Reforming
the Immigration
System
Proposals to Promote
Independence, Fairness,
Efficiency, and Professionalism
in the Adjudication
of Removal Cases

Executive Summary

Commission on Immigration
740 Fifteenth Street, NW
Washington, DC 20005-1022
immcenter@abanet.org

Commission on Immigration

Reforming the
Immigration System
Proposals to
Promote Independence, Fairness,
Efficiency, and Professionalism
in the Adjudication of Removal Cases

Executive Summary
Prepared by Arnold & Porter LLP for the
American Bar Association Commission on Immigration

American Bar Association
Commission on Immigration
740 Fifteenth Street, NW
Washington, DC 20005-1022
202-662-1005

The American Bar Association hereby grants permission for copies of the
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acknowledges original publication by the ABA, including the title of the
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of this publication may be reproduced, stored in a retrieval system, or
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Department of Copyrights and Contracts at: www.abanet.org/reprint.

The materials contained herein represent the opinions of the authors and
editors and should not be construed to be those of either the American Bar
Association or Commission on Immigration unless adopted pursuant to the
bylaws of the Association. Nothing contained herein is to be considered as
the rendering of legal advice for specific cases, and readers are responsible
for obtaining such advice from their own legal counsel. These materials and
any attachments or related materials herein are intended for educational
and informational purposes only.

Printed in the United States of America

ISBN 1-60442-772-8
© American Bar Association 2010
All rights reserved

Acknowledgements
The American Bar Association Commission on Immigration is sincerely grateful to Arnold &
Porter LLP for developing and writing this report on a pro bono basis over the course of more
than one year. More than fifty volunteer attorneys and staff in Arnold & Porter’s offices in
Washington, D.C., New York, Denver, Los Angeles, and San Francisco, devoted thousands of
hours to researching the Department of Justice’s Executive Office for Immigration Review,
federal courts of appeals, Article I courts, administrative agencies, and the Department of
Homeland Security to develop the recommendations in this report. They interviewed countless
government officials, judges, immigration law practitioners, and other experts and met
extensively with the Commission during the research and drafting process. We are humbled by
the tremendous level of work that was invested in this report and deeply appreciative of the
commitment of Arnold & Porter to this endeavor, as well as the professionalism reflected in
their final product.
The study would not have been possible without the thorough, consistent, and direct leadership
of Lawrence Schneider, who guided and inspired the Arnold & Porter team throughout the
development of this study. Special appreciation is also due to Michael Lee of Arnold & Porter,
and to the other attorneys who led the research and drafting of sections of the report: Lily Lu,
William Cook, Wilson Sweitzer, Christopher Flack, Scott Morrow, and Asim Varma. On the
following page is a list of the Arnold & Porter attorneys and legal assistants who devoted
tremendous amounts of time and energy to the preparation of this study. We would also like to
thank the many individuals, experts, and stakeholders who have provided information and
guidance to the research team and the Commission.
We are grateful to members of the Commission, its Advisory Committee, and liaisons past and
present who have assisted with this effort for more than two years, and to former Commission
Chair Mark Agrast who saw to the inception of this project, as well as the Commission staff
who have offered support and shepherded the study to completion, including former
Commission Director Irena Lieberman, current Director Megan Mack, Claire Trickler-McNulty,
Anne Schaufele, Reneé Minor, and Brooke Denmark.

Karen T. Grisez
Chair, Commission on Immigration
February 2010

Arnold & Porter LLP Volunteers
The following is a list of the Arnold & Porter LLP attorneys, law clerks, and legal assistants
who devoted tremendous amounts of time and energy to the preparation of this report.

Attorneys
Zachary B. Allen
Avi M. Baldinger
Elizabeth J. Betta
Lauren R. Bittman
Meki L. Bracken
Yue-Han Chow
William E. Cook, Jr.
Damon Elder
Christopher J. Flack
Raymond Geluz
Dorothy N. Giobbe
Ken L. Hashimoto
Kristin Hicks
Jennifer L. Hogan
Eunice Y. Kang
Mark A. Kleyna
John R. Lawless
Michael A. Lee
Michael P. Lewis
Lily J. Lu
Marco Martemucci

Eric McKeown
Nicole L. Molife
Christopher S. Morrow
John L. Newby
Grace Pickering
Holly L. Prutz
Kyle P. Reynolds
Katherine A. Ross
Marian A. Saxena
Lawrence A. Schneider
Aaron S. Schur
Kathleen A. Scott
Rashmi Seth
Angela J. Showalter
Cristina M. Sorgi
Elissa Spencer
Wilson D. Sweitzer
Christine Taylor
Asim Varma
Thiruvendran Vignarajah
Craig W. Wise

Law Clerks
Solon Phillips
Carl M. Szabo
Legal Assistants
Ahmed Almudallal
Denise M. Blackburn
Laura E. Boorman
Emily L. Clark
Laura A. Dickson
Randy M. Haight
Cinthya I. Ibanez
Caroline E. Johnson
Kathryne D. Lindsey
Virginia P. Martin
Rodlena I. Sales
Sierra M. Visher
Tamar D. Zilkha

American Bar Association Commission on Immigration
Commission
Karen T. Grisez, Chair
Wafa Abdin
Katherine Anne Brady
Roxella T. Cavazos
Sara Elizabeth Dill
Marielena Hincapié
Daniel Kanstroom
Donald Kerwin
JoNel Newman
Andrew I. Schoenholtz
Margaret D. Stock
Carlina Tapia-Ruano
Kathleen C. Walker

Advisory Committee
Muneer Iftikhar Ahmad
Neil S. Dornbaum
Christina Fiflis
Robert Juceam
Dan Kowalski
Christopher V. Nugent
Anna Williams Shavers
Macarena R. Tamayo-Calabrese
Miko A. Tokuhama-Olsen
Ellen G. Yost

Table of Contents
BACKGROUND AND STUDY APPROACH ..............................................................................................................ES-3
The ABA Commission on Immigration .......................................................................................................................ES-3
Arnold & Porter LLP .....................................................................................................................................................ES-3
Structure and Focus of This Study................................................................................................................................ES-4
SUMMARY OF FINDINGS ..........................................................................................................................................ES-5
SUMMARY OF RECOMMENDATION FOR SYSTEM RESTRUCTURING............................................................ES-9
SUMMARY OF OTHER RECOMMENDATIONS....................................................................................................ES-11
Summary of Other Key Recommendations Requiring Legislation .................................................................ES-11
Summary of Other Key Recommendations Not Requiring Legislation..........................................................ES-13
Issues Not Addressed ..........................................................................................................................................ES-15
SUMMARY OF THE SIX PARTS OF THIS STUDY...................................................................................................ES-17
PART 1: DEPARTMENT OF HOMELAND SECURITY ....................................................................................ES-19
A. Overburdening the Removal Adjudication System Without Adequate Resources ...................................ES-19
B. Coordination Problems in DHS.....................................................................................................................ES-21
C. Unfair Laws that Burden the Adjudication System .....................................................................................ES-21
1. Adjustments to Lawful Permanent Resident Status ...............................................................................ES-21
2. Removal of Noncitizens Convicted of Aggravated Felonies ..................................................................ES-22
3. Removal of Noncitizens Convicted of Crimes Involving Moral Turpitude ...........................................ES-22
D. Increasing Reliance On Administrative and Expedited
Removal Proceedings, with Insufficient Oversight......................................................................................ES-23
1. Administrative Removal of Persons Convicted of Aggravated Felonies................................................ES-24
2. Expedited Removal of Persons Apprehended at the Border or within the United States ...................ES-24
E. DHS Detention Policies that Create Problems for the Removal Adjudication System.............................ES-25
PART 2: IMMIGRATION JUDGES AND IMMIGRATION COURTS ..............................................................ES-27
A. Systemic Issues ...............................................................................................................................................ES-27
B. Specific Issues and Recommendations .........................................................................................................ES-28
1. Large Caseloads and Inadequate Resources ...........................................................................................ES-28
2. Insufficient Training and Professional Development..............................................................................ES-28
3. Problems with Selection and Qualification of Immigration Judges ......................................................ES-29
4. Inadequate Supervision and Discipline ...................................................................................................ES-29
5. Tenure, Retention, and Removal of Immigration Judges ........................................................................ES-29
6. Problems with Immigration Court Proceedings .....................................................................................ES-30
PART 3: BOARD OF IMMIGRATION APPEALS ............................................................................................ES-31
A. Issues and Recommendations Relating to Streamlining Reforms .............................................................ES-32
1. Single-Member Review ............................................................................................................................ES-32

REFORMING THE IMMIGRATION SYSTEM | ES-1

2. Lack of Detailed Decisions .......................................................................................................................ES-32
3. Standard of Review ...................................................................................................................................ES-32
4. Lack of Precedent ......................................................................................................................................ES-32
5. Impact on Courts of Appeals ....................................................................................................................ES-33
6. Time Limits.................................................................................................................................................ES-33
B. Other Issues and Recommendations ............................................................................................................ES-34
1. Limited Resources, Training, and Disciplinary Mechanisms..................................................................ES-34
2. Lack of Independence...............................................................................................................................ES-34
PART 4: JUDICIAL REVIEW BY CIRCUIT COURTS ......................................................................................ES-35
A. General Problems and Approach to Recommendations.............................................................................ES-35
B. Specific Issues and Recommendations ........................................................................................................ES-36
1. Unreviewable Discretion...........................................................................................................................ES-36
2. Barriers to Fact Finding .............................................................................................................................ES-36
3. Deadline for Filing A Petition for Review ................................................................................................ES-37
PART 5: REPRESENTATION ..........................................................................................................................ES-39
A. Right to Representation .................................................................................................................................ES-40
B. Sources of Representation..............................................................................................................................ES-41
1. Legal Orientation Program.......................................................................................................................ES-41
2. Recognized Agencies.................................................................................................................................ES-41
3. Pro Bono Program .....................................................................................................................................ES-41
C. Quality of Representation..............................................................................................................................ES-42
1. Pro Bono Service Providers List ...............................................................................................................ES-42
2. Unaccredited Representatives (Notarios)................................................................................................ES-42
3. Attorney Discipline....................................................................................................................................ES-42
PART 6: SYSTEM RESTRUCTURING.............................................................................................................ES-43
A. Goals of Restructuring ...................................................................................................................................ES-43
B. The Case for Restructuring.............................................................................................................................ES-43
C. Options Considered .......................................................................................................................................ES-44
D. Comparative Analysis ....................................................................................................................................ES-46
1. Independence ............................................................................................................................................ES-47
2. Perceptions of Fairness..............................................................................................................................ES-47
3. Quality of Judges and Professionalism ....................................................................................................ES-47
4. Efficiency: Relative Cost and Ease of Administration.............................................................................ES-47
5. Accountability ............................................................................................................................................ES-47
6. Impact on Article III Courts ......................................................................................................................ES-47
E. Choice Among Options..................................................................................................................................ES-47
F. Transitional Measures......................................................................................................................................ES-48
Endnotes ......................................................................................................................................................................ES-49
Table ES-1: Summary of Recommendations .............................................................................................................ES-54
Table ES-2: Features of Major Restructuring Systems..............................................................................................ES-68
Table ES-3: Comparison of Major Restructuring Options .......................................................................................ES-71

ES-2 | REFORMING THE IMMIGRATION SYSTEM

Background and
Study Approach
This study provides a comprehensive review of the
current system for determining whether a noncitizen
should be allowed to stay in the country or should be
deported or removed from the United States. The
study seeks to determine how well various aspects of
the existing system are working and identifies reforms
that could improve the system.

The ABA Commission on Immigration
The American Bar Association (“ABA” or
“Association”) is a voluntary, national membership
organization of the legal profession. Its more than
400,000 members, from each state and territory and the
District of Columbia, include prosecutors, public
defenders, private lawyers, legislators, law professors,
law enforcement and corrections personnel, judicial
officers, government attorneys, law students, and a
number of non-lawyer associates in allied fields.
The ABA’s Commission on Immigration (the
“Commission”) leads the Association’s efforts to
ensure fair treatment and full due process rights for
immigrants and refugees within the United States.
Acting with other Association entities, as well as
governmental and non-governmental bodies, the
Commission:
(1) advocates for statutory and regulatory
modifications in law and governmental practice
consistent with ABA policy;
(2) provides continuing education and timely
information about trends, court decisions, and
pertinent developments for members of the legal
community, judges, affected individuals, and the public;
and
(3) develops and assists the operation of pro bono
programs that encourage volunteer lawyers to provide
high quality, effective legal representation for
individuals in immigration proceedings, with a special

emphasis on the needs of the most vulnerable
immigrant and refugee populations.
The ABA has issued policy recommendations on
many issues relating to immigration, not limited to the
issues addressed in this Study. Those policy positions
are available on the ABA website. Some of these issues
include supporting comprehensive immigration reform
that fairly and realistically addresses the U.S.
undocumented population, the need for immigrant
labor, the value of timely family reunification, and the
need for an effective and credible immigration strategy;
strengthening the DHS Immigration and Customs
Enforcement detention standards, adopting them as
regulations, and ensuring they apply to all noncitizens
who are detained for immigration purposes; supporting
due process and access to legal assistance for
individuals arrested or detained in connection with
immigration enforcement actions; and supporting
enabling a U.S. citizen or permanent resident to
sponsor a same sex partner for permanent residence in
the United States.

Arnold & Porter LLP
In August 2008, the ABA Commission on
Immigration requested Arnold & Porter LLP to
research, investigate, and prepare this study
concerning issues and recommendations for reforms
to the United States adjudication system for the
removal of noncitizens (the “Study”).
Arnold & Porter LLP (“Arnold & Porter”) is a
large, international law firm with about 700 lawyers in
eight offices in the United States and Europe practicing
in more than 25 distinct areas of the law and
conducting business on six continents. Arnold &
Porter represents small and large companies,
governments, and individuals in the United States and
around the world, and, through its pro bono program,
represents nonprofit entities and disadvantaged

REFORMING THE IMMIGRATION SYSTEM | ES-3

individuals, including noncitizens in removal
proceedings and a variety of other immigration
matters.
Over the course of more than one year, more
than 50 Arnold & Porter lawyers and legal assistants
participated in the research, investigation, and
preparation of this Study. All of them participated
pro bono. As the ABA Commission on Immigration
directed, the Arnold & Porter team approached the
project without preconceived notions or conclusions
and sought information and views from all sources
and sides.

(2) What steps could be taken within the existing
structure to improve the removal adjudication system?
(3) Should the current overall structure of the removal
adjudication system be changed and, if so, how?
To answer these questions, this Study reviews the
problems that have been identified by attorneys, judges,
advocacy groups, academics, and others and provides
recommendations for addressing those problems.
In formulating recommendations, our goals are to:
•

Goal 1: Make immigration judges at both the trial
level and the appellate level sufficiently
independent, with adequate resources, to make
high-quality, impartial decisions free from any
improper influence;

•

Goal 2: Ensure fairness and due process and the
perception of fairness by participants in the system;

•

Goal 3: Promote efficient and timely decision
making without sacrificing quality; and

•

Goal 4: Increase the professionalism of the
immigration judiciary.

Structure and Focus of This Study
To conduct this Study, Arnold & Porter divided its team
into subgroups that focused on the issues relating to
the four major government entities involved in the
process:
(1) the Department of Homeland Security (“DHS”);
(2) immigration judges and the immigration courts;
(3) the Board of Immigration Appeals (“BIA”); and
(4) the federal circuit courts that review BIA decisions.
In addition, two other subgroups focused on issues that
affect the overall system:
(5) representation in removal proceedings; and
(6) system restructuring.

The questions asked by the Arnold & Porter team
included:
(1) What are the problems with the current removal
adjudication system?
•

Does the existing system provide fair decision
making and due process to those who become
subject to the system?

•

Does the existing system provide efficient and
timely decision making?

•

Do those who are involved in the removal
adjudication process (DHS officials, immigration
judges, BIA Members, and others) have a
sufficiently high level of professionalism?

