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Posner Slams the BIA:

Just wanted to echo Orin's post, and urge to read Posner's opinion. This isn't some liberal judge on the Ninth Circuit slamming the immigration bureaucracy -- it's a moderate conservative, citing many opinions from the Seventh Circuit (which has a reputation as being pretty sane). When he starts the opinion with, "In the year ending on the date of the argument, different panels of this court reversed the Board of Immigration Appeals in whole or part in a staggering 40 percent of the 136 petitions to review the Board that were resolved on the merits," it seems to me that people should pay attention.

DelVerSiSogna (mail):
I know that quite a few former law clerks read this blog, and I'd be curious to know if they agree with Judge Posner and with the following.

I clerked on the Ninth Circuit at some point in the past five years, and in my experience Judge Posner is absolutely right. The quality of opinions from immigration judges--and especially from the Board of Immigration Appeals--was shockingly poor. Honestly, my co-clerks and I actually wondered if you had to be a lawyer to be an IJ, because it seemed like they were just constantly making stuff up with no basis whatsoever in fact or law. (I just checked, and apparently a law degree is a requirement, but...)

I will also say that the one time during my clerkship that I was actually disgusted by a litigation strategy, it was the DOJ in an immigration case. I won't go into the details, but in this case the DOJ took blatantly inconsistent positions in subsequent stages of a single asylum-seeker's case, positions which were laughable as a matter of law and which made no sense except as a convenient way to deny judicial review in this one particular case.
12.1.2005 8:35pm
Greedy Clerk (mail):
This isn't some liberal judge on the Ninth Circuit slamming the immigration bureaucracy

And the "liberal" judges on the Ninth Circuit have been right all along, and people like Volokh and Orin have not been listening to them. But once Posner says this, everyone agrees it must be right. Silly.

12.1.2005 8:50pm
tdsj:
I also recently clerked at the circuit level and worked on about a dozen immigration cases during my year. I had the same impression as Posner and DelVerSiSogna. The quality of the work by immigration judges and the BIA was often shockingly bad -- not always, but often.

I have sympathy for the admin officers. They have a huge caseload. They have tons of asylum seekers come before them. A huge portion of the asylum seekers are lying; they have been coached what to say by their smugglers or other folks they met along the way. And the IJs simply don't have the resources or the power to conduct a proper investigation to determine who is lying and who is not.

But that excuse only goes so far. Some of their work was unconscionably bad. It was the most depressing thing that I saw while I was clerking.
12.1.2005 9:07pm
Al Maviva (mail) (www):
>>And the "liberal" judges on the Ninth Circuit have been right all along, and people like Volokh and Orin have not been listening to them. But once Posner says this, everyone agrees it must be right. Silly.

Clerk, that strikes me as an ill-informed opinion. Looking at Title 8 with a bird's eye view, one of the greatest problems is that the 9th Circuit has created a parallel version of it that is quite different from the textually-oriented version applicable in most of the rest of the country. On key issues, such as the question of when an immigration appeal is ripe to move into the federal appellate courts for review, or when it is final and all appeals are exhausted, the 9th Circuit has extensively rewritten the law. When Congress moved in 1996 to reform Title 8, those reforms aimed at improving the efficiency of the system by limiting appeals were re-written by the 9th Circuit. Since substantive appeals were limited, the nasty 9th started encouraging applicants to style their appeals as petitions for writs of habeas corpus. Yeah, it's great to talk about how everybody should get their day in court, but one reason the opinions stink and the IJ's stink and ICE's prosecutors at the initial proceeding stink is because any given litigant, doubly so in the 9th Circuit, can jam up proceedings indefinitely. It's precisely the opposite of the "swift justice" model, courtesy of the 9th's pretensions to the legislative prerogative and claimed interest in justice.

The issue of the 9th Circuit's caprice and misguided attempts at rewriting Title 8, as well as its frequent lawlessness, are independent of the quality of the Department of Justice' IJs, and in fact if anything probably contribute to making the IJs' work product a little bit worse by creating additional work, issuing interlocutory stays, and creating a second body of procedural immigration law that the IJs now have to master. Snark is a poor substitute for actual knowledge or decent quality reasoning, friend.
12.1.2005 9:38pm
Steve V. (mail):
Wait, so St. Cyr and Calcano-Martinez were Ninth Circuit decisions? Funny, I thought they came from the Supreme Court...

I'm hardly unbiased in defending the Ninth, but reading the '96 immigration laws in a way so as not to foreclose all judicial review is hardly a liberal-only reaction... I think there are plenty of judges, conservatives among them, who would think such decisions are responsible jurisprudence, not "misguided attempts at rewriting Title 8."
12.1.2005 10:43pm
Eric Muller (www):
When I was clerking, the ALJs that really sucked were the Social Security Administration judges. Scary stuff.
12.1.2005 11:00pm
Dem:
I recently clerked for a circuit court judge (a liberal/moderate judge on a one of the more conservative circuits) and I agree 100%. All the conservative clerks I discussed BIA opinions with were also shocked at how poor they generally were. Ditto on the jokes about whether you had to be a lawyer to be an IJ for BIA as well.
12.1.2005 11:02pm
M (mail):
For quite some time you _did not_ have to be a lawyer to be an IJ- many of them were ex INS agents, border patrol and the like. As you might expect that's not so good. It was only fairly recently (in the mid 80's, I believe, but I don't recall the exact date) that a law degree was required. Maybe some of the old IJ's were grandfathered in, but that certainly would not account for the large degree of shockingly bad decisions.
12.1.2005 11:12pm
Buck Turgidson (mail):
Why do you keep calling Posner "moderate"? Sure, he's moderate next to Alito, but he's not moderate by any objective standard. He lives in his own world, as does Easterbrook.

