Immigration Litigation Reform
Released: 2006-05-08T00:00:00

Background

Beginning with the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) (1) and the Illegal ImmigrationReform and Immigrant Responsibility Act of 1996 (IIRIRA), (2) legislation and administrativeactions have focused on reducing immigration litigation by limiting and streamlining bothadministrative appeal and judicial review procedures and by rendering aliens in certain categoriesineligible for certain types of relief from removal. Even when an alien may be considered fordiscretionary relief, judicial review of denials is restricted, as is review of removal orders issued tocriminal aliens. Also, the REAL ID Act restricted habeas review and certain other non-direct judicialreview in response to U.S. Supreme Court holdings that such review was still available after the1996 acts. (3)

Despite these efforts, other changes made by the 1996 Acts increased litigation by expandingthe scope of the grounds for inadmissibility and deportation and the definition of aggravated felony,which effectively further expanded the grounds for deportation. Increased enforcement effortscoupled with the increasing numbers of illegal aliens present in the country have also increasedlitigation as more aliens are placed in removal proceedings.

In 2002, then-Attorney General Ashcroft implemented procedural reforms in the Board ofImmigration Appeals [BIA], the administrative body with jurisdiction to review decisions ofimmigration judges and, at times, other immigration officers. (4) These reforms were intendedto eliminate the existing BIA backlog of cases and to provide for current, efficient disposition ofcases. (5) Since the changes,there has been a shift of the backlog and the number of appeals to the federal appellate courts. Thefollowing charts indicate the increase in caseload in the U.S. Circuit Courts of Appeal and that theincrease of matters in immigration courts and in the BIA cannot account entirely for thecorresponding increase in the federal appellate courts. (6) The immigration appeals in the federal appellate courts accountfor 18% in 2005 vs. 2% in 1996, a nine-fold increase. By contrast, the immigration court caseloadhas only increased 40% and the BIA caseload 71% over the same period.

Figure 1. BIA/INS Appeals to the U.S. Courts of Appeals, 1996-2005

Source: Administrative Office of the U.S. Courts, Judicial Busines s

Figure 2. Total Administrative Matters/Appeals Received, 1996-2005

Source: U.S. Department of Justice, Executive Office of Immigration Review, Statistical Yearbooks.

Other factors have also been perceived as contributing to increased litigation. The U.S. Courtof Appeals for the Ninth Circuit has made holdings perceived by some as contributing to increasedlitigation at the administrative and judicial levels. The REAL ID Act established new statutoryevidentiary standards for asylum claims to resolve inconsistent standards among the federal appellatecourts and the BIA with the intent of decreasing litigation but these were not fully applied towithholding of removal.

Legislative Proposals

Several current major immigration bills contain provisions concerning immigration litigationreform, including Title V of S. 2454 , the Securing America's Borders Act, introducedby Senate Majority Leader Frist on March 16, 2006; Â§Â§ 421-423 of S.Amdt. 3192 to S.2454 (Chairman's (Senator Specter) mark reported by the Senate Judiciary Committee),proposed March 30, 2006; and Â§Â§ 421-423, 701-707 of S. 2611 / S. 2612 ,the Comprehensive Immigration Reform Act of 2006 respectively introduced by Senator Specter andSenator Hagel on April 7, 2006 (generally known as the Hagel-Martinez compromise). H.R. 4437 , the Border Protection, Antiterrorism, and Illegal Immigration Control Actof 2005 passed by the House of Representatives, does not contain broad litigation reform provisions,although it does contain amendments to resolve certain narrower judicial review issues. Title V ofS. 2454 appears to incorporate some of the immigration litigation reduction provisionsfrom Title VII of the initial Chairman's mark text considered in the Senate Judiciary Committee[hereinafter Chairman's mark] and some similar to those in Title VIII of H.R. 4437. (7)