ES-4 | REFORMING THE IMMIGRATION SYSTEM

Arnold & Porter lawyers and legal assistants
gathered and reviewed hundreds of articles, reports,
legislative materials, and other documents, and
conducted scores of interviews with participants in the
removal adjudication system — attorneys, judges,
advocacy groups, academics, and others — to gather
views from all perspectives concerning the existing
problems in the system and to identify possible
solutions.
Those who were interviewed generally were told
that their comments may be used in preparing the Study
and that some of their comments might be included in
the Study without specific attribution, but that a
particular quote or the substance of a comment would
not be directly attributed without the interviewee’s
approval. We thank all of those who spoke with the
Arnold & Porter team and provided materials and
information in connection with this Report.
In this Executive Summary, we summarize our key
findings and recommendations. In the full Report, we
set out our Report in full, with extensive background
information, identification and discussion of the issues,
and our analysis and recommendations for reform.

Summary of Findings
The history of the development of the removal
adjudication system in the United States has taken
various twists and turns over the last few decades. The
pressures on the system have grown exponentially as
the number of people trying to enter and stay in the
United States has increased and as political forces and
security concerns have resulted in heightened efforts to
stem the flow and remove undocumented noncitizens
from the country.
The U.S. removal adjudication system involves four
major U.S. Government entities:
•

•

Today, the removal adjudication system handles
several hundred thousand matters annually,
overwhelming the resources that have been dedicated
to the tasks of determining whether undocumented
noncitizens in immigration proceedings should be
removed from the United States and sent back to their
home countries or elsewhere. The numbers are
staggering:
•

- apprehended at least 791,568 deportable
noncitizens;1

The Department of Homeland Security enforces
U.S. immigration law; initiates removal
proceedings; adjudicates expedited and other
administrative removals, affirmative asylum
applications, and immigration benefit applications;
makes “credible fear” and “reasonable fear”
determinations; prosecutes removal proceedings in
the immigration courts; manages the immigration
detention system; and effects removals of
noncitizens;
Under the auspices of the Executive Office for
Immigration Review (“EOIR”) in the Department of
Justice, the 57 immigration courts and 231
immigration judges on those courts handle removal
hearings, asylum petitions, bond redeterminations
for noncitizens held in detention, and reviews of
“credible fear” and “reasonable fear”
determinations, among others;

•

Also under EOIR, the Board of Immigration
Appeals reviews decisions by the immigration
courts; and

•

The federal circuit courts of appeals review
petitions appealing from the decisions by the Board
of Immigration Appeals.

In fiscal year 2008, DHS officers:

- initiated 291,217 removal proceedings in the
immigration courts against noncitizens by
issuing Notices to Appear;2
- detained 378,582 noncitizens;3 and
- effected the removal of 358,886 noncitizens,
including the expedited removal of 113,462
noncitizens.4
• The immigration courts complete more than 280,000
proceedings each year — an average of 1,243
proceedings per year for each immigration judge.
•

The Board of Immigration Appeals decides more
than 30,000 appeals each year.

•

More than 10,000 appeals from BIA decisions were
filed in 2008 with the federal circuit courts. Over
the past 5 years, these cases have represented
about 17% of all the cases handled by those courts.
In the circuits with the largest immigration
dockets — the Second and Ninth Circuits —
appeals from BIA decisions have comprised 35% to
40% of the entire caseload.

But the numbers tell only part of the story, and
they tell it in a statistical, impersonal way that hides the
many hundreds of thousands of individual lives that

REFORMING THE IMMIGRATION SYSTEM | ES-5

are affected, directly and indirectly, by how well the
immigration removal adjudication system works or
does not work. A sampling of recent newspaper
headlines gives a sense of the impact on individuals:
•

Fast-track Deportations Concern Immigration
Attorneys, Advocates5

•

Immigration Courts Face Huge Backlog6

•

In City of Lawyers, Many Immigrants Fighting
Deportation Go It Alone7

•

Immigrants Face Long Detention, Few Rights8

•

ICE Locks ‘Em Up, Throws Away Key9

•

ICE Slow to Deport Detained: Illegal Immigrants From
Va. Victims of ‘Broken’ System10

•

Immigrant Detention System Ensnares American
Citizens11

•

Amnesty International Lambastes U.S. for Treatment of
Immigrant Detainees.12

•

A dramatic expansion of the grounds for removing
noncitizens based on “aggravated felony”
convictions;

•

The removal of lawful permanent residents based
upon misdemeanor convictions for offenses found
to be crimes involving moral turpitude, even where
no jail sentence was imposed;

•

Increasing reliance by DHS, without oversight by
immigration courts, on administrative proceedings
to remove noncitizens who are not lawful
permanent residents on the ground of alleged
“aggravated felony” convictions and expedited
removal proceedings for persons apprehended at
the border or within the United States;

• Barriers preventing noncitizens eligible for lawful
permanent resident status from adjusting to such
status while in the United States, coupled with
statutory bars to re-entering the country even if they
leave to attain such status through consular
processing;

The following key findings and conclusions of
the Study are based on extensive fact-gathering and
analysis.

•

The initiation of removal proceedings against
noncitizens who are prima facie eligible to adjust to
lawful permanent resident status; and

1. Department of Homeland Security: DHS policies
and procedures, along with some substantive provisions of immigration law, have contributed to an exploding caseload that has overwhelmed the removal
adjudication system. Other DHS policies and procedures have failed to ensure due process for noncitizens and have served to decrease confidence and trust
in the adjudication system. We found, among other
things:
• An enormous expansion of immigration
enforcement activity and resources, which has not
been matched by a commensurate increase in
resources for the adjudication of removal cases;

•

Growth in the number of individuals detained by
DHS, many of whom are housed in detention
facilities far from their homes, families, and, in
some cases, their legal counsel and other resources
needed to defend themselves.

•

Insufficient use by DHS officers and attorneys of
prosecutorial discretion that could reduce the
number of cases entering the removal adjudication
system and the number of issues litigated;

•

Coordination problems within DHS leading to
inconsistent positions taken by different
components of DHS on asylum and other issues;

ES-6 | REFORMING THE IMMIGRATION SYSTEM

2. Immigration Courts: The existing immigration
courts are not doing as good a job as they should in
providing fair decision making and due process to
those who become subject to the system and in providing efficient and timely decision making by highly
qualified and well-trained professionals. We found,
among other things:
• Significant disparities in the rates at which
immigration judges grant favorable decisions to
respondents, even among judges on the same court
and for cases involving nationals from the same
country. This means respondents’ chances of
success are highly dependent upon the judges
before whom they appear rather than on the merits
of their cases;

•

Public skepticism and a low level of respect for the
immigration court process, stemming at least in
part from the courts’ lack of independence from the
Department of Justice;

•

Shortages of resources for the immigration courts,
including too few immigration judges and support
staff, including law clerks;

•

With these shortages, insufficient time for
immigration judges to adequately consider each
case, resulting in the issuance of predominantly oral
decisions that are not fully researched and lack
sufficient bases in law or fact;

•

Problems with the hiring, tenure, retention, and
process of removing immigration judges;

•

Too many judges who display bias and/or
intemperate behavior on the bench;

•

High levels of stress and burnout experienced by
immigration judges;

•

Lengthy delays in appointing additional
immigration judges and deficiencies in the vetting
process for appointing new judges;

•

Problems with courtroom technology; and

•

Increasing use of videoconferencing in ways that
may undermine the fairness of proceedings.

3. Board of Immigration Appeals: The 1999 and 2002
BIA “streamlining” reforms significantly reduced the
backlog of unresolved appeals and improved the
efficiency of the BIA, but this increased efficiency was
accomplished by largely eliminating three-member
panels and greatly reducing the number of substantive
written decisions. Streamlining also led to a seven-fold
increase (from 2001 to 2006) in the number of appeals
to the circuit courts (mostly in the Second and Ninth
Circuits) and scathing criticism by a number of circuit
judges with respect to decisions by the BIA and
immigration judges. There have been some recent
improvements in the Board’s processes, but the
reputation of the Board remains poor. Studies show
that the Board has not been able to eliminate
unsupportable disparities among immigration judge
decisions. Furthermore, studies suggest that singlemember review and affirmances without opinion result
in decisions that unduly favor the government at the
expense of the noncitizen.

4. Judicial Review by Circuit Courts: An inordinate
amount of time is spent by the courts of appeals
determining the scope of their own jurisdiction, due to
the increasing complexity of immigration laws and
greater limitations on judicial review (including
restrictions on reviewing “discretionary” decisions).
The judicial review of removal orders has not become
more efficient or just. Instead, there is more confusion
and there are more traps for unwary and unrepresented
noncitizens.
5. Representation: More than half of respondents in
removal proceedings, and 84% of detained
respondents, do not have representation. The lack of
adequate representation diminishes the prospects of
fair adjudication for the noncitizen, delays and raises
the costs of proceedings, calls into question the fairness
of a convoluted and complicated process, and exposes
noncitizens to the risk of abuse and exploitation by
“immigration consultants” and “notarios.” A study has
shown that whether a noncitizen is represented is the
“single most important factor affecting the outcome of
an asylum case.”13
6. System Restructuring: Concerns about the lack of
independence of immigration judges and the BIA, as
well as perceptions of unfairness toward noncitizens,
have spawned proposals to separate these tribunals
from the Department of Justice. These concerns have
been exacerbated in the past decade by the exploding
caseload, the BIA streamlining reforms, politicized
hiring of immigration judges and removal of BIA
Members, and the dramatic increase in appeals to the
federal circuit courts. An independent body
responsible for adjudicating immigration removal cases
is also needed to make the immigration judiciary more
professional and to improve the efficiency of the
system.
We turn now to a summary of our
recommendations for addressing these issues.

REFORMING THE IMMIGRATION SYSTEM | ES-7

Summary of Recommendation
for System Restructuring
While we provide many recommendations for
incremental changes to the immigration removal
adjudication system at each stage of the process, we
also have considered major structural changes that
would make the system independent of any existing
executive branch department or agency. These changes
would address widespread concerns regarding both
political independence and adjudicatory fairness, while
promoting greater efficiency and professionalism
within the immigration judiciary.
In light of the serious issues facing the current
immigration adjudication system for removing
noncitizens, and based upon our review of various
existing adjudication models in other parts of the
federal government, we have considered three basic
restructuring options:
1. Article I Court: An independent Article I court
system to replace all of EOIR (including the
immigration courts and the Board of Immigration
Appeals), which would include both a trial level and an
appellate level tribunal;
2. Independent Agency: A new executive
adjudicatory agency, which would be independent of
any other executive department or agency, replace
EOIR, and contain both trial level administrative judges
and an appellate level review board; and
3. Hybrid: A hybrid approach placing the trial level
adjudicators in an independent administrative agency
and the appellate level tribunal in an Article I court.
While all three options have significant advantages
over the current system, after careful consideration, we
do not recommend the hybrid option since it is too
complex and too costly relative to the other two
options. The remaining two options are both excellent
and offer vast improvements over the current system.
Both offer greater independence, fairness and
perceptions of fairness, professionalism, and efficiency
than the current system. The Article I court has been

selected as the preferred restructuring option, with the
independent agency option being a close second
choice. The Article I model is likely to be viewed as
more independent than an agency because it would be
a wholly judicial body, is likely, as such, to engender the
greatest level of confidence in its results, can use its
greater prestige to attract the best candidates for
judgeships, and arguably offers the best balance
between independence and accountability to the
political branches of the federal government.
An Article I court for the entire immigration
adjudication system would include an Appeals Division
and a Trial Division. The leadership of the court would
include a Chief Appellate Judge and Chief Trial Judge.
The President would appoint the Chief Appellate Judge
and other appellate judges, the Chief Trial Judge, and
possibly Assistant Chief Trial Judges, with the advice
and consent of the Senate.14 The other trial judges
would be appointed by the Chief Trial Judge or by the
Assistant Chief Trial Judge responsible for the court in
which the vacancy exists (subject to approval of the
Chief Trial Judge).
The appellate and trial judges would be selected
from among persons screened and recommended by a
Standing Referral Committee. The Committee would
include the Chief Appellate Judge, the Chief Trial Judge,
the two most senior ranking members of the Appellate
Division, and the three most senior ranking Assistant
Chief Trial Judges. Other stakeholders (e.g., DHS, DOJ,
and academic and immigration bar groups) would be
represented on the Committee or have an opportunity
to comment on candidates before they were
recommended for appointment.
The minimum qualifications of candidates would
require that each judge at both the trial and appellate
levels be a United States citizen and a member of the
bar of any state, the District of Columbia, the
Commonwealth of Puerto Rico, or a United States
territory, and have a minimum number of years of
experience as a licensed attorney or judge involved in

REFORMING THE IMMIGRATION SYSTEM | ES-9

litigation or administrative law matters at the federal,
state or local level (e.g., five years for trial judges and
seven years for appellate judges). In selecting
nominees, the Standing Referral Committee would
give particularly strong consideration to candidates
who possess a minimum period of experience in the
field of immigration law (e.g., five years for trial judges
and seven years for appellate judges). Such
immigration law experience, however, would not be an
absolute requirement, since the goal is to attract
lawyers of the highest caliber with the appropriate
temperament and demeanor, not necessarily
immigration lawyers as such.
Fixed terms would be established for judges at
both the trial and appellate levels. The terms would be
relatively long like those of Article I judges in other
courts, although the terms could be longer for the
appellate judges than for the trial level judges. For
example, the terms could be 8 to 10 years for trial
judges and 12 to 15 years for appellate judges. The
judges would be removable by the appointing party
only for incompetency, misconduct, neglect of duty,
malfeasance, or physical or mental disability.
Each trial judge would be supervised by the
Assistant Chief Trial Judge responsible for the local

ES-10 | REFORMING THE IMMIGRATION SYSTEM

court on which the judge served. Each appellate judge
would be supervised by the Chief Appellate Judge. As
Article I judges, neither the trial nor appellate judges
would be subject to comprehensive performance
reviews of the type used for civil service employees.
However, their performance would be reviewed using a
system based on the ABA’s Guidelines for the
Evaluation of Judicial Performance and the model for
judicial performance evaluation proposed by the
Institute for Advancement of the American Legal
System. The performance review system would stress
judicial improvement and could not be used for
purposes of discipline.
The judges on the Article I court would be subject
to a code of ethics and conduct based on the ABA
Model Code of Judicial Conduct, tailored as necessary
to take into account any unique requirements for the
immigration judiciary. For alleged violations, they
would be subject to a complaint and disciplinary
procedure similar to what is used for other federal
judges. Under this procedure, all complaints would be
made directly to a reviewing body established
specifically for this purpose. The complaints would
bypass persons in the chain of supervision.

Summary of Other
Recommendations
Whether or not overall structural changes are
made, there are many steps that should be taken
within the existing structure to improve the removal
adjudication system. Many of these steps could be
taken by the relevant agencies under existing law, while
other steps would require new legislation. A
comprehensive list of our recommendations appears in
Table ES-1 at the end of this Executive Summary. The
following summary describes the higher priority
recommendations.

