Restructuring immigration adjudication

Duke Law Journal

Volumn 59, Issue 8, 2010, Pages 1635-1721

  Legomsky, Stephen H ^a  

^a WASHINGTON UNIVERSITY SCHOOL OF LAW   (United States)

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EID: 77955139186     PISSN: 00127086     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (371)

1. Immigration and Nationality Act, Pub. L. No. 82-414, 66 Stat. 163 (1952) (codified as amended at 8 U.S.C. §§ 1101-537 (2006)).
2. E.g., 6 C.F.R. (Department of Homeland Security).
3. 8 C.F.R. (Department of Justice).
4. 20 C.F.R. (Department of Labor).
5. 22 C.F.R. (Department of State).
6. For example, the grounds on which a noncitizen may be deported are listed in 8 U.S.C. § 1227(a), but many of the provisions for discretionary relief in these cases are scattered throughout the statute. §§ 1158, 1182(h), 1229b, 1229c, 1255, 1259. To receive asylum, one must be a "refugee," § 1158(b)(1)(A), but the term "refugee" is defined in § 1101(a)(42). The main requirements for the various classes of "nonimmigrant" temporary visitors are laid out in § 1101(a)(15), but numerous other requirements for those same admissions appear in § 1184.
7. Two of the most frequent remedies requested in removal proceedings, for example, are asylum and cancellation of removal. The former requires a showing of "refugee" status, which in turn requires a "well-founded fear of persecution,". The latter requires a showing of "exceptional and extremely unusual hardship.".
8. In fiscal year 2008, more than 1.1 million people were admitted to the United States as lawful permanent residents, OFFICE OF IMMIGRATION STATISTICS, U.S. DEP'T OF HOMELAND SEC., 2008 YEARBOOK OF IMMIGRATION STATISTICS 5 tbl.1 (2009), available at http://www.dhs.gov/xlibrary/assets/statistics/yearbook/2008/ois_yb_2008.pdf, and another 60,000 as refugees,. There were over 175 million "nonimmigrant" (temporary visitor) admissions.
9. In the same fiscal year, the immigration courts received more than 350,000 "matters," mainly removal proceedings. EXECUTIVE OFFICE FOR IMMIGRATION REVIEW (EOIR), U.S. DEP'T OF JUSTICE, FY 2008 STATISTICAL YEAR BOOK B7 fig.2 (2009), available at http://www.usdoj.gov/eoir/statspub/fy08syb.pdf.
10. See 8 U.S.C. § 1229a. This is only one of several immigration adjudication systems that Congress and the executive branch have constructed. United States Citizenship and Immigration Services (USCIS), an agency of the Department of Homeland Security, engages in informal adjudication when it decides a wide variety of individual applications for immigration benefits, sometimes providing intra-agency appellate review of its decisions.
11. See Homeland Security Act of 2002 § 451, 6 U.S.C. § 271 (2006) (establishing the Bureau of Citizenship and Immigration Services and detailing the functions of the agency and its officers).
12. Notice of Name Change from the Bureau of Citizenship and Immigration Services to United States Citizenship and Immigration Services, 69 Fed. Reg. 60,938 (Oct. 13, 2004). The Department of Labor has its own procedures for deciding-and offering review of its decisions denying-applications for labor certification, a prerequisite to immigration in certain employment-related admission categories. 8 C.F.R. § 212 (2009).
13. 20 C.F.R. § 656 (2009). The State Department has procedures for deciding visa applications and, in its discretion, reviewing visa denials by consular officers. 22 C.F.R. §§ 40-42 (2009). Several entities are involved in the adjudication of citizenship disputes.
14. See generally 7 CHARLES GORDON, STANLEY MAILMAN & STEPHEN YALE-LOEHR, IMMIGRATION LAW AND PROCEDURE (rev. ed. 2009) (covering the law of nationality and citizenship, and the process of naturalization).
15. The USCIS asylum officers have procedures for adjudicating certain asylum applications. 8 C.F.R. § 208. A truly comprehensive study of immigration adjudication in the United States would embrace all of these disparate systems. As a consultant to the Administrative Conference of the United States many years ago, I attempted such an examination, but only with respect to the appellate phase.
16. See Stephen H. Legomsky, Forum Choices for the Review of Agency Adjudication: A Study of the Immigration Process, 71 IOWA L. REV. 1297 (1986). Much of that study has been overtaken by subsequent developments.
17. Several reports and other writings have recommended replacing EOIR with an Article I immigration court that would have trial and appellate divisions. See APPLESEED, ASSEMBLY LINE INJUSTICE: BLUEPRINT TO REFORM AMERICA'S IMMIGRATION COURTS 35-36 (2009), available at http://www.chicagoappleseed.org/uploads/view/75/download:1/assembly_line_injustice_june09.pdf.
18. COMM'N ON IMMIGRATION, ABA, REFORMING THE IMMIGRATION SYSTEM: EXECUTIVE SUMMARY 43-48 (2010), available at http://new.abanet.org/Immigration/Documents/ReformingtheImmigrationSystemExecutiveSummary.pdf.
19. JAYA RAMJI-NOGALES, ANDREW SCHOENHOLTZ & PHILIP SCHRAG, REFUGEE ROULETTE: DISPARITIES IN ASYLUM ADJUDICATION AND PROPOSALS FOR REFORM 103-04 (2009).
20. SELECT COMM'N ON IMMIGRATION & REFUGEE POLICY, U.S. IMMIGRATION POLICY AND THE NATIONAL INTEREST: THE FINAL REPORT AND RECOMMENDATIONS 248-50 (1981).
21. Peter J. Levinson, A Specialized Court for Immigration Hearings and Appeals, 56 NOTRE DAME LAW. 644, 651-54 (1981).
22. Dana Leigh Marks, An Urgent Priority: Why Congress Should Establish an Article I Immigration Court, 13 BENDER'S IMMIGR. BULL. 3, 15-21 (2008).
23. Maurice A. Roberts, Proposed: A Specialized Statutory Immigration Court, 18 SAN DIEGO L. REV. 1, 18-20 (1980).
24. Marshall Fitz & Philip Schrag, Proposed Bill to Create an Independent Immigration Court System (2010) (unpublished manuscript, on file with the Duke Law Journal).
25. see also ABA, DAILY JOURNAL: 2010 MIDYEAR MEETING (2010), available at http://www.abanet.org/leadership/2010/midyear/docs/daily_journal.pdf (showing ABA House of Delegates approval of Resolutions 114A, B, C, D, and F).
26. Press Release, ABA, New Report to ABA Addresses Crisis Within Immigration Removal System (Feb. 2, 2010), available at http://www.abanet.org/abanet/media/release/news_release.cfm?releaseid=870 (summarizing the ABA Commission on Immigration's proposals).
27. cf. Jaya Ramji-Nogales, Andrew I. Schoenholtz & Philip G. Schrag, Refugee Roulette: Disparities in Asylum Adjudication, 60 STAN. L. REV. 295, 386 (2007) (proposing conversion of the BIA to an Article I court). One study proposed the functional equivalent of an Article I court with trial and appellate divisions, also within the executive branch and outside the Department of Justice, but preferred not to call it a "court.".
28. See U.S. COMM'N ON IMMIGRATION REFORM, 1997 REPORT TO CONGRESS: BECOMING AN AMERICAN: IMMIGRATION AND IMMIGRANT POLICY 178-82 (1997). Numerous other studies have criticized core components of the EOIR adjudication system but without proposing specific restructuring options.
29. See, e.g., DORSEY & WHITNEY LLP, STUDY CONDUCTED FOR THE AMERICAN BAR ASSOCIATION COMMISSION ON IMMIGRATION POLICY, PRACTICE AND PRO BONO RE: BOARD OF IMMIGRATION APPEALS: PROCEDURAL REFORMS TO IMPROVE CASE MANAGEMENT (2003), available at http://www.dorsey.com/files/upload/DorseyStudyABA_8mgPDF.pdf.
