American Civil Liberties Union
Testimony at an Oversight Hearing on Operations
of the Executive Office for Immigration Review (EOIR)
Before the Subcommittee on Immigration and Claims
of the House Judiciary Committee Submitted by Timothy H. Edgar, Legislative Counsel February 5, 2002
Mr. Chairman, Representative Jackson-Lee and members of the Subcommittee:
On behalf of the American Civil Liberties Union (ACLU), a non-partisan, non-profit organization with approximately 300,000 members dedicated to preserving our freedoms as set forth in the Constitution and the Bill of Rights, we welcome this important oversight hearing. Since the organization’s founding in 1920, the ACLU has been steadfast in defending the rights of everyone in America, both citizens and immigrants.
We are deeply alarmed at a number of actions taken by the Attorney General in recent months. These actions share a common theme of undermining the independence and authority of the Executive Office of Immigration Review (EOIR), the independent agency within the Department of Justice which handles immigration adjudications, including detention, removal and asylum cases. Reportedly, the Attorney General’s “top aides have privately told the immigration review office that he wants the judges ‘on the same page’ as the rest of the Justice Department.” This attitude is precisely the opposite of what should be expected of a fair review process, whether administrative or judicial.
Proposed changes to the Board of Immigration Appeals (BIA), the highest administrative appeals body for immigrants facing detention and removal, represents the latest assault on due process. We believe these changes will not resolve backlog problems while undermining due process. Congress should urge the Attorney General to abandon this ill-advised BIA scheme, and instead work with interested groups to ensure that any restructuring plan for the Immigration and Naturalization Service (INS), whether legislative or administrative, enhances, rather than diminishes, the independence, authority and impartiality of the EOIR.
The EOIR is the frontline agency within the Department of Justice with responsibility for ensuring respect for the due process rights of immigrants facing detention and removal by the INS. EOIR’s professional corps of over 200 Immigration Judges conduct hearings that involve critically important issues and may represent life or death decisions for the individual.
The EOIR’s Board of Immigration Appeals (BIA) ensures a sober second look at Immigration Judge decisions, establishes precedents for the Department, and provides guidance for the federal courts on the proper interpretation of complex immigration laws and regulations. Since Congress restricted judicial review of many immigration decisions in 1996, in many instances, the BIA is the “court” of last resort and remains the only meaningful check on arbitrary or unlawful action by the INS.
Attorney General Ashcroft’s proposed changes to the BIA to “streamline” the administrative appeals process will not solve backlog problems, will diminish due process, and will result, in many instances, in an outright denial of review. Together with a number of other organizations, we have urged the Attorney General not to go forward with the regulation and instead meet with affected groups to explore ways to improve the administrative process without diminishing due process. At the very least, we urge the Attorney General to subject the proposed regulation to the customary 60-day public comment period.
At bottom, the proposal represents another step in a fundamental assault on the basic checks and balance that are critical to ensuring respect for the rule of law. Article III of the Constitution ultimately entrusts the federal courts with final authority to interpret the Constitution and laws of the United States. Nevertheless, the modern administrative state relies on a host of regulatory agencies and administrative review procedures to do the day-to-day work of administering the laws of our complex society. Among these agencies is the EOIR.
Of course, the EOIR is an agency within the Executive Branch, under the authority of the Attorney General. It cannot hear constitutional claims and cannot be a substitute for the Article III federal courts. Nevertheless, the EOIR does provide an administrative check on INS actions. It functions independently of the INS and its adjudicators strive to administer impartial justice in immigration matters. Although its decisions can be reversed by the Attorney General, his review authority is exercised only rarely.
Respect for the EOIR’s role is essential to ensuring that the Due Process Clause’s promise of fairness for immigrants is fulfilled. As the Supreme Court affirmed again last year, “the Due Process Clause applies to all ‘persons’ within the United States, including aliens, whether their presence here is lawful, unlawful, temporary, or permanent.” Especially in a time of crisis, an effective and impartial EOIR is essential to assuring public confidence in the fairness of the immigration detention and removal system.
Moreover, a robust, independent administrative review body is essential to the smooth functioning of the immigration system. When the INS overreaches in its administration of the immigration laws, independent review by the EOIR is vital to provide guidance to the agency. Such guidance can minimize litigation and avoid the disruption that may occur if the federal courts eventually rule against the INS position on a disputed issue of law. Indeed, an overly aggressive interpretation of the 1996 laws, which was rejected last summer by the Supreme Court, is responsible for a significant portion of the current backlog, which is discusssed below.
Rather than accede to administration proposals that will undermine the authority and independence of the BIA, without providing greater efficiency and even diminishing the resources needed to clear the backlog, Congress should urge the Attorney General to shelve this misguided proposal. Instead, Congress should work with the administration and affected constituencies to make sure that restructuring of the INS enhances, rather than diminishes, the independence and authority of the EOIR while providing sufficient resources to ensure timely and fair adjudications.
BIA “Streamling” Proposal: An Assault on Checks and Balances
The ACLU is deeply concerned that Attorney General Ashcroft’s proposal to further “streamline” the administrative appeals process represents an assault on the basic checks and balances that keep government actions within the boundaries of the law and the Constitution. Major changes include the following:
Taken together, the effect of proposed changes to the BIA will be to seriously diminish its independence and erode its review authority.
The proposal to dramatically expand the number and types of cases that can be decided by a single member of the BIA under a “streamlining” process will inevitably result in pressure to rubber-stamp erroneous decisions. Decisions affirmed without critical debate will not only result in injustice in that particular case but will also frustrate the goal of more timely adjudication. Federal courts are far more likely to overturn decisions that have not been subject to more than cursory review. Likewise, the proposal to greatly narrow the BIA’s scope of review will likely result in less efficient, not more efficient adjudication. The proposal ignores the important difference between formal court proceedings and immigration hearings. Immigration hearings are conducted in accordance with more informal procedures and often involve unrepresented parties. Typically, such hearings result in an oral decision by an Immigration Judge. Occasionally, the Immigration Judge will get the facts wrong. In addition, asylum claims and some other forms of relief from removal may turn on country conditions, which can change rapidly and unpredictably. Without the ability to conduct de novo review of factual issues and to take additional evidence, the BIA will have to remand such cases to an immigration judge, resulting in additional, unnecessary proceedings — and further delays.
Mechanical time limits for decisions by the BIA will result in arbitrarily dismissing appeals. Of course, there is no doubt that backlogs remain a serious problem at the BIA, and delays are common. It is said that justice delayed is justice denied. The proposed changes “solve” this problem by providing that justice delayed automatically becomes justice denied. Automatic time limits for decisions by the BIA will have the perverse effect of punishing the appellant for the inaction of the BIA, while rewarding dilatory BIA members with a reduced workload. Reducing the BIA backlog requires additional resources, not summary and mechanical dismissal of the appeals of those who have waited the longest to receive a decision on their appeals. While arbitrarily dismissing appeals will, by definition, result in fewer cases pending before the BIA, it will also likely result in a rise in federal court filings and remands to the BIA if courts decide the agency did not adequately consider the issues in the case.
Perhaps most troubling, the Attorney General’s proposal effectively to eliminate almost half the BIA, with no stated objective criteria for determining who is to be eliminated, raises the specter of politically and ideologically-minded dismissals that will quell independent and thoughtful legal analysis. This proposal is reminiscent of President Roosevelt’s disastrous attempt to obtain legislation to increase the number of Supreme Court justices and then add new appointees who would be more friendly to his New Deal policies. Roosevelt’s court packing scheme, while unquestionably within his authority, was rightly seen as an assault on judicial independence. Ashcroft’s BIA proposal, which could be dubbed a court unpacking scheme, suffers similar flaws.
EOIR’s Role in Protecting Due Process: Towards Greater Independence
The Supreme Court has squarely held that decisions about detention and removal of immigrants implicate fundamental liberty interests protected by the Constitution. The Court has also held, time and time again, that fair hearings before an impartial adjudicator are an essential component of due process in detention and removal cases. The history of immigration adjudication is a history of ever-increasing independence, and, as a result, ever-increasing respect for the decisions of the adjudicators. The Attorney General’s proposal would be a step back.
Prior to 1940, the immigration service was located within the Department of Labor. At that time, the decisions of what was then called the Board of Review were merely recommendations to the Secretary of Labor, who made the ultimate decisions. After the immigration service was relocated to the Department of Justice, a Board of Immigration Appeals was established with the authority to make final decisions, although these decisions were and are subject to potential review by the Attorney General. Finally, in 1983, the entire corps of Immigration Judges was moved out of the INS into a separate, independent agency which, together with the Board of Immigration Appeals, comprises today’s EOIR.
Questions have been raised concerning the impartiality and independence of EOIR. It remains an agency within the Department of Justice. Its decisions are ultimately subject to review by the Attorney General. Nevertheless, the trend has been towards greater independence. The proposed changes to the BIA would reverse that trend, just at the moment when the due process rights of immigrants in detention and removal cases are most at risk.
The Government’s Detention Campaign: A Major Challenge for Due Process
Following the terrorist attacks of September 11, 2001, the Department of Justice has undertaken a massive, secretive effort to arrest and detain non-citizens in the United States, mostly of Arab or Muslim background. The number of arrests quickly grew to over 1,200, with hundreds still in detention. Serious questions have been raised about whether the rights of those who have been detained in this effort have been and are being respected. A number of organizations, including the ACLU, have filed a civil action under the Freedom of Information Act (FOIA), requesting basic information about the Department’s detention campaign.
Information obtained as a result of that lawsuit shows that, despite the government’s assurances to the contrary, detainees’ rights have not been respected. Rather, hundreds languished in jail for weeks, and even months, without being formally charged and without adequate access to counsel or family members. Documents obtained in the lawsuit suggest that hundreds of individuals may have already been determined by the Justice Department not to have any connection with terrorism or any information of interest to anti-terrorism investigators, and yet remain in detention.
Whatever one’s view of the wisdom or constitutionality of these actions, there is no doubt that the Justice Department’s aggressive detention campaign has raised serious and legitimate public concerns, particularly in the Arab and Muslim community, and has provoked anxiety among many immigrants concerning what may happen to them. The knowledge that a fair and impartial adjudicator will hear cases concerning custody, bond, and deportation, and that those decisions will be a meaningful check on the INS, is critical to allaying such fears.
Sidelining Immigration Judges and the BIA
Unfortunately, also in recent months, the Department of Justice has implemented a number of directives, policy changes, and new regulations that have eroded due process. A number of these policy changes have the effect of sidelining immigration judges just as their role has become more important than ever. These actions include:
The new regulations, policy directives, and other actions fit a disturbing pattern, viewing judges as obstacles, not partners, in the nation’s struggle against terrorism.
A Strong and Independent EOIR: Now More than Ever
Instead of sidelining the immigration judges and the BIA within the EOIR, Congress should examine ways to strengthen the independence of the EOIR. A strong and independent EOIR is needed to correct abuses, hold the government to its promises of respecting detainees’ rights, carefully and independently examine any new legal issues that arise in this time of crisis, and ensure public confidence that the Department’s actions are within its authority.
Indeed, the EOIR has already played a crucial role in protecting the rights of innocent persons who were mistakenly detained in the wake of September 11. One such person, Ali Al-Maqtari, was arrested shortly after September 11 as he drove his wife, an American citizen and a member of the Armed Forces, to a military base in Fort Campbell, Kentucky. Mr. Al-Maqtari was held for almost eight weeks, even though he had applied for adjustment of status because of his marriage and there was no evidence he had any connection to terrorism. As in the cases of hundreds of other detainees, the INS opposed Mr. Al-Maqtari’s release on bond by relying on generalized assertions that he may have information relevant to the investigation. The INS advanced a novel theory that would permit continued detention for intelligence-gathering reasons even of wholly innocent persons who pose no risk of flight and no danger to the community. That theory was rejected by an Immigration Judge and by the Board of Immigration Appeals, and Mr. Al-Maqtari was released.
The EOIR’s independence allowed it to calmly and thoughtfully address the government’s novel claim of authority to detain wholly innocent persons. Ultimately, the EOIR determined that such a power was not consistent with the immigration laws and with our American traditions. As Mr. Al-Maqtari later said, in testimony before the Senate Judiciary Committee, “Thanks to the fairness of your immigration courts and appeal system . . . my story has a good ending.”
Yet without that sober second look, Mr. Al-Maqtari and many more innocent persons could face imprisonment without any effective recourse. We must remember that such vague fears, not linked to any specific evidence of wrongdoing, were largely responsible for the shameful decision of the United States government to intern hundreds of thousands of Japanese-Americans, German-Americans and others, both citizens and immigrants, solely on the basis of their race or nationality. Independent review of detention decisions is essential to preventing similar abuses from ever recurring.
Failing to Learn the Lessons of the Past: INS v. St. Cyr
Finally, the Attorney General’s proposal ignores an important lesson of the past six years. A substantial portion of the current backlog at the EOIR is the result of an overly aggressive, unnecessarily retroactive interpretation of the 1996 immigration laws, which restricted discretionary relief for immigrants convicted of sometimes relatively minor crimes. The BIA held that Congress had not intended to apply these changes retroactively to persons with applications pending before the EOIR. The BIA relied on a number of longstanding rules concerning the interpretation of statutes, including a basic rule that interpretations that result in retroactive impact are disfavored.
Instead of accepting the BIA’s well-reasoned decision, then-Attorney General Reno acceded to INS demands to adopt the harshest possible interpretation of the 1996 laws. The Attorney General’s decision disrupted pending and even approved applications for discretionary relief, resulted in years of court challenges and left thousands of long-term lawful permanent residents in legal limbo.
Last June, the Supreme Court roundly rejected such retroactive application of the 1996 laws, saying Congress had never intended such an unfair result. According to former Board of Immigration Appeals member Lauren Mathon, the end result has been “hundreds, if not thousands, of remands to the Board and to Immigration Judges.” At least some of these proceedings would have been avoided if the INS had not overreached in its earlier interpretation.
Putting greater pressure on the BIA to accede to the INS’s sometimes erroneous view of the immigration laws will simply lead to more disruption when the federal courts intervene to correct those errors. Instead, the BIA’s decisions should be further shielded from undue pressure from the prosecutorial arm of the immigration system. Such enhanced independence will help minimize such errors and the resulting disruption.
Conclusion
No one questions the need for reform. Backlogs remain a substantial problem in immigration decisions generally, and in immigration adjudications at the EOIR in particular.
Yet the proposed changes to the EOIR appear do not appear likely to result in greater efficiency. Instead, they will deprive the BIA of needed resources and lead to a crushing workload that will result in hasty decisions – or no decision at all. Such a process is far more likely to lead to decisions overturned in federal court and will provoke many more remands, further burdening the EOIR.
More troubling, the proposed changes will erode the authority and independence of the BIA. They represent the latest in a troubling series of actions on the part of a Justice Department that seems to see the EOIR – and judges in general – as an obstacle, not a partner, in our nation’s law enforcement efforts. The proposal to eliminate almost half the BIA, which simply makes no sense as a backlog-clearing measure, raises the specter of politically and ideologically motivated dismissals – a modern-day court unpacking scheme.
Our nation’s immigration judges need more, not less, independence, and they need it now more than ever. In a recent report, the National Association of Immigration Judges (NAIJ) called for complete independence from the Department of Justice through creation of a separate agency or Article I court, like the United States Court of Federal Claims or the Tax Court. In that paper, the NAIJ complained of the public perception, which is based at least in part on reality, that decisions by its members are not independent or impartial, and noted that this undermined public confidence in their ability to fairly judge cases — especially in times of crisis. The paper specifically noted the mandate to close all immigration cases to public scrutiny when directed by the INS. While any specific proposal will require further examination, Congress and the Administration should carefully consider a variety of proposals to enhance independence as one means of assuring public confidence.
In conclusion, we commend the Subcommittee for holding this important oversight hearing. We ask you to urge the Attorney General to reverse course on this ill-advised BIA scheme. Unfortunately, the current proposal is likely to make backlog problems worse, not better, while diminishing the independence and authority of EOIR. Instead, we urge Congress to work with the Administration and affected constituencies to ensure that INS restructuring empowers immigration judges and the BIA to dispense justice, fairly, impartially, and independently, under our immigration laws.
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