Summary of Other Key Recommendations
Requiring Legislation
Some of the recommended steps would require
legislation, including the following:
1. Request additional immigration judges. In order
to bring the caseload down to a level roughly on par
with the number of cases decided each year by judges
in other federal administrative adjudicatory systems
(around 700 cases per judge annually), we recommend
hiring approximately 100 additional immigration
judges as soon as possible, but at least within the next
three to four years. We also recommend hiring enough
law clerks to increase the current ratio of one law clerk
per four judges to one law clerk per judge, and
increasing the number of support personnel in order to
serve the larger number of judges.
2. Permit all eligible noncitizens to adjust to lawful
permanent resident status while in the United
States, or eliminate bars to reentry. Generally,
undocumented noncitizens who are otherwise eligible
to become lawful permanent residents can adjust their
status only by applying for an immigrant visa at a U.S.
consulate outside the United States. However, if a
noncitizen leaves the country in order to do this after
being unlawfully present in the United States for a
certain period of time since April 1, 1997, he or she is

subject to bars on returning to the United States. To
encourage eligible noncitizens to legalize their status,
they should be allowed to do this while remaining in
the United States. Alternatively, the bars on reentry for
noncitizens who have accrued unlawful presence in the
United States should be eliminated so such noncitizens
can become lawful permanent residents by consular
processing their applications outside of the United
States. This legislative change would reduce the
number of noncitizens who are subject to removal
proceedings and thereby ease some of the burden on
the removal adjudication system.
3. Amend the definition of “aggravated felony”
and eliminate the retroactive application of the
aggravated felony provisions in our immigration
law. The definition of “aggravated felony” has
progressively expanded and currently is so broad that
DHS has initiated removal proceedings against persons
convicted of misdemeanors and other minor crimes.
This has burdened the removal adjudication system.
The retroactive application of the aggravated felony
provisions also has burdened the system, is unfair, and
results in the removal of noncitizens with longstanding
ties to the United States. Accordingly, the definition of
“aggravated felony” should be amended to require that
any conviction must be of a felony and that a term of
imprisonment of more than one year must be imposed
(excluding any suspended sentence); and the
retroactive application of the aggravated felony
provisions should be eliminated.
4. Curtail the use of the administrative removal
process by which DHS officers may order the
removal of noncitizens who have been convicted of
“aggravated felonies” and are not lawful
permanent residents. The expanded definition of
“aggravated felony” has been accompanied by the
greatly increased use of administrative procedures,
without recourse to the immigration courts, to remove

REFORMING THE IMMIGRATION SYSTEM | ES-11

noncitizens convicted of “aggravated felonies” who are
not lawful permanent residents. Given the absence of
administrative or judicial review and other procedural
due process protections such as an evidentiary hearing,
this procedure is contrary to current ABA policy. In
furtherance of this policy, such proceedings should be
eliminated at least for minors, the mentally ill,
noncitizens who claim a fear of persecution or torture
upon return to their countries of origin, and
noncitizens with significant ties to the United States
(such as those who are married to U.S. citizens or
lawful permanent residents, have children who are U.S.
citizens or lawful permanent residents, or have served
in the U.S. military). Any noncitizen subjected to the
administrative removal process should have the right to
a review by the immigration courts of a determination
that the conviction was for an aggravated felony and
that he or she is not in any of these protected
categories.
5. Curtail the use of expedited removal for
noncitizens apprehended at the border or within
the United States by: (1) eliminating expedited
removal for individuals who are already in the
United States, unaccompanied minors, and the
mentally ill; (2) permitting DHS officers to issue
expedited removal orders only if they determine
that an individual lacks proper travel
documentation; and (3) expanding judicial review
of expedited removal orders. Immigration court
proceedings have been bypassed not only for nonlawful permanent residents allegedly removable on the
ground of “aggravated felony” convictions, but also
certain noncitizens apprehended at the border or
within the interior of the United States. Given the
absence of administrative or judicial review and other
procedural due process protections such as an
evidentiary hearing, this expedited removal process is
also contrary to current ABA policy. In furtherance of
that policy, expedited removal should at least be limited
to individuals at U.S. ports of entry or those observed
illegally crossing a border by DHS officers at the time
of their apprehension — not individuals encountered
in the interior of the United States — and only if DHS
officers determine that such individuals lack proper
travel documentation. Furthermore, expedited removal
should not be applied under any circumstance to
unaccompanied minors and the mentally ill, who often
lack the capacity to make informed decisions. Finally,

ES-12 | REFORMING THE IMMIGRATION SYSTEM

habeas review should be expanded to allow a court to
consider whether the petitioner was properly subject to
the expedited removal provisions and to review
challenges to adverse credible fear determinations.
6. Amend the definition of “crime involving moral
turpitude.” The Anti-Terrorism and Effective Death
Penalty Act of 1996 (“AEDPA”) drastically expanded
this ground for removal by requiring only that the
offense have a potential sentence of one year or more.
Under this rule, a lawful permanent resident with no
other criminal record may be found deportable based
upon a single misdemeanor conviction where no jail
sentence was imposed, if the offense is found to
“involve moral turpitude.” The Immigration and
Nationality Act (“INA”) should be amended to require
that a single conviction of a crime involving moral
turpitude is a basis for deportability only if a sentence
of more than one year is actually imposed. In the
alternative, the INA should be amended at least to
require that the offense carry a potential sentence of
“more than one year,” rather than the current “one
year or longer.”
7. Eliminate or narrow the mandatory detention
provisions to target persons who are clearly flight
risks or pose a threat to national security, public
safety, or other persons. Since the implementation of
the mandatory detention provisions in 1996, an
enormous and growing system of detention has
emerged, which is costly, unmanageable, and
overburdened. The increased use of detention by DHS,
along with the Department’s exercise of discretion with
regard to detainees’ locations, has increased
coordination and management problems in the
removal adjudication system and raised due process
and fairness concerns. Certain categories of
noncitizens are subject to mandatory detention by
DHS, whether or not they pose a security or flight risk.
The mandatory detention provisions are too broad and
require the inefficient expenditure of resources. They
should, therefore, be eliminated or narrowed to target
persons who are clearly flight risks or pose a threat to
national security, public safety, or other persons.
8. Restore judicial review of discretionary decisions
under an abuse-of-discretion standard. Legislative
reforms enacted in 1996 eliminated judicial review over
“discretionary” decisions of the Attorney General
(other than asylum), including waivers of

inadmissibility for certain crimes under certain
conditions, cancellation of removal, voluntary
departure, status adjustments, and any other decision
designated as discretionary. These decisions, however,
have an enormous impact on the lives of noncitizens,
and “discretion” need not entail absolute absence of
oversight. The INA should be amended to allow for
judicial review of these decisions under an abuse-ofdiscretion standard, which has been a workable
standard for judicial review of other kinds of
administrative decisions.
9. Amend the INA to permit the courts of appeals
to remand cases to the BIA for further fact finding.
With the elimination of habeas corpus jurisdiction in
removal cases other than expedited removal cases in
2005, the current system affords no opportunity for an
Article III court to engage in any fact finding or to
remand a case to the BIA or immigration court for
additional fact finding. A court of appeals should be
allowed to remand a case to the BIA for fact finding
under the standard provided in the Hobbs Act for review
of other agency actions — i.e., where the additional
evidence is material and there were reasonable grounds
for failure to adduce the evidence before the agency.
10. Extend the deadline for filing a petition for
review of BIA decisions by the courts of appeals.
The 1996 legislation also reduced the period of time for
filing a petition for review of a final removal order before
the court of appeals from 90 days to 30 days. The
shorter deadline poses significant problems for
noncitizens in getting a copy of the full record and
securing appellate counsel. Particularly for pro se
litigants or those detained in remote areas, where
representation usually is difficult to obtain, the 30-day
deadline effectively forces an appeal without counsel or
adequate review of the underlying record. The INA
should be amended to provide 60 days for filing a
petition for review, with the possibility of a 30-day
extension where the petitioner is able to show excusable
neglect or good cause.
11. Establish a right to representation in adversarial
removal proceedings and for individuals in groups
with special needs. Congress should enact a statute
recognizing a right to representation at government
expense in adversarial proceedings where an indigent
noncitizen faces the possibility of removal, is
potentially eligible for relief from removal, and cannot

otherwise obtain representation. Such proceedings
would include any adjudication before an immigration
judge, appeals to the BIA and federal appellate courts,
and challenges to expedited removal through habeas
petitions. For individuals in groups with special needs,
including unaccompanied minors and noncitizens with
mental disabilities and illnesses, the right to
government-funded counsel should extend to all
immigration proceedings, whether or not such
proceedings may lead to removal. In order to limit
controversy over whether the provision of governmentfunded representation is permitted under current law,
legislative action should eliminate the “no expense to
the government” limitation of section 292 of the INA.

Summary of Other Key Recommendations
Not Requiring Legislation
Apart from legislative changes, there are many steps
that should be taken within the existing structure to
improve the removal adjudication system. Many of
these steps could be taken by the relevant agencies
under existing legislation, including the following:
1. Increase the use of prosecutorial discretion by
DHS officers and attorneys and give DHS
attorneys greater control over removal proceedings.
These DHS personnel should be encouraged to reduce
the burden on the removal adjudication system by
exercising discretion to not serve a Notice to Appear on
noncitizens who are prima facie eligible for relief from
removal, to concede eligibility for relief from removal
after receipt of an application, to stop litigating a case
after key facts develop to make removal unlikely, to
offer deferred action or a stay of removal early in the
process, or not to file an appeal in certain types of cases
(such as relief under the Convention Against Torture).
Furthermore, DHS attorneys should have greater
control over the initiation of removal proceedings by
DHS officers. We recommend that DHS implement a
pilot program requiring the prior approval of a DHS
attorney on a case-by-case basis for the issuance of all
discretionary NTAs. This pilot program should be
launched in DHS local offices with sufficient attorney
resources and used by DHS to determine the need for
and feasibility of extending the system to other offices
and the additional resources needed for such
extension. Finally, to the extent possible, each removal
case in immigration court should be assigned to an

REFORMING THE IMMIGRATION SYSTEM | ES-13

individual DHS trial attorney, which would increase
efficiency and facilitate the exercise of prosecutorial
discretion consistent with DHS policies.

processes to permit better tracking of detainees and
improve compliance with ICE’s National Detention
Standard for Detainee Transfers.15

2. Require that asylum claims arising in expedited
removal proceedings be adjudicated by asylum
officers. Currently, affirmative asylum claims are
presented to DHS asylum officers in non-adversarial
proceedings, but asylum claims made in expedited
removal proceedings are adjudicated by immigration
judges. To reduce the caseload burden on immigration
courts and DHS attorneys, asylum claims raised in
expedited removal proceedings should be reviewed by
asylum officers to determine whether to grant asylum
or to refer the case to the immigration court for full
adjudication.

4. Require more written, reasoned decisions from
immigration judges. The issuance of oral decisions in
immigration proceedings can have a significant
negative impact on the quality of decisions and the
quality of subsequent BIA and judicial review. With
additional resources and more time for judges to decide
each case, judges should be required to provide
reasoned written decisions, particularly in proceedings,
such as asylum cases, where the complexity of the case
requires more thoughtful consideration than can be
given during the hearing itself. Immigration judges
should, at a minimum, produce written decisions that
are clear enough to allow noncitizens and their counsel
to understand the bases of the decision and to permit
meaningful BIA and judicial review.

3. Reduce the use of detention, expand alternatives
to detention, expand use of parole for asylum
seekers, and address concerns related to the
location and transfers of detainees. We recommend
that DHS implement policies with the purpose of
avoiding detention of persons who are not subject to
mandatory detention, are not flight risks, and do not
pose a threat to national security, public safety, or other
persons.
DHS also should expand the use of alternatives to
detention, which can provide an effective and more
economical means of ensuring most noncitizens’
appearance, and should limit the use of such
alternatives to persons who would otherwise be subject
to detention. DHS should consider whether its current
alternatives to detention constitute custody for
purposes of the INA. If so, DHS could extend such
programs to mandatory detainees who do not pose a
danger to the community or a national security risk
and for whom the risk of flight, within the parameters
of the programs, is minimal.
DHS should grant parole where asylum seekers
have established their identities, community ties, lack
of flight risk, and the absence of any threat to national
security, public safety, or other persons. In addition,
parole determinations should be conducted as a matter
of course for asylum seekers who have completed the
credible fear screening.
DHS should adopt policies to avoid detaining
noncitizens in remote facilities located far from family
members, counsel, and other necessary resources.
Finally, DHS should upgrade its data systems and

ES-14 | REFORMING THE IMMIGRATION SYSTEM

5. Increase training opportunities for immigration
judges. Some existing training has been cut back due
to a shortage of funds. Moreover, heavy caseloads
result in a lack of administrative time during which
immigration judges could participate in training. We
recommend providing additional training opportunities
for immigration judges, including training in assessing
credibility, identifying fraud, changes to United States
asylum and immigration law, and cultural sensitivity
and awareness. Sufficient funding should be made
available to permit all judges to participate in regular,
in-person trainings. With increased resources and the
hiring of additional immigration judges, more
administrative time should be made available to enable
judges to participate in the expanded offerings.
6. Limit the conduct of hearings by
videoconference to procedural matters in which the
noncitizen has given his or her consent. The current
use of videoconferencing for hearings on the merits can
undermine the fairness of the proceedings — for
example, by preventing the noncitizen from
communicating effectively and confidentially with
counsel and impairing the immigration judge’s ability
to make accurate credibility determinations.
7. Increase three-member panel review at the BIA.
New regulations should be promulgated to require
panel review for: (1) all non-frivolous merits appeals
that lack obvious controlling precedent; and

(2) motions that are not purely procedural or
unopposed by DHS. The Board’s resources should be
increased, with additional staff attorneys and Board
Members as necessary to support the expansion of
panel review.
8. Require more written BIA decisions. Although
current Board practice gives Board Members discretion
to decide whether to issue an Affirmance Without
Opinion (“AWO”) or to issue a short written opinion,
the Department of Justice should formalize this
practice by finalizing the portion of the 2008 proposed
rule that would make AWOs discretionary rather than
mandatory. The Board’s existing regulations should
also be amended to require that Board opinions
respond to all non-frivolous arguments properly raised
by the parties in all cases.
9. Permit de novo review by the BIA of
immigration judge factual findings and credibility
determinations. This would help reduce the current
disparity among immigration judge decisions, decrease
the chance that applicants will be harmed by erroneous
decision making, and potentially reduce the perceived
need to appeal BIA decisions to the circuit courts.
10. Amend regulations to require BIA removal
orders in which the government prevails to contain
notice of appeal rights. The noncitizen should be
provided with adequate notice of the right to appeal,
the applicable circuit court, and the deadline for filing
an appeal.
11. Expand the Legal Orientation Program to reach
additional noncitizens needing legal assistance.
This program is almost exclusively limited to detainees
and only those located in 25 out of approximately 350

facilities or detention centers under contract with DHS.
The program should be established at all detention
sites and expanded to immigration courts to reach
non-detained persons in removal proceedings.
12. Modify the Legal Orientation Program to
incorporate a system that will screen all indigent
noncitizens (not only detainees) in removal
proceedings and refer them to individuals or groups
who can represent them in adversarial proceedings,
using a set of standards developed by EOIR. The
system also would screen all noncitizens to determine
whether they belong to one of several vulnerable
groups, including unaccompanied minors and persons
with mental disabilities and illness, entitled to
representation. Where representation is unavailable,
government-paid counsel would be appointed. The
enhanced LOP would require an administrative
structure to provide counsel at government expense to
noncitizens in some cases.

Issues Not Addressed
There have been passionate debates in recent years
on whether our immigration policies should be
changed in fundamental ways. Those debates have
addressed what are the appropriate objectives of
enforcement of the immigration laws, whether to
provide an eventual path to lawful residence for the
estimated 12 million undocumented noncitizens,
whether to enact a guest worker program, and whether
to increase the number of visas for professionals. This
Study does not focus on those types of broad policy
issues, but rather (as described above) addresses
problems and potential reforms related to the removal
adjudication system.

REFORMING THE IMMIGRATION SYSTEM | ES-15

Summary of the Six
Parts of this Study
In the following pages of this Executive Summary,
we briefly summarize the major issues that we have
examined and describe our recommendations with
respect to each of the six major topics of our Study. In
the full Report, for each of these topics, we provide a
detailed review of the existing system, the problems
and challenges facing this system, and
recommendations for improving the removal
adjudication system in order to make it more
independent, fair, efficient, and professional.

REFORMING THE IMMIGRATION SYSTEM | ES-17

1

Department of
Homeland Security

The Department of Homeland Security (“DHS”) is
a cabinet-level agency that provides U.S. immigration
benefit services and enforcement functions through the
following three components:
1. U.S. Citizenship and Immigration Services
(“USCIS”), which provides benefit services and
adjudicates noncitizens’ applications for adjustment of
status, naturalization, and asylum;
2. Customs and Border Protection (“CBP”), which
is responsible for enforcing immigration laws at the
nation’s borders and ports of entry and for inspecting
individuals seeking admission into the United States at
any port of entry; and
3. Immigration and Customs Enforcement
(“ICE”), which enforces immigration laws in the
interior of the United States, prosecutes removal cases
before the immigration courts, manages the
immigration detention system, and effects the
removal of noncitizens.
The first step in a typical removal proceeding is
when a DHS officer from any of these three
components serves a Notice to Appear (“NTA”) upon a
noncitizen and files the NTA with an immigration
court. USCIS, CBP, and ICE play other important roles
in the removal of noncitizens:
•

CBP and ICE officers, with only limited
administrative or judicial review, may order the
removal of a non-lawful permanent resident
convicted of an “aggravated felony” and the
expedited removal of certain other noncitizens;

•

USCIS asylum officers adjudicate affirmative
asylum applications of noncitizens and have
authority to grant asylum to such applicants;

•

CBP and ICE officers may grant voluntary departure
relief to noncitizens who are subject to removal;

•

ICE attorneys prosecute removal proceedings in
immigration courts; and

•

ICE officers (and sometimes CBP officers) make
decisions regarding the detention of noncitizens
and are responsible for the removal of noncitizens
subject to a removal order.