30. Sydenham B. Alexander III, A Political Response to Crisis in the Immigration Courts, 21 GEO. IMMIGR. L.J. 1 (2006).
31. Michele Benedetto, Crisis on the Immigration Bench: An Ethical Perspective, 73 BROOK. L. REV. 467 (2008).
32. Lenni B. Benson, You Can't Get There from Here: Managing Judicial Review of Immigration Cases, 2007 U. CHI. LEGAL F. 405.
33. For a thoughtful discussion of the many external contributors to EOIR's case management problems.
34. 8 U.S.C. § 1229(a)(1).
35. See E-mail from Peter Vincent, Principal Legal Advisor, Immigration and Customs Enforcement, to Author (Aug. 19, 2009) (on file with the Duke Law Journal).
36. 8 U.S.C. § 1229a(a)(1).
37. Listing office locations). Under the EOIR "Institutional Hearing Program," the immigration judges also conduct removal hearings in prison facilities.
38. 8 C.F.R. §§ 1003.9-.10 (2009).
39. 8 U.S.C. § 1182(a).
40. 8 C.F.R. § 1240.13.
41. Asylum, which is discretionary, enables the recipient to remain in the United States and, subject to some limitations, to bring in a spouse and children. 8 U.S.C. § 1158. Withholding of removal merely immunizes the person from return to the country in which his or her life or freedom is threatened (not from return to a third country), and it makes no provision for the admission of family members.
42. DEP'T OF HOMELAND SEC. & U.S. DEP'T OF JUSTICE, I-589, APPLICATION FOR ASYLUM AND FOR WITHHOLDING OF REMOVAL: INSTRUCTIONS 10 (2009), available at http://www.uscis.gov/files/form/i-589instr.pdf.
43. 8 C.F.R. § 208.14©(1) (assuming inadmissibility or deportability).
44. See DEP'T OF HOMELAND SEC. & U.S. DEP'T OF JUSTICE. EOIR reports that in fiscal year 2008, immigration judges received over 33,000 such affirmative asylum claims and 14,000 defensive claims.
45. 8 C.F.R. § 1003.1(b)(3).
46. EOIR, U.S. Dep't of Justice, Board of Immigration Appeals, http://www.justice.gov/eoir/biainfo.htm (last visited Mar. 28, 2010).
47. 8 C.F.R. § 1003.6(a).
48. Regulations Governing Departmental Organization and Authority, 5 Fed. Reg. 3502, 3503 (Sept. 4, 1940) (codified as amended at 8 C.F.R. pt. 1003).
49. 8 C.F.R. § 1003.1.
50. 8 C.F.R. § 1003.1(d)(3).
51. For a summary of those restrictions, see Jill E. Family, Stripping Judicial Review During Immigration Reform: The Certificate of Reviewability, 8 NEV. L.J. 499, 502-03 (2008).
52. 8 U.S.C. § 1252(b)(2) (2006).
53. The statute authorizes immigration inspectors to order expedited removal when they determine that arriving noncitizens at ports of entry are inadmissible because of either fraud or insufficient entry documents. In those cases the statute dispenses with several of the procedural ingredients otherwise required in removal proceedings, and the process is designed to be fast.
54. Board of Immigration Appeals: Procedural Reforms to Improve Case Management, 67 Fed. Reg. 54,878, 54,880 (Aug. 26, 2002) (codified as amended at 8 C.F.R. pt. 1003).
55. see also EOIR, U.S. DEP'T OF JUSTICE, FACT SHEET: EOIR AT A GLANCE 2 (2009), available at http://www.justice.gov/eoir/press/09/EOIRataGlance121409.pdf ("In most removal proceedings, individuals admit that they are removable, but then apply for one or more forms of relief.").
56. See 8 U.S.C. § 1252(a)(2)(B)(ii) (exempting relief under § 1158(a)-that is, asylum- from the bar on judicial review of discretionary decisions).
57. John R.B. Palmer, The Second Circuit's "New Asylum Seekers": Responses to an Expanded Immigration Docket, 55 CATH. U. L. REV. 965, 966 (2006).
58. 8 U.S.C. § 1252(b)(3)(B).
59. Footnotes omitted.
60. Roger C. Cramton, Administrative Procedure Reform: The Effects of S. 1663 on the Conduct of Federal Rate Proceedings, 16 ADMIN. L. REV. 108, 111-12 (1964).
61. David P. Currie & Frank I. Goodman, Judicial Review of Federal Administrative Action: Quest for the Optimum Forum, 75 COLUM. L. REV. 1, 4 (1975).
62. See EOIR, U.S. DEP'T OF JUSTICE, FACT SHEET: BIA RESTRUCTURING AND STREAMLINING PROCEDURES 2 (2006), available at http://www.justice.gov/eoir/press/06/BIAStreamliningFactSheet030906.pdf (noting that approximately 30 percent of the BIA's final orders are appealed to federal court).
63. The data are summarized in Part II.B.1, infra.
64. ADMIN. OFFICE OF THE U.S. COURTS, JUDICIAL BUSINESS OF THE UNITED STATES COURTS: 2008 ANNUAL REPORT OF THE DIRECTOR app. at 96 tbl.B-3 (2009), available at http://www.uscourts.gov/judbus2008/appendices/B03Sep08.pdf.
65. The 30 percent figure is simply 10,280 divided by 34,812. The 10,280 court of appeals filings in fiscal year 2008 presumably include petitions for review of some 2007 BIA decisions, and conversely exclude 2009 petitions for review of 2008 BIA decisions. Thus, the two sets of cases are not 100 percent congruent, and the 30 percent figure is therefore only an estimate. It is most likely a very close estimate, however, because the petition for review must be filed within 30 days of the BIA decision. 8 U.S.C. § 1252(b)(1) (2006).
66. In fiscal year 2008 the courts of appeals received 61,104 appeals. ADMIN. OFFICE OF THE U.S. COURTS.
67. Cathy Catterson, Changes in Appellate Caseload and Its Processing, 48 ARIZ. L. REV. 287, 287-88 (2006).
68. 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, 14, 20 (2006/07).
69. 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, 3 (2005). The Circuit Executive of the U.S. Court of Appeals for the Ninth Circuit described the court's caseload problem succinctly: "two words: 'immigration cases.'".
70. In that year, 2,865 of the 6,904 cases filed in the Second Circuit were petitions for review of BIA decisions, as were 4,625 of the 13,577 cases filed in the Ninth Circuit. ADMIN. OFFICE OF U.S. COURTS,.
71. See Immigration Litigation Reduction: Hearing Before the S. Comm. on the Judiciary, 109th Cong. 5, 7 (2006) (testimony of John M. Walker, Jr., C.J., U.S. Court of Appeals for the Second Circuit), available at http://www.access.gpo.gov/congress/senate/pdf/109hrg/28339.pdf (discussing the Second Circuit's "Non-Argument Calendar").
72. Statement of John M. Walker, Jr.
73. see also Benslimane v. Gonzales, 430 F.3d 828, 829 (7th Cir. 2005) ("In the year ending on the date of the argument, different panels of this court reversed the Board of Immigration Appeals in whole or part in a staggering 40 percent of the 136 petitions to review the Board that were resolved on the merits.").
74. This formula is meant only to capture what I see as the basic relationship among accuracy, productivity, cost, and efficiency. It is subject to important caveats. Accuracy, as just noted, is difficult to measure because the subjective nature of many decisions often leaves adjudicators with more than one "correct" answer. Also, even if every decision could be labeled definitively as right or wrong, my formula is agnostic with respect to the values to be placed on accuracy and productivity. If accuracy were quantified as the ratio of correct decisions to total decisions, for example, this formula would produce some counterinstinctive results. A system that decides one hundred cases but gets only half of them right would earn the same efficiency rating as a system that, at the same cost, decides only fifty cases but gets all of them right. Yet most would regard the latter system as far more efficient. As that result suggests, the relative values that one assigns to one unit of accuracy and one unit of productivity, respectively, will influence one's assessment of efficiency.
75. Transactional Records Access Clearinghouse, Number of Immigration Judges, 1998-2008 on Payroll at End of Fiscal Year, http://trac.syr.edu/immigration/reports/208/include/backlog.html (last visited Mar. 28, 2010).
