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The New Enforcement Bill's Attack On Judicial Review: The Wrong Response To Widespread Judicial Criticism Of The Department of Justice's Unfair And Incompetent Handling of Immigration Casesby Scott Mossman
The Border Protection,
Antiterrorism, and Illegal Immigration Control Act of 2005 (BPAIICA) would
continue the unrelenting campaign to eliminate any check or balance on the power
of the Executive Branch over immigration. Incredibly, it follows an
unparalleled series of opinions from judges across the political spectrum that
decry the inability of the Department of Justice to meet even minimum standards
of fairness and competence. BPAIICA may squelch this source of negative PR
by cutting the number of cases the courts can review, but it will only aggravate
the underlying problem: an unacceptably high number of immigration decisions
that get the facts or law wrong. The House of Representatives apparently
is unperturbed by this erroneous decision-making and the impact it has on
noncitizens and their citizen family members. It passed BPAIICA on
December 16, 2005. The bill is likely to be introduced in the Senate in
February.
How BPAIICA
Discourages, Limits, and Eliminates Judicial Review of Various Immigration
Decisions The provisions of BPAIICA that most
significantly impact judicial review are summarized below, along with some of
their implications:
BPAIICA's Attack
on Judicial Review Follows Widespread Judicial Criticism that Department of
Justice Adjudication Has Fallen Below “Minimum Standards of Legal
Justice” The limitations on judicial review
contained in BPAIICA follow severe criticism of the quality of Department of
Justice immigration decisions by a diverse array of federal judges. A
review of the decisions shows that the criticism is well-founded and should be
addressed through better procedures rather than by attempting to eliminate
judicial oversight. The published opinions of Judge
Richard Posner, a Regan appointee and former chief judge of the Seventh Circuit,
have been particularly critical. In Galina v. INS, 213 F.3d 955 (7th Cir.
2000) he found that the “Board's analysis was woefully inadequate” and that
“elementary principles of administrative law, the rules of logic, and common
sense seem to have eluded the Board in this as in other cases.” Judge
Posner's opinion had not changed five years later in Benslimane v. Gonzales, 430 F.3d 828 (7th
Cir. 2005) where he noted, “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.” He
explained that the “tension between judicial and administrative adjudicators is
not due to judicial hostility to the nation's immigration policies or to a
misconception of the proper standard of judicial review of administrative
decisions. It is due to the fact that the adjudication of these cases at the
administrative level has fallen below the minimum standards of legal
justice.” Other judges and circuits have been
just as critical, from the more conservative courts to the allegedly liberal
Ninth Circuit. The Third Circuit recently granted a petition for review
because “the tone, the tenor, the disparagement, and the sarcasm of the
[immigration judge] seem[ed] more appropriate to a court television show than a
federal court proceeding.” Wang v.
Attorney General, 423 F.3d 260 (3d Cir. 2005). The Fifth
Circuit, which encompasses Texas and Louisiana, likewise recognized the need for
judicial review when it reprimanded an immigration judge for an “arbitrary
exercise of judicial fiat.” Alarcon-Chavez v. Gonzales, 403 F.3d 343
(5th Cir. 2005). With the largest number of immigration cases, however,
the Ninth Circuit has had the most to complain about. In Recinos De Leon v. Gonzales, 400 F.3d 1185
(9th Cir. 2005) for example, it remanded a case because the immigration judge's
decision was indecipherable and the Board affirmed without opinion. The
court expressed sympathy for the immigration judge, however, because it noted
that “it is difficult for IJs to explain their often complicated decisions
adequately” because of their extremely heavy caseloads.
Extremely heavy caseloads and
pressure to decide the cases quickly results in immigration judges typically
making their often complicated decisions from the bench orally at the end of a
hearing, after just a few minutes to collect their thoughts. Moreover,
with new streamlining procedures in place at the Board of Immigration Appeals,
the inevitable factual errors and misinterpretation of the law that result are
less likely to be corrected. Since the Board is either unable or unwilling
to ensure a correct result and proper procedures, it falls to the federal
courts. Those courts, “at the risk of sounding like a broken record,
[have] reiterate[d their] oft-expressed concern with the adjudication of asylum
claims by the Immigration Court and the Board of Immigration Appeals and with
the defense of the BIA's asylum decisions in this court by the Justice
Department's Office of Immigration Litigation.” Pasha v. Gonzales, --- F.3d ----, 2005 WL
3549217 (7th Cir. 2005). Indeed, the poor handling of
immigration cases has received so much negative attention from the federal
courts and the media that the Attorney General has taken an extraordinary
step. He launched a comprehensive review of the immigration courts and
Board of Immigration Appeals, which he announced in a memo dated January 9,
2006. This willingness to look into the situation is commendable. The
action taken by the House of Representatives, on the other hand, is not.
