U.S. Attorney General Weighs In On The Conduct of Immigration Judges and the Appeals System
January 16, 2006

In recent days, U.S. Attorney General Alberto J. Gonzales, the highest ranking official in the U.S. Department of Justice, issued a memorandum to U.S. Immigration Judges (also part of the Department of Justice) expressing “concern” about the way immigrants are being treated in courtrooms where removal (formerly, deportation) proceedings are being conducted.

Gonzales’ memorandum was likely prompted by the steady stream of criticism coming from U.S. Circuit Courts of Appeals regarding the volume of immigration cases they are handling, and what they see as miscarriage of justice on the part of Immigration Judges and also the Board of Immigration Appeals (BIA.)

When a case comes before an Immigration Judge and is denied, an appeal can be taken to the BIA. If the BIA affirms the decision of the Immigration Judge, the next option for appeal is generally to the federal Circuit Court of Appeals. In 2001, then Attorney General John Ashcroft instituted a controversial new regulation which allows one member of the BIA to “summarily affirm without opinion” the decisions of Immigration Judges. This means that the BIA, without any explanation, can uphold an Immigration Judge’s decision. Not surprisingly, this has caused the Circuit Court of Appeals to be flooded with immigration appeals, particularly asylum cases. With the middleman (the BIA) less involved, the Circuit Courts have taken an active role in reviewing what is taking place in Immigration Courts. And they do not like what they’ve seen.

The 7th Circuit Court of Appeals, which serves Illinois, Indiana, and Wisconsin, reversed 40% of the BIA decisions that came before them between January and September, 2005-a significant disapproval rating.

What specific types of behavior or procedure are being criticized? Some Immigration Judges have been accused of acting like prosecutors instead of unbiased decisionmakers. They have been accused of making judgments based on inconclusive or incomplete evidence. They have been accused of cutting off testimony, interrupting testimony, or flat out barring relevant witness testimony. Also, in various recent decisions, the 7th Circuit Court of Appeals have found that Immigration Judges had violated the immigrant’s due process rights and/or had treated the immigrant with “hostility,” “impatience” and/or “sarcasm.”

There has also been a tendency on the part of some Immigration Judges or the BIA to deny a case due to small, inconsequential mistake on the part of the immigrant. In one example a petition was denied because the petitioner failed to present a copy of a document he had previously submitted. In another instance a petition was denied because the immigrant’s attorney did not submit the appropriate certificate to show that their appeal brief was delivered to the government attorney.

By frequently criticizing the Immigration Judges and the BIA in their decisions, the Circuit Court of Appeals is sending a not so subtle message to the U.S. Department of Justice and urging the agency to address the issues. Are the negative behaviors of some Immigration Judges occurring because they are overworked? Is the BIA lacking resources? The Circuit Courts of Appeals want these questions to be asked. And according to Attorney General Gonzales’ memorandum, they will be. He has requested a review of the “quality of work” of the Immigration Court and the BIA.

Such a step by a U.S. Attorney General within the context of immigration proceedings is unprecedented – at least in recent decades. What impact such an initiative will have on the system remains to be seen.