Who Controls the Immigration Bureaucracy? The Relative Influence of the Three Branches Over Asylum Policy Implementation

AuthorMaureen Stobb,Banks Miller,Joshua Kennedy
Published date01 March 2023
Date01 March 2023
Subject MatterArticles
American Politics Research
2023, Vol. 51(2) 235246
© The Author(s) 2022
Article reuse guidelines:
DOI: 10.1177/1532673X221135509
Who Controls the Immigration Bureaucracy?
The Relative Inf‌luence of the Three Branches
Over Asylum Policy Implementation
Maureen Stobb
, Banks Miller
, and Joshua Kennedy
At the center of contentious debates concerning U.S. asylum policy are immigration judges, bureaucrats who decide life and
death cases on a daily basis. Congress, the executive and the courts compete for inf‌luence over these key actors ad-
ministrative judges distinct from those examined in much of the bureaucratic control literature. They are hired, f‌ired, promoted
or demoted by executive off‌icials; face congressional oversight; and must follow circuit law. We argue that, because of the fear
of reversal, immigration judges will look most to the courts in the decision-making process. Our re sults support our theory.
Examining over 900,000 immigration judgesdecisions, we f‌ind that, although IJs are inf‌luenced by a fear of pushback from the
elected branches, the impact is conditional on circuit preferences. Our f‌indings inform scholarly understanding of judicial
behavior and bureaucratic accountability, and support the pursuit of judicial independence and due process in immigration
bureaucracy, policy implementation, asylum, immigration, courts
U.S. asylum policy is a hotly debated topic in American
politics. Scholars recognize that the linchpinof asylum
policy are bureaucrats immigration judges (IJs) who
make critical decisions concerning the fate of those claiming
persecution in their home country (Miller et al., 2015a, 1). All
three branches of the government have attempted to inf‌luence
the conduct of these administrative hearings. Congress held
hearings in 2020 discussing proposed changes that would
purportedly bolster the independence of IJs.
Both Presidents
Joe Biden and Donald Trump have been accused of politi-
cizing immigration courts, either through making radical
changes to the functioning of the courts or by packing them
with judges that have policy preferences akin to their own.
U.S. Courts of Appeals judges have admonished IJs for their
behavior, with one court suggesting the hearings fall below
minimum standards of justice (Benslimane v. Gonzales 2005,
A key question, therefore, is who controls the IJs? Con-
gress, the executive, and the circuit courts compete for in-
f‌luence over these administrative judges, referred to as non-
ALJs, or non-administrative law judges. As administrative
judges, IJs are appointed by the executive but not conf‌irmed
by the Senate like the type of adjudicator studied in much of
the bureaucratic control literature. Their hiring, working
conditions, and termination are handled informally by the
Executive Off‌ice of Immigration Review, an agency within
the Department of Justice, primarily by their immediate
supervisor, the Chief Immigration Judge (Miller et al.,
2015a). This suggests a different relationship than what
the traditional literature might predict (e.g. Wood &
Waterman 1994). Questions concerning the control of IJs
are not only important and timely, but may have implications
for the control of the over 10,000 non-ALJs adjudicators that
work at federal agencies, presiding over the vast majority of
informal adjudication proceedings.
We develop theoretical expectations regarding which
branch will be the most inf‌luential over this type of bu-
reaucrat. In short, we argue that the political preferences of
the circuit courts of appeal will have the greatest impact
because, in this highly salient and complex area, IJs have
reason to fear circuit court reversal (Gormley, 1986). We
contend that, although the political preferences of the elected
branches will inf‌luence outcomes in asylum cases, the effect
Georgia Southern University, Statesboro, GA, USA
University of Texas at Dallas, Richardson, TX, USA
Corresponding Author:
Maureen Stobb, Georgia Southern University, P.O. Box 8101, Statesboro,
GA 30460-1000, USA.
Email: mstobb@georgiasouthern.edu

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT