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I. INTRODUCTION“[A]dministrative agencies must apply the same basic rules to all similarly situated supplicants. An agency cannot merely flit serendipitously from case to case, like a bee buzzing from flower to flower, making up the rules as it goes along.” [1] The responsibility of an agency—and, indeed, any adjudicatory body—to treat like cases with consistency is perhaps one of the fundamental tenets of the common law system. Where administrative agencies are concerned, the legislature has divested itself of authority, and placed that power in the hands of a body created to impart special expertise in a difficult field. [2] However, in some cases, it appears that justice has been lost in the transfer.
The Board of Immigration Appeals (“BIA”) determines the fate of aliens seeking asylum, refugee status, or other relief from removal. [3] In the face of a demanding caseload in recent years, the BIA implemented a system of streamlining procedures that have become both the source of intense scrutiny and controversy [4] and the focus of this Note. The federal circuit courts have split on the authority of the judiciary to review the BIA’s use of the streamlining procedures. [5] Aliens contend that their due process rights have been violated, [6] and that the agency’s implementation of the provisions amounts to corruption, thereby justifying their petition for judicial review. Nonetheless, both the bulk of the case law and the legislative history indicate that review is improper. This Note will briefly explore the due process concerns associated with the procedures, and will provide a more in-depth presentation of the arguments both against and in favor of judicial review. Indeed, the split of authority appears to fall on the thin line between the law, and justice itself. Still, the question remains: when law and justice conflict, who wins?
II. BACKGROUND AND HISTORYA. Administrative History of Immigration AffairsWhen the Immigration and Naturalization Service (“INS”) became defunct in 2003, [7] its duties and responsibilities were assumed by the newly-formed Department of Homeland Security (“DHS”). [8] Officially, the DHS, via the Office of United States Citizenship and Immigration Services (“USCIS”), absorbed the regulatory functions of the INS, [9] including the adjudication of petitions for visas, naturalization, asylum, and refugee status. [10] However, while the USCIS claims the right to “adjudicate” immigration matters, the actual “judicial” functions of the Immigration Courts and the BIA [11]—which are supervised by the federal appellate courts—are authorized under the administrative authority of the Department of Justice’s (“DOJ”) Executive Office for Immigration Review (“EOIR”). [12]
The fine distinction between the “adjudicatory” and “judicial” functions of each agency is drawn along procedural lines. When an immigrant, for instance, seeks asylum through proper channels, the USCIS determines whether or not his petition will be granted. [13] If the petition is denied, the Office of Immigration and Customs Enforcement (“ICE”)—a branch of the DHS—then institutes removal proceedings against the applicant in the Immigration Court. [14] Alternatively, illegal immigrants who are apprehended in the United States [15] will be brought directly before the Immigration Court, where they will face removal proceedings, but may also seek removal relief from the Immigration Judge (“IJ”) directly. [16]
Officially, a proceeding before the USCIS is termed an “affirmative” pathway to asylum, in which an asylum-seeker who has not been placed in removal proceedings voluntarily submits his application, and faces a non-adversarial interview. [17] On the other hand, the “defensive” asylum process is begun in the Immigration Courts when an alien is placed directly in removal proceedings. [18] As a result, he faces adversarial process before the EOIR and the Immigration Courts. [19]
It is these “defensive” proceedings undertaken by the Immigration Courts and overseen by the DOJ that are pertinent for the purposes of this Note. However, in order to fully understand the rights imputed to aliens through the DOJ’s immigration proceedings, one must first understand the underlying legislation enabling the agency’s immigration policies. [20] Importantly, the DOJ, as an administrative agency, is administered by the Office of the Attorney General (“AG”). [21] Where immigration matters are concerned, the AG’s authority is drawn from the Immigration and Nationality Act (“INA”). [22] The INA essentially bestowed carte blanche on the Attorney General, in his discretion, to fashion an appropriate administrative structure for asylum and removal proceedings. [23] As a result, the AG’s office—and not the legislature—actually formulated all adjudicatory process for immigration matters. [24]
Thus, this power structure created in the absence of specific legislative guidance makes the duties and responsibilities of the EOIR—and, in particular, the BIA—difficult to discern. Much like the appellate courts in the state or federal systems, the BIA is responsible for all appeals of the lower courts’ decisions. [25] Yet, unlike most administrative agencies, the legislature has provided no behavioral mandates for the BIA carrying the force of law. [26] As a result, the BIA, with the blessing of the AG, wrote its own regulations, which appear in the Code of Federal Regulations. [27] While it is not uncommon for an administrative agency to promulgate its own rules, it is unusual that those provisions appear to be beyond judicial reproach, [28] and otherwise exempt from the system of checks and balances. [29] The BIA’s source of authority, or lack thereof, contributes significantly to the question of reviewability.
