Unpublished Birdsong Article on the Immigration Courts

^*Leonard Birdsong is a Professor of Law at Barry University School of Law, Orlando, Florida.  He received his B.A. (Cum

Laude) at Howard University and his J.D. from Harvard Law School. He teaches immigration law, refugee and asylum law and criminal law.  He wishes to thank Professor Frederick Jonassen for reading and commenting on drafts of this article, and he thanks his Research Assistant, Carissa Aponte, for her editorial assistance. He also wishes to acknowledge Reference Librarians Louis Rosen and Patricia Brown of the Barry University School of Law Library for their excellent and valuable research assistance in preparation of this article. Finally, he wishes special thanks to Dean Leticia Diaz for her financial support by awarding a research grant from Barry University Law School for the completion of this project.

[1] Our country’s immigration laws are found in the Immigration and Nationality Act (INA) of 1952 as amended. The INA has been codified in the United States Code Annotated at 8 U.S.C.A. §§ 1101 et seq.

[2] See, INA § 101(a) (42) (A) and www.justice.org/eoir/press/2010/EOIRataGLANCE09092010.htm

[3] See, INA § 208 (b)(1)(A) and (B)

[4] See, Leonard Birdsong, A Legislative Rejoinder To “Give Me Your Gays, Your Lesbians, and Your Victims of Gender Violence, Yearning To Breathe free of Sexual Persecution,” 35 William Mitchell Law Review 197, 198 (2008).

[5] See, Pamela Constable, Persecuted Gays Seek Refuge in U.S., Wash. Post, July 10, 2007, at A6.

[6] Id.

[7] Id.

[8] Id.

[9] Id.

[10]  See, Ramji-Nogales, J, Schoenholtz, A.I, & Schrag, P.G., Refugee Roulette: Disparities in Asylum Adjudication, 60 Stan. L. Rev. 295 (2007-2008) Hereinafter the Asylum Study.

[11] Id.

[12]  See, e.g., Stephen Legomsky, Restructuring Immigration Adjudication, 59 Duke L. J. 1635 ( 2009-2010); Victoria Nourse and Gregory Shaffer, Varieties of New legal Realism: Can a New World order Prompt a New Legal Theory, 95 Cornell L. Rev. 61 (2009-2010);  Kevin Johnson, Ten Guiding Principles for Truly Comprehensive Immigration Reform: A Blueprint, 55 Wayne L. Rev. 1959 (2009) ; Stephen Legomsky, learning to Live with Unequal Justice: Asylum and the Limits to Consistency, 60 Stan L. Rev. 413 (2007-2008);  Margaret Taylor, Refugee Roulette in an Administrative law Context: The Déjà vu Decisional Disparities in Agency Adjudication, 60 Stan. L. Rev 475 (2007-2008); Michele Benedetto, Crisis on the Immigration Bench – An Ethical Perspective, 73 Brook. L. Rev. 467 (2007-2008); and Stephen Lee, Private Immigration Screening in the Workplace, 61 Stan. L. Rev 1103 (2008-2009)

[13]  See, Asylum Study, supra note 10 at 296.

[14] See, www.justice.gov/eoir/origininfo.htm. The Executive office for Immigration Review(EOIR) was created on January 9, 1983, through an internal Department of Justice (DOJ) reorganization which combined the Board of Immigration Appeals (BIA) with the Immigration Judge function previously performed by the former Immigration and naturalization Service (INS) (now  part of the Department of Homeland Security).

[15] See, 8 U.S.C. 1101(b) (4): The term “immigration judge” means an attorney whom the Attorney General appoints as an administrative judge within the Executive Office for Immigration Review, qualified to conduct specified classes of proceedings, including a hearing under section1229a of this title. An immigration judge shall be subject to such supervision and shall perform such duties as the Attorney General shall prescribe, but shall not be employed by the Immigration and Naturalization Service.

[16] See, David A Martin, T. Alexander Alienikoff, Hiroshi Motomura, and Maryellen Fullerton, Forced Migration: Law and Policy, at xi, (2007 Thomson West): INS – until 2003 a component of the Department of Justice, INS was the lead federal agency on immigration policy and operations. In 2003, INS was abolished by Congress and its functions were transferred to three separate units of the new Department of Homeland Security.  Those three separate units are the U.S. Customs and Border Patrol, the U.S. Immigration and Customs Enforcement, and the U.S. Citizenship and Immigration Services.

[17] This is a personal observation gained through my earlier career experience as a U.S. State Department Foreign Service officer who sometimes worked closely with immigration enforcement officers. A few of them later moved on to serve as immigration judges.

[18]  The Board of Immigration Appeals (BIA) is a component of the Executive Office for Immigration Review (EOIR). See, www.justice.gov/eoir/press/2010/EOIRataGlance09092010.htm.

[19]  See, INA § 208(a) (3) (b).

[20]  See, Stuart Grider, Sexual Orientation as Grounds for Asylum in the United States – In re Tenorio, 35 Harv. Int’l L.J. 213, 215.

[21] See, Birdsong, Give me Your Gays, Your Lesbians, and Your Victims of Gender Violence, Yearning to Breathe Free of Sexual Persecution, 36 Nova Law Review 373 (2008)

[22]   No court system is without some problems. Many of the problems so far outlined in this article may make the faint of heart want to run from practice in immigration court.  But take heart, a practice dedicated to representing clients in immigration court can be some of the most important work a lawyer can perform because such work is part of a worldwide effort to assure humanitarian relief for victims of persecution.  Asylum lawyers believe much of their work is helping to save the lives of those who may be sent back to a country where they might face harsh persecution and, in some cases, even death. There is much persecution in the world. Many of those fleeing persecution come to the U.S.

[23] The author spent May 30 and July 16 and 18, 2012, observing master calendar hearings and an asylum hearing in the Orlando Immigration Court. The author also visited the San Francisco Immigration Court and observed master calendar hearings on June 20, 2012.

[24] See, Hon. Dana Leigh Marks, An Urgent Priority: Why Congress Should Establish an Article I Immigration Court, 13-1 Bender’s Immigr. Bull, at 10, 11 (2008).

[25] I have represented a goodly number of asylum seekers in immigration court over the years and have written two articles examining the phenomenon of persecution based on sexual orientation and gender violence as grounds for grants of asylum. In a previous article I wrote that: “An integral part of our immigration law is the implementation of rules of human rights allowing those persecuted in their homeland to seek protection in the United States.” I also cited therein John A. Russ IV who maintains, “Asylum and human rights doctrines are intertwined in that how a country defines persecution reflects its beliefs about what constitutes human rights violations. “ See, Birdsong, “Give Me Your Gays, supra at note 21 at 357.

[26] United Nations Convention Relating to the Status of Refugees, art 1A(2), July 28, 1951, 19 U.S.T. 6259, 189 U.N.T.S. 150 [hereinafter 1951 Convention] reprinted in GUY S. GOODWIN-GIL & JNE MCADAM, The Refugee In International Law 573 (3d ed. 2007)

[27]  1967 Protocol, art. 1A (2) See Goodwin-Gill & McAdam, The Refugee, Id at  588.

[28]  See, Deborah A. Morgan, Not Gay Enough for the Government: Racial and Sexual Stereotyping in Sexual Orientation Asylum Cases, 15 Law & Sex. 135, 139 (2006)

[29]  See, 1967 Protocol, Preamble and Article I ¶ 2 cited in See Godwin-Gill & McAdam, The Refugee, supra at note 26 at 588.

[30] Id.

[31] See, INA 101(a) (42) (A), 8 USC 1101(a) (42) (A), See, also, Martin, et al, Forced Migration, supra note 16, at 76-77 (2007).

[32] Id, an alien will be considered a refugee if she has suffered persecution in the past on account of one of the statutory grounds or if she can show an objectively reasonable fear of such persecution in the future.  See, generally INS v. Cardoza-Fonseca, 480 U.S. 421, 427-28 (1987).

If the alien establishes past persecution, moreover, a rebuttable presumption arises in favor of granting asylum. Draganova v INS, 82 F.3d 716, 722 (7th Cir. 1996). Yet that presumption may be overcome by evidence suggesting that conditions in the alien’s home country have changed to such an extent that she no longer is in danger of persecution there. Draganova, supra at 722.  See also 8 C.F.R. § 208.16(b) (2).

[33]  Id.

[34]  Id.

[35]  See, INA § 101(a) (42) (A).

[36]  See, Joseph Landau, Soft Immutability and Imputed Gay Identity: Recent Developments In Transgender and Sexual Orientation-Based Asylum Law, 32 Fordham Urb. L. J. 237, 239-40 (2005).

[37] Id.

[38]  See, INA 101(a) (42) (A), 8 USC 1101(a) (42) (A).

[39] This provision of the law is found at INA 241(b) (3) (A) and was formerly known as withholding of deportation. The amendments to the INA in the 1996 Illegal Immigration Reform and Immigrant Responsibility Act replaced former hearings known as Deportation hearings and Exclusion hearings and renamed them both as Removal hearings.  Removal is synonymous with deportation.  The concept of deportation is readily recognized by most people.

[40] See, Landau, Soft Immutability, supra at note 41 at 241.

[41] INA section 208(a) (2) (B).

[42] See, INA § 208 (b) (1) (A): The Secretary of Homeland Security or the Attorney General may grant asylum [emphasis added] to an alien who has applied for asylum in accordance with requirements and procedures by the Secretary of Homeland Security or the Attorney general.

[43] See, INA 241(b) (3) (A), 8 USC 1231(b) (3) (A): The Attorney General may not remove an alien  [emphasis added] to a country the Attorney General decides that the alien’s life or freedom would be threatened in that country because of the alien’s race, religion, nationality, membership in a particular social group, or political opinion.

[44] See, INA 209(a) (1) (B), 8 USC 1159 (a) (1) (B).

[45]See, Landau, Soft Immutability, supra at note 41 at 241.

[46]  See, INA §209(a).  A legal permanent resident is awarded what is known as “green card” status which allows them to remain in the United States indefinitely on good behavior.

[47] See, David Weissbrodt and Laura Danielson, Immigration Law and Procedure In A Nutshell (6^th ed.), at 349-351.

[48] Id  at 350

[49] Id.

[50] Id at 346.

[51] Most applicants seeking for some form of immigration benefit must file an immigration application or petition.  The correct form for applicants seeking asylum, withholding of removal or relief under the Convention Against Torture is form “I-589.” Such application may be downloaded at no charge from the website of the U.S. Citizenship and Immigration Services. See, www.uscis.gov.

