Academic journal article St. John's Law Review

Agency Indiscretion: Judicial Review of the Immigration Courts

Academic journal article St. John's Law Review

Agency Indiscretion: Judicial Review of the Immigration Courts

Article excerpt


For many immigrants, becoming a permanent resident of the United States is a difficult process. Although the United States allowed virtually unrestricted immigration during its first one hundred years, federal legislation passed since then has limited immigrants' ability to become United States citizens.1 Despite the restrictions placed on immigration by federal law, the United States remains a beacon of hope to many immigrants who flee from persecution endured in their home countries.2

People who fear persecution in their homelands and seek protection in another country such as the United States can generally be grouped into two categories: refugees and asylum seekers.3 The main distinction between these two groups is their location. Refugees appeal for protection in the United States while located in another country, whereas asylum applicants have already entered the United States when they request protection.4 This Note focuses solely on the challenges faced by asylum applicants.

Asylum applicants in the United States must show a well founded fear of persecution in their home country on the basis of their "race, religion, nationality, membership in a particular social group, or political opinion."5 This burden is difficult for asylum applicants to meet, as they frequently arrive in the United States with little proof of the dangers from which they escaped.6 As a result, asylum applicants must often rely solely on their own oral testimony to convince the immigration authorities that they meet the requirements for asylum.7

Zhen Li Iao was an asylum applicant forced to rely on her oral testimony.8 Iao, a Chinese immigrant, was denied asylum by an immigration judge who based his decision in large part on the fact that Iao did not provide documentary evidence of her membership in a religion that had been outlawed in China and whose members were subjected to government persecution.9 Iao appealed this denial to the Seventh Circuit Court of Appeals, which ultimately vacated the immigration judge's ruling and remanded the case.10 Judge Posner's opinion criticized the immigration judge in particular and the immigration courts in general for their over-emphasis on asylum applicants' lack of documentary evidence supporting their claims.11 Posner sardonically noted that an "illegal religious movement is unlikely to issue membership cards."12

The legal framework of the asylum application process is complex. Federal legislation has placed the power to regulate immigration in the hands of the executive branch, which in turn has created several agencies to control immigration in the United States.13 The Department of Justice oversees the immigration courts, the court system that must be navigated by many asylum applicants seeking to remain residents of the United States.14 Recently, the immigration judges who preside over these courts have come under fire for decisions that fail to meet the standards expected from them by the Department of Justice.15 Immigrants can appeal an immigration judge's ruling to the Board of Immigration Appeals ("BLA").16 However, this division of the Department of Justice is at the center of a recent circuit split over whether a particular type of ruling, in which the BIA affirms an immigration judge's ruling without issuing an opinion, is subject to judicial review by the circuit courts.

This Note examines the challenges faced by asylum applicants and the federal courts' disagreement about the extent to which the judicial branch can intervene in the executive branch's review of asylum applications. Part I of this Note provides an overview of the immigration court system and examines the recently alleged faults and abuses within the immigration courts. Part II examines the issue of whether the U.S. circuit courts have jurisdiction to review the decision by the appellate division of the immigration courts to affirm without opinion the ruling of an immigration judge. …

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