On November 15, 2018, CMS hosted an event on access to justice, due process and the rule of law to honor the legacy of Juan Osuna, a close colleague and friend who held high-level immigration positions in four administrations over a 17-year period. Prior to his government service, Mr. Osuna served as a respected editor and publisher and a close collaborator with many civil society organizations. As a follow-up to its November 15th gathering, CMS will be posting and publishing a series of blogs, essays, talks, and papers in its Journal on Migration and Human Security on issues of particular concern to Mr. Osuna. These articles will ultimately be compiled in a special collection in his memory. This blog by Jill Family, Commonwealth Professor of Law and Government and Director of the Law and Government Institute at Widener University Commonwealth Law School, is the first contribution to this collection. It argues for the need for an Article I immigration court system in order to “force independence” into the removal adjudication process.
Immigration agency adjudicators lack adequate independence. There are too many reasons for immigration judges and Board of Immigration Appeals (BIA) members to fear that their jobs depend on pleasing their boss, the Attorney General, rather than on independently interpreting and applying immigration law. This lack of independence is a long-standing concern. During the George W. Bush administration, Attorney General John Ashcroft fired BIA members who held decision-making records perceived to be friendly to immigrants. And, a report by the Department of Justice’s (DOJ’s) Office of Inspector General and Office of Professional Responsibility found that the same Bush administration improperly considered political affiliation in hiring immigration judges. Immigration agency adjudicators should serve as a check against the government’s power to remove (deport); they should not be devoted to removing as many non-citizens as possible.
One proposed solution would be to move removal adjudication to a newly created Article I court like the US Court of Appeals for Veterans Claims or the US Tax Court. An Article I court located within the legislative branch, with both trial and appellate levels, would be positioned to make independent judgments in a way that the current immigration court system, located within the executive branch, is not. An Article I court would be focused on adjudication only and would not be a part of DOJ, which has a law enforcement focus.
What has motivated organizations like the American Bar Association, the American Immigration Lawyers Association, the Federal Bar Association, and the National Association of Immigration Judges to call for the elimination of agency adjudication in removal cases?
A review of the role of agency adjudication is helpful background to understand the call for a new Article I court. Congress may delegate authority to an agency through a statute. As it stands, Congress has delegated authority through the Immigration and Nationality Act to the Department of Homeland Security to charge non-citizens with removal and to DOJ to adjudicate whether that charge should result in removal.
Under the Administrative Procedure Act (APA), agencies exercise their delegated authority mainly through rulemaking or adjudication. When an agency makes rules, it acts more like a legislature. When an agency adjudicates, it acts more like a court. When an agency is adjudicating, procedural instructions may come from the APA itself or from another statute, if Congress designates procedures that are different from those in the APA. The Due Process Clause of the US Constitution applies to agency adjudication and is the supreme source of procedural direction.
Under the APA, adjudication may be informal or formal. Formal adjudication requires the use of Administrative Law Judges (ALJs), among other procedural requirements. Traditionally, ALJs have had independence that other agency adjudicators do not. If Congress wants to require an agency to use formal adjudication procedures under the APA, it can do so by including specific language in a statute. If that specific language is missing, then an agency can instead use informal adjudication. Informal adjudication is common in administrative law. A recent study reported that there are almost 2,000 ALJs but almost 11,000 non-ALJ adjudicators. The APA provides few procedural rules for informal adjudication, but the Due Process Clause applies, and Congress may also require procedures through a statute other than the APA.
Immigration removal adjudication is informal agency adjudication under the APA. While the APA provides little guidance, the Due Process Clause provides procedural protection and Congress has stepped in and provided some direction through the Immigration and Nationality Act.
Because agency adjudicators operate pursuant to a delegation to an agency official, like the Attorney General in the case of immigration adjudication, they are expected to be less independent than federal court judges who derive their authority from Article III and its strict protections for independence. Agency adjudicators, however, are supposed to provide a fair hearing under the Due Process Clause. What happens if the head of the agency objects to features that would make a hearing fair? Agency adjudication intrinsically includes this push and pull between the values of accountability to the agency head and the independence of its adjudicators.
The current push for more independence for immigration adjudicators, and the desire to remove them from the executive branch, stems from a perception that the Trump administration is raising the accountability value above all others and does not value independence. The president has expressed his distaste for providing due process for non-citizens in removal hearings. The administration is tightening access to the border with Mexico, thus preventing asylum applicants from receiving a hearing. Attorney General Sessions imposed case completion quotas on immigration judges that incentivize them to deny applications for relief from removal. He also stripped immigration judges of power to manage their own dockets by restricting their ability to grant continuances and to administratively close a case. These changes force a case to move faster even if an immigration judge thinks it would be fairer to pause the case. Finally, the administration replaced an immigration judge where it looked like the judge would reach a result that the administration did not favor. The priority of the administration seems to be to increase the number of orders to remove no matter what.
The lack of independence in agency adjudication of removal cases is especially troubling due to what is at stake in a removal case and the complexity of immigration law. Removal may result in death for a person fleeing persecution and denied asylum. Or it may mean separation from immediate family members, including US citizen children. These results are arrived at through a process that applies extremely complex law and provides no statutory right to government funded counsel. Additionally, Congress has limited the ability of an Article III court to review the decisions of immigration agency adjudicators. If the lawyer representing the government (which is always represented) and the immigration judge have the same mission and priority, then the agency adjudication process is stripped of independent decision-making, and there may not be any opportunity for independent review in the federal courts.
The call for an Article I court is an effort to force independence into the process. The call to eliminate agency adjudication arises from DOJ’s failure to protect that adjudicatory value. The call for an Article I immigration court may seem like a sweeping change, but it stems from legitimate concerns over the desperate need for independence.