Sure the guy is more productive than any other judge on the planet, but that's because he wants to have an opinion on everything. That's a character flaw, not a sign of great intellect. When he pontificates on matters other than court opinions, he's really out of his element. His comments on popular culture are downright idiotic. Sometimes I wonder if he's so damn influential because nobody can follow most of his opinions and that's considered a sign of intellectual power--he's so smart that we are yet to understand him. That's fine for a mathematician, but it should not be the standard in the legal system. And Posner is no mathematician--he must have been really hurt as kid when someone was always smarter than he was, so he's punishing the rest of us now for the sins of some teacher and the book-smarts of his classmate. He has the classic neocon temperament, but he made it too early to join the party--judges rarely make it back into politics. Probably a good thing too--we have enough uncontrollable egos at the top.

So can we stop worshipping this tin idol, please?
12.2.2005 2:51am
Phil (mail):
I think Al Maviva is mostly correct. One thing to bear in mind is that immigration is a uniquely messed up area of law. For instance, you can bring an IAC claim in an immigration case, a civil/admin proceeding. Well in the bad old days, e.g., Holman v. Page, the prejudice for IAC was that the deficient performance resulted in a fundamentally unfair TRIAL or an unreliable ajudication of GUILT. Well immigration law involves neither a trial nor a finding of guilt, so instead the courts made up a different analysis. The problem is that in a criminal case the individual is presumed innocent and should be left alone. There is no such presumption for illegal aliens (obviously for LPRs there is in effect such a presumption and the burden is properly on the government). So how does one think about such things since the normal response would be for the illegal alien to return to his country of lawful residence and pursue entry through the normal legal channels? Instead the law treats being returned to one's country of lawful residence as the equivalent of imprisonment!
As for ther 9th Cir., even a cursory reading of the opinions in Abovian (one is at 219 F3d 972) reveals an out of control jurisprudence.
As for the IJ opinions, some are better than others. But keep in mind that these decisions are usually rendered immediately following the 2-4 hour hearing and, in the Ninth Circuit, there are frequent remands. Because of the workload, the Assistant Chief Counsel representing ICE will waive appeal if the grant of relief seems even arguably correct and, in such cases, the IJ issues only a very short decision usually just a few sentences. Aliens virtually never waive appeal, because reserving appeal gets them another free year in country. One partial solution might be to provide each IJ with a clerk to do research and draft (real) opinions. Another partial solution might be to narrow eligibility so there is a smaller flood of applicants.
In the current environment where IJs and ICE ACCs are dealing with dozens of cases a month, there is little chance of producing even adequate work on a consistent basis.
12.2.2005 3:09am
Public_Defender:
A few years ago, I remember reading that the hiring process for ALJ's gave so much weight to veterans' preference that non-vets could not get hired.

Some veterans' preference seems fair, but is it possible that the hiring process has so narrowed the field of potential candidates that they can't hire enough qualified people?
12.2.2005 4:30am
Phil (mail):
Public Defender
As a veteran, I almost hope this is true. I have, however, appeared in front of two dozen different IJs and only five were veterans. As for skills, they ranged from minimally adequate to very good. The best and worst IJs I have seen were none veterans.
It also strikes me that given the current low level of military service and (surprisingly) high retention rates, it is unlikely that veterans are dominating any hiring process, even with the preference.
If anyone knows hard data I would be very interested.
12.2.2005 6:28am
Katherine:
IJs do have clerks but they average about one per 8-10 judges. And the caseload is such that written opinions in every case are simply impossible. For one thing, the clerks don't sit in on and don't get transcripts of the hearings--they have to listen to audio tapes and transcribe them themselves. Not very efficient.

The entire field is like that--governed by law that was done in about 1/10 the time required to get it right, and often makes no sense. No one has the time, no one has the resources. Aliens are often unrepresented. There is no right to a government funded attorney. Although the Circuits have held that Matthews sometimes would require a government funded lawyer and it's a "case by case" decision, Congress not only categorically forbids federal funds from being used to defend aliens in Immigration cases--they also strip all legal service funding from any office that defends immigrants in immigration proceedings even with non-federal funds. This is not only bad for the aliens, it is much, much, much harder to deal with a pro se case. Instead of a decent attorney who does his best to convince the alien that it is not in their best interest to lie, because if the sympathetic lawyer sees it the IJ certainly will, you get people turning to smugglers who actively encourage them to file, e.g. fraudulent asylum claims--even if they may actually have a legitimate claim!

A lot of people do manage to rustle up a lawyer somehow, but some of the lawyers are quite bad. The pay's lousy, hours long, prestige low, and there's not exactly much that can be done about malpractice because the plaintiff has been deported. And even the fantastic, committed lawyers have insane caseloads &long waiting lists.

On the government side, the DHS attorneys often look at the file for the first time at the hearing. A case will be tried by multiple attorneys depending on who's available that day.

So when legal issues are in dispute, you can be pretty certain that they have not been briefed. And on the rare occasions when they are briefed, the briefs cannot be relied upon. Lawyers will routinely just leave out cases &regs that hurt their case. And why not--the IJ doesn't have time to catch them, and there's a real chance of them slipping one by him.