In short, DHS personnel (including officers in the
field) regularly make important and difficult decisions
regarding the removal of noncitizens, and these
decisions have material effects on these individuals and
their families.
We have identified five sets of problems in the
DHS phase of removal adjudication, which raise
efficiency issues, fairness/due process issues, or both.
We summarize below these issues and our
recommendations for addressing each.

A. Overburdening the Removal Adjudication
System without Adequate Resources
The number of noncitizens removed from the
United States increased from 69,680 in fiscal year 1996
to 356,739 in fiscal year 2008 — a more than 400%
increase.16 The number of cases commenced in the
immigration courts to expel noncitizens grew by 23%
from 231,502 combined deportation and exclusion
proceedings in fiscal year 199617 to 285,178 removal
proceedings in fiscal year 2008.18 The number of NTAs
issued by DHS grew by 36% in just two years, from
213,887 in fiscal year 2006 to 291,217 in fiscal year 2008.19
This enormous expansion of immigration
enforcement activity and resources has not been
matched by a commensurate increase in resources for
the adjudication of immigration cases. As a result, the
adjudication system has been overwhelmed by the
increasing caseload, and it has been extremely
challenging to adjudicate cases fairly. While this
problem is in part a function of insufficient funding and

REFORMING THE IMMIGRATION SYSTEM | ES-19

staffing for the immigration courts, some DHS policies
and practices contribute to the burden.
An important reason for the increase in
proceedings is the increasing focus on apprehending
and removing all criminal noncitizens, including such
actions taken in coordination with state and local law
enforcement agencies under section 287(g) of IIRIRA
(in which local law enforcement officers participate in
immigration enforcement efforts); the Criminal Alien
Program (in which local law enforcement agencies
notify DHS of foreign-born detainees in their custody);
and the Secure Communities initiative (in which
foreign-born persons detained by local law
enforcement agencies are identified by DHS when such
agencies run their detainees’ fingerprints through the
Federal Bureau of Investigation’s and DHS’s databases
as part of the typical booking process). Thus, the
number of NTAs issued by ICE has grown from 44,015
in fiscal year 2005 to 168,299 in fiscal year 2009.20 DHS
is planning to significantly expand the scope of Secure
Communities, with the goal of having the immigration
status checked for virtually every person booked into
every local jail in the United States, using a biometric
identification system. Therefore, the caseload burden
on the immigration courts may very well increase
further in the future.
Another reason for the increasing caseload for the
immigration courts and DHS attorneys is the increase
in the number of NTAs issued by officers in USCIS’s
Domestic Operations Directorate. Following a shift in
policy announced in 2006, USCIS officers have been
issuing NTAs to noncitizens who have applied for
immigration benefits but who are “out of status” —
even if they are clearly eligible to become lawful
permanent residents and, in some cases, even
following the approval of employment-based
immigrant visa petitions filed for their benefit.
It is estimated that, in 2003, approximately 5,000
defensive asylum claims were added to the workload of
the immigration courts by the expedited removal
process. Asylum or relief under the Convention
Against Torture was granted in about 1,400 of those
cases. If those claims initially had been reviewed by
asylum officers, most of these meritorious claims would
have been granted and never reached the immigration
courts. In addition, in fiscal year 2008, the immigration
courts received approximately 11,000 removal

ES-20 | REFORMING THE IMMIGRATION SYSTEM

proceedings in which asylum applications were made
defensively. If these defensive asylum claims had been
referred to asylum officers for review, and if the asylum
officers had granted asylum with respect to these cases
at the immigration court’s grant rate of 26% for
defensive asylum cases in fiscal year 2008, then
approximately 4,000 asylum claims would have been
disposed of by asylum officers and would not have
required adjudication by the immigration courts.
Attorney staffing is reportedly deficient at DHS.
ICE attorneys have had as little as 20 minutes on
average to spend per case in the immigration courts.
Also contributing to the caseload for ICE attorneys and
the immigration courts is the insufficient use of
discretion to not initiate removal proceedings, to
concede eligibility for relief from removal after receipt
of an application, to stop litigating a case after key facts
develop to make removal unlikely, to offer deferred
action or a stay of removal early in the process, or not
to file an appeal in certain types of cases (such as relief
under the Convention Against Torture). This failure to
exercise prosecutorial discretion appears to be due in
part to a lack of training and guidelines for DHS
officers and attorneys, as well as the lack of tolerance
for mistakes in judgment made in exercising discretion.
One barrier to the effective exercise of
prosecutorial discretion and the efficient handling of
cases by DHS trial attorneys is the current practice of
assigning attorneys on a hearing-by-hearing basis in
removal proceedings at the immigration courts. The
result is that several attorneys may have to become
familiar with the same case, with no single attorney
having overall responsibility for the case.
Recommendation: Increase the use of prosecutorial
discretion by DHS officers and attorneys to reduce the
number of NTAs served on noncitizens and to reduce
the number of issues litigated. Training, guidance,
support, and encouragement should be provided to
ensure that DHS officers and attorneys properly
exercise prosecutorial discretion.
Recommendation: Give DHS attorneys greater control
over the initiation of removal proceedings. In DHS local
offices with sufficient attorney resources, establish a pilot
program requiring approval of a DHS attorney prior to
the issuance of all discretionary NTAs by DHS officers.

Recommendation: To the extent possible, assign one
DHS trial attorney to each removal proceeding, which
would increase efficiency and facilitate the exercise of
prosecutorial discretion in a manner consistent with
DHS policies.
Recommendation: Authorize USCIS asylum officers
to review asylum claims that are raised as a defense to
expedited removal. The asylum officer would be
authorized either to grant asylum if warranted or
otherwise refer the claim to the immigration court. It
may also be possible to divert to the Asylum Division
defensive asylum claims arising for the first time in
removal proceedings in the immigration courts and
thereby further reduce the burden on immigration
courts and trial attorneys.
Recommendation: Cease issuing Notices to Appear
to noncitizens who are prima facie eligible to adjust to
lawful permanent resident status.

B. Coordination Problems in DHS
DHS’s enforcement and application of
immigration law have often been inconsistent and
confusing. This is unfair to those affected, limits the
ability of DHS to take a leadership role on immigration
policies, and decreases confidence and trust in the
immigration adjudication system.
The structure of the immigration functions in DHS
makes coordination and consistency in this area
challenging. The immigration service and enforcement
functions are divided among three co-equal
components in DHS, each of which is headed by a
Presidential appointee reporting directly to the
Secretary of DHS through the Deputy Secretary. For
example, USCIS, CBP, and ICE are all involved to some
degree in asylum claims arising in expedited removal
proceedings,21 but there is no mechanism or structure
to ensure that they address similar asylum issues in the
same way. The DHS Assistant Secretary for Policy and
the General Counsel of DHS play important roles in
immigration matters. Each of USCIS, CBP, and ICE has
its own policy office reporting directly to the head of
such component, while each has its own general
counsel, who reports directly to the General Counsel
of DHS.

Recommendation: Create a position in DHS to
oversee and coordinate all aspects of DHS immigration
policies and procedures and provide the position with
sufficient resources and authority: (1) to ensure
coordination among USCIS, CBP, and ICE; (2) to
develop and advance DHS’s agenda and goals with
respect to immigration policies; and (3) to play a more
significant role in developing immigration policies and
informing public opinion on these issues.

C. Unfair Laws that Burden
the Adjudication System
While this Study has focused on the procedures for
removing noncitizens from the United States, we also
have identified some substantive provisions of
immigration law that are not only unfair to noncitizens
but also burden the immigration removal adjudication
system. These include: (1) restrictions on the ability of
noncitizens to adjust to lawful permanent resident
(“LPR”) status, coupled with statutory bars on reentry
into the United States; (2) the law authorizing removal
of noncitizens convicted of aggravated felonies; and
(3) the law authorizing removal of noncitizens
convicted of crimes involving “moral turpitude.”
1. Adjustments to Lawful Permanent Resident Status
Generally, undocumented noncitizens who are
otherwise eligible to become lawful permanent
residents cannot adjust their status while remaining in
the United States and instead must apply for an
immigrant visa at a U.S. consulate outside the United
States. However, if a noncitizen has been unlawfully
present in the United States since April 1, 1997, he or
she is subject to the following bars on returning to the
United States (unless waived):
•

Three years if the noncitizen was unlawfully present
for more than 180 days but less than one year
during a single stay and voluntarily leaves the
country before the commencement of removal
proceedings;

•

Ten years if the noncitizen was unlawfully present
for at least one year during a single stay; and

•

A permanent bar if the noncitizen was unlawfully
present for more than one year in the aggregate
(during one or more stays), leaves the United

REFORMING THE IMMIGRATION SYSTEM | ES-21

States, and subsequently enters or attempts to enter
the United States without being lawfully admitted.
These bars on admission discourage many
undocumented noncitizens who are eligible to become
LPRs from departing voluntarily or legalizing their
status because, unless they have obtained a waiver or
been granted other relief, they would be barred from
returning to the United States for the applicable period
of time if they left the country to apply for an
immigrant visa at a U.S. consulate abroad.
Recommendation: Enact statutory changes to permit
all eligible noncitizens to adjust to lawful permanent
resident status in the United States. In the alternative,
eliminate the bars on reentry for otherwise eligible
noncitizens who have accrued unlawful presence in the
United States so they can become lawful permanent
residents by consular processing their applications
outside of the United States.
2. Removal of Noncitizens Convicted of
Aggravated Felonies
The INA provides that a noncitizen is removable if
he or she has been convicted of an aggravated felony.
The provision was first enacted in 1988 and defined
“aggravated felony” to mean murder, any drug
trafficking crime as defined in 18 U.S.C. § 924(c)(2), or
any illicit trafficking in any firearms or destructive
devices, in each case committed in the United States.
Since 1988, the definition of “aggravated” has been
expanded so significantly that DHS has initiated
removal proceedings on the basis of convictions for
misdemeanors and other minor offenses, such as
shoplifting, that are not consistent with any common
understanding of the term “aggravated felony.” These
have included even misdemeanor convictions in which
no jail sentence was ordered or served. Moreover,
these provisions have been applied to noncitizens
retroactively to include persons who were convicted or
pleaded nolo contendere prior to 1988 for
misdemeanors and other minor infractions without any
reason to believe that deportation was a potential
consequence, since such crimes were not a basis for
removal at the time of conviction.
There is evidence that removal proceedings
brought on aggravated felony grounds have increased
greatly since 1988. The number of such removal orders
more than doubled from 10,303 in 1992 to 26,074 in

ES-22 | REFORMING THE IMMIGRATION SYSTEM

2005. From mid-1997 to May 2006, removal
proceedings on the ground of aggravated felony
convictions were initiated against 156,713 noncitizens
in immigration courts.22 Removal orders issued on the
ground of aggravated felony convictions have
generated a significant amount of litigation, including
appeals to the federal circuit courts. Still additional
costs for the adjudication system result from
mandatory detention, which also hinders the ability of
these noncitizens to defend themselves.
Noncitizens removable for aggravated felony
convictions are subject to consequences under U.S.
immigration law that are more severe than if they were
removable on a different basis. These consequences
include mandatory detention during removal
proceedings, a lifetime bar on admission to the United
States, a bar to naturalization, administrative removal
of non-LPRs, and ineligibility for almost all forms of
relief from removal, including cancellation of removal,
voluntary departure, asylum, and relief for victims of
domestic violence under the Violence Against Women
Act.
The bar on any discretionary relief or consideration
of equities, combined with the significant expansion in
the number of offenses that qualify as aggravated
felonies, has resulted in the automatic removal of
thousands of permanent residents and other
noncitizens with extensive ties to the United States,
with the attendant family and societal disruption.
Recommendation: Amend the definition of
“aggravated felony” to require that any such conviction
must be of a felony and that a term of imprisonment of
more than one year must be imposed (excluding any
suspended sentence).
Recommendation: Eliminate the retroactive
application of the aggravated felony provisions in our
immigration law.
3. Removal of Noncitizens Convicted of
Crimes Involving Moral Turpitude
A noncitizen is removable if, within five years after
his or her admission into the United States, he or she
has been convicted of a “crime involving moral
turpitude” for which a sentence of one year or longer
may be imposed. “Crime involving moral turpitude” is
a vaguely defined term that has been held to

encompass a wide range of crimes, including minor
offenses such as shoplifting and turnstile-jumping to
avoid paying a subway fare. For decades leading up to
1996, a permanent resident could be found deportable
based upon a single conviction of a crime involving
moral turpitude only if a sentence of at least one year
was actually imposed for the conviction. The 1996
AEDPA drastically expanded this deportation ground
by requiring only that the offense have a potential
sentence of one year or more. Under this rule, a lawful
permanent resident with no other criminal record may
be found deportable based upon a single misdemeanor
conviction where no jail sentence was imposed, if the
offense is found to “involve moral turpitude.”23
In some cases, LPRs are eligible for a waiver of the
minor offense, which will likely be granted after a
hearing on the merits. In other cases, LPRs are barred
from applying for any discretionary relief for technical
reasons, and they will engage in extended litigation to
defend against removal. If an LPR is removed, his or
her removal will often be accompanied by hardship to
the family and attendant societal disruption.
For almost 100 years, courts and the BIA have
employed the categorical approach to determine
whether a prior conviction was of a crime involving
moral turpitude.24 This approach combines concerns
for adjudicatory efficiency — by avoiding testimony of
witnesses and other evidence to “re-try” the criminal
case — and for fairness and predictability. Moreover,
the categorical approach is consistent with the INA’s
statutory language, which provides that a noncitizen is
inadmissible if he or she is “convicted” of a crime
involving moral turpitude.
In November 2008, in In re Silva-Trevino, former
Attorney General Mukasey modified the traditional
categorical approach by requiring an immigration
judge, under certain circumstances, to look beyond the
record of conviction and review extrinsic evidence to
make this determination.25 This is likely to add to the
burdens of immigration courts and potentially cause
delay in a significant number of immigration court
proceedings. Moreover, Silva-Trevino has created
uncertainty as to the immigration consequences of
criminal convictions, which may result in increased
unwillingness by defendants and their legal counsel to
dispose of criminal cases by pleas and uncertainty and
disruption in the criminal justice system.

Recommendation: Amend the INA to require that a
single conviction of a crime involving moral turpitude
is a basis for deportability only if a sentence of more
than one year is actually imposed. In the alternative, at
least require that the offense carry a potential sentence of
“more than one year,” rather than the current “one
year or longer.” Either change will ensure that a single
misdemeanor conviction is not the sole basis for
removal of a noncitizen (including a lawful permanent
resident).
Recommendation: Withdraw Silva-Trevino and
reinstate the categorical approach in removal and other
immigration proceedings for determining whether a
criminal conviction is of a crime involving moral
turpitude, rather than holding open-ended hearings on
the facts underlying past convictions.