76. See Stephen H. Legomsky, The Detention of Aliens: Theories, Rules, and Discretion, 30 U. MIAMI INTER-AM. L. REV. 531, 542 (1999).
77. Peter H. Schuck, INS Detention and Removal: A "White Paper," 11 GEO. IMMIGR. L.J. 667, 680 (1997).
78. Margaret H. Taylor, Detained Aliens Challenging Conditions of Confinement and the Porous Border of the Plenary Power Doctrine, 22 HASTINGS CONST. L.Q. 1087, 1099-102 (1995).
79. See generally MARK DOW, AMERICAN GULAG: INSIDE U.S. IMMIGRATION PRISONS (2004) (studying detainee treatment in American immigration prisons).
80. Judge Carlos Bea of the Ninth Circuit, for example, believes that the flood of petitions for review in the courts of appeals has caused backlogs that have themselves encouraged many people to file frivolous petitions for review solely to delay their removal.
81. 8 U.S.C. § 1252(b)(3)(B) (2006).
82. The statute does not say this expressly, but under 8 U.S.C. § 1252(a)(1), judicial review "is governed only by chapter 158 of title 28.".
83. That title, in turn, contains 28 U.S.C. § 2344, which prescribes petitions for review in the courts of appeals as the procedure for challenging various administrative agency decisions and adds "[t]he action shall be against the United States." Because the United States presumably cannot bring an action against itself, the latter sentence implies that only the party aggrieved by government action may petition for review.
84. In practice, the government has no need to ask a court to reverse a BIA decision because the attorney general can simply do so unilaterally. 8 C.F.R. § 1003.1(h) (2009).
85. 8 U.S.C. § 1252(a)(2)(B).
86. In fiscal year 2008, 78 percent of the immigrants who appealed to the BIA had legal representation.
87. For lists of court decisions containing some of the more pointed language (as well as court decisions that in turn cite lists of similar court decisions), see STEPHEN H. LEGOMSKY & CRISTINA M. RODRÍGUEZ, IMMIGRATION AND REFUGEE LAW AND POLICY 747-48 (5th ed. 2009).
88. In addition to direct criticisms of the process, the ABA Commission report notes "public skepticism" about the immigration court process and, given the attorney general's control over the procedures, perceptions that the system as a whole is unfair.
89. See TRANSACTIONAL RECORDS ACCESS CLEARINGHOUSE, ASYLUM DISPARITIES PERSIST, REGARDLESS OF COURT LOCATION AND NATIONALITY (2007), http://trac.syr.edu/immigration/reports/183/.
90. U.S. GOV'T ACCOUNTABILITY OFFICE, NO. GAO-08-940, U.S. ASYLUM SYSTEM: SIGNIFICANT VARIATION EXISTED IN ASYLUM OUTCOMES ACROSS IMMIGRATION COURTS AND JUDGES (2008), available at http://www.gao.gov/new.items/d08940.pdf.
91. "[I]n one regional asylum office... some officers grant[ed] asylum to no Chinese nationals, while other officers granted asylum in as many as 68% of their cases. Similarly, Colombian asylum applicants whose cases were adjudicated in the federal immigration court in Miami had a 5% chance of prevailing with one of that court's judges and an 88% chance of prevailing before another judge in the same building.".
92. The figure shown above for removal proceedings includes small numbers of exclusion and deportation proceedings-the now superseded names for what are today called removal proceedings.
93. Transactional Records Access Clearinghouse, Number of Immigration Judges, 1998-2009, http://trac.syr.edu/immigration/reports/208/include/payroll.html (last visited Mar. 30, 2010). The TRAC figure counts only those immigration judges who decide cases, not others who hold the title "immigration judge" but perform purely administrative functions. As of August 20, 2009, there were 232 immigration judges (including those in administrative positions), plus twenty-one vacancies and a fiscal year 2010 budget request for twenty-eight new immigration judge positions. Elaine Komis, Pub. Affairs Officer, EOIR, EOIR's Immigration Court and Board of Immigration Appeals: Staffing, Budget, and Case Adjudications 1 (Sept. 9, 2009) (on file with the Duke Law Journal).
94. Others have estimated the average caseload at four per day.
95. Transactional Records Access Clearinghouse, Maximum Average Minutes Available Per Matter Received, http://trac.syr.edu/immigration/reports/208/include/minutes.html (last visited Mar. 30, 2010).
96. Arguing that "[i]n considering any alternatives to the present system," "[a]dequate support" is necessary.
97. Leon Wildes, The Need for a Specialized Immigration Court: A Practical Response, 18 SAN DIEGO L. REV. 53, 55, 63 (1980) (reviewing Roberts's reform proposal and concurring with the need for increased funding and staffing to clear "the backlog of unadjudicated applications").
98. See Transactional Records Access Clearinghouse, Number of Judicial Law Clerks, 2006-2009, http://trac.syr.edu/immigration/reports/208/include/lawclerks.html (last visited Mar. 30, 2010).
99. For similar calculations.
100. COMM'N ON IMMIGRATION.
101. ABA, Resolution 114B Adopted by the House of Delegates 2 (Feb. 8-9, 2010), available at http://www.abanet.org/leadership/2010/midyear/daily_jourmal/114B.pdf.
102. TRANSACTIONAL RECORDS ACCESS CLEARINGHOUSE, CASE BACKLOGS IN IMMIGRATION COURTS EXPAND, RESULTING WAIT TIMES GROW (2009), http://trac.syr.edu/immigration/reports/208/.
103. See Immigration Litigation Reduction.
104. Calling the case completion expectations unrealistic with present resources.
105. TRANSACTIONAL RECORDS ACCESS CLEARINGHOUSE.
106. Tracing excessive EOIR caseloads to insufficient funding, but also faulting DHS reluctance to use prosecutorial discretion in cases where transgressions were minor or chances of removal were slim.
107. Immigration Litigation Reduction.
108. recommending one hundred additional immigration judges and at least one law clerk per judge.
109. COMM'N ON IMMIGRATION.
110. Immigration Litigation Reduction.
111. See, e.g., Immigration Litigation Reduction, (urging that the number of BIA members be doubled).
112. The ABA has recommended hiring forty additional BIA staff attorneys. ABA, Resolution 114C Adopted by the House of Delegates 4 (Feb. 8-9, 2010), available at http://www.abanet.org/leadership/2010/midyear/daily_jourmal/114C.pdf.
113. COMM'N ON IMMIGRATION.
114. The previous principal legal advisor had echoed similar sentiments, adding that on average the ICE trial attorneys (as they were then called) had only twenty minutes to prepare each case. (citing ICE Principal Legal Advisor William J. Howard and calling for the hiring of additional trial attorneys).
115. Transactional Records Access Clearinghouse.
116. Transactional Records Access Clearinghouse.
117. Transactional Records Access Clearinghouse.
118. See Stuart L. Lustig et al., Inside the Judges' Chambers: Narrative Responses from the National Association of Immigration Judges Stress and Burnout Survey, 23 GEO. IMMIGR. L.J. 57, 59-60 (2008) (summarizing the results of a web-based survey of immigration judges).
119. Other sources of the burnout and stress include lack of respect from the courts, the Department of Justice, and the public; post-traumatic stress from hearing a steady diet of wrenching asylum cases; and perceptions of fraud in the presentation of cases.
120. See Board of Immigration Appeals: Procedural Reforms to Improve Case Management, 67 Fed. Reg. 54,878, 54,878-79 (Aug. 26, 2002) (codified as amended at 8 C.F.R. pt. 1003) (presenting as background the problems in the adjudicatory process of immigration appeals).
121. John D. Ashcroft & Kris W. Kobach, A More Perfect System: The 2002 Reforms of the Board of Immigration Appeals, 58 DUKE L.J. 1991, 1991-92, 1994 (2009) (discussing the massive backlog of immigration cases and its negative effects, as well as the regulatory goal of gradually eliminating that backlog).