BPAIICA would eliminate much of the Judiciary's remaining oversight, which
signals the House's continued tolerance of sloppy, erroneous decision-making in
immigration cases. Shielding Sloppy,
Erroneous Decision-Making by the Executive Branch from Judicial Review Is
Inconsistent with Our System of Government and It Sends the Wrong Message to
Other Nations Our system of government is founded
on the idea that the Judiciary should have the authority to prevent arbitrary,
lawless action by the Executive Branch. The recent trend, however, is
toward increasing executive power and making it unreviewable. BPAIICA, the
USA PATRIOT Act, the REAL ID Act, and the justifications put forward for
wiretapping without warrants all evidence this trend. But it's not
right. It is contrary to our core values and it makes us seem
hypocritical. Our actions will speak louder than our words to the leaders
and peoples of Iraq, Afghanistan, and the other countries where we are
purportedly trying to establish governance by law rather than by
fiat. As we all should have learned in
high school, the framers of the Constitution established a system of checks and
balances designed to prevent any single branch of government from amassing too
much power. The Judiciary acts as a check on the Executive Branch by
deciding whether its enforcement actions are consistent with the statutes,
treaties, and Constitution of the United States. Of course, in immigration
matters (along with other administrative matters) the Judiciary does not provide
the initial adjudication of the cases. Instead, the Executive Branch
serves as the cop, judge, and jury. The arrangement is permissible,
however, so long as a person subject to it can obtain review from the
Judiciary. The BPAIICA provisions summarized
above would eliminate or limit judicial review for several classes of
immigration decisions. They would add to existing laws that already
eliminate review of factual errors and abuse of discretion in many
matters. Without recourse to the independent judicial oversight, the
result is bound to be an increase in the already substantial number of
erroneous, arbitrary, and lawless decisions by the Attorney General and his
subordinates. As James Madison stated in The Federalist No. 51, “If men
were angels, no government would be necessary. If angels were to govern
men, neither external nor internal controls on government would be
necessary.” More than two hundred years later, we still do not have a
government of angels. Therefore, external and internal
controls on our government are necessary. In the case of immigration
decisions by the Department of Justice, those controls must reside in the
Judiciary because immigration judges and members of the Board of Immigration
Appeals are incapable of exercising the necessary level of independence.
They are employees of the Department of Justice. The Attorney General
hires and fires them and also sets the regulations and policy that bind
them. Even aside from the issue of independence, the inadequacy of
administrative decision-making within the Department of Justice is evident from
the widespread judicial criticism mentioned above. But why is it important to provide
these protections to persons who are not even citizens? First, I would
point out that we are talking only about noncitizens that we already have
admitted to the United States or that have arrived at our gates with a valid
visa (not the masses of persons outside the United States who might simply wish
to enter). Of those, the noncitizens who will suffer the most from BPAIICA
are those with strong ties to the United States. They include the spouses,
parents, children, and extended family of United States citizens. They
include professors, researchers, and students at U.S. universities and essential
skilled employees of U.S. businesses. Arbitrary, lawless, and simply
erroneous decision-making hurts not only these noncitizens, but also U.S.
families, institutions, and businesses. The harm to these Americans is
serious too, since their noncitizen family member or employee will be barred
from return for a period of ten years to life if removed. More
fundamentally though, the United States should be concerned about fair and
correct decision-making in a matter as serious as deportation simply on
principle. Our Constitution and its guarantee of due process do not distinguish
between citizens and noncitizens: It protects any person present in the United
States from arbitrary, lawless action. This is something to be proud of,
not something to relegate to the garbage heap. Garbage, though, is
precisely what will come to mind when people in other countries think of our
supposedly superior system of government if our trend toward unchecked executive
power continues. BPAIICA goes a long way toward unchecked executive power,
at least in the area of immigration—the part of our government that noncitizens
are likely to have extensive experience with. When we revoke the visa of a
person admitted to the United States without explanation and without any
opportunity to challenge the decision, what will she tell her friends back home
after we remove her? How does a father explain to his children the reasons
for the family's removal when the immigration judge's decision misstated the
facts, the Board of Immigration Appeals affirmed without opinion, and the
family's petition for review was denied after sixty days without any word from
the Court of Appeals? Even the fairest-minded of these people will become
emissaries of ill-will toward the United States. Why should we care?
Most obviously, we need goodwill abroad to succeed in finding and stopping real
terrorists and to succeed in our foreign policy objectives. We also need
to set a good example if we hope to encourage stable, just governments in other
countries. Congress Could
Implement Changes to Speed-Up the Review of Removal Cases and Preserve Agency
Discretion While Still Protecting Noncitizens and Their Citizen Family Members
from Arbitrary and Erroneous Decision-Making If Congress is seriously interested
in addressing the undeniable flaws in our system of immigration adjudication,
there are positive changes that could be made without sacrificing our
values. The need for judicial review could be lessened. Appeals to
the Board of Immigration Appeals and petitions for review to the federal courts
could be decided more quickly. The proper and improper roles for the
Judiciary could be clarified. To start, Congress
should: ·
Require the Attorney General to provide at least one
level of administrative review and require specific reasons for sustaining,
denying, or dismissing an appeal (i.e., eliminate affirmance without
opinion). Affirmance without opinion by the
Board of Immigration Appeals is the surest way to get a lawyer to recommend that
a client seek judicial review. Immigration judge decisions almost always
contain significant errors. If the Board is unwilling to explain why the
decision is correct despite the errors, the lawyer and client are going to look
to a higher court for a reasoned explanation. On the other hand, if the
Board listens to the appellate arguments of both sides and identifies strong
reasons for denying an appeal and evidence in support thereof, a petition for
review will be a waste of money. Even if a petition for review is filed,
then at least the Board will have narrowed the issues for the Court of Appeals,
thereby reducing the expenditure of judicial resources and increasing the
probability of a final decision rather than a remand for further
proceedings. ·
Eliminate the proposed certificate of reviewability
requirement, but not require a brief from the Department of Justice until a
Court of Appeals screening panel declines to dismiss the
case.
