Posner Slams the BIA:
Check out this remarkable opinion by Judge Posner yesterday harshly criticizing the Board of Immigration Appeals for its poor quality work. Noting the high reversal rates of the BIA in the Courts of Appeals, Posner writes:
  This tension between judicial and administrative adjudicators is not due to judicial hostility to the nation's immigration policies or to a misconception of the proper standard of judicial review of administrative decisions. It is due to the fact that the adjudication of these cases at the administrative level has fallen below the minimum standards of legal justice. Whether this is due to resource constraints or to other circumstances beyond the Board's and the Immigration Court's control, we do not know, though we note that the problem is not of recent origin. All that is clear is that it cannot be in the interest of the immigration authorities, the taxpayer, the federal judiciary, or citizens concerned with the effective enforcement of the nation's immigration laws for removal orders to be routinely nullified by the courts, and that the power of correction lies in the Department of Homeland Security, which prosecutes removal cases, and the Department of Justice, which adjudicates them in its Immigration Court and Board of Immigration Appeals.
  (I have omitted citations, because, well, this is a Posner opinion.) And here is the conclusion:
  The Board's action is intelligible, but not justifiable, only as punishment for a lawyer's mistaken belief that the filing of the I-485 form (which had already been filed!) would be premature. We are not required to permit Benslimane to be ground to bits in the bureaucratic mill against the will of Congress. And anyway punishment was not the rationale of the Board's action, which appears to have been completely arbitrary.
  The order of removal is vacated . . .
  Ouch. Thanks to Quaker and Steve Vladeck for the link.

  UPDATE: Oh, and don't miss the audio of the oral argument, available here, especially starting around the 15 minute mark.
MikeC&F (mail) (www):
Per Vladeck comes the link to the oral argument. Go about 11 minutes in. Double ouch!
12.1.2005 7:39pm
Cornellian (mail):
It's often a lot of fun to listen to these oral arguments (at least if you're a law geek). Is there some easy way to access MP3's of SCOTUS and Circuit court cases so I can download them to my iPod and listen to them while on the bus, waiting in airports etc.?
12.1.2005 8:45pm
M (mail):
Decisions by the BIA and Immigration judges are often shockingly bad. (I've several dozen, at least, so know.) These days, though, the BIA hardly issues opinions at all, but gives 1 or 2 lines affirmances. Why? There was a huge back-log at the time that Bush took over. To "solve" this problem Ashcroft fired and/or demoted the supposed "liberal" members of the BIA and put in place a policy of one-member review and one-line affirmances. The already poor work, unsurprisingly, got even worse. Additionally this has shifted the appeals process from the BIA to the circuit courts, which then have to review the IJ decisions since the BIA now usually says things like "we adopt the decision of the IJ." (Not too easy to review a decision like that, I guess.) Posner's opinion here is nice, but it's not remarkable in it's criticism. If you read many immigration cases you'll find similar opinions with a fair amount of regularity. Unfortunately there are many cases where such criticism is fully warrented.
12.1.2005 8:51pm
I recall a Kozinski dissent from a denial of rehearing a few years ago on a BIA case. He cited the high reversal rate as evidence that the Ninth Circuit was insufficiently deferential to the BIA.

Funny how Posner looks at the same stats and interprets them as demonstrating the BIA's incompetence.
12.1.2005 8:53pm
carpundit (www):
That poor DOJ lawyer was on the business end of whack-a-mole for about five minutes. Thanks for the link; it was fascinating.

Of course, because I'm a government lawyer, my wife thinks I'm nuts: "Don't you get enough of that stuff at work?"

I guess not.
12.1.2005 9:04pm
M (mail):
Then again, Kozinski has serious doubts, it seems, that the forcible removal of female genitalia against a girl's will is persecution, and seems willing to push this despite a clear ruling by the BIA (thereby going against Chevron) that this is persecution, so I don't think he should be held up as much of a paragon here.

Additionally, as noted above, there are now very often (maybe usually) no BIA "decisions" that can be defed to.
12.1.2005 9:10pm
Whether this is a cause or consequence of the high reversal rate (or totally unrelated), I don't know, but I wanted to point out that the DOJ's Office of Immigration Litigation has been so swamped by its appellate responsibilities that it's been vacuuming up attorneys on "detail" from other offices in tremendous numbers. I've been told that last year, almost every new hire from law schools through the DOJ's Honors program, at least in the Civil Division, was required to go over to OIL to brief and argue several appeals. It probably doesn't help the government's success rate in these appeals to have brand-new, inexperienced attorneys with little or no interest in immigration law handling them.
12.1.2005 10:24pm
Is there some easy way to access MP3's of SCOTUS and Circuit court cases so I can download them to my iPod and listen to them while on the bus, waiting in airports etc.?


