Academic journal article Harvard Law Review

Immigration Law - Administrative Adjudication - Third and Seventh Circuits Condemn Pattern of Error in Immigration Courts

Academic journal article Harvard Law Review

Immigration Law - Administrative Adjudication - Third and Seventh Circuits Condemn Pattern of Error in Immigration Courts

Article excerpt

IMMIGRATION LAW--ADMINISTRATIVE ADJUDICATION--THIRD AND SEVENTH CIRCUITS CONDEMN PATTERN OF ERROR IN IMMIGRATION COURTS.--Wang v. Attorney General, 423 F.3d 260 (3d Cir. 2005), and Benslimane v. Gonzales, 430 F.3d 828 (7th Cir. 2005).

U.S. immigration courts are in crisis. As the most visible sign of the emergency, appeals of immigration decisions have swollen in the past five years from three percent to eighteen percent of all federal appeals. (1) Figure 1 shows the dramatic increase after decades of stability.


Recently, courts of appeals have declared that this surge in quantity has been driven by a crisis in the quality of immigration courts. In Benslimane v. Gonzales, (3) Judge Posner calculated that the Seventh Circuit reversed the immigration courts' decisions forty percent of the time. (4) He concluded that "the adjudication of [immigration] cases at the administrative level has fallen below the minimum standards of legal justice." (5) In Wang v. Attorney General, (6) Judge Fuentes of the Third Circuit similarly condemned "[a] disturbing pattern of [immigration judge] misconduct" (7) in which, for example, an "extraordinarily abusive" judge ordered an asylum seeker deported to a country where she had been held as a sex slave and faced the possibility of continued slavery and rape. (8) In January 2006, Attorney General Alberto Gonzales responded to the controversy by ordering "a comprehensive review" of America's immigration courts. (9)

The courts' condemnation and the Attorney General's review raise the important question of what can be done to repair the system. The problem of bad immigration decisions was created by conditions among immigration judges; was magnified by changes to the Board of Immigration Appeals (BIA), which oversees those judges; and may be further exacerbated by measures to limit circuit court review. Because U.S. law commits immigration decisions to the political branches, the solution to these problems must be political. The political will for change can best be realized by a national campaign to expose the worst immigration judges and use their abuses to motivate reform.

The crisis identified by circuit judges is that immigration courts are getting too many decisions wrong. The cases depict a system handicapped by both error and abuse, failing in its responsibility to apply the law. The Third Circuit recently reviewed a case in which two immigrants petitioned for asylum, claiming that they feared persecution after their family businesses were twice burned down by groups trying to kill Chinese and Christian people in Indonesia. (10) While one asylum seeker was being cross-examined, the immigration judge interjected:

   You have no right to be here. All of the applicants that are
   applying for asylum have no right to be here.... You have to
   understand, the whole world does not revolve around you and the
   other Indonesians that just want to live here because they enjoy
   the United States better than they enjoy living in Indonesia. (11)

The immigration judge ordered the asylum seekers deported. (12) When they protested that the judge's biased conduct violated their right to due process, the BIA affirmed. (13) The court of appeals vacated these decisions, holding that the immigration judge had derogated his "responsibility to appear neutral and impartial." (14)

Three months earlier, the Third Circuit reversed a decision by the same immigration judge. (15) In that case, a woman from Ghana sought asylum, claiming that she had fled to the United States to escape years of brutal sex slavery. (16) As she tried to describe the experience of being raped as a seven-year-old, the judge became impatient:

   I don't like it when someone beats around the bush, okay,
   when they don't answer me. Another thing I don't like is
   when somebody makes sounds as if their [sic] crying and
   their eyes stay dry, all right. … 
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