Bias on the bench: raising the bar for U.S. immigration judges to ensure equality for asylum seekers.

Author:Vaala, Lindsey R.

TABLE OF CONTENTS INTRODUCTION I. BACKGROUND A. Executive Office of Immigration Courts and the Asylum Process B. The Board of Immigration Appeals C. Changes Under Ashcroft II. THE CURRENT CONTROVERSY REGARDING RULINGS A. TRAC Findings B. Federal Courts Sound Early Warning Calls III. REACTIONS TO TRAC's FINDINGS A. The Public Reacts: Giving a Face to a Number B. Gonzales Articulates the Federal Government's Position IV. SUGGESTIONS FOR A MORE EFFECTIVE AND EQUITABLE SYSTEM A. Increase the Size of BIA and Number of IJs B. Return to a Policy Where Written BIA Opinions Are the Norm, Not the Exception C. Provide Cultural Sensitivity and Awareness Training to All Immigration Judges D. Hold Offending IJs Accountable E. Change Application Requirements for IJ and BIA Vacancies To Include Familiarity with U.S. Immigration Law CONCLUSION INTRODUCTION

In July 2006, Syracuse University's Transaction Records Access Clearinghouse (TRAC) released findings announcing that wide disparities exist in the rate at which United States immigration judges grant asylum. (1) TRAC's report triggered a series of reactions from numerous sources including the government (2) and the public, (3) while confirming disparities previously noted by the legal community. (4) Although the study's findings were alarming on their own, the various reactions have instigated a number of significant ramifications. Shortly after TRAC's report was released, then-Attorney General Alberto Gonzales announced that competency tests and annual performance evaluations would be implemented in the coming months for each of the nation's immigration judges. (5) Absent from this announcement, however, was any mention of how such a program would be implemented or by what standards an immigration judge should and would be evaluated. The announcement also failed to make mention of possible repercussions for repeated inappropriate conduct or a disciplinary system to punish offending judges.

Recognizing that absence, this Note suggests modifications and additions to Gonzales's proposed changes. Part I outlines the history and current organization of the United States's immigration system and traces the development of the recent problem of disparity in rulings. Part II discusses highlights from TRAC's findings and identifies early warning calls sounded by the federal bench, the body responsible for reviewing immigration appeals. Part III provides a glimpse into the lives of individual asylum applicants affected by the disparities, articulates significant public reactions to the TRAC study, and analyzes the government's position on the problem. Part IV considers possible organizational changes within the system as well as the adoption of more stringent qualification requirements for immigration judges in order to increase the system's effectiveness and ensure equitable treatment for all.

In the end, although the proposed steps recently outlined by then-Attorney General Gonzales to address the disparities presented by TRAC represent a step in the right direction, they simply do not go far enough. In order to eradicate bias and irrational disparity from the immigration system, the government must hold immigration judges to a higher standard and create meaningful consequences for inappropriate behavior. Specifically, upfront screening of immigration judge applicants and frequent mandatory cultural sensitivity training for the entire immigration bench will increase the likelihood that the adjudicators of the American immigration justice system possess the proper temperament. (6) Finally, recent steps taken by state and national law enforcement agencies to augment cultural awareness elucidate helpful analogies providing guidance in determining appropriate avenues for improving the cultural sensitivity and knowledge of immigration judges. In an ideal system, individual asylum determinations would be race and color blind.


    1. Executive Office of Immigration Courts and the Asylum Process

      Systematic regulation of immigration by the federal government began in 1891, when Congress established the office of Superintendent of Immigration. (7) For nearly a century, the nation's immigration responsibilities bounced between various offices and departments. (8) Forty-three years after inheriting the responsibility for federal immigration functions, the Department of Justice (DOJ) created the Executive Office of Immigration Review (EOIR) in 1983. (9) Currently, all federal immigration courts and the Board of Immigration Appeals (BIA)--the office authorized with immigration appellate authority--reside under the EOIR umbrella. (10)

      The Immigration and Nationality Act, which divides immigration into three general categories, establishes the standards for the asylum decisions made by members of the EOIR. (11) The first two categories strive to unite families (12) and allow immigration on employment grounds, (13) respectively. The third category encompasses individuals seeking humanitarian relief, such as political asylum. (14)