Consolidation of Immigration Appeals

Current Law. Judicial review of removal ordersis available in the federal appellate court for the judicial circuit in which the removal proceedingswere completed (Immigration and Nationality Act [INA] Â§ 242(b)(2); 8 U.S.C. Â§ 1252(b)(2)). (8) However, federal districtcourts do have a limited role. With regard to the treatment of U.S. nationality claims, if there is agenuine issue of material fact concerning whether the person appealing the removal order is a U.S.national, the federal appellate court transfers the proceeding to the federal district court in whosejurisdiction the appellant resides for a new hearing and a declaratory judgment on that issue as ifbrought under 28 U.S.C. Â§ 2201 (INA Â§ 242(b)(5)(B); 8 U.S.C. Â§ 1252(b)(5)(B)). Judicial reviewof challenges to the validity of the system for expedited removal of certain inadmissible aliens underINA Â§ 235(b)(1) (8 U.S.C. Â§ 1225(b)(1)) lies in the District Court for the District of Columbia (INAÂ§ 242(e)(3); 8 U.S.C. Â§ 1252(e)(3)). An appeal from the decisions described above would lie in thefederal appellate court for the circuit in which the district court issuing the decision is located (28U.S.C. Â§Â§ 1294, 1295, 2106, 2107).

Proposed Changes. Section 501 of S. 2454 would consolidate appeals regarding removal of aliens in the U.S. Court ofAppeals for the Federal Circuit. It would increase the authorized number of judges on the FederalCircuit from 12 to 15 and would authorize sums necessary to implement these changes and theincreased case load of the Federal Circuit for fiscal years 2007 to 2011. The effective date of thesechanges would be the date of enactment and they would apply to any final agency order or districtcourt decision entered on or after the date of enactment.

This consolidation of appeals would remove pressure on the other federal appellate circuitsfrom the dramatic increase in their caseload, largely resulting from immigration appeals (9) ; it would basically add theequivalent of another 3-judge panel to the Federal Circuit. This provision would also eliminatefuture inconsistency among appellate circuits in interpretations of immigration law, which in the pastmay have increased litigation as different circuits considered an issue for the first time and as theU.S. Supreme Court may have had to resolve circuit differences. Differences among circuits alsomay have necessitated congressional action to clarify or establish statutory standards in response toinconsistent appellate circuit interpretations. (10)

No similar provision is in H.R. 4437 , S.Amdt. 3192 , or S. 2611 / S. 2612 , although Â§ 701 of the Chairman's mark was identical toÂ§ 501 of S. 2454 . Several authorities were critical of the consolidation proposal, (11) leading Senator Specter,Chairman of the Senate Judiciary Committee, to exclude the entire litigation reduction Title VII fromthe Chairman's mark pending a hearing on judicial review of immigration matters on April 3, 2006,a week after the conclusion of the mark-up of the Chairman's Mark. It appears that upon furtherconsideration, Senator Specter has decided to drop the consolidation provision and certain otherjudicial review provisions from current legislative proposals; S. 2611, which heintroduced, does not contain these provisions, retaining only provision concerning reform of theBoard of Immigration Appeals and the Immigration Courts.

At the hearing, Senator Specter expressed interest in a comprehensive, thorough examinationof the issue of immigration review before proceeding with broad reforms. (12) Accordingly, in lieu of thejudicial review provisions, Â§ 707 of S. 2611 / S. 2612 provides for a GAOstudy on the appellate process for immigration appeals, including a consideration of theconsolidation of appeals into one U.S. Court of Appeals, whether in an existing circuit court or intoa new centralized circuit court; reallocation of immigration caseloads from one circuit to anotherwith a lower caseload; resources needed for such alternatives; case management techniques; impacton each circuit and on litigants; and the other reforms formerly in Title VII of the Chairman's mark,such as review of motions to reopen and reconsider and attorney fee awards.

