Biden’s Attorney General Should Overrule Bad Immigration Decisions and Demote BIA Members

Guest blogger: Vincent Goble, law student, University of San Francisco:

President-elect Joe Biden has an ambitious immigration agenda.[1] While some of his policy objectives require either approval of Congress or use of executive orders, another—restoring the nation’s long-held commitment to refugees seeking asylum by improving access to the immigration courts—faces considerable administrative challenges.

The President-elect has proposed doubling the number of immigration judges as a measure to alleviate the backlog of over 1 million immigration cases.[2] There are approximately 520 immigration judges nationwide, so each judge’s docket contains about 2,000 cases. Although increasing the number of judges would help alleviate the backlog, the backlog itself, as far as it is representative of the poor accessibility to asylum, is only the tip of the iceberg.

Immigration courts are administrative courts located within the Executive Office of Immigration Review (“EOIR”), an arm of the Department of Justice (“DOJ”). Since the DOJ is a part of the executive branch of government, the President, through the Attorney General (“AG”), can drastically change the arc of immigration cases by unilaterally changing administrative rules and frameworks. The Trump administration has done so at all three of the levels at which the EOIR reviews immigration cases. Without additional reform measures that detangle this legacy, simply doubling the number of judges would likely accelerate Trump’s immigration agenda.

First, under the Trump administration, AGs Sessions and Barr have expanded the use of certification[3], a process by which the AG may unilaterally overrule the BIA and rewrite regulations and laws that affect the outcome of immigration cases.[4] In four years, the current administration has matched the number of times that the Bush administration applied certification and quadrupled the number of instances in which either President Obama or President Clinton applied it (note: Presidents Obama, Bush, and Clinton each held office for eight years). While proponents of certification point to its usefulness in correcting erroneous BIA rulings, under Trump, certification has been a tool to align judicial review with anti-asylum enforcement policies.

The Biden administration’s future AG now faces a catch-twenty-two regarding certification. The AG can either restore it to a narrowly tailored corrective purpose or apply it expansively and routinely to advance policy. Taking the former approach would be a concession to Trump’s policies, since the policies that AGs Barr and Sessions advanced through certification would continue as guiding precedent for immigration courts. Taking the latter approach would entrench the political polarization of the Trump era and increase the likelihood that immigration courts will bend to the policy whims of successive administrations.

Second, over the past two years, AG Barr has demoted numerous career BIA judges[5] while also expanding the BIA’s total number of judges from 17 to 23. As a result, he has appointed fourteen of its current members.[6]  AG Barr’s influence over the BIA has shifted its ideological make-up. Six of AG Barr’s selections are extremely unsympathetic to asylum applicants, their combined asylum grant rate for the fiscal year 2019 was 2.4%, compared to the average grant rate of 29% for all non-BIA immigration judges during the same time period.[7] Two of his six appointments did not issue a single grant of asylum during 2019.[8]

But appointing extremists to the BIA was not enough, AG Barr also changed EOIR rules to expand his and the BIA’s ability to assert influence over the outcome of immigration cases.[9] One rule allows the AG to unilaterally order a BIA-issued decision to become precedent, whereas the prior rule required the BIA to vote on whether to publish a decision and thereby create precedent. Another rule requires federal courts hearing appeals from a BIA decision to assume the BIA properly reviewed all issues in a case, even if the BIA’s decision did not explicitly address an issue. Last, a third rule allows the BIA to decide issues that neither party has raised on appeal.

While the future administration can reverse the regulatory changes described above, doing so will require wrangling and litigation as the new rules are already being applied to current cases. Furthermore, in response to AG Barr’s overhaul of the BIA’s members, the new administration could act in kind and demote Trump’s appointees. But such a move entrenches the politization of the courts and diminishes the long-term stability of the system.

A third wave of administrative rule changes occurred at the immigration court level. In 2018, AG Jeff Sessions introduced a rule that stripped judges of their discretion to terminate cases that were unlikely to result in removal.[10] While President Trump was pushing for expeditious resolution to cases, the rule change had the opposite effect. Where there was already a backlog of 500,000 immigration cases when Trump took office, the number is now over 1.2 million. Also in 2018, the EOIR introduced a production quota that requires immigration judges to complete 700 cases per year, or else earn a “needs improvement” grade on their job performance review.[11] This workplace bind has pushed many judges into early retirement and has opened the door for President Trump to appoint a record number of immigration judges,[12] most of whom are diametrically opposed to asylum.[13]

There are calls for an autonomous Article I immigration court system that would include safeguards to prevent Trump-like manipulation in the future.[14] However, the creation of such a court is unlikely in the short-term given the split control over the houses of Congress. This does, however, remain a worthwhile long-term goal.

In the short-term, if a President Biden wants to both relieve the backlog of cases at the EOIR and restore access to asylum, he must systematically dismantle the Trump administration’s changes. This should include the use of certification and the demotion of AG Barr’s appointments to the BIA. Not doing so is an unacceptable concession of power. Trump has destroyed the bipartisan norms of the federal government’s administrative state by politicizing its every mechanism. With the playing field fundamentally redefined, bold moves are necessary beyond simply doubling the number of immigration judges.

[1] https://joebiden.com/immigration/#

[2] https://www.migrationpolicy.org/article/backlogged-us-immigration-courts-breaking-point

[3] https://www.washingtonpost.com/immigration/2020/03/05/william-barr-certification-power/

[4] https://cis.org/Arthur/AG-Certification-Explained

[5] https://www.rollcall.com/2020/06/09/doj-reassigned-career-members-of-board-of-immigration-appeals/

[6] https://www.justice.gov/eoir/board-of-immigration-appeals-bios

[7] https://gen.medium.com/trump-appointed-immigration-judges-have-become-his-robed-enforcers-670759dd633

[8] Id.

[9] https://yubanet.com/usa/new-eoir-rule-expands-powers-of-the-board-of-immigration-appeals-and-ag-barr/

[10] https://immigrationimpact.com/2018/09/26/sessions-limits-immigration-judges-deportation-cases/#.X8fEWi9h13k

[11] https://apnews.com/article/3b1f1f09171141b5b99dece73afbf202

[12] https://thehill.com/changing-america/well-being/mental-health/480165-immigration-judges-are-retiring-and-quitting-early

[13] https://www.themarshallproject.org/2020/11/23/biden-will-try-to-unmake-trump-s-immigration-agenda-it-won-t-be-easy

[14] https://www.justsecurity.org/73337/the-urgent-need-to-restore-independence-to-americas-politicized-immigration-courts/

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