Restructuring Immigration Adjudication

For decades, the immigration adjudication system has been under relentless attack from both the left and the right. The left has been concerned with the fairness of the proceedings, the accuracy and consistency of the outcomes, and the acceptability of both the procedures and the outcomes to the parties and to the public. The right has focused on the fiscal costs and elapsed times of these proceedings. This Article demonstrates that all of these criticisms have been well founded and that the roots of the problems are severe underfunding, reckless procedural shortcuts, the politicization of the process, and a handful of adjudicators personally ill suited to the task. Copyright © 2010 by Stephen H. Legomsky. † John S. Lehmann University Professor, Washington University School of Law, legomsky@wulaw.wustl.edu. For much of the numerical data on the caseloads, staffing, salaries, employment terms, and internal operating procedures of the immigration courts, the Board of Immigration Appeals, the various prosecuting agencies, and the courts of appeals, I am indebted to Gary Bowden (Administrative Office of the U.S. Courts), Cathy Catterson (Circuit Executive, U.S. Court of Appeals for the Ninth Circuit), Elaine Komis (Public Affairs Officer, Executive Office for Immigration Review), David Martin (Principal Deputy General Counsel, U.S. Department of Homeland Security), David Neal (Acting Chair, Board of Immigration Appeals and former Chief Immigration Judge), Juan Osuna (Deputy Assistant Attorney General, U.S. Department of Justice and former Chair, Board of Immigration Appeals), Susan Soong (Supervising Staff Attorney, U.S. Court of Appeals for the Ninth Circuit), and Peter Vincent (Principal Legal Advisor, Immigration and Customs Enforcement). I also thank the organizers of the 2009 annual American Bar Association Administrative Law Conference, the editors of the Duke Law Journal, Larry Baum, Lenni Benson, Adam Cox, Jill Family, Leon Fresco (Chief Counsel to U.S. Senate Subcommittee on Immigration, Refugees and Border Security), Shirin Hakimzadeh (intern to U.S. Senate Subcommittee on Immigration, Refugees and Border Security), Ronald Levin, Jeffrey Lubbers, Judge Dana Leigh Marks (President, National Association of Immigration Judges), Jessica Owens (Counsel, U.S. Senate Subcommittee on Immigration, Refugees and Border Security), Cristina Rodriguez, Philip Schrag, Russell Wheeler, and all the participants in the Duke Law Journal’s Administrative Law Symposium. LEGOMSKY IN FINAL.DOC 4/28/2010 5:15:26 PM 1636 DUKE LAW JOURNAL [Vol. 59:1635 Over the years, commentators and commissions have offered thoughtful solutions, but consensus has proven elusive. This Article calls for redesigning the entire system. For the trial phase, this Article endorses previous proposals for converting the current immigration judges into administrative law judges, who enjoy greater job security, and moving them from the Department of Justice into a new, independent executive branch tribunal. For the appellate phase, this Article proposes radical surgery, replacing both administrative appeals and regional court of appeals review with a single round of appellate review by a new, Article III immigration court. The new court would be staffed by experienced Article III district and circuit judges serving two-year assignments. This new system would significantly depoliticize the hiring, judging, supervision, and control of immigration adjudicators. It would consolidate the two current, largely duplicative rounds of appellate review into one, in the process restoring the Article III jurisdiction that Congress stripped away in 1996. It would save tax dollars and speed the removal process, thus reducing not only prolonged detention, but also what some believe is a meaningful incentive to file frivolous appeals to delay removal. It would preserve both specialized expertise and a generalist perspective. And it is politically realistic, permitting all sides to meet the specific objectives they hold most dear while requiring each side to make only modest concessions.