"streamlining" the rule of law: How the department of justice is undermining judicial review of agency action

University of Illinois Law Review

Volumn 2009, Issue 3, 2009, Pages 829-893

  Rana, Shruti ^a  

^a UNIVERSITY OF MARYLAND SCHOOL OF LAW   (United States)

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[No Author keywords available]

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EID: 68949175058     PISSN: 02769948     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (407)

1. Jay v. Boyd, 351 U.S. 345, 372 (1956) (Frankfurter, J., dissenting).
2. Oversight of the U.S. Department of Justice with Attorney General Mukasey: Hearing Before the S. Comm. on the Judiciary, 110th Cong. 13,17 (2008) (statement of Sen. Patrick Leahy, Chairman of the S. Comm. on the Judiciary), available at http://judiciary.senate.gov/hearings/testimony. cfm?id=3069&wit-id=2629 (discussing the reasons Congress began oversight hearings over the DOJ, including its handling of "demands for immunity and unaccountability among those in the administration").
3. Id.
4. Id.; see also Ekasinta v. Gonzales, 415 F.3d 1188, 1192 (10th Cir. 2005); BRIAN Z. TAMANAHA, LAW AS A MEANS TO AN END: THREAT TO THE RULE OF LAW 206 (2006).
5. See John D. Ashcroft, Att'y Gen. of the United States, News Conference: Administrative Change to Board of Immigration Appeals (Feb. 6, 2002), available at http://www.usdoj.gov/archive/ ag/speeches/2002/ 020602transcriptadministrativechangetobia.htm [hereinafter Ashcroft, News Conference]; see also Board of Immigration Appeals: Procedural Reforms to Improve Case Management, 67 Fed. Reg. 7309 (Feb. 19, 2002) (to be codified at 8 C.F.R. pts. 3, 280).
6. John R.B. Palmer et al., 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. 1,19 (2005); see also Board of Immigration Appeals: Affirmance Without Opinion, Referral for Panel Review, and Publication of Decisions as Precedents, 73 Fed. Reg. 34, 654, 34, 655 (proposed June 18, 2008) (to be codified at 8 C.F.R. pt. 1003).
7. Palmer et al., supra note 6, at 19.
8. -8 C.F.R. §1003.1(e)(4)(i) (2008).
9. Id. §1003.1(e)(4)(h).
10. Id.
11. Id. ("An order affirming without opinion, issued under authority of this provision, shall not include further explanation or reasoning. Such an order approves the result reached in the decision below; it does not necessarily imply approval of all the reasoning of that decision, but does signify the Board's conclusion that any errors in the decision of the immigration judge or the service were harmless or nonmaterial.").
12. See Palmer et al., supra note 6, at 56.
13. -8 C.F.R. §1003.1(e)(4)(ii) ("[I]f the Board member determines that the decision should be affirmed without opinion, the Board shall issue an order that reads as follows: 'The Board affirms, without opinion, the result of the decision below. The decision below is, therefore the final agency determination.'").
14. Id. §1003.1(e)(5).
15. Id. §1003.1(e)(6).
16. Id. §1003.1(e)(8); see also Immigration Litigation Reduction: Hearing Before the S. Comm. on the Judiciary, 109th Cong. 6 (2006) (testimony of John M. Walker, Jr., C.J., U.S. Court of Appeals for the Second Circuit) [hereinafter Immigration Litigation Reduction Hearing]; Jaya Ramji-Nogales et al., Refugee Roulette: Disparities in Asylum Adjudication, 60 STAN. L. REV. 295, 353 (2007) (noting that after the 2002 streamlining reforms, the Attorney General required Board members to clear the 55,000 case backlog within 180 days, which worked out to thirty-two cases per day, or one case every fifteen minutes).
17. See sources cited supra notes 8-16 and accompanying text; see also Oversight Hearing on the Executive Office for Immigration Review: Hearing Before the H. Comm. on the Judiciary, Subcomm. on Immigration, Citizenship, Refugees, Border Security, and International Law, 110th Cong. 4 (2008) (written statement of Stephen H. Legomsky, Professor Washington University School of Law), http://judiciary.house.gov/hearings/pdf/ Legomsky080923.pdf.
18. A number of published studies have found that the number of Board decisions granting immigrants' appeals dropped significantly after the streamlining reforms were implemented; it is only theprecise extent of the drop that is the subject of debate. In the months following the implementation of the streamlining reforms, two studies found large drops in the success rates of immigrants' appeals before the Board. The Los Angeles Times reported that the Board rejected 86 percent of its appeals in October of 2003, compared with 59 percent the previous October. Lisa Getter & Jonathan Peterson, Speedier Rate of Deportation Rulings Assailed, L.A. TIMES, Jan. 5, 2003, at Al. A 2003 study of the impact of the streamlining regulations conducted on behalf of the American Bar Association found that "[b]efore the spring of 2002, approximately one in four appeals was granted; since then, approximately one in ten appeals is granted." DORSEY & WHITNEY LLP, BOARD OF IMMIGRATION APPEALS: PROCEDURAL REFORMS TO IMPROVE CASE MANAGEMENT 40 (2003), http://www.dorsey. com/files/upload/DorseyStudyABA-8mgPDF.pdf [hereinafter DORSEY & WHITNEY REPORT]. These studies prompted a swift reaction from the DOJ which criticized the Los Angeles Times for "unfairly characterizing]" the Department's streamlining efforts, and claimed that the Dorsey & Whitney study relied on "flawed data." See Letter from Lori Scialabba, BIA Chairman, to the Editor of the L.A. Times (Jan. 9, 2003), http://www.usdoj.gov/eoir/press/03/getter.pdf; Letter from Lori Scialabba, BIA Chairman, to the American Bar Association Commission on Immigration Policy Practice and Pro Bono (Dec. 22, 2003), http://www.usdoj.gov/ eoir/press/03/ABA.pdf. Still, subsequent studies also found that immigrants' appeals were far less likely to be granted after the streamlining reforms were implemented. One study showed that, while in 2001 the Board granted approximately 24 percent of asylum appeals in expedited removal cases, after the 2002 streamlining provisions were implemented the number of these appeals granted by the Board dropped to 2-4 percent. Eleanor Acer, Refuge in an Insecure Time: Seeking Asylum in the Post-9/11 United States, 28 FORDHAM INT'L LJ. 1361, 1386 (2005); see also Palmer et al., supra note 6, at 56-57 (citing the above studies and further supporting the proposition that Board denials of appeals increased markedly after the streamlining reforms were implemented). Most recently, a 2007 empirical study reiterated these findings, showing that "the success rate for all asylum applicants fell from 37% in FY 2001 to 11% in FY 2005, a drop of 70%." Ramji-Nogales et al., supra note 16, at 358.
19. Immigration Litigation Reduction Hearing, supra note 16, at 61-62 (statement of Jonathan Cohn, Deputy Assistant Att'y Gen., Civil Division, U.S. DOJ); see also Palmer et al., supra note 6, at 4 (noting that after the 2002 streamlining reforms the rate at which aliens appealed Board decisions rose and discussing possible reasons for this rise).
20. See Michael M. Hethmon, Tsunami Watch on the Coast of Bohemia: The BIA Streamlining Reforms and Judicial Review of Expulsion Orders, 55 CATH. U. L. REV. 999, 1002 (2006); 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, 47, 49 n.43 (2006-2007) (noting that of the 12,255 administrative appeals filed in the federal courts in 2004, 10, 812 of them, or 88.2 percent, were immigration appeals from Board decisions); Palmer et al., supra note 6, at 47.
21. For example, in a famous 2005 case, Judge Posner of the Seventh Circuit described the agency's repeated failures to adhere to the rule of law and wrote that "adjudication of these cases at the administrative level has fallen below the minimum standards of legal justice." Benslimane v. Gonzales, 430 F.3d 828, 830 (7th Cir. 2005); see also Fiadjoe v. Att'y Gen., 411 F.3d 135, 154-55 (3d Cir. 2005) (criticizing an immigration judge's "hostile" and "extraordinarily abusive" conduct toward the petitioner); Lopez-Umanzor v. Gonzales, 405 F.3d 1049, 1054 (9th Cir. 2005) ("[The immigration judge's] assessment of Petitioner's credibility was skewed by prejudgment, personal speculation, bias, and conjecture."); Niam v. Ashcroft, 354 F.3d 652, 654 (7th Cir. 2003) ("The elementary principles of administrative law, the rules of logic, and common sense seem to have eluded the Board in this as in other cases." (quoting Galina v. INS, 213 F.3d 955, 958 (7th Cir. 2000))).