The IJs are overloaded. The BIA is overloaded. The BIA doesn't actually issue precedent decisions more than a few times a year, so there are all these gaping holes, basic issues upon which there is simply no case law. The Circuits are increasingly overloaded, and the standard of review is actually supposed to be very deferential. And the field of asylum law is about 25 years old, and the courts have a way of throwing their brains out the window in deciding the high level precedent cases because they don't want to open the floodgates.

So, yeah, it's not a good situation.
12.2.2005 8:16am
Public_Defender:
Phil,

It sounds like the veterans' preference has again become a preference instead of an exculsion of all non-veterans. But I agree with you, recent numbers would be interesting.

On another note, the DHS lawyer did about as good a job as she could at the oral argument. It's not fun to go down in flames, but she withstood the (perfectly fair) attacks.

Based on Kathrine's comments, one thing that would help is if the same DHS lawyer was responsible for a case all the way through. That way, the lawyer would know that he or she might have to defend the case (and his or her actions) in the court of appeals.

One test I use to decidee whether to include an argument in a brief is to imagine the oral argument. If I'd be ashamed to defend the argument in open court, I drop it from the brief. DHS administrative hearing lawyers should be forced to do the same gut check.
12.2.2005 8:39am
Katherine:
It's not practicable for DHS lawyers to appear before the Circuits. I meant simply that it would be better for one DHS lawyer to handle all of the immigration court hearings. But that is also not practicable at current staffing levels.
12.2.2005 8:56am
Robert Lutton:
But of course we all agree that government is big,bloated, and bad. Thus it becomes imperative to cut taxes and spending...so why complain about the consequences, Eugene?
12.2.2005 9:14am
Phil (mail):
I am with Katherine on most of this. One must be careful in the immigration contexts about the "government". Before the IJ and BIA the case is handled by an attorney from ICE (usually though not always the same atty before the IJ and the BIA). If the BIA decides against ICE, DHS may seek certification to the AG, and an adverse AG decision causes the alien to pet. the Circuit where DOJ OIL represents the government. If the BIA decision is adverse to the alien, the alien petitions Circuit and its DOJ OIL again. The problem is that ICE, DHS, and DOJ all have slightly different interest (not to mention different lawyers). Even assuming that the same ICE Assistant Chief Counsel handled the entire case before the IJ and BIA (not bloody likely except in the simplest and quickest cases), there will definitely be a different attorney no later than the collateral BIA level (reopening, reconsideration, certification, petition whatever). Maybe get circuit judges and their clerks to work in the immigration courts one month/year--no there would eb an Eighth Amendment problem!
There is no hope; let's hang ourselves.
12.2.2005 9:33am
Bill (mail):
I agree with this decision, but the opinion evinces high rhetoric by the Pos. Look close at this passage:

All that is clear is that it cannot be in the interest of... citizens concerned with the effective enforcement of the nation's immigration laws for removal orders to be routinely nullified by the courts

From the perspective of a judge, the overturning of removal orders may seem "routine". But, if Posner is right about Justice's immigration courts, then the number of applicants "ground to bits in the bureaucratic mill" is likely vastly greater than the number whose removal is overturned by the federal courts. Effective enforcement of the law requiring continuance granting would lead to less removals not more. Of course, citizens should be in favor of enforcement of immigration laws that protect people from being ground to bits. But those good citizens would not be upset by the routine reverals of removal orders. Rather they would be upset by the liklihood that many removal orders are being issued prematurely.
12.2.2005 9:34am
Katherine:
By the way, in general when it comes to the attorney and judge competence, I do not like the idea that "insufficient resources only excuse so much." That depends on how insufficient. There is a level at which resources become so insufficient that it is impossible to do a good job: "Write a 25 page brief on this issue for me--you have 15 minutes." "Prepare for this death penalty trial--you have two hours."

Not to say that all of the problems with IJs can be attributed to that. IJs vary, a lot. A lot. But for the Circuit judges and clerks to sit around kvetching about how the immigration judges and clerks aren't really lawyers does not sit well. The clerk-to-judge ratio is I think 25 times higher on average on a Circuit court than an immigration court. And I'm pretty sure the case load is much lower. And I bet you get actual transcripts of the hearings &that sort of thing. To some extent you get what you pay for.

Naturally, all of this is irrelevant to whether the Circuit should overturn an erroneous BIA or IJ decision. Of course they should.

This is why O'Connor's competency of counsel opinions are so atrocious by the way, which say that resources will be taken into account in determining whether a defendant got an adequate defense. It's not a malpractice case, the court's job is not to sit in judgment of the attorney or the ALJ's immortal soul, brain, or competence. It is to decide whether this particular person received an adequate defense or the process the laws require.
12.2.2005 9:48am
Public_Defender:
I didn't mean to say that Kathrine thought that DHS lawyers should defend their own cases in court. That was my not-very-carefully-thought-through proposal to deal with DHS's accountability problem.

If DHS could devote the resources needed to stop making stupid mistakes, it could dramatically reduce its 40% reversal rate, which would cut down on the number of cases it has to do twice. That kind of measure could pay for itself.

