Learning to live with unequal justice: Asylum and the limits to consistency

Stanford Law Review

Volumn 60, Issue 2, 2007, Pages 413-474

  Legomsky, Stephen H ^a  

^a UNIVERSITY OF WASHINGTON   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 38849098430     PISSN: 00389765     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (327)

1. 60 Stan. L. Rev. 295 (2007) [hereinafter Asylum Study].
2. As far as I am aware, the Asylum Study is the first attempt to examine all four major levels of asylum adjudication-asylum officers, immigration judges, the Board of Immigration Appeals, and the courts of appeals-and certainly the most ambitious empirical study of this process ever undertaken. One prior study usefully compiles immigration judge asylum approval rates for fiscal years 2000-2004. See Asylumlaw.org, U.S. Immigration Judge Decisions in Asylum Cases, Jan. 2000 to Aug. 2004, http://www.asylumlaw.org/ legal_tools/index.cfm? fuseaction=showJudges2004. Because that compilation does not organize the immigration judges by court, and because the mix of asylum cases by country of origin varies from one immigration court to another, the approval rates do not fully capture the propensities of individual immigration judges. Another recent study, also confined to immigration judges, does segregate data by court. Like the Asylum Study, it finds great variation in asylum approval rates as among immigration judges in the same courts.
3. See TRAC Immigration, Asylum Disparities Persist, Regardless of Court Location and Nationality (2007), http://trac.syr.edu/immigration/reports/ 183.
4. For an analogous study that exposed dramatic inconsistencies in the adjudication of social security disability benefits by administrative law judges, see JERRY L. MASHAW ET AL., SOCIAL SECURITY HEARINGS AND APPEALS (1978).
5. The Immigration and Nationality Act (INA), Pub. L. No. 82-414, §208(a), 66 Stat. 163 (1952). (The INA is codified as amended at 8 U.S.C.A. §§1-1178 (West 2007). For ease of reading, citations in this Article will be directly to the INA section.) Refugees who are still overseas might qualify for admission under a separate program not relevant here. INA §207.
6. INA §208(b). The exceptions are for those who were "firmly resettled" elsewhere before arriving in the United States and for those who have engaged in specified misconduct. INA §208(b)(2)(A)(vi).
7. INA §101(a)(42).
8. INA §§208(b)(3), 208(c)(l)-(2), 209(b).
9. Asylum Study, supra note 1, at 305-10.
10. INA §§ 239, 240.
11. INA § 240.
12. See Office of the Chief Immigration Judge, U.S. Dep't of Justice, http://www.usdoj.gov/eoir/ocijinfo.htm.
13. 8 C.F.R. § 1003.0(a) (2007).
14. 8 C.F.R. § 208.4(b)(3) (2007) (discussing the filing of the application, but not the purpose for which it is filed, i.e., a defense.)
15. 8 C.F.R. § 1003.1(b)(3) (2007).
16. Regulations Governing Departmental Organization and Authority, 5 Fed. Reg. 3502 (Sept. 4, 1940).
17. 8 C.F.R. § 1003.0(a) (2007).
18. 8 C.F.R. § 1003.1(a)(1) (2007).
19. 8 C.F.R. § 1003.1(h) (2007).
20. Margaret H. Taylor, Behind the Scenes of St. Cyr and Zadvydas.' Making Policy in the Midst of Litigation, 16 GEO. IMMIGR. L. J. 271, 290 & n. 104 (2002).
21. See INA §§242(a)(1), 242(a)(2)(B)(ii) (exempting asylum from the bar on judicial review of discretionary decisions), 242(b)(2).
22. INA §§235(b)(1), 242(a)(2)(A).
23. INA § 208(a)(2)(B), (D).
24. INA § 208(a)(3).
25. 8 C.F.R. § 208.4(b)(2) (2007).
26. 8 C.F.R. § 208.1(b) (2007).
27. E-mail from Joanna Ruppel, Deputy Dir., Asylum Div., U.S. Citizenship & Immigration Servss, U.S. Dep't. of Homeland Sec, to author (Sept. 6, 2007) (on file with author).
28. Asylum Study, supra note 1, at 310.
29. 8 C.F.R. § 208.9(b) (2007).
30. 8 C.F.R. § 208.14(b), (c)(1) (2007).
31. 8 C.F.R. § 208.14(c)(1) (2007).
32. Asylum Study, supra note 1, at 301-02 n.10. The courts of appeals figures are for calendar year 2005; all the other figures are for fiscal year 2005.
33. Id.
34. Procedural Reforms to Improve Case Management, 67 Fed. Reg. 54,878, 54,87879 (Aug. 26, 2002) (to be codified at 8 C.F.R. pt. 3).