      Asylum, loosely defined as legal protection against deportation, may be gained affirmatively through a U.S. Citizenship and Immigration Services (USCIS) officer or defensively through an immigration judge via a removal hearing. (15) Although their applications are governed under the same standard, (16) asylum seekers differ from refugees in that to seek asylum an applicant must already be in the United States. (17) Defensive asylum cases are heard in Immigration Court, which falls under the purview of the EOIR. (18) The immigration judges who preside over removal hearings are not members of the federal judiciary but are employees of the Department of Justice. (19) An asylum seeker may enter the defensive process by referral from the affirmative process, through which he has already been denied affirmative asylum, (20) or by way of either an arrest or initiation of expedited removal by the Department of Homeland Security (DHS). (21)

    2. The Board of Immigration Appeals

      As the highest administrative body in the immigration litigation system, the BIA has nationwide jurisdiction to hear appeals from immigration judges. (22) As a practical matter, the BIA is the chief administrative law body for immigration law; it is not a statutory body, but instead exists only by virtue of the Attorney General's regulations. (23) Tasked with the responsibility of hearing appeals and issuing decisions in individual cases, the BIA produces both precedential and nonprecedential opinions. (24) In the absence of an overruling or modification of BIA opinions by the Attorney General, a federal court, or a later BIA decision, (25) precedential BIA opinions are binding on immigration courts. (26) Although the Attorney General possesses the authority to review individual cases after they pass through the Immigration Courts and BIA, the Attorney General rarely exercises that power. (27) Consequently, BIA decisions typically represent the final decree on a particular case by an administrative body. (28)

    3. Changes Under Ashcroft

      In February 2002, (29) then-Attorney General John Ashcroft announced plans to streamline BIA reviews of immigration decisions in order to reduce an increasing backlog of cases. (30) These changes essentially reversed the course set by the previous attempts at streamlining. (31) Prior to the 2002 changes, most immigration appeals to the BIA were reviewed by three-judge panels, which typically issued written opinions. (32) "[T]he BIA itself considered 'the deliberative process available through three-Member review' to be essential." (33) Consequently, prior to the 2002 changes, single-member dispositions were the exception rather than the norm, (34) and "[t]he BIA issued a written decision that was supposed to discuss the evidence and the reasons for [its] determination sufficiently so that a reviewing court would know its basis." (35) Ashcroft's changes, however, reversed course, requiring review by a single BIA member in most cases (36) and instructing an increase in one-sentence summary orders. (37) In March 2002, the DOJ issued a memorandum authorizing summary affirmance by a single Board member for a much broader category of cases than had ever been subject to the practice before. (38) A few months later, in May 2002, the DOJ changed its mind and announced that it was abolishing the list of categories eligible for single-member review and instead authorized:

      [S]ummary affirmation by single Board members for "all cases involving appeals of [immigration judge] decisions over which the Board of Immigration Appeals has jurisdiction and which meet the [regulatory] criteria" for affirmance without opinion and "all cases involving appeals of Immigration and Naturalization Service decisions over which the Board of Immigration Appeals has jurisdiction and which meet the [regulatory] criteria" for affirmance without opinion. (39) This seemingly minor change made affirmances without opinion the rule rather than the exception. (40) Significantly, the absence of an opinion leaves asylum applicants who are facing deportation unconvinced that the BIA actually considered their plight and federal appellate jurists without any legal reasoning to review when the affirmance comes before their bench. (41)

      This implementation is also significant because it reversed the assumption, present in the system before May 2002, that doubtful cases would undergo review by a three-member panel. (42) Under the current system, single-member review is now required in all but six types of cases. (43)

      Logically, the rate at which cases before the BIA are decided, as well as the number of summary decisions, has increased radically. (44) Additionally, the 2002 procedural reforms reduced the BIA's "scope of review," resulting in fewer cases meeting the eligibility requirements for any consideration by the Board. (45) The BIA is now more likely to dispose of the cases that it does hear without...

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