The President's Immigration Courts

• Publication year: 2018

The President's Immigration Courts

Catherine Y. Kim

THE PRESIDENT'S IMMIGRATION COURTS

Catherine Y. Kim^*

ABSTRACT

Scholars have long documented the expansion of White House influence over agency decision-making; for at least the past quarter-century, presidential control has become the central feature of federal regulatory governance. Until recently, such influence was understood to target the performance of purely executive and legislative functions by agencies; commentators generally assumed that political operatives refrained from interfering in agencies' performance of adjudicative functions. The Trump Administration has cast doubt on that assumption, deploying a series of reforms designed to reshape administrative adjudication in our nation's immigration courts. This Article evaluates these emerging tools of political influence and their implications for the ongoing debate over the legitimacy of presidential administration.

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INTRODUCTION.................................................................................................3

I. THE CONVENTIONAL ACCOUNT OF PRESIDENTIAL CONTROL...............7

A. Emergence of Presidential Control .............................................. 9
B. Presumed Restraint Toward Adjudicative Functions ................. 11

1. Legal Constraints ................................................................. 12
2. Cultural Constraints............................................................. 13
3. Historical Attempts to Politicize Agency Adjudications........14

C. Reevaluating the Presumption of Adjudicative Independence from Presidential Control........................................................... 15

1. Limits of Legal Barriers to Political Control ....................... 16
2. Limits of Conventions as a Barrier to Political Control .......18

II. EMERGENCE OF PRESIDENTIAL CONTROL OVER AGENCY ADJUDICATION....................................................................................18

A. The President's Immigration Agenda......................................... 19
B. Immigration Courts .................................................................... 20
C. Emerging Tools to Influence Immigration Adjudication ............ 22

1. Administrative Closure......................................................... 23
2. Asylum Claims ...................................................................... 24
3. Detention .............................................................................. 26
4. Managerial Reforms to Reduce Backlog of Pending Cases .................................................................................... 28

III. ASSESSING PRESIDENTIAL ADJUDICATION..........................................34

A. The Normative Stakes ................................................................. 34

1. Democratic Responsiveness and Protecting Individual Interests ................................................................................ 35
2. Separation of Powers ........................................................... 38

B. A Context-Specific Assessment of Politicized Removal Proceedings ................................................................................ 43

CONCLUSION...................................................................................................48

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INTRODUCTION

Over eleven million noncitizens reside in the United States without authorization, either because they entered without inspection or because they overstayed their visas.¹ Additionally, an estimated 1.9 million noncitizens—the majority of whom hold lawful immigrant status—are subject to deportation based on post-entry conduct.² President Trump has placed the deportation of "illegals" at the center of his policy agenda, staking much of his political future on the ability to remove these individuals from the country.³ One of his administration's core strategies has been aimed at "transforming [the] institutional culture and infrastructure" of our nation's immigration courts.⁴

These administrative courts, housed within the Department of Justice Executive Office for Immigration Review (EOIR),⁵ are staffed by "immigration judges"⁶ congressionally vested with authority to adjudicate whether a given noncitizen is "inadmissible" or "deportable,"⁷ and if so, whether the individual nonetheless is eligible for, and warrants, discretionary relief from removal.⁸

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These agency officials in many cases also decide whether a detained alien may be released pending the outcome of removal proceedings.⁹ In fiscal year 2016, over 300,000 new proceedings were filed in immigration courts, to be adjudicated by one of approximately 330 immigration judges sitting in 58 courts across the nation.¹⁰ For millions of individuals facing deportation, immigration courts are the final arbiter to determine whether they will be removed from, or permitted to remain in, the United States.¹¹

Immigration courts have long been the subject of criticism from both the right and the left.¹² Commentators have documented vast disparities in case

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outcomes,¹³ staggering processing times and backlogs,¹⁴ and an overall lack of fair and meaningful deliberation.¹⁵ Unlike prior reform proposals,¹⁶ however, the Trump Administration has sought to expand its political control over these courts.¹⁷ Over the past year and a half, under the tenure of Attorney General Jeff

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Sessions, the Trump Administration has eliminated immigration judges' authority to grant relief from removal in the form of administrative closure; altered longstanding agency precedent regarding the availability of asylum; sought to mandate the detention of virtually all noncitizens pending removal proceedings; engaged in an aggressive hiring plan to recruit new judges; and implemented supervisory mechanisms including performance metrics to expedite case processing and increase rates of removal.¹⁸ These reforms cast doubt on the conventional narrative within administrative law scholarship maintaining that while the White House has expanded control over various aspects of the regulatory state, it refrains from interfering in administrative adjudications.¹⁹

Whatever one's substantive policy preferences—whether one believes that we should be deporting more or fewer noncitizens from our country—these developments raise fundamental concerns regarding the legitimacy of presidential control over administrative adjudications more generally.²⁰ The increased politicization of agency adjudications raises a host of thorny questions about the extent to which such proceedings should be insulated from political

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influence. Commentators often assert that presidential control over agency adjudications would be normatively, if not constitutionally, problematic.²¹ This Article asserts that the normative calculus is somewhat more complicated, implicating a constellation of often-competing goals including individual fairness, democratic accountability, accuracy, efficiency, and fidelity to separation-of-powers principles.²² It proceeds as follows. Part I briefly recounts the rise of presidential control over agency decision-making and the conventional assumption that such control does not extend to agency adjudications. Part II documents evidence to rebut that assumption, identifying a series of recent reforms designed to shift outcomes in immigration adjudication. Part III identifies the legal norms at stake in the politicization of agency adjudications and evaluates the recent reforms to removal proceedings on the basis of these metrics.

I. THE CONVENTIONAL ACCOUNT OF PRESIDENTIAL CONTROL

Federal agencies occupy a special place in our constitutional system.²³ Formally, they are constituent parts of the Executive Branch serving under the

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President.²⁴ But Congress is responsible for creating agencies and delegating their authority,²⁵ and the federal courts play a crucial role in policing administrative exercises of that authority.²⁶

Through time, theorists have developed a series of models to describe how agencies are controlled. Prior models conceptualized agencies as primarily agents of Congress, while others emphasized the extent to which they are subject to control by federal courts or even non-governmental interest groups.²⁷ Under the currently prevailing model, the "presidential control model," the White House and its political appointees are understood to be the primary drivers of agency action.²⁸ This Part proceeds in three sections: Section A offers a brief description of the presidential control model of agency action. Section B explains the conventional assumption that such control stops short of agency adjudications. Finally, section C points out weaknesses in assuming adjudicative independence from political influence.

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A. Emergence of Presidential Control

For the past quarter-century, administrative law scholars have observed the steady expansion of White House influence over agency action; indeed, presidential control has become the defining feature of our modern regulatory landscape.²⁹ Two mechanisms have been crucial in allowing the White House and its political leadership to ensure that agency decisions adhere to and promote the President's political agenda: (1) the emergence of centralized White House regulatory planning and review; and (2) the expansion of presidential appointments in agencies.

Centralized regulatory planning and review. For decades, the Oval Office has ensured that regulatory decisions are vetted through the White House. Building on earlier administrations' efforts to enhance interagency coordination, President Ronald Reagan required all Executive Branch agencies to submit "major" rulemaking proposals for pre-approval to the White House Office of Information and Regulatory Affairs (OIRA).³⁰ President Bill Clinton expanded that centralization, requiring both Executive Branch agencies and independent ones to submit a list of "significant...