35. Id. at 54, 879.
36. Id.
37. For the original announcement, see Procedural Reforms to Improve Case Management, 67 Fed. Reg. 7309, 7310 (proposed Feb. 19, 2002) (to be codified at 8 C.F.R. pts. 3, 280). The decisions to reduce the size of the Board and to streamline its procedure were later incorporated into the same final rule. Procedural Reforms to Improve Case Management, 67 Fed. Reg. at 54,879, 54,893.
38. See Peter J. Levinson, The Facade of Quasi-Judicial Independence in Immigration Appellate Adjudications, 9 BENDER'S IMMIGR. BULL. 1154, 1155 (2004).
39. Id. at 1159.
40. Id. at 1159-60.
41. The final regulation implementing the streamlining and size reduction of the BIA said, "All attorneys in the Department [of Justice] are excepted employees, subject to removal by the Attorney General, and may be transferred from and to assignments as necessary to fulfill the Department's mission." Procedural Reforms to Improve Case Management, 67 Fed. Reg. at 54,893. For other warning signs,
42. see Stephen H. Legomsky, Deportation and the War on Independence, 91 CORNELL L. REV. 369, 372-75 (2006),
43. and Levinson, supra note 36, at 1161.
44. Unfortunately, the BIA was not able to supply breakdowns on single-member decisions versus panel decisions for the crucial fiscal years 2001 and 2002, Asylum Study, supra note 1, at 354, but the data that compare the pre-2001 experience with the post-2002 experience reveal sharp drops in the use of three-member panel decisions,
45. id. at 357-58 & figs.40 & 41.
46. Former Attorney General Alberto Gonzales pledged to " drastically" reduce the BIA's reliance on "summary one-line decisions," but indicated no analogous intentions with respect to single-member decisions. Oversight of the U.S. Department of Justice: Hearing Before the S. Comm. on the Judiciary, 110th Cong. 22 (2007) (statement of Alberto R. Gonzales, Att'y Gen.), available at http://lawprofessors.typepad.com/immigration/files/gonzales_testimony_72407.pdf.
47. Asylum Study, supra note 1, at 353 & n.111 (citing an independent study but acknowledging that the BIA Chair dismissed that study as "outdated and unsubstantiated").
48. Id. at 358-59 & figs.42 & 43.
49. The leading empirical study is 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 (2005).
50. See also Lenni B. Benson, Making Paper Dolls: How Restrictions on Judicial Review and the Administrative Process Increase Immigration Cases in the Federal Courts, 51 N. Y.L. SCH. L. REV. 37 (2006-2007);
51. John R.B. Palmer, The Nature and Causes of the Immigration Surge in the Federal Courts of Appeals: A Preliminary Analysis, 51 N.Y.L. SCH. L. REV. 13 (2006-2007).
52. The Seventh Circuit has been exceptionally blunt. See, e.g., Pramatarov v. Gonzales, 454 F.3d 764, 765 (7th Cir. 2006) (citing numerous examples of sloppy decisions and verbal abuse of asylum applicants and finding "factual error, bootless speculation, and errors of logic" to be "common failings in recent decisions by immigration judges and the Board");
53. Zhen Li Iao v. Gonzales, 400 F.3d 530, 533-35 (7th Cir. 2005) ("We close by noting six disturbing features of the handling of this case that bulk large in the immigration cases that we are seeing"). In Zhen Li Iao, the court speculated that caseload and resource pressures might mean that "nothing better can realistically be expected."
54. Id. at 535;
55. see also Recinos de Leon v. Gonzales, 400 F.3d 1185, 1187, 1191, 1193-94 (9th Cir. 2005) (excoriating the immigration judge for an "indecipherable" and "literally incomprehensible" opinion and the BIA for affirming the decision without an opinion, and similarly wondering whether unrealistic caseloads were to blame).
56. 83 INTERPRETER RELEASES 122 (Jan. 17, 2006).
57. 83 INTERPRETER RELEASES 1725 (Aug. 14, 2006).
58. Codes of Conduct for the Immigration Judges and Board Members, 72 Fed. Reg. 35,510 (June 28, 2007).
59. The relevant language is in Canon XV of each of the two Codes. Id. at 35,511, 35,512.
60. Asylum Study, supra note 1, at 397.
61. Id. at 303. Because the government does not keep track of the asylum approval rates of individual BIA members, the authors of the Asylum Study could not ascertain the degree of variance within that institution.