22. See Benslimane, 430 F.3d at 829 (collecting cases criticizing errors made by the Board and immigration judges).
23. See, e.g., Kambolli v. Gonzales, 449 F.3d 454, 458-60 (2d Cir. 2006); Smriko v. Ashcroft, 387 F.3d 279, 292-95 (3d Cir. 2004); Tsegay v. Ashcroft, 386 F.3d 1347, 1353-58 (10th Cir. 2004); Zhu v. Ashcroft, 382 F.3d 521, 526-29 (5th Cir. 2004); Chong Shin Chen v. Ashcroft, 378 F.3d 1081, 1087-88 (9th Cir. 2004); Ngure v. Ashcroft, 367 F.3d 975, 980-88 (8th Cir. 2004); Blanco de Beibruno v. Ashcroft, 362 F.3d 272, 278-80 (4th Cir. 2004); Denko v. INS, 351 F.3d 717, 725-30 (6th Cir. 2003); Haoud v. Ashcroft, 350 F.3d 201, 204-05 (1st Cir. 2003); Georgis v. Ashcroft, 328 F.3d 962, 966-67 (7th Cir. 2003); Gonzalez-Oropeza v. U.S. Att'y Gen., 321 F.3d 1331, 1332-34 (11th Cir. 2003).
24. Board of Immigration Appeals: Affirmance Without Opinion, Referral for Panel Review, and Publication of Decisions as Precedents, 73 Fed. Reg. 34, 654, 34, 656 (proposed June 18, 2008) (to be codified at 8 C.F.R. pt. 1003); see also id. at 34,657 (in section entitled "Reviewability," citing a split in the circuits over their jurisdiction to review the Board's decision to issue an affirmance without opinion and explaining that this "inconsistency in the circuit courts has prompted the Department to propose a revision to the regulatory language... [that] clarifies that the decision to issue an [Affirmance Without Opinion] is discretionary and is based on an internal agency directive created for the purpose of efficient case management that does not create any substantive or procedural rights"); id. at 34, 659 (stating that under the proposed revisions, "the Board may consider available resources and the best use of those resources" in exercising its discretion to refer a case to a three-member panel). As of the date of publication of this Article, the ultimate fate of this proposed regulation further modifying the streamlining rules is uncertain, as it has been withdrawn from OMB Office of Information and Regulatory Affairs (OIRA) review, see OIRA Conclusion of EO 12866 Regulatory Review, (Dec. 30,2008), http://www.reginfo.gov/public/do/eoDetails?rrid=116581, but the agency has not formally withdrawn or ended the proposed rulemaking. Under both the current and proposed versions of the streamlining regulations, once a case is streamlined, it is sent to a single Board member, who may reverse an immigration judge's decision only in certain specified situations. See 8 C.F.R. §1003.1(e)(5) (2008). Only three-member panels (or the Board en banc) may hear oral argument, and in contrast to single members, they have broad authority to reverse cases. See id. §1003.1(e)(6)-(7). "Under the current regulations, the Board's decisions are published as precedents upon a majority vote of the permanent Board members." Board of Immigration Appeals: Affirmance Without Opinion, Referral for Panel Review, and Publication of Decisions as Precedents, 73 Fed. Reg. at 34, 661. The proposed change will "allow three-member pa neis to publish precedent decisions if a majority of the permanent Board members of a panel votes to publish a decision." Id.
25. See Brian Z. Tamanaha, A Concise Guide to the Rule of Law, In RELOCATING THE RULE OF LAW 8 (Gianluigi Palombella & Neil Walker eds., 2009) ("A common worry of citizens is that government officials may be unduly influenced in their government actions by inappropriate considerations by prejudice, whims, arbitrariness, passion, ill will or a foul disposition, or by any of the many factors that distort human decision-making and actions. The rule of law constrains these factors by insisting that government officials act pursuant to and consistent with applicable legal rules.");
26. see also infra Parts LB. and II (discussing the impact of importing resource-allocation considerations into the streamlining regulations); Hashmi v. Att'y Gen., 531 F.3d 256, 260 (3d Cir. 2008) (concluding that an immigration judge had "abused his discretion when he denied [a] motion... based solely on concerns about the amount of time required to resolve [the] case").
27. Ramji-Nogales et al., supra note 16, at 299-300.
28. Tamanaha, supra note 25, at 3.
29. See id. ("The rule of law, at its core, requires that government officials and citizens are bound by and act consistently with the law. This basic requirement entails a set of minimal characteristics: law must be set forth in advance (be prospective), be made public, be general, be clear, be stable and certain, and be applied to everyone according to its terms. In the absence of these characteristics, the rule of law cannot be satisfied.").
30. Stephen H. Legomsky, Deportation and the War on Independence, 91 CORNELL L. REV. 369, 399 (2006) (discussing how the absence of judicial independence conflicts with the goal of respecting the rule of law); see also Hashmi, 531 F.3d at 261 (finding that an immigration judge abused his discretion in denying a motion based solely on concerns about the amount of time required to resolve the case and noting that "[t]o reach a decision about whether to grant or deny a motion for a continuance based solely on case-completion goals, with no regard for the circumstances of the case itself, is impermissibly arbitrary").
31. See TAMANAHA, supra note 4, at 1-2 (explaining that people adhering to an instrumentalist view of the law "view law as an instrument of power to advance their personal interests or the interests or policies of the individuals or groups they support");
32. Lawrence B. Solum, The Supreme Court in Bondage: Constitutional Stare Decisis, Legal Formalism, and the Future of Unenumerated Rights, 9 U. PA. J. CONST. L. 155, 167 (2006) (noting that instrumentalism is the idea that legal decision making is influenced by extralegal considerations of policy and principle such that judges are indifferent to the tangible effects that they cause with their rulings not only on the public in general, but more importantly, on the specific parties in front of them);
33. Keith Swisher, The Unethical Judicial Ethics of Instrumentalism and Detachment in American Legal Thought, 43 WLLLIAMETTE L. REV. 577, 578 (2007).
34. See, e.g., Marbury v. Madison, 5 U.S. (1 Cranch) 137, 163 (1803) ("The government of the United States has been emphatically termed a government of laws, and not of men."); TAMANAHA, supra note 4, at 130 (noting that while the precise definition of the rule of law is a contested concept, the rule of law is the "preeminent political ideal of contemporary Western liberal democracies" and instrumental approaches to the law have a powerful potential to weaken the rule of law, diminishing the rule and standard-based integrity of the rule of law until it is no longer a true system of law).
35. TAMANAHA, supra note 4, at 227.
36. See Margaret H. Taylor, Refugee Roulette in an Administrative Law Context: The Déjà Vu of Decisional Disparities in Agency Adjudication, 60 STAN. L. REV. 475, 477-80 (2007) (noting that scholars and policymakers in the field of administrative law usually do not look to immigration administration, and those in the immigration field do not often look to administrative law theory and practice).
37. Id.; see also Gerald L. Neuman, Discretionary Deportation, 20 GEO. IMMIGR. L.J. 611, 618 (2006) (noting that while the application of constitutional principles to immigration law "is a repetitive trope of modern scholarship," less attention has been paid to the application of administrative law principles to immigration law).
38. See, e.g., Sydenham B. Alexander III, A Political Response to Crisis in the Immigration Courts, 21 GEO. IMMIGR. L.J. 1 (2006).
39. See id.; see also Brian G. Slocum, Courts vs. The Political Branches: Immigration "Reform" and the Battle for the Future of Immigration Law, 5 GEO. J.L. & PUB. POL'Y 509, 513 (2007) (noting the lack of attention to the role of judicial review and the courts as opposed to congressional attempts to reform immigration law).
40. See, e.g., Alexander III, supra note 35, at 13; Slocum, supra note 36, at 512-13 (discussing the role of judicial review in serving as a check on arbitrary government action).
41. Smriko v. Ashcroft, 387 F.3d 279, 290-91 (3d Cir. 2004).
42. Id. at 295 (citing the "Supreme Court's long-standing requirement... that an agency comply with its own regulations").
43. See Stephen H. Legomsky, Fear and Loathing in Congress and the Courts: Immigration and Judicial Review, 78 TEX. L. REV. 1615, 1631 (2000) (emphasis omitted).
44. See Heckler v. Chaney, 470 U.S. 821, 838 (1985) (stating that administrative actions are generally reviewable unless they fall under the narrow category of acts committed entirely to agency discretion); Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 410 (1971) (same); Abbott Labs. v. Gardner, 387 U.S. 136, 140 (1967) (same); Smriko, 387 F.3d at 292 (same).
