The failure of immigration appeals.

• Author: Hausman, David
• Position: V. Implications through Conclusion, with footnotes and appendix, p. 1207-1238

V. IMPLICATIONS

This Article's conclusion--that the immigration appeals process fails to promote uniformity because it rarely reviews removal orders issued by harsh judges to immigrants who lack lawyers at the beginning of their proceedings--has direct implications for policy and doctrine. First, the BIA and the courts of appeals should alter their standards of review for the denial of a continuance. Of course, more continuances would make adjudications slower. I therefore suggest other reforms that could make adjudications fairer without slowing them. Relatively small changes in the relief application process--including translation of forms and simplification of practical requirements--could encourage immigrants to apply for relief, even without a lawyer. The BIA could also reduce disparities across judges by reviewing a random sample of cases in addition to those appealed by litigants. Last, and most ambitious, providing government-funded lawyers would likely not only help immigrants avoid removal, but would also reduce disparities across immigration judges and allow the BLA to supervise judges more effectively.

Beyond the context of immigration, this Articles findings have implications for administrative due process doctrine. The combination of adversarial and management models of case resolution in the immigration court system has perverse consequences, leading the BIA and the courts of appeals to consider and reverse a biased sample of cases. That problem is not unique to immigration cases. Since appellate judges hear a biased sample of cases in many areas of law, those judges may be unable to promote uniformity in other domains as well.

1. Immigration Adjudications

   1. Review of Denials of Continuances

      The BIA currently fails to promote uniformity partly because it does not adequately review immigration judges' decisions about continuances. A change in the BIA's standard of review for the denial of a continuance would be a first step toward solving this problem. Currently, "an Immigration Judge's discretionary decision denying a continuance will not be reversed on appeal unless the respondent establishes that the denial caused him actual prejudice and harm, and it materially affected the outcome of his case." (109) Ironically, the harm caused by denying a continuance is partly that it prevents a respondent who does not have a lawyer from obtaining one and eventually filing an appeal of an order of removal. Since few immigrants without lawyers appeal the denial of a continuance, those who do appeal are, on average, those less disadvantaged by the denial.

      In other words, the evidence presented in this Article should lead the BIA to question its ability to judge whether a denial of a continuance materially affected the outcome of a case. Continuances affect an immigrant's ability to find a lawyer and therefore to demonstrate actual prejudice on appeal. By not requiring a showing of actual prejudice for reversal of a continuance and instead focusing on procedural aspects of the denial of a continuance, as described below, the BIA could better review judges' decisions about continuances. Notably, this would not only lead to more generous granting of continuances in the first place, but would also make decisions more consistent across judges, since it would raise the likelihood of appellate review.

      The courts of appeals should also adopt a standard of review for the denial of continuances that does not require a counterfactual showing of the substantive importance of the continuance. In the Ninth Circuit, the immigration judge and the BIA are required to consider "factors including (1) the nature of the evidence excluded as a result of the denial of the continuance, (2) the reasonableness of the immigrant's conduct, (3) the inconvenience to the court, and (4) the number of continuances previously granted" when deciding whether to grant a continuance. (110) The last three factors of this standard are straightforward, but the first depends on an unrealistic counterfactual determination: the judge or the BIA may not be able to assess the nature of the evidence excluded as a result of the continuance if the continuance prevented the immigrant from entering new evidence. The same problem faces courts of appeals that require immigrants to show that they were prejudiced by the denial of a continuance in order to challenge a violation of the right to counsel. (111) Once again, the immigrants who are able to provide compelling evidence that was excluded by the denial of a continuance are precisely those least harmed by that denial, since they eventually appealed.

      A better standard for decisions would consider only the procedural elements: (1) whether the immigrant acted reasonably; (2) whether the immigrant inconvenienced the court; and (3) how many continuances the immigrant had already received. The courts of appeals could easily adopt such a standard.

      Of course, a more immigrant friendly standard of review for the denial of continuances would have costs: more continuances mean less timely decisionmaking. Other compatible reforms, however, could improve timeliness while also reducing disparities.

   2. Practical Changes to Application for Relief Process

      Interviews and court observation suggest that many immigrants who are eligible for relief fail to apply for it--especially if they are assigned to a harsh immigration judge. A large and growing literature in behavioral economics has shown that small practical barriers can influence individuals' decisions, 110 with surprisingly important policy consequences. (112) The current requirements for immigration relief set up a series of unnecessary and easily removable practical barriers. Consider, for example, the practical steps necessary to apply for cancellation of removal, which is available to immigrants whose removal would cause "exceptional and extremely unusual hardship" to a U.S. citizen or lawful permanent resident spouse, parent, or child. (113) First, the eight page form must be filled out in English or must be accompanied by a certified English translation. (114) Immigration courts provide oral translation during hearings (116) but not written translation of relief applications. Second, the immigrant must pay a $100 filing fee or request a fee waiver from the immigration judge. (115) Third, the immigrant must serve on Immigration and Customs Enforcement (ICE) Assistant Chief Counsel (1) a copy of the filled out form and all supporting documents, (2) a fee receipt, (3) biometric appointment information, (4) a separate Biographical Information Form, and (5) a photograph. (117) Fourth, the immigrant must provide all of these documents, along with a certificate showing service of them on the ICE Assistant Chief Counsel, to the immigration judge. (118)

      These requirements are burdensome, especially for a non-English speaking immigrant with few resources, and they are also unnecessary. The EOIR or ICE could reduce the burden in several ways. First, translation services for the application itself would make it accessible to immigrants without lawyers. Translation requires resources, but the immigration courts already provide translation services in court; translation of applications is a natural corollary. Second, several of the paperwork requirements are not necessary. The immigration courts could share copies of applications with ICE rather than requiring the immigrant both to serve a copy directly and to produce proof of such service. The courts could also reduce the filing fee or make it contingent on the success of the application.

      Removing these practical barriers to relief applications would help immigrants who have meritorious claims but lack lawyers and English skills. Moreover, removing these barriers would promote uniformity: the complexity of the current requirements gives immigration judges more discretion about whether to accept an application for relief. Some judges may accept applications that come close to meeting these requirements; others may enforce the requirements strictly. Simplifying the requirements would therefore also reduce disparities across immigration judges.

   3. Review of Additional Cases

      The EOIR could also more directly amend the appeals process. A central shortcoming of that process is that the BIA hears a skewed sample of cases--overwhelmingly those from immigrants with lawyers who have filed relief applications. The BIA could address this bias by randomly selecting additional cases to review. (119) Such random selection is foreign to the adversarial model of litigation and appeals, but not to administrative appeals: for example, the Social Security Agency's Appeals Council already employs random and selective sampling to choose cases for review. (120)

      The BIA could adopt a similar procedure with a special focus on the denial of continuances. It could randomly choose decisions on continuances--both denials and grants--for sua sponte review. Since these decisions typically follow from a short colloquy between the immigrant and the immigration judge, the BIA could use hearing transcripts to review many such decisions quickly--before the decisions exert practical effects. If the BIA were to review a substantial number of continuance decisions, immigration judges might begin to change their behavior to avoid reversal. Together with a change in the standard of review, such random appellate review could make immigration judges' continuance decisions more consistent.

   4. Adoption of Government-Provided Counsel for Immigrants

      Finally, this Article's findings provide additional reasons to support a program of government-provided counsel for immigrants. Over the past decade, the government has faced growing pressure, in the form of both litigation and advocacy, to provide lawyers for immigrants in removal proceedings. Immigrants' rights groups have successfully sued for the right to government-provided counsel for mentally ill respondents...