62. Id. at 359.
63. But cf. Levinson, supra note 36 (studying the much smaller sample of BIA decisions in closely contested en banc cases). Nonetheless, it seems likely that the high rates of inconsistency demonstrated within each of the other groups of adjudicators-asylum officers, immigration judges, and court of appeals judges-afflict the BIA as well. First, Part III of this Article compiles the factors that would be expected generally to drive consistency rates, and each of those factors has as much logical applicability to the BIA as it does to the other three adjudication levels. Second, there is no apparent positive reason to expect BIA members to be uniquely immune to those factors. Third, based on the previously discussed patterns of Attorney General reassignment of particular BIA members,
64. see supra notes 33-37 and accompanying text, it seems clear that the Attorney General, at least, believes that BIA members vary considerably in their preferred outcomes. Fourth, although based on a much smaller sample and prepared for the different purpose of measuring changes in the asylum approval rates of particular BIA members, the Levinson data are consistent with the assumption of substantial variability within the BIA.
65. Asylum Study, supra note 1, at 395.
66. Id. at 397.
67. Id. at 311.
68. Id. at 313-25.
69. Id. at 316 & tbl.1.
70. Id. at 317-25.
71. Id. at 336-39.
72. Representation by counsel is the strongest indicator of success. Id. at 339-40. Asylum applicants who have dependents also do disproportionately well.
73. Id. at 341.
74. Various adjudicator characteristics-gender, type of prior work experience, and the administration that appointed the person-also influence asylum approval rates. See also infra Part III.B.1.
75. Asylum Study, supra note 1, at 363.
76. Id. at 366.
77. Id.
78. Id. at 367 & tb1.3.
79. Id. at 368-71.
80. Id.
81. Kenneth R. Feinberg, Special Master, September 11th Victim Compensation Fund, Lecture at the University of Alabama School of Law (Apr. 8, 2004), in 56 ALA. L. REV. 543, 553 (2004).
82. RALPH WALDO EMERSON, Self-Reliance, in THE COMPLETE ESSAYS AND OTHER WRITINGS OF RALPH WALDO EMERSON 145, 152 (Brooks Atkinson ed., 1940).
83. Inconsistent procedures and inconsistent employment criteria for adjudicators were among the problems that inspired the Administrative Procedure Act. For an insightful description, see Jeffrey S. Lubbers, APA-Adjudication: Is the Quest for Uniformity Faltering?, 10 ADMIN. L.J. AM. U. 65, 65-68 (1996).
84. These problems were also the focus of a superb consultants' report prepared for the Administrative Conference of the United States. 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 (1992);
85. see also Recommendations and Statements of the Administrative Conference, 57 Fed. Reg. 61,759 (Dec. 29, 1992) (codified at 1 C.F.R. pts. 305, 310) (recommending many of the reforms urged by the consultants' report).
86. The reasoning of even a single opinion in a single case by a single adjudicator might be internally inconsistent, but that problem is beyond the scope of this Article.
87. INA § 101(a)(42).
88. Id.
89. INA § 208.
90. INA § 240A(b)(1)(D).
91. See Asylum Study, supra note 1, at 305;
92. see also 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)
93. [hereinafter Legomsky, Forum Choices]. The fairness
94. rationale assumes additional importance when the regulated actors are competing for a scarce good. See STEPHEN H. LEGOMSKY, SPECIALIZED JUSTICE: COURTS, ADMINISTRATIVE TRIBUNALS, AND A CROSS-NATIONAL THEORY OF SPECIALIZATION 28-29 (1990)
95. [hereinafter LEGOMSKY, SPECIALIZED JUSTICE]. Since there is no numerical limit on asylum grants, that rationale need not be explored here.
96. Asylum Study, supra note 1, at 299;
97. see also VERKUIL ET AL., supra note 67, at 991.
98. Legomsky, Forum Choices, supra note 73, at 1313.
99. Id.;
100. see also Roger C. Cramton, Administrative Procedure Reform: The Effects of S. 1663 on the Conduct of Federal Rate Proceedings, 16 ADMIN. L. REV. 108, 112 (1964).
101. Asylum Study, supra note 1, at 299.
102. See, e.g., HENRY J. FRIENDLY, FEDERAL JURISDICTION: A GENERAL VIEW 186-87 (1973);
103. Samuel Estreicher & Richard I. Revesz, Nonacquiescence by Federal Administrative Agencies, 98 YALE L.J. 679, 736-37 (1989).
104. The magnitude of the interests at stake is not among the factors considered separately here. A great impact on either the individual parties or the general public might induce policymakers to invest greater resources, or to guarantee broader procedural safeguards, and it might make the subject matter more ideologically or emotionally charged - all factors that in turn can affect consistency and are therefore taken up separately below. But I cannot think of ways in which the magnitude of the interests influences the likelihood of consistency independently of these other factors. Obviously, the magnitude of the interests at stake will affect the degree of harm caused by inconsistency, since most of the benefits of consistent adjudication-equal justice, predictability, and acceptability to the public-assume greater importance when the interests at stake are substantial. This Part, however, focuses on the causes of consistency, not its effects.