Also, when a court mistrusts a certain agency or lower court judge, the standards of review get a lot looser. (The opposite is also true, courts give tougher standards of review to agencies and lower court judges they trust and respect.) DHS's stupid mistakes make the agency much more likely to be reversed on decisions that an appellate court would otherwise leave untouched.
12.2.2005 9:52am
Blindgambit:
I'm a recent clerk from the Fourth Circuit (not really in constant battle with the BIA/IJ) but I would agree that, even in cases we affirm, the IJ and BIA are just awful at least 50% of the time. Sometimes, you wonder if they even read the laws. And their "credibility" determinations are sometimes laughably bad. Just so you know, I clerked for a conservative judge and consider myself a hawkish libertarian. But, just like Judge Posner, I agree there is some minimal level of competence required by the immigration authorities. A colleague of mine argued an immigration case (for government) in front of Posner about 3 weeks after this oral argument. His preparation included listening to the Gov attorney getting reamed in this case, but he came through unscathed.
12.2.2005 9:54am
Anderson (mail) (www):
they [the Congress] also strip all legal service funding from any office that defends immigrants in immigration proceedings even with non-federal funds
That is the most appalling thing I've read in a month, torture news excluded.

Even the 5th Circuit, I've noted, has harshed on BIA's arrogance. That's my benchmark for "wow, it must be REALLY bad."

(Which is also why you're so off-base above, Greedy Clerk. There is nothing bad about an opinion's being more widely accepted when it's seen to be held by persons of divergent ideologies. You do it, I do it.)
12.2.2005 10:18am
Katherine:
Again, it's not DHS' 40% reversal rate. DHS are the attorneys for ICE, the former INS. Immigration Judges and members of the Board of Immigration Appeals are not DHS staff. They are part of the Executive Office for Immigration Review, a division of the Justice Department. The DHS attorney is the government's lawyer, not the person who decides the case. Another division of DOJ, the Office of Immmigration Litigation, handles the federal court appeals of immigration cases.
12.2.2005 10:20am
Katherine:
Yeah, Anderson, I vaguely hope to get that declared facially unconstitutional when I grow up....
12.2.2005 10:21am
Phil (mail):
Katherine
I am not so sure about facially unconstitutional. Now as applied to LPRs . . . .
12.2.2005 10:36am
Katherine:
The whole deportation thing makes "as applied" tricky, as does the fact that to litigate this issue, you need a lawyer. It doesn't seem ethical to allow an asylum seeker or LPR to go unrepresented all through the EOIR proceedings and then swoop in on appeal. Maybe the right client would just fall into your lap one day, but it seems unlikely given the mechanics of deportation. And the courts can do the Lassiter two step: "on the facts of this case....". The point is, if there is any case where due process requires government appointed counsel, how can Congress say that no one who ever represents an alien can get any funds ever?

But judicial conservatives don't seem much bothered by Constitutional underenforcement.
12.2.2005 10:47am
Phil (mail):
Removal does make things more tricky and I say that as someone who normally works for the government. It does seem easier to fit an LPR into the quasi-criminal context because the government does have the burden of proof. It is also easier to explain what they are being denied, their already lawful resdient status. Illegals raise an entirely different set of issues. Fortunately (for everybody), in my area there are several legal clinics which frequently provide better representation than the private bar.
12.2.2005 10:57am
Cold Warrior:
I posted this in the thread started by Prof. Kerr. At the risk of being accused of an inflated opinion of my legal analysis, I cut and paste it here. I work in this field, and Posner's opinion (unlike most of his others) seems completely out of line here:

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 10:57am
AppSocRes (mail):
My recollection is that Possner has one of the lowest rates of reversal on appeal of any sitting federal judge/magistrate. I also seem to remember that the 9th Circuit has the highest rate of reversal of all federal circuits. This might suggest that when Possner speaks everyone should listen and when the 9th Circuit speaks it is safe to ignore. It might also suggest to those whose earlier postings on Possner are somewhat dismissive that he is not only smart, knowledgable, and insightful, but that he may be significantly more so than they.
12.2.2005 11:05am
Cold Warrior:
Phil said:


Because of the workload, the Assistant Chief Counsel representing ICE will waive appeal if the grant of relief seems even arguably correct and, in such cases, the IJ issues only a very short decision usually just a few sentences. Aliens virtually never waive appeal, because reserving appeal gets them another free year in country. One partial solution might be to provide each IJ with a clerk to do research and draft (real) opinions. Another partial solution might be to narrow eligibility so there is a smaller flood of applicants.


Absolutely correct.

Interesting to see wannabe social scientist Posner completely ignore the selection bias issue:

-- most removal orders do not result in an appeal to the BIA.

-- DHS appeals make up a tiny fraction (last I checked, about 2-4 percent) of all appeals to the BIA.

-- although the Circuits claim to be swamped by immigration appeals, the percentage of BIA decisions brought before the Circuits on petitions for review is still quite small; I cannot imagine that it is more than about 30 percent.

-- these are ballpark numbers: we have 200,000 IJ decisions a year, and 40,000 are appealed to the BIA, of which 38,000 are alien appeals, of which the BIA overturns/remands about 10,000, leaving 28,000 final BIA removal orders, of which 10,000 are brought before the Circuits on petitions for review, of which 5,000 are dismissed for lack of jurisdiction (e.g., appeals claiming the BIA failed to find "hardship," a discretionary decision that is not reviewable; neither are petitions brought by most criminal aliens), we are left with 5,000 CA "merits" decisions. And if Posner is right, about 40 percent -- 2,000 -- result in reversals/remands.

And Posner jumps up and down: 40 PERCENT ERROR RATE!!

Or is it really 2,000 errors out of our 200,000 total removal orders?

So should we jump up and down shouting, "WE HAVE AN ERROR RATE OF ONLY ONE PERCENT! WE ARE THE BEST ADMINISTRATIVE ADJUDICATORS THE WORLD HAS EVER KNOWN."