D. Increasing Reliance on Administrative
and Expedited Removal Proceedings,
with Insufficient Oversight
Over the last five years, DHS has relied
increasingly on streamlined administrative removal
procedures for noncitizens convicted of aggravated
felonies and the expedited removal of persons
apprehended at the border or within the United States.
These procedures produce removal decisions made by
DHS line officers, rather than immigration judges. The
procedures are not open to public scrutiny and are
subject to very limited judicial review.26 As currently
implemented, such procedures raise due process
concerns and serve to decrease confidence and trust in
the removal adjudication system.
The lack of oversight and transparency is especially
important given the significant consequences of the
decisions. Noncitizens who are deemed aggravated
felons and administratively removed are permanently
barred from returning to the United States for any
reason. In addition, a noncitizen with a valid
nonimmigrant visa, such as a tourist or business
person, may be erroneously removed and barred from
reentry for five years after his or her removal, with no
recourse to correct the error. Finally, noncitizens in
expedited removal proceedings who face persecution
or torture upon return to their countries of origin have
no recourse if they are erroneously ordered removed.
Expedited removal originally was intended to deal

REFORMING THE IMMIGRATION SYSTEM | ES-23

with a crisis-type situation on our southern border, but
its use has greatly expanded to include not only
noncitizens at ports of entry, but also individuals
already in the country. The expansion of expedited
removal to individuals in the interior of the United
States appears inconsistent with the due process rights
to which noncitizens within the country are entitled,
regardless of immigration status.27
The United States Commission on International
Religious Freedom and the United Nations High
Commissioner for Refugees have found significant
problems in the inspection process at ports of entry
with respect to the treatment of noncitizens who fear
persecution or torture upon return to their countries or
origin.28
The ABA has taken the position that Congress
should enact legislation to restore authority to conduct
removal proceedings solely by immigration judges and
that such proceedings should include the right to have
a decision that is based on a record and subject to
meaningful administrative and judicial review.29 The
rationale for this policy was recently stated as follows:
All of these systems [including expedited removal
and administrative removal], although they
address serious problems in the immigration
enforcement system, implicate due process
concerns. They expressly exclude the oversight of
an impartial adjudicator; they are radically
accelerated; they are largely insulated from public
scrutiny and judicial review. The continuation and
expansion of such hidden systems of
administrative procedure violate many of the most
fundamental norms of due process.30

are minors, mentally ill, claim a fear of persecution or
torture upon return to their countries of origin, or have
significant ties to the United States (such as a non-LPR
who can demonstrate that he or she is married to a
U.S. citizen or LPR, has a minor child who is a U.S.
citizen or LPR, or has served in the U.S. military).
Recommendation: Authorize the immigration courts
to review DHS determinations that the conviction was
for an aggravated felony and that the noncitizen is not
in any of the protected categories listed in the
foregoing recommendation.
2. Expedited Removal of Persons Apprehended at the
Border or within the Interior of the United States
Recommendation: Eliminate expedited removal for
individuals who are already in the United States,
unaccompanied minors, and the mentally ill.
Recommendation: Permit DHS officers to issue
expedited removal orders only if they determine that
individuals lack proper travel documentation, but the
issue of whether an individual with facially valid
documents is committing fraud or making a willful
misrepresentation to gain entry into the United States
should be left to the immigration courts.
Recommendation: To ensure proper treatment of
noncitizens who fear persecution or torture upon
return to their countries of origin, improve supervision
of the inspection process at ports of entry and border
patrol stations, including by expanding the use of
videotaping systems to all major ports of entry and
border patrol stations.

In furtherance of this ABA position, we make the
following recommendations, which would limit the use
of administrative and expedited removal proceedings
and provide a complementary avenue for judicial
review.

Recommendation: Make available a copy of any
videotape or other recording of the interview of a
noncitizen during expedited removal proceedings to
such noncitizen and his or her representative for use in
his or her defense from removal.

1. Administrative Removal of Persons
Convicted of Aggravated Felonies

Recommendation: Expand judicial review (through
habeas proceedings) of expedited removal orders to
allow a court to consider whether the petitioner was
properly subject to the expedited removal provisions
and to review challenges to adverse credible fear
determinations.

Recommendation: Prohibit the use of administrative
removal proceedings to remove noncitizens who are
alleged to be convicted of aggravated felonies if they

ES-24 | REFORMING THE IMMIGRATION SYSTEM

E. DHS Detention Policies that
Create Problems for the Removal
Adjudication System
The stated purpose of detention of a noncitizen in
a removal proceeding is to ensure that this noncitizen
appears for his or her removal proceeding. However,
since the expansion of the mandatory detention
provisions in 1996, an enormous and growing system
of immigration detention has emerged, which is costly,
extremely difficult to manage, and overburdened. The
average daily population of detained noncitizens
increased from 9,011 in fiscal year 199631 to 31,345 in
fiscal year 2008.32 The number of noncitizens detained
over the course of a year increased from approximately
209,000 in fiscal year 200133 to 378,582 in fiscal year
2008.34 It was estimated that by the end of fiscal year
2009, DHS would have detained approximately 380,000
noncitizens.35 As a result of this rapid growth in ICE’s
detainee population, ICE currently operates the largest
detention and supervised release program in the
United States.36
The increasing use of detention by DHS and its
current detention policies and practices raise a number
of concerns and problems:
•

The rapid growth in the number of detainees has
led DHS to house them in facilities over which
DHS lacks control or supervision and, in some
cases, under inhumane conditions, and ICE is not
able to track on a real-time basis the location of all
detainees;

•

The mandatory detention provisions of the INA
force DHS to detain many noncitizens who do not
pose flight risks or threats to national security,
public safety, or other persons, and may result in a
decreased ability to detain noncitizens who are
not subject to mandatory detention but do pose
such risks;

•

Even where detention is not mandatory, DHS
detains noncitizens in situations where detention is
not necessary; and

•

Detainees are often housed far from friends and
family and have difficulty obtaining effective legal
representation. Such detention impairs the ability
of noncitizens subject to removal proceedings to

defend themselves, particularly if they are detained
in locations far from key witnesses and evidence.
DHS detention policies have increased
coordination and management problems in the
removal adjudication system and have raised due
process and fairness concerns.
In response to current detention conditions and
problems, ICE recently announced a number of
reforms intended to improve custodial conditions and
medical care of detainees (including special
populations such as women, families, and detainees
who have medical issues or are mentally ill), fiscal
prudence, and ICE’s oversight of the immigration
detention system.37 The effects of such reforms remain
to be seen.
The mandatory detention provisions of the INA
require the detention of large numbers of people,
including individuals convicted of certain criminal
offenses, national security risks, arriving asylum
seekers who lack proper documentation until they can
demonstrate a credible fear of persecution, persons
subject to expedited removal, arriving noncitizens who
appear inadmissible, and persons under final orders of
removal for a limited period of time. These provisions
are too broad and require the government to spend
resources inefficiently. They should, therefore, be
eliminated or narrowed to target persons who are
clearly flight risks or pose a threat to national security,
public safety, or other persons.
In any event, we recommend that DHS implement
policies with the purpose of avoiding detention of
persons who are not subject to mandatory detention,
are not flight risks, and do not pose a threat to national
security, public safety, or other persons. In addition, we
recommend the following changes:38
Recommendation: Improve and expand alternatives
to detention, while using them only for persons who
would otherwise be detained. In addition, review
current alternatives to detention programs to
determine whether they constitute custody for
purposes of the INA; if so, DHS could extend these
programs to mandatory detainees who do not pose a
danger to the community or a national security risk
and for whom the risk of flight, within the parameters
of the programs, is minimal.

REFORMING THE IMMIGRATION SYSTEM | ES-25

Recommendation: Grant parole where asylum
seekers have established their identities, community
ties, lack of flight risk, and the absence of any threat to
national security, public safety, or other persons. In
addition, parole determinations should be conducted
as a matter of course for asylum seekers who have
completed the credible fear screening.39

ES-26 | REFORMING THE IMMIGRATION SYSTEM

Recommendation: Adopt policies to avoid detaining
noncitizens in remote facilities far from family
members, counsel, and other necessary resources.
Recommendation: Upgrade DHS’s data systems and
improve processes to permit better tracking of
detainees within the detention system, and improve
compliance with ICE’s National Detention Standard for
Detainee Transfers.

2

Immigration Judges and
Immigration Courts

The immigration courts in the United States sit in
57 locations in 28 states and hear several hundred
thousand matters each year. The matters include,
among others, removal proceedings, asylum petitions,
bond redeterminations for noncitizens held in
detention, reviews of credible fear determinations, and
rescission hearings to determine whether a lawful
permanent resident was wrongfully granted permanent
resident status. The vast majority of the matters are
removal proceedings. With a low rate of appeal from
the decisions of immigration courts, most noncitizens’
cases end in those courts.
Since 1983, the immigration courts have been part
of the Executive Office for Immigration Review
(“EOIR”), which is housed within the U.S. Department
of Justice (“DOJ”) and answers directly to the Attorney
General. The Attorney General appoints a director,
who supervises the two offices within EOIR — the
Board of Immigration Appeals (“BIA” or “Board”) and
the Office of the Chief Immigration Judge (“OCIJ”).
The OCIJ supervises the immigration courts and the
immigration judges. In addition, nine Assistant Chief
Immigration Judges (“ACIJs”), five of whom are
assigned to the various regional courts, aid in the
administration of such courts.
Immigration judges are career attorneys appointed
by the Attorney General as administrative judges under
Schedule A of the excepted civil service and are
employed for indefinite terms. As Schedule A
appointees, immigration judges are exempted from
many of the laws and regulations governing
appointment, evaluation, discipline, and removal of
civil service employees.
In recent years, the immigration courts have faced
harsh criticism — including by federal appellate
judges — for inadequate decisions and reasoning and
improper behavior by immigration judges. In 2006,
then–Attorney General Alberto Gonzales announced
22 reform measures designed to improve the

functioning of the immigration courts and the BIA.
Some of these measures have been implemented,
representing a promising start toward improving the
performance and reputation of the immigration courts.
However, over three years later, a number of reforms
remain incomplete, and numerous problems with the
immigration court system remain.
Some problems facing the immigration courts are
of a systemic nature, while others affect particular
aspects of the system. After briefly describing two
systemic issues, we discuss six types of specific issues
and make recommendations for each.

A. Systemic Issues
One system-wide problem is the existence of stark
disparities in asylum grant rates among immigration
judges. Recent studies have demonstrated that more
than a quarter of immigration judges grant asylum or
other favorable relief to noncitizens at rates that vary
from the mean grant rate of judges at their home court
by more than 50%. Striking disparities exist even when
focusing only on decisions pertaining to nationals from
a single country. For example, one study found that
Colombian asylum applicants who appeared before the
immigration court in Miami had a 5% chance of
prevailing before one judge and an 88% chance of
prevailing before another judge in the same court.40
Disparities appear to be associated with a judge’s
gender, prior work experience, and length of time on
the bench. This indicates that a noncitizen’s success in
immigration court may depend to a troublesome extent
upon which judge is assigned his or her case.
A number of experts have already suggested
specific recommendations to address this problem.
While we do not add any recommendations directly
addressing the disparity problem, we believe that
improvements made through the implementation of
this Report’s recommendations will help lead to more

REFORMING THE IMMIGRATION SYSTEM | ES-27

professional and consistent decision making.
Another system-wide problem is public skepticism
and a lack of respect for the immigration court process,
which is attributable at least in part to the courts’ lack
of independence from DOJ. Some of this skepticism
no doubt flows from the politicized hiring of
immigration judges and other DOJ employees between
2004 and 2007 and the allegedly politically motivated
“purge” of the Board of Immigration Appeals. This set
of issues is addressed in our proposal for system
restructuring described above.

B. Specific Issues and Recommendations
1. Large Caseloads and Inadequate Resources
The immigration courts have too few immigration
judges and support staff, including law clerks, for the
workload for which they are responsible. In 2008,
immigration judges completed an average of 1,243
proceedings per judge and issued an average of 1,014
decisions per judge. To keep pace with these numbers,
each judge would need to issue at least 19 decisions
each week, or approximately four decisions per
weekday. A recent report indicated that the average
time immigration judges have to dispose of cases is at
its lowest point in more than a decade.41 In
comparison, Veterans Law Judges decided
approximately 729 veterans benefits cases per judge
(approximately 178 of which involved hearings) in
2008, and Social Security Administration administrative
law judges decided approximately 544 cases per judge
in 2007.42
A lack of adequate staff support for the
immigration judges compounds the problem. On
average, there is only one law clerk for every four
immigration judges, and the ratio is even worse in
some immigration courts.
The shortage of immigration judges and law clerks
has led to very heavy caseloads per judge and a lack of
sufficient time for judges to properly consider the
evidence and formulate well-reasoned opinions in each
case. In fact, judges generally have been limited to
issuing oral decisions shortly after the merits hearing is
completed.
Recommendation: In order to bring the caseload
down to a level roughly on par with the number of
cases decided each year by judges in other federal

ES-28 | REFORMING THE IMMIGRATION SYSTEM

administrative adjudicatory systems (around 700 cases
per judge annually), we recommend hiring
approximately 100 additional immigration judges as
soon as possible, but at least within the next three to
four years. Based on budget data for EOIR, the cost of
adding 100 immigration judges is estimated to be $18.5
million for the initial year.
Recommendation: Hire enough law clerks to provide
one law clerk per judge. This would entail hiring
approximately 269 additional law clerks (assuming that
100 additional immigration judges are hired). Based on
budget data for EOIR, the cost of doing so is estimated
to be $18.8 million for the initial year.
2. Insufficient Training and Professional Development
Insufficient resources also contribute to inadequate
opportunities for judicial training and professional
development. Although training of newly hired and
existing judges has been increased and improved over
the past few years, some of the existing training has
been cut back due to a shortage of funds. Moreover,
heavy caseloads result in a lack of administrative time
during which immigration judges could participate in
training and network with other judges.
Recommendation: Provide additional training
opportunities for immigration judges, including
training in assessing credibility, identifying fraud,
changes to U.S. asylum and immigration law, and
cultural sensitivity and awareness.
Recommendation: Provide sufficient funding to
permit all judges to participate in regular, in-person
trainings on a wide range of topics in immigration law.
Recommendation: Designate an administrator to
facilitate increased communication among immigration
judges, including setting up formal and informal
meetings among judges and opportunities for judges to
observe other judges in their own courts or in other
courts.
Recommendation: With increased resources and the
hiring of additional judges, increase the administrative
time available to judges. This would allow them to
participate in live trainings and interact with other
immigration judges on their courts.

3. Problems with Selection and
Qualification of Immigration Judges
The standards used to hire judges are incomplete
and opaque, open positions are not filled quickly, and
there is a lack of public input into the hiring decisions.
As a result, some judges are hired with inadequate
experience, there is a general lack of diversity in the
professional backgrounds of judges, and there are
problems with inappropriate judicial temperament.
EOIR has recently made significant improvements
to the process of hiring immigration judges. We
generally recommend allowing those reforms time to
take effect, while suggesting a few additional
improvements.
Recommendation: Add questions to applications,
interviews, and reference checks designed to evaluate a
candidate’s background, judicial temperament, and
ability to demonstrate cultural sensitivity and treat all
persons with respect.
Recommendation: Allow more public input in the
hiring process by permitting organizations within the
profession to participate in screening candidates who
reach final levels of consideration.
4. Inadequate Supervision and Discipline
Inadequate experience and problems with judicial
temperament theoretically could be addressed with
proper supervision and discipline, but we have found
that inadequacies exist in those areas as well. For
instance, many observers have noted that there are too
few ACIJs (nine) supervising the more than 220 other
immigration judges spread throughout the country. In
addition, supervision of immigration judges suffers
from a lack of appropriate feedback mechanisms such
as performance reviews.
In terms of discipline, the standards of ethics and
conduct applicable to the judges are currently
numerous and unclear, and the disciplinary system
lacks transparency. The disciplinary system also lacks
independence, since it rests within EOIR and DOJ.
The lack of independence and clarity raises a concern
about the potential for improper political influence on
judges’ decisions.
Recommendation: Significantly increase the number
of ACIJs to permit a more appropriate ratio of judges to
supervisors, rather than the current 20 to one ratio, and

expand their deployment to the regional courts. This
reform would allow ACIJs more time to give focused
attention to each immigration judge while maintaining
their own dockets and other administrative duties.
Recommendation: Implement a judicial model for
performance review based on the ABA’s Guidelines for
the Evaluation of Judicial Performance and the model
for judicial performance proposed by the Institute for
Advancement of the American Legal System.
Recommendation: Adopt a new single, consolidated
code of conduct for immigration judges, based on the
ABA Model Code of Judicial Conduct and tailored to
the immigration adjudication system.
Recommendation: Establish a new, more
independent and transparent system to manage
complaints and the disciplinary process. The key
components of such a system include establishing a
new office within EOIR that would segregate the
disciplinary function from other supervisory functions,
creating and following publicly available procedures
and guidelines for complaints and discipline, fully
implementing a formal right of appeal/review for
adverse disciplinary decisions, and allowing public
access to statistical or summary reporting of
disciplinary actions (individual disciplinary records
would not be made public).
Recommendation: Implement the Government
Accountability Office’s recommendations that EOIR
develop and maintain appropriate procedures to
accurately measure case completion data, identify and
examine cost-effective options for acquiring the data,
and acquire the expertise necessary to perform useful
and reliable analyses of immigration judges’ decisions.
5. Tenure, Retention, and Removal
of Immigration Judges
Immigration judges serve as career attorneys in
DOJ with no fixed term of office and are subject to the
discretionary removal and transfer authority of the
Attorney General. The immigration judges have no
statutory protection against removal without cause or
reassignment to less desirable venues.
This arrangement raises a number of issues. An
unlimited term that can result in essentially life tenure
limits the accountability of the judges. On the other

REFORMING THE IMMIGRATION SYSTEM | ES-29

hand, the lack of fixed terms or actual life tenure raises
the possibility that judges may be subject to removal or
discipline based on politics or for other improper
reasons. This erodes judicial independence and
provides a basis to undermine public opinion regarding
the competence and impartiality of immigration
judges.
Recommendation: In order to protect immigration
judges from retribution for engaging in ethical and
independent decision making, we recommend that
they be provided statutory protection against being
removed or disciplined without good cause (as is
provided for administrative law judges who adjudicate
cases in other federal agencies).
6. Problems with Immigration Court Proceedings
Problems affecting the immigration court
proceedings include extensive use of oral decisions
made without sufficient time to conduct legal research
or thoroughly analyze the issues and evidence;
problems with courtroom technological resources and
support services for judges (including unreliable
recording equipment and the lack of timely
transcripts); and the use of videoconferencing in ways
that may undermine the fairness of proceedings.