The most objectionable parts of the certificate of reviewability proposal are
(1) it presumes immigration cases are unreviewable until a judge decides
otherwise and (2) a case could be automatically dismissed without any decision
from the court. Congress could lessen the workload of the courts and the
Department of Justice without these provisions. As an initial matter, the
courts are perfectly capable of managing their caseload without Congress'
interference. The Ninth Circuit, which has the greatest number of
immigration cases, already uses staff attorneys and screening panels to quickly
dispose of simple or meritless cases. (The major source of delay comes not
from the court, but from the DOJ's slow preparation of administrative records,
addressed below.) As for the increased workload that DOJ created for its
own attorneys through Board of Immigration Appeals streamlining, the best
solution is to end the affirmance without opinion procedure and to encourage
better decisions by the Board as discussed above. Alternatively, Congress
could require the courts to use screening panels and staff attorneys in all
immigration cases and provide that a DOJ brief shall only be required if a Court
of Appeals screening panel decides not to dismiss the petition in an unpublished
decision. ·
In removal proceedings, mandate the use of a system
of electronic filing by represented persons and electronic capture of filings by
the court for unrepresented persons. Currently, the longest delay in most
immigration cases before the federal courts is the amount of time it takes for
the Department of Justice to prepare the administrative record of the
proceedings before the immigration court and the Board of Immigration
Appeals. That amount of time could be dramatically reduced through the use
of technology. In recognition of the availability of cheap or free
programs to create PDF files and the low cost of digital scanners, the federal
district courts are now converting to electronic filing procedures. The
immigration courts and Board could use those procedures as a guide to establish
their own electronic filing system. Participation by attorneys and
accredited representatives of nonprofit organizations should be mandatory.
Some unrepresented persons might not be able to participate, but their scanning
could be done by court personnel. That burden would be slight compared to
the savings in time and shipping costs to the DOJ. ·
Require posting of an appeal bond of $750 before
permitting a petition for review to the Court of Appeals, except in asylum,
withholding of removal, or Convention Against Torture relief
cases.
Admittedly, this is a controversial idea, but federal and state courts
throughout the country require the posting of bonds for the costs of appeal (and
sometimes attorney fees) in regular civil cases, so why not in immigration
cases? If the federal court does not grant the petition or remand the
case, the amount of the bond would go to the Department of Justice to defray the
costs of defending its administrative decision. A grant or remand would
result in the noncitizen getting the bond money back with interest.
Requiring a bond thus would discourage meritless appeals, especially in
conjunction with the $250 petition for review filing fee. $1000 would go a
long way in many of the countries that noncitizens are removed to. An
exception would be necessary, however, for persons who are seeking review of the
denial of asylum, withholding of removal, or Convention Against Torture relief
(and no other form of relief). These persons typically have few resources,
as the Department of Homeland Security recognizes by not charging a filing fee
for the application for these forms of relief. ·
Amend the current law to prohibit only judicial
review of the weighing of discretionary factors, while allowing the courts to
vacate and remand any discretionary decision that rests on a significant factual
error or that substantially departs from regulations or published opinions that
guide the exercise of discretion. BPAIICA would entirely eliminate judicial
review of discretionary decisions. Of course, the courts have no place
second-guessing the Attorney General or Secretary of Homeland Security every
time one or the other exercises their discretion. But what if the
discretionary decision was based on a major factual error? What if the
decision disregards binding regulations or opinions? BPAIICA would
prohibit any review even in these situations. Arguably review would be
available if the decision was so arbitrary that it rose to the level of a denial
of due process, but some courts have found that due process is not implicated by
the denial of a discretionary benefit and have refused to correct obvious legal
or factual errors. In other words, so long as the benefit at issue is
deemed discretionary, the immigration agencies are free to disregard the law
that is supposed to channel that discretion. Providing for even extremely
limited review of discretionary decisions would go a long way toward fixing
that. ·
Refuse to pass the Border Protection, Antiterrorism,
and Illegal Immigration Control Act of 2005. There are many other
extremely troubling provisions in BPAIICA besides the sections discussed above,
so the Senate should reject the entire bill. As to judicial review,
however, the most objectionable parts are sections 208, 212, 609, 610, 802, 803,
805, 806, 807, and 808.
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