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Rolling The Dice: Is The DOJ Proposal Adequate To Correct Problems In Our Immigration Courts?

by Cristina Velez

"Who's the Judge?"

Any asylum practitioner worth his or her salt will ask that question before giving an honest appraisal of a client’s chances of success in Immigration Court. More so than in other fields of law, the answer may be the key determinant of a client’s success or failure, regardless of the applicant’s corroborating evidence or strength as a witness. The inconsistency of asylum rulings across the Immigration Court system is the subject of a recent study raising serious doubts about the uniform application of the immigration laws. See TRAC Report on Immigration Judges, July 31, 2006, available at The timeliness of the study, published just as the Department of Justice (DOJ) geared up to announce efforts to reform the Immigration Courts and Board of Immigration Appeals (BIA), provides an opportunity to consider the causes and effects of these chronic violations of due process in removal proceedings, and an evaluation of the DOJ’s prescriptions for reform.

The Wake-up Call

The impetus for reform was largely based on several rulings by US Courts of Appeal that castigated individual Immigration Judges (IJs) for being "extraordinarily abusive," Fiadjoe v. Attorney Gen., 411 F.3d 135, 154 (3d Cir. 2005) and exhibiting "apparent bias and hostility" towards entire classes of applicants, Huang v. Gonzales, 453 F.3d 142 (2d. Cir. 2006). [1] See also Wang v. Attorney Gen., 423 F.3d 260, 269 (3d Cir. 2005) ("The tone, the tenor, the disparagement, and the sarcasm of the IJ seem more appropriate to a court television show than a federal court proceeding"); Rivera v. Ashcroft, 394 F.3d 1129, 1135 (9th Cir. 2005) ("Both the decision issued by the IJ and her conduct of the hearing demonstrate that the IJ did not conduct herself as an impartial judge but rather as a prosecutor anxious to pick holes in the petitioner’s story"). The Seventh Circuit went so far as to conclude that the "adjudication of [immigration] cases at the administrative level has fallen below the minimum standards of legal justice." Benslimane v. Gonzales, 430 F.3d 828, 830 (7th Cir. 2005). [2]

The criticism has extended to the BIA as well. Recently, the Second Circuit remanded several cases to the BIA with instructions to discharge its duty to interpret the immigration law. See Liu v. U.S. Dept. of Justice, ___F.3d ____, 2006 WL 1901018 (2d Cir. 2006) (remand to develop standards for determining what constitutes a "frivolous" asylum claim); Mirzoyan v. Gonzales, ___F.3d ___, 2006 WL 2068352 (2d Cir. 2006) (remand for consideration of what level of treatment constitutes "persecution" in the context of economic mistreatment claims); Lin v. U.S. Dept of Justice, 416 F.3d 184 (2d Cir. 2005) (remanding three cases for determination of whether unmarried parents in China are entitled to the same protection as married spouses seeking asylum pursuant to BIA precedent).

Why have the circuit courts so actively and loudly criticized their counterparts in Immigration Courts and the BIA? One reason for the frustration detected in these decisions is the adoption of a "streamlining" process by the BIA in 2002, in which cases apparently not presenting unique issues of law are reviewed by one Board member instead of a panel of three. 8 CFR §1003.1(e)[corrected Ed. 10/12/06]. The streamlining process was meant to increase the efficiency of the review process. In reality, however, as the distinguished Judge Posner noted, streamlining results in affirmances "either with no opinion or with a very short, unhelpful, boilerplate opinion, even when . . . the immigration judge’s opinion contains manifest errors of fact and logic." IAO v. Gonzales, 400 F.3d 530, 534-35 (7th Cir. 2005). In such a system, the Court of Appeals is often the first and last stop for an asylum applicant seeking meaningful review of the record.

