Legal Ethics in Immigration Matters
Question: I am in deportation proceedings. I have been in the U.S. for many years and am just trying to get by. The Immigration Judge was very rude and demeaning to me. He yelled, laughed at me and treated me very bad. I lost and then appealed the decision and got back a very cursory statement stating ‘Affirmed Without Opinion’. Is this normal?
Answer: While there are very good Immigration Judges, there are quite a few that are not treating people in deportation proceedings with dignity and respect. The Attorney General has sent a letter to all Immigration Judges(IJ) basically stating that he is displeased with the way that those IJ’s are treating the people in their courts and that they need to treat them with dignity and respect. It is a most welcome letter by the Attorney General and clearly shows that many IJ’s have abused their power.
Additionally, the Board of Immigration Appeals (BIA) has also been conducting what is known as ‘summary affirmance’ decisions whereby a single board member simply returns the decision ‘Affirmed Without Opinion’ or AWO. The Attorney General Gonzales has announced that he is launching a comprehensive review of the immigration courts, including the Board of Immigration Review is a welcome announcement.
As the decisions from Circuit Courts of Appeals demonstrate, the abbreviated AWO review carried out by a single member of the BIA has proven to be an inadequate check against even simple errors by Immigration Judges (IJ’s). As a result, seriously flawed IJ decisions are being elevated to the status of final agency decisions in removal proceedings. This result not only hurts the respondents involved in the individual cases, but has also undermined public confidence in Department of Justice judges and processes.
In July 2002, the Department of Justice adopted final regulations that restructured and streamlined the appeals process before the BIA, and included an enhanced “affirmance without opinion” procedure. This procedure allows a single Board member to affirm an IJ decision without opinion. For purposes of federal court review, the AWO process elevates the IJ decision to the status of the final agency decision to be reviewed. Consequently, federal courts are now directly reviewing IJ decisions, where previously there would have been a BIA decision and rationale for the court to review.
Increasingly, courts are reversing immigration decisions due to seriously flawed IJ decisions. For example, the Seventh Circuit recently calculated that it reversed the Board in a “staggering 48%” of the petitions for review that were decided on the merits in the preceding twelve months. Noting that its criticisms of the BIA and the IJ’s have “frequently been severe,” the Seventh Circuit also stated: The 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 immigration cases at the administrative level has fallen below the minimum standards of legal justice. … 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 … The power of correction lies in the Department of Homeland Security, which prosecutes removal cases, and the Department of Justice, which adjudicates them.
The Seventh Circuit is not alone in its criticisms, as a number of other courts also have expressed concern over the increasing number of below-standard decisions of IJ’s that they are now forced to review. There was a finding that the IJ exhibited “an arbitrary exercise of judicial fiat at the expense of a powerless alien whom the DHS had already found to have a credible fear of returning to his home country. Other cases have found that the IJ’s credibility determination was based upon impermissible “personal notions,” “untenable conclusions,” and “speculation or conjecture”
There are many additional cases in which the courts have reversed removal decisions because of basic errors by IJ’s. Were it not for the AWO procedure, these errors would likely have been remedied by the BIA when it issued its own decision in the case.
Attorney General Gonzales is bringing to the Department of Justice on these important issues.