[52] This is the abbreviation for the U.S. Bureau of Citizenship and Immigration Services, Department of Homeland Security. Created in 2003, this bureau houses the principle services and adjudication functions inherited from the Immigration and Naturalization Service (INS), including asylum officers and the refugee corps.  It is sometimes referred to as CIS.  See, David A. Martin et al, Forced Migration: Law and Policy, supra at note 16 at xi.

[53]  See, Id at 79.

[54] Id.

[55] Id.

[56] Id at 81.

[57] The “charging document” in an immigration case is called a “Notice To Appear.” It services the purpose of advising the noncitizen what immigration laws he or she has violated and functions much like an indictment or information in a criminal case by providing the specifics, dates of, and sections of the immigration law violated.

[58] See, David A. Martin et al, Forced Migration: Law and Policy, supra at note 16 at 81.

[59] Id at 80 and see, at x.: ICE – Bureau of Immigration and Customs Enforcement, Department of Homeland Security.  Created in 2003, this bureau houses interior enforcement functions transferred from the former INS, including investigations, detention and removal, and the trial attorneys who represent the government in Immigration Court.

[60]Id at 80. Typically the alien makes known at the master calendar hearing (the first appearance in Immigration Court) her wish to seek asylum or withholding as a form of relief from removal, and the judge then grants a specified period of time for the completion of the Form I-589 to be filed with the Immigration Court.

[61] See, Alan G. Bennett, The “Cure” That Harms: Sexual Orientation- Based Asylum and The Changing Definition of persecution, 29 Golden Gate U. L. Rev. 279,284 (1999).

[62]  Id.

[63] INA sec. 208(b) (1) (B).

[64] See, The “Cure” That Harms supra at note 61 at 284.

[65] Id.

[66] Id.

[67] Id.

[68] See, Martin, et al., Forced Migration Law and Policy, supra, at note 16 at 83.

[69] See, Bennett, The “Cure” That Harms, supra, note 61 at p 285.

[70] See, Martin, et al., Forced Migration Law and Policy, supra, at note 16 at 83.

[71] See, Bennett, The “Cure” That Harms, supra, note 61 at 285.

[72] Id.

[73]  Id.

[74]  Id.

[75] See, Martin, Forced Migration, supra at note 16 at 79.

[76] See, DHS, Annual Flow Report: Refugees and Asylees: 2010 at p 5, https://www.dhs.gov//immigrationstatistics, (May 2011).

[77] Id.

[78] Id.

[79] Id.

[80] Id, at 6: The largest percentages of individuals granted asylum in 2010 affirmatively were living in California (37 percent), New York (15 percent) and Florida (13 percent).  Approximately two thirds of individuals granted affirmative asylum resided in these three states.  Other major states included Virginia (4 percent), Maryland (3.5 percent), Washington (3.0 percent), and Illinois (2.5 percent).

[81] Id, at 5.

[82] Id.

[83] Id.

[84] See, https://www.indexmundi.com/united_states/median_age.html.

[85] See, Annual Flow Report supra note 67 at 5.

[86] See, Asylum Denial rate reaches All Time Low: FY 2010 results, a Twenty-five Year perspective, at 1, https://trac.syr.edu/immigration/reports/240/ September 2, 2010

[87] Id.

[88] Id.

[89] Id, TRAC reports that the latest FY 2010 figures reveal that more than nine out of every ten (91%) are now represented by counsel, up from just over half (52%) twenty-five years ago in FY 1986.

[90] INA 208(a) (2) (B).

[91] INA 208(d) (2) and 208(d) (6).

[92] See, U.S. Department of Justice, Executive Office for Immigration Review, Office of Planning, Analysis, and technology, Immigration Courts FY 2011 Asylum Statistics, February 2012 at 7.

[93] Id.

[94] Id.

[95] Id.

[96] Id.

[97] Voluntary Departure is a form of discretionary relief which allows Immigration Judges to grant otherwise removable aliens to depart the United States at their own expense. They may be barred from reentering the U.S. for up to 10 years and be subjected to civil and criminal penalties if they fail to depart or reenter without proper authorization. See, U.S. Asylum System: Significant Variation Existed in Asylum outcomes across Immigration courts and Judges, GAO-08-940, Sep. 25, 2008, at 16 note 16. https://gao.gov/products/GA)-08-940.

[98] See, The Asylum Study, supra at note 10 at 325.

[99] Id.

[100] Id. at 325-26 note 48.

[101] Id.

[102] Id. at 326.

[103] Id.

[104] Id.

[105] Id. Unlike in federal court where the merits of certain cases may warrant that the case be assigned to a U.S. magistrate judge or to a senior judge, it has always been assumed in the immigration court system that each and every immigration judge has the knowledge and experience to properly apply his or her discretion in deciding any asylum case assigned.

[106] See, U.S. Asylum: Significant Variation Existed in Asylum Outcomes Across Immigration Courts and Judges, GAO-08-940. Sep. 25, 2008, at 17 note 20, http//gao.gov/products/GAO-08-940.

[107] Id at note 21: 5 C.F.R sec. 6.3(a) allows the head of an agency to fill excepted service positions by appointment of persons without civil service eligibility or competitive status.  Schedule A positions are “positions other than those of a confidential or policy determining character” and are considered career positions.  The authority to appoint an Immigration Judge is vested in the Attorney General pursuant to 8 U.S.C. sec. 1101(b) (4).

[108] Id at 17, note 23.

[109] The Asylum Study examined disparities in outcome by immigration officers in affirmative filing cases, the Immigration Courts, the circuit courts of appeal and the Board of Immigration Appeal.  This article focuses only on the disparities among and within the immigration courts.

[110] Asylum Producing countries in the Asylum Study were countries that had at least 5000 asylum claims before the immigration courts in FY 2004, and a national grant rate of at least 30%. Asylum officer and Immigration Court judges have reached a consensus that many of the applicants from these countries are bona fide refugees. The fifteen countries meeting these criteria were: Albania, Armenia, Cameroon, China, Colombia, Ethiopia, Guinea, Haiti, India, Liberia, Mauritania, Pakistan, Russia, Togo and Venezuela. See, Asylum Study, supra note 10 at 312.

[111] The Asylum Study, supra, note 10 at 328.

[112] Id at 331.

[113] Id.

[114] Id at 332, The eight courts are: the Baltimore, Chicago, Los Angeles, Miami, Newark, New York, Orlando and San Francisco immigration courts.

[115] Id. at 333.

[116] Id, The authors of the study explain p. 333, note 65, “the fact that these judge’s decisions are not necessarily inaccurate simply because their grant rates are discrepant with the nation average.  It could be, for example that a judge with an unusually high grant rate is deciding cases as fairly as possible, and that the average grant rate is inaccurate because a plethora of low granting judges who are not deciding cases as fairly as the high granting outlier judge.*** To be clear we are not advocating that judges be disciplined or otherwise sanctioned based solely on discrepant grant rates, but instead that the data may be a jumping off points for a more thorough examination of performance and professionalism in the courtroom.”

[117] Id.

[118] Id, that is, for example, Ethiopians may all have better claims for asylum because of the upheavals and changes in government in that country over the last thirty years. On the other hand asylum seekers from a country such as Sudan where northern Sudanese have perpetrated atrocities of southern Sudanese over the last 30 years, so persons from south Sudan would probably have more viable claims for asylum than those from the north of the country.

[119] Id.

[120] Id.

[121] Id at 340.

[122] Id.

[123] Id at 341.

[124] Id.

[125] Id.

[126] Id at 342.

[127] Id.

[128] See, www.justice.gov/eoir/sibpages/ICadr.htm . Last visited December 20, 2012. At the bottom of this website page are listed all of the immigration courts and the names of each judge on each court. A count of the names reveals there are 94 female judges out of a total of 263 immigration judges.

[129] Again, as stated in note 17 infra, this is a personal observation gained through my earlier career experience as a U.S. State Department Foreign Service officer who sometimes worked closely with immigration enforcement officers. Most of the enforcement officers were men. Some went on to be immigration judges.

[130] I was the head of the Nonimmigrant Visa Section of the U.S. Consulate in Hamburg, Germany for 1986, 1987, and 1988, during which I oversaw the issuance of 330,000 U.S. nonimmigrant visas to citizens from approximately 80 different countries.

[131] This power of executive delegation in immigration matters was first recognized in the case of Yamataya v. Fisher, 189 U.S. 86 at 99-100, 23 S. Ct. 611 at 614 (1903).

[132] This author’s exequatur was issued on July 1985, and was signed by then President Ronald Reagan and Secretary of State George P. Shultz.

[133] See, Asylum Study, supra at note 10 at 345 -346

[134] Id.

[135] See, Improving the Immigration Courts: Effort to Hire More Judges Falls Short, Jul. 28, 2008,  at 1, https://trac.syr.edu/immigration/reports/189/

[136] Id at 4.

[137] Id.

[138]  Id, The report also found that a hiring freeze went into effect in January 2007, after DOJ civil division attorneys investigated the immigration hiring process and a new hiring process was implemented on April 2, 2007. The report also quotes EOIR Director Kevin Ohlson as saying that “candidates have been selected, but not yet appointed, for 21 of the remaining 27 vacancies.”

[139] See, Bush Administration Plan to Improve immigration Courts Lags, Sep. 8, 2008, at 1, http: //trac.syr.edu/immigration/reports/194/

[140] Id.

[141] See, Charlie Savage, Vetted Judges More Likely to Reject Asylum Bids, the N.Y. Times, August 23, 2008, www.nytimes.com/2008/08/24/washington/24judges.html?

[142] Id.

[143] Id.

[144]  U.S. Department of Justice, An Investigation of Allegations of Politicized Hiring by Monica Gooding and Other Staff in the Office of the Attorney General, at 121, July 28, 2008.

[145] Id.

[146] Id.

[147] Id.

[148] Id.

[149] See, Savage, Vetted Judges More Likely to Reject Asylum, supra at note 141.

[150] See, Press Release: Attorney General Alberto R. Gonzalez Outlines Reforms for Immigration Courts and Board of Immigration Appeals, Aug. 9, 2006,https://www.justice.gov/opa/pr/August/06 ag 520.html.

[151] A summary of the reforms by number may be found at Supporting Details: Implementation of the 22 Improvement Measures, at 1, 2008, https://trac.syr.edu/immigration/reports/194/details.html.