ES-30 | REFORMING THE IMMIGRATION SYSTEM

Recommendation: With additional resources and
more time for judges to decide each case, judges should
be required to provide more formal, reasoned written
decisions, particularly in proceedings, such as asylum
cases, where the complexity of the cases requires more
thoughtful consideration than can be given during the
hearing itself. Immigration judges should at a
minimum produce written decisions that are clear
enough to allow noncitizens and their counsel to
understand the bases of the decision and to permit
meaningful BIA and appellate review.
Recommendation: Give priority to completing the
rollout of digital audio recording systems.
Recommendation: Limit the practice of conducting
immigration hearings by videoconference to use in
procedural matters where the noncitizen has given his
or her consent.
Recommendation: Encourage immigration courts to
hold prehearing conferences as a matter of course, in
order to narrow the issues and provide clearer guidance
to noncitizens and their counsel on what evidence and
testimony will be important.

3

Board of
Immigration Appeals

The Board of Immigration Appeals (“BIA” or
“Board”) is the highest administrative body that
interprets the immigration laws. The Board has
jurisdiction to review all appeals of removal and other
decisions rendered by immigration judges, as well as
certain decisions made by DHS officers.
In the last decade, the standards governing the
Board’s review and the review process have changed
significantly as a result of “streamlining” measures
implemented in 1999 and 2002. Those measures were
designed to reduce delays in the review process, focus
the Board’s resources on cases presenting the most
significant legal issues, and eliminate a mounting
backlog that had reached more than 60,000 cases by
2000.43 The key changes were as follows:

adjudication by the Board. As shown in the table
below, the reforms have increased the number of cases
decided by the Board annually and reduced the
number of appeals pending before the Board:
BIA Pending Case Appeals: FY 1998-200844
BIA Receipts

BIA Completions

Pending Cases

1998

28,475

28,763

44,504

1999

31,087

23,011

52,580

2000

30,049

21,380

61,249

2001

28,148

31,800

57,597

2002

34,834

47,326

46,350

2003

42,038

48,042

40,662

(1) While cases before the Board previously were
considered by a minimum of three Members, the 1999
streamlining reforms enabled a single Board Member
to affirm a decision of an immigration judge without
opinion in a limited category of cases.

2004

43,407

48,698

35,264

2005

43,924

46,338

33,063

2006

38,284

41,475

29,870

2007

35,295

35,394

35,139

(2) The 2002 streamlining regulations expanded the
category of cases in which affirmances without opinion
and single-member review were treated as appropriate.

2008

32,432

38,369

28,874

(3) The 2002 reforms eliminated the Board’s authority
to conduct de novo fact finding, limiting review of fact
and credibility determinations to a “clearly erroneous”
standard.
(4) The 2002 reforms imposed time limits for rendering
decisions, requiring single-member decisions to be
issued within 90 days of receipt of the file and panel
decisions to be rendered within 180 days.
(5) As part of the 2002 reforms, then–Attorney General
Ashcroft reduced the size of the Board from 23 to 11
Members. The Board was subsequently increased to 16
Members.
The 1999 and 2002 streamlining reforms were
successful in reducing backlogs and delays in

Fiscal Year

The reforms also helped reduce the average time
taken for each appeal. In 2000, it took an average of
1,100 days for the Board to render a decision after an
appeal in an asylum case was filed; by 2006 the average
duration was down to 400 days.45
But this increase in Board efficiency has come at a
substantial cost, including the reduced likelihood of
finding immigration judge error, the lack of precedent
guidance coming from the Board, significant burdens
imposed on Board Members, and increased burdens on
the federal appellate courts as more BIA decisions are
appealed. In fact, the 1999 and 2002 rule changes have
led some to question whether the BIA as currently
structured adequately serves as an oversight and
adjudicative body. Such critics have characterized the
BIA as acting merely as a “rubber-stamp” of
immigration court decisions, having abdicated its

REFORMING THE IMMIGRATION SYSTEM | ES-31

responsibility to correct errors of the decision makers
below and provide uniformity in immigration law.
The discussion below summarizes specific
problems arising from or compounded by the
streamlining reforms and our recommendations for
addressing those problems. We also briefly discuss
other issues and recommendations relating to Board
resources and the Board’s lack of independence.

A. Issues and Recommendations
Relating to Streamlining Reforms
1. Single-Member Review
Most BIA cases are now decided by a single Board
Member. Single-member review precludes the
issuance of precedent, makes it less likely that the
Board will catch errors made by immigration judges,
and precludes dissent and the interplay of diverse legal
minds. Moreover, the shift to single-member decisions
may have affected the outcome of appeals, as singlemember review appears to generate fewer decisions
that favor asylum seekers. Two academic studies found
a sudden reduction in the rate at which the Board
issued decisions favorable to asylum applicants after
the 1999 and 2002 reforms were adopted.46 Similarly, a
2008 GAO Report found that only 7% of singlemember decisions favored the alien in asylum appeals,
compared to 52% of panel decisions.47 Absent some
rational explanation for this discrepancy, these findings
support making changes to ensure that the method of
review does not impact the outcome of an appeal.
In 2008, DOJ proposed revisions to the streamlining
regulations that would encourage the use of threemember panels, but these reforms have not yet been
finalized.
Recommendation: Amend the Board’s regulations to
make review by three-member panels the default form
of adjudication and to allow single-member review
only in very limited circumstances. Require panel
review for all non-frivolous merits cases that lack
obvious controlling precedent. Allow single-member
review for purely procedural motions and motions
unopposed by DHS. For this reform to be
implemented, additional staff attorneys and Board
Members will be needed.
2. Lack of Detailed Decisions
Following adoption of the 2002 streamlining
reforms, the Board relied heavily on affirmances

ES-32 | REFORMING THE IMMIGRATION SYSTEM

without opinion (“AWOs”). This practice has declined
more recently, with AWOs constituting only about 5%
of Board decisions for the first six months of fiscal year
2009, compared to 36% in fiscal year 2003.48
However, short opinions by single members are
now the dominant form of decision making. Since the
Board is not required to issue decisions responding to
all arguments by the parties, they can be as short as
two or three sentences, even when the issues would
appear to merit a longer discussion. As maintained by
some commentators and interviewees, this shift from
affirmances without opinion to short opinions is
insufficient as a quality improvement for decisions
issued by the Board. The lack of detailed, reasoned
decisions denies both the noncitizen and a reviewing
court a sufficient explanation of the Board’s decision.
Recommendation: At minimum, finalize the portion
of the 2008 proposed rule that would make affirmances
without opinion discretionary rather than mandatory.
Recommendation: Written decisions should address
all non-frivolous arguments raised by the parties, thus
providing sufficient information to facilitate review by
federal appeals courts, to allow participants to
understand the Board’s decision, and to promote their
confidence in the fairness of the decision.
3. Standard of Review
The stricter “clearly erroneous” standard of review
in effect at the BIA since 2002 inhibits the Board’s
ability to correct mistakes made by immigration judges,
which are increasingly difficult to avoid given the
enormous caseload and time pressures imposed on
these judges. This standard also inhibits the Board’s
ability to serve as a check against unwarranted
disparities among immigration judges in factually
similar cases. The current limitation has impeded the
Board’s oversight role and increased the chances that
an applicant could be harmed by erroneous decision
making.
Recommendation: Restore the Board’s ability to
conduct a de novo review of factual findings and
credibility determinations by immigration judges.
4. Lack of Precedent
The combination of single-member review and
lack of detailed decisions has given rise to a dearth of
Board precedent and guidance for the immigration

courts. Since only decisions issued by a three-member
panel or the Board en banc may be designated as
precedential, the vast majority of the Board’s decisions
are now unpublished, and, although binding on the
parties, do not serve as precedent:49

The number of precedent decisions has recently
increased, due in part to a recognition of the need for
such decisions, but it still falls short of the percentage
of published opinions (over 15%) issued by federal
appellate courts.
A greater body of precedent is needed to provide a
solid, orderly body of law, to facilitate efforts to reduce
disparity among immigration judges, to decrease the
number of appeals and rates of reversals, and to
decrease the frustration and cost of prosecuting and
defending aliens in the removal adjudication process.
Recommendation: The Board should issue more
precedential decisions, expanding the body of law to
guide immigration courts and practitioners.
Recommendation: Regulations should continue to
require that the full Board authorize the designation of
an opinion as precedential. The 2008 proposed rule
allowing individual panels to designate opinions as
precedential should not be implemented.
Recommendation: Make non-precedential opinions
available to noncitizens and their attorneys. Currently,
the Board maintains a database of such opinions.
Making this database publicly available would provide
additional, non-precedential guidance to those
appearing before immigration adjudicators.

5. Impact on Courts of Appeals
Many have argued that the streamlining reforms
shifted the decisions backlog from the BIA to the
federal circuit courts, perhaps because the reforms left
respondents dissatisfied with the quality of the Board’s
adjudication. The rate at which
respondents appealed to the federal
courts increased dramatically from 9.4%
in 2002, to 18.4% in 2003, to 26.7% in
2008.50
Notwithstanding this increased
caseload for the appeals courts, the
streamlining reforms have not
necessarily led to a high reversal rate.
The rate at which the Board is reversed
and remanded has ranged between
12% and 17% between FY 2004 and FY
2008 and is not substantially different
from the rates at which other types of
cases are reversed and remanded.51
Some circuits, however, seem more
inclined to reverse or remand to the BIA
than others. Although the Second and Ninth Circuits
together accounted for nearly 80% of all reversals in
2008, the reversal rate is higher in some of the circuits,
such as the Seventh Circuit, which hear a relatively low
volume of appeals.52
While we have no recommendations separately
addressing the impact on the federal appeals courts,
the proposals for more detailed and reasoned opinions,
more three-member panel decisions, and more
precedential decisions may help reduce the number of
BIA decisions that are appealed, and even potentially
the number of cases appealed to the BIA. We also
would encourage the publication of more data
regarding appeal statistics, as we had difficulty in
performing these analyses in our Study.
6. Time Limits
The time limits placed on the Board under the
2002 reforms, while less criticized than the other
reforms, place an unreasonable burden on respondents
and practitioners by creating incentives for the BIA to
issue perfunctory opinions given the press of time.
Recommendation: Relax the limits on the time
allowed for Board Members to reach a decision by
allowing the same amount of time for single-member
review as currently allocated for panel review (i.e.,180
days from receipt of the appeal).

REFORMING THE IMMIGRATION SYSTEM | ES-33

B. Other Issues and Recommendations
1. Limited Resources, Training,
and Disciplinary Mechanisms
Apart from problems arising from the
streamlining reforms, the most often cited problem
facing the Board is a lack of resources, specifically in
staffing. EOIR has recognized the need for additional
resources and requested funding from Congress in
March 2007 for an additional 20 staff attorneys.
Congress did not appropriate the funds in FY 2008.
For FY 2009, EOIR did receive additional funding,
which should have allowed the Board to hire only
about six additional staff attorneys. However, our
research and discussions suggested that the addition
of 40 staff attorneys, with significant additional
funding, would minimally be necessary assuming no
changes in existing caseload or procedures.
The Board also has been criticized for a lack of
expertise and for providing insufficient training. The 22
reforms announced by EOIR in 2006 included several
measures designed to improve Board Member
performance, including performance evaluations and
immigration law exams, improved training, and a code
of conduct and ways to enforce it. Performance
evaluations, immigration law exams, and increased
training began in 2008. A Code of Conduct and an
accompanying enforcement mechanism have yet to be
implemented, although EOIR has requested comments
on a draft version of a code.
Recommendation: Increase the resources available to
the Board in order to fund additional support staff.
This reform is necessary not only to support the Board
in its current form, but also to support the other
reforms we propose.

ES-34 | REFORMING THE IMMIGRATION SYSTEM

Recommendation: Apply the new Code of Conduct
recommended for immigration judges, based on the
ABA Model Code of Judicial Conduct, to Board
Members as well.
2. Lack of Independence
The Board’s status as a body created by regulation
(not by statute) and subject to the Attorney General’s
power has led to frequent criticism regarding its lack of
political and executive independence. Board Members
are appointed by the Attorney General and serve at his
or her discretion. Decisions of the Board are
reviewable de novo by the Attorney General, who may
vacate decisions and substitute his or her own
decisions.
This structure has generated concern that Board
adjudication can be politicized either directly through
the firing of members whose decisions the Attorney
General disagrees with or indirectly through the threat
of reversal of opinions that do not comport with the
implied policy direction of the Attorney General. The
downsizing of the Board in 2002 reinforced such
criticism. Members who appeared to have the highest
rate of voting in favor of the noncitizen were removed
from the Board.53
The threat of removal may have the potential to
affect the decision making of Board Members, although
it is not clear how much this actually occurs in practice.
Still, the very perception that Board Members are
subject to political influence harms morale, impugns
the Board’s reputation with both noncitizens and
practitioners, and undermines the legitimacy of the
Board’s decisions.
The independence issue is addressed by the
system restructuring proposal described in this
Executive Summary and in Part 6 of the full Report.

4
The federal judiciary acts as a check on executive
power to ensure that administrative adjudication
satisfies fundamental standards of fairness and due
process. In 1996, Congress fundamentally restructured
judicial review for immigration decisions, restricting
noncitizens’ access to the federal courts and limiting
the judiciary’s ability to protect noncitizens’ rights. The
Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”) and the Illegal Immigration Reform and
Immigrant Responsibility Act of 1996 (“IIRIRA”) barred
judicial review of removal orders for noncitizens
convicted of certain crimes; barred challenges to certain
discretionary acts of the Attorney General; directed all
federal court review, to the extent still permitted, to the
courts of appeals; and imposed a 30-day deadline for
appealing a final removal order to the court of appeals.
The Supreme Court held in 2001 that the
preclusion of direct review in the courts of appeals did
not bar challenges to removal orders within the
traditional scope of habeas corpus jurisdiction in the
district courts, but noted that such jurisdiction might be
precluded if an adequate substitute was provided.54 In
2005, the REAL ID Act decisively eliminated habeas
jurisdiction for removal orders (except expedited
removal), but provided for review by the circuit courts
of constitutional claims and questions of law that were
previously available under habeas.