Additional Immigration Personnel

Current Law. There is no specific directive incurrent authorizations or appropriations acts concerning litigation or adjudication personnel increasesor restrictions for immigration-related agencies. The Intelligence Reform and Terrorism PreventionAct of 2004 (13) and theEnhanced Border Security and Visa Entry Reform Act of 2002 (14) appear to have been themost recent legislation to specify certain personnel increases for immigration-related agencies, butnot for litigation or adjudication personnel.

Proposed Changes. Section 502 of S. 2454 , Â§ 701 of S. 2611 / S. 2612 , and Â§ 702 of theChairman's mark would mandate, for each fiscal year from 2007 to 2011, increases in the numberof immigration-related litigation and adjudication personnel in the Department of Homeland Security(DHS), Department of Justice (DOJ), and the Administrative Office of the U.S. Courts to providethe personnel necessary to handle efficiently the increased caseload in administrative adjudicationand judicial review. Increases in personnel would be subject to the availability of appropriations. The legislation authorizes appropriations necessary to implement the personnel increases for fiscalyears 2007 to 2011 for the DHS and DOJ, but does not do so for the Administrative Office of theU.S. Courts, which would increase the number of attorneys in the Federal Defenders Program forcriminal immigration defendants in the federal courts.

There is no similar provision in H.R. 4437 or S.Amdt. 3192 . (15)

Board of Immigration Appeals Removal Order Authority

Current Law. "Order of removal" is not currentlydefined in the INA. "Order of deportation" is defined as the order of the special inquiry officer, orother such administrative officer to whom the Attorney General has delegated the responsibility fordetermining whether an alien is deportable, concluding that the alien is deportable or orderingdeportation. The order becomes final upon the earlier of a determination by the Board ofImmigration Appeals (BIA) affirming such order or the expiration of the deadline for appeals (INAÂ§ 101(a)(47)). The Illegal Immigration Reform and Immigrant Responsibility Act of 1996(IIRIRA) (16) substantially reformed enforcement adjudication procedures, replacing exclusion and deportationproceedings with removal proceedings. (17) The absence of a definition of "order of removal" appears tohave been a technical oversight.

As a separate procedural matter, the U.S. Court of Appeals for the Ninth Circuit held that theBIA must remand a case to the immigration judge for entry of an order of removal where it reversedthe immigration judge's decision to not order removal. (18) In 2005, most BIA appeals were filed in the Ninth Circuit (53percent). (19)

Proposed Changes. In response to the NinthCircuit case law, Â§ 503 of S. 2454 and Â§ 703 of the Chairman's mark would amend thedefinition of "order of deportation" and would add a similar definition of "order of removal" to theINA to clarify that the BIA may directly enter an order of removal upon reversal of an immigrationjudge's decision to the contrary. This section would include the BIA in the list of those designatedto enter removal/deportation orders, add the Secretary of Homeland Security as the delegatingauthority for removal orders, and expand the list of actions making the removal/deportation orderfinal to include entry by the BIA and other actions. Conforming amendments would be made.

H.R. 4437 contains a similar provision, Â§ 801. However, it would simplyreplace the definition of "order of deportation" with the new definition of "order of removal." Thisdefinition would apply to orders entered before, on, or after the date of enactment of the act. S.Amdt. 3192 and S. 2611 / S. 2612 do not contain such aprovision; this is one of the provisions dropped by Senator Specter, pending further study.

Judicial Review of Visa Revocation

Current Law. There is no judicial review(including review pursuant to 28 U.S.C. Â§ 2241, or any other habeas corpus provision, and 28 U.S.C.Â§Â§ 1361 and 1651) of a visa revocation, except in the context of a removal proceeding if suchrevocation provides the sole ground for removal (INA Â§ 221(i)).

Proposed Changes. Section 504 of S. 2454 and Â§ 704 of the Chairman's mark would amend the current statute concerningvisa revocation to clarify that, notwithstanding any other provision of law, no judicial review of suchrevocation is available in any context and that no court shall have jurisdiction to hear any claimarising from, or any challenge to, revocation, thereby facilitating efforts by the DHS to remove alienswhose incorrectly granted visas were revoked after they entered the United States.