The Proposed Reforms by Number: 1.) Performance Evaluations for IJ’s 2.) New IJ Judge Evaluations,

3.) Immigration Law Exam for new IJ’s, 4.) Improved training for Judges, 5.) Improved training for EOIR staff,

6.) Improved Reference Material, 7.) Detecting Poor Conduct/Quality, 8.) Asylum Rate Disparities,

9.) Deploying Supervisors to the Field, 10.) Code of Conduct, 11.) Complaint Procedures, 12.) Streamlining Reforms, 13.) Practice Manual, 14.) Sanction Authority for IJ’s, 15.) Sanction Authority for BIA

16.) Additional Judges and Staff, 17.) Increase Size of BIA, 18.) Digital Recording System,

19.) Improved Transcription, 20.) Improved  Interpreters,  21.) Fraud and Abuse, 22.) Pro Bono Programs.

[152] See, FACT SHEET: EOIR’s Improved Measures – Update, Jun. 5, 2009, U.S. Department of Justice, Executive Office for Immigration Review, Office of Legislative and Public Affairs.

[153] Id at 4: This included $5 million in FY 2009 to hire more judges and field supervisors.

[154] Id.

[155] Id.

[156] See, infra, note 159 of telecom with Kathryn Mattingly in the office of Legislative and

Public Affairs of the EOIR.

[157] Id at 1.

[158] Id.

[159] On June 29, 2012, the author spoke by telephone with Kathryn Mattingly in the office of Legislative and

Public Affairs of the EOIR who was not able to provide any further update to the June 5, 2009 Fact Sheet. However, on August 1, 2012, Ms. Mattingly emailed the author with follow up information which provided that in 2010 the EOIR completed improvement measure 18, Digital Audio Recording for all immigration courtrooms, and in 2011 measure 10, the Code of Conduct for Immigration Judges was completed (A copy of the Press Release concerning the Digital Audio Recording and a copy of the Code of Conduct is on file with the author). Ms. Mattingly further responded that the following improvement measures have not been implemented: measure 12 (streamlining of reforms), measure 14 (sanction authority for immigration judges) and measure 15 (sanction authority for BIA judges).

[160]  See, Latest Data from Immigration Court Show decline in Asylum Disparity, Jun. 22, 2009. at 1, https://trac.syr.edu/immigration/reports/209/.

[161]  See, note 23, supra, the author visited the Orlando and San Francisco Immigration Courts during summer of 2012 and had the opportunity to speak with immigration judges concerning some of training new immigration judges are now receiving.

[162] See, Asylum Study, supra at note 10 at 340.

[163] See, Historic Drop in Deportation Orders Continues as Immigration Court Backlog Increases, Apr. 24, 2012, at 1, https://trac.syr.edy/immigration/reports/279/.

See, Also, Backlog in Immigration Cases Continue to Climb, Mar. 11, 2011, https://trac.syr.edu/immigration/reports/225/;

 See, Immigration Case Backlog Still Continues To Grow, Aug. 12, 2010, https://trac.syr.edu/immigration/reports/235/;

And See, Immigration Case Backlog Still Growing, May 24, 2010, https://trac.syr.edu/immigration/reports/232.

[164] Id at 3.

[165] Id.

[166] Id at 3 & 4.

[167] Id at p. 4

[168]  See, Historic Drop in Deportations, supra at note 163 at 1.

[169] Id.

[170] Id.

[171] Id.

[172] Id.

[173] Id.

[174] See, S.A. Miller, Policy Will Let Young Illegals Remain in US. N.Y. Post, July 16, 2012 at 5.

[175] Id.

[176] Id at 5 Illegal Immigrants qualify if they: Came to the U.S. before age 16, Are under 30 years old, have continuously resided in the U.S. for at least 5 years preceding the new policy, Are in school, graduated from high school, earned a GED or were honorably discharged from the U.S. Armed forces, and have not been convicted of a felony, a significant misdemeanor or multiple misdemeanors or do not pose a threat to national security or public safety.

Qualifying illegals would be eligible for: Indefinite deferral of removal from the U.S.; A two year work permit; and no limit on the number of renewals for work permits.

[177] See, EOIR website, www.justice.gov/eoir/sibpages/ICadr.htm. Visited July 20, 2012.

[178] See, Regina Germain, Putting The “Form” In Immigration Court Reform, 84 Denv. L. Rev. 1145 (2006-2007)

[179]  See, Stacy Caplow, ReNorming Immigration Court, 13 NEXUS 85, 91 (2008)

[180]  Id.

[181] These observations are based on the author’s experience in trying asylum cases over a ten year period in the Baltimore and Arlington Immigration Courts.

[182] See, Caplow, ReNorming, supra at note 179 at 92.

[183] Id.

[184] Id.

[185] Id at note 179 at 87, footnote 10 “Fed. R. Evid. 1101. The rules of evidence are relaxed in immigration hearings. 8 C.F.R. §1240.7 (2008)  (“The immigration judge may receive in evidence any oral or written statement that is material and relevant to any issues in the case previously made by the respondent or any person during any investigation, examination, hearing, or trial.”) See also, Matter of Wadad, 191 I & N. Dec. 182 (BIA 1984). Hearsay is admissible if it is probative. See Rojas-Garcia v. Ashcroft, 339 F 3d 814, 823 (9^th Cir. 2003); Morgano v. Pilliod, 229 F. 2d 217, 219 (7^th Cir. 1962, cert denied 370 U.S. 924 (1962) (“It is… well settled that the rules of evidence covering judicial proceedings are not applicable to administrative deportation hearings.”).

[186] Again, this is a personal observation from a former Foreign Service officer who has worked with immigration enforcement officers who went on to become immigration judges.

[187] See, Asylum Study supra at note 10 at 386; See, also, Caplow, ReNorming Immigration, supra at note 179  at 87; and See, Stephen H. Legomsky, Learning to Live With Unequal Justice: Asylum And The Limits to Consistency, 60 Stan L. Rev. 413, 452 , (2007-2008).

[188] See, David A. Case, Article I Courts, Substantive Rights, and Remedies for Government Misconduct, 26 Northern Ill. U. L. Rev. 101,103, (2005).

[189] Id at 104.

[190] Id at 105.

[191] Id at 146.

[192] See, Maurice A. Roberts, Proposed: A Specialized Statutory Immigration Court, 18 San Diego L. Rev. 1 1980 1981. At the time of writing the article Mr. Roberts had retired as Chairman of the Board of Immigration Appeals.  He served as Chairman of the BIA from 1968 through 1974.  Prior to his chairmanship, he served as Head of the Immigration Litigation Unit, Criminal Division, U.S. Department of Justice from 1965 to 1968.

[193] Id at 2.

[194] Id at11.

[195] Id at 18.

[196] Id at 21.

[197] Id.

[198] Id.

[199] Id.

[200] Id.

[201] Id at 22.

[202] Id at 23.

[203] Id. at 24, This section provides that, “A final decision of the appellate decision shall be binding on all judges of the trial division and on officers of the United States, and shall be subject to further review only by the Supreme Court of the United States on petition for certiorari.”

[204] Id.

[205] Id.

[206] To be more accurate parts of the same bill were put forth three times.  In1996, Representative McCollum put forth H.R. 4258. This bill sought to make the immigration courts an Article I court, but it also sought to amend asylum procedures under the INA.  The bill was sent to the Judiciary Committee and died in the committee. In 1998 Representative McCollum put forth H.R. 4107, a bill to create the immigration court as an Article I Court which was very similar to his 1996, H.R. 4258 with the asylum provisions removed.   H.R. 4107 was referred to the Judiciary Committee and died in committee.  In 1999, Representative McCollum filled bill number H.R. 185 put forth as a proposal to make the immigration courts an Article I Court.  This bill was essentially the same as H.R. 4107 that had been filed a year earlier.  This last bill H.R. 185 was referred to the Judiciary committee only to again die in committee.

[207] See, https://www.govtrack.us/congress/bills/104/hr4258; https://www.govtrack.us/congress/bills/105/hr4107; and

https://www.govtrack.us/congress/bills/106/hr185.

[208] See, 105^th  Congress, 2d Session H.R. 4107, To establish the United States Immigration Court.

[209] Id, at  2 & 3.

[210] Id at 3.

[211] Id.

[212] Id. at 4.

[213] Id at 6.

[214] Id.

[215] Id at 4.

[216] Id at 14.

[217] Id at 13, Immigration trial judges shall administer oaths, receive evidence, and interrogate, examine and cross-examine the aliens and citizens. Immigration trial judges may take depositions, issue subpoenas requiring the attendance and testimony of witnesses and the production of documentation or other evidence from any place in the United States or any territory or possession thereof, order the taking of depositions, and order responses to written interrogatories.

[218] Id, at 13

[219] Id.

[220] Id at 15.

[221] Id at 19

[222] Id.

[223] See, Hon. Dana Marks Keener and Hon. Denise Noonan Slavin, An Independent Immigration Court: An Idea Whose Time Has Come. A Position Paper by the National Association of Immigration Judges. January, 2002.

[224] Id at 15.

[225] Id at  20 note 57.

[226] Id at 15.

REFORMING THE IMMIGRATION COURTS OF THE UNITED        STATES: WHY IS THERE NO WILL TO MAKE IT

 AN ARTICLE I COURT

Leonard Birdsong*

© 2013

 I.    INTRODUCTION……………………………………………………………. 1

II.    BACKGROUND ON ASYLUM ……………………………………………. 8

          A.   History…………………………………………………………………….            8

          B.   Eligibility for Asylum……………………………………………………. 10

        C.   Immigration Court Proceedings, Appeal and Review…………………. 12

        D.   Recent Statistics on Grants of Asylum…………………………………..           15

        E.    The History of the Immigration Courts ……………………………………      18

        F.    Appointment of Immigration Judges and Qualifications…………………       20

III. THE IMMIGRATION COURTS AND THEIR PROBLEMS…………….. 21

1.         A.  Immigration Court Problems…………………………………………….. 21

             1. Disparate Asylum Outcomes ………..……………………… ……………….   22

             2. Possible Causes of Disparities Among Immigration Judges…….……..           24

             3. The EOIR Hiring Scandal……………………………………………….           30

             4. The Attorney General’s 2006 Plan For Reform……..…………………..        32

             5. The Immigration Court Backlog………………………………………..            35

                6. Need for Standardizing Immigration Court Rules……………………. 38

IV.   ARTICLE I COURT PROPOSALS AND BILLS…………………………..            39

  V.   CONCLUSION…………………………………………………………………          47

1. I.                INTRODUCTION

Immigration is a topic that is on the minds and tongues of many of our country’s citizens and noncitizens alike. Anecdotally, it appears that almost every person in the country has an opinion about “immigration” and opinions about our U.S immigration laws, but few have ever read the laws.[1]  Fewer still have ever seen or participated in an immigration court proceeding. Our immigration courts are very busy forums where immigration judges make decisions concerning which noncitizens may be allowed to remain in the U.S. and which noncitizens should be deported.  Among their duties, immigration judges preside over asylum cases.  The asylum provisions of our immigration law attempt to ensure humanitarian relief for victims of persecution.[2] These provisions dictate that noncitizens may be granted asylum if he or she can prove a well- founded fear of persecution if returned to their home country. Asylum is a form of relief from deportation known as “discretionary relief.”[3] Immigration judges are vested with broad discretion in deciding asylum cases.