Judge Posner: even an amateur social scientist shouldn't be this bad ....
12.2.2005 11:11am
jota:
Maybe this wouldn't be a problem if the Ashcroft DOJ hadn't drastically cut the number of BIA judges as means of rendering the immigration appeals process more "efficient." The self-inflicted paucity of BIA judges, coupled with the rubber-stamp-like power of affirmances without opinion, mean these judges: a) have no time to bother with the specific facts of the case; and b) have an incentive not to, given their psuedo-discretionary ability to summarily dismiss with no opinion that an appellate court, already cloged with hundreds more immigration appeals because of the structural inadequacies of the BIA, may or may not reverse. This is a severe drag on the resources of many circuits, most especially the ninth circuit. So it makes sense for appellate courts to recognize the less-is-more shibboleth for what it is in this context and pass the buck back to where it belongs in the first instance.
12.2.2005 11:14am
DelVerSiSogna (mail):
Katherine--
It's not just an issue of not having the resources, because (speaking again as a recent law clerk) the problem isn't just that IJs make mistakes. It's that they routinely justify their decisions on laughable grounds and misinterpret testimony in ways that are inexplicable if they are not willful.
12.2.2005 11:28am
B. B.:
"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."

That "seeming inability" was what they found so ridiculous -- the government had the document in its possession but for some unknown reason didn't give it to the judge. They found it stupid to penalize the alien for not doing something that he had in fact already done, and which the government could have easily and in the opinion of the judges (listen to the oral argument, they absolutely hammer the person that got sent to argue for the government on that point in particular) should have been given to the IJ by the government.

The point was that they never really even considered the bona fides of the marriage, they appeared to kick it based on a supposed failure to do something that the alien had in fact already done. Eminently reasonable for Posner and the other two on the panel to reverse.
12.2.2005 11:53am
Cold Warrior:

the problem isn't just that IJs make mistakes. It's that they routinely justify their decisions on laughable grounds and misinterpret testimony in ways that are inexplicable if they are not willful


Some IJs are, indeed, quite awful. Most aren't. Evidentiary rules, as expressed in the statute/regs and as created by the BIA, generally give IJ's more than adequate alternative (to credibility determinations) basis for denying asylum applications. The rules are sensible. Chiefly the rule (created by the BIA) that an applicant must provide corroborating evidence where reasonably available. But that rule was gutted by the Circuits. I routinely see cases in which asylum applicants do not call close family members (who were there when the alleged persecution occurred, and who now live in the United States) as corroborating witnesses. Why not? Because as anyone in law enforcement knows, taking separate testimony from two or more (purported) witnesses to an event is the best way to test credibility. And the law in most circuits, gutting the "corroboration" requirement, creates an incentive to rely on the applicant's testimony alone.

Congress tried to fix this by codifying the BIA corroboration rule into the statute in the REAL ID Act. It won't take long for the Circuits to gut it again.

Ask yourself: in what other kind of civil or criminal proceeding is it considered sufficient to rely on one witness's testimony even when other witnesses are available? BIA evidentiary rules (now incorporated into the Immigration and Nationality Act) say that many of the applications should be denied for the simple reason that "the applicant failed to carry his burden of showing persecution by his testimony alone."
12.2.2005 11:56am
Katherine:
I never said it was just that. But if you don't have time to carefully review either the testimony or the law, and are reviewed by courts that do, some of your mistakes will look inexplicable.

Not that the Circuits necessarily get it right, mind you. Some of them can be astonishingly sloppy with asylum law. To any circuit clerks out there: persecution, the existence of a cognizable social group, and whether persecution took place "on account of" membership in that social group are three! separate! requirements! for refugee status. Conflating these requirements makes asylum law into a horrible, internally contradictory mess that screws over refugees with legitimate claims. Don't get sloppy with it even if its just dicta--dicta is unusually crucial in immigration law because it's often all the IJs have to go on from the circuit.
12.2.2005 12:02pm
Cold Warrior:
B.B. said:

That "seeming inability" was what they found so ridiculous -- the government had the document in its possession but for some unknown reason didn't give it to the judge. They found it stupid to penalize the alien for not doing something that he had in fact already done, and which the government could have easily and in the opinion of the judges (listen to the oral argument, they absolutely hammer the person that got sent to argue for the government on that point in particular) should have been given to the IJ by the government.


See p. 5 of Posner's opinion: "The Immigration Judge, although told by Benslimane's lawyer that the wife had filed Benslimane's I-485 application at the same time that she had filed the I-130 petition, told Benslimane to submit his I-485 application to the judge within 60 days."

"Benslimane failed to do so, because his lawyer thought that an I-485 cannot be filed with the immigration authorities until the visa petition was adjudicated."

What's so hard here?

-- The IJ ordered Benslimane (through his competent counsel) to file the I-485 within 60 days.

-- Benslimane decided not to do so.

-- His lawyer apparently didn't ask the Immigration Court for an extension (e.g., "Motion to Extend Filing Deadline," explaining his (erroneous) argument that the I-485 could not be filed until the I-130 is approved).

-- The deadline passed, apparently without any request for an extension or any reason for the failure to comply having been provided by Benslimane or his counsel. The excuse ("I thought the I-130 had to be approved first") apparently didn't come until the date of the final hearing at which the removal order was entered.

-- Posner goes on to note that after the BIA appeal was filed, "his lawyer had woken up and submitted a copy of the I-485 that Benslimane's wife had filed." So obviously he had a copy in his possession. So, in other words, he really didn't have a decent excuse for not submitting it to the IJ in the first place.

