Rethinking review standards in asylum.

• Author: Kim, Andrew Tae-Hyun
• Position: II. Reasons for Stricter Review: Deficiencies Within Immigration Adjudication B. Lack of Quality Representation for Noncitizens through Conclusion, with footnotes, p. 615-647

2. Lack of Quality Representation for Noncitizens

   In early 2011, Second Circuit Court of Appeals Judge Robert A. Katzmann organized about 200 leaders from government and private practice to discuss the barriers that deny many noncitizens proper legal counsel. (239) Judge Katzmann described the general lack of representation for noncitizens in removal proceedings as a "substantial threat to the fair and effective administration of justice." (240) Indeed, noncitizens' fate largely rests on whether they can afford or find access to a lawyer. (241) According to one study, noncitizens with legal representation were five times more likely to win their cases than those without. (242) In New York, which contains one of the busiest immigration dockets in the country, 60 percent of detained noncitizens proceed pro se. (243) According to the New York Immigrant Representation Study, a two-year joint project of the Vera Institute of Justice and the study group spearheaded by Judge Katzmann, (244) having legal representation was one of the two most important variables in obtaining a successful outcome in a case, with detention status being the other variable. (245) Represented noncitizens who are not detained have a 74 percent rate of success. (246) But unrepresented noncitizens who are also not detained had a low success rate of only 13 percent. (247) According to Judge Katzmann, "[o]ften times, the reviewing appellate judge, who is constrained at the time the case comes before her, is left with the feeling that if only the immigrant had secured adequate representation at the outset, the outcome might have been different." (248)

   One barrier to securing representation is that nearly two-thirds of noncitizens taken into custody in a city like New York are sent to distant detention centers in places like Texas, Louisiana, or Pennsylvania, where representation is even more difficult to secure. (249) These detention centers are located far away from metropolitan cities and are physically difficult to reach. (250) Kenneth Mayeaux, director of the LSU Immigration Law Clinic, states that it takes half a day just to drive to a detention center in Louisiana from a metropolitan city like Baton Rouge. (251) This fact alone would deter many attorneys from taking on an immigration client. (252) In such distant locations, nearly 80 percent of noncitizens go unrepresented. (253)

   The lack of representation is just one problem; the quality of representation is another. According to one study, federal judges "agreed that immigration was the area in which the quality of representation was lowest." (254) One immigration judge stated, "I've grown concerned that many [immigration] attorneys are just not very interested in their work and therefore bring little professional vigor or focus to it." (255) According to the New York Immigration Representation Study, about fifty-two New York immigration attorneys have been expelled or suspended by the EOIR from the practice of law. (256) According to an official in the state attorney general's office, "Across New York, fraudulent legal service providers are making huge profits by defrauding immigrant communities." (257) Such issues have prompted immigrant groups to lobby for more funding for programs to train lawyers and advise noncitizens of their rights. For example, within the past year, a U.S. Department of Justice-sponsored project called the Legal Orientation Program opened a New York City branch to educate noncitizens of their rights, and Justice Department authorities have stepped up efforts to prosecute fraudulent lawyers. (258) According to Fatima A. Shama, the city's immigrant affairs commissioner, advocates are urging Mayor Bloomberg "to fulfill his 2009 campaign promise to spend $2 million to train lawyers." (259) But such measures appear to have stalled due to the budgetary cuts happening at both federal and state governments nationwide. (260)

   An asylum applicant's chances of a favorable outcome increase with the presence and quality of representation because an attorney is better able to elicit, develop, and frame the relevant facts to support the petitioner's claim for asylum. (261) If outcomes hinge largely on representation, and immigration judges are either unable or unwilling to make thorough findings of facts, a reviewing judge would--and should--have less confidence in both the accuracy and fairness of the agency proceeding.

