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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 Cases

by 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:

  • Section 208 conditions the benefit of voluntary departure on not appealing or seeking any further review of an immigration judge's decision.  Persons denied asylum, withholding of removal, or Convention Against Torture relief face the most chilling consequences due to 208.  They might be forced to accept an erroneous decision in order to use voluntary departure to go to a safer third country because they would be forcibly removed to the country where they fear persecution if they appeal and lose.  (It is entirely possible to have a legitimate fear of persecution and yet not meet all of the legal requirements for these forms of relief.)  Moreover, although subsection (a) of Section 208 is entitled “Encouraging Aliens to Depart Voluntarily,” it provides no incentives for aliens to depart after appeal by eliminating the option of voluntary departure. Voluntary departure encourages aliens to leave because often its use facilitates a quicker lawful return in the future.

  • Section 212, in conjunction with current law, would eliminate judicial review of arbitrary denials of motions to reconsider or reopen.  Presently, the Department of Justice receives a high level of deference and the courts may only intercede if the DOJ decision is so outrageous that it is arbitrary, capricious, or contrary to the law.  Such review would not be available under BPAIICA.

  • Section 609 prohibits judicial review of the Department of Homeland Security's determination that an immigrant may not naturalize due to support for or endorsement of acts or groups that DHS deems “terrorist” (or otherwise comes within the terrorism definition of the Act).  The elimination of judicial review over this issue is extremely troubling given the permitted use of secret evidence and the broad, vague terms of the terrorism definition, which could encompass constitutionally-protected speech and association with legitimate groups that do not support terrorism (but have two or more members that do).

  • Section 609 also allows the Department of Homeland Security to strip courts of the ability to compel action on long-delayed decisions on naturalization applications.  It does this by allowing DHS to define “examination” in a way that prevents the 180-day clock for a decision from ever beginning.

  • Section 609 additionally prohibits any judicial review of a decision that a naturalization applicant lacks good moral character.  Thus, the Department of Homeland Security is free to disregard the carefully prescribed statutory definition of GMC and its own extensive regulations without any legal consequences.

  • Section 610 reduces to seven days the amount of time to file a petition for habeas corpus to challenge an expedited removal order.  (Expedited removal orders are issued by law enforcement officers, without any participation by an immigration judge, to remove certain noncitizens in a short period of time; BPAIICA would expand their use.)  Under the current law, a noncitizen subject to expedited removal has only fourteen days to file a habeas petition.  Fourteen days is an incredibly short period of time for a detained person to find an attorney and for the attorney to research the case and submit a habeas petition.  Only detainees with friends or family in the United States and a lot of money to pay the premium for quick legal service have a chance under the current law.  With BPAIICA's mere seven days, it will be virtually impossible to obtain judicial review of an unlawful expedited removal order.

  • Section 802 allows for the revocation of the visa of a nonimmigrant already admitted to the United States without any administrative or judicial review.  (Nonimmigrants include, students, temporary skilled workers, fiancées of citizens, treaty traders and investors, religious workers, cooperating victims of serious crime, etc.)

  • Section 805 imposes a new “certificate of reviewability” procedure that presumes immigration cases should not receive judicial review.  A single judge reviews the noncitizen's brief, and, unless the judge grants the certificate within sixty days, the petition automatically is dismissed—even if the judge simply makes no decision on the case.  No rehearing is available if the judge does not grant a certificate.  Further, the government does not need to file a brief unless the judge grants the certificate.  These onerous requirements are unlike those imposed on persons seeking judicial review of the decisions of any other agency of the United States.

  • Section 806 requires all recipients of nonimmigrant visas to waive their right to challenge erroneous decisions to deny their admission to the United States.  It also requires them to waive their eligibility for any form of relief from removal other than asylum.  For example, a noncitizen admitted as a student could not challenge the accuracy of allegations that he failed to maintain his student status.  Relief in removal proceedings, such as through a bona fide marriage to a citizen or exceptional and extremely unusual hardship to a citizen child, would not be available.  The expansive language of section 806 even would deny him the right to a removal proceeding after he became a permanent resident, so long as he originally entered as a nonimmigrant.

  • Section 807 specifically prohibits judicial review of any discretionary decision related to immigration (other than asylum), even if the decision is so arbitrary that it violates published regulations or opinions.

  • Section 808 eliminates Equal Access to Justice Act fee and cost awards to noncitizens that prevail in judicial proceedings, unless they establish that the government's determination of removability was not substantially justified.  In the majority of cases, removability is conceded and the real issue is eligibility for relief from removal (asylum, adjustment of status, cancellation of removal, etc.).  Under BPAIICA, EAJA fees would not be available where the government's position on asylum, adjustment of status, cancellation, etc., was not substantially justified.

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.

About The Author

Scott Mossman is an immigration attorney practicing in Oakland, California. He participates in the Constitutional Rights Coalition, a San Francisco-based coalition of organized labor, immigrant rights, and civil liberties groups, on behalf of the Immigrant Legal Resource Center. This article does not necessarily represent the views of the Constitutional Rights Coalition or the Immigrant Legal Resource Center. Scott Mossman can be reached at:

The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.