If you practice in any court, state or federal, administrative or Article III, does this strike you as acceptable practice:

Judge: You are ordered to submit your full application/motion/supporting documents within 60 days.

Advocate: silence.

60 days pass.

Judge: I see you failed to submit the application as I ordered. I deem it abandoned. Case dismissed.

Advocate: But I had already given opposing counsel a copy of the application, why couldn't they have filed it instead?

Judge: But that application wasn't in this court's record. And I didn't order them to file it; I ordered you to file it.

Advocate: That's not fair!

Compare:

7th Circuit: your brief is due in 60 days.

60 days pass.

7th Circuit: You failed to file a brief. Your appeal is deemed abandoned and is dismissed.

Advocate: But I already briefed the issued before the District Court, and that brief is included in the 7th Circuit's record!

7th Circuit: what part of "you are ordered to file a brief" don't you understand?

In the Benslimane case Posner notes that if this was ineffective assistance of counsel, the BIA has created a very good remedy for reopening a case. As a starting point, the BIA requires that the aggrieved alien file a complaint with the State Bar that licenses the attorney to practice. This serves 2 purposes: (1) it acts as a sieve to sift out frivolous claims; if you really mean it, put up or shut up; (2) it imposes consequences on the malpracticing attorney. And there was absolutely no reason why that process couldn't have been used here.

Instead, Posner seems to excuse inexcusable conduct by Benslimane's lawyer.

I guess an Article III judge's scheduling orders are allowed to have consequences, but not a lowly bureaucratic Administrative Law Judge's orders.

What a fine rule, Judge Posner. What a great way of showing respect for the Executive Branch.

Actually, Posner has become something of a self-important blowhard, and this decision is right in character for him ...
12.2.2005 12:24pm
DelVerSiSogna (mail):
Some IJs are, indeed, quite awful. Most aren't.

I don't mean to say otherwise, because I have no idea how representative the immigration cases that come up on petition to the circuit courts are of the immigration caseload as a whole.

There's also no question that the IJs are in a bad position, because they're being asked to do the impossible. In many, many cases there is just no way to tell whether, say, an asylum applicant is telling the truth. You could hold hearings &write opinions all day; the information is just not there to be had. In a rational world, we would have a discussion about what kind of error we are more comfortable with: wrongly letting an immigrant stay, or wrongly kicking an immigrant out. In this world, of course, we will do no such thing.
12.2.2005 12:51pm
M (mail):
Cold Warrior-
Your remarks about error rates above would only be accurate if there was reason to think that there was no error in the cases that don't go to the circuit courts. There's absolutely no reason to think that, though, and some pretty good reason to think the opposite. So, even if Posner is wrong in his calculation or playing with numbers you're certainly doing the same thing.
12.2.2005 12:53pm
Cold Warrior:

Your remarks about error rates above would only be accurate if there was reason to think that there was no error in the cases that don't go to the circuit courts.


Ahh, but there's a critical difference here. I am simply pointing out that Posner's "40 percent reversal rate" is essentially meaningless without further analysis.

And I just threw some quick and dirty numbers out to prove my point. I'm not saying that the error rate is really "one percent." The point is that Posner needs to somehow recognize selection bias. And it is obvious that Posner attaches real consequences to his perceived 40% error rate -- he is admittedly very skeptical of anything the BIA does, and that skepticism informs his decisions.
12.2.2005 1:02pm
Katherine:
I have to say, Cold Warrior's pretty persuasive on the merits of this case. I actually think there are major problems with the way the administrative system is working now, but this was probably not the right case for Posner to go galloping off with his saber drawn.
12.2.2005 1:19pm
Bruce:
The I-485 had already been filed. The judge was essentially ordering Benslimane to file it again, before him -- not simply provide a photocopy, but file it, complete with fee. The judge then denied the continuance because Benslimane didn't file the I-485 a second time, even though the judge had also tried and failed to obtain it from INS.

So the proper analogy would be if a court demanded that the complaint you have already properly filed in a related matter and that has been assigned to another judge (and that opposing counsel has a copy of) be re-filed (not consolidated; and not simply provide a photocopy) so that it can also be assigned to him or her; and then dismissed your complaint because you waived the issues raised in your other complaint. That's just ludicrous; the other complaint was already filed and is properly pending before another judge.
12.2.2005 1:48pm
Monkberrymoon (mail):
Not only had it already been filed, but the IJ apparently asked the government for it (the originally timely filed I-485) as well. No response.

So, consequences?

For the government, a frown.

For the alien, deportation.
12.2.2005 2:02pm
Cold Warrior:

The I-485 had already been filed. The judge was essentially ordering Benslimane to file it again, before him -- not simply provide a photocopy, but file it, complete with fee. The judge then denied the continuance because Benslimane didn't file the I-485 a second time, even though the judge had also tried and failed to obtain it from INS.


So your argument is essentially that of Mr. Benslimane's counsel:

"Judge, I felt free to ignore your order because my client's wife had already filed an I-485 with another agency and paid a filing fee, and that agency had it in their possession."

Remember, "ignore" it is what the attorney did. He didn't ask the judge to waive the filing fee or deem it already paid. He didn't ask for more time to file it. He didn't move for an extension of time based on his theory that the I-130 needed to be approved first.

He just ignored it. And then asked for another continuance upon his next hearing in immigration court.

Look, Benslimane was paying this guy to represent him. The DHS attorney isn't paid to do his copying and filing. Benslimane and/or his attorney had a copy; after all, he submitted it to the BIA after the IJ ordered him deported.