3. Bias and Threat to Agency's Decisional Independence

   Not all criticisms of the agency stem from its under-resourcing problem. Some raise deep concerns about the impartiality of the fact-finder. (262) For example, Lopez-Umanzor noted the immigration judge showed "bias" and "prejudgment" against the noncitizen. (263) Likewise, in Wang v. Attorney General, the panel disapproved of the "disparagement" and "sarcasm" of the immigration judge. (264) Arguably, such criticism is more serious than that concerning the carelessness or the lack of knowledge of the pertinent law because it calls into question the decisional independence of immigration judges. One scholar believes that the problem is widespread. (265) Another has described the problem as having reached "crisis proportions" and urges a public campaign against the offending immigration judges. (266)

   While the causes of such bias may ultimately remain unknown, some evidence suggests that structural issues within the agency beyond the individual judges themselves may be contributing to the problem.

   A recent empirical study of immigration judges shows that immigration judges face burnout and stress levels that are higher than those experienced by prison wardens and emergency room physicians. (267) Immigration judges face extraordinary time pressures and lack the essential resources to do their job properly. (268) Another important contributing factor for the high stress levels relates to the nature of cases immigration judges decide. (269) On a daily basis, immigration judges hear distressing stories of persecution and see noncitizens facing removal. If the judges are wrong, they risk sending an asylum applicant back to persecution. Hearing repeated accounts of persecution may desensitize even the most impartial judge and over time may increase a judge's perception of fraud. (270) As Stephen Legomsky notes, the net effect may be a vicious cycle that contributes to even more burnout: rushed decisions reduce accuracy, which leads to more petitions for review, which compounds the under-resourcing problem, which over time raises more suspicion that any particular appeal is frivolous and aimed only at prolonging the noncitizen's stay in the United States. (271)

   Some scholars have attributed the hostility and bias some immigration judges have shown to the agency's institutional structure. (272) Historically, immigration judges answered to the INS, which had significant law enforcement responsibility. (273) To separate its adjudicatory function from its enforcement one, the Justice Department in 1983 created EOIR, now the "umbrella agency that houses both the immigration judges and the BIA." (274) The agency also enacted regulations that require immigration judges and the BIA to exercise "independent judgment and discretion" from the Attorney General. (275) While these two changes have ameliorated some concerns about whether immigration judges can truly make independent judgments and not be influenced by the agency's enforcement obligations, concerns still arise. For example, Legomsky describes a high-profile case of a government prosecutor contacting the chief immigration judge ex parte to complain about a ruling of an immigration judge. (276) The chief judge, instead of informing him to appeal to the BIA, told the immigration judge to change his ruling. (277) Such action reflects the threat to the decisional independence of immigration judges and BIA officials, who have a duty to impartially decide each case.

   Other scholars have shown a positive correlation between decisions made by immigration judges and BIA members and their job security. (278) In 2002, then Attorney General Ashcroft announced that he would be cutting the number of BIA members from twenty-three to eleven. (279) This proposal surprised many because it was preceded by a plan to introduce procedural shortcuts for the purported reason of reducing backlog of BIA appeals. (280) A year later, Attorney General Ashcroft announced the names of five BIA members whom he had "reassigned" to lower positions at the EOIR. (281) This was the first such reassignment of Board members in the BIA's then sixty-three-year history. (282) According to a study by Peter Levinson, the "reassigned" names coincided with Board members who had the highest percentage of rulings that favored noncitizens. (283) Levinson's study showed that the reassigned members included two former immigration law professors and very senior BIA members with substantial immigration experience and expertise. (284) Moreover, the reassigned members did not necessarily fit into the Attorney General's stated criteria for reassignment. Attorney General Ashcroft set specific guidelines for gauging which judges should retain their post: those qualities were "integrity," "professional competence," "adjudicatorial temperament," indicators of "experience," and the like. (285) These qualities appear not to have played a role in many cases.

   Equally significant is the impact that such reassignment had on BIA decision making. When Levinson compared the decisions of Board members before and after the reassignment, several Board members who were more inclined to rule in favor of noncitizens suddenly issued fewer rulings favoring noncitizens. (286) Similarly, another study that compared Board decisions before and after the reassignment revealed an increase in affirmance rates of adverse rulings against noncitizens. (287) Although these studies do not conclusively prove a causal relationship between the...