45. Daniel Kanstroom, The Better Part of Valor: The REAL ID Act, Discretion, and the "Rule" of Immigration Law, 51 N.Y.L. SCH. L. REV. 161, 165 (2006-2007) (quoting LOUIS L. JAFFE, JUDICIAL CONTROL OF ADMINISTRATIVE ACTION 320 (1965)).
46. See Legomsky, supra note 40, at 1631 (noting fair process serves a public relations function in the immigration context, as the "immigrant who is removed unjustly brings home a constellation of memories and stories"); see also John Lantigua, In Asylum Cases, Immigration Judges Under a Lot of Pressure, PALM BEACH POST, May 10, 2008, http://www.palmbeachpost.com/search/content/state/ epaper/2008/05/lO/mla-judges-0511.html (quoting Judge Dana Marks, President of the National As-sociation of Immigration judges, who noted that asylum cases can be like "death penalty cases" since some people may face death if asylum is denied); Howard Mintz, Appeals Board Widens Barrier to Immigration, CONTRA COSTA TIMES, Oct. 2, 2005, at Q4 (noting that "[e]xperts say it is doubly important for the board to explain its reasoning when dealing with the life-or-death concerns of refugees" and quoting the former general counsel for the Immigration and Naturalization Service as stating that "[b]y and large, asylum cases would tend to merit more thorough review").
47. See Anna Gorman, Too Many Cases, Too Few Judges, L.A. TIMES, July 21, 2008, at Bl (discussing the delays and strains on immigration courts created when immigration judges are not able to spend enough time on individual cases, leading appellate courts to send the cases back for the more thorough review they should have received in the first place); see also Palmer et al., supra note 6, at 32; ("In terms of actual cost to the Government, good Board decisions are a bargain. More opinions can be ground out, of course, in less time and with an even more inadequate staff; but the resulting dilution in quality, while not only unfair to the parties involved, would also cost much more in the long run. Economies of this sort only result in passing the buck to those with less expertise. The slack would have to be taken up elsewhere in the Department; if not, the already overburdened courts will have to confront the task, for dilution in quality of Board decisions can only cause greater recourse to the courts for redress. If [INS] errors are to be screened out and corrected, it is more efficient in the long run that this be done by the Board.") (quoting Maurice A. Roberts, The Board of Immigration Appeals: A Critical Appraisal, 15 SAN DLEGO L. REV. 29, 38 (1977))).
48. See Kanstroom, supra note 42, at 171 (discussing a recent Supreme Court case, INS v. St. Cyr, 553 U.S. 289 (2001), where the government, "in its brief in a companion case,... prominently cited a 1903 case to assert, in effect, that all of immigration law is discretionary and may be rendered immune even from judicial scrutiny for constitutional defects").
49. See Daniel Kanstroom, Surrounding the Hole in the Doughnut: Discretion and Deference in U.S. Immigration Law, 71 TUL. L. REV. 703, 707 (1997).
50. See Slocum, supra note 36, at 512-13 (discussing the judiciary's role in limiting the efforts of the political branch with respect to immigration reform and policy choices).
51. See Kanstroom, supra note 42, at 162-63; Kanstroom, supra note 46, at 704-05; Neuman, supra note 34, at 626-27.
52. Kanstroom, supra note 42, at 162.
53. Pub. L. No. 104-132,110 Stat. 1214 (1996) (codified as amended in scattered sections of 8, 18, 22, 28, 40, 42 U.S.C. (2006)).
54. Pub. L. No. 104-208, 110 Stat. 3009 (1996) (codified as amended in scattered sections of 8, 18 U.S.C. (2006)).
55. Neuman, supra note 34, at 626.
56. Id. at 626 n.47 (also noting that agency asylum determinations may be reviewed for an abuse of discretion).
57. Id. at 626.
58. Id.
59. See Palmer et al., supra note 6, at 17-20; see also Lenni B. Benson, The New World of Judicial Review of Removal Orders, 12 GEO. IMMIGR. L.J. 233, 240-41 (1998).
60. Slocum, supra note 36, at 510-17.
61. See Neuman, supra note 34, at 631-33 (discussing how the streamlining reforms reduced the utility of administrative appellate review as an oversight mechanism).
62. See Kanstroom, supra note 42, at 162.
63. See id. at 162-64 (analyzing the types of immigration decisions which are still judicially reviewable in the wake of congressional enactments barring judicial review and Supreme Court cases delineating circumstances where judicial review is mandatory).
64. DORSEY & WHITNEY REPORT, supra note 18, at 8.
65. Ekasinta v. Gonzales, 415 F.3d 1188, 1192 (10th Cir. 2005).
66. See 8 C.F.R. §1003.1 (2008); 23 Fed. Reg. 9115, 9117-19 (Nov. 26, 1958).
67. See Immigration Litigation Reduction Hearing, supra note 16, at 5-6 (statement of John M. Walker, Jr., C.J., U.S. Court of Appeals for the Second Circuit).
68. Id. at 6; see also Margaret Graham Tebo, Asylum Ordeals, A.B.A. J., Nov. 2006, at 39 ("About 200 immigration judges nationwide handle more than 250,000 immigration cases annualIy....").
69. John W. Geundelsberger, Judicial Deference to Agency Decisions in Removal Proceedings in Light ofINS v. Ventura, 18 GEO. IMMIGR. L.J. 605, 612 (2004).
70. Palmer et al., supra note 6, at 56.
71. DORSEY & WHITNEY REPORT, supra note 18, at 9; see also 8 C.F.R. §1003.1(d)(1) (2008) (noting that the Board issues precedential decisions in order to provide "clear and uniform guidance to the [Department], the immigration judges, and the general public on the proper interpretation and administration of the [Immigration and Nationality] Act and its implementing regulations"); Palmer et al., supra note 6, at 18-19. Most Board decisions simply resolve individual appeals and are unpublished and non-precedential. Id. Each year, the Board, by majority vote, selects a small number of Board decisions and designates them as precedential. 8 C.F.R. §1003.1(g); Palmer et al., supra note 6, at 19. In fiscal year 2006, for example, the Board published twenty-five precedential decisions, and in fiscal year 2007 it published forty precedential decisions. Board of Immigration Appeals: Affirmance Without Opinion, Referral for Panel Review, and Publication of Decisions as Precedents, 73 Fed. Reg. 43, 654, 34, 659 (proposed June 18, 2008) (to be codified at 8 C.F.R. pt. 1003).
72. -8 C.F.R. §1003.3.
73. Id. §1003.1(g).
74. See id. §1003.1.
75. See 8 U.S.C. §1252(b)(2) (2006); see also Hobbs Act, Pub. L. No. 87-301, §106,75 Stat. 650, 651-53 (1961) (providing the federal circuit courts with jurisdiction to review certain final administrative orders, bypassing the district courts).
76. See Palmer et al., supra note 6, at 18-19 (explaining how the makeup of the Board has changed over time); see also Zhang v. U.S. Dep't of Justice, 362 F.3d 155, 156 (2d Cir. 2004) ("Until 1999, [Board] practice was to review all appeals from [immigration judge] decisions in three-member panels."); Board of Immigration Appeals: Affirmance Without Opinion, Referral for Panel Review, and Publication of Decisions as Precedents, 73 Fed. Reg. at 34,655 ("Historically... the Board adjudicated ... cases in panels of three Board members-Those three-member panels generally issued full written decisions explaining the order in each case.").
77. See Board of Immigration Appeals: Streamlining, 64 Fed. Reg. 56, 135, 56, 136 (Oct. 18, 1999) (to be codified at 8 C.F.R. pt. 3).
78. Board of Immigration Appeals: Affirmance Without Opinion, Referral for Panel Review, and Publication of Decisions and Precedents, 73 Fed. Reg. at 34, 656. "In 1984, the Board received fewer than 3,000 new appeals and motions." Board of Immigration Appeals: Streamlining, 64 Fed. Reg. at 56, 136. Appeals to the Board more than doubled from 1992 to 2000 (from 12, 823 to 29, 972) and during this time the Board's backlog of pending appeals rose by 253 percent, from 18, 054 to 63,763. DORSEY & WHITNEY REPORT, supra note 18, at 13.
79. DORSEY & WHITNEY REPORT, supra note 18, at 16-17.
80. Ashcroft, News Conference, supra note 5.
81. Board of Immigration Appeals, 64 Fed. Reg. at 56,137; see also Archive of Memoranda from Chairman of the Board of Immigration Appeals, http://www.usdoj.gov/eoir/vll/genifo/stream.htm (collecting memoranda sent by the Chairman of the Board to Board members between 2000 to 2002 specifying the types of cases subject to streamlining) (last visited Mar. 11, 2009).
