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

• Author: Maureen Stobb,Banks Miller,Joshua Kennedy
• DOI: http://doi.org/10.1177/1532673X221135509
• Published date: 01 March 2023
• Date: 01 March 2023
• Subject Matter: Articles

Article

American Politics Research

2023, Vol. 51(2) 235–246

© The Author(s) 2022

Article reuse guidelines:

sagepub.com/journals-permissions

DOI: 10.1177/1532673X221135509

journals.sagepub.com/home/apr

Who Controls the Immigration Bureaucracy?

The Relative Inf‌luence of the Three Branches

Over Asylum Policy Implementation

Maureen Stobb

1

, Banks Miller

2

, and Joshua Kennedy

1

Abstract

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 judges’decisions, 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

courts.

Keywords

bureaucracy, policy implementation, asylum, immigration, courts

U.S. asylum policy is a hotly debated topic in American

politics. Scholars recognize that the “linchpin”of 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.

1

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.

2

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,

830).

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.

3

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

1

Georgia Southern University, Statesboro, GA, USA

2

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