105. This Subpart considers only the number of decisional units; the size of a single decisional unit is a separate variable and is examined next.
106. See infra Part III.A.2.
107. See, e.g., FRIENDLY, supra note 78, at 183 (suggesting that a national administrative court would improve uniformity);
108. Peter J. Levinson, A Specialized Court for Immigration Hearings and Appeals, 56 NOTRE DAME LAW. 644, 653 (1981);
109. Maurice A. Roberts, Proposed: A Specialized Statutory Immigration Court, 18 SAN DIEGO L. REV. 1, 13-14, 19-20 (1980).
110. See infra Part IV.B.4.
111. See United States v. Smith, 354 F.3d 390 (5th Cir. 2003).
112. The specialization variable has other effects as well, both positive and negative. See infra Parts III.E.1, IV.B.4.
113. In order not to succeed, this applicant would have to draw both of the automatic deniers out of a panel of three. If the panel members are selected at random, the chance that the first pick will be an automatic denier is 2/6; if that happens, the chance that the second denier will be the one chosen from the remaining five will be 1/5; and thus the chance that the first two picks will be the two deniers will be 2/6 times 1/5, or 1/15. Since there are three ways in which those two members could be drawn (picks 1 and 2, picks 1 and 3, and picks 2 and 3), the probability of drawing both of them will be 3/15, or 1/5. Thus the probability of not drawing both of them will be 4/5.
114. Asylum Study, supra note 1, at 361 -71.
115. See supra Part III.A.1.
116. See the sources summarized by the Asylum Study, supra note 1, at 343-44,
117. especially the classic work of Carol Gilligan, IN A DIFFERENT VOICE: PSYCHOLOGICAL THEORY AND WOMEN'S DEVELOPMENT (1982).
118. Asylum Study, supra note 1, at 343-44. The authors also speculate about possible reasons for the gender difference in immigration judge decisions.
119. Id.
120. Id. at 345-46.
121. Id. at 347.
122. Id. at 344-45.
123. This was true in two of the three circuits studied, the Sixth and the Ninth. Id. at 371 & n.136. In the Third Circuit there was no appreciable difference.
124. Id. at 369.
125. VERKUIL ET AL., supra note 67, at 993-94.
126. Asylum Study, supra note 1, at 311.
127. Oversight of the U.S. Department of Justice: Hearing Before the S. Comm. on the Judiciary, supra note 40, at 22.
128. Elsewhere I have attempted to flesh out more comprehensively the various theories of decisional independence and their application to immigration judges, the BIA, and courtstripping legislation. See Legomsky, supra note 39. In particular, decisional independence differs from institutional independence, which focuses on the independence of the entire judiciary as an institution rather than on attempts to influence the outcomes of particular cases.
129. Id. at 386-87. Examples of systems that raise issues of institutional independence would include leaving the resource or staffing levels of adjudicative tribunals or courts to the discretion of political officials, or stripping tribunals or courts of their jurisdiction over selected classes of cases.
130. Id.
131. See supra Part III.B.2,
132. infra Parts IV.A.1, IV.B.2.
133. See Legomsky, supra note 39, at 372-85;
134. supra notes 35-39 and accompanying text.
135. Codes of Conduct for the Immigration Judges and Board Members, 72 Fed. Reg. 35,510, 35,511 (June 28, 2007).
136. VERKUIL ET AL., supra note 67, at 992 & nn. 1138-41.
137. Independence also has other effects, some of them benefits and some of them costs. See Legomsky, supra note 39, at 385-403. The present discussion is confined to the effect of independence on consistency.
138. PAUL D. CARRINGTON ET AL., JUSTICE ON APPEAL 2-3 (1976);
139. David P. Leonard, The Correctness Function of Appellate Decision-Making: Judicial Obligation in an Era of Fragmentation, 17 LOY. L.A. L. REV. 299, 299-303 (1984).
140. See infra Parts III.C.3, IV.A.10.
141. 8 C.F.R. § 1003.1(d)(3) (2007).
142. 5 U.S.C. § 706(2)(A), (E) (2000).
143. In removal cases, the statute makes findings of fact "conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary." INA § 242(b)(4)(B). Analytically, this standard is hard to distinguish from the traditional "substantial evidence" test, since the latter has generally been interpreted to require "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Consolo v. Fed. Mar. Comm'n, 383 U.S. 607, 620 (1966) (citation omitted). The immigration statute does not specify a general standard of review for discretionary decisions, most of which have been made unreviewable, see INA § 242(a)(2)(B), except that discretionary asylum denials are "conclusive unless manifestly contrary to the law and an abuse of discretion," INA § 242(b)(4)(D).