You can download--some--SCOTUS arguments at OYEZ in the Hear Ye, Hear Ye section.
12.1.2005 10:40pm
Anonymous Jim (mail):
I know why you deleted Posner's citations but even they are harsh of the BIA.
12.2.2005 7:48am
This isn't new. The case loads of the immigration courts are insane. Insane. It leads both to inadequacy of the sort Posner describes, and to things like the "catch and release" policy. It's remarkable the extent to which the system DEPENDS on aliens absconding and not showing up--otherwise the case load would become simply impossible. Suggesting that we deal with our immigration problems in part by hiring enough judges (right now there are slightly over 200) and clerks (right now there are 30ish) is not popular though. Hiring border patrol agents and building jails is much more popular. Even though I do not think it's much f*cking good hiring a border patrol agent if they have to release the people they catch, and it's probably cheaper and certainly more humane to hire more law clerks instead of building more jails.

Several circuits &the BIA are at each other's throats right now about this stuff. The case load is becoming unmanageable at the Circuit level too, especially the Second and the Ninth. It's over 40% of the Ninth Circuit's case load I believe.

I think the administration is going to deal with this by some attempt to strip jurisdiction from the Circuits, or vest it solely in the conservative D.C. Circuit, or some variation on that.
12.2.2005 7:54am
Cold Warrior:
Sorry, folks, but here it is Posner -- and not the BIA -- who is out of line.

Posner bombards us with prior BIA decisions that may, indeed, be unsupportable. But let's stick to the facts of this case:

-- Benslimane was admitted as a visitor (the opinion doesn't say what type, but typically this would be on a tourist "B-2" visa for a period not to exceed six months) in 1998. See opinion at 3. It is safe to assume that he was in illegal status beginning in early-mid 1999.

-- he "appeared before an Immigration Judge" in February 2003. Op. 3. Why was he before an Immigration Judge? He had come to the attention of the (then) INS. Typically this happens when an alien is arrested for ordinary offenses (everything from traffic to domestic violence to gang crimes), or when the alien presents himself to INS with some kind of request (often an affirmative asylum application). Occasionally aliens are encountered in other immigration enforcement operations such as employer surveys. Note that an important fact -- one that, by definition, must have been in the record of proceeding -- is omitted from Posner's opinion: when was Benslimane served with a Notice to Appear before an Immigration Judge? This is a critical inquiry; see below.

-- He admitted to the Immigration Judge that he was deportable, but asked that the proceeding be put on hold because he had married a U.S. citizen "two months earlier" and she had filed a Petition for Alien Relative on his behalf. In other words, after overstaying his visa by approximately four years, he asked the U.S. Government to delay indefinitely his deportation because he had, two months prior, apparently found love. Did he find love before or after he was caught by immigration authorities? If after (a reasonable assumption, since the delay between an alien being served with a Notice to Appear and his initial appearance in Immigration Court will typically be more than 2 months), then Benslimane was subject to a rather important rule encacted to further Congressional will, as expressed in the Immigration Fraud Amendements to the Immigration and Nationality Act. See 8 C.F.R. 204.2(a)(6)(C)(iii) ("A visa petition filed on behalf of an alien by a United States citizen ... spouse shall not be approved if the marriage creating the relationship occurred on or after November 10, 1986, and while the alien was in exclusion, deportation, or removal proceedings ... ." There is a special procedure for requesting an exemption from the prohibition in the following paragraphs. Posner's opinion is silent with respect to whether such an exemption was ever requested or needed. At any rate, it is ridiculous to accuse the BIA of deliberately frustrating Congressional intent (see Op. at 9: "We are not required to permit Benslimane to be ground to bits in the bureaucratic mill against the will of Congress."). The legislative history is replete with Congressional findings regarding abuses of the immigration system through fraudulent marriages entered into to forestall deportation. After all, there was a reason for the 1986 amendments. Posner simply ignores this, and assumes that Benslimane's marriage is legitimate (although INS and its benefits-granting successor, US Citizenship and Immigration Services, has never to date found this to be the case). Remember, the burden is on Benslimane to show that he is eligible for relief. Here, he got married after (or at best, just before) he was placed in removal proceedings. We mustn't forget that he's asking for a rather extraordinary favor: that the removal proceeding grind to a halt while his new wife's petition is considered and investigated. Should it take CIS two years to do so? In an ideal world, no. But why should Benslimane move to the front of the adjudication line -- ahead of aliens who are the beneficiaries of similar petitions filed while they remain in valid, legal status -- simply because he had the nerve to let his 6-month vacation turn into a 5-year (now 7-year) residency?

