TOO MUCH DISCRETION VESTED IN IMMIGRATION JUDGES?

Michael Severe graduated from Barry Law in December 2011.  He was one of Professor Birdsong’s favorite students.  During Michael’s last semester he wrote a very interesting and well researched paper in the Refugee Law Seminar arguing that U.S. Immigration Judges have much too much discretionary powers.  I agree with him. Michael has given me permission to publish his paper on my blog.  Read it and learn…

Discretionary Powers of the Immigration Court

And the Board of Immigration Appeals

and Issues Surrounding Particular Social Groups

By: Michael Severe

 I.                  Introduction

 Immigration is a vital part of any nation’s legal framework for many different reasons. It allows for new blood and new ideas to be integrated into a society. The United States has long been a destination for potential immigrants, seeking to benefit from the historical abundance of opportunities in this country, and the safety of political and ideological freedoms. As a result, the United States has developed a large body of both case law, and statutory law designed to address the issues of immigration.

One of the most important forms of immigration in the United States is refugee protection, gained generally through asylum. Asylum has a long and rich history, dating back as far as ancient Greece where criminals could find sanctuary in certain “temples, altars, sacred groves, and statues of the gods”[1]. In Rome, a more modern form of asylum began to take shape when Romulus opened the city to asylum seekers who were seeking a “place of refuge”[2]. Asylum law has taken many forms, and most societies with codified laws have offered some form of protection for people seeking sanctuary.

In the United States, there are numerous codifications of the issues revolving around immigration, refugee protection, and asylum. However, even with all of the written laws, there are still a large number of questions surrounding immigration. There have been countless cases in the Federal Courts, and many of them have to do with questions regarding asylum protection, and how a refugee is eligible to receive this protection.

The modern notion of refugee protection draws its roots to the Universal Declaration of Human Rights which was enacted on December 10^th 1948 by the United Nations General Assembly. Article 14 states: “Everyone has the right to seek and to enjoy in other countries asylum from persecution”[3]. This article was more fully developed by the subsequent Convention Relating to the Status of Refugees (the Convention), approved in 1951 and put into force in 1954[4]. In 1967, the U.N. adopted The Protocol Relating to the Status of Refugees (the Protocol), which is much like the Convention, but removed some of the restrictions found in the Convention[5]. Article I of the Protocol defines a refugee as being a person who “owing to well founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it”[6].

The United States did not adopt the 1951 Refugee Convention but did sign onto the Protocol. As such, the language of the Protocol is found reflected in the Immigration and Nationality Act (INA). Under the INA, the definition of a refugee eligible for asylum reads “(t)he term “refugee” means (A) any person who is outside any country of such person’s nationality or, in the case of a person having no nationality, is outside any country in which such person last habitually resided, and who is unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the protection of, that country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion”[7]. As such, an asylum seeker in the United States must show that he or she fits one of the five categories found in the INA, those of persecution on the basis of 1) race, 2) religion, 3) nationality, 4) membership in a particular social group, or 5) political opinion[8].

While this may seem fairly straight forward, this code has led to an exceptional number of questions since its inception. In order to determine the validity of asylum claims without completely impacting the U.S. Federal Court system, Congress has always delegated the duty of initially adjudicating immigration concerns to a Federal Agency. As a result of this delegation of power, however, several of the procedures found in Federal Court are abrogated by the nature of agency law. The current agency tasked with the adjudication of asylum claims is the Department of Justice (DOJ). The DOJ subsequently has tasked its subunit, the Executive Office of Immigration Review (EOIR), to control what are called “Immigration Courts”.

The job of the judges of the immigration court is to review and “adjudicate immigration cases by fairly, expeditiously, and uniformly interpreting and administering the Nation’s immigration laws. Under delegated authority from the Attorney General, EOIR conducts immigration court proceedings, appellate reviews, and administrative hearings”[9]. Under the principles of the INA and general agency law, immigration judges are afforded great discretion in their decisions and the relief form contrary rulings for applicants is slim.  

It is the premise of this paper that the powers afforded immigration courts and immigration judges are too discretionary, and overbroad. As such, these powers should be curtailed in an effort, and more oversight afforded appellants to provide more uniform results in asylum hearing results across the country and better allow the EOIR to accomplish its mission of fairly adjudicating and administering the Nation’s immigration laws[10]. Additionally, it is asserted here that the requirements for asylum need to be more fully explained so as to afford a more uniform application throughout the nation.