H.R. 4437 contains a similar provision, Â§ 802; however, this amendment wouldapply to revocations effected before, on, or after the date of enactment of the act. (20) S.Amdt. 3192 and S. 2611 / S. 2612 do not contain such a provision; this is one of theprovisions dropped by Senator Specter, pending further study.

Reinstatement of Removal Orders

Current Law. If the Attorney General finds thatan alien has reentered the United States illegally after having been removed or having departedvoluntarily, under an order of removal, the prior order of removal is reinstated from its original dateand is not subject to being reopened or reviewed. Also, the alien is not eligible and may not applyfor any relief under the INA, and the alien shall be removed under the prior order at any time afterthe reentry (INA Â§ 241(a)(5)). Current law does not contain provisions specifically limiting judicialreview of reinstatement of orders of removal, deportation, or exclusion (INA Â§242).

The U.S. Court of Appeals for the Ninth Circuit held that reinstatement of a previous orderof removal against an alien who illegally reenters the United States necessitates a hearing before animmigration judge. (21)

Proposed Changes. In response to the case lawin the Ninth Circuit, Â§ 505 of S. 2454 and Â§ 705 of the Chairman's mark would amendthe current statute to clarify that, if the Secretary of Homeland Security finds that an alien hasillegally reentered the United States after a prior removal or voluntary departure, then the order ofremoval, deportation, or exclusion may be reinstated without a hearing before an immigration judge. There would be no judicial review of the original removal order, but there could be limited reviewof certain factual determinations (that an alien had illegally reentered after prior removal) inindividual reinstatement cases. These amendments would take effect as if enacted on April 1, 1997(effective date of IIRIRA changes to the removal statute), and would apply to all orders reinstatedon or after that date regardless of the date of the original order.

H.R. 4437 contains a similar provision, Â§ 803; however, it would further providefor very limited judicial review under INA Â§ 242 of the constitutionality and statutory consistencyof the reinstatement statute. (22) S.Amdt. 3192 and S. 2611 / S. 2612 do not contain such a provision; this is one of the provisions dropped bySenator Specter, pending further study.

Withholding of Removal

Current Law. The INA restricts the removal ofan alien to a country where the alien's life or freedom would be threatened and provides that the trierof fact shall determine whether the alien has sustained the alien's burden of proof, and shall makecredibility determinations, in the manner described in INA Â§ 208(b)(1)(B)(ii & iii) (INA Â§241(b)(3)).

Proposed Changes. Section 506 of S. 2454 and Â§ 706 of the Chairman's mark would amend the current statute to clarifythat certain amendments made by the REAL ID Act with respect to evidentiary standards for asylumwould also apply to determinations of withholding of removal, in addition to the ones alreadyreferenced. The burden of proof would be on the alien to establish that the alien's life or freedomwould be threatened in the country for removal, and that race, religion, nationality, membership ina particular social group, or political opinion would be at least one central reason for such threat. The clarifying amendment would take effect as if enacted on May 11, 2005 (the effective date of theREAL ID Act amendments for withholding of removal).

H.R. 4437 contains a similar provision, Â§ 804. S.Amdt. 3192 and S. 2611 / S. 2612 do not contain such a provision; this is one of theprovisions dropped by Senator Specter, pending further study.

Certificate of Reviewability

Current Law. No pre-screening process existsin the current provision governing judicial review of removal orders (INA Â§ 242).

Proposed Changes. Section 507 of S. 2454 and Â§ 707 of the Chairman's mark would amend the current statute to providefor a screening process under which an alien would submit a brief concerning a petition for judicialreview within 40 days after the date on which the administrative record is available or face dismissalof the appeal; after the alien's brief is filed, the appeal would be assigned to one judge on the U.S.Court of Appeals for the Federal Circuit, who would review a case within 60 days of assignment;and a petition for review would be denied absent the issuance of a certificate of reviewability by thefederal appellate judge or circuit justice. The certificate would only be granted if the petitionerestablishes a prima facie case that a petition should be granted; the denial of a certificate would notbe subject to further review.