One such case that I wrote about in a previous article, typical of many, involved Gramoz Prestreshi,[4] an eighteen year citizen of Kosovo who was stalked and beaten almost to death by a group of local toughs because he was a homosexual.[5]  Prestreshi was laughed at and called names by the police to whom he reported the beating.[6] In the hospital emergency room he was made to mop up his own blood.  He had photographs taken of his injuries and complained to the press about the hostile environment homosexuals endure in Kosovo.[7]  His family later disowned him for his sexual orientation.[8]  He joined a gay rights organization and in 2007 was granted asylum in the U.S. on the grounds that his treatment in Kosovo amounted to persecution.[9]

The outcome in Prestreshi’s case was one of the favorable ones to come out of immigration court.  Conversely, many noncitizens with meritorious claims are denied grants of asylum by the immigration courts.  Recent research shows that the outcome of one’s asylum claim may depend upon arbitrary factors such as which immigration judge is randomly assigned the case, whether the judge is a man or a woman and whether an attorney represents the noncitizen.[10] This begs the questions: is asylum adjudication fair and impartial within our immigration courts?  I have personally concluded that often such adjudication is not fair and is not impartial.  Justice may be being denied in many asylum cases due to the broad discretion given immigration judges to issue discretionary relief in asylum cases.

Professors Ramji-Nogales, Schoenholtz, and Schrag of Georgetown Law School in their Asylum Study have described the differing outcomes in asylum decisions as “Refugee Roulette.”[11] The study is a monumental piece of work that has been cited by scholars and others interested in refugee law.[12] It analyzes databases of immigration decisions of over 133,000 cases over a six year period.  Using cross tabulations based on biographies, the Asylum Study also explores correlations between sociological characteristics of individual Immigration Judges and their asylum grant rates.[13]

      When examining the workings of our immigration courts, one will find that they are really not courts as most people think of judicial tribunals set up under the auspices of Articles I, III, or IV of the United States Constitution or those set up under the auspices of various state constitutions.  Instead, the immigration courts of the United States are a branch of the United States Department of Justice known as the Executive Office for Immigration Review (EOIR).[14] They are administrative tribunals devoted to hearing immigration matters, mainly deportations.

The Attorney General of the United States is the head of the EOIR and appoints immigration judges to the courts.[15]  This method of judicial appointment has always appeared to me to create a conflict of interest.  If the Attorney General appoints the immigration judges, can these judges be fair and impartial to asylum seekers when they owe their job to the Attorney General? In many cases, I believe the answer is no; they cannot divorce the political pressure they face from the Attorney General from the outcome of their asylum cases.

For those of us who have practiced in the Immigration court system over the years we understand that there are many problems with asylum adjudication. To begin, most of the immigration judges have come from the former Immigration and Naturalization Service (INS)[16] and have a law enforcement background and mind set.[17] Until recently there had been little training for immigration judges. More often than not immigration judges deny asylum claims. Such denials most often involve noncitizen applicants who do not understand asylum law and are not represented by counsel.

The immigration judges are appointed by and serve at the pleasure of the Attorney General of the United States, the country’s chief law enforcement officer. There is no set term limit on the appointment of the immigration judges. In order to avoid disappointing their boss, the Attorney General, judges may intentionally avoid providing “too many” grants of asylum. Furthermore, because asylum grants are discretionary relief under the INA, a form of relief that grants immigration judges unlimited discretion in deciding asylum cases, only the Board of Immigration Appeals (BIA)[18] and the relevant federal circuit have jurisdiction to review. [19]

Finally, there are problems and inconsistencies in asylum adjudications because certain statutory terms are ambiguously defined, including “persecution;” and a lack of precedent with respect to asylum decisions. Very few immigration court decisions are published each year.[20]  As a result of the lack of published opinions, it is difficult to determine or analyze whether important precedents have been established in the system.[21]    Also, immigration judges do not have the power to hold attorneys or applicants that appear before them in contempt of court. Any independent court system should grant contempt power to its judges as a weapon and / or tool to help control their court proceedings As a result of some these problems noncitizen applicants and new legal practitioners often do not understand the immigration court system and, more often than not, may believe that the court is rigged to avoid grants of asylum.[22]

Recent research which will be discussed later in this article indicates that the number of asylum filings in immigration court is down but that the rate of grants of asylum has risen. This is a favorable development that validates my belief that our immigration court system is becoming more just in its asylum adjudications.  My personal observations through recent visits to immigration courts in San Francisco and Orlando[23] affirm my belief that the courts are staffed by very hardworking and earnest judges and staffers that seek to do justice with respect to asylum seekers.  However, there is still room for improvement as the immigration courts could use more judges, law clerks and interpreters that would help more asylum seekers like Mr. Prestreshi to avoid persecution in their home countries.

I believe that our immigration courts should become Article I Courts like the U.S. Bankruptcy Court and the U.S. Tax Court. This would make the immigration courts independent of the Department of Justice and immune from possible political pressure from the Attorney general. Immigration Judge Dana Leigh Marks, past president of the National Association of Immigration Judges, has advocated for making immigration courts an Article I court:

“Experience teaches that the review function [of the court] works best when it is well-insulated from the initial adjudicatory function and when it is conducted by decision makers entrusted with the highest degree of independence. Not only is independence in decision making the hallmark of meaningful and effective review, it is also critical to the reality and the perception of fair and impartial review.”[24]

Immigration courts as they are now situated as part of the EOIR do not provide the kind of judicial independence that is critical to the perception, and reality of the fair and impartial review Judge Marks describes.

One of my purposes in writing this article is to strongly reaffirm my support for our use of asylum as a way of providing justice for those fleeing persecution from other countries.[25] My second purpose for writing this article is to help educate those interested in asylum law by providing some history and background on asylum.  Part II of the article will briefly discuss the history of asylum, enumerate the eligibility requirements for asylum, describe court proceedings in asylum cases, recount recent statistics on grants of asylum and also include a brief history of our immigration courts. Part III will examine the six significant problem areas our immigration courts have wrestled with during the last decade with respect to asylum caseloads. Part IV examines a few of the proposals put forth over the last thirty years to transform the immigration court system into an Article I Legislative Court.

Perhaps, Congress will revisit the idea of separating the immigration judiciary from the Department of Justice.  However, there seems to be little political will in Congress to accomplish this.  Hopefully, this article will prove “food for thought” in that regard.

II. BACKGROUND ON ASYLUM

A. History

A brief history and background on asylum is required to appreciate how asylum came to be part of our immigration law.  International norms for refugee protection are outlined in the 1951 UN Convention and the 1967 Protocol Relating to the Status of Refugees.[26]  Under the Convention, the term refugee applies to:

Any person who…owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership in a particular group, or political opinion, is outside his 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….is unable or, owing to such fear is unwilling to return to it.[27]

The 1951 Convention provided protection for World War II refugees.[28]  Future refugees were included in the 1967 Protocol.[29]  The United States acceded to the Protocol in 1967, but Congress did not enact its own Refugee Act until 1980.[30]  Our government codified the Protocol such that an applicant for asylum must have:[31] 1) a “well-founded fear of prosecution;”[32] 2) the fear must be based on past persecution or the risk of future persecution;[33] 3) the persecution must be “on account of race, religion, nationality, membership in a particular social group, or political opinion”;[34] and 4) the persecutor must be the government or someone whom the government is unwilling or unable to control.[35]

      B. Eligibility for Asylum

The legal remedy of asylum is available to noncitizens legally in the U. S. and to undocumented noncitizens seeking protection from persecution they faced or would face in their home country on account of one of the several specific protected grounds.[36] Thus, not all immigrants are protected from persecution.[37]  Rather, the persecution must have a connection to the specific protected characteristics, race, religion, nationality, political opinion, and membership in a “particular social group.”[38]  An asylum request is automatically considered an application for an alternate claim of relief known as withholding of removal.[39]  Both forms of relief require the claimant to demonstrate a certain quantum of persecution that the individual suffered in his or her home country or would suffer if returned there, and both require a “nexus” between the persecution and one of the protected grounds.[40] In 1996, an amendment to the Immigration and Nationality Act (INA) mandated that a claim of asylum must be made within one year of arriving in the U.S.[41]

While the legal concepts of asylum and withholding of removal appear nearly identical they have important differences.  Asylum is subject to the discretion of the Secretary of the Department of Homeland Security or Attorney General of the United States.[42]  Whereas, withholding of removal, if proven, is a mandatory form of relief.[43]  A person granted asylum may be eligible for permanent residency.[44]  Most litigants prefer asylum.[45]  A grant of Asylum will allow the applicant, after a one year stay in the United States, to adjust their status to that of a legal permanent resident.[46] Withholding of removal guarantees only that the person will not be forcibly returned to his or her country of origin and does not preclude the possibility of being removed to a third country.[47]  The applicable standard of proof is also higher in a withholding of removal than in an asylum grant.[48]  In order to obtain withholding or removal the claimant must show a clear probability of persecution.[49]  The showing for asylum is only a well-founded fear of persecution.[50]

There are only two types of applications for asylum which are termed either “affirmative” applications or “defensive” applications.   Asylum applicants, applicants for withholding of removal and applicants seeking relief under the Convention Against Torture who are not currently under immigration deportation proceedings but have a fear of persecution if they return to their homeland may file an “affirmative” application by mailing a Form I-589[51] to a regional USCIS[52] service center under the auspices of the Department of Homeland Security (DHS).[53]  A specialized corps of full time professional asylum officers receive the applications and interview the applicants.  Asylum officers grant asylum in meritorious cases, which initially ran between 15 and 30 percent, but in recent years have exceeded 40 percent.[54]  They do not deny the other cases; instead, asylum officers refer them to the immigration court placing the cases in removal proceedings.[55] Once in removal (deportation) proceedings those applicants who did not receive a grant of asylum with respect to their “affirmative” application may now renew their application for asylum by renewing their request for asylum as a “defensive” application. The “affirmative” I-589 application becomes a part of the immigration court record.  For those individuals placed in removal proceedings and who never filed an “affirmative” application and who believe they may have a claim for asylum, withholding of removal or a claim for relief under the Convention Against Torture will be allowed to submit an application form I-589 as a “defensive” application for relief.

