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Before There Were Immigration Judges

by Joseph P. Whalen

Before there were Immigration Judges (IJs) there were Special Inquiry Officers. The former Immigration and Naturalizations Service's (INS') Special Inquiry Officers (SIOs) were veteran Immigration Officers given the task of presiding over Hearings in Exclusion and Deportation Proceedings. SIOs evolved from the corps of Inspectors from the original Immigration Service who served on Boards of Special Inquiry that formed out of necessity at Ellis Island that closely reviewed each exclusion case. The operations of the U.S.' first Immigration Service under the Secretary of the Treasury began in New York Harbor at a "new" Federal immigration station on Ellis Island, which opened January 2, 1892. The Treasury Department's Customs Inspectors had been collecting head-taxes on new arrivals since 1820, and later Immigration Inspectors first employed by States began excluding idiots, lunatics, and those likely to become a public charge and later also excluded criminals (especially for crimes involving moral turpitude) and those with communicable diseases. SIOs were later transformed into Immigration Judges and split from INS in 1983, and placed in the Executive Office of Immigration Review (EOIR) where today's Removal Proceedings take place in Immigration Courts.

The Decisions of SIOs along with decisions of various other precursor and successor officials (including District and/or Port Directors and the various Regional Commissioners and later Regional Service Center Directors) were often appealable in the same manner as today's administrative decisions. In the olden days, the Secretary of Labor created an administrative body named the Immigration Board of Review within the Immigration Bureau in the mid-1920s to deal with immigration matters (a reworking of the Ellis Island Boards of Special Inquiry-that's where the title came from).

In 1940, the Attorney General (AG) became the Cabinet member who was stuck with the new INS. The AG kept the Labor Secretary's concept and transformed it into the Board of Immigration Appeals (BIA or Board). See Matter of L-, 1 I. & N. Dec. 1 (1940). The early BIA shared some appellate authority with the AG and later the INS Commissioner and the Commissioner's delegates. Eventually the Executive Associate Commissioner became the appellate authority and formed an Administrative Appeals Unit (around the same time as EOIR was created in 1983) which became the Administrative Appeals Office (AAO) headed by a Chief in yet another reorganization in 1994. With the creation of the Department of Homeland Security (DHS), the AAO stayed and became a part of U.S. Citizenship and Immigration Services (USCIS). The EOIR with its Immigration Courts and the BIA as well as the Office of the Administrative Hearing Officer (OCAHO) created in 1987, as a direct result of IRCA (1986) all stayed in the Department of Justice.

A review of the historical context for administrative appellate authority in immigration matters is timely right now for at least three reasons. First, AAO still has not promulgated the promised rulemaking concerning itself. The need for such rulemaking has existed for a very long time. Matters pertaining to proper jurisdiction were initially the main items addressed in the 1980s and revisited in the 1990s following IMMACT (1990) and IIRIRA (1996) as well as key cases. AAO procedural questions were never adequately answered, partly because they were not effectively asked initially. Many matters were not adequately addressed in the early to mid-1980s when the various appellate bodies came into existence in the forms most closely resembling what we have today. A need was recognized in the mid-1990s. A rulemaking was begun and later dropped. Then all hell broke loose on September 11, 2001, and such matters rightly took a backseat. However, AAO has truly been floundering since DHS was created and officially came into being on March 1, 2003. In light of the fact that the AAO shifted into the Customer Service oriented agency for all of DHS, namely USCIS, the status quo and reliance on rules and regulations promulgated by the former INS which was a Law Enforcement oriented agency has simply not worked out very well at all.

The second reason to review this historical context is the U.S. Supreme Court decision of December 12, 2011. Judulang v. Holder, No. 10-694 actually cites to Matter of L-, 1 I. & N. Dec. 1 (1940)[1] which was decided by the Board August 29, 1940. Judulang involves a case from the Ninth Circuit and is a remand. This is no surprise by itself because a great many Ninth Circuit cases, especially their immigration-related cases, get overturned. The real surprise is that the Ninth Circuit upheld the BIA Decision in the first place. Please read Judulang and Matter of L-.

The third reason to review the historical context is to see how things have come almost full circle. On November 7, 2011, USCIS issued PM-602-0050, entitled: "Revised Guidance for the Referral of Cases and Issuance of Notices to Appear (NTAs) in Cases Involving Inadmissible and Removable Aliens" created a new entity to be known as an N-400 NTA Review Panel (Review Panel). Each local Field Office is to establish a Review Panel. These Review Panels will serve to check the overzealous adjudicators trapped in and oppressed by the "Culture of NO!" and/or who are incapable of exercising sound judgment or properly weighing evidence under the correct standard of proof. ICE has been invited to participate and these panels may serve to bridge the communication gap between the ICE Agents and Counsel, and the USCIS Officers and Counsel. These key DHS agencies have needed to improve communication for quite some time. The proper exercise of Prosecutorial Discretion is a joint decision between the Benefits and Enforcement arms of the Department. It is more cost and time effective to closely review a case before entering the realm of Removal Proceedings. In cases where a remedy is attainable through DHS actions alone, it is counterproductive to foist a case on the IJs and BIA, which may then wind up in the Federal District and/or Circuit Courts and ultimately the U.S. Supreme Court. Certain issues and only certain issue actually need to be elevated so high for resolution. When it is truly necessary for the highest court to weigh-in on an issue, so be it. Whether something needs it is a whole other matter.

Still on that third reason, on June 7, 2011, USCIS published PM-602-0039, entitled: "The Role of USCIS District Directors in the Board of Immigration Appeals Recognition and Accreditation Process; Revisions to the Adjudicator's Field Manual, New Chapter 12.6, AFM Update AD 11-34". This shift of emphasis in a step towards fulfilling a responsibility that was already there. It seems that this effort is almost completing a full circle and bringing a majority of this responsibility back to where it started. INS used to bear the full responsibility of accepting requests to be recognized, accredited, and listed; made the decisions; did whatever checking was deemed necessary; and maintained the lists. The jurisdiction over matters of maintaining the lists of legal service providers shifted from INS to EOIR's OCIJ effective March 31, 1997, pursuant to IIRIRA (1996). Also, appellate jurisdiction in matters concerning recognition and accreditation shifted from the Assoc. Comm'r Exams. (AAO) to the BIA in that same rule making at 62 FR 9071-9075 (2/28/97). It's worth reading that old FR Notice.



1The case is available on the USCIS website but not on the EOIR website

About The Author

Joseph P. Whalen Is not an attorney. He is a former government employee who is familiar with the INA. His education is in Anthroplogy with a concentration in Archaeology and has both a BA (from SUNY Buffalo) and an MA (from San Francisco State University) in Anthroplogogy. He previously worked as an Archaeologist for the U.S. Forest Service before becoming an Adjudicator with INS which became USCIS.

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

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