-- Posner cites old BIA case law in support of his position. The new BIA law is expressed in Matter of Velarde (2003) (the BIA will remand a case back to the Immigration Court for consideration of an adjustment of status application if the prosecuting agency, Immigration and Customs Enforcement, does not oppose remand; here, appearently, ICE did oppose; this is an act of prosecutorial discretion). Posner also relies on a rather one-dimensional view of the purpose of "adjustment of status." The normal way for an immediate relative of a US citizen to immigrate to the United States is through an immigrant visa application submitted overseas to the embassy or consulate. Adjustment of status was created as an administrative convenience: why make the alien (say, a student visa holder) leave and bother the consular officer when we can simply change ("adjust") his status right here? As with many, many, things, an administrative convenience has been transformed into an inalienable right by the courts. And Judge Posner is right on the bandwagon here.

-- As for "technical" errors by Benslimane's attorney: shall we ask Judge Posner how many appeals/briefs the 7th Circuit has rejected because they lack the properly colored backing sheet? Because they are not 2-hole punched?

Again, I do not disagree with the point of Posner's string cite regarding other BIA errors and 7th Circuit reversals. Many of those BIA decisions were, indeed, based on poor reasoning. But in this case, the bottom line is this: Benslimane was not (at the time of his hearing) immediately eligible to receive an immigrant visa because he had not demonstrated that his marriage is legitimate. He is still not eligible today. The BIA properly exercised its discretion by finding that it would be inappropriate to delay Benslimane's deportation based on his 11th hour marriage, coupled with his (and his counsel's) seeming inability to get their application in order. The BIA decision was completely defensible, and to reverse it Posner had to do great damage to the general rule -- a Congress-created rule -- that discretionary decisions are unreviewable.

In what way is a request for a continuance not discretionary?
12.2.2005 10:52am
Monkberrymoon (mail):
"Discretionary" doesn't mean, as you seem to imply, "unreviewable". Most circuits apply an abuse of discretion standard in reviewing denial of a continuance.

There is an argument that the federal courts don't have jurisdiction to review these things, but I don't think that's what you're saying.
12.2.2005 1:29pm
Cold Warrior:

There is an argument that the federal courts don't have jurisdiction to review these things, but I don't think that's what you're saying.

Nope. That's exactly what I'm saying.

It's not an argument in these cases. It's codified into law:

8 U.S.C. sec. 1252(a)(2)(B):

"Notwithstanding any other provision of law, no court shall have jurisdiction to review --

(ii) any other decision or action of the Attorney General the authority for which is specifed under this subchapter to be in the discretion of the Attorney General, other than the granting of relief under section 1158(a) [asylum] of this title."

So to take jurisdiction over this matter, the 7th Circuit needed to stretch a bit by saying either:

(a) the granting of a request for a continuance in a removal proceeding is not expressly committed by statute to the discretion of the Attorney General and his/her delegatees (the IJs and the BIA); or

(b) although the decision to grant/deny a continuance sure looks discretionary (since nothing in the statute compels the IJ to grant a continuance when the alien is married to a U.S. citizen and has some paperwork filed or in process), it really isn't; it's such a strong abuse of discretion that it deserves a stronger term, like an "outright refusal to implement Congress's will."

Read the decision and tell me which device Posner adopted to overcome the jurisdictional bar. See p. 6-7 ("A ruling on such a motion [for a continuance] is discretionary, and the Government argues that we have no jurisdiction to review a discretionary ruling of an immigration judge.") Why didn't this end the analysis? If it is discretionary, it is unreviewable under 1252. End of story.

Ahh, but Judge Posner knows better. It walked like a discretionary decision; it quacked like a discretionary decision. But it had the effect of eliminating any chance Mr. Benslimane had of avoiding deportation. So even though it wasn't a denial of his application on the merits, but rather a finding that he had abandoned his application for failure to prosecute it, let's not be needlessly harsh here.

One might ask: under what circumstances would Posner ever consider a ruling on a continuance motion to be discretionary? He concedes that such a ruling is discretionary in form, but overrides the jurisdictional bar by saying that it is substantive in effect. This obliterates the jurisdictional bar. He substitutes his Article III judgement on what factors state good cause for a continuance for the Executive Branch's determination of that issue. And, of course, that is precisely what Congress told him not to do.

Seems like this is a prime example of what conservatives always rail about: a raw exercise of judicial supremacy. Posner didn't like the Attorney General's discretionary decision, so he overrode it with his own.

This is simply indefensible, no matter how much he dislikes prior BIA decisions that came before him.
12.2.2005 2:10pm
Actually, now I think you're wrong. "Expressly committed to the AG's discretion by statute" != "nothing in the statute compels." In between what the statute compels the IJ to do and what it expressly commits to his unreviewable discretion is the place where the judge has ordinary administrative discretion, which is reviewable but where it is still possible to overturn for abuse of discretion.