144. Chevron, U.S.A., Inc. v. Natural Res. Def. Council, 467 U.S. 837 (1984).
145. See supra notes 32-34 and accompanying text.
146. Oversight of the U.S. Department of Justice: Hearing Before the S. Comm. on the Judiciary, supra note 40, at 22.
147. 8 C.F.R. § 1003.1(g) (2007).
148. Oversight of the U.S. Department of Justice: Hearing Before the S. Comm. on the Judiciary, supra note 40, at 22.
149. See supra Part III.A. 1.
150. See Asylum Study, supra note 1, at 340-41, and sources cited therein.
151. Id. at 341.
152. Id. at 362-63.
153. LEGOMSKY, SPECIALIZED JUSTICE, supra note 73, at 7-32.
154. See S. REP. NO. 97-275, at 5-6 (1981),
155. as reprinted in 1982 U.S.C.C.A.N. 11, 15-16.
156. E.g., Levinson, supra note 82, at 653;
157. Roberts, supra note 82.
158. Glen O. Robinson, On Reorganizing the Independent Regulatory Agencies, 57 VA. L. REV. 947(1971).
159. See David R. Woodward & Ronald M. Levin, In Defense of Deference: Judicial Review of Agency Action, 31 ADMIN. L. REV. 320, 329, 332 (1979).
160. The expertise itself might also prove efficient, so that each adjudicator's caseload could increase and fewer than two would now be needed. The point made in this paragraph, however, will be true even without assuming added efficiency. On the other hand, while specialization tends to promote consistency within the particular specialized field, participation in a more generalized tribunal might foster consistency as among analogous broad principles across subject matter lines. The latter type of consistency will not be explored here, since the present concern is with consistent outcomes in cases that present similar facts.
161. Immigration and Nationality Act (INA), Pub. L. No. 82-414, 66 Stat. 163 (1952) (codified as amended at 8 U.S.C.A. §§ 1-1178 (West 2007)).
162. See id.;
163. see also IMMIGRATION AND NATIONALITY LAWS OF THE UNITED STATES: SELECTED STATUTES, REGULATIONS AND FORMS 1-524 (Thomas Alexander Aleinikoff et al. eds., 2005) (containing selected excerpts).
164. See 6 C.F.R. §§5. 1-1000.11 (2007);
165. C.F.R. §§ 1.1-1337.10 (2007);
166. C.F.R. §§ 1.1-1005 (2007);
167. C.F.R. §§ 1.1-1701.999 (2007).
168. STEPHEN H. LEGOMSKY, IMMIGRATION AND REFUGEE LAW AND POLICY 1 (4th ed. 2005).
169. For example, INA § 208(b)(1)(A) makes "refugee" status a prerequisite to asylum. "Refugee," in turn, is defined in INA § 101(a)(42). The grounds on which a noncitizen can be found deportable are listed in INA § 237(a), but many of the provisions for discretionary relief in such cases are scattered throughout the statute. See, e.g., INA §§ 212(h), 240A, 240B, 241(b)(3), 245, 249. The main requirements for the various classes of "nonimmigrant" temporary visitors are laid out in INA § 101(a)(15), but a long series of other limitations appears in INA § 214.
170. KARL N. LLEWELLYN, THE COMMON LAW TRADITION: DECIDING APPEALS 19-61 (1960).
171. See INA §208(b)(1).
172. SeeINA§101(a)(42).
173. See INA §208(b)(1)(B)(ii)-(iii).
174. This prayer, modified by Alcoholics Anonymous, is generally attributed to Rheinhold Niebuhr. See The Origin of Our Serenity Prayer, http://www.aahistory.com/prayer.html.
175. The authors of the Asylum Study similarly attribute the disparities largely to the "officers' or judges' different degrees of skepticism about the veracity of applicants, or the adjudicators' different political philosophies or personal backgrounds." Asylum Study, supra note 1, at 379.
176. See, e.g., id.;
177. see also T. Alexander Aleinikoff, The Meaning of 'Persecution' in United States Asylum Law, 3 INT'L J. REFUGEE L. 5 (1991).
178. Arthur C. Helton, Persecution on Account of Membership in a Social Group as a Basis for Refugee Status, 15 COLUM. HUM. RTS. L. REV. 39, 45 (1983).
179. See 5 U.S.C. § 553(b)(3)(A) (2000).
180. INA § 101(a)(42).
181. Memorandum from Phyllis Coven, Office of Int'l Affairs, U.S. Dep't of Justice, to All INS Asylum Office/rs and HQASM Coordinators (May 26, 1995), reprinted in 72 INTERPRETER RELEASES 781 (1995).
182. Asylum Study, supra note 1, at 379.
183. See supra Part III.A.1.
184. See Asylum Study, supra note 1, at 383.
185. See LEGOMSKY, supra note 127, at 1089-90.
186. See supra Part III.A.2.
187. See LEGOMSKY, supra note 127, at 717.
188. Id. The details appear in the consultants' report on which the Administrative Conference recommendations were based.