82. Ramji-Nogales et al., supra note 16, at 351.
83. See id.; see also Peter J. Levinson, The Façade of Quasi-Judicial Independence in Immigration Appellate Adjudications, 9 BENDER'S IMMIGR. BULL. 1154, 1154 (2004). One additional measure of the Board's increased productivity is the fact that between 1998 and 2002 the Board increased the number of decisions it reviewed by 65 percent (the Board reviewed 28,689 cases in 1998 and 47,311 cases in 2002). DORSEY & WHITNEY REPORT, supra note 18, at app. 9.
84. See sources cited supra note 80.
85. See sources cited supra notes 8-16 and accompanying text.
86. Neuman, supra note 34, at 632; Ramji-Nogales et al., supra note 16, at 351.
87. Ashcroft, News Conference, supra note 5; see also Denko v. INS, 351 F.3d 717, 729 n.9 (6th Cir. 2003) (noting that the Attorney General's "seemingly contradictory proposal... to reduce the Board's backlog and the amount of time spent on each case while limiting the number of persons authorized to review rulings from the immigration judges").
88. Ashcroft, News Conference, supra note 5 ("On November the 8th, I pledged that the Department of Justice would undertake a series of reorganizations to serve better our mission of protecting America from terrorist attack, our mission of enforcing our nation's laws and safeguarding our civil liberties. A critical part of our mission is enforcing our immigration laws-enforcing them fairly, deliberately, and without delay. Today, to accomplish that objective, I am announcing a reorganization of the Board of Immigration Appeals.").
89. The Board retained Andersen to evaluate the effectiveness of the 1999 streamlining regulations. Andersen found that the initial streamlining regulations had increased by 53 percent the number of Board cases completed, and had also reduced the average number of days it took the Board to process a case. See DORSEY & WHITNEY REPORT, supra note 18, at 18.
90. Palmer et al., supra note 6, at 26.
91. Id.
92. Id. at 26-27.
93. See, e.g., Amy Goldstein & Dan Eggen, Immigration Judges Often Picked Based on GOP Ties: Law Forbids Practice; Courts Being Reshaped, WASH. POST, June 11, 2007, at Al (citing administration's goal of "employing the nation's 54 immigration courts, with 226 judges, as a central tool of its anti-terrorism policies, using them to deport hundreds of noncitizens who were detained as terrorism suspects but were not charged with crimes").
94. See Dan Eggen & John Solomon, Justice Dept.'s Focus Has Shifted: Terror, Immigration Are Current Priorities, WASH. POST, Oct. 17,2007, at Al (citing David Laufman, a former senior DOJ official).
95. Deirdre Davidson, In the Line of Fire, LEGAL TIMES, Sept. 2, 2002, at 1 (quoting Elisa Massimino, director of the Washington, D.C. office of the Lawyers Committee for Human Rights); see also Mintz, supra note 43.
96. See Legomsky, supra note 40, at 376; see also infra Part I.A.d.
97. Palmer et al., supra note 6, at 28.
98. -8 C.F.R. §1003.1(e)(4) (2008).
99. See id. § 1003.1(e)(6)(i)-(vi) (allowing cases to go to three-member panels only where they exhibited "(i) The need to settle inconsistencies among the rulings of different immigration judges; (ii) The need to establish a precedent construing the meaning of laws, regulations, or procedures; (iii) The need to review a decision by an immigration judge or the Service that is not in conformity with the law or with applicable precedents; (iv) The need to resolve a case or controversy of major national import; (v) The need to review a clearly erroneous factual determination by an immigration judge; or (vi) The need to reverse the decision of an immigration judge or the Service, other than a reversal under § 1003.1(e)(5)").
100. Id. § 1003.1(e)(4).
101. See Stephen H. Legomsky, Learning to Live with Unequal Justice: Asylum and the Limits to Consistency, 60 STAN. L. REV. 413, 431 (2007) (discussing the costs of moving from three-member to single-member decisions).
102. Id. at 455-57.
103. See Ramji-Nogales et al., supra note 16, at 351 (explaining how streamlining, and summary affirmance, became the dominant method of adjudication at the Board);
104. Acer, supra note 18, at 1386 (noting that after streamlining, only 2-4 percent of asylum claims were granted by the Board).
105. -8 C.F.R. § 1003.1(e)(4)(i).
106. See Immigration Litigation Reduction Hearing, supra note 16, at 6 (testimony of John M. Walker, Jr., C.J., U.S. Court of Appeals for the Second Circuit);
107. Ramji-Nogales et al., supra note 16, at 353;
108. see also Getter & Peterson, supra note 18 (noting that "two Board members each signed more than fifty cases in one day, which equates to 'a decision nearly every 10 minutes if [one] worked a nine-hour day without a break'").
109. See generally supra notes 25-31 (discussing the core requirements of the rule of law in the U.S. legal system).
110. -8 C.F.R. § 1003.1(e)(8).
111. Id. § 1003.1(e)(4)(ii).
112. Neuman, supra note 34, at 633; see also Mintz, supra note 43 (noting that the Board "was considered the check against uneven rulings from immigration judges who have been found to have wildly divergent approaches to asylum claims throughout the country," and citing the concern of the President of the National Association of Immigration Judges that after streamlining her decisions no longer receive the " polishing" they used to get from the Board).
113. See Mintz, supra note 43 (quoting a Ninth Circuit judge who stated, "We used to receive thoughtful decisions from the [Board]. Now, because of streamlining, we're not getting the [Board's] point of view."). The Supreme Court held that the Board's precedential decisions should be accorded Chevron deference in INS v. Aguirre-Aguirre, 526 U.S. 415, 425 (1999). Still, the level of Chevron deference, if any, that a summarily affirmed immigration judge decision should be accorded is open to question.
114. See Smriko v. Ashcroft, 387 F.3d 279, 289 n.6 (3d Cir. 2004).
115. See 8 C.F.R. § 1003.1(e).
116. Board of Immigration Appeals: Procedural Reforms to Improve Case Management, 67 Fed. Reg. 7,309, 7,309-13 (Feb. 19, 2002) (to be codified at 8 C.F.R. pts. 3, 280). In response to widespread criticism of the decision to reduce the number of Board members, Attorney General Gonzales announced that he would increase the number of Board members.
117. See Press Release, 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 [hereinafter Gonzales Press Release]. On May 30, 2008, the Attorney General appointed five new Board members, bringing the total to thirteen. Press Release, Dep't of Justice, Attorney General Mukasey Appoints Five New Members to the Board of Immigration Appeals (May 30, 2008), http://www.usdoj.gov/eoir/press/08/AG-BIAAppointments.pdf.
118. See Legomsky, supra note 29, at 376;
119. see also Michelle Benedetto, Crisis on the Immigration Bench: An Ethical Perspective, 73 BROOK. L. REV. 467, 477-78 (2008). A former Board member noted that "[i]t was a purge. They brought in people who have all worked from one side of the issue, the government perspective." Id. at 477 n.65.
120. See, e.g., Benedetto, supra note 110, at 478;
121. Legomsky, supra note 29, at 376-77.
122. See Levinson, supra note 80, at 1156 (citing Board of Immigration Appeals: Procedural Reforms to Improve Case Management, 67 Fed. Reg. 54,878,54,893 (Aug. 26, 2002)).
123. See id. (citing 67 Fed. Reg. at 54,893).
124. Legomsky, supra note 29, at 379.
125. Id. (quoting Levinson, supra note 80, at 1161).
126. Id. at 377.
127. Id.
128. Emma Schwartz & Jason McLure, DOJ Made Immigration Judgeships Political, LEGAL TIMES, May 28, 2007, at 12, available at http://www.law.com/jsp/article.jsp?id=1180429527384.
129. Goldstein & Eggen, supra note 90.
130. Schwartz & McLure, supra note 118, at 12.
131. OFFICE OF PROF'L RESPONSIBILITY AND OFFICE OF THE INSPECTOR GEN., U.S. DEP'T OF JUSTICE, AN INVESTIGATION OF ALLEGATIONS OF POLITICIZED HIRING BY MONICA GOODLING AND OTHER STAFF IN THE OFFICE OF THE ATTORNEY GENERAL 108 (2008), http://www.usdoj.gov/oig/special/s0807/final.pdf [hereinafter DOJ INVESTIGATIVE REPORT].