122. Immigration Litigation Reduction.
123. 8 C.F.R. § 1003.1(e)(4) (2009). A still-pending proposed rule would make AWOs discretionary rather than mandatory. See Board of Immigration Appeals: Affirmance Without Opinion, Referral for Panel Review, and Publication of Decisions as Precedents, 73 Fed. Reg. 34,654, 34,663 (proposed June 18, 2008) (to be codified at 8 C.F.R. § 1003.1).
124. See Board of Immigration Appeals: Procedural Reforms to Improve Case Management, 67 Fed. Reg. 54,878, 54,880 (Aug. 26, 2002) (codified as amended at 8 C.F.R. pt. 1003) ("The final rule establishes the primacy of the streamlining system for the majority of cases.").
125. COMM'N ON IMMIGRATION.
126. See Board of Immigration Appeals: Procedural Reforms to Improve Case Management, 67 Fed. Reg. at 54,879 (asserting the rule's expansion of single-member review to "the dominant method of adjudication for the large majority of cases before the Board").
127. From fiscal years 2003 through 2008, this percentage remained between 93 percent and 94 percent.
128. Board of Immigration Appeals: Procedural Reforms to Improve Case Management, 67 Fed. Reg. at 54,878 (specifying effective date of Sept. 25, 2002). Some of the reforms, however, were implemented in stages in the preceding few months. See, e.g., Ramji-Nogales et al., (describing the March 2002 expansion of affirmances without opinion).
129. Discussing the time limits added in the modified case management procedures.
130. These data are extracted from a chart provided by Cathy Catterson, Circuit Executive, U.S. Court of Appeals for the Ninth Circuit (June 9, 2009) (on file with the Duke Law Journal).
131. See DORSEY & WHITNEY LLP.
132. By way of illustration, one estimate is that the percentage of BIA decisions in favor of immigrants suddenly dropped from 25 percent to 10 percent following the procedural reforms.
133. If those figures are correct, then the percentage of BIA decisions in favor of the government increased from 75 percent to 90 percent. Even that substantial difference, however, would increase the pool of judicially reviewable cases by only 15 of 75, or 20 percent (all else equal)-not nearly enough to explain the quintupling in petitions for review.
134. Documenting similarly sharp drops in BIA asylum approval rates.
135. COMM'N ON IMMIGRATION.
136. 8 U.S.C. § 1252(b)(3)(B) (2006).
137. see also Nken v. Holder, 129 S. Ct. 1749, 1763 (2009) (prescribing a multifactor test, which includes the likelihood of success on the merits, for determining whether to stay removal pending final court decision).
138. 8 C.F.R. § 1003.1(e)(4) (2009). A still-pending proposed rule would make AWOs discretionary. See Board of Immigration Appeals: Affirmance Without Opinion, Referral for Panel Review, and Publication of Decisions as Precedents, 73 Fed. Reg. 34,654, 34,663 (proposed June 18, 2008) (to be codified at 8 C.F.R. § 1003.1).
139. Also recommending that the BIA be required to respond to all nonfrivolous arguments.
140. COMM'N ON IMMIGRATION.
141. See DORSEY & WHITNEY LLP.
142. See Press Release, U.S. Dep't of Justice, Attorney General Alberto R. Gonzales Outlines Reforms for Immigration Courts and Board of Immigration Appeals (Aug. 9, 2006), available at http://www.justice.gov/opa/pr/2006/August/06_ag_520.html.
143. Copies of the separate performance evaluation forms for immigration judges and BIA members were supplied by Elaine Komis, Public Affairs Officer at EOIR, to the author on September 9, 2009. The immigration judge form includes ratings for "legal ability," "professionalism," and "accountability for organizational results." EOIR, U.S. Dep't of Justice, Performance Appraisal Record: Adjudicative Employees 1 (n.d.) (on file with the Duke Law Journal). That last category then breaks down into several more specific criteria, of which criteria 2 and 3 focus expressly, and criterion 1 implicitly, on productivity.
144. The form for BIA members rates "organizational results," "critical thinking and technical proficiency," and "communication and teamwork." U.S. Dep't of Justice, Senior Level & Scientific Professional Performance Plan and Appraisal 1 (July 1, 2009) (on file with the Duke Law Journal). Of these, "organizational results" count for 60 percent of the total score, and all of the specific criteria for evaluating "organizational results" relate to productivity.
145. The third category, "communication and teamwork," counts for an additional 20 percent and contains only one criterion-"takes the initiative to assist... in meeting productivity expectations." The second criterion is the only one that seeks to measure the quality of adjudication, and it counts for only 20 percent of the final score.
146. Productivity, therefore, is the dominant theme.
147. The percentage of BIA decisions in which the immigrants had filed the appeals ranged from 85 percent to 93 percent during fiscal years 2001 through 2008, inclusive; the other 7 percent to 15 percent were appeals that the government had filed.
148. 8 C.F.R. § 1003.1(g) (2009).
149. See Stephen H. Legomsky, Learning to Live with Unequal Justice: Asylum and the Limits to Consistency, 60 STAN. L. REV. 413, 431-32, 447-49 (2007).
150. For criticisms of the inconsistency in immigration adjudications.
151. At the BIA level, the percentage of decisions in which the immigrants were represented by counsel ranged from 69 percent to 78 percent during fiscal years 2004 through 2008, inclusive.
152. see also ABA, Resolution 114E Withdrawn by the House of Delegates (Feb. 8-9, 2010), available at http://www.abanow.org/wordpress/wp-content/themes/ABANow/wp-content/uploads/resolution-pdfs/MY2010/114E.pdf (recommending various ways of enhancing access to counsel in removal cases).
153. The advantages of three-member panels have led the ABA to recommend requiring them in all nonfrivolous BIA appeals.
154. COMM'N ON IMMIGRATION.
155. A rare contrary view was expressed by former Attorney General Ashcroft, who ordered the 2002 BIA procedural reforms, and his chief immigration advisor at the time.
156. 8 U.S.C. § 1101(b)(4) (2006) (immigration judges).
157. 8 C.F.R. § 1001.1(l) (immigration judges).
158. § 1003.1(a)(1) (BIA members).
159. OFFICE OF PROF'L RESPONSIBILITY & 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 70-71 (2008), available at http://www.usdoj.gov/oig/special/s0807/final.pdf.
160. For additional commentary on the hiring improprieties and the accompanying changes in the appointment process.
161. Emma Schwartz & Jason McLure, DOJ Made Immigration Judgeships Political, LEGAL TIMES, May 28, 2007, at 12.
162. See Office of Prof'l Responsibility & Office of the Inspector Gen.
163. For further empirical evidence on this subject, see Ramji-Nogales et al.
164. United States ex rel. Shaughnessy v. Accardi, 347 U.S. 260, 264 (1954).
165. Shaughnessy v. United States ex rel. Accardi, 349 U.S. 280, 282-83 (1955).
166. For an excellent history, see Sidney B. Rawitz, From Wong Yang Sung to Black Robes, 65 INTERPRETER RELEASES 453 (1988).
167. Board of Immigration Appeals: Immigration Review Function; Editorial Amendments, 48 Fed. Reg. 8038, 8039 (Feb. 25, 1983) (codified as amended at 8 C.F.R. § 1003.0(a)). Since then, a third unit, the Office of the Chief Administrative Hearing Officer (OCAHO), has been added. See 8 C.F.R. § 1003.0(a) (2009).
168. 8 C.F.R. §§ 1003.1(d)(2), 1003.10(b) (requiring the BIA and immigration judges, respectively, to exercise "independent judgment and discretion," subject to the orders of the attorney general).
169. see also STEPHEN H. LEGOMSKY, IMMIGRATION AND THE JUDICIARY: LAW AND POLITICS IN BRITAIN AND AMERICA 287 n.97 (1987) (citing federal appellate decisions that require the BIA to independently exercise its powers).
170. See 8 C.F.R. § 1003.1(b)(3) (allowing appeals to the BIA from decisions of immigration judges in removal proceedings).
171. Giving the details of the case.
172. Board of Immigration Appeals: Procedural Reforms to Improve Case Management, 67 Fed. Reg. 7309, 7310 (proposed Feb. 19, 2002) (to be codified at 8 C.F.R. pt. 1003).
