxi.
120. Some courts have noted similarities between the asylum and disability adjudication systems. See Banks v. Gonzales, 453 F.3d 449, 453-54 (7th Cir. 2006) (suggesting that the SSA model of using vocational experts in disability cases should be adapted to the asylum context, to provide immigration judges with "concrete, case-specific" evidence on country conditions);
121. Jacinto v. INS, 208 F.3d 725, 733 (9th Cir. 2000) ("Both administrative settings have the common feature of determining the applicant's eligibility for certain benefits. . . . [B]oth social security and deportation hearings are likely to be unfamiliar settings for the applicant.");
122. Fisher v. INS, 79 F.3d 955, 972 (9th Cir. 1996) (Noonan, J., dissenting) (arguing that an immigration judge has a duty to develop the record similar to that of an ALJ in social security disability cases).
123. Levy, supra note 44, at 467-71;
124. see also Bloch et al., supra note 44, at 22-26. Disappointed claimants must file a petition for reconsideration with the state agency before they move to the ALJ hearing stage.
125. Id. New regulations will change this, and instead impose review by a federal reviewing official.
126. See Administrative Review Process for Adjudicating Initial Disability Claims, 71 Fed. Reg. 16,424, 16,432-34 (Mar. 31, 2006).
127. Asylum Study, supra note 1, at 306.
128. Mat 306-07.
129. This constitutes their first chance to appear in person at a hearing; claimants may be represented but no government attorney opposes the application. See Bloch et al., supra note 44, at 26;
130. Levy, supra note 44, at 471-72.
131. 8 C.F.R. §1003.1(d)(3) (2007).
132. The Immigration and Nationality Act (INA), Pub. L. No. 82-414, §242(a)(1)-(b)(2), 66 Stat. 163 (1952) (exempting asylum from the bar on judicial review of discretionary decisions).
133. The INA is codified as amended at 8 U.S.C.A. §§1-1178 (West 2007).
134. Koch & Koplow, supra note 44, at 243;
135. Soc. Sec Admin., Social Security's Appeals Council Review Process, http://www.ssa.gov/appeals/appeals_process.html;
136. see also 20 C.F.R. §404.970(a) (2007) (specifying four grounds on which the Council will grant review).
137. Koch & Koplow, supra note 44, at 245-49.
138. Professors Koch and Koplow describe the Appeals Council circa 1990 in language that also seems apt for the BIA today: "[M]embers of the Appeals Council are snowed under with files . . . ," Koch & Koplow, supra note 44, at 258 n.312, "[and] now function almost exclusively as case handlers, not as policymakers, ... [in an] operation that resembles a factory assembly line,"
139. id. at 266-67.
140. Asylum Study, supra note 1, at 350-53, 356-57, 385.
141. Administrative Review Process for Adjudicating Initial Disability Claims, 71 Fed. Reg. 16,424, 16,437 (Mar. 31, 2006).
142. Id. at 16,437-38,16,441.
143. Id. at 16,438.
144. Stephen Legomsky identifies this last factor as the "spectrum of choice" of a decision. He explains that "[s]ome subjects provide more than the usual leeway to adjudicators" and posits that for asylum adjudication the spectrum of choice is "exceptionally broad." Legomsky, supra note 7, at 443. David Martin has also developed this point in a discussion of why the factual issues in asylum cases are so difficult to resolve, which is highly relevant to the Asylum Study.
145. David A. Martin, Reforming Asylum Adjudication: On Navigating the Coast of Bohemia, 138 U. PA. L. REV. 1247, 1270-87 (1990). Professor Martin observes that "[a]sylum seekers present a spectrum of situations, with only subtle shadings distinguishing the risk levels they face. Adjudication must draw a line at some point on that spectrum."
146. Id. at 1278 (footnote omitted). Richard Pierce notes the same phenomenon in disability determinations. He explains that cases disputed up to the ALJ level often involve claims of pain or mental illness, which require ALJs to make subjective "yes-or-no decisions on disability when the applicant's ability to work and the severity of the underlying illness could fall anywhere along a vast spectrum."
147. Richard J. Pierce, Jr., Political Control Versus Impermissible Bias in Agency Decisionmaking: Lessons from Chevron and Mistretta, 57 U. CHI. L. REV. 481, 511 (1990);
148. see also Levy, supra note 44, at 467 (disability determinations are "highly technical and complex" and require evaluation of evidence that is "inherently subjective") (footnotes omitted).
149. Koch & Koplow, supra note 44, at 228.
150. Legomsky, supra note 7, at 443;
151. Martin, supra note 67, at 1281-82.
152. Koch & Koplow, supra note 44 at 229;
153. Levy, supra note 44, at 467;
154. Pierce, supra note 67, at 502 & n.85.
155. Koch & Koplow, supra note 44, at 270 ("Accuracy in a disability case is extremely difficult to define, let alone measure or achieve. No one we spoke with was able to articulate a workable definition of 'accuracy.'");
156. Legomsky, supra note 7, at 425.
157. Legomsky, supra note 7, at Part 439-44.
158. MASHAW ET AL., SOCIAL SECURITY HEARINGS AND APPEALS, supra note 43, at 21.
159. Id. at xxi.
160. Koch & Koplow, supra note 44, at 283.
161. The term is borrowed from Professors Koch and Koplow, who define "horizontal consistency" as "the similarity of decisions in different venues" at the same adjudication level. Id.
162. See SOC SEC ADVISORY BD., DISABILITY DECISION MAKING, supra note 45, at 29 chart 13 (comparing average allowance rate in each state, at the state Disability Determination Services level and at the federal ALJ level);
163. SZYMENDERA, supra note 45, at 13 tbl.4 (showing high, low, and average grant rates for state Disability Determination Services offices).
164. Koch & Koplow, supra note 44, at 283 ('"Vertical consistency' is achieved when decisionmakers evaluate a case according to the same procedures and legal standards at each tier of the appellate review ladder. It requires harmony among all the adjudicatory levels regarding standards for case handling, definitions of eligibility, and interpretations of policy.").
165. See SOC SEC ADVISORY BD., DISABILITY DECISION MAKING, supra note 45, at 29 chart 13 (comparing initial decision and ALJ allowance rate in each state);
166. U.S. GEN. ACCOUNTING OFFICE, CONSISTENCY OF DISABILITY DECISIONS, supra note 45, at 1, 7, 10-12 (giving figures and assessing causes of vertical inconsistency);
167. U.S. GEN. ACCOUNTING OFFICE, SSA ACTIONS TO REDUCE BACKLOGS, supra note 45;
168. see also Daniel J. Gifford, Need Like Cases Be Decided Alike? Mashaw's Bureaucratic Justice, 1983 AM. B. FOUND. RES. J. 985, 987 (asserting that SSA efforts to achieve more consistent determinations are undermined by the "excessive independence of ALJs").
169. SZYMENDERA, supra note 45, at 7.
170. U.S. GEN. ACCOUNTING OFFICE, CONSISTENCY OF DISABILITY DECISIONS, supra note 45, at 1.
171. ALJs may grant applications at a higher level than state offices because they are the only adjudicators who meet the applicant face-to-face, have more opportunity to develop a record, and historically were governed by different rules and guidelines than the state offices. See Bloch et al., supra note 44, at 26, 33-34;
172. Levy, supra note 44, at 498.
173. Ass'n of Admin. Law Judges v. Heckler, 594 F. Supp. 1132, 1137 ("Evidence . . . strongly suggested that [the Office of Hearing Administration] had an ulterior goal to reduce ALJ allowance rates.");
174. MASHAW, BUREAUCRATIC JUSTICE, supra note 43, at 174-78.
175. But see Nash v. Bowen, 869 F.2d 675, 681 (2d. Cir. 1989) ("The agency maintained then, and maintains now, that reducing [allowance] rates was not the intent of the policy.").
176. Koch & Koplow, supra note 44, at 231.
177. Levy, supra note 44, at 478;
178. see also COFER, supra note 43, at 93-96.
179. COFER, supra note 43, at 87.
180. Id. at 111-12 (describing the June 7, 1979 settlement in Bono v. Social Security Administration). The Trachtenberg initiatives are also described in two reported cases arising from a decade-long lawsuit brought by an ALJ challenging various aspects of the program.
181. See Bowen, 869 F.2d at 675 (holding that individual ALJ did not have standing to challenge SSA's nonacquiescence policy and that other challenged practices did not unlawfully intrude onto ALJ independence);
182. Nash v. Califano, 613 F.2d 10 (2d Cir. 1980) (holding that individual ALJ had standing to challenge allegedly unlawful intrusions onto ALJ independence).
183. Own-motion review by the Appeals Council had been dormant for several years prior to the Bellmon Amendment. Ass'n of Admin. Law Judges v. Heckler, 594 F. Supp. 1132, 1135 n.6 (1984). The Association of Administrative Law Judges decision contains a detailed description of the various phases of the Bellmon Review Program created under this statute.