Tell me, what would you have done if you were Benslimane's attorney when you realized that the deadline was approaching and you thought that you were unable to comply with the order?
12.2.2005 2:19pm
Cold Warrior:
Again, I suggest that those appearing before the 7th Circuit adopt the same leisurely approach to complying with that Court's orders.

Judge Posner will no doubt apply his judicial gestalt to excuse your noncompliance.
12.2.2005 2:21pm
Public_Defender:
Again, it's not DHS' 40% reversal rate. DHS are the attorneys for ICE, the former INS. Immigration Judges and members of the Board of Immigration Appeals are not DHS staff. They are part of the Executive Office for Immigration Review, a division of the Justice Department. The DHS attorney is the government's lawyer, not the person who decides the case. Another division of DOJ, the Office of Immmigration Litigation, handles the federal court appeals of immigration cases.

This shows part of the problem. Responsibility is so divided that no one is responsible.

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.
This shows another problem--DHS attitude. It's an "extraordinary favor" for a man to stay in the country with his wife.

If the marriage turns out to be a fraud, deport the guy and prosecute the woman. But don't deport him until you know.
12.2.2005 3:06pm
Cold Warrior:
Public Defender said:

This shows part of the problem. Responsibility is so divided that no one is responsible.

Agreed. In the old days, long before I practiced in this field, it wasn't divided. Immigration Judges were part of the INS. And until recently, the benefits-granting side (now CIS) and the enforcement side (now ICE) were also united. The primary impetus for division came from private immigration counsel, which thought that there was a conflict of interest in having the benefits side also responsible for enforcement. And yes, the division has been disastrous.


This shows another problem--DHS attitude. It's an "extraordinary favor" for a man to stay in the country with his wife.

If the marriage turns out to be a fraud, deport the guy and prosecute the woman. But don't deport him until you know.

Well, this shows a lack of understanding with how things work. And that would be true even if the immigration bureaucracy were wonderfully efficient.

Where would you draw the line? Congress tried to draw the line at aliens who get married while they're in deportation proceedings. Needless to say, if you can avoid deportation by marrying a U.S. citizen, you've got a stron incentive to enter into a fraudulent marriage.

And what about something we see (literally) every day: an alien in deportation proceedings asks to delay things based on a marriage to a U.S. citizen; next appearance in court (usually about 6 months later) he informs the court he's divorced from U.S. citizen wife number one. He's now married to wife number two. She has just filed a petition for him. Believe me, this happens with great frequency.

What kind of incentive does a rule that "a continuance should be granted until the marriage is proved fraudulent" create? Is this good social policy? Is it wise to expend Government resources determining whether each one in a series of marriages entered into in deporatation proceedings is valid? Remember, each interview/investigation only worsens the backlog for persons in lawful status, with obviously-valid marriages, who must wait that much longer to be granted a green card.

Policymaking is hard. Someone is always aggrieved when priorities are set. But we wisely leave such decisions (such as "you need to show good cause for a continuance, and have all your papers in order") to the political branches, not to the judiciary. If only the judiciary would let them be ...
12.2.2005 3:37pm
breen (mail):
Maybe I'm not paying close enough attention, but isn't the point of this that the immigrant had married his wife before proceedings? It seems to me that the line Congress drew is clear and bright and the immigrant toed it, but certainly didn't cross it. Am I missing something?
12.2.2005 3:56pm
Public_Defender:
Another problem is the different culture between federal appeals courts and the DHS. Federal appellate courts are some of the most lenient around when it comes to their internal procedural matters, like deadlines and extensions. As long as your notice of appeal is properly filed, you really, really have to work hard to get your appeal dismissed on procedural grounds.

So federal appellate judges have a hard time understanding why an IJ would dismiss a case because the immigrant hadn't filed a second copy of a document that was already in the file.
12.2.2005 4:37pm
NickM (mail) (www):
I've seen things from state administrative law matters in CA that are probably worse than BIA practice.
The most upset I have ever seen any judge become was when an ALJ asked the state agency's attorney for a copy of the proof of service of the accusation on a motion to dismiss for failure to properly serve it, and the following colloquy took place after the ALJ read the proof of service (I kept the transcript):
Judge: "This does not say what you just told me it did. You just told me that you had a signed proof of service that said you served him at [client's home address]. I read this, and it says he was served by substituted service at [another responding party's business address]. He testified he has never been there and it's not his address. You were looking at this document and you told me something that it just doesn't say. Do you see something wrong with this?"
State attorney: "He's not prejudiced by this. He has retained counsel and is ready to proceed. Besides, the service of the accusation is not required by any statute. It's just a courtesy."
Judge: "Oh really? Now I've heard everything. The motion of [respondent] is granted and the complaint against him is dimissed. If [the agency] wants to serve him at this point, I will entertain a motion for attorney's fees for his being forced to retain counsel and appear here today." The agency settled with the other parties and never served my client.

Of course, in a later proceeding on a related matter, a different ALJ admitted, over hearsay objection, the allegations of that dismissed complaint stating "well, these are hearsay, but I will allow them in for the limited purpose of explaining his state of mind" - and then issued a decision that referred to the respondent "having been found guilty of similar violations in [number of the dismissed case]".

Sometimes I'm amazed that any suitable people even agree to become ALJs.

Nick
12.2.2005 6:07pm
Al Maviva (mail) (www):
>>>This shows another problem--DHS attitude. It's an "extraordinary favor" for a man to stay in the country with his wife.