173. The attorney general referred generally to "traditional" factors, "discretion," and qualities such as "integrity . . ., professional competence, and adjudicatorial temperament." Board of Immigration Appeals: Procedural Reforms to Improve Case Management, 67 Fed. Reg. 54,878, 54,893 (Aug. 26, 2002) (codified as amended at 8 C.F.R. pt. 1003). Seniority might be an "experience indicator" but not "a presumptive factor." It would not be possible, the attorney general said, "to establish guidelines or specific factors that will be considered.".
174. See Ricardo Alonso-Zaldivar & Jonathan Peterson, 5 on Immigration Board Asked to Leave, L.A. TIMES, Mar. 12, 2003, at A16 (identifying the five BIA members who were reassigned).
175. See Peter J. Levinson, The Facade of Quasi-Judicial Independence in Immigration Appellate Adjudications, 9 BENDER'S IMMIGR. BULL. 1154, 1155-56 (2004).
176. Of the twenty-three then-authorized BIA positions, four were vacant at the time of the original 2002 announcement, and three other BIA members had left voluntarily before the announcement of names. Thus, only five "reassign[ments]" were necessary to reduce the Board to eleven members.
177. Summarizing the biographies of the five reassigned BIA members. Analogous events occurred a few years earlier in Australia.
178. See Stephen H. Legomsky, Refugees, Administrative Tribunals, and Real Independence: Dangers Ahead for Australia, 76 WASH. U. L.Q. 243, 248-53 (1998).
179. Stephen H. Legomsky, Deportation and the War on Independence, 91 CORNELL L. REV. 369, 378-79 (2006).
180. Comparing decisions before and after this downsizing.
181. Noting that of the five Board members with the most liberal voting histories, four were reassigned.
182. Charting the increase in affirmances after February 2002.
183. Noting that, among other factors, Board decisions in favor of noncitizens fell 15 percent.
184. Showing seventy-two removals compared to eighteen nonremovals from a random sample of BIA decisions in 2004.
185. Showing decreased rates of favorable remands in asylum decisions between 2000 and 2003.
186. Board of Immigration Appeals: Procedural Reforms to Improve Case Management, 67 Fed. Reg. 54,878, 54,893 (Aug. 26, 2002) (codified as amended at 8 C.F.R. pt. 1003).
187. Further, by twice distinguishing between removal and transfer to other assignments, the attorney general appears to have asserted a power not only to reassign, but also to remove from office entirely-a sweeping assertion indeed, unless the attorney general had only affirmative misconduct in mind for the latter.
188. 8 C.F.R. § 3.1(a)(1) (2002).
189. 8 C.F.R. § 1003.1(a)(1) (2009).
190. § 1003.1(d)(1)(i)-(ii) (subjecting the BIA's independent judgment to the governing standards of "the provisions and limitations prescribed by applicable law, regulations, and procedures, and by decisions of the Attorney General").
191. Discussing the changed language between the 2002 regulations and the 2003 regulations.
192. Russell Wheeler questions whether immigration judges' fears of retribution are widespread. He observes that, unlike the BIA members, immigration judges have not actually been purged. Moreover, he argues, if immigration judges acted out of a pervasive fear of intrusion, one would expect uniform results in favor of the government, a phenomenon that has not occurred. Russell R. Wheeler, Response, Practical Impediments to Structural Reform and the Promise of Third Branch Analytic Methods: A Reply to Professors Baum and Legomsky, 59 DUKE L.J. 1847, 1851-52 (2010). It is true that immigration judges have not experienced an actual purge, and admittedly both their degree of fear and the magnitude of the effect it might have on their decisions would be nearly impossible to determine empirically. In a survey of adjudicators, acknowledgments of bending the outcomes to meet superiors' preferences are likely to be rare, even if that has indeed been the case and even if those propensities were all conscious and deliberate. But I cannot agree that a pervasive fear would have been expected to produce a higher degree of uniformity. Many variables might influence judges' susceptibility to political pressures: family circumstances; financial pressures; whether they desire to remain in their present positions long term; the stages of their careers; the availability of other realistic job options; their own personal levels of courage, integrity, and personal and professional pride; and their own predictions about how much their supervisors will care about the particular issue and what their supervisors' preferences will be. The degree to which fear of adverse job consequences drives adjudicatory decisions will therefore vary from one adjudicator to another, and thus the absence of uniform outcomes tells us little or nothing about the magnitude of the problem.
193. See 8 C.F.R. § 1003.1(h) (requiring the BIA to refer cases to the attorney general on demand).
194. Refuting arguments in favor of agency head review. The U.S. Commission on Immigration Reform also objected to attorney general review of BIA decisions.
195. See U.S. COMM'N ON IMMIGRATION REFORM, (listing the Commission's qualms with agency head review and suggesting that review should be independent of enforcement).
196. Discussing the popularity of agency head review.
197. 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 771, 1004 (1992) (discussing formal agency review of adjudications).
198. Several scholars have considered the phenomenon of agencies' tunnel vision. See, e.g., STEPHEN G. BREYER, BREAKING THE VICIOUS CIRCLE 11-19 (1994) (finding tunnel vision in the EPA's hazardous waste cleanup policies).
199. Nina A. Mendelson, Chevron and Preemption, 102 MICH. L. REV. 737, 781 (2004) (finding tunnel vision in the EPA's general prioritization of its own programmatic goals).
200. See 8 U.S.C. § 1101(b)(4) (2006).
201. 8 C.F.R. § 1001.1(l).
202. 8 C.F.R. § 1003.0(a).
203. § 1003.0(b)(1)(ii) (immigration judges and BIA).
204. § 1003.1(a)(2)(i)(C)-(D) (BIA, powers subdelegated to the Chair of the BIA).
205. §§ 1003.0©, 1003.1(a)(2)(ii).
206. See U.S. COMM'N ON IMMIGRATION REFORM, (criticizing the agency head review model).
207. Offering criticism of the system from the Honorable Dana Leigh Marks, current president of the NAIJ.
208. Describing immigration judges' dependence on district directors and regional commissioners for practical necessities.
209. Citing this shared responsibility as a flaw in the immigration court structure.
210. Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub. L. No. 104-208, div. C, § 304, 110 Stat. 3009-546, 3009-589 (codified as amended at 8 U.S.C. § 1229a(b)(1) (2006)).
211. See Immigration Reform and the Reorganization of Homeland Defense: Hearing Before the Subcomm. on Immigration of the Comm. on the Judiciary, 107th Cong. 75 (2002) (statement of Dana Marks Keener, President, National Association of Immigration Judges).
212. DANA MARKS KEENER & DENISE NOONAN SLAVIN, POSITION PAPER: AN INDEPENDENT IMMIGRATION COURT: AN IDEA WHOSE TIME HAS COME 9 (2002), available at http://www.woodrow.org/teachers/esi/2002/CivilLiberties/Projects/PositionPaperImmigrationJudges.pdf.
213. For the observations that AWOs take less time to produce than reversals with reasoned opinions and that affirmances, in turn, systematically favor the government because 85 to 93 percent of all BIA appeals are filed by the immigrants.
214. See Codes of Conduct for the Immigration Judges and Board Members, 72 Fed. Reg. 35,510, 35,511 (June 28, 2007) ("An immigration judge's communications with other employees of the Department of Justice shall not be considered ex parte communications unless those employees are witnesses in a pending or impending proceeding before the immigration judge and the communication involves that proceeding.").
215. "A Board Member's communications with other employees of the Department of Justice shall not be considered ex parte communications unless those employees are witnesses or counsel involved in a pending or impending proceeding before the Board Member, and the communication involves that proceeding.".
216. For the details of that argument, see LEGOMSKY.
217. See Benslimane v. Gonzales, 430 F.3d 828, 829 (7th Cir. 2005) (listing eleven examples).
218. Qun Wang v. Attorney Gen., 423 F.3d 260, 267-69 (3d Cir. 2005) (discussing additional examples, and condemning "[t]he tone, the tenor, the disparagement, and the sarcasm" of the immigration judge).
219. Dawoud v. Gonzales, 424 F.3d 608, 610 (7th Cir. 2005) (finding the immigration judge's opinion "riddled with inappropriate and extraneous comments").