184. Id. at 1135 & nn.7-8, 1136;
185. see also COFER, supra note 43, at 117-22;
186. U.S. GEN. ACCOUNTING OFFICE, SOCIAL SECURITY: RESULTS OF REQUIRED REVIEWS OF ADMINISTRATIVE LAW JUDGE DECISIONS (1989), available at http://archive.gao.gov/d25t7/139091.pdf;
187. Levy, supra note 44, at 497-500.
188. Ass'n of Admin. Law Judges, 594 F. Supp. at 1134.
189. Id. at 1134-36;
190. U.S. GEN. ACCOUNTING OFFICE, supra note 88, at 8. Only ALJ grants, not denials, were originally included in Appeals Council own-motion review. This disparity was justified, according to SSA, by studies that suggested that a high rate of allowance indicated a high rate of ALJ error, and also by the fact that the Appeals Council already reviewed a significant number of ALJ denials via claimant petitions for review.
191. Ass'n of Admin. Law Judges, 594 F. Supp. at 1134.
192. Ass'n of Admin. Law Judges, 594 F. Supp. at 1136.
193. In 1982, SSA discontinued its use of ALJ allowance rates as the selection criteria, and instead targeted individual ALJs according to their "own-motion rates"-the frequency with which the Appeals Council took corrective actions on their decisions. Id. at 1134-35. In 1984, the SSA eliminated the individual ALJ portion of Bellmon Review, and increased the number of cases reviewed from a random national sample.
194. Id. at 1135-36.
195. Id. at 1141, 1143.
196. Id. at 1143;
197. see also Nash v. Bowen, 869 F.2d 675, 680 (2d Cir. 1989) (holding that, while coercion of ALJs to lower allowance rates would infringe decisional independence, "[t]he efforts complained of in this case for promoting quality and efficiency do not"). In a separate lawsuit challenging the procedures used to promulgate the Bellmon Review program, the Ninth Circuit ruled that the Bellmon Review program was a substantive rule that was improperly
198. W.C. v. Bowen, 807 F.2d 1502, 1505-06 (9th Cir. 1987).
199. Ass 'n of Admin. Law Judges, 594 F. Supp. at 1135, 1142.
200. Soc. Sec. Admin, v. Balaban, 20 M.S.P.R. 675 (1984);
201. Soc. Sec. Admin, v. Goodman, 19 M.S.P.R. 321 (1984);
202. Soc. Sec. Admin, v. Brennan, 19 M.S.P.R. 335 (1984), opinion clarified, 20 M.S.P.R. 35 (1984).
203. These cases, and the broader issue of establishing production standards for ALJs, are discussed in Lubbers, supra note 40, at 599-600;
204. Pierce, supra note 67, at 504-07;
205. James P. Timony, Performance Evaluation of Federal Administrative Law Judges, 7 ADMIN. L.J. AM. U. 629, 642-44 (1993);
206. and O'Keeffe, supra note 40, at 614-24.
207. Goodman, 19 M.S.P.R. at 331.
208. Lubbers, supra note 40, at 595-96.
209. Bowen, 869 F.2d at 680.
210. Lubbers, supra note 40, at 599-600.
211. Levy, supra note 44, at 502.
212. See VERKUIL ET AL., supra note 38.
213. Verkuil & Lubbers, supra note 28, at 737 n.16 (listing ACUS recommendations emerging from numerous ACUS-funded studies of disability adjudication).
214. Lubbers, supra note 40, at 600.
215. Id.
216. Recommendations and Statements of the Administrative Conference Regarding Administrative Practice and Procedure, 57 Fed. Reg. 61,759, 61,764 (Dec. 29, 1992) (codified at 1 C.F.R. pts. 305, 310).
217. Lloyd Musolf, Performance Evaluation of Federal Administrative Law Judges: Challenge for Public Administration?, 28 AM. REV. PUB. ADMIN. 390, 394 (1998).
218. Timony, supra note 96, at 653.
219. Lubbers, supra note 40, at 604.
220. Toni M. Fine, A Legislative Analysis of the Demise of the Administrative Conference of the United States, 30 ARIZ. ST. L.J. 19, 91-92 (1998).
221. Id at 93.
222. Id. at 66.
223. Id. at 78.
224. Id. at 59-61, 95-97. Professor Fine concludes that the Republican Party's desire to eliminate an agency was the "greatest contributing factor" to the defunding of ACUS demise, but that the process "was set in motion by a small but outspoken group of disaffected administrative law judges" unhappy with ACUS's recommendations.
225. Id. at 113-14.
226. Congress has recently shown interest in reviving ACUS. See Regulatory Improvement Act of 2007, H.R. 3564, 110th Cong. (2007) (authorizing appropriations for ACUS through fiscal year 2011).