1. II.                  Deference

A)     Origin and Scope of Powers: Agency Law and Immigration Courts

In order to better understand the difference between the rulings of the immigration court when compared to the more traditional Federal Court system, it is necessary to understand the basic principles of agency law and how this affects the EOIR and its rulings through the immigration court. The laws governing agencies in the United States are found in the APA[11]. Under the APA, agencies of the United States may engage in rule making[12] and adjudication[13] of matters relating to the nature of the agency. At issue in this paper are the EOIR’s adjudicative powers as a subunit of the Department of Justice, an agency of the United States. These powers are further solidified under the INA. With regards to factual determinations, “the administrative findings of fact are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary”[14]. Additionally, in regards to discretionary decisions, the decisions of immigration judges “shall be conclusive unless manifestly contrary to the law and an abuse of discretion”[15].

The EOIR does provide an appellate process for the decisions of immigration judges. An asylum seeker, for example, who is unhappy with the result of his or her case may appeal to the Board of Immigration Appeals (BIA). However, the BIA does not act like the traditional appellate court in that it “does not conduct courtroom proceedings – it decides appeals by conducting a ‘paper review’ of cases”[16]. Only on “rare occasions, however, (will) the BIA hears oral arguments of appealed cases, predominately at headquarters”[17]. Therefore, unless there is a glaring error, an appellant to the BIA has little chance to attempt to improve his or her case. Only if the immigration judge’s decision is “manifestly contrary to the law and an abuse of discretion”[18] is the BIA inclined to overturn the judge’s decision. This is quite different than the traditional Federal Court system where an appellant generally has a chance to argue the errors of the lower court. However, this more limited method of review is allowable under traditional agency law.

The BIA is the “highest administrative body for interpreting and applying immigration laws”[19]. As such, when an appellant has exhausted his or her BIA appeal, the final recourse is to appeal to the United States Court of Appeal. Courts had long struggled with the question of whether to afford deference to the decisions of agency adjudicators when a traditional court is asked to review the decision of an agency’s adjudication. In 1984 the Supreme Court, in a landmark decision, issued a ruling in Chevron v. Natural Resources Defense Council, Inc. that set forth the legal test for determining whether to grant deference to a government agency’s interpretation of a statute which it administers[20]. This test, referred to as “Chevron deference” includes two steps wherein courts must determine:

“(1) first, always, is the question whether Congress has directly spoken to the precise question at issue. If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress. (2) If, however, the court determines Congress has not directly addressed the precise question at issue, the court does not simply impose its own construction on the statute, as would be necessary in the absence of an administrative interpretation. Rather, if the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency’s answer is based on a permissible construction of the statute”[21].

 

          This ruling was later curtailed in United States v. Mead Corp. to cover only issues within the agency’s legal purview[22]. However, when an agency is acting within the scope of its mandate, it receives almost unbridled discretion regarding its decisions. Chevron deference combined with the INA statutes noted above[23] makes it extremely difficult for an appellant to receive a proper review of his or her case.

B)   Effect of Deference

          The effect of requiring Federal Courts to apply this level of deference to BIA rulings effectively restricts the Federal Courts from providing substantive relief to cases that come before the court. Additionally, when a Circuit Court finds that the ruling of the BIA and immigration judge is faulty, the Court is required to remand the case, rather than make a ruling on the statute. As the statute in question lays in the purview of the Immigration Court, the adjudicative body of an agency, the Court may not decide matters regarding statutory interpretation on its own.

This was the case in INS v. Ventura. There, the 9^th Circuit Court of Appeals reviewed the findings of the immigration judge and the BIA in an asylum case and found that they were lacking. The Court found that if it remanded the case to the BIA and the BIA came to an unfavorable result as a result of the remand, the Court would simply remand that decision as well. In an effort to promote judicial efficiency, the Court decided the matter without remanding. The Supreme Court overruled that Court of Appeals saying this was outside the scope of the Court of Appeals power, and the Court must simply remand the matter[24]. This decision makes little sense from a judicial efficiency standpoint. However, it is the correct interpretation of current agency law.