Where does the INA expressly commit the stuff about continuances to the AG's discretion? If you can't cite me chapter and verse why does the jurisdiction bar apply?
12.2.2005 2:15pm
Cold Warrior:

Where does the INA expressly commit the stuff about continuances to the AG's discretion? If you can't cite me chapter and verse why does the jurisdiction bar apply?

I raised that because it would have provided a better rationale for disturbing the Attorney General's decision; i.e., discretionary decisions on procedural motions are not within the scope of section 242's jurisdicational bar."

But that's not Posner's approach. He assumes that such decisions do fall with the scope of the jurisdictional bar. Indeed, he says, "We assume, as we did in Subhan [citation omitted], that the government's argument is correct in general."

Then he continues, "But it is not correct in the circumstances of this case," because, presumably, the denial of the continuance had the effect of rendering Benslimane deportable without relief.

Where exactly is the statutory authority for this "effects" test? Could it be that Posner and the 7th Circuit just made it up?

Either it's discretionary within the meaning of 242 and therefore unreviewable, or it's not discretionary within the meaning of 242 and therefore is reviewable.

Posner says/assumes it is discretionary within the meaning of 242, but the results are too harsh, and therefore he will review it anyway.

He prides himself on his "pragmatic" approach to the law; the other term for this is results-oriented jurisprudence, which is no jurisprudence at all.
12.2.2005 2:29pm
The real problem that Posner's opinion responds to in this individual case is the DHS' persistent failure to timely adjudicate immediate relative petitions and the EOIR's failure to appreciate the controlling regulations that permit concurrent filings of such immediate relative petitions and adjustment of status applications. The former INS'/current CIS' adjudication backlog is a well-documented problem that is responsible for slowing down the system; that and the lack of coordination and cooperation within and between CIS, ICE and the EOIR unnecessarily placing individuals whose cases involve readily resolvable status issues in jeopardy of being deported.

The objections made above with respect to Posner's opinion do not stand up. First, it is quite likely that Posner's opinion addresses only the BIA's Matter of Garcia decision, and not subsequent precedent such as Matter of Arthur, Matter of H-A- and Matter of Velarde, because the case does not involve a marriage entered into after commencement of the deportation/removal proceedings. This supposition is reasonable in light of the fact that the opinion refers to the BIA decision itself addressing Matter of Garcia and not its later decisions: "The Board attempted to distinguish Garcia on the ground that Benslimane had failed to submit his application for adjustment of status to the immigration judge. But neither had Garcia ...".

Second, even if the marriage had been entered into after proceedings had commenced, the restriction on approval of a marriage-based visa petition in such a case is subject an explicit exception if the applicant can establish by clear and convincing evidence that the marriage was entered into in good faith and not for the purpose of procuring the alien's admission as an immigrant. In that case, the restrictions on approval of a marriage based petition and the prohibition on adjustment of status would not apply. But, if the CIS fails to adjudicate a petition and issue a timely determination, and ICE does nothing to assist in seeing that the petition is adjudicated, the statutory exception to the restrictions is rendered meaningless.

Third, the contention that adjustment of staus is merely an "administrative convenience," wrongly gives the impression that adjustment of status lacks the force of law, when, in fact, the procedure has existed as an alternative, statutory means of attaining lawful permanent residence for over 50 years. It is inaccurate to say that "the normal way" for an immediate relative spouse to immigrate is through overseas consular processing. Adjustment of status of those physically present in the United States has not only been the preferred method of obtaining lawful permanent resident status for half a century, but Congress has repeatedly endorsed the use of adjustment of status for this purpose in recent years by (a) not disturbing the original statutory provisions, and (b) affirmatively enacting additional provisions that expand the availability of adjustment of status to certain groups (as the Subhan case illustrates).

Finally, as far as the review of discretionary decisions is concerned, the REAL ID Act of 2005, which was effective upon enactment March 11, 2005, amends the judicial review statute even a discretionary decision may be reviewed by a circuit court where the contention is that it involves a constitutional question or question of law: "(D) . . . Nothing in subparagraph (B) or (C), or in any other provision of this Act (other than this section) which limits or eliminates judicial review, shall be construed as precluding review of constitutional claims or questions of law raised upon a petition for review filed with an appropriate court of appeals in accordance with this section."

This case suggests that refusal to grant an continuance might well violate the guarantee of a fair hearing when the adjudication that is a predicate to an adjustment of status application is left sitting in the agency's hands and utterly outside the applicant's control. As Posner concludes, the BIA's "decision that he nevertheless be removed forthwith flew in the face of its own decision in Garcia, as well as in the face of Congress's "intent [in enacting 8 U.S.C. ยง 1255] that eligible aliens be able to adjust status without having to leave the United States...".
12.2.2005 8:19pm