220. Lopez-Umanzor v. Gonzales, 405 F.3d 1049, 1054 (9th Cir. 2005) (finding the immigration judge's assessment of the asylum applicant's credibility to be "skewed by prejudgment, personal speculation, bias, and conjecture").
221. Citing "a shocking number of examples of a lack of professionalism that infects Immigration Court proceedings".
222. Giving examples and advocating for a public campaign against the worst immigration judges.
223. Giving examples and urging ethical reforms.
224. For a thorough summary, see Paul R. Verkuil & Jeffrey S. Lubbers, Alternative Approaches to Judicial Review of Social Security Disability Cases, 55 ADMIN. L. REV. 731, 744-51 (2003).
225. For statutes establishing term lengths for Article I judges.
226. See 10 U.S.C. § 942(b)(2) (2006) (U.S. Court of Appeals for the Armed Forces).
227. 26 U.S.C. § 7443(e) (2006) (U.S. Tax Court).
228. 28 U.S.C. § 172(a) (2006) (U.S. Court of Federal Claims).
229. 38 U.S.C. § 7253(c) (2006) (U.S. Court of Appeals for Veterans Claims).
230. See 5 U.S.C. § 7521(a) (2006).
231. Jeffrey S. Lubbers, APA-Adjudication: Is the Quest for Uniformity Faltering?, 10 ADMIN. L. REV. 65, 72-74 (1996) (presenting a good summary of the statutory provisions governing appointment and terms of office of ALJs).
232. Jeffrey Scott Wolfe, Are You Willing to Make the Commitment in Writing? The APA, ALJs, and SSA, 55 OKLA. L. REV. 203, 226 (2002).
233. U.S. Office of Pers. Mgmt., Qualification Standard for Administrative Law Judge Positions, http://www.opm.gov/qualifications/alj/alj.asp (last visited Mar. 28, 2010).
234. See, e.g., 38 U.S.C. § 7253© (expressly contemplating additional fifteen-year terms for the judges of the U.S. Court of Appeals for Veterans Claims). For each of the other specialized Article I courts, renewability must be assumed; the statute authorizes appointments for fifteen-year terms and contains no prohibition on appointment of a judge who has already served one such term.
235. 10 U.S.C. § 942(b)(2).
236. 26 U.S.C. § 7443(e).
237. 28 U.S.C. § 172(a).
238. COMM'N ON IMMIGRATION.
239. (proposing a draft of a bill that would create an "independent, professional immigration court system").
240. Most of the existing restrictions on judicial review of immigration decisions appear in 8 U.S.C. § 1252(a)(2), and in other subsections of § 1252. For a summary of congressional efforts to trim judicial review of immigration decisions further.
241. See Timothy S. Barker, A Critique of the Establishment of a Specialized Immigration Court, 18 SAN DIEGO L. REV. 25, 25-27 (1980).
242. Robert E. Juceam & Stephen Jacobs, Constitutional and Policy Considerations of an Article I Immigration Court, 18 SAN DIEGO L. REV. 29, 33-34 (1980).
243. James J. Orlow, Comments on "A Specialized Statutory Immigration Court," 18 SAN DIEGO L. REV. 47, 50 (1980).
244. The benefits of the generalist perspective are elaborated in Part IV.C.2, infra.
245. Other commentators considered but ultimately rejected that possibility (at a time when the U.S. Parole Commission was a larger and more permanent agency).
246. This option, too, has been considered by others.
247. See Immigration Reform and the Reorganization of Homeland Defense.
248. Favoring an independent executive branch tribunal.
249. Favoring an Article I immigration court.
250. Examples include the Occupational Safety and Health Review Commission and the Federal Mine Safety and Health Review Commission.
251. See, e.g., U.S. COMM'N ON IMMIGRATION REFORM.
252. The ABA Commission, which favors an Article I immigration court, has proposed the independent tribunal model as a fallback position. ABA, Resolution 114F Adopted by the House of Delegates 13-15 (Feb. 8-9, 2010), available at http://www.abanet.org/leadership/2010/midyear/daily_jourmal/114F.pdf.
253. COMM'N ON IMMIGRATION.
254. Emphasizing the stature and prestige of Article I judgeships.
255. COMM'N ON IMMIGRATION.
256. See 10 U.S.C. § 942(b)(1) (2006) (U.S. Court of Appeals for the Armed Forces).
257. 26 U.S.C. § 7443(b) (2006) (U.S. Tax Court).
258. 28 U.S.C. § 171(a) (2006) (U.S. Court of Federal Claims).
259. 38 U.S.C. § 7253(b) (2006) (U.S. Court of Appeals for Veterans Claims).
260. Lauding the presidential appointment process, though favoring either ALJs or an independent tribunal over an Article I immigration court.
261. See 10 U.S.C. § 942(a) (five judges).
262. 26 U.S.C. § 7443(a) (nineteen judges).
263. 28 U.S.C. § 171(a) (sixteen judges).
264. 38 U.S.C. § 7253(a) (three to seven judges).
265. As of August 20, 2009, there were 232 immigration judges.
266. The ABA Proposed Resolutions and Fitz and Schrag have proposed this arrangement.
267. COMM'N ON IMMIGRATION.
268. ROGER FISHER, WILLIAM URY & BRUCE PATTON, GETTING TO YES: NEGOTIATING AGREEMENT WITHOUT GIVING IN 79 (2d ed. 1991).
269. U.S. CONST. art. III, § 1 w.
270. See Commodity Futures Trading Comm'n v. Schor, 478 U.S. 833, 853-56 (1986).
271. N. Pipeline Constr. Co. v. Marathon Pipe Line Co., 458 U.S. 50, 68-71 (1982).
272. Crowell v. Benson, 285 U.S. 22, 48-53 (1932).
273. See generally MICHAEL ASIMOW & RONALD M. LEVIN, STATE AND FEDERAL ADMINISTRATIVE LAW § 7.3 (3d ed. 2009) (examining Congress's power to delegate adjudicatory authority to agencies).
274. N. Pipeline, 458 U.S. at 69-70.
275. Crowell v. Benson, 285 U.S. 22 (1932).
276. The proposed assignment procedure is detailed in Part IV.D.2.a,yyyy.
277. Theodore W. Ruger, The Judicial Appointment Power of the Chief Justice, 7 U. PA. J. CONST. L. 341, 343-47 (2004).
278. See generally Adam M. Samaha, Randomization in Adjudication, 51 WM. & MARY L. REV. 1, 6-8 (2009) (defending random assignments of cases to judges).
279. see also Theodore W. Ruger, Chief Justice Rehnquist's Appointments to the FISA Court: An Empirical Perspective, 101 NW. U. L. REV. 239, 240 (2007) (demonstrating empirically that Chief Justice Rehnquist disproportionately assigned to the Foreign Intelligence Surveillance Court (FISA) those judges who held conservative views on the specific fourth amendment issues that FISA was charged with deciding).
280. These and other theories of decisional independence are discussed in Legomsky.
281. For a summary of the more important 1996 constraints on judicial review of removal orders.
282. FISA is the most significant example. The Chief Justice of the United States assigns eleven district judges, at least three of whom must live within twenty miles of Washington, D.C. They travel to the court as needed. Fed. Judicial Ctr., Foreign Intelligence Surveillance Court, http://www.fjc.gov/history/home.nsf/page/fisc_bdy (last visited Mar. 30, 2010).
283. U.S. Courts, The Foreign Intelligence Surveillance Court and the Court of Review, http://www.uscourts.gov/outreach/topics/fisa/courtofreview.html (last visited Mar. 30, 2010).
284. The Temporary Emergency Court of Appeals was the other major example. The Chief Justice was authorized to appoint three or more district or circuit judges to serve part time for indefinite terms. It was abolished in 1992 and its jurisdiction was transferred to the U.S. Court of Appeals for the Federal Circuit. Fed. Judicial Ctr., Temporary Emergency Court of Appeals, 1971-1992, http://www.fjc.gov/history/home.nsf/page/temp_appeals!OpenDocument&Click= (last visited Mar. 30, 2010).