      C. Immigration Court Proceedings, Appeal and Review

Immigration judges (IJ’s) provide the initial evaluation of all “defensive” applications for asylum, withholding, and provide a second review of “affirmative” applications referred by asylum officers.[56]  In the latter situation, the immigration judge receives the pre-existing I-589, with its attachments, from the asylum officer, along with copies of the “charging document.”[57]  Applicants are allowed to supplement their claim in immigration court and put on additional witnesses.[58]  This allows the case to be heard in the more formal setting of the immigration court where witnesses may be examined and cross-examined by the asylum seekers’ counsel and Department of Homeland Security (DHS) counsel.[59]   To be clear, if removal (deportation) proceedings are already underway, the applicants can apply for asylum or withholding only by presenting  “defensive” applications that are heard exclusively by the immigration judges.[60]

At the hearing the claimant must present evidence to avoid removal (deportation).  The DHS will present evidence and argument in support of its decision to refuse asylum.[61]  Evidence presented must be relevant and conform to requirements of constitutional due process.[62]  The burden of proof is on the applicant to establish that the applicant is a refugee within the meaning of the statute and that that they will be persecuted because of one of the five protected grounds.[63] If the claimant persuades the immigration judge that she meets the statute’s asylum requirements the judge may grant asylum for an indefinite time.[64]  In addition, the claimant’s immediate family members who are still abroad may join her in the United States.[65]

However, if the immigration judge denies the asylum request, the applicant may appeal his or her case to the Board of Immigration Appeals (BIA).[66]  The BIA reviews all appeals from immigration courts throughout the United States.[67]  The BIA is an administrative appeals tribunal that is part of the EOIR Review in the Department of Justice.  The BIA has never been recognized by congressional statute, it is entirely a creature of the Attorney General’s regulations, and the Attorney General appoints its members.[68]  The BIA has several options with respect to the appeals: it may reject the claim on appeal, remand a case to the IJ with instructions to follow an appropriate course of action, or it may grant asylum directly.[69]  Although the BIA hands down a large volume of appellate decisions each year only a small fraction are designated as precedential decisions each year for inclusions in official reports.[70]

If the BIA rules against the claim, an applicant may appeal to Federal court of Appeals for the circuit in which the case originated.[71]  The circuit court may then remand the case to the BIA with instructions for a ruling consistent with the circuit court’s findings.[72] Furthermore, if a circuit adopts a different rule than the BIA, the new rule will be applied within the circuit court in future cases.[73]  As a result, circuit splits have arisen because of inconsistent rulings among the circuit courts regarding the same legal issue.[74]

      D. Recent Statistics on Grants of Asylum

The Department of Homeland Security discloses information about the numbers of asylum grants and denials but it does not disclose much information about the characteristics of asylum seekers.  Currently, the number of asylum seekers in immigration court is declining slightly but more are being granted asylum.  In recent years approximately forty percent of those seeking asylum through an affirmative filing are granted asylum.[75] Similarly, fifty percent of those who pursue their claim for asylum defensively receive grants of asylum.

The total number of persons who were granted asylum in the United States decreased from 22,832 in 2008, to 22,090 in 2009 and in 2010 the number of grants decreased again to 21,113.[76] The number of persons who were granted asylum affirmatively through USCIS decreased from 11,904 in 2009 to 11,244 in 2010.[77]  The number of persons granted asylum defensively through an immigration court judge or the Board of Immigration Appeals of the EOIR decreased from 10,186 in 2009 to 9,869 in 2010.[78] The leading countries of origin for persons granted asylum in 2010 were China (32 percent), Ethiopia (5.2 percent), and Haiti (3.9 percent), Venezuela (3.1 percent) and Nepal (3 percent).[79]  These five countries accounted for 47 percent of the persons granted asylum.[80] In 2010, the top three countries of nationality for affirmative asylees were China (26 percent), Ethiopia (6.1 percent) and Haiti (5.9 percent) accounting for 38 percent of all persons granted asylum affirmatively.  The leading countries of nationality of persons granted defensive asylum in immigration courts were China (39 percent), Ethiopia (4.1 percent), India (2.4 percent) Colombia (2.4 percent) and Nepal (2.3 percent).  Approximately fifty percent of defensive asylees in 2010 were nationals of these five countries.[81]

Demographic data from this same 2010 report only includes information concerning affirmative asylees.  Seventy- six percent of persons granted asylum affirmatively in 2010 were between the ages 18 and 44.[82] Affirmative asylees are, on average, younger than the native born U.S. population: the median age of persons granted affirmative asylum was 29.[83]   While the median age for United States citizens is 37.[84] Fifty two percent were male and forty-four percent were married.[85]

The Transactional Records Access Clearinghouse (TRAC), a data research and data distribution organization at Syracuse University has issued several immigration reports based upon detailed studies of our immigration court system. Their 2010 report reveals that denial rates for asylum seekers have reached the lowest level in the last quarter of a century.[86] They report that twenty-five years ago, in fiscal year (FY) 1989, almost nine out of ten (89%) of the asylum requests were denied.[87]  While the annual rates have gone up and down during the ensuing years, only  fifty percent of the requests were denied during the first nine months of FY 2010; a record low.[88]

The TRAC report reveals that one factor contributing to the improved success of recent asylum seekers is that a higher proportion were represented by counsel.[89]  It should also be noted that the number of those seeking asylum in court proceedings have fallen. What TRAC does not report is that the 1996 INA asylum amendments made it more difficult to apply for asylum.  Among these changes was the one year limitation rule.  Prior to this amendment, one could be in the U.S. legally or illegally for an unlimited time and apply for asylum. One must now file within one year of entry into the U.S.[90]

Also, prior to the 1996 amendments the law provided one could apply for a work authorization 60 days after filing a claim for asylum.  This led to a flood of specious and frivolous asylum claims by noncitizens seeking to work legally in the U.S. even though they had no genuine fear of persecution. The 1996 amendment extended the authorization period to six months after filing a claim for asylum and made the sanctions stricter for applicants who filed frivolous asylum claims.[91]

Another way to observe the total magnitude of defensive asylum filings and decisions comes to us from the EOIR. They measure immigration court statistics on a Fiscal Year basis which are divided into the following categories: “Received, Granted, Denied, Abandoned, Withdrawn or some Other” disposition.[92]  In the Fiscal Year ending in 2011 the immigration courts received 41,000 asylum cases.[93]

Immigration judges granted asylum in 11,504 of these cases and denied asylum in 10,571 cases.[94] Respondents abandoned 1,578 cases.  Another 5,906 cases were withdrawn[95] and a whopping 10,966 asylum cases were disposed of by other means.[96] Anecdotal experience in Immigration Court allows me to offer my  opinion that the majority of the 10,966 asylum “Other” cases involved applicants who were granted voluntary departure[97] the most frequently granted form of discretionary relief granted under  the Immigration and Nationality Act.

E.  The History of the Immigration Courts

As explained briefly above in Part II.B and II.C of this article, our immigration courts are the “trial level” administrative bodies responsible for conducting removal hearings – that is, hearings to determine whether noncitizens may remain in the U.S.  For asylum seekers with attorneys, such hearings are conducted like other court hearings, with direct and cross examination of the asylum seeker, testimony from supporting witnesses where available, and opening and closing statements by both the government and the respondent.[98]  Approximately one third of asylum seekers in immigration court are not represented by counsel.  Neither the Federal rules of Civil Procedure nor the Federal Rules of Evidence apply in immigration court.[99]

Prior to 1956, “special inquiry officers,” who were the predecessors to immigration judges, held hearings as only part of a range of immigration duties that included adjudicating deportation proceedings.  These officers were retitled “immigration judges” in 1973.[100] Until 1983, immigration courts were part of the Immigration and Naturalization Service (INS), which was also responsible for enforcement of immigration laws and housed the INS trial attorneys who opposed asylum claims in court.[101] In January of 1983, the Executive Office for Immigration Review (EOIR) was created, placing the immigration courts in a separate agency within the U.S. Department of Justice.[102] In 2003, when the Department of Homeland Security was created, the trial attorneys became part of the new Agency, but the immigration courts remained in the Department of Justice.[103]

Asylum cases are assigned to immigration courts according to the asylum seekers geographic residence.[104] The administrators in each immigration court randomly assign cases to immigration judges to distribute the workload evenly among them and without regard to the merits of the case or the strength of defenses to removal that may be asserted by the respondents.[105]

1. F.     Appointment of Immigration Judges and Qualifications

Immigration Judges are attorneys appointed under Schedule A of the excepted service who are managed by EOIR.[106]Schedule A is a civil service designation for an appointed career employee as provided in the Code of Federal Regulations. Three processes have been used to hire immigration judges: 1) The Attorney general directly appoints the immigration judge, or directs the appointment without a recommendation by EOIR, 2) the immigration judge was appointed after directly responding to an announcement for an immigration judge and submitting the appropriate documentation; or 3) EOIR identified a need and vacancies were filled from EOIR personnel or sitting immigration judges who requested and obtained the vacancy. Except for direct appointment by the Attorney General, to be considered for the position of immigration judge, an applicant must meet certain minimal qualifications.[107]

The applicant must have a law degree and be duly licensed and authorized to practice law as an attorney under the laws of a state, territory, or the District of Columbia: be a United States Citizen and have a minimum of 7 years relevant post-bar admission legal experience at the time the application is submitted, with 1 year experience at the GS-15 level in the federal service. According to EOIR, DOJ looks for experience in at least three of the following areas: substantial litigation experience, preferably in a high volume context; knowledge of immigration laws and procedure, experience handling complex legal issues; experience conducting administrative hearings, or knowledge of judicial practices and procedures.[108]

III. THE IMMIGRATION COURTS AND THEIR PROBLEMS

1. A.    IMMIGRATION COURT PROBLEMS

While asylum decisions should always be fair and impartial, this is not always the case given the wide discretion immigration judges are given in deciding such cases, the lack of precedential decisions, and the fact that many of the immigration judges have come from the enforcement arm of the immigration service and all are hired by the Attorney General of the United States. These factors necessarily place the institutional role of immigration judges in conflict with expectations of fairness and impartiality in deciding asylum cases. Those who are new to immigration court practice and unacquainted with the workings of immigration court often fail to understand why the immigration courts function so differently than our Article III, Article 1 and our state courts. In order for a wider world to understand how the immigration courts function and why they should be converted into Article I courts it is important to reveal and discuss some of the recent problems in the immigration courts.