The scope of power allowed the immigration courts is extensive. Outside of few, difficult to prove exceptions, there is very little chance for an asylum appellant such as Ventura to gain a proper review of a claim. These powers of the immigration court are not limited just to matters of asylum. Almost any decision of merit ruled on by the immigration judge and BIA are to be afforded an exceptionally high degree of deference. In Urena-Tavarez v. Ashcroft, the 3^rd Circuit found that “whether we agree with the IJ’s characterization of the underlying evidence as credible vel non which led him to conclude that this was not a good faith marriage, is irrelevant, as the statute itself gives the Attorney General (acting through his designee) the sole discretion to weigh the evidence”[25]. This case dealt with the issue of providing waivers to the good faith marriage requirement for aliens applying for a permanent residency. The BIA and the immigration judge denied the waiver, therefore ensuring that Urena-Tavarez would ultimately be deported. Though the court questioned the validity of the marriage in that case anyway, their ultimate ruling was that it did not matter as to do so was statutorily against the mandate of the Federal Courts to interfere with the rulings of the immigration judge and the BIA[26]. This type of ruling is seen across circuits and seems to be the proper interpretation of law. In Suvorov v. Gonzales, the 8^th Circuit held nearly the same holding as the 3^rd, claiming that “whether the qualifying marriage was entered into in good faith by the alien spouse is a discretionary factual determination of the immigration judge”[27]. This was another case regarding the marriage waiver, and resulted in a similar outcome as any case, under current law, should wherein the Federal Courts are being asked to review a case on the merits. This seems counterintuitive to the notion of appellate jurisprudence, but as noted, these cases are in Federal Court through agency action, and other rules apply.

Considering all of these concerns, it begs the question: How does this affect the judiciary process for petitioners of the immigration court? Results were collected by authors Jaya Ramji-Nogales, Andrew Schoenholtz, and Philip Schrag regarding the results of asylum rulings across different national immigration courts[28]. According to this report there are disparity rates between judges in the immigration court that reach epic proportion. One judge can be 1820% more likely to grant an asylum request than another[29]. Though it can be argued that there are disparities in the rulings of judges in any court that can be traced to such reasons as political differences, these disparities don’t reach the exceptionally high levels found in the immigration court[30]. The EOIR has claimed that there are many external factors that may affect a judge’s decision regarding asylum cases[31]. It is inconceivable to the American sense of jurisprudence that legal decisions may be made based on external factors, and not on either statutory, or case law. If this were to occur, then the petitioners in those cases would be able to find relief in a higher court. In the immigration court system, this protection is not available because of the current administrative legal procedure and level of deference given to the immigration court, and the current state of the statutory regulations built into the INA.

C)      Suggestions for Improvement Regarding Deference

In 2006, the Attorney General called for a review of the immigration court. The review showed disparity of rulings that in some cases were overwhelming. It was found that in certain extreme cases, “there were … eight judges who denied asylum to nine out of ten of the applicants who came before them and two judges who granted asylum to nine out of ten of theirs”[32]. The Attorney General saw a need for reform and issued a suggested twenty two measures aimed at reforming the inequalities found in the immigration courts. Though some of these measures have been implemented, there is no conclusive evidence as of yet that they have been successful in altering the system. It should, therefore, become a priority to find a way to balance the state of affairs within the immigration courts, and it is the suggestion here that it start with the level of deference accorded the findings of the immigration courts and the BIA.

                There are several ways in which to improve the current state of affairs with regard to the lack of oversight that currently affects the immigration court. One way would be to amend the APA to provide judicial oversight in administrative matters. This, however, would not be an advisable method. Doing so would affect the efficiency of every agency in the United States, and open the proverbial flood gates in the Federal Courts as any all agency decisions would be subject to Federal judicial review.

                A more effective means would be to lower the level of deference accorded the decisions of the immigration court, specifically. In United States vs. Mead the Supreme Court found that in some cases of agency action, Chevron deference is not appropriate, and that courts may apply a lesser level of deference, known as Skidmore deference[33]. Skidmore deference references a much earlier case in which the Supreme Court outlined a test in which to determine whether a court should defer to the adjudicative decision of an agency[34]. The test as outlined by the court is a four-factor test and examines “(1) the thoroughness evident in its consideration, (2) the validity of its reasoning, (3) its consistency with earlier and later pronouncements, and (4) all those factors which give it power to persuade, if lacking power to control”. Allowing Federal Courts to apply this level of deference to agency action would allow the Courts to review the actions of the judges, not be bound by the few egregious exceptions. The key factors in this test are steps two and three. Allowing Federal Court judges to analyze the validity of the immigration court’s reasoning, and comparing it to the consistency of other pronouncements would allow the Courts to begin to ameliorate the inequities in the granting of such claims as asylum.