Good point. DHS probably does have a bad attitude. But then, if roughly 70-80% of the people who came to you seeking asylum were doing so on false and fraudulent grounds, you would probably get a bad attitude too. If there weren't security and criminal law enforcement problems relating to BIA decisions, they would probably be a bit more relaxed and generous in their relationship with those subject to deportation and removal proceedings.
12.2.2005 9:44pm
M (mail):
Al,
Where do you get your 70-80% figure? In 2003, the last year I have easy access to stats for, asylum applicants were granted asylum in about 20% of the cases that went before immigration judges (either by the IJ or the BIA.) Of course that doesn't mean that the other 80% were "false or fraudulent" in any normal sense of the term- some had real cases they could not prove, some had border-line cases that went against them, some had real problems that were decided not to be the sorts of problems you can get asylum for, and some either got other relief or decided that the process wasn't worth it. But, of course, this is only the cases that were not granted by asylum officers. The grant rate by asylum officers is quite a bit higher than 20% (I believe it's around 40% but I'm working from memory here.) Maybe some ICE or OIL (doesn't it make them sound like super-villian groups?) lawyers will claim 70-80% of cases are false or fraudulent but this is quite obvious nonsense.
12.3.2005 12:39am
Phil (mail):
Actually adjustment of status while in proceedings is extraordinary relief. Normal people have to wait in line for an interview in their countries of lawful residence. Being allowed to rremain in country without status and then adjust to LPR is extraordinary when one considers the thousands of Filipinos, Indian, Mexicans, etc. waiitng to have their interviews so they can obtain an immigrant visa. Even in country most people do not wait until the eve immigration proceedings before giving CIS an I-130 and I-485.
12.3.2005 4:33am
Public_Defender:
Normal people have to wait in line for an interview in their countries of lawful residence.
This is another sign of the problem. DHS provides such slow and customer-unfriendly service that it's "extraordinary" to treat someone's application in a timely and professional manner.

Whether it's because of lack of resources, bad employee selection, bad management, bad laws, or all of the above, DHS is 100 times worse than the worst stereotype of state DMV offices. Except the DMV doesn't rip you from your family and send you half way around the world for a paperwork error.
12.3.2005 9:57am
M (mail):
First a clarification to my remark just a bit above- the 20% grant rate at the IJ level and above for asylum aslo does not include people denied asylum but granted withholding of removal because of the one-year deadline. And, some of the denials are people who would have had a legitimate asylum case but did not meet the deadline, but could not meet the higher standard of proof for withholding. This further shows that Al is just making stuff up (as all who know him expect!)

Phil- I think you're a bit off in your example. Most of the Mexicans, Indians, and Filipinos waiting years to get an immigrant visa are not immediate relatives (if they were, they'd not have to wait years. A visa would be avaliable "immediately", which, in CIS talk, means something like 6-12 months. That's just "processing time".) The years-long waits are for relatives that are not immediate relatives. The wait here is caused by two types of numerical caps- caps on the number of visas given to each type of relative, and caps on how many visas can be given to people from each country. The later as supposedly to encourage "diversity" but it's questionable whether they are really legitimate. But, the case discussed here involved an immediate relative (a spouse) and the processing time is the same (it varries from office to office, though, sometimes quite greatly) whether this is done in the US or abroad, so I don't think your example is quite right.
12.3.2005 10:59am
Phil (mail):
M
My experience has been (though my wife immigrated from a country othe rthan the three in my example) is that once all the papers are in one still waits 60-180 days for the interview to get the immigrant visa. I am for other reasons painfully aware of the ten year backlog of non-immeduate relative applicants from other countries. None of this changes my point. When one overstays a visa by four years and marries a US Citizen only weeks before a removal hearing, obtaining adjustment of status is an extraordinary remedy. A truly fair system would place such an applicant with all the others, at the back of the line awaiting a consular interview in the home country. Providing windfalls for those willing to overstay is neither good law enforcement nor fair. The availability of such windfalls is one reason why an applicant in suc circumstances should be responsive to the IJs requests.
12.3.2005 1:28pm
breen (mail):
The problem is that the law does not see this as extraordinary. I work for CIS and while the four years does seem extraordinary, the law doesn't make any distinctions between those who overstay four years and those who file their 485 while in, say, a valid B1/B2 status. The law draws the line at removal proceedings, and since the immigrant in question filed his before these began, he is entirely in the right. The law is not terribly efficient or fair in some cases, but the law seems completely on the immigrant's side in this instance. His lawyer was an idiot for not filing the paperwork again for the judge, but the governmnet should have been coordinated enough to ensure the case didn't get that far.
12.3.2005 2:14pm
Phil (mail):
breen
While in proceedings, adjustment of status is an extraordinary remedy. Henry v. INS, 74 F.3d 1, 4 (1st Cir. 1996)("Adjustment of status is not an entitlement, but, rather, an extraordinary remedy.")
Though I suspect that this thread is by now deceased.
12.4.2005 4:32am
Jimbeaux (mail):
Okay, I'll provide life support. I think Breen's point was that this alien's adjustment of status was not "while in proceedings", it was before. Now, I don't know if that's true -- I think at oral argument it was made clear that the guy had submitted the form after he got his notice to appear letter but before the removal hearing began. I'm not sure how the law treats a form submitted after a MTA letter -- is that during the "proceedings"?
12.4.2005 11:36am
Phil (mail):
Jimbeaux
It is "in proceedings" because once the Notice To Appear issue it will be the IJ, not CIS, who grants (or denies) adjustment of status, though CIS still handles the petition (I-130).
Thanks for the life support, but feel free to pull the plug
12.5.2005 2:24am