227. Press Release, U.S. Dep't. of Justice, Attorney General Alberto R. Gonzales Outlines Reforms for Immigration Courts and Board of Immigration Appeals (Aug. 9, 2006), available at http://www.usdoj.gov/opa/pr/2006/ August/06_ag_520.html.
228. Authorities Delegated to the Director of the Executive Office for Immigration Review, and the Chief Immigration Judge, 72 Fed. Reg. 53,673, 53,675 (Sept. 20, 2007) (to be codified at 8 C.F.R. pts. 1003, 1240).
229. Memorandum from Kevin D. Rooney, Dir., Executive Office for Immigration Review, U.S. Dep't of Justice, to All Executive Office for Immigration Review Employees (undated) (on file with author) [hereinafter Rooney Memo].
230. Professor Legomsky suggests, for example, that immigration judges could be made into ALJs. Legomsky, supra note 7, at 471. This proposal cuts against the quite sensible idea that immigration judges should be selected with an eye toward the challenges of their specific docket, and that "it would be desirable for the judges to have some degree of knowledge or experience with immigration law."
231. Asylum Study, supra note 1, at 380.
232. Even if one embraces the structural features of ALJ independence as appropriate in this context, the rigid statutory criteria and the procedures for selecting ALJs are fraught with problems that I would not impose on the immigration courts. See supra note 38.
233. Authorities Delegated to the Director of the Executive Office for Immigration Review, and the Chief Immigration Judge, 72 Fed. Reg. at 53,676-77.
234. Id. at 53,673. The preamble to the new regulation authorizing the Director of EOIR to create a system of performance evaluation also quotes the Second Circuit decision upholding SSA efforts to improve the quality and timeliness of ALJ disability decisions.
235. Id. at 53,674 (quoting Nash v. Bowen, 869 F.2d 675, 681 (2d Cir. 1989)).
236. Stephen H. Legomsky, Deportation and the War on Independence, 91 CORNELL L. REV. 369, 374, 379 (2006).
237. Id. at 371-85.
238. Authorities Delegated to the Director of the Executive Office for Immigration Review, and the Chief Immigration Judge, 72 Fed. Reg. at 53,673.
239. EXECUTIVE OFFICE FOR IMMIGRATION REVIEW, AILA-EOIR AGENDA QUESTIONS AND ANSWERS (2006), available at http://www.usdoj.gov/eoir/statspub/ eoirailal01806.pdf. Only the slimmest of details have emerged about the performance evaluation initiative. Former EOIR Director Rooney has stated that EOIR adjudicator performance will be rated as "Satisfactory, Improvement Needed, and Unsatisfactory," and that implementation of the program is subject to statutory bargaining obligations with the IJ union.
240. Rooney Memo, supra note 117. EOIR's General Counsel has been detailed to a newly created position of Assistant Chief Immigration Judge for Conduct and Professionalism, serving in an "acting" capacity.
241. EXECUTIVE OFFICE FOR IMMIGRATION REVIEW, AILA-EOIR LIAISON MEETING AGENDA QUESTIONS 2-3 (2007), available at http://www.usdoj.gov/eoir/ statspub/eoiraila041107.pdf. The BIA now reports to the Office of Chief Immigration Judge instances where IJs have failed to display the appropriate level of professionalism. DOJ's Office of Immigration Litigation makes a similar report to EOIR's Office of General Counsel when a case pending in federal court reflects temperament, conduct, or quality problems on the part of an IJ or BIA member.
242. Rooney Memo, supra note 117.
243. See Board of Immigration Appeals: Procedural Reforms to Improve Case Management, 67 Fed. Reg. 7309, 7309-10 (Feb. 19, 2002) (codified at 8 C.F.R. pts. 3, 280) (soliciting public comment on a proposed rule to "revise the structure and procedures of the Board of Immigration Appeals, provide for an enhanced case management procedure, and expand the number of cases referred to a single Board member for disposition").
244. See Pamela A. MacLean, No Sign of Immigration Judge Code of Conduct, NAT'L LJ., Feb. 26, 2007, at 6;
245. Philip Shenon, Interim Heads Increasingly Run Federal Agencies, N.Y. TIMES, Oct. 15, 2007, at Al (reporting that the top three posts at the Department of Justice are filled by interim officials in an "acting" capacity).
246. Authorities Delegated to the Director of the Executive Office for Immigration Review, and the Chief Immigration Judge, 72 Fed. Reg., 53,673, 53,677 (Sept. 20, 2007) (to be codified at 8 C.F.R. pts. 1003, 1240).