Reforms Proposed by DOJ

On Wednesday, August 9, 2006, the DOJ announced its outline for reform of the Immigration Courts and the BIA. See DOJ, Measures to Improve the Immigration Courts and the Board of Immigration Appeals, AILA InfoNet Doc. No. 06080968. The proposed improvements include changes to the streamlining process that would encourage one-member review to address "intemperate" IJ decisions, and facilitate the remand of cases for reconsideration based on the recommendation of the Office of Immigration Litigation. Other reforms involve (1) Performance Evaluations: IJs will now be subject to periodic performance evaluations, including assessment of new appointees?judicial temperament and skills during the first two years of appointment to the bench, be required to sit for an immigration law examination, and receive improved training in adjudicating immigration matters. In addition, a Code of Conduct will be established for adjudicators to follow; (2) Sanctions Power: Adjudicators will be provided with the authority to sanction both litigants and counsel for false statements, frivolous conduct, and other gross misconduct, and be empowered to refer cases of immigration fraud and abuse for investigation; and (3) Increased Resources, including funding, training, and staff resources.

Will the problems be fixed? It remains to be seen. Some problems in the immigration system are systemic. For example, the Executive Branch oversees both the prosecution and adjudication of removal cases. One solution that would curb excesses caused by enforcement of the immigration laws by a political branch of government is to create an independent judiciary for immigration matters. Another problem facing immigration courts is that Congress has dramatically reduced the avenues to permanent residence for persons in removal proceedings, so often the only choice available to an undocumented person in proceedings is to apply for asylum or withholding of removal. This desperation is exploited by unscrupulous agents and attorneys who facilitate the submission of fraudulent or frivolous claims for asylum. One solution to this tragedy would be to allow immigration courts to appoint counsel for respondents in removal proceedings. The DOJ proposal does not address either of these concerns.

The DOJ proposal is misguided in other ways as well. The problems identified by the DOJ include intemperate and unprofessional behavior amongst IJs and immigration fraud practiced by applicants and their representatives. However, proposing to solve this problem by increasing the sanctions power of adjudicators, and allowing them to refer troublesome practitioners and applicants for investigation and prosecution provides these IJs with the means to further intimidate and abuse applicants for asylum. It is also unnecessary as regulations already exist to facilitate the sanctioning of attorneys. See 8 CFR §§ 1003.101-§1003.109. In addition, every state bar has ethical rules that attorneys are bound to follow. As a result of Matter of Lozada, 19 I&N Dec. 637 (BIA 1988) - which unfortunately requires the filing of a bar complaint to overturn a decision based on ineffective assistance of counsel - immigration attorneys are more susceptible to bar complaints than other attorneys. Moreover, as indisputable evidence of fraud is often difficult to come by, the referral system proposed by DOJ will most likely lead to additional litigation and allegations of abuse of power by intemperate IJs.

What's really needed is for DOJ to increase the resources of the Immigration Courts and to ensure that asylum applicants have access to reliable counsel. To that end, the DOJ must increase its efforts to make Pro Bono attorneys available to persons in removal proceedings. These items are included in the DOJ’s prescription for reform, and will hopefully be seriously addressed. In addition, DOJ has indicated that IJs with extremely high or low asylum denial rates will be reviewed in an effort to reduce the lack of uniformity in asylum determinations noted by the TRAC study. This is also where DOJ should focus. In addition, Congress should consider liberalizing the avenues for relief from removal that have been shut off in recent years in order to reduce the strain on the asylum system. Doing so would increase the likelihood of just and fair application of the immigration laws.


1 On January 9, 2006, the Attorney General Alberto Gonzales issued memos to IJs and to the Board of Immigration Appeals (BIA) in which he expressed his dismay at the reports of substandard conduct by IJs and inadequate review performed by the BIA and announced that a comprehensive review of the immigration courts and review process would take place. See AILA InfoNet Doc. Nos. 06011040, 06011041.

2 On January 11, 2006, AILA published a collection of cases decided in each of the eleven circuits in which the conduct of IJs was criticized. See AILA InfoNet Doc. No. 06011162. See also Comment, Immigration Law - Administrative Adjudication - Third and Seventh Circuits Condemn Pattern of Error in Immigration Courts, 119 Harvard Law Review 2596 (2006).

This article originally appeared on on August 12, 2006.

About The Author

Cristina Velez is an Associate at Cyrus D. Mehta and Associates, P.L.L.C, where she practices in the area of immigration law. She is a graduate of Cornell Law School, where she was an editor of the Cornell Journal of Law and Public Policy. She is admitted to the bar of the State of New York.

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