H.R. 4437 contains a similar provision, Â§ 805, but the standard for issuance ofa certificate would be that the petitioner must make a substantial showing that the petition for reviewis likely to be granted. S.Amdt. 3192 and S. 2611 / S. 2612 donot contain such a provision; this is one of the provisions dropped by Senator Specter, pendingfurther study.

Discretionary Decisions on Motions to Reopen or Reconsider

Current Law. No similar provision is in thecurrent statute except for one reference to the discretion of the Attorney General to waive thedeadline for filing a motion to reopen (INA Â§240(c)).

Proposed Changes. Section 508 of S. 2454 and Â§ 708 of the Chairman's mark would amend current law to clarify thatmotions to reopen or reconsider are discretionary decisions of the Attorney General and wouldestablish a special rule for motions to reopen to provide safeguards from the removal of an alien toan alternate country not previously considered in removal proceedings. These amendments wouldapply to motions to reopen and reconsider that are filed on or after the date of enactment of this actin removal, deportation, or exclusion proceedings, regardless of whether a final administrative orderis entered before, on, or after such date.

H.R. 4437 contains a similar provision, Â§ 212. S.Amdt. 3192 and S. 2611 / S. 2612 do not contain such a provision; this is one of theprovisions dropped by Senator Specter, pending further study.

Fee/Costs Awards Bar for Judicial Review of Removal Orders

Current Law. Except as otherwise provided bystatute, a judgment for costs not including the fees and expenses of attorneys, may be awarded to theprevailing party in any action brought by or against the United States. Unless expressly prohibitedby statute, a court may award reasonable fees and expenses of attorneys to the prevailing party in anycivil action brought by or against the United States (28 U.S.C. Â§2412).

Proposed Changes. Section 509 of S. 2454 and Â§ 709 of the Chairman's mark would add a new subsection to current lawto provide that, notwithstanding any other provision of law, a court may not award fees and expensesto an alien based on the alien's status as the prevailing party in proceedings related to a removal orderunless the court of appeals finds that the determination of the Attorney General or Secretary ofHomeland Security that the alien was removable was not substantially justified. This amendmentwould apply to proceedings related to a removal order issued on or after the date of enactment of thisact, regardless of the date that such fees or expenses were incurred.

H.R. 4437 contains a similar provision, Â§ 808, but it would only refer todeterminations of the Attorney General, not the Secretary of Homeland Security, and would applyto fees or other expenses awarded on or after the date of enactment of this act. S.Amdt. 3192 and S. 2611 / S. 2612 do not contain such a provision; this is one ofthe provisions dropped by Senator Specter, pending further study.

Waiver of Review in Nonimmigrant Visa Issuance

Current Law. There is no such provision incurrent law. Visa waiver program admittees only need waive this as a condition of admission to theUnited States without a visa pursuant to the program under INA Â§ 217.

Proposed Changes. Section 806 of H.R. 4437 would make issuance of a nonimmigrant visa subject to a waiver by the alienof any right to review of an inadmissibility determination at a port of entry or to contest removalexcept for asylum claims. S. 2454 , S.Amdt. 3192 , and S. 2611 / S. 2612 do not contain similar provisions.

Review of Discretionary Relief Denials

Current Law. Current law at INA Â§ 242(a)(2)(B)currently restricts judicial review for denials of discretionary relief "regardless of whether thejudgement, decision, or action is made in removal proceedings" and defining decision or action asbeing those taken by the Attorney General or Secretary of Homeland Security under authorityspecified under certain provisions of the INA. INA Â§ 242(a)(2)(C) bars judicial review of removalorders against a alien removable on certain criminal grounds.