A. General Problems and
Approach to Recommendations
Our review of case law and interviews with
scholars, practitioners, and judges at all levels indicate
that the layering of rules, exceptions, and jurisdictional
deadlines have significantly increased the complexity
of immigration law. While some variation among the
courts of appeals in interpreting this complex body of
law is to be expected, many experts and judges have
noted myriad issues, especially relating to jurisdiction,

Judicial Review
by Circuit Courts
on which the circuit courts are split. Some
stakeholders have suggested that, rather than dealing
with the merits of a challenge to removal, the courts of
appeals now spend an inordinate amount of time
determining the scope of their own jurisdiction. The
restrictions on judicial review have not made execution
of removal orders more efficient or just but have
instead caused confusion and created traps for unwary
and unrepresented noncitizen.
Notwithstanding the statutory limitations on their
jurisdiction, the courts of appeals have been faced with
an explosion of immigration appeals on their dockets,
as discussed in Part 3.A.5 above. In 2008, more than
10,000 BIA decisions were appealed, comprising 16.8%
of the entire civil appeals docket of the courts of
appeals. This figure is largely representative of the rate
since 2004. The Second and Ninth Circuits have been
the most significantly impacted, with immigration
cases accounting for approximately 35% to 40% of their
civil appeal dockets in the last few years.
The Commission and experts have attributed the
increase in appeals to a number of factors, including an
increase in immigration cases overall and a qualitative
change in the decision making at the administrative
level, particularly the BIA’s use of summary affirmances
and streamlining, that fosters the perception that the
process is not fair.55
The ABA has noted that AEDPA, IIRIRA, and
REAL ID Act “restrictions on federal judicial review are
exceptional in scope and establish a dangerous
precedent of unreviewable government action. As
such, they are incompatible with the basic principles
upon which this nation’s legal system was founded.”56
The ABA has called for legislation restoring judicial
review of immigration decisions to ensure that
noncitizens are treated fairly in the adjudication
process and also to provide oversight for the
government’s decision making process.57

REFORMING THE IMMIGRATION SYSTEM | ES-35

Our recommendations for judicial review in the
circuit courts are in accordance with that policy and
apply even if administrative adjudication by the
immigration courts and BIA is moved into an
independent agency or restructured as an Article I
court.58 The responsible agencies, noncitizens, and
Article I court, if implemented, will benefit from the
involvement of the courts of appeals in immigration
matters. Generalist courts help counteract the
inevitable tendency of specialist courts and agencies to
become narrowly focused. Immigration matters, which
frequently involve issues relating to personal liberty
and human rights, should not be jurisdictionally
precluded from the full scope of court of appeals
review, whether the adjudicative process is carried out
by an administrative agency or by a specialized Article I
court. While this Report does not recommend
restoration of habeas review, we have given weight to
the fact that historically habeas jurisdiction and appeal
to the circuit court, or two levels of Article III judicial
review, were available. Moreover, the proposed
restructuring of the immigration adjudication system is
unlikely to be implemented or achieve its goals for a
number of years. The availability in the interim of
expanded review in the courts of appeals proposed
herein will facilitate the transition by providing
necessary oversight.

B. Specific Issues and Recommendations
1. Unreviewable Discretion
As amended in 1996 and 2005, the INA precludes
judicial review of certain discretionary waivers from
removal, as well as any other discretionary decision
except for the grant of asylum, while constitutional
claims and questions of law remain reviewable by the
courts of appeals. The executive and legislative
branches have sought to insulate more and more
decisions from review by labeling them as
“discretionary.” (After completion of this Report, the
Supreme Court issued Kucana v. Holder, No. 08‑911,
January 20, 2010, limiting the ability of the executive
branch to insulate discretionary decisions from judicial
review.)
While administrative discretion is unquestionably
necessary in the application of immigration laws to
an enormous number of noncitizens each year, it
does not follow that the courts should be divested
from reviewing the exercise of such discretion. The

ES-36 | REFORMING THE IMMIGRATION SYSTEM

stakes in immigration cases are often high.
Immigration courts determine whether a noncitizen
will be forced to leave the United States, whether a
family will be broken up, and whether someone will
be returned to a country suffering from violence,
political instability, and economic disaster. Such
decisions have an enormous impact on hundreds of
thousands of families residing in the United States
and should not be undertaken arbitrarily, yet these
decisions, unlike discretionary decisions by other
federal agencies, are unreviewable even under the
deferential “abuse of discretion” standard. We
recommend the following changes, given the liberty
interests at stake, in order to strike a more
appropriate balance between the exercise of agency
discretion and judicial review:
Recommendation: Enact legislation restoring judicial
review of discretionary decisions under the “abuse of
discretion” standard that was in effect prior to the 1996
amendments.
Recommendation: Require that the courts apply a
presumption in favor of judicial review and specifically
reject attempts to insulate more and more actions by
labeling them as discretionary.
2. Barriers to Fact Finding
The definitive elimination of habeas corpus
jurisdiction in 2005 ignores the seminal and historic
importance of habeas review of executive action when
a person’s liberty is at stake. Unlike the review
available in the courts of appeals, a district court
reviewing a habeas petition from a noncitizen prior to
2005 was empowered to “hear and determine the facts,
and dispose of the matter as law and justice require.”59
District courts thus could hold evidentiary hearings to
supplement the record when necessary. Moreover,
prior to IIRIRA, a court of appeals could, under the
Hobbs Act, remand the case to the agency for further
inquiry and findings.60
Under the current system, there is no opportunity
for an Article III court to engage in any fact finding or
to remand a case to the BIA or immigration court for
additional fact finding.
Recommendation: Amend the INA to permit the
courts of appeals to remand cases for further fact
finding under the standard provided in the Hobbs Act

for review of other agency actions — i.e., where the
additional evidence is material and there were
reasonable grounds for failure to adduce the evidence
before the agency.

particularly those who proceed pro se or are detained
in remote areas, where representation may be difficult
to obtain. Moreover, petitioners who may be in
detention or are without counsel may not be aware of
their appeal rights and the deadline within which an
appeal must be filed or the circuit court in which the
appeal must be filed.

While this proposal does not restore historical
habeas review, it attempts to obtain one of the benefits
of habeas jurisdiction by allowing the record to be
supplemented where appropriate so that the parties
will have a full and fair opportunity to develop
evidence and present issues of law and practice
affecting the outcome of the removal proceeding.

Recommendation: Amend the INA to provide 60
days for filing a petition for review, with the possibility
of a 30-day extension where the petitioner is able to
show excusable neglect or good cause.

3. Deadline for Filing a Petition for Review
IIRIRA reduced the period of time for filing a
petition for review of a final removal order before the
court of appeals from 90 days to 30 days. The shorter
deadline poses significant problems for noncitizens,

Recommendation: Amend BIA regulations to
require each final removal order in which the
government prevails to include notice of the right to
appeal, the applicable circuit court, and the deadline
for filing an appeal.

REFORMING THE IMMIGRATION SYSTEM | ES-37

5
Increased representation of noncitizens has the
potential to benefit both these individuals and other
stakeholders in the removal adjudication system by
making the system not only fairer, but also more
efficient.
EOIR has put in place some measures to provide
noncitizens with assistance in obtaining
representation. These include a Legal Orientation
Program (“LOP”) for detainees in removal
proceedings; a Model Hearing Program, which
provides immigration law training to attorneys and law
students who agree to provide a certain amount of pro
bono representation annually; an Unaccompanied
Alien Children Initiative; and the issuance of a new
policy for pro bono activities in immigration courts,
designed to facilitate the functions of pro bono counsel.
Despite EOIR’s efforts, less than half of the
noncitizens whose proceedings were completed in the
last several years were represented. In 2008,
approximately 57% of these noncitizens were
unrepresented; in 2007, the figure was about 60%.61
For those in detention, the figure is even higher —
about 84% are unrepresented.62 Rates of
representation for proceedings before the BIA are
somewhat better than for those before the immigration
courts, but a substantial number of noncitizens are
unrepresented there as well.
Barriers impeding access to representation include
the unavailability of the LOP to persons who are not
detained, as well as many detainees; the inability of
many persons to afford private counsel; and a number
of systemic impediments, including remote detention
facilities, short visiting hours, restrictive telephone
policies, and the practice of transferring detainees from
one facility to another — often remote — location
without notice and with DHS routinely seeking
changes of venue.
There is strong evidence that representation affects
the outcome of immigration proceedings. In fact, a

Representation
study has shown that whether a noncitizen is
represented is the “single most important factor
affecting the outcome of [an asylum] case.”63 For
example, from January 2000 through August 2004,
asylum seekers before the immigration courts were
granted asylum 45.6% of the time when represented,
compared to a 16.3% success rate when they
proceeded pro se.64 More recently, in asylum cases at
the affirmative application stage, the grant rate for
applicants was 39% for those with representation and
only 12% for those without it.65 In defensive asylum
cases, 27% of applicants who had representation were
granted asylum, while only 8% of those without
representation were successful.66 In expedited removal
cases, 25% of represented asylum seekers were granted
relief, compared to only 2% of those who were
unrepresented.67
Meanwhile, the stakes for many noncitizens are
high: they face loss of livelihood, permanent
separation from U.S. family members, or even
persecution or death if deported to their native
countries. Against this backdrop, representation is
arguably at least as critical in the immigration context
as in the criminal context.
The lack of adequate representation diminishes
the prospects of fair adjudication for the noncitizen,
delays and raises the costs of proceedings, calls into
question the fairness of a convoluted and
complicated process, and exposes noncitizens to the
risk of abuse and exploitation by “immigration
consultants” and “notarios.”
Adequate legal representation is a hallmark of a
just system of law, and this is no less true in the
context of removal proceedings. A lawyer can help a
noncitizen understand and effectively navigate the
complexities of the U.S. immigration system, a process
that can be especially daunting and difficult where
language and cultural barriers are present. Moreover,
representation for indigent noncitizens would help

REFORMING THE IMMIGRATION SYSTEM | ES-39

ameliorate the legal errors and inadvertent waivers
associated with pro se litigants. In these ways,
providing representation to noncitizens would help
restore legitimacy and a level playing field to the
immigration adjudication system.
Representation also has the potential to increase
the efficiency, and thereby reduce the costs, of at least
some adversarial immigration proceedings. Pro se
litigants can cause delays in the adjudication of their
cases and, as a result, impose a substantial financial
cost on the government. As a number of immigration
educators, judges, practitioners, and government
officials surveyed for this Study have observed, the
presence of competent, well-prepared counsel on
behalf of both parties helps to clarify the legal issues
and allows courts to make more principled and better
informed decisions. In addition, representation can
speed the process of adjudication, reducing detention
costs.68 Increased representation for noncitizens thus
would lessen the burden on immigration courts and
facilitate the smoother processing of claims.
In short, enhancing access to quality
representation promises greater institutional
legitimacy, smoother proceedings for courts, reduced
costs to government associated with pro se litigants,
and more just outcomes for noncitizens.
The following discussion summarizes our findings
and recommendations with respect to three aspects of
the overall problem of insufficient and inadequate
representation of noncitizens in removal proceedings:
(1) the absence of a right to representation at
government expense; (2) limitations on the sources of
representation; and (3) representation by unqualified or
ineffective representatives.

A. Right to Representation
Current regulations establish a noncitizen’s right
to obtain representation in a removal proceeding but
do not require the government to provide
representation. The INA states that any representation
that a noncitizen may obtain shall be at “no expense to
the government.”69 Some knowledgeable
commentators point out that the statute does not
preclude the agencies from funding counsel on a
voluntary basis from general appropriations. The
courts apply a case-by-case approach to determine
whether the Fifth Amendment requires counsel to be
appointed for noncitizens in certain immigration cases.

ES-40 | REFORMING THE IMMIGRATION SYSTEM

The noncitizen must show that the assistance of
counsel would be necessary to provide “fundamental
fairness.” The application of this standard, however,
has led to the denial of appointed counsel in every
published case. The ABA has previously criticized this
case-by-case approach, noting that it is “unworkable
because, as a practical matter, there is no way to know
if the absence of counsel has been harmless or not.”70
Accordingly, the ABA has stated its support for
extending a right of representation to indigent
noncitizens in removal proceedings who are potentially
eligible for relief from removal and for unaccompanied
minors and persons with mental disabilities and
illnesses.71
Recommendation: Establish a right to governmentfunded counsel in removal proceedings for indigent
noncitizens who are potentially eligible for relief from
removal and cannot otherwise obtain representation.
This right should apply at all levels of the adjudication
process, including immigration court adjudications,
appeals at the BIA and the federal appellate courts, and
habeas petitions challenging expedited removal.
Recommendation: Provide representation at
government expense to noncitizens who are
unaccompanied minors and persons with mental
disabilities and illnesses at all stages of the adjudication
process, whether or not the proceeding may necessarily
lead to removal.
Recommendation: Require such representation to be
provided by an attorney in proceedings raising
substantial questions of law, such as appeals to the BIA
where a significant legal issue is presented, all appeals
to the federal appellate courts, and in the preparation
of habeas petitions for those challenging an expedited
removal order. In other instances, such as
adjudications in front of an immigration judge (i.e.,
where a claim depends on a factual determination), in
addition to attorneys, “second-level” accredited
representatives (those non-attorneys certified to
represent noncitizens in immigration court) would
continue to be able to represent a noncitizen.
Recommendation: In order to limit controversy over
whether the provision of government-funded
representation is permitted under current law,

legislative action should eliminate the “no expense to
the government” limitation of section 292 of the INA.

B. Sources of Representation
Under current regulations, noncitizens may be
represented by attorneys admitted to the bar of any
state or the District of Columbia; by law students,
subject to certain requirements; and by “accredited
representatives” or “reputable individuals” authorized
by the BIA. LOP is a source of referrals but currently is
limited in scope, and there are too few accredited
representatives in BIA-recognized (or certified)
agencies to fill the need for representation.

individuals or groups who can represent them in
adversarial proceedings, using a set of standards
developed by EOIR. The system would also screen
noncitizens to determine whether they belong to one
of several vulnerable populations, including
unaccompanied minors and persons with mental
disabilities and illness, entitled to representation.
Under such a system, qualifying cases could be referred
to charitable legal programs or pro bono counsel.
Where these services were unavailable, governmentpaid counsel would be appointed.
Recommendation: Establish an administrative
structure for the enhanced LOP that enables it to
provide counsel, at government expense, for
noncitizens in some cases.

1. Legal Orientation Program
EOIR established LOP in 2003 to assist detained
individuals in removal proceedings. This program
provides individuals who appear before immigration
agencies and tribunals with information regarding
basic immigration law and procedure before
immigration courts. Depending on the noncitizen’s
potential grounds for relief, LOP also provides a
referral to pro bono counsel, self-help legal materials,
and a list of free legal service providers organized by
state. This last aspect of LOP provides a critical link
between those who need representation and those
willing to provide it.
However, LOP currently does not reach the
majority of noncitizens who may need assistance. First,
it operates at only 25 of the approximately 350
detention facilities currently under contract with
DHS.72 Second, it does not reach non-detained persons
and those who might have special need for legal
representation, such as unaccompanied minors and
persons with mental disabilities and illnesses. Finally,
LOP may not be able to reach those noncitizens who
are placed into expedited removal.

2. Recognized Agencies
Accredited representatives are non-attorneys who
are approved by the BIA to represent noncitizens and
who are employed by a BIA-recognized nonprofit
religious, charitable, social service, or similar
organization established in the United States. There are
currently fewer than 750 recognized agencies, fewer
than 900 accredited representatives in total, and an
even smaller number of “second level” accredited
representatives who are available to represent the
approximately 380,000 noncitizens detained by ICE
annually.73 Part of the problem may be that the
regulations allow recognized agencies to charge only a
“nominal” fee for their assistance.

Recommendation: Expand LOP to provide services to
all detainees, thereby enabling those placed in
detention to find representation.

Recommendation: Permit recognized nonprofit
agencies to charge “reasonable and appropriate fees,”
as opposed to “nominal charges,” for their services.

Recommendation: Expand LOP in order to reach
non-detained noncitizens in removal proceedings.

3. Pro Bono Program
EOIR has supported the appointment of a pro
bono liaison judge and the creation of a pro bono
committee at various immigration courts. These liaison
judges meet regularly with local pro bono legal service
providers to ensure continuing improvement in the

Recommendation: Modify LOP’s current screening
system so that it screens all indigent persons (not only
detainees) in removal proceedings and refers them to

Recommendation: Have EOIR create a pro se litigant
guide in various languages and distribute it to court
clerks, charitable organizations involved in immigration
matters, community organizations, pro bono providers,
and churches.

REFORMING THE IMMIGRATION SYSTEM | ES-41

level and quality of representation at the court,
facilitate communication between pro bono counsel
and government attorneys, and consult with the EOIR
LOP to strengthen the agency’s public outreach.
Recommendation: Expand and improve the EOIR
pro bono program to facilitate and encourage attorney
participation.