285. Lawrence Baum, Judicial Specialization and the Adjudication of Immigration Cases, 59 DUKE L.J. 1501, 1550-51 (2010).
286. For a more comprehensive catalog of the benefits and costs of specialized adjudication, see STEPHEN H. LEGOMSKY, SPECIALIZED JUSTICE: COURTS, ADMINISTRATIVE TRIBUNALS, AND A CROSS-NATIONAL THEORY OF SPECIALIZATION 7-19 (1990).
287. David R. Woodward & Ronald M. Levin, In Defense of Deference: Judicial Review of Agency Action, 31 ADMIN. L. REV. 320, 329, 332 (1979). Others have similarly hailed specialists' "superior degree of technical competence," as well as their abilities to predict pragmatically whether nonliteral interpretations would "unsettle the statutory scheme.".
288. Cass R. Sunstein & Adrian Vermeule, Interpretation and Institutions, 101 MICH. L. REV. 885, 928 (2003). As an argument for affording specialist decisionmakers more leeway than generalist judges to depart from the literal statutory text, these latter assertions have drawn a sharp rebuke from Judge Richard Posner. He argued that specialized expertise can lead to loose construction (a result he disfavors) and that many "generalist" judges also possess specialized expertise, for example in evidence law or criminal law.
289. Richard A. Posner, Reply: The Institutional Dimension of Statutory and Constitutional Interpretation, 101 MICH. L. REV. 952, 964 (2003).
290. Protection will generally hinge on whether an applicant's fear of persecution in another country is "well-founded," 8 U.S.C. § 1158(a) (2006), or on whether the applicant's life or freedom "would be threatened" in a particular country,. Those determinations require assessments of relevant country conditions.
291. Discussing the effects of specialization on lobbying.
292. (acknowledging concerns that veterans' groups have captured the Board of Veterans' Appeals and the Article I U.S. Court of Appeals for Veterans Claims).
293. See Jason Rathod, Note, Not Peace, but a Sword: Navy v. Egan and the Case Against Judicial Abdication in Foreign Affairs, 59 DUKE L.J. 595, 617-18 (2009) (invoking the benefits of a generalist perspective as part of an argument for judicial review of agency security clearance determinations).
294. Discussing the benefits and costs of judicial specialization.
295. 8 U.S.C. § 1105(a) (1994).
296. See Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub. L. No. 104-208, div. C, § 306, 110 Stat. 3009-546, 3009-607 to -608 (codified as amended at 8 U.S.C. § 1252(a)(2)(B)-(C) (2006)) (amending section 242(a)(2)(B)-(C) of the Immigration and Nationality Act). The REAL ID Act of 2005, Pub. L. 109-13, 119 Stat. 302 (codified in scattered sections of 8 U.S.C.), clarified that both of these bars were subject to exceptions for questions of law. 8 U.S.C. § 1252(a)(2)(D).
297. COLA for Federal Judges in 2009, THE THIRD BRANCH (U.S. Courts, Wash., D.C.), Mar. 2009, at 3, available at http://www.uscourts.gov/ttb/2009-03/article03.cfm?WT.cg_n=TTB_ Mar09_article03_tableOfContents.
298. Recent law school graduates usually qualify for grade JSP-11, step 1 appointments; after one year of postgraduation experience and Bar membership, the grade is usually JSP-12, step 1. Online System for Clerkship Application and Review, Qualifications, Salary and Benefits, https://oscar.uscourts.gov/drupal/print/18 (last visited Mar. 30, 2010).
299. Including the cost of living allowance for all cities other than those specifically listed, the 2009 annual salary for JSP-11, step 1 is $56,411; for JSP-12, step 1, it is $67,613. U.S. COURTS, JUDICIAL SALARY PLAN PAY RATE TABLE 01: REST OF THE UNITED STATES (2009), http://www.uscourts.gov/careers/Pay_Tables/2009_Pay_Tables/Judiciary_Salary_Plan_Pay_Tables/Base_and_Locality_Pa y_Tables/JSP01.pdf.
300. For salaries for specific cities, see, for example, U.S. Courts, Judicial Salary Plan Locality Rate Pay Tables 2009, http://www.uscourts.gov/careers/Judicial_Salary_Plan_Locality_Rate_Pay_Tables_2009.cfm (last visited Mar. 30, 2010).
301. The number of authorized federal judgeships for each court is set by statute. See 28 U.S.C. § 44 (2006) (authorizing judgeships for the courts of appeals).
302. § 133 (authorizing judgeships for district courts). As of March 30, 2010, there were 167 authorized active judgeships in the regional courts of appeals (excluding the Court of Appeals for the Federal Circuit) and 667 in the district courts. U.S. Courts, Federal Judiciary Judges and Judgeships, http://www.uscourts.gov/judges.htm (last visited Mar. 30, 2010) (linking to Authorized Judgeships). In contrast, as of August 16, 2009, the active circuit judges employed 468 full-time equivalent law clerks (410 term law clerks, fifty-eight career law clerks). E-mail from Gary Bowden, Admin. Office of U.S. Courts, to author (Sept. 20, 2009) (on file with the Duke Law Journal). Active circuit judges also employed approximately five hundred staff attorneys. See Office of the Circuit Exec., U.S. Court of Appeals for the Ninth Circuit, Staff Attorneys' Offices: Allocation of Work Units FY 2009 (Mar. 4, 2009) (on file with the Duke Law Journal). The active district judges employed another 1,379 full-time equivalent law clerks (936 term and 443 career). E-mail from Gary Bowden, supra. The Board of Immigration Appeals has only fifteen members, 8 C.F.R. § 1003.1(a)(1) (2009), but 114 staff attorneys, known as attorney advisors, Komis.
303. Judge Marks has offered a variant of this argument. She has suggested that restoring the independence of the immigration judges (through creation of an Article I immigration court) should enhance immigrants' confidence in the original decisions, thus decreasing the rate of appeals from the BIA (or a successor tribunal) to the courts of appeals.
304. The pay grades of the ICE assistant chief counsels range from GS-11, step 1 to GS-15, step 10. E-mail from Peter Vincent,. Effective January 2009, the annual salaries for those ranks are $49,544 and $127,604, respectively. U.S. OFFICE OF PERS. MGMT., SALARY TABLE 2009-GS (2009), available at http://opm.gov/flsa/oca/09tables/pdf/gs.pdf.
305. See U.S. OFFICE OF PERS. MGMT., COMPLETE SET OF LOCALITY PAY TABLES (2009), available at http://opm.gov/flsa/oca/09tables/pdf/saltbl.pdf.
306. E-mail from Peter Vincent.
307. Telephone Interview with Juan P. Osuna, Deputy Assistant Attorney Gen., Civil Div., U.S. Dep't of Justice (Aug. 26, 2009).
308. See Maria Baldini-Potermin, Practice Before the Board of Immigration Appeals: Recent Roundtable and Additional Practice Tips, 86 INTERPRETER RELEASES 2009, 2010 (2009) (summarizing information shared by Juan Osuna, the then-chair of the BIA).
309. Listing variables, including detention, that affect the processing times for removal proceedings.
310. To hold that the federal government (not the states) has the exclusive power to regulate immigration, for example, the Supreme Court has extolled the importance of nationwide uniformity. See, e.g., Henderson v. Mayor of N.Y., 92 U.S. 259, 273 (1876) (arguing that the immigration laws should be the same in all cities).
311. Chy Lung v. Freeman, 92 U.S. 275, 279-80 (1876) (arguing that a lack of uniformity in immigration laws could result in one state embroiling the entire nation in disputes with other nations).
312. See Stephen H. Legomsky, Immigration Law and the Principle of Plenary Congressional Power, 1984 SUP. CT. REV. 255, 261-69.
313. Because the petition for review must be filed in the circuit in which the removal hearing was held, 8 U.S.C. § 1252(b)(2) (2006), circuit splits would not explain these inconsistencies.