          In order to allow for this level of scrutiny, it would require Congressional action to amend the INA. As noted above, the INA currently reads that “administrative findings of fact are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary”[35] and in regards to discretionary decisions, the decisions of immigration judges “shall be conclusive unless manifestly contrary to the law and an abuse of discretion”[36]. These regulations currently reflect a Chevron notion of deference that should be applied to decisions of the immigration court. Therefore, these regulations would need to be changed. A suggested re-writing of these statues is as follows:

INA § 242(b)(4)(B):Administrative findings of fact are conclusive if there is thoroughness evident in its consideration, the validity of its reasoning is sound, its consistency with earlier and later pronouncements is evident, and all those factors which give it power to persuade, if lacking power to control are present.

INA § 242(b)(4)(D): Discretionary administrative findings are conclusive if there is thoroughness evident in its consideration, the validity of its reasoning is sound, its consistency with earlier and later pronouncements is evident, and all those factors which give it power to persuade, if lacking power to control are present.

 

          With regards to the Federal Courts being unable to then interpret the merits of a case on its own, further congressional action is suggested. Again, with regards to only immigration concerns, if a Federal Court reviews a case brought before it, and finds under a Skidmore style deference that the immigration court and BIA acted improperly, and any other decision than a reversal of their ruling would be unacceptable and reversible (as was the case in INS v. Ventura[37]), then Federal Courts should be allowed to issue a decision in that case.

          Once these changes have been effected, the Federal Court would be free to provide more protection to immigration court appellants, and the inconsistencies found in immigration court decisions could begin to be addressed.  It may be claimed that by granting Federal Courts more ability to review immigration court findings would negatively impact judicial efficiency. There are several counter arguments to this line of thought. While these proposed changes would give Federal Courts more latitude in the deference paid the decisions of the immigration court and the BIA, the Federal Court is the last refuge for petitioners of the immigration court. These cases would come to the Federal Court system in any event. However, now the Federal Court would be able to do something about some of the inequalities petitioners face. As for allowing Federal Courts to interpret the facts of the case and issue a ruling in opposition, instead of requiring a remand, if anything, judicial efficiency is increased both in the immigration courts and the Federal Courts. The immigration courts are not forced to revisit the case again, and the Federal Courts know that the case will not be brought to them again if the immigration courts issue a contrary ruling on remand.

1. III.           Social Groups

A)   The Validity of Recognizable Social Groups

The powers of the immigration court and the BIA are not the only concern in current United States immigration policy. Though there are direct statutes on the requirements a petitioner for asylum must meet, in some parts, the statutes are broad and lead to questions about whether a person should or should not be eligible for asylum. The INA code states that “(t)he term “refugee” means (A) any person who is outside any country of such person’s nationality or, in the case of a person having no nationality, is outside any country in which such person last habitually resided, and who is unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the protection of, that country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion”[38].

                Under current United States immigration law, if a petitioner can show than he or she is a refugee under this statute, then that person is eligible for asylum. It is well established that a potential refugee’s fear of returning to his or her country must be based on the fact that it is the government itself that the petitioner fears[39]. From a policy standpoint, this makes sense: Asylum has traditionally been a way for persons to flee an oppressive regime, not private dealings between private parties. The majority of nations have internal ways of dealing with private matters, offering the nation’s legal protections to its citizens. To interfere with that would be to interfere with the mechanisms of a foreign government, which is not something the United States wishes to engage in.

                While the statute has been made clear from the stand point of where the well founded fear must originate, the foreign governing body itself, other parts have proven more vague, and difficult to interpret. Whereas issues of race, religion and political opinion are fairly straight forward, the petitioner must simply show that his or her government persecutes persons in that country based on race, religion and/or political opinion, and that petitioner is of that race, religion, and/or political opinion. However, the last group, members of a particular social group, has long been an issue courts have struggled with. In Fatin v. INS, the court set for three standards for meeting the eligibility requirement to be considered a refugee under the particular social group arm of the INA statute. They are that “(1) the alien must identify a group that constitutes a particular social group… (2) establish that she is a member of that group, and show that (3) she would be persecuted or had a well-founded fear of persecution based on that membership”[40].

          The difficulty lies in the first part of this three part requirement, “identify(ing) a group that constitutes a particular social group”[41]. The questions that arise generally concern the validity of social groups that petitioners claim in their petitions. There is no statutory guide that sets forth what is a valid social group. Courts struggle with the concept of valid social groups. The struggle generally concerns whether a social group is too broad and by recognizing it, the Courts would, again, have a proverbial flood gates issue.

