Immigration Appeals Overwhelm Federal Courts
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Immigration Appeals Overwhelm Federal Courts*
By Stanley Mailman and Stephen Yale-Loehr**
Immigration appeals are swamping the federal courts. There are many reasons for the sudden surge. This article analyzes some of those reasons and suggests possible solutions.
As background, an appeal from the decision of an immigration judge in an exclusion, deportation, or removal case is filed with the Board of Immigration Appeals (BIA), a federal administrative body that is part of the Department of Justice. 8 C.F.R. § 1003.1. In turn, an appeal from a BIA decision goes to the federal court of appeals that has jurisdiction over the case. INA § 242, 8 U.S.C. § 1252. See generally 8 Charles Gordon, Stanley Mailman & Stephen Yale-Loehr, Immigration Law and Procedure §§ 104.05, 104.13.
In some immigration cases, review can start in federal district court, by petition for habeas corpus. These cases too can be appealed to the courts of appeals. Id. § 104.04.
Immigration appeals have traditionally accounted for a relatively small percentage of the federal court caseload. Nationally, appeals from BIA decisions accounted for about three percent of the federal circuit court workload in 2001. By 2003, however, immigration appeals rose to about 15 percent of the circuit courts’ caseload. The increase has particularly affected the dockets of the Second and Ninth Circuits, where many foreign nationals reside. In those two circuits, more than 30 percent of the cases involve immigration appeals. Admin. Office of U.S. Courts, U.S. Courts of Appeals, Source of Appeals and Original Proceedings Commenced by Circuit for the Twelve Month Periods Ended Dec. 31, 1999, 2000, 2001, 2002 and 2003 (Table B3).
Some blame the surge in immigration appeals with the way the BIA has coped with the ballooning caseload it has faced in the last decade. A report written for the American Bar Association estimates that between 1992 and 2000, appeals to the BIA increased from 12,823 to 29,972. During that time the BIA’s backlog jumped from 18,054 to 63,763. Dorsey & Whitney LLP, Board of Immigration Appeals: Procedural Reforms to Improve Case Management Appendix 12 (2003) [hereinafter Dorsey &Whitney Report], at http://www.dorsey.com/files/upload/DorseyStudyABA_8mgPDF.pdf (last visited Dec. 20, 2004). To deal with this disaster, in 1999 the BIA issued certain “streamlining rules.” Under the most dramatic of these, single BIA members were empowered to decide certain categories of cases without opinion, instead of the traditional panels of three judges. In 2002, noting the BIA’s continuing backlog, Attorney General John Ashcroft announced additional reforms. Among other changes, these new rules expanded the number of cases referred for single-member summary review, eliminated de novo review of factual issues, and expanded the grounds for mandatory dismissal. 67 Fed. Reg. 54,878 (Aug. 26, 2002) (codified at 8 C.F.R. § 1003).
By one measure, the Ashcroft initiative has been effective. As of October 2004, the BIA’s backlog was down to 33,000 cases. But consider some of the other statistics. By October 2002, summary affirmances increased from between two to three percent of all cases to almost 60 percent. Dorsey & Whitney Report at Appendix 25. At the same time, dispositions in favor of noncitizens declined. Before the reforms, individual petitioners obtained relief in approximately 25 percent of BIA cases; by October 2002, after the procedural reforms had been implemented, that percentage fell to about 10 percent. Id. at Appendix 24.
Numerous lawsuits have challenged the BIA’s streamlining changes, but all have failed. See, e.g., Zhang v. U.S. Dep’t of Justice, 362 F.3d 155 (2d Cir. 2004) (per curiam). The courts have generally ruled that it is not a due process violation for the BIA to affirm an immigration judge’s decision without issuing an opinion. As long as the petitioner had a full and fair hearing before the immigration judge, and the immigration judge correctly applied the relevant legal standards in deciding the case, the petitioner is deemed to have had a hearing that meets due process requirements. Constitutionally, an administrative appeal isn’t even required. As to the format, the BIA is a creature of the Attorney General, who can therefore decide its contours by regulation.
But BIA streamlining, even if legal, may not be an efficient use of resources. “The idea that you could just rubber stamp a lot of cases at the agency and they would go away was just mistaken,” said Nancy Morawetz, a professor of clinical law at New York University School of Law. “If you don’t get fair consideration at the agency, it’s not surprising that you’d get a greater number appealed to the court.” Tom Brune, Burdened by Appeals: A Justice Dept. Plan to Reduce Backlog of Immigration Cases Has Done So, But Also Driven Up Federal Appeals, Newsday, Dec. 15, 2004, available at http://www.nynewsday.com/news/nationworld/nation/ny-usjust154084334dec15,0,2630895,print.story (last visited Dec. 20, 2004). See also Lory Rosenberg, Lacking Appeal: Mandatory Affirmance by the BIA, 9 Bender’s Immigr. Bull. 91 (Feb. 1, 2004).
“It’s a transference of costs from the executive branch to the courts,” Paul Rosenzweig, a senior fellow at the Heritage Foundation, told the Sacramento Bee. “Whose money do you want to spend if you’re the executive officer - your own or the judges’?” Claire Cooper & Emily Bazar, Immigration Appeals Swamp Federal Courts, Sacramento Bee, Sept. 5, 2004.