132. Id. at 95.
133. Id. at 115. The report collected evidence showing that the political and ideological views considered included whether the candidates were "conservative" and "tough on immigration enforcement," among other partisan criteria.
134. Id. at 95, 108-09. The Report concluded that from 2003 to 2006 "the Attorney General's Office controlled the process for selecting [immigration judges], soliciting candidates, and informing EOIR [the office which hired immigration judges] who was to be hired for each position."
135. Id. at 116. The report also noted that Goodling selected candidates for vacant Board positions based on political or ideological considerations, though ultimately only one of those candidates was appointed to the Board (and was appointed after the illegal politicized process had been halted).
136. Id. at 110, 112;
137. see also Bennedetto, supra note 110, at 490 (noting that all of the immigration judges "with immigration law backgrounds appointed by the Bush administration since 2001 had prosecutorial experience"). Immigration judges with prosecutorial experience in the immigration field had been found to be 24 percent more likely to reject asylum claims than those without such prosecutorial experience.
138. See id;
139. see also Ramji-Nogales et al., supra note 16, at 345-46.
140. See Charlie Savage, Vetted Judges More Likely to Reject Bids for Asylum, N.Y. TIMES, Aug. 24, 2008, at A17, available at http://www.nytimes.com/2008/08/24/washington/24judges.html.
141. DOJ INVESTIGATIVE REPORT, supra note 121, at 91-92 ("The fact that so many slots have remained vacant for so long is beginning to have a measurable impact on the Immigration Courts because the pending case backlog is beginning to grow." (quoting a departmental official)).
142. See Goldstein & Eggen, supra note 90 (describing the impact of the streamlining reforms in the immigration system, noting that "[t]he infusion of politics into the selection of [immigration] judges began in the midst of this transformation of the court system," and concluding that "[t]hese appointments, all made by the attorney general, have begun to reshape a system of courts in which judges, ruling alone, exercise broad powers-deporting each year nearly a quarter-million immigrants, who have limited rights to appeal and no right to an attorney").
143. See Goldstein & Eggen, supra note 90;
144. see also DOJ INVESTIGATIVE REPORT, supra note 121, at 97 (quoting an email from a DOJ official stating that immigration judge positions needed to be filled quickly to facilitate "the Administration's effort to ensure that illegal aliens who pose a danger to us are deported in an expeditious manner");
145. Kevin R. Johnson & Bernard Trujillo, Immigration Reform, National Security After September 11, and the Future of North American Integration, 91 MINN. L. REV. 1369, 1396-1403 (2007) (contending that the "war on terror" came to dominate the national discussion of immigration reform after Sept. 11, 2001, and that the Bush administration repeatedly invoked the plenary power doctrine to justify its border control policies). Johnson and Trujillo also note that "[t]here is no evidence that any actual terrorists have been deported."
146. Id. at 1394.
147. See Neuman, supra note 34, at 620 (discussing the rule-bound nature of the deportation system and explaining that the agency's interpretation of deportation grounds was traditionally subject to judicial review).
148. Id.
149. See DOJ INVESTIGATIVE REPORT, supra note 121, at 121-22.
150. See Brian Z. Tamanaha, The Perils of Pervasive Legal Instrumentalism 59 (St. John's Univ. Sch. of Law Legal Studies Research Paper Series, Paper No. 05-11, 2005), available at http://ssrn.com/ abstract=725582.
151. See generally DOJ INVESTIGATIVE REPORT, supra note 121 (noting that although neither Ashcroft nor Gonzales were personally involved in selecting candidates, members of both Attorney Generals' staff were directly involved).
152. TAMANAHA, supra note 4, at 1.
153. See 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 four goals of administrative and judicial review procedures as accuracy, efficiency, acceptability, and consistency; and describing the accuracy goal as reflecting "the need to ascertain the truth," the efficiency goal as reflecting "a desire to minimize not only the monetary costs to the parties and to the public, but also the costs of the waiting time and the decisionmakers' time," the acceptability goal as recognizing "the importance of having a procedure that the litigants and the general public perceive as fair," and the consistency goal as assuring "equal treatment of similarly situated litigants" (internal citations omitted)).
154. Susan Burkhardt, The Contours of Conformity: Behavioral Decision Theory and the Pitfalls of the 2002 Reforms of Immigration Procedures, 19 GEO. IMMIGR. L.J. 35, 68-90 (2004).
155. Letter from the Am. Immigration Lawyers Assoc. to Charles K. Adkins-Blanch, Gen. Counsel, Executive Office for Immigration Review (Mar. 20, 2002), available at http://www.aila.org/Content/default.aspx?docid=2093 (commenting on Board of Immigration Appeals: Procedural Reforms to Improve Case Management, 67 Fed. Reg. 7309, 7310 (Feb. 19, 2002)).
156. Immigration Litigation Reduction Hearing, supra note 16, at 27 (statement of Jonathan Cohn, Deputy Assistant Att'y Gen., Civil Division, U.S. Dep't of Justice). For instance, shortly after the streamlining reforms were implemented, the number of immigration appeals filed in the federal circuit courts increased by 294 percent (from 1642 cases in 2001 to 6465 cases in 2002). COMM. ON THE FED. COURTS, ASS'N OF THE BAR OF THE CITY OF N.Y., THE SURGE OF IMMIGRATION APPEALS AND ITS IMPACT ON THE SECOND CIRCUIT COURT OF APPEALS 4 (2004), http://www.abcny.org/pdf/report/AppealSurgeReport.pdf. This trend continued in 2003, with appeals filed in the federal courts increasing an additional 35 percent (from 6465 to 8750). Id.
157. See Immigration Litigation Reduction Hearing, supra note 16, at 16 (testimony of John M. Walker, Jr., C.J., U.S. Court of Appeals for the Second Circuit);
158. see also Mintz, supra note 43 (describing the claims of critics who argue that the streamlining reforms have undermined the ability of the Board to catch mistakes by overworked immigration judges and shifted that role to the federal judges, and stating that "[s]ince the appeals board downsized its chief mechanism for catching its own mistakes, immigrant rights advocates say they've had no choice but to go above the board to the next level-the federal courts of appeal").
159. Immigration Litigation Reduction Hearing, supra note 16, at 62 (statement of Jonathan Cohn, Deputy Assistant Att'y Gen., Civil Division, U.S. Dep't of Justice).
160. Id. at 8 (statement of Carlos T. Bea, C.J., U.S. Court of Appeals for the Ninth Circuit).
161. See id. at 5 (statement of John M. Walker, Jr., C.J., U.S. Court of Appeals for the Second Circuit);
162. id. at 9 (statement of Carlos T. Bea, C.J., U.S. Court of Appeals for the Ninth Circuit);
163. see also John R.B. Palmer, The Second Circuit's "New Asylum Seekers": Responses to an Expanded Immigration Docket, 55 CATH. U. L. REV. 965, 966-67 (2006).
164. Benslimane v. Gonzales, 430 F.3d 828, 829 (7th Cir. 2005).
165. For example, the New York Times recently reported that one immigration judge mixed up the records of an asylum seeker, confusing the deaths of her father and husband. Nina Bernstein, New York's Immigration Courts Lurch Under a Growing Burden, N.Y. TIMES, Oct. 8, 2006, § 1, at 1. The judge then "cited his own mistake as evidence that [the claimant's] account was inconsistent."
166. Id. at 39.
167. Recinos De Leon v. Gonzales, 400 F.3d 1185, 1187 (9th Cir. 2005).
168. Neuman, supra note 34, at 633 (quoting Iao v. Gonzales, 400 F.3d 530, 533-35 (7th Cir. 2005)). The subsequent outcry over the quality of decisions and adjudicators was so strong that the Attorney General was forced to carry out an investigation into the conduct of immigration judges.
169. See Gonzales Press Release, supra note 109.
170. See Ramji-Nogales et al., supra note 16, at 299-302.
171. Id. at 301.
172. Id. at 305.
173. Benslimane v. Gonzales, 430 F.3d 828, 830 (7th Cir. 2005).
174. Ramji-Nogales et al., supra note 16, at 299-300.
175. See Neumann, supra note 34, at 626-27.
176. Id. at 625.
177. Albathani v. INS, 318 F.3d 365, 376 (1st Cir. 2003). For cases rejecting due process claims, see, for example, Yuk v. Ashcroft, 355 F.3d 1222, 1229-32 (10th Cir. 2004);
178. Loulou v. Ashcroft, 354 F.3d 706, 708-09 (8th Cir. 2003);
179. Dia v. Ashcroft, 353 F.3d 228, 238-45 (3d Cir. 2003);
180. Denko v. INS, 351 F.3d 717, 725-30 (6th Cir. 2003);
181. Falcon Caniche v. Ashcroft, 350 F.3d 845, 849-52 (9th Cir. 2003);
182. Georgis v. Ashcroft, 328 F.3d 962, 966-67 (7th Cir. 2003);
183. Mendoza v. United States Attorney General, 327 F.3d 1283, 1288-89 (11th Cir. 2003);
184. Soadjede v. Ashcroft, 324 F.3d 830, 831-33 (5th Cir. 2003);
185. Albathani, 318 F.3d at 375-79.
186. See Zhang v. DOJ, 362 F.3d 155, 157 (2d Cir. 2004).
187. See Albathani, 318 F.3d at 378;
188. Neuman, supra note 34, at 632.
189. -332 U.S. 194, 196-97 (1947) ("It will not do for a court to be compelled to guess at the theory underlying the agency's action; nor can a court be expected to chisel that which must be precise from what the agency has left vague and indecisive.");
190. see also Albathani, 318 F.3d at 375.
191. Zhang, 362 F.3d at 158.
192. Id. (quoting Mendoza, 321 F.3d at 1289).
193. See, e.g., Alexander III, supra note 35, at 30-31.
194. Compare Smriko v. Ashcroft, 387 F.3d 279 (3d Cir. 2004),
195. with Tsegay v. Ashcroft, 386 F.3d 1347 (10th Cir. 2004).
196. See Palmer et al., supra note 6, at 30.
197. See infra Part II.A.1.
198. Board of Immigration Appeals: Affirmance Without Opinion, Referral for Panel Review, and Publication of Decisions as Precedents, 73 Fed. Reg. 34,654,34,657 (June 18, 2008) (to be codified at 8 C.F.R. pt. 1003). As noted in note 24, supra, the fate of this proposal remains uncertain as of the publication date of this Article.
199. Board of Immigration Appeals: Procedural Reforms to Improve Case Management, 67 Fed. Reg. 54,878,54,883 (Aug. 26, 2002).
200. Board of Immigration Appeals: Affirmance without Opinion, Referral for Three-Board Member Review, and Publication of Decisions as Precedents, 72 Fed. Reg. 22,810, 22,810 (Apr. 30, 2007) (codified at 8 C.F.R. § 1003.1).
201. See Legomsky, supra note 29, at 400.
202. Lanza v. Ashcroft, 389 F.3d 917, 927-28 (9th Cir. 2004) (internal citations omitted).
203. See, e.g., id. at 924.
204. See, e.g., id. at 923.
205. See, e.g., Tsegay v. Ashcroft, 386 F.3d 1347, 1358 (10th Cir. 2004).
206. See, e.g., Lanza, 389 F.3d at 932;
207. Tsegay, 386 F.3d at 1353.
208. See infra Part II.A.2.
209. See cases cited infra notes 174-78.
210. See, e.g., Tsegay, 386 F. 3d 1347; Ngure v. Ashcroft, 367 F.3d 975 (8th Cir. 2004).
211. See, e.g., Smriko v. Ashcroft, 387 F.3d 279 (3d Cir. 2004); Chong Shin Chen v. Ashcroft, 378 F.3d 1081 (9th Cir. 2004);
212. Haoud v. Ashcroft, 350 F.3d 201 (1st Cir. 2003).
213. Kambolli v. Gonzales, 449 F.3d 454, 459-60 (2d Cir. 2006) (footnotes and citations partially omitted).
214. Id. at 463.
215. See Smriko, 387 F.3d 279;
216. Chong Shin Chen, 378 F.3d 1081;
217. Haoud, 350 F.3d 201. One of the judges sitting on the Third Circuit Smriko panel concurred specially to note that although he had participated in two Eighth Circuit cases that followed Ngure's contrary holding, he had become convinced that the reasoning supporting judicial review in Smriko was "the correct analysis." Smriko, 387 F.3d at 297. The judge later stated that the "Eighth Circuit precedent holding [that judicial review is unavailable] is ill-reasoned and should be overturned." Begna v. Ashcroft, 392 F.3d 301, 305 (8th Cir. 2004).
218. See Immigration Appeals Surge in Courts, THE THIRD BRANCH (Newsletter of the Fed. Courts, Washington, D.C.), Sept. 2003, available at http://www.uscourts.gov/ttb/sep03ttb/ immigration/index.html.
219. Compare Chong Shin Chen, 378 F.3d 1081, with Kambolli, 449 F.3d 454.
220. See Blanco de Beibruno v. Ashcroft, 362 F.3d 272 (4th Cir. 2004);
221. Denko v. INS, 351 F.3d 717 (6th Cir. 2003); Georgis v. Ashcroft, 328 F.3d 962 (7th Cir. 2003).
222. See Blanco de Beibruno, 362 F.3d at 281 ("If the [Board]'s practices result in a decision that allows a non-harmless error to slip through, there is always the avenue of an appeal to the courts to correct the error.");
223. Denko, 351 F.3d at 732 (same);
224. Georgis, 328 F.3d at 967 (same). Interestingly, the two remaining circuits with jurisdiction to review immigration claims, the Fifth and the Eleventh, simply reviewed the decision to streamline without first considering whether they had jurisdiction to do so.
225. See Zhu v. Ashcroft, 382 F.3d 521 (5th Cir. 2004); Gonzalez-Oropeza v. Att'y Gen., 321 F.3d 1331 (11th Cir. 2003).
226. See Georgis, 328 F.3d at 967 ("[I]t makes no practical difference whether the [Board] properly or improperly streamlined review."); Denko, 351 F.3d at 732 (quoting Georgis); Blanco de Belbruno, 362 F.3d at 281 (finding that streamlining did not alter the court's ability to scrutinize Board decisions).
227. See Ngure v. Ashcroft, 367 F.3d 975, 986 (8th Cir. 2004) ("[A]n appeal to determine whether the [Board] was correct to find that the [immigration judge's] decision was correct serves 'no purpose whatsoever' when the court can directly review the [immigration judge's] decision.");
228. see also Kambolli, 449 F.3d at 462 (analysis of whether streamlining was proper "will hew closely to a reviewing court's examination of the underlying... claims," as "[a]ny reviewing court holding, for example, that the [immigration judge] was wrong to deny asylum will of course reach the conclusion that the [Board] member erred in affirming unilaterally the erroneous decision of an [immigration judge]");
229. Tsegay v. Ashcroft, 386 F.3d 1347, 1357 (10th Cir. 2004).
230. See infra Part II.B.2.a.
231. Compare Kambolli, 449 F.3d at 465 ("[The court lacks] jurisdiction to review decisions by single [Board] members to affirm without referral to three-member [Board] panels. . . ."),
232. with Chong Shin Chen v. Ashcroft, 378 F.3d 1081, 1087-88 (9th Cir. 2004) (finding jurisdiction because Board's summary affirmance was a nondiscretionary agency determination).
233. Abbott Labs. v. Gardner, 387 U.S. 136, 140 (1967).
234. -5 U.S.C. § 702 (2006).
235. Id. A decision of the Board is an agency action under the APA,
236. id. § 701, and the Board's decision to streamline is a "final agency action" which may be reviewed under the APA.
237. See Tsegay, 386 F.3d at 1354.
238. See 5 U.S.C. § 701(a)(1).
239. See id. § 701(a)(2).
240. See Smriko v. Ashcroft, 387 F.3d 279, 291 (3d Cir. 2004);
241. Tsegay, 386 F.3d at 1354-55.
242. -5 U.S.C. § 702(a)(2).
243. Heckler v. Chaney, 470 U.S. 821, 830 (1985).
244. Id. at 830. At issue in Heckler was the FDA's decision not to institute enforcement proceedings for drugs used in administering lethal injections. The Court there found that the FDA did not provide sufficient law for a reviewing court to judge the agency's decision not to bring enforcement proceedings. Id. at 831, 837-38.
245. Id. at 831.
246. Id. at 831-32.
247. Id.
248. Id. (citing Vt. Yankee Nuclear Power Corp. v. Natural Res. Def. Council, Inc., 435 U.S. 519, 543 (1978);
249. Train v. Natural Res. Def. Council, 421 U.S. 60, 87 (1975)).
250. Id. at 826, 830-31.
251. Id. at 833, 852.
252. Id. at 831.
253. Id. at 832.
254. See, e.g., Denko v. INS, 351 F.3d 717, 731 (6th Cir. 2003);
255. see also Batalova v. Ashcroft, 355 F.3d 1246, 1252 (10th Cir. 2004).