189. See Legomsky, Forum Choices, supra note 73, at 1370-74.
190. Executive Office for Immigration Review; Board of Immigration Appeals; Designation of Judges, 53 Fed. Reg. 15, 659, 15,660 (May 3, 1988) (codified at 1 C.F.R. pt. 3 (1988)).
191. See supra notes 32-34 and accompanying text.
192. Levinson, supra note 36 (describing BIA decisional patterns immediately following the Attorney General's announcement of forthcoming selective reassignments of BIA members).
193. Asylum Study, supra note 1, at 384.
194. Id. at 385 n. 160.
195. 8 C.F.R. § 1003.1(a)(5) (2007).
196. Pub. L. No. 95-486, § 6, 92 Stat. 1629, 1633 (1978);
197. see also FED. R. APP. P. 35(a) (allowing a majority of active judges of any court of appeals to go en banc when "necessary to secure or maintain uniformity of the court's decisions").
198. Asylum Study, supra note 1, at 383.
199. INA §§ 240(b)(4)(A), 292.
200. Asylum Study, supra note 1, at 340;
201. Andrew I. Schoenholtz & Jonathan Jacobs, The State of Asylum Representation: Ideas for Change, 16 GEO. IMMIGR. L.J. 739, 743-46 (2002);
202. Donald Kerwin, Charitable Legal Programs for Immigrants: What They Do, Why They Matter and How They Can Be Expanded, IMMIGR. BRIEFINGS, June 2004, at 1, 5-7, apps. I & II, available at http://www.cliniclegal.org/Publications/ArticlesbyCLINIC/ charitablelegalprograms.pdf.
203. These include the theoretical possibility of persuading a court that due process demands the appointment of counsel in a particular case, Aguilera-Enriquez v. INS, 516 F.2d 565, 568-69 (6th Cir. 1975), legal services providers that accept no funding from the Legal Services Corporation, and pro bono legal services delivered by individual practitioners or charitable organizations.
204. See generally LEGOMSKY, supra note 127, at 653-67.
205. Asylum Study, supra note 1, at 384.
206. Id.
207. See INA § 235(b)(1)(B)(ii), (iii), (v). Credible fear requires "a significant possibility ... that the alien could establish eligibility for asylum." INA § 235(b)(1)(B)(v).
208. Oversight of the U.S. Department of Justice: Hearing Before the S. Comm. on the Judiciary, supra note 40, at 24.
209. Asylum Study, supra note 1, at 380.
210. Whether demographic characteristics such as gender, ethnicity, and the like should also be part of the hiring equation is examined infra Part IV.B.1.
211. Asylum Study, supra note 1, at 380 n.146
212. (quoting Emma Schwartz & Jason McLure, DOJ Made Immigration Judgeships Political, LEGAL TIMES, May 30, 2007, at 12).
213. Oversight of the U.S. Department of Justice: Hearing Before the S. Comm. on the Judiciary, supra note 40, at 22 (emphasis added).
214. Lubbers, supra note 67, at 73, 77. For that reason, among others, agencies have been increasingly hesitant to assign adjudicative functions to ALJs.
215. Id at 70-74.
216. See infra Part IV.C.2.
217. Asylum Study, supra note 1, at 386-87;
218. see also Levinson, supra note 82;
219. Roberts, supra note 82.
220. See infra Part IV.C.2.
221. See Asylum Study, supra note 1, at 386;
222. see also Legomsky, Forum Choices, supra note 73, at 1378-80;
223. Levinson, supra note 82, at 650-51;
224. Maurice A. Roberts, The Board of Immigration Appeals: A Critical Appraisal, 15 SAN DIEGO L. REV. 29, 44 (1977).
225. See the sources cited in Legomsky, Forum Choices, supra note 73, at 1379 n.483.
226. Asylum Study, supra note 1, at 381-82.
227. Id at 382.
228. Id. at 384.
229. See supra Part III.C.2.
230. See supra Part III.C.2.
231. The analogous issue of court of appeals deference to the BIA is taken up separately, in infra Part IV.B.3.
232. David A. Martin, Reforming Asylum Adjudication: On Navigating the Coast of Bohemia, 138 U. PA. L. REV. 1247, 1349 (1990).
233. See INA § 208(b)(1)(B)(iii), added by REAL ID Act of 2005, Pub. L. No. 109-13, Div. B, § 101(a)(3), 119 Stat. 231 (May 11, 2005).
234. See, e.g., Osorio v. INS, 99 F.3d 928, 931 (9th Cir. 1996) ("The immigration judge 'must have a legitimate articulable basis to question the petitioner's credibility, and must offer a specific, cogent reason for any stated disbelief"
235. (quoting Hartooni v. INS, 21 F.3d 336, 342 (9th Cir. 1994))).