C. Quality of Representation
A meaningful right to representation means a right
to effective representation. DOJ has recognized a
noncitizen’s right to effective assistance of counsel on
due process grounds.74 In January 2008, former
Attorney General Mukasey reviewed the issue sua
sponte and decided that noncitizens in removal
proceedings do not have a Fifth Amendment right to
effective counsel.75 That decision, in turn, was vacated
on June 3, 2009 by Attorney General Holder, who
acknowledged the high stakes of immigration
proceedings and the vulnerability of noncitizens to
abuse.76 He stated that “[t]he integrity of immigration
proceedings depends in part on the ability to assert
claims of ineffective assistance of counsel.”77
1. Pro Bono Service Providers List
EOIR maintains a roster of pro bono service
providers, updated quarterly, and is required under
statute and regulation to provide this list to all
individuals in removal proceedings. Updated and
properly maintained, the list provides an invaluable
source of assistance for noncitizens facing removal.
EOIR has announced plans to develop regulations to
strengthen the requirements for attorneys and
organizations who wish to be included on this list.78
Appropriate regulations should be adopted promptly
that facilitate the process of connecting noncitizens to
competent counsel.
Recommendation: At a minimum, require
immigration judges to consult with local bar
associations and other local stakeholders in
determining the criteria for inclusion on the pro bono
service providers list.
2. Unaccredited Representatives (Notarios)
There are numerous examples of unqualified

ES-42 | REFORMING THE IMMIGRATION SYSTEM

individuals who take advantage of noncitizens seeking
assistance in immigration matters. These individuals go
by a variety of titles, but are commonly referred to as
“visa consultants,” “immigration consultants,” or
“notarios publicos” (collectively referred to as
“notarios” in common parlance). These individuals are
explicitly not permitted to represent noncitizens before
immigration courts or the BIA. Despite this fact,
notarios are ubiquitous in immigrant communities and
routinely offer promises of legal advice and assistance
that they are sometimes unqualified to give. There are
reports claiming that notarios defraud tens of
thousands of noncitizens every year.79 These persons
also cause immigration officials to waste valuable time
weeding out the false or incomplete information they
frequently submit.
According to DOJ, EOIR has established a Fraud
Program, appointed an anti-fraud officer to identify
fraud and coordinate interagency responses, and trained
immigration court and BIA staff about the program.
Recommendation: Strictly enforce legal prohibitions
against the unauthorized practice of law, and put in
place mechanisms to ensure that noncitizens are not
deprived of substantive and procedural rights as a
consequence of the unauthorized practice of law.
Recommendation: Have courts and immigration
officials continue to follow EOIR’s Fraud Program
guidelines, monitor immigration cases for indications
that fraudulent operators are at work, and prosecute
them to the full extent of the law.
3. Attorney Discipline
Civil contempt authority has been authorized by
legislation since 1996 but has not been implemented by
the Attorney General. Contempt authority could
provide immigration judges with an important tool to
enforce DHS compliance with its orders and empower
judges to meaningfully sanction attorneys for
contemptuous behavior, such as willful late filings or
ignoring of judicial orders, that slows down the court
and makes just adjudications more difficult.
Recommendation: Amend EOIR’s Rules of Conduct
to allow for civil monetary penalties to be imposed by
immigration judges against both private and
government attorneys.

6

System Restructuring

While we provide many recommendations for
incremental changes to the immigration removal
adjudication system at each stage of the process, we
also have considered major structural changes that
would make the system independent of any existing
executive branch department or agency. These changes
would address widespread concerns about both
political independence and adjudicatory fairness, while
also promoting greater efficiency and professionalism
within the immigration judiciary.

A. Goals of Restructuring
Any major system restructuring should be aimed at
attaining the following goals:
•

Independence: Immigration judges at both the
trial and appellate level must be sufficiently
independent, with adequate resources, to make
high-quality, impartial decisions without any
improper influence, particularly where that
influence makes the judges fear for their job
security.

•

Fairness and perceptions of fairness: Not only
must the system actually be fair, it must appear fair
to all participants, particularly to the noncitizen
who may not have any other experience with our
government.

•

Professionalism of the immigration judiciary:
Immigration judges should be talented and
experienced lawyers who treat those appearing
before them with respect and professionalism.

•

Increased efficiency: An immigration system
must process immigration cases quickly without
sacrificing quality, particularly in cases where
noncitizens are detained.

B. The Case for Restructuring
Concerns about the lack of independence of
immigration judges and the BIA, as well as perceptions
of unfairness toward noncitizens, have spawned
proposals to separate these tribunals from the
Department of Justice. The National Association of
Immigration Judges (“NAIJ”) and others have long
advocated for the establishment of an independent
body, either an independent agency or an Article I
court, as a necessary step in reforming the immigration
adjudication system. NAIJ currently favors the Article I
court alternative.
Changes in recent years have only exacerbated
these concerns, as resources devoted to enforcement of
immigration laws have increased the burden on
immigration judges without increasing the resources
allocated to adjudication. The calls for independence
have become more urgent in this decade in response to
politicized hiring of immigration judges (see Part 2 of
the Report) and the removal of BIA members most
sympathetic to noncitizens (see Part 3 of the Report).
In addition, as discussed in Part 2 of the Report, DOJ
has taken the view that immigration judges are merely
staff attorneys of the Department. As such, they would
be required to comply with rules of conduct applicable
to DOJ attorneys, rather than rules of judicial conduct,
and would owe their ethical obligations to the
Department as their “client.” In such circumstances,
the immigration judges can hardly be viewed as
independent.
In addition, as discussed in Part 3 of the Report,
several reforms directed at the BIA have, according to
the ABA, “resulted in a loss of confidence in the
fairness of review at the BIA and generated a massive
number of appeals to the federal courts.”80 Indeed, the
ABA has noted that the lack of independence of
immigration courts and the BIA is a problem, and has
expressed the view that a number of problems with
immigration adjudication “can best be addressed by

REFORMING THE IMMIGRATION SYSTEM | ES-43

moving toward a system in which immigration judges
are independent of any executive branch cabinet
officer.”81 Appleseed has echoed the call for
independence in its newly released report on reform of
the nation’s immigration court system.82
In providing greater independence, such a
restructuring will promote the achievement of the
other three goals articulated above — fairness and
improved perceptions of fairness, a more professional
immigration judiciary, and greater efficiency in the
adjudication of removal cases.
Fairness and Perceptions of Fairness. Critics note
that a perception of unfairness plagues the current
system. A perceived lack of independence means that
those going through the system do not consider the
decisions rendered to be fair or impartial. Although the
adjudicators’ agency, DOJ, no longer has primary
enforcement responsibility for immigration matters, it
remains the nation’s principal law enforcement agency
overall, and its lawyers prosecute immigration cases
before the federal courts of appeal. For some, the
Attorney General’s power over the members of the BIA
and immigration judges gives the impression of
unfairness and does not give those going through the
process confidence in the decision making. The DOJ
position that immigration judges are merely DOJ staff
attorneys with a duty of loyalty to the Department (as
noted above) can only add to the perception that
impartiality is lacking. Removing the immigration
adjudication functions from DOJ would leave it free to
focus on law enforcement, terrorism, civil rights, and
other critical missions unrelated to immigration.
Professionalism. We recognize that in order to
have better quality judgments, better quality judges are
necessary, regardless of how this is achieved. Moving
existing judges to an Article I court or separate agency
without increasing resources, training and
qualifications would not alone ensure sufficient
improvement in the quality of decisions. Elsewhere,
we recommend such increases in resources and
training and the strengthening of qualifications — all
of which should help make the immigration judiciary
more professional. We also believe it is necessary to
make this judiciary independent in order to attract the
highest quality judges who can do their jobs and make
decisions without fear of arbitrary termination, transfer,
or other sanctions.

ES-44 | REFORMING THE IMMIGRATION SYSTEM

Efficiency. By attracting and selecting the highest
quality lawyers as judges, an Article I court or
independent agency is more likely to produce wellreasoned decisions. Such decisions, as well as the
handling of the proceedings in a highly professional
manner, should improve the perception of the fairness
and accuracy of the result. Perceived fairness, in turn,
should lead to greater acceptance of the decisions
without the need to appeal to the federal circuit courts.
Similarly, there should be fewer appeals from decisions
at the trial level to the appellate level of the Article I
court or independent agency. When appeals are taken,
more articulate decisions should enable the reviewing
body at each level to be more efficient in its review and
decision making and should result in fewer remands
requesting additional explanations or fact finding.
Such improvements in efficiency should reduce the
total time and cost required to fully adjudicate a removal
case and thus help the system keep pace with expanding
caseloads. They also should produce savings elsewhere
in the system, such as the cost of detaining those who
remain in custody during the proceedings.
The push for an independent body for immigration
adjudication is not unanimous. However, the main
thrust of most criticisms or doubts expressed about an
independent court or agency seems to be that it will
not necessarily solve all of the current problems with
the existing system. That, however, does not diminish
the case for attacking problems that can be addressed
by creating an independent immigration judiciary.

C. Options Considered
We have examined three basic restructuring options:
1. Article I Court: An independent Article I court
system to replace all of EOIR (including the
immigration courts and BIA), which would include
both a trial level and an appellate level tribunal;
2. Independent Agency: A new executive
adjudicatory agency, which would be independent of
any other executive department or agency, to replace
EOIR and contain both trial level administrative judges
and an appellate level review board; and
3. Hybrid: A hybrid approach placing the trial level
adjudicators in an independent administrative agency
and the appellate level tribunal in an Article I court.

In examining these options, we have explored the
differences between Article I courts and independent
agencies generally, reviewed current examples of each,
reviewed prior proposals, and then defined the specific
features of each option.
General Similarities and Differences. From a
legal perspective, the distinction between Article I
courts and independent agency adjudicatory bodies is
not entirely clear. It appears that the distinction may
be in name only and that whatever forum Congress
decides is appropriate dictates.
The similarities between the two types of bodies
are striking. In both forums, members are often
appointed by the President with the advice and consent
of the Senate, serve for set terms, and are removable
only in very limited circumstances. Like Article I courts,
agency adjudicatory bodies are, despite their name,
specialized judicial entities that can create precedent
and issue final decisions appealable to Article III courts.
Both structures provide statutorily recognized
independence, job security, and stature, which are
missing from the current immigration adjudication
system.
In practice, however, there are many differences
between the two types of forums. Adjudicatory
agencies often consist of a board or commission, small
in size, with members appointed by the President, who
serve as an appellate layer of review over decisions
made by some type of administrative judge at the
initial, trial-type level. Article I courts generally consist
only of a trial level, with appeals proceeding directly to
an Article III court without an intermediate level of
review, or only an appellate level that reviews decisions
of an administrative agency. We are not aware of any
Article I court system that includes both trial and
appellate levels (except for bankruptcy courts in four
federal circuits). Additionally, agencies employ
administrative judges or Administrative Law Judges
(“ALJs”), whose employment terms and hiring
procedures differ from those used for Article I judges.
For whatever reason, Article I courts tend to be
viewed as more independent and prestigious than
agency adjudicatory bodies.83 Article I judges “most
closely approximate the formal independence of
federal judges.”84 Article I courts also have “low
political profiles” as compared to administrative
agencies; thus, the President is unlikely to deny
reappointment of judges for strictly political reasons.85

In addition, the long length of the terms of Article I
judges serves to reduce the attractiveness of seeking
reappointment versus retirement.86
Examples of Each Type of Structure. We studied
several specialized courts that help inform
consideration of an Article I immigration court. These
are the United States Tax Court, the United States
Bankruptcy Court, the United States Court of Federal
Claims, and the Court of Appeals for Veterans Claims.
We focused on three systems of adjudication in an
independent administrative agency: the Occupational
Safety and Health Review Commission, the Merit
Systems Protection Board, and the National Labor
Relations Board.
Finally, we studied the system for granting and
assessing veterans’ benefits as a hybrid adjudication
model, consisting of an agency within the executive
branch for trial-level proceedings and an Article I court
for initial appellate review.
Others’ Proposals. Several immigration experts
and groups have called for the creation of an Article I
court. For example, NAIJ recommends a court with
both trial and appellate level judges, with appeal
remaining in the circuit courts of appeal. Judges would
be appointed by the President with the advice and
consent of the Senate. NAIJ recommends using the Tax
Court as a model.
After the 2008 presidential election, the American
Immigration Lawyers Association (“AILA”) submitted
draft legislation to the Obama transition team
recommending the creation of an independent
immigration adjudication agency. The proposal would
create a new agency in the executive branch called the
Immigration Court System, containing both appellate
and trial level forums. We understand that AILA
focused on defining the specific features of an
independent body for immigration adjudication,
rather than the choice between an Article I court and
an independent administrative agency.
Most recently, Appleseed has called for the
creation of an Article I court in its newly released study
on reform of the immigration court system.87
Appleseed proposes to reconstitute the BIA as the
appellate division of a new United States Immigration
Court under Article I, and to establish the current
immigration courts as the trial division of the new
court. To promote impartiality, Appleseed proposes

REFORMING THE IMMIGRATION SYSTEM | ES-45

that the federal courts of appeals appoint the appellate
division members of the new court, who in turn would
appoint a Chief Judge from among themselves.
Immigration judges would also be appointed by the
Chief Judge of the appellate division “after a rigorous
competitive appointment process that is similar to that
used to appoint Administrative Law Judges.”88
Specific Features. It is theoretically possible to
define the features of an Article I court system and an
independent agency model almost interchangeably,
since there is no clear legal distinction between the
two. However, we believe models for restructuring
immigration adjudication should draw from existing
models for other adjudication systems as much as
possible. Accordingly, we define features of an Article I
immigration court that resemble existing Article I
courts and, similarly, draw from existing independent
agencies in constructing the features of an independent
agency for immigration adjudication.
The key features that we have defined for each of
the three models are the method of selection and
qualifications of judges and their tenure, removal,
supervision, evaluation, and discipline. These features
are summarized in Table ES-2 at the end of this
Executive Summary.
The most significant differences among the three
models involve the method of selection, tenure, and
removal of the judges, as described below.
Article I Court for Entire System. The President
would appoint the Chief Trial Judge of a Trial Division,
the Chief Appellate Judge of an Appellate Division, and
the other appellate judges, with the advice and consent
of the Senate. The Assistant Chief Trial Judges would
be appointed either by the President (with Senate
confirmation) or by the Chief Trial Judge with the
concurrence of the Chief Appellate Judge. The other
trial judges would be appointed either by the Chief Trial
Judge or by the Assistant Chief Trial Judge responsible
for the court in which the vacancy exists, subject to
approval of the Chief Trial Judge.89
Fixed terms would be established for judges at
both the trial and appellate levels. The terms would be
relatively long like those of Article I judges in other
courts, although the terms could be longer for the
appellate judges than for the trial level judges. For
example, the terms would be 8 to 10 years for trial
judges and 12 to 15 years for appellate judges.

ES-46 | REFORMING THE IMMIGRATION SYSTEM

Judges at both levels could be removed only by the
appointing authority for incompetency, misconduct,
neglect of duty, malfeasance, or disability.
Independent Agency for the Entire System. The
Chairperson and members of a Board of Immigration
Review, as well as the Chief Immigration Judge of an
Office of Immigration Hearings, would be appointed by
the President with the advice and consent of the
Senate, from among persons recommended by a
Standing Referral Committee.
The Chairperson would be appointed for a single,
non-renewable term of five to seven years. Other
Board Members would be appointed for fixed,
renewable terms of five to seven years, as is typical in
independent agencies and commissions. The Chief
Immigration Judge would be appointed for a single,
non-renewable term of five years.
All immigration judges other than the Chief
Immigration Judge would be selected using a
competitive, merit-based process similar to the one
currently used to hire Administrative Law Judges, but
administered through the agency’s own personnel
office rather than the Office of Personnel Management.
They would serve without term limits and would be
removable only for good cause after an opportunity for
a hearing before the Merit Systems Protection Board
under the same procedures that apply to removal of an
ALJ, and subject to judicial review. By contrast, Board
Members and the Chief Immigration Judge could be
removed by the President prior to the end of their fixed
terms for inefficiency, neglect of duty, or malfeasance.
Hybrid Approach. In the hybrid model, only the
BIA would be converted to an Article I court while the
immigration courts would be placed in an independent
administrative agency. The features of this hybrid
approach would be a combination of those for the