256. Denko, 351 F.3d at 731.
257. Ngure v. Ashcroft, 367 F.3d 975, 985 (8th Cir. 2004).
258. Batalova, 355 F.3d at 1252 (quoting Respondent's Brief).
259. See Ngure, 367 F.3d at 984.
260. See 8 C.F.R. § 1003.1(e)(4)(ii) (2008).
261. See, e.g., Ngure, 367 F.3d at 986.
262. Id.
263. See id. at 987.
264. Kambolli v. Gonzales, 449 F.3d 454, 464 (2d Cir. 2006). These cases cite the section of the streamlining regulations allowing the issuance of a summary affirmance where "[t]he factual and legal issues raised on appeal are not so substantial that the case warrants the issuance of a written opinion in the case." 8 C.F.R. § 1003.1(e)(4)(i)(B).
265. See Ngure, 367 F.3d at 983.
266. Id. (quoting Vt. Yankee Nuclear Power Corp. v. Natural Res. Def. Council, Inc., 435 U.S. 519, 543, 525 (1978)).
267. Kambolli, 449 F.3d at 463 & n.15, 464.
268. See supra Part I.A.2;
269. see also Legomsky, supra note 29, at 400.
270. See Smriko v. Ashcroft, 387 F.3d 279 (3d Cir. 2004);
271. Chong Shin Chen v. Ashcroft, 378 F.3d 1081 (9th Cir. 2004);
272. Haoud v. Ashcroft, 350 F.3d 201 (1st Cir. 2003).
273. See, e.g., Smriko, 387 F.3d at 292-94;
274. Haoud, 350 F.3d at 206.
275. See, e.g., Smriko, 387 F.3d at 292-95.
276. Id. at 291 (quoting 8 U.S.C. § 1252(b)(9) (2000)).
277. Id. at 292 n.8.
278. Id.
279. See id. at 291.
280. -519 U.S. 26 (1996).
281. Id. at 32.
282. Heckler v. Chaney, 470 U.S. 821, 835 (1985).
283. Smriko, 387 F.3d at 290 (citing 8 C.F.R. § 1003.1(e)(4)(i) (2008)).
284. Id. at 292-93.
285. E.g., Denko v. INS, 351 F.3d 717, 732 (6th Cir. 2003).
286. Id. at 731;
287. see also Smriko, 387 F.3d at 292 ("We agree with the Tenth Circuit Court of Appeals that [the streamlining criteria] have 'nothing to do with the [Board's] caseload or other internal circumstances.'" (quoting Batalova v. Ashcroft, 355 F.3d 1246, 1253 (10th Cir. 2004))).
288. Smriko, 387 F.3d at 293;
289. see also 8 C.F.R. §1003.1(e)(4)(i) (2008);
290. Falcon Caniche v. Ashcroft, 350 F.3d 845, 857 (9th Cir. 2003) (Nelson, J., concurring in part and dissenting in part) ("[T]he streamlining criteria are mandatory, qualifying criteria. A case must meet those criteria before a [Board] member may streamline.").
291. Smriko, 387 F.3d at 293.
292. Id.
293. See Haoud v. Ashcroft, 350 F.3d 201, 206 (1st Cir. 2003) ("[T]he Board's own regulation provides more than enough 'law' by which a court could review the Board's decision to streamline. . . . Especially when the Board's review of an [immigration judge's] decision often hinges on Circuit court precedent, we are well-equipped, both statutorily and practically, to review a decision to streamline.");
294. see also Batalova 355 F.3d at 1253 (stating the issues raised in the streamlining criteria "are the kinds of issues we routinely consider in reviewing cases");
295. Falcon Carriche, 350 F.3d at 858 (Nelson, J., concurring in part and dissenting in part) (stating that generally "review of the streamlining criteria requires nothing more than the application of law to facts").
296. Smriko, 387 F.3d at 295.
297. Haoud, 350 F.3d at 205 (quoting Nelson v. INS, 232 F.3d 258, 262 (1st Cir. 2000)).
298. Smriko, 387 F.3d at 297.
299. Again, the [s]treamlining procedures are used only when the result reached by the [immigration judge] is correct, any errors are harmless or nonmaterial, and either the issue is controlled by precedent and does not require application to novel facts or the factual and legal questions are insubstantial and do not warrant three-member review. Denko v. INS, 351 F.3d 717, 731-32 (6th Cir. 2003).
300. Kambolli v. Gonzales, 449 F.3d 454, 462 n.13 (2d Cir. 2006);
301. see also Ngure v. Ashcroft, 367 F.3d 975, 986 (8th Cir. 2004) ("[A]n appeal to determine whether the [Board] was correct to find that the [immigration judge's] decision was correct serves 'no purpose whatever' when the court can directly review the [immigration judge's] decision.");
302. Falcon Carriche, 350 F.3d at 855 ("The decision to streamline becomes indistinguishable from the merits.").
303. See Kambolli, 449 F.3d at 460 (characterizing the "threshold question" as "what recourse a petitioner has, if any, upon a Board member's decision to resolve an appeal himself and not to refer the case to a three-member panel").
304. See id. at 462 n.13 ("Any reviewing court holding, for example, that the [immigration judge] was wrong to deny asylum will of course reach the conclusion that the [Board] member erred in affirming unilaterally the erroneous decision of an [immigration judge] pursuant to subsection (e)(4) or (e)(5).").
305. See, e.g., id. at 462.
306. Smriko v. Ashcroft, 387 F.3d 279, 297 (3d Cir. 2004);
307. see also supra note 107 (discussing Chevron deference to Board and immigration judge decisions).
308. -537 U.S. 12 (2002).
309. Id. at 16.
310. Id. at 13-14.
311. Id. at 17.
312. Id. at 16.
313. Id. (quoting SEC v. Chenery Corp., 318 U.S. 80, 88 (1943)).
314. Id.
315. Id. at 17.
316. Id. at 18.
317. Id. at 17.
318. See Chong Shin Chen v. Ashcroft, 378 F.3d 1081, 1088 (9th Cir. 2004) ("When confronted with a novel legal issue, we could decide the case based on application of law to the facts. However, we believe the better course in this case is to remand to the agency for its consideration of the issue in the first instance. This is particularly true where, as in the case at hand, the central question is application of the [Boardj's own precedent.").
319. Albathani v. INS, 318 F.3d 365, 378 (1st Cir. 2003) (quoting SEC v. Chenery, 332 U.S. 194, 196 (1947);
320. see also Fed. Power Comm'n v. Texaco, Inc., 417 U.S. 380, 397 (1974)).
321. See, e.g., id. ("[I]f the [Board] does not independently state a correct ground for affirmance in a case in which the reasoning proffered by the [immigration judge] is faulty, the [Board] risks reversal on appeal.").
322. -547 U.S. 183 (2006).
323. -486 F.3d 1163 (9th Cir. 2007).
324. -547 U.S. at 183.
325. Id. at 186-87.
326. See Thomas v. Gonzales, 409 F.3d 1177, 1188 (9th Cir. 2005).
327. Id. at 1181-82.
328. Id. at 1182.
329. Id. at 1183-84.
330. Id.
331. Id. at 1183.
332. Id. at 1184.
333. Id. at 1182, 1187.
334. Id. at 1189.
335. Gonzales v. Thomas, 547 U.S. 183, 186 (2006) (per curiam).
336. Id. at 185.
337. Id. at 186-87.
338. Thomas v. Gonzales, 409 F.3d 1177, 1182 (9th Cir. 2005).
339. -486 F.3d 1163 (9th Cir. 2007).
340. Id. at 1165.
341. Id.
342. Id.
343. Id.
344. Id.
345. Keisler v. Hong Yin Gao, 128 S. Ct. 345 (2007) (mem.) (granting certiorari and vacating and remanding case for further consideration in light of Gonzales v. Thomas).
346. -440 F.3d 62, 70-71 (2d Cir. 2006), vacated and remanded sub nom.
347. Keisler v. Hong Yin Gao, 128 S. Ct. 345 (2007).
348. Petition for Writ of Certiorari at 3-4, 19-21, Keisler, 128 S. Ct. 345 (No. 06-1264), 2007 WL 835007.
349. The implications of the Supreme Court's decisions in Gonzales v. Thomas and Keisler v. Hong Yin Gao regarding the balance of power between agencies and courts and their respective interpretive authority bear further study.
350. Smriko v. Ashcroft, 387 F.3d 279, 295 (3d Cir. 2004) (citing "the Supreme Court's longstanding requirement . . . that an agency comply with its own regulations").