247. Cham v. Attorney Gen., 445 F.3d 683, 686 (3d Cir. 2006). For additional examples of the "prolific and scathing" criticism of immigration judges coming from the courts of appeals, see Legomsky, supra note 7, at 420 n.44. These concerns about the temperament of immigration judges and the quality of their decisions were widely reported in the press.
248. See, e.g., Adam Liptak, Courts Criticize Judges' Handling of Asylum Cases, N.Y. TIMES, Dec. 26, 2005, at Al;
249. Pamela A. MacLean, Immigration Bench Plagued by Flaws; Due Process Abuse, Bad Records Alleged, NAT'L LJ., Feb. 6, 2006, at 1.
250. Legomsky, supra note 7, at 468-72. Professor Legomsky articulates his criticism as directed toward "[performance reviews that take approval rates into account and serve as a criterion for retention or promotion."
251. Id. at 469. He later includes efforts to increase adjudicator productivity within the scope of his analysis and suggests that any system of evaluation that comes with consequences significant enough to alter adjudicator behavior will threaten decisional independence.
252. Id. He does not discuss in this section whether "punishing wayward adjudicators," which receives his strong disapproval, includes actions against intemperate and abusive IJs, or how such misconduct can be identified and redressed in the absence of performance reviews.
253. Nash v. Califano, 613 F.2d 10, 15-16 (2d Cir. 1980) (quoting memorandum from Robert Trachtenberg, the SSA official who promoted the controversial targeting of ALJs for quality assurance review, to the Regional Chief ALJs, setting forth a Regional Office Peer Review Program).
254. Lubbers, supra note 40, at 605.
255. Authorities Delegated to the Director of the Executive Office for Immigration Review, and the Chief Immigration Judge, 72 Fed. Reg. at 53,676-77.
256. Asylum Study, supra note 1, at 386.
257. See supra note 31 and accompanying text.
258. This statement was made with reference to ALJs in Koch, supra note 38, at 275.
259. Although the Asylum Study authors do not address the issue of performance evaluations and strongly favor reforms that move in the direction of decisional independence, they make passing reference this idea. Asylum Study, supra note 1, at 333 n.65 (suggesting that data about discrepant grant rates "may be a jumping off point for a more thorough examination of performance and professionalism in the courtroom").
260. See Martin, supra note 67. Professor Martin later served as a consultant to the INS;
261. his work as a consultant forged the compromise that created our current asylum procedures. See Martin, supra note 31.
262. ACUS also funded earlier studies in the immigration law arena. See Stephen H. Legomsky, A Research Agenda for Immigration Law: A Report to the Administrative Conference of the United States, 25 SAN DIEGO L. REV. 227 (1988);
263. Stephen H. Legomsky, Forum Choices for the Review of Agency Adjudication: A Study of Immigration Process, 71 IOWA L. REV. 1297 (1986).
264. Attorney General Ashcroft's "streamlining" of BIA adjudication provides one example. These procedures had a number of negative spillover effects, including a dramatic rise in the caseload of the courts of appeals. See Legomsky, supra note 121, at 375-77;
265. John R.B. Palmer, Stephen W. Yale-Loehr & Elizabeth Cronin, Why Are So Many People Challenging Board of Immigration Appeals Decisions in Federal Court? An Empirical Analysis of the Recent Surge in Petitions for Review, 20 GEO. IMMIGR. L.J. 1, 56 (2005).
266. A recent near miss was a proposal from the ombudsman of the U.S. Citizenship and Immigration Services to eliminate asylum officer jurisdiction over any individual who is not in valid immigration status. This proposal, which would have gutted the current system of affirmative asylum adjudication, paid absolutely no heed to the years of study that went into crafting the current procedures. Memorandum from Prakash Khatri, Ombudsman, Citizenship and Immigration Servs., to Emilio Gonzalez, Dir., U.S. Citizenship and Immigration Servs. (March 20, 2006), available at http://www.dhs.gov/ xlibrary/assets/CISOmbudsman_RR_24_Asylum_Status_03-20-06.pdf.
267. It was promptly rejected by the USCIS Director, who noted that the recommendation was based on a novel legal interpretation and would, if implemented, "eliminate a valuable, time-tested process for the vast majority of asylum applicants." Memorandum from Emilio Gonzalez, Dir., U.S. Citizenship and Immigration Servs., to Prakash Khatri, Ombudsman, Citizenship and Immigration Servs. (June 20, 2006), available at http://www.dhs.gov/ xlibrary/assets/ CISOmbudsman_RR_24_Asylum_Status_USCIS_Response-06-20-06.pdf.