While it is unclear to what extent the courts may review the BIA’s regulations and their subsequent application, it is undisputed that the federal appellate courts may review the final decisions of an agency, regardless of the provisions of its enabling statute. [30] The Administrative Procedure Act (“APA”) regulates the behavior of government agencies, and further describes their relationships to the federal courts. [31] The APA states that any person “adversely affected or aggrieved by agency action . . . is entitled to judicial review thereof.” [32] However, the APA provides two major exceptions to the rule in favor of judicial review. [33] The first precludes review when expressly prohibited by statute, and the second precludes review when the agency action in question is “committed to agency discretion by law.” [34] Ultimately, the APA’s second exception raises pivotal questions about whether deference to the AG’s discretion is ultimately imputed to the BIA as to impede the possibility of review when the agency interprets and enforces its own regulations.
B. History of the BIA Streamlining RegulationsPrior to 1999, all immigration appeals were heard before three-member panels comprised of BIA board members. [35] However, the number of appeals quickly outdistanced the ability of the agency to manage them. [36] In response, Attorney General John Ashcroft introduced a set of streamlining procedures called “Affirmances Without Opinion” (“AWO”). [37]
According to the new regulations, a single BIA board member could elect to affirm the decision of an IJ, without offering any explanation for her decision if three conditions were met. [38] The regulations provided that the board member must determine (1) that the underlying decision was correct, (2) that any errors in the decision were harmless, and (3) that the issues are squarely controlled by existing precedent and do not involve a novel legal or factual situation, or alternatively, that the issues raised are not so substantial that the case warrants the issuance of a written opinion. [39] Notably, when affirming without opinion, the BIA board member does not necessarily adopt the reasoning of the IJ, but instead affirms the decision in result only. [40]
In 2001, the EOIR retained an independent firm to analyze the effectiveness of the streamlining procedures. [41] The firm concluded that streamlining had contributed to a 53% increase in the overall number of cases completed since their implementation in 1999. [42] Ultimately, the firm termed the regulations an “unqualified success,” and recommended the continued use of the streamlining procedures. [43] The report further suggested that the regulations would continue to be viable so long as the stream of incoming cases remained consistent. [44]
Despite the report’s positive findings, the DOJ elected to implement a new set of reforms, entitled “Procedural Reforms to Improve Case Management” in 2002. [45] In the press release announcing the new regulations, the AG emphasized that the backlog of pending cases had reached more than 56,000. [46] Apparently, the increase in the number of cases completed, as disclosed in the report, was disproportionate to the percentage increase in cases appearing before the BIA as a whole. [47] Thus, while the percentage of cases completed, as compared to previous years, had improved, the reforms were still insufficient to tackle the exponentially increasing load of overall appeals.
Among the provisions introduced by the 2002 reforms was the mandate that single-member review of each appeal was the default adjudicatory mechanism. [48] In other words, where some cases were previously referred automatically to a three-member panel, all cases would now be initially referred to a single board member for review. [49] Additionally, the new regulations stated that the BIA would review the factual findings of an IJ under a “clearly erroneous” standard, as opposed to its traditional “de novo” review. [50]
Unaccountably, the reforms also decreased the number of BIA board members from 19 to 11. [51] The reduction in the Board was based, not on resource concerns, but instead, on an administrative theory that a smaller number of board members would lead to less conflict, and thereby, to greater efficiency. [52] Nonetheless, given a backlog of nearly 60,000—not including current cases before the Board—it is unclear why the Attorney General believed that fewer members could effectively expedite the process. [53] Whether the decision to reduce was a pretext to conceal insufficient funding or a lack of qualified potential board members [54] is not immediately apparent. Regardless, the introduction of the 2002 reforms ultimately opened the floodgates for the use of the AWO procedure as the primary case disposal mechanism of the BIA. [55]
Related Categories:
Administrative-Law,
Government-Politics,
Immigration
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