Not all of the increase in immigration appeals is due to the 2002 BIA streamlining changes. Other factors include:
• Restrictive changes in the law. In 1996 Congress restricted discretionary relief for immigration violators and expanded deportability for noncitizens who have committed crimes and other immigration violations. With fewer opportunities to seek discretionary relief, more individuals are challenging the legal bases for their removal orders.
• Hybrid jurisdictional scheme. In 1996 Congress also restricted the jurisdiction of courts of appeals to hear certain kinds of immigration decisions. That resulted in an increase in habeas corpus filings under 28 U.S.C. § 2241, which in turn can lead to double filings to preserve all claims in a given case.
• More cases due to increased enforcement. Over the last ten years Congress has increased funding for the immigration agency to find and detain noncitizens who have committed immigration violations. With greater enforcement comes more legal challenges.
• Increased legal issues as a result of changes in the law and enforcement practices. When Congress changes the law or the immigration agency increases enforcement, more people seek review in the federal courts to resolve ambiguities in the law or to seek clarification of a legal term of art. For example, the Supreme Court just held in Leocal v. Ashcroft, 125 S. Ct. 377 (2004), that a conviction under Florida law for driving while intoxicated is not a “crime of violence” for immigration purposes. Similar cases are percolating through the federal courts on a variety of novel legal issues.
These factors indicate that the immigration “bulge” in the federal courts will not go away any time soon. The immigration system created the problem, and only a systemic approach can ultimately resolve it. Congress should review administrative and judicial review of immigration decisions generally to determine a better model.
There are four goals of any administrative and judicial review process: accuracy, efficiency, acceptability, and consistency. See generally Stephen Legomsky, Forum Choices for the Review of Agency Adjudication: A Study of the Immigration Process, 71 Iowa L. Rev. 1297, 1313 (1986). Accuracy reflects the need to determine the truth. Efficiency encompasses minimizing the monetary costs to the parties and to the public as well as the costs of the waiting time and the decision makers’ time. Acceptability recognizes the importance of having a procedure that the litigants and the public perceive as fair. Consistency enhances stability and helps assure equal treatment of similarly situated litigants. Any reform of the immigration appeal function must be measured against these four goals, as well as the due process requirements of the U.S. Constitution. As one possible model, Congress might look at the review mechanisms in the Social Security system. See generally Paul R. Verkuil & Jeffrey S. Lubbers, Alternative Approaches to Judicial Review of Social Security Disability Cases, 55 Admin. L. Rev. 731 (2003); Russell L. Weaver, Appellate Review in Executive Departments and Agencies, 48 Admin. L. Rev. 251 (1996).
In the meantime, the federal courts can’t wait for Congress to act. To deal with the immigration surge, the courts of appeals are devising stopgap measures. For example, the Second Circuit has asked volunteer pro bono mediators to help resolve some immigration appeals so the cases don’t have to be briefed and argued to the court. Committee on Federal Courts, Association of the Bar of the City of New York, The Surge of Immigration Appeals and its Impact on the Second Circuit Court of Appeals 15 (Aug. 15, 2004), available at www.abcny.org/pdf/report/AppealSurgeReport.pdf (last visited Dec. 21, 2004). And to keep up with its docket, the Justice Department has drafted hundreds of its lawyers from other fields to write immigration briefs. Dan Eggen, Immigration Backlog Forces Justice to Shift Staffing, Washington Post, Dec. 14, 2004, at A11.
The courts and the BIA can also act to decide common issues and thus resolve many cases at the same time. For example, most immigration appeals concern denials of asylum applications. Many of those involve asylum claims by Chinese nationals based on China’s “one couple-one child” family planning policy. See generally Paula Abrams, Population Politics: Reproductive Rights and U.S. Asylum Policy, 14 Geo Immigr. L.J. 881 (2000). Several issues in such cases remain unresolved. For example, Chinese citizens can’t legally marry until they are a certain age, usually 22. If a Chinese couple marries earlier and then one of them is forcibly sterilized or has to undergo an abortion, is that a ground for asylum? In Ma v. Ashcroft, 361 F.3d 553, 560 (9th Cir. 2004), the Ninth Circuit found that because the early marriage prohibition was inextricably linked to the restrictions on childbirth, limiting asylum eligibility to exclude husbands who married their spouses before the authorized age contravened the purpose of the asylum statute. The Second Circuit and other courts of appeals may also want to opine on this issue quickly to give guidance to the BIA and the many asylum claimants who raise the same issue.
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* This article originally appeared in the December 27, 2004 issue of the New York Law Journal. Copyright © 2004 New York Law Publishing Company. The authors thank the Journal for permission to reprint this article.
** Stanley Mailman and Stephen Yale-Loehr are co-authors of Immigration Law and Procedure, published by LexisNexis Matthew Bender. Mr. Mailman is of counsel to Satterlee Stephens Burke & Burke in New York City. Mr. Yale-Loehr is of counsel at Miller Mayer in Ithaca, N.Y., and teaches immigration and asylum law at Cornell Law School.