236. See the classic article by Walter Kälin, Troubled Communication: Cross-Cultural Misunderstandings in the Asylum-Hearing, 20 INT'L MIGRATION REV. 230 (1986).
237. See supra Parts I.B, III.C.3.
238. Oversight of the U.S. Department of Justice: Hearing Before the S. Comm. on the Judiciary, supra note 40, at 22.
239. Asylum Study, supra note 1, at 384.
240. See supra Part III.C.3.
241. Asylum Study, supra note 1, at 384-85.
242. 8 C.F.R. § 1003.1(g) (2007).
243. See supra Part III.C.3.
244. See, e.g., United States v. Smith, 354 F.3d 390, 399 (5th Cir. 2003).
245. FED. R. APP. P. 35(a)(1).
246. See supra Part III.B.1.
247. I wish to distinguish traditional affirmative action policies, which generally aim to promote diversity or to offset some of the effects of past discrimination. The issue here is whether to employ demographics for the very different purpose of making the case outcomes more consistent.
248. See supra Part II.
249. 8 C.F.R. § 1003.1(h)(1)(i) (2007).
250. VERKUIL ET AL., supra note 67, at 1004;
251. cf. 5 U.S.C. § 557 (2000) (authorizing agency member decisions).
252. See Recommendations and Statements of the Administrative Conference, 57 Fed. Reg. 61,759, 61,760 (Dec. 29, 1992) (codified at 1 C.F.R. pts. 305, 310);
253. VERKUIL ET AL., supra note 67, at 795-96, 986, 996.
254. VERKUIL ET AL., supra note 67, at 987-90.
255. If the arguments for agency head review of BIA decisions were otherwise found persuasive, then this last point might be a reason to move EOIR to the Department of Homeland Security and subject BIA decisions to review by the Secretary of Homeland Security rather than the Attorney General. I do not recommend such a transfer because, as the discussion explains, I do not find the arguments for agency head review of BIA decisions convincing in the first place.
256. Lubbers, supra note 67, at 78.
257. VERKUIL ET AL., supra note 67, at 998-1000.
258. Id. at 1000-04.
259. U.S. CONST, art. I, § 7, cl. 2.
260. 5 U.S.C. § 553(b)(3)(A) (2000);
261. VERKUIL ET AL., supra note 67, at 1005-07.
262. 5 U.S.C. § 553(b)(3)(B) (2000).
263. See infra Part IV.C.2.
264. See supra Part III.A.2.
265. Regulations Governing Departmental Organization and Authority, 5 Fed. Reg. 3502, 3503 (Sept. 4, 1940).
266. See 8 C.F.R. § 1003.1(b) (2007).
267. See Legomsky, supra note 39, at 375-79.
268. See supra Parts III.C.2, IV.A.9.
269. See INA §§ 208(a)(2)(B), (a)(2)(D), (a)(3), 242(a)(2)(A).
270. See Jill E. Family, Stripping Judicial Review During Immigration Reform: The Certificate of Reviewability, 8 NEVADA L.J. (forthcoming 2007).
271. Stephen H. Legomsky, Political Asylum and the Theory of Judicial Review, 73 MINN. L. REV. 1205, 1211-16 (1989).
272. Id. at 1209-11.
273. See supra Part I.B
274. and infra Part IV.C.2.
275. The benefits of that generalist perspective are further broken down in infra Part IV.B.4.
276. INA § 242(b)(4)(B).
277. Asylum Study, supra note 1, at 388-89.
278. See Consolo v. Fed. Mar. Comm'n, 383 U.S. 607, 619-20 (1966) ("We have defined 'substantial evidence' as 'such relevant evidence as a reasonable mind might accept as adequate to support a conclusion'"
279. (quoting Consol. Edison Co. of New York v. NLRB, 305 U.S. 197, 229 (1938))).
280. See INA § 242(a)(2)(B)(ii).
281. 5 U.S.C. § 706(2)(A) (2000) (emphasis added).
282. INA § 242(b)(4)(D) (emphasis added).
283. See, e.g., Woodward & Levin, supra note 122, at 332. Admittedly, expertise is not the only rationale for judicial deference to agencies. Deference also reflects the courts' recognition of Congress's assumed intention to delegate the interpretive function to the agency.
284. See Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 843-44 (1984).
285. See supra Part III.E.1.
286. For the earlier calls for such a structure, see Levinson, supra note 82, at 653;
287. Roberts, supra note 82.
288. See LEGOMSKY, SPECIALIZED JUSTICE, supra note 73, at 33-42.
289. See id. at 7-19.
290. Asylum Study, supra note 1, at 379.
291. See 1 CHARLES GORDON ET AL., IMMIGRATION LAW AND PROCEDURE § 2.02 (2007).
292. These are favored by several respected commentators. See, e.g., Recommendations and Statements of the Administrative Conference, 57 Fed. Reg. 61,759 (Dec. 29, 1992) (codified at 1 C.F.R. pts. 305, 310);
293. Jeffrey S. Lubbers, The Federal Administrative Judiciary: Establishing an Appropriate System of Performance Evaluation for AIJs, 7 ADMIN. L.J. AM. UNIV. 589 (1993).
294. See supra Part III.C.1.
295. Legomsky, supra note 39, at 385-401.
296. See supra Part IV.B.2.
297. See VERKUIL ET AL., supra note 67, at 795-96, 986-87. As for ALJs,
298. see infra text accompanying notes 243-44.
299. The report in VERKUIL ET AL., supra note 67, at 1007-10, lamented the inability of the Social Security Administration to prevent large inconsistencies in the rates at which ALJs granted or denied social security disability benefits. Still, the report strongly favored increased use of ALJs, in large part precisely because of the independence they enjoy.
300. Id. at 1058.
301. See supra note 103 and accompanying text.
302. VERKUIL ET AL., supra note 67, at 1021-23.
303. Legomsky, supra note 39, at 396.
304. For elaboration of these benefits, see id. at 396-98.
305. Id. at 398-401.
306. Id. at 401.
307. These comments are not meant to extend to the U.S. Citizenship and Immigration Services asylum officers. Many of the same considerations logically apply, but the decisional independence of asylum officers is less important. When they refer cases to immigration judges, the asylum claims can be renewed de novo in the resulting removal proceedings. For a description of the process, see supra Part I.A.
308. Recommendations and Statements of the Administrative Conference, 57 Fed. Reg. 61,759 (Dec. 29, 1992) (codified at 1 C.F.R. pts. 305, 310);
309. Lubbers, supra note 67, at 72-74.
310. Recommendations and Statements of the Administrative Conference, 57 Fed. Reg. 61,759, 61,759 (Dec. 29, 1992) (codified at 1 C.F.R. pts. 305, 310);
311. see VERKUIL ET AL., supra note 67, at 1048 (recommending use of ALJs when "significant interests in freedom of action of particular individuals" is implicated);
312. see also id. at 1049 (concluding that immigration judges should be ALJs).
313. See U.S. COMM'N ON IMMIGRATION REFORM, BECOMING AN AMERICAN: IMMIGRATION AND IMMIGRANT POLICY 175 (1997);
314. Levinson, supra note 36, at 1161-63;
315. James J. Orlow, Comments on "A Specialized Statutory Immigration Court," 18 SAN DIEGO L. REV. 47, 50-51 (1980);
316. Leon Wildes, The Need for a Specialized Immigration Court: A Practical Response, 18 SAN DIEGO L. REV. 53, 62 (1980).
317. I had once felt that taking the BIA out of the Justice Department was not necessary, Legomsky, Forum Choices, supra note 73, at 1377-78,
318. but the Attorney General's recent assaults on the BIA's decisional independence forced me to eat my words twenty years later, Legomsky, supra note 39, at 404-05. There are existing examples of these "split enforcement" models, in which the adjudicative tribunal is organizationally independent of the policymaking and enforcement agencies, but they are controversial. For the opposing views,
319. see VERKUIL ET AL., supra note 67, at 1040-41. For a discussion of a specialized immigration court,
320. see supra Part IV.B.4.
321. The concept of an ALJ corps has also been highly controversial. For a thoughtful discussion of the pros and cons, see VERKUIL ET AL., supra note 67, at 1041-46.
322. See also Lubbers, supra note 67, at 74-76 (expressing concern that an ALJ corps would exacerbate agencies' already strong reluctance to assign adjudication to ALJs).
323. See, e.g., Asylum Study, supra note 1, at 386;
324. see also Levinson, supra note 82;
325. Roberts, supra note 82. For reasons discussed earlier, however, my view is that the elimination of generalist judicial review would be unwise.
326. See supra Part IV.B.4.
327. The authors of the Asylum Study recommend an Article I immigration court in which the judges serve fixed terms of ten to fifteen years. Asylum Study, supra note 1, at 386. In my view, fixed terms would be problematic. Either members would have to be limited to one term each, in which case the country would be deprived of the continued service of a good and experienced adjudicator, or renewals would be permitted, in which case fears of non-renewal would simply replace fears of Attorney General "reassignment." There is no reason to expect the White House's renewal decisions to be any less political than the Attorney General's reassignment decisions. One also wonders how many talented lawyers will give up their existing practices for jobs that will leave them in limbo when their terms expire.