314. See S. Rep. No. 111-101, at 23-26 (2009), available at http://www.fas.org/irp/congress/2009_rpt/whistle.pdf (expressing dissatisfaction with restrictive interpretations of the Whistleblower Protection Act by the U.S. Court of Appeals for the Federal Circuit, which has exclusive jurisdiction, and proposing to extend jurisdiction to other courts).
315. As noted earlier, immigrants petition for review in approximately 30 percent of BIA decisions.
316. See Chevron U.S.A. Inc. v. Natural Res. Def. Council, 467 U.S. 837, 841, 862-63 (1984).
317. See 8 U.S.C. § 1252(b)(4) (making BIA factfinding "conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary," and the attorney general's discretion regarding relief "conclusive unless manifestly contrary to the law and an abuse of discretion").
318. 8 U.S.C. § 1252(a)(2).
319. As Wheeler points out, the creation of new federal judgeships, with the resulting opportunity for one president to substantially alter the composition of the federal bench, could pose particular political problems in an era of intense congressional partisanship. Wheeler,. As he further notes, however, an omnibus judge bill might attract bipartisan support if the effective date is deferred to the start of the next presidential term and the bill is voted on before anyone could reliably predict the outcome of the next presidential race.
320. See 8 U.S.C. § 1252.
321. See EOIR, U.S. Dep't of Justice, Virtual Law Library, http://www.justice.gov/eoir/vll/libindex.html (last visited Mar. 30, 2010) (containing published BIA decisions).
322. See Regulations Governing Departmental Organization and Authority, 5 Fed. Reg. 3502, 3503 (Sept. 4, 1940) (codified as amended at 8 C.F.R. pt. 1003) (creating the BIA).
323. Noting that no attorney general had ever removed a BIA member.
324. The draft bill is on file with the Duke Law Journal and is available on request.
325. Citing Tax Court judges and Court of Claims judges as examples.
326. COMM'N ON IMMIGRATION.
327. The chief immigration judge currently enjoys a similar power to detail immigration judges to locations with more pressing needs. U.S. GOV'T ACCOUNTABILITY OFFICE, NO. GAO-06-771, EXECUTIVE OFFICE FOR IMMIGRATION REVIEW: CASELOAD PERFORMANCE REPORTING NEEDS IMPROVEMENT 17-19 (2006), available at http://www.gao.gov/new.items/d06771.pdf.
328. 8 C.F.R. § 1240.1(a)(1) (2009). For more detail.
329. See 8 C.F.R. § 1003.19 (review of ICE bond decisions).
330. § 1003.23 (motions to reopen or reconsider).
331. § 1003.26 (in absentia hearings).
332. § 1003.29 (continuances).
333. § 1003.42 (review of credible fear determinations).
334. § 1003.106 (practitioner discipline).
335. § 1245.13(n)(2)-(3) (rescission of adjustment of status).
336. Rather than attempt to list all the various affirmative relief applications that may be filed in removal proceedings, the draft bill defines the ALJIs' jurisdiction more generically to include all requests for relief or protection that the Immigration and Nationality Act (INA) makes available to noncitizens who are inadmissible or deportable. In addition, the draft bill addresses a nagging problem. At present, the immigration judge has the authority to decide adjustment of status applications that are filed during removal proceedings. § 1245.2(a)(1). But adjustment of status usually requires approval of a visa petition, which only DHS-not the immigration judge-currently has the authority to decide. § 204.1(e)(1).To prevent the immigration judge from granting adjustment of status, DHS often deliberately refrains from acting on the visa petition. As a result, immigration judges have frequently had to grant multiple continuances while they wait for DHS to act on the visa petitions, thus delaying removal hearings for long periods of time.
337. See, e.g., LEGOMSKY & RODRÍGUEZ, (excerpting an unpublished decision in which a judge criticizes INS delay). To cure that problem, this subsection would give the immigration judge the authority to decide any family-related visa petition on which an adjustment of status application filed during removal proceedings depends.
338. See, e.g., 8 U.S.C. § 1229a (2006).
339. See 8 C.F.R. § 1240.
340. See Rules Enabling Act, 28 U.S.C. §§ 2071-72 (2006).
341. 8 U.S.C. § 1229a(b)(1).
342. "[I]t was discovered that the Attorney General had failed to [issue regulations] in large part [] because the INS objected to having its attorneys subjected to contempt provisions by 'other attorneys within the Department,' even if the attorneys do serve as judges." (quoting KEENER & SLAVIN).
343. See Immigration Reform and the Reorganization of Homeland Defense, (recommending that the INS be required to "meet timely pre-trial deadlines... or notify the court and parties of delays").
344. KEENER & SLAVIN, (discussing delay by the INS).
345. See 26 U.S.C. § 7456 (2006) (administration of oaths and procurement of testimony in the Tax Court).
346. To stagger the appointments in a way that would avoid a complete turnover of judges every two years, a transition provision prescribes three-year assignments for one-half of the first cohort of judges.
347. See 8 U.S.C. § 1252.
348. The Judicial Council of each circuit comprises the chief judge of the court of appeals and some of the district and circuit judges of the circuit. 28 U.S.C. § 332(a)(1) (2006). I must acknowledge here the logistical and political challenges that the selection of judges would inevitably entail.
349. See 8 C.F.R. § 1003.1(b) (2009) (establishing the appellate jurisdiction of the BIA).
350. See Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub. L. No. 104-208, div. C, § 306, 110 Stat. 3009-546, 3009-608 (codified as amended at 8 U.S.C. § 1252(a)(2)(B)-(C) (2006)). The draft bill does not disturb some of the other current restrictions on judicial review, such as the limitations on review of in absentia orders, see 8 U.S.C. § 1229a(b)(5)(D), the bars on challenging removal orders via habeas corpus, injunctions, class actions, and other alternatives to petitions for review.
351. § 1252(f), the limitations on review of expedited removal orders,.
352. § 1252(e), and the bar on challenging asylum denials based on missed filing deadlines,. Similarly, the draft bill does not alter the various special removal procedures sprinkled throughout the Immigration and Nationality Act.
353. See generally LEGOMSKY & RODRÍGUEZ, (describing the exceptions to the usual removal procedures, such as for expedited removal, criminal cases, and in absentia hearings).
354. 8 C.F.R. § 1003.1(d)(3).
355. 8 U.S.C. § 1252(b)(4)(B).
356. See 5 U.S.C. § 706(2)(A) (2006) (setting forth the scope of judicial review of agency action).
357. ABA, Resolution 114D Adopted by the House of Delegates 4-5 (Feb. 8-9, 2010), available at http://www.abanet.org/leadership/2010/midyear/daily_jourmal/114D.pdf.
358. COMM'N ON IMMIGRATION,. Ordinarily, reviewing courts must defer to administrative tribunals' reasonable interpretations of the statutes they administer.
359. See Chevron U.S.A. Inc. v. Natural Res. Def. Council, 467 U.S. 837, 844 (1984) ("[A] court may not substitute its own construction of a statutory provision for a reasonable interpretation made by the administrator of an agency."). Because the CAI would itself be a specialized court, however, there is little reason for it to accord deference to the legal conclusions of the ALJIs. The draft bill leaves that decision to the courts.
360. See 8 U.S.C. § 1252(b)(4)(A) (limiting review to the administrative record).
361. 28 U.S.C. § 2071(a) (2006).
362. See 8 C.F.R. § 1292 (2009) (permitting representation by listed categories of nonlawyers).
363. § 1003.38(b) (addressing appeals to the BIA).
364. 8 U.S.C. § 1252(b)(1) (describing petitions for review in the courts of appeals).
365. For a somewhat similar recommendation, (proposing a sixty-day filing deadline, with the discretion to grant a thirty-day extension upon a showing of "excusable neglect or good cause").
366. COMM'N ON IMMIGRATION.
367. 8 C.F.R. § 1003.6(a).
368. 8 U.S.C. § 1105a(a)(3) (1994).
369. 8 U.S.C. § 1252(b)(3)(B) (2006).
370. Nken v. Holder, 129 S. Ct. 1749 (2009).
371. The one exception would be to allow an automatic stay when an immigrant appeals an order rescinding adjustment of status under 8 U.S.C. § 1256-again, unless the CAI directs otherwise.