B)   Effect of Struggles Over Recognizable Social Groups

The most notable effect of a lack of direction as to the validity of social groups is that is has led to some confusion across the circuits as to what constitutes a valid social group. This has led to case law confusion that makes it difficult for petitioners to the immigration court to know what to argue when it comes to whether the particular social group they are claiming, will be considered to be a valid social group.

          In the 8^th Circuit case of Safie v. INS, it was ruled that social groups such as “Iranian Women” are too broad[42]. However, in Fatin in the 3^rd Circuit, the court held that “Iranian Women” satisfied the first element of the test[43]. The 6^th Circuit in Rreshpja v. Gonzales has ruled that applicants attempting to form a valid social group must show that the group has “a narrowing characteristic”[44]. Additional courts have put other restrictions on the creation of social groups. The 3^rd Circuit in Lukwago v. Ashcroft held that “a social group cannot be created by the alleged underlying persecution”[45]. In the mind of the court this created a circular reasoning that defeated the purpose behind the social group requirement.

          The policy reasons behind requiring a narrowly tailored, non circular social group are evident. To accept the argument in Fatin that the group “Iranian Women” is an acceptable social group would open asylum protection to any and all women of Iran should they so wish to take advantage of asylum in the United States. It would also allow the women of any other country to argue that they are a particular social group as well. However, policy reasons aside, there is no actual statutory requirement or Supreme Court ruling that requires a narrowing of a social group to an acceptable level or to not consider social groups that may be considered circular to be valid social groups. As there is no statutory guide or Supreme Court ruling, these issues have cause circuit splits and confusion for petitioners desiring to be granted refugee status.

C)   Suggested Recognizable Social Group Remedy

The remedy for this problem is, again, Congressional action. A provision should be added to INA § 101(a)(42) as a subsection. This provision would set out parameters as guidance in determining whether a claimed social group is valid or not. The following is a suggestion of what that provision may look like:

INA § 101(a)(42)(i)- A social group is considered valid under this statue if it meets the following criteria:

A)               A particular social group shall not be overbroad- the acknowledgement of this group shall not encompass a substantial portion of the population of the country or region from which the petitioner originates, unless it meets the exception found in §101(a)(42)(i)(B).

B)               A particular social group shall have a limiting factor- as a part of the group’s makeup, there must be (a) factor(s) that acceptably limit(s) the group both in size and region. A group may be broad and encompass a large portion of the country or region from which the petitioner originates as long as there is an additional factor that limits the group to that exact country or region.

C)               Circular reasoning shall not be employed when describing a limiting factor of a particular social group- A limiting factor shall not be considered valid if it is an appellation of the persecution that is being claimed as part of the application for refugee status.

D)               A valid particular social group shall be limited to an obvious and reasonable static population- For a group to be valid, a reasonable person should be able to estimate the value of the population that would be eligible as a part of this group, and that value should be reasonably sized so as not to overextend the available of refugee status.

 

This statute includes some of the limiting factors that the Circuit Courts have independently found to apply to the statute in question. By codifying it in the INA, Congress would be sending a clear message to the Circuits, the immigration courts, and the BIA, what constitutes a valid social group. This would clear up the circuit splits, and make it clearer for applicants seeking refugee status as to what they must do in order to meet the requirements in the United States.

1. IV.            Conclusion

Immigration policy is important every nation. In the United States, it is particularly important to have a well regulated policy that provides applicants the same level of protections in the courts that the citizens of this country enjoy. While the United States’ immigration policy is, in general, well developed, there is room for improvement.

As it stands now, the immigration courts and the BIA enjoy a level of unregulated deference in their decision making powers. As a result, there are vast discrepancies in the success and failure of claims that come before these bodies. These discrepancies need to be addressed in order to bring the immigration courts in line with the traditional notions of United States justice. The best method to ensure a redress of the imbalances in the system is to provide oversight to the process that is not currently available. The most effective way to implement this much needed oversight is to lower the level of deference afforded the immigration courts and the BIA. Congress should begin to afford these particular agency adjudications a Skidmore level of deference, and change the NIA to reflect this. Additionally, the Federal Courts should also be given the ability to rule on the merits of a case if no other outcome would be sufficient than the one the Court suggests.

Additionally, Congress should act to streamline the ‘particular social group’ arm of the INA code. To do so would promote judicial efficiency as well as assist petitioners in applying for refugee status by making it clear what satisfy a valid social group.

These changes to the INA code and the administrative process would act to further benefit the United States immigration policy in its goal to promote a positive experience to all those who desire to come to the U