Proposed Changes. Section 807 of H.R. 4437 would clarify that bars on judicial review for individual determinations ofdenials of discretionary relief apply regardless of whether such determinations were made in removalproceedings and were guided by standards. It would further clarify that limits on judicial review ofremoval orders for criminal aliens would apply regardless of whether relief or protection fromremoval had been denied specifically on the basis of the alien's commission of a crime.

Executive Office of Immigration Review (EOIR)

Current Law. Procedural guidelines for EOIR,including guidelines for the Board of Immigration Appeals (BIA) and the immigration courts, arecurrently not expressly set out in the INA; they are set out in the regulations at 8 C.F.R. part 1003,subparts A to C, and Â§ 1103.3 (1-1-06 Edition). In 2002, then-Attorney General Ashcroftimplemented new BIA procedural reforms intended to eliminate the existing BIA backlog of casesand to provide for current efficient disposition of cases. (23) These included reducing the size of BIA, expandingsingle-member review of certain cases, and time limits for certain actions.

Proposed Changes. Section 510 of S. 2454 , Â§ 702 of S. 2611 / S. 2612 and Â§ 712 of the Chairman'smark contain similar provisions that would establish in statute the jurisdiction, procedures, andstandards for the BIA. They would require that cases be heard by a 3-member panel, with certainexceptions permitting a single-member hearing, including summary dismissals of appeals in certaincircumstances, the grant of an unopposed motion, and adjudications of certain motions to remand. Consideration or reconsideration of a case by the full BIA sitting en banc is authorized by a majorityvote. The BIA may affirm cases without an opinion only in certain circumstances. Regulations shallbe promulgated by the Attorney General within 180 days after the date of enactment of the act (Â§ 706of S. 2611/S. 2612 and Â§ 716 of the Chairman's mark provide that regulationsshall be promulgated for the subtitle regarding administrative appeals). S. 2611/S.2612 and the Chairman's mark each contain a subtitle that undertakes a morecomprehensive statutory establishment and structuring of the Executive Office of ImmigrationReview (EOIR) than the provisions of S. 2454. This includes establishment of thecomposition, qualifications, appointment procedures and duties of the BIA members and Chair.

Section 703 of S. 2611 / S. 2612 and Â§ 713 of the Chairman's markcontain similar provisions concerning the qualifications, appointment procedures, and duties ofimmigration judges; S. 2611 contains simpler appointment guidelines. Section 704 of S.2611/S. 2612 would provide that no immigration judge or BIA member may beremoved or otherwise subject to disciplinary or adverse action for their exercise of independentjudgment and discretion. Section 714 of the Chairman's mark would further provide that removalcould only be for good cause by the Director of EOIR in consultation with the Chair of the BIA orthe Chief Immigration Judge for the removal of a BIA member or immigration judge respectively.

Section 705 of S. 2611 / S. 2612 and Â§ 715 of the Chairman's markwould provide for the continuation of a legal orientation program for detainees and the expansionof the program to disseminate information regarding immigration court procedures nationwide.

Section 702 H.R. 1502 (Berman) includes a similar statutory establishment andstructuring of EOIR, which it would rename the Immigration Review Commission. FormerRepresentative Bill McCollum introduced similar legislation in several Congresses since the 97thCongress, most recently H.R. 185 , the United States Immigration Court Act of 1999,in the 106th Congress. Various immigration authorities have advocated different proposals forrestructuring the immigration courts over the years.

H.R. 4437 and S.Amdt. 3192 do not contain provisions regardingthe statutory establishment of the EOIR.

Immigration Injunction Reform

Current Law. There are no provisions restrictingjudicially ordered injunctive relief regarding immigration actions.

Proposed Changes. The Fairness in ImmigrationLitigation Act of 2006, comprising Â§Â§ 421 to 423 of S. 2611 / S. 2612 and S.Amdt. 3192 , would establish conditions limiting the granting of injunctive reliefagainst the Federal Government in any civil action pertaining to the administration or enforcementof immigration laws.