351. The Heckler Court's struggle to reconcile the tension between allowing an agency to act unfettered and allowing judicial supervision of agency action raised the possibility of whether an agency can avoid judicial review by simply failing to set forth criteria for its action by which its decision making can be judged by others.
352. See Heckler v. Chaney, 470 U.S. 821, 830-31 (1985). Similarly, the decision in Smriko also highlights the problem raised in the reviewability cases that conclude that an agency's intent is relevant to whether judicial review of its decision making is proper.
353. See Smriko, 387 F.3d at 295 ("If we routinely begin to look to an agency's intent (with respect to whether its own compliance with its regulations should be subject to judicial review) in promulgating regulations, as Ngure would have us do, we may well find that agencies never desire judicial review, and would rather be left unchecked in the exercise of their powers.").
354. See supra Part II.B.2.c.
355. See Immigration Litigation Reduction Hearing, supra note 16, at 193 (statement of John M. Walker, Jr., C.J., U.S. Court of Appeals for the Second Circuit) (discussing the proposed "Certificate of Reviewability" procedure);
356. see also Jill E. Family, Stripping Judicial Review During Immigration Reform: The Certificate of Reviewability, 8 NEVADA L.J. 499 (2008).
357. Immigration Litigation Reduction Hearing, supra note 16, at 193 (statement of John M. Walker, Jr., C.J., U.S. Court of Appeals for the Second Circuit).
358. Id. This has been compared to the issuance of a certificate of appealability under 28 U.S.C. § 2254 (habeas corpus petitions). But petitioners filing habeas claims have already had the opportunity to be heard by Article III or state judges and other opportunities for appeal.
359. See id. In contrast, petitioners from Board decisions would have had only the opportunity for review by administrative adjudicators.
360. See Immigration Litigation Reduction Hearing, supra note 16, at 29 (statement of David A. Martin, Professor, University of Virginia School of Law).
361. See, e.g., Ernesto Londono, C.S. Steps up Deportation of Immigrant Criminals, WASH. POST, Feb. 27, 2008, at A1 (forecasting greatly increased caseloads in the immigration system due to new deportation policies).
362. -389 F.3d 917, 927-29 (9th Cir. 2004) (citations omitted). For cases in other circuits, see Zhu v. Ashcroft, 382 F.3d 521 (5th Cir. 2004);
363. Haoud v. Ashcroft, 350 F.3d 201 (1st Cir. 2003).
364. See Haoud, 350 F.3d at 205 ("[T]he [affirmance without opinion] cannot be used to deny our legitimate review power if we are left without a proper basis to determine our own jurisdiction....").
365. The brief stated that "the Board has altered its practices and determined that in cases where the [immigration judge's] decision rests on both reviewable and nonreviewable grounds for denying relief from removal," summary affirmance procedures should not be utilized and that the Department would consent to remand in those cases. Brief for the Respondent in Opposition to Petition for Writ of Certiorari at 20, Kebede v. Ashcroft, 97 F. App'x 454 (4th Cir. 2004), (No. 04-280), 2005 WL 438002. This concession by the government, contained in a response to a petition for a writ of certiorari filed by this author, is now being used by immigrants' advocates as a basis for remand. See MARY KENNEY, AM. IMMIGRATION LAW FOUND., BIA "AFFIRMANCE WITHOUT OPINION": WHAT FEDERAL COURT CHALLENGES REMAIN? PRACTICE ADVISORY 3-4 (2005), http://www.ailf.org/lac/pa/lac-pa-042705.pdf (urging attorneys handling "jurisdictional conundrum" cases to request that the government join a motion for remand based on the government's concession in Kebede v. Gonzales).
366. See Cruz v. Att'y Gen., 452 F.3d 240, 242 (3d Cir. 2006);
367. Cuellar Lopez v. Gonzales, 427 F.3d 492, 493 (7th Cir. 2005).
368. -8 C.F.R. § 1003.1(e)(4)(i)(B) (2008).
369. See, e.g., Id. §1003.1(e)(4)(i)(A).
370. See, e.g., Thomas v. Gonzales, 409 F.3d 1177, 1182, 1184 (9th Cir. 2005);
371. Haoud, 350 F.3d at 206;
372. see also supra notes 260-74 and accompanying text (discussing Thomas v. Gonzales and the Supreme Court's disagreement with the Ninth Circuit).
373. Haoud, 350 F.3d at 205.
374. The Ninth Circuit was presented with a similar scenario in Chong Shin Chen v. Ashcroft, 378 F.3d 1081, 1083 (9th Cir. 2004).
375. -8 C.F.R. § 1003.1(e)(4)(i)(A) (allowing streamlining only if the "issues raised on appeal are squarely controlled by existing Board or federal court precedent and do not involve the application of precedent to a novel factual situation").
376. -8 U.S.C. § 1252(b)(4)(D) (2006);
377. see also Thomas, 409 F.3d at 1182 (applying the "substantial evidence" standard of review).
378. See 8 C.F.R. § 1003.1(d)(3)(i); Board of Immigration Appeals: Procedural Reforms to Improve Case Management, 67 Fed. Reg. 54,878, 54,888-91 (Aug. 26, 2002) (instituting clearly erroneous review for the Board of an immigration judge's factual findings). This is less deferential than the "substantial evidence" standard that the federal courts must use when reviewing agency factual findings.
379. See Dickinson v. Zurko, 527 U.S. 150, 153-54 (1999).
380. -127 F. App'x 815 (6th Cir. 2005).
381. Id. at 819 n.2.
382. See Palmer, supra note 141, at 967 (noting that "[o]ne of the most striking aspects" of the immigration cases reaching the circuits "is the degree to which they are focused on questions of evidence and credibility").
383. Ilene Durst, Lost in Translation: Why Due Process Demands Deference to the Refugee's Narrative, 53 RUTGERS L. REV. 127, 128 (2000).
384. Immigration Litigation Reduction Hearing, supra note 16, at 106 (statement of David A. Martin, Professor, University of Virginia School of Law).
385. -8 C.F.R. § 1003.1(e)(4)(i)(B) (2008).
386. See Kambolli v. Gonzales, 449 F.3d 454, 464-65 (2d Cir. 2006) (immigration judge's decision supported by substantial evidence and no prejudice in reviewing merits alone in most cases);
387. Tsegay v. Ashcroft, 386 F.3d 1347, 1357 (10th Cir. 2004) (review of streamlining not necessary to eliminate substantial prejudice);
388. Blanco de Beibruno v. Ashcroft, 362 F.3d 272, 281 (4th Cir. 2004) (review of streamlining not necessary where immigration judge did not err and court could meaningfully review decision).
389. See Kambolli, 449 F.3d at 462 n.13;
390. Tsegay, 386 F.3d at 1355-58;
391. Blanco de Beibruno, 362 F.3d at 282.
392. See discussion supra Part I.A.1.c.
393. See Kambolli, 449 F.3d at 462 n.13;
394. Tsegay, 386 F.3d at 1358;
395. Blanco de Beibruno, 362 F.3d at 282.
396. Ngure v. Ashcroft, 367 F.3d 975, 988 (8th Cir. 2004).
397. Kambolli, 449 F.3d at 462 n.13.
398. See, e.g., Smriko v. Ashcroft, 387 F.3d 279 (3d Cir. 2004);
399. Chong Shin Chen v. Ashcroft, 378 F.3d 1081 (9th Cir. 2004);
400. Haoud v. Ashcroft, 350 F.3d 201 (1st Cir. 2003).
401. This Section draws upon the discretionary models discussed in Neuman, supra note 34, at 612-14.
402. See Smriko, 387 F.3d at 292-93;
403. Denko v. INS, 351 F.3d 717, 731-32 (6th Cir. 2003).
404. Board of Immigration Appeals: Streamlining, 64 Fed. Reg. 56,135,56,136 (Oct. 18, 1999);
405. see also List of Streamlining Categories, http://www.usdoj.gov/ eoir/vll/genifo/stream.htm (listing categories of cases eligible for streamlining for various years) (last visited Mar. 13, 2009).
406. The current streamlining regulations use the word "shall," indicating that summary affirmances are currently mandatory, not discretionary, when certain legal criteria are met. 8 C.F.R. § 1003.1(e)(4) (2008). Since the current regulations intertwine the decision on the form of the opinion with the decision on the merits, the DOJ would have to modify its regulations to clearly delineate between merits decisions, eligibility criteria, and discretionary determinations.
407. See Neuman, supra note 34, at 615 & n.8.