During the last decade, our immigration courts have wrestled with disparate asylum outcomes, both among the various immigration courts, and within the same immigration courts; an immigration judge hiring scandal between 2004 and 2006 that left many immigration positions vacant; the implementation of a 22-point Plan to improve the functioning of the immigration court; the backlog of the immigration caseload beginning in 2005; and the perpetual need to standardize immigration court rules and procedures.

1. 1.     Disparate Asylum Outcomes

        Immigration practitioners such as myself often believed that asylum seekers were not receiving proper justice because of the disparities in grants of asylum at the trial level in the various immigration courts. Moreover, there were often disparities in outcomes within the same immigration courts.[109] The drafters of the Asylum Study examined asylum outcomes in Immigration Courts from 2000 through 2004 for asylum seekers from what they consider Asylum Producing Countries (APC’s).[110] They discovered that even for asylum seekers from countries that produce a relatively high percentage of successful asylees, there are serious disparities among immigration courts in the rates at which they grant asylum to nationals of five of those countries: Albania, China, Ethiopia, Liberia and Russia.[111]

The drafters of the Asylum Study opine that the explanation for the differences between the courts could be “simply cultural” – some courts are more likely to grant asylum while others may be especially tough on all asylum seekers.[112] Also differences from one region may be due to differences in the populations of asylum seekers in different geographic locations.[113] An example may be that immigration judges in the Miami court may be more acquainted with the type of persecution alleged by asylum seekers from Venezuela and Colombia, while the same judge might not be as acquainted with or comfortable deciding persecution cases involving Ethiopians who seldom might appear in that court. Conversely, an immigration judge in the Chicago court may well be more acquainted with the type of persecution suffered by Ethiopian asylum seekers that often appear in that court as opposed to Venezuelans and Colombians who seldom seek asylum in the Chicago immigration court.

These explanations may be true, but the question remains: is true justice being properly served with respect to asylum seekers or are they being subjected to “Refugee Roulette?”

1. 2.     Possible Causes of Disparities Among Immigration Judges

Judging can be difficult in any forum.  It is especially difficult with respect to asylum claims because the required persecution must have taken place in a foreign country and may have occurred a great while ago with few witnesses and little documentation.  Furthermore, immigration judges are required to make credibility determinations in each case and the applicants’ credibility may be suspect.

The Asylum Study investigated grant rate disparities within the same immigration courts by looking at the eight largest courts by volume[114] and observing only judges who had decided 100 or more cases. Only in the case of these judges did the study analyze discrepancies in grant rates for asylum seekers from APC’s. With the national APC mean of forty percent as a starting point, they determined for each court how many judges’ APC grant rates were more than five percent deviant from the mean.[115]

The statistics revealed that the five largest courts had consistent outliers. From one-third to three-quarters of the judges on these courts grant asylum in APC cases at rates more than 50% greater or more than fifty percent less than the national average.[116] The authors of the study arrived at the conclusion that discrepancies in the grant rates between judges in the same court may be because of different geographic populations of asylum seekers in different regions.[117]  It may also be that certain asylum seekers may come from a certain ethnic groups that have similarly viable asylum claims.[118]  By way of example, Ethiopia has three large ethnic groups, the Amhara, the Tigray and the Oromo.  Members of each ethnic group might seek asylum in one of our immigration courts.  Much is known about Ethiopians in many immigration courts.  The Amhara people have traditionally been the ruling class of the country for two thousand years.  An Amhara seeking asylum in the U.S. based on persecution because of race, religion, nationality, particular social group or political opinion would more often than not have a more difficult time of proving such persecution.  Whereas, an Oromo may well have a better claim for persecution based on one the five grounds because they have traditionally been a disfavored ethnic group who many in the country refer to as the “slave” class. Many Oromos are Muslim in a majority Christian country. Many Oromos disprove of the present government in Ethiopia and many of them have sought secession to form their own country. In essence, Oromos might have similarly viable asylum claims that would make them better candidates for asylum than applicants of the Amhara or Tigray ethnic groups.

As a result of finding such discrepancies within the same court the authors of the Asylum Study performed a descriptive analysis, using cross-tabulations of decisions of the judges during the time frame of the study.[119] They examined a number of variables to determine their impact on judges’ grant rates: whether the asylum seeker was represented by counsel, the number of dependents the asylum seeker had, the gender of the judge, and the prior work experience of the judge.[120]       The result of their analysis revealed that the single most important factor affecting the outcome of an asylum seekers case was whether she was represented.[121]  Represented asylum seekers were granted asylum at a rate of 45.6%, almost three times as high as the 16.3% grant rate for those without legal counsel.[122]  The number of dependents that an asylum seeker brought with her to the U.S. played a large role in increasing the chance of an asylum grant. Their analysis found that an asylum seeker with no dependents has a 42.3% grant rate,[123] having one dependent increases the grant rate to 48.2%.[124] The authors opine that it could be that asylum seekers who bring children in addition to a spouse appear more credible or in other cases they opine some immigration judges are more sympathetic to asylum seekers who have a family to protect.[125]

The authors found that gender of the judge had a significant impact on the likelihood that asylum would be granted.  Female immigration judges granted asylum at a rate of 53.8%, while male judges granted asylum at a rate of 37.3%.[126] The statistical calculations show that an asylum seeker whose case is assigned to a female judge had a forty-four percent better chance of prevailing than if there is a case assigned to a male judge.[127] This may be significant in that there are far fewer female immigration judges than male judges. Only approximately thirty five percent of the 263 immigration judges are women.[128]

This may be because the majority of immigration judges have been involved with immigration enforcement work before becoming immigration judges. There have always been fewer women who have worked in immigration enforcement.[129] Since the women who do become judges have usually not been involved in immigration enforcement it is perceived that they are more prone to give an asylum applicant a more fair and impartial hearing. A practitioner who draws a female immigration judge in any asylum case may understand that statistically he or she has a better chance of prevailing and gaining a grant of asylum than with a male immigration judge.

It has been my anecdotal experience and observation that during the era of the old INS, women were either not interested in or were not encouraged to partake in the law enforcement work that entailed patrolling the border, deporting people, or interviewing inspecting and screening noncitizens at our ports of entry. It is not difficult for to believe that many people who were involved with INS immigration enforcement work developed a mindset against asylum seekers. It begins in training wherein immigration officers and State Department consular officers are taught that many people wish to come to the United States for many reasons and it is easier to say “no” to their visa, their entry, or their request for asylum if there be a doubt concerning their credibility, their documentation, or their motives for entry.  I know this because I received the same such training before taking up my duties as head of the nonimmigrant visa section at the United States Consulate in Hamburg, Germany.[130] It is a type of training that fosters a mindset of erring on the side of saying “no” much more often than saying yes. It is what I call a “law enforcement mindset.” Trainees are advised starting their first day that they will seldom be chastised for saying “no” to applicants about whom they may have a doubt, but if they issue a visa to the person who later turns out to be a terrorist or assassin, their job may well be jeopardized.  I well know from our conversations that immigration officers with whom I worked received the very same message in their training.  It is difficult for me not to believe that many of those immigration officers who became immigration judges still operated with this “law enforcement mindset.”  It is just easier to say no if one has a doubt. At the end of immigration officer training and State Department training each officer is provided a document which confers on them executive power to make immigration and consular decisions as to who may be issued a visa for entry to our country; decisions as who may be allowed to enter the country; and decisions as to who may be deported from the country. This document confers absolute executive officer power to make such immigration decisions without oversight by, or appeal to the courts of the United States.[131]  In the U.S. State Department, the document that confers such executive power on consular officers is called an “Exequatur.”[132]  For some, this “law enforcement mindset” of being able to say “no” to any applicant at the executive level without judicial oversight is quite heady and, I believe carries over to the conduct and decision making of many former enforcement officials who have become immigration judges.

Finally, in this regard, further examination by the authors of the Asylum Study found prior work experience by male and female judges was revealing. Among other things, the authors found that prior work experience of all types had a significant impact on a judge’s grant rate.[133] Judges with prior government experience (excluding work for INS or DHS) granted asylum at a rate of 39.6%, contrasted with a grant rate of 47.1% for those with no prior government experience.[134]

1. 3.     The EOIR Hiring Scandal

In the early 2000’s the case-loads of the country’s immigration courts was rising while the number of immigration judges was simultaneously declining.[135] The EOIR asked Congress for additional funding to hire more immigration judges.  However, the reputation of the EOIR was tarnished by the discovery of an illegal political hiring scandal that took place from the spring of 2004 until December 2006.[136] The Department of Justice’s Office of the Inspector General released a report on July 28, 2008 confirming that the Bush Administration Justice Department used an illegal selection process to exclusively appoint immigration judges who had been screened for their political or ideological affiliations during that time:[137]

The report maintained, in relevant part that, “One of the results of this                                          tightly controlled selection process [by DOJ political appointees] was that                                       it left numerous immigration Judge vacancies unfilled for long periods of                                        time when they could not find enough candidates, even when EOIR                                      pleaded for more judges and told the Office of the Attorney General                                              repeatedly that the EOIR’s mission was being compromised by the                                                        shortage of immigration judges.”[138]

The report also revealed that the appointees frequently had little or no                                immigration law experience.[139]  Finally, an analysis of the asylum decisions by                            the 16 judges who were appointed after consideration of their political credentials                and who had decided at least 100 matters found that, on average, they were                              more likely to rule against asylum seekers than their colleagues on the same                                  court who had been appointed according to the Justice Department’s                                      politically neutral rule.[140]

The report covering the selection of immigration judges primarily blamed                                    Kyle Sampson, a former top aide to the Attorney General, and two former White                               House liaisons to the Justice Department, Monica M. Gooding and Jan Williams,                            for the taking political affiliation into account when hiring immigration judges.[141]                          When vetting applicants, Ms. Gooding asked them questions about their political                            beliefs and researched their campaign contributions.[142] She also conducted                                Internet searches of their names and words like “asylum,” “immigrant” and                           “border,” as well as partisan terms like abortion, Iraq, gay and the names of                              political figures to determine their views.[143]

Ms. Gooding solicited and received resumes for immigration judges and                              BIA candidates from the White House, from Republican members of Congress,                                the Republican National Lawyers Association, the Federalist society, and from                                others with Republican party affiliations.[144]  There was no evidence that she                    solicited candidates from any sources she thought had Democratic affiliations.[145]                 Evidence demonstrated that Ms. Gooding violated             Department     policy and federal       law, and committed misconduct, by considering political or ideological affiliations in the                      appointment of immigration judges and BIA members.[146] Gooding admitted in                              her congressional testimony that she “took political      consideration into account in                                     immigration judge hiring.[147] She also stated that Sampson told her that immigration    judge hiring was not subject to civil service laws and that she “assumed” those laws did             not apply to BIA member hiring.[148] The Department of Justice report suggests that the         patronage-style selection for immigration judges was illegal.[149]

The immigration judge hiring scandal was unfortunate. It is my sincere                            hope that politically neutral guidelines and a new crop of immigration judges                         will help restore the integrity of the immigration court judiciary. The scandal of                               hiring immigration judges for their political position or political belief does                            disservice to the idea of a court that is to be             fair and impartial when making                                 decisions concerning applicants who are fleeing persecution. Such judges should                              be above reproach.

1. 4.     The Attorney General’s 2006 Plan For Reform

In the wake of the hiring scandal and criticism from several federal circuit court rulings that sharply criticized the immigration courts, former Attorney General Alberto Gonzalez issued a 22- Point Plan for improving the operation of the immigration courts.[150]  It is not the objective of this article to delve deeply into the implementation of all of the entire reform effort, but the article will briefly examine some of the positive changes that have emerged from its implementation and discuss what else could be done.[151]

On June 5, 2009, the EOIR produced a Fact Sheet detailing measures to improve to improve the EOIR.[152]  According to the 2009 Fact Sheet, fifteen of the twenty-two proposed reforms had been enacted. These included: obtaining funding to hire additional immigration judges and field supervisors for immigration courts;[153] drafting an immigration examination for all new judges;[154] installing digital recording services in most, but not all, the immigration court rooms; and producing an online practice manual for the immigration court. The reforms also included training for new judges and additional training for current judges.[155] As of July 2012 no sanctions have been granted to the immigration judges or the judges of the BIA to hold attorneys or parties in contempt.[156]

The training plans consisted of expanded training for new immigration judges on legal and procedural issues; a mentoring program for new judges; and periodic training on management.[157] For the first time there was a joint legal conference in 2009 for immigration judges and BIA members.[158]

The code of Conduct had been implemented in 2011 under the Obama Administration as well as the completion of installation of digital audio recording systems in all of the immigration courtrooms.[159]

There is statistical evidence that the reforms have helped. The central finding of a 2009 TRAC report contends that judge-by-judge asylum disparities in the Immigration Courts are down.[160] Court data shows that disparity rates have declined in ten of fifteen immigration courts that decide the bulk of all asylum matters. In New York the disparity rate among judges in Asylum cases has dropped by a quarter and in Miami the range among judges in their denial rates dropped almost two thirds from their previous levels. This indicates that justice is being better served for asylum seekers in these busy immigration courts.

If disparity rates have declined in ten of the fifteen immigration courts that hear the bulk of asylum claims this is real progress toward a fairer and more impartial system. Training for new immigration judges and the judicial mentoring programs have helped many new judges take their cases more seriously. It is my understanding, from visiting the two immigration courts in the summer of 2012;[161] new judges are now allowed to visit other immigration courts and to sit in on asylum cases to observe how they are adjudicated, a form of judicial education which did not occur before implementation of the 22-Point Plan. However, this drop in disparity rates may well also be caused by better lawyering in those ten courts where there has been a drop in disparity rates.  We know that an applicant has a better chance of succeeding if represented by counsel and so the implementation of the reforms of the 22-point plan may not necessarily been totally responsible for the drop in asylum disparity rates.[162]

1. 5.     The Immigration Court Backlog

Our immigration courts are backlogged, which denies swift justice for asylum seekers.  There is a backlog of approximately 300,000 cases awaiting adjudication.[163] The growing immigration court backlog is not a recent problem, but has been steadily growing since at least 2005.[164]  One important cause for this problem was the Bush Administration’s failure to fill vacant and newly-funded immigration judge positions during the period of the political hiring scandal.[165]  Government filings seeking deportation orders increased between FY 2001 and Fiscal Year 2008 by thirty percent while the number immigration of judges on the bench saw little increase and for some periods fell.[166] Subsequent hiring to fill these vacancies during the Obama Administration has not been sufficient to handle all the cases that wait attention.[167]

Although there is still a backlog in the immigration courts, the Obama Administration instituted two initiatives to help clear the backlog.  During the first quarter of 2012, immigration courts issued 2,429 fewer deportation orders than in the fourth quarter of 2011.[168] Thus, the proportion of cases resulting in an order of deportation fell slightly to 64.1 percent.  In over a third of all cases, the individual was allowed to stay, at least temporarily, in the U.S.

This historic drop in deportations began in August of 2011 when the Obama Administration initiated a review of its 300,000 court case backlog.[169]  The stated goal of the Immigration and Customs Enforcement (ICE) review was to better prioritize and reduce the backup of pending matters that led to lengthy delays in immigration court proceedings of noncitizens it wanted to deport.[170] To achieve this longer term objective, ICE attorneys assisted by court clerks, law clerks and paralegals had been redirected in a dramatic effort – part of the prosecution discretion (PD) initiative – to review all 300,000 cases to prioritize which to focus upon.[171] A consequent drop in overall case dispositions occurred while these reviews were being carried out.[172] As a result overall court dispositions during the first quarter of 2012 fell to 50,489 – the lowest level since 2002.[173]

Another Obama Administration initiative has resulted in fewer deportations.  On June 15, 2012, the President announced a policy to grant young undocumented noncitizens a chance to work and study in the U.S. without fear of deportation.[174]  Under the new policy, ICE would stop attempting to deport these undocumented noncitizens who are under 30 years old, came to the U.S. as children and are otherwise law abiding.[175] It has been estimated that as many as 800,000 such undocumented residents now in the U.S. could qualify for this new status.[176]

1. 6.     Need For Standardizing Immigration Court Rules

The final problem this article will explore is the need for standardized rules and procedures for the immigration courts. As of the time of writing, there are now 59 immigration courts spread across 27 states of the U.S., Puerto Rico and in the North Mariana Islands with a total of 263 sitting immigration judges.[177] However, there are no set or standardized rules of procedure for the immigration courts.  One scholar has commented on the 22-Point Plan for improvement of the immigration courts contending, “the proposed reforms, while greatly needed, fall short because they fail to include one of the basic tenants of our American court system – rules. It is hard to play by them, invoke them, or enforce them if there are none.”[178]   Some basic immigration court procedures are set forth in the INA and the Code of Federal Regulations.[179] Yet, in everyday practice in different immigration courts one will find locally accepted, but unpublished, procedures that are inconsistent with respect to when exhibits must be filed,[180]  marking exhibits, and how much hearsay will be allowed at an asylum hearing.[181]Each immigration court seems to have its own set of entrenched customary practices.

In 2008, the EOIR published a comprehensive on-line Immigration Court Practice Manual. The manual was published without any notice or period for public comment.[182]  A period for public comment would have allowed the American Immigration Lawyers Association and individual immigration practitioners to send in comments that might have been helpful in providing suggestions which may have helped to ensure more fairness and impartiality with respect to adjudication of asylum claims. The Manual does provide information on such court procedures as: filing documents with the court, master calendar proceedings, motion practice, bond and detention, and attorney discipline.[183] However, the Manual does not have information concerning evidentiary rules for the court and fails to encourage pre-hearing preparation, which might narrow the available evidence in asylum trials.[184] Standardized rules of evidence for the immigration court would greatly enhance to enhance their efficiency.[185]

IV.   ARTICLE I COURT PROPOSALS AND BILLS

            Again, no court is without some problems.  Over the last thirty years there have been a number of suggestions as to how to remedy the shortcomings of the immigration courts as they are now constituted. The first suggestion judges, scholars and practitioners have made is to take the immigration courts out of the Department of Justice and make them an independent court.  The immigration courts, situated as they are within the Executive Branch, seem to present a blatant conflict of interest.  The EOIR is part of a law enforcement agency that oversees the adjudication of cases of possible immigration law breakers. It is difficult to avoid the perception that immigration judges be partial. Because immigration judges are chosen by the Attorney General, and serve at his or her pleasure, they do not have the independence to truly see that due process and meaningful justice is served.

Unlike Article III judges, immigration court judges do not have life-time tenure.  As a matter of fact, there is no term of office for an immigration judge.  They serve at the pleasure of the Attorney General and may be removed from the bench by the Attorney General for any reason whatsoever.  My anecdotal experience with the immigration judges have led me to understand that most of the judges come from the enforcement side of the immigration service  or from other positions within the Department of Justice where they may have served between ten and twenty years.  Often their appointment as an immigration judge is the crowning achievement of their career where they may serve another ten to twenty years and then retire.[186]

The next most cited suggestion for immigration reform is to transform the immigration courts into an Article I Legislative Court.[187] The Supreme Court has recognized Congress’s power to create “legislative courts” under Article I of the U.S. Constitution.[188] Under Article I section 8, clause 9 of the Constitution; Congress may “constitute tribunals inferior to the Supreme Court.”[189] Article I Courts may be staffed with judges who lack life tenure, because they do not exercise “core” judicial functions for which the federal constitution requires that judges be insulated from politics.[190] The Court of Veteran’s Appeals, the Court of Federal Claims and the U.S. Tax Court are Article I Courts.[191] Often these courts handle technical and specialty matters beyond the kin of the expertise of other practitioners and judges. Although the judges on these courts lack life-time tenure, such courts provide a modicum of independence and transparency that is missing from the EOIR based immigration court system.

Maurice A. Roberts’[192] thesis that decision-making under the immigration laws was faulty due, in part, to the frequently conflicting roles of the INS and the immigration court system.[193] He argued that the adjudication of deportation proceedings should be removed from INS, so that the adjudicators could be situated in an independent setting where they could decide cases fairly and promptly, free from dependence or influence from enforcement officials.[194]  He proposed that both the BIA and the immigration courts be transferred to a new specialized Article I Court.[195]

Roberts’ proposed law is simple, consisting of a three and one half page appendix to his article containing 10 succinct sections. Section 1 which provides that the court would be comprised of an appellate division with seven judges and a trial division with fifty judges.[196]  There would be chief judges for both the appellate division to be appointed by the President, with the advice and consent of the Senate, for terms of 15 years.[197] The judges of the appellate and the trial divisions would also be chosen by the President, with the advice and consent of the Senate, and would also serve fifteen-year terms. [198]

Sections 2 and 3, respectively, mandate compensation for judges and procedures for removing judges for incompetency, misconduct or neglect of duty.[199] Section 4 mandates that the appellate division promulgate rules of court governing practice and procedure in both the appellate division and in the trial divisions.[200] This would solve the problem of lack of standard procedures in the immigration courts as they now exist. Section 5 mandates appellate division administration; section 6 mandates appellate division jurisdiction; Sections 7 and 8 mandate trial division administration and trial division jurisdiction respectively.[201] Section 9 is a “Savings” provision.[202]  This means, that if one section of the court proposal be invalidated or found to be unconstitutional, the remainder of the court would remain viable. Section 10 discusses and defines “Finality” of decisions in the two courts.[203] In this context a final decision of the appellate division would be binding on all judges of the trial division and on all officers of the United States.[204] Such “finality” would also be subject to review only by the U.S. Supreme Court of the United States on a petition for certiorari.[205]  Unfortunately, the Roberts proposal did not provide that the Article I Immigration Judges be granted the authority to sanction lawyers or respondents for contempt of court. All judges of every court should be granted contempt power to ensure efficient operation of the court and prevent frivolous or disruptive behavior by lawyers or applicants.

Again, the Roberts proposal is simple but anachronistic. This proposal was written just before the Refugee Act of 1980 took effect. It was this 1980 Act that made it necessary for the then existing INS to start holding asylum trials.  There was then an increase in immigration court hearings once respondents were allowed to seek asylum from persecution. Today the idea of an immigration trial division with only 50 judges is unimaginably small – but this was a good start.  Some thirty years later we have 263 immigration judges sitting in 59 trial division courts. The proposal, if passed by Congress would have made the immigration courts more independent and perhaps, fairer. Alas, it seems the proposal gained no traction and went nowhere.

In the late 1990’s there were actually three bills put forth in Congress by Representative Bill McCollum to establish the United States Immigration Court as an Article I Court.[206] All three of the bills were similar and each was referred to the House Committee on the Judiciary. Each of the bills died in committee and never became law.[207] Nevertheless, we will analyze the basics of the 1998 bill, which is represents of what Representative McCollum proposed in each bill for an Article I Immigration Court.

In 1998, in the 105^th Congress the bill H.R. 4107 was drafted and referred to the Committee on the Judiciary.[208] The bill would have established an Article I immigration Court consisting of an immigration trial court and an appellate division.[209] The appellate court would consist of a chief judge and eight other judges appointed by the President with advice and consent of the Senate.[210]  They would serve terms of fifteen years.[211] The appellate judges would sit and hear cases as a panel of three judges to decide appeals.[212]

The trial division would be composed of a chief immigration trial judge and other immigration trial judges appointed by the chief immigration appeals judges.[213]  The bill further provided that all immigration judges serving at the time of enactment of the bill would be appointed Article I Judges by the Chief Immigration Judge.[214]  Such trial judges would serve fifteen year terms and could be removed for cause, including incompetency, misconduct, or neglect of duty.[215] Judges of each division of the court would have the power to punish lawyers or respondents for contempt of court, either by fine or imprisonment. [216] The McCollum bill makes it easier than the Roberts proposal to remove judges from the immigration court but the bill would confer contempt power on the trial and appellate judges. This would allow judges to sanction disruptive or frivolous behavior by lawyers and applicants.

The bill clearly articulated the authority of the trial and appellate judges. [217] Section 115 provides that the appellate division shall promulgate rules of court governing the appellate and trial divisions. [218]  The section provides further that “Only such selected provisions of the Federal Rules of Evidence and the Federal Rules of Civil Procedure as the appellate division deems appropriate for inclusion in the rules of the Immigration Court shall apply in Immigration Court.”[219] The bill also spells out rules for retirement.[220] The bill also limits judicial appeals.[221] The current system allows that a respondent who loses an appeal in the BIA may appeal the decision to the federal circuit court in the district where the immigration court is situated.  Representative McCollum’s H.R. 4107 would limit appeals of such cases only to the Court of Appeals for the Federal Circuit which sits in Washington, D.C.[222]

These are the crucial provisions of the bill.  It appears that Representative McCollum may have used Roberts’ proposal for an Article I Court as a blueprint and then expanded upon it. The two basic differences between the Roberts proposal and the McCollum bill is that, first, H.R. 4107 would confer contempt sanctioning power on both appellate and trial judges of the Article I Immigration Court. Second, the Roberts proposal made the decisions of the new appellate court final but they would be subject to review by the Supreme Court on a petition for certiorari. H.R. 4107 would make the final review after the appellate division only to the Federal Court for the Federal Circuit. This sounds unworkable, for there is only one Federal Court for the Federal Circuit which is in Washington, D.C., it is unlikely that this one court could handle all of the appeals of asylum cases which are now spread out over eleven federal circuit courts.

Although it was not a proposal made in either a law review article like Robert’s or a bill like Representative McCollum’s, the National Association of Immigration Judges advocated for an independent immigration court in a January 2002 position paper.[223] The Association favored the creation of an Article I Court.[224] In their position paper they cite the work of Maurice Roberts. [225]The position paper argued an independent immigration court would promote more efficiency, accountability and impartiality in the workings of the Immigration Courts.[226]

Unfortunately, we still have no Article I Immigration Court independent of the Department of Justice.  There may be two reasons we have no such court.  Some argue that there may be no political will in Congress to appropriate the type of money to transform the immigration judiciary into an independent Article 1 Court.  However, such argument may be without merit. It already costs millions of dollars to maintain the EOIR within the Justice Department. However, the EOIR is not really in the Justice Department Building on Pennsylvania Avenue in Washington, D. C. Instead it is housed in a separate facility in Arlington, Virginia. If such a change was made it would not be much more expensive than the status quo, since the change would be more formalistic than substantive. The same structure that is the existing courts, judges and staff would remain in existence but under a different name and under standardized rules and procedures promulgated and put in place. The headquarters of the new court could even remain in the EOIR’s present facilities in Arlington.

Also going forward, pursuant to the McCollum bills, the Chief Appellate Judge and the eight other appellate judges would be chosen by the President of the United States, with the advice and consent of the senate. The chief judge of the trial division and the trial division judges would be chosen by the Chief appellate judge. It appears that there could be an almost seamless transition from the EOIR to the Article I Court for little more money than is now used to fund the courts as part of the Department of Justice.

The second reason we may not have an Article I Court may be because agencies in the administrative state may be loath to abandon power to another entity.  In essence, no sitting Attorney General would voluntarily relinquish the power and responsibility of running the EOIR, for it would result in loss of his stature as well as a considerable amount of the Attorney General’s budget. There appears to be no political will on the part of the Attorney General to see an Article I Court created.

V. CONCLUSION 

I have written this article partially to reaffirm my support for our use of asylum as a means of providing justice for those fleeing persecution for noncitizens like Gramoz Prestreshi and partially to educate those interested in asylum concerning the workings of our immigration courts. Our immigration courts are busy tribunals wherein appointed immigration judges must decide in many cases who should be granted asylum who should be denied.  It should be a system that strives to be fair and impartial in its decision making concerning those fleeing persecution.  More often than not the immigration courts do not appear to be fair and impartial in their decisions.

In examining recent statistics on asylum, it is heartening to learn that asylum case filings are down. However, grants of asylum are a higher than they have been in the last twenty five years. This is a wonderful trend. Nevertheless, over the years there have been disparities in grants of asylum among various immigration courts, as well as disparities in such decisions between judges on the same court.  The Asylum Study findings that I have cited in this article serve to reinforce and give statistical support to what I and other immigration court practitioners have often believed: while an ideal court system that should be fair and impartial, more often than not, a request for asylum by a noncitizen becomes a game of “Refugee Roulette” in our current immigration court system.

The outcome of the case might depend more upon arbitrary factors such as the judge to whom the case is assigned, whether one has counsel, and the ethnic and gender identity of the judge, instead of the facts of the particular claim.

Research shows that since the imposition of the Attorney general’s 22-Point Plan to Improve the Immigration Court in 2006, disparities in asylum outcomes among the various immigration courts and between immigration judges on the same court have been declining. The immigration judge hiring scandal led in 2007 to a return to politically neutral hiring measures and better training and oversight for immigration judges.  There are now 59 immigration courts spread over 27 states of the U.S., Puerto Rico and the Northern Mariana Islands staffed by a total of 263 sitting judges.

I examined proposals of what an Article I Immigration Court system could look like. A two division court – an appellate division and a trial division – where the chief judge of the appellate division and eight other appellate judges would be appointed by the President of the U.S. and with the consent of Congress who would sit for a 15 year term. The chief of the appellate division would appoint the chief judge of the trial division and the trial judges who would also sit for 15 year terms, on good behavior. The structure is already in place. It would not necessarily be much more costly to run such an Article I Immigration Court than it is to pay the costs of operating the Immigration Courts as part of the EOIR.

I believe that an independent Article I Immigration Court would be better for asylum seekers because a court free of oversight by the Attorney General would offer better independence and impartiality for asylum seekers.

Yet, there seems to be no political will from Congress to create such a court.  Nor does it appear that the Attorney General of the U.S. is anxious to relinquish his oversight of the immigration courts. It is the author’s hope that this article might convince Congress to consider Article I Court proposals that have been put forth over the last 30 years.

Due process for asylum seekers demands that there be fairness and impartiality in an independent immigration court. An Article I immigration court promulgated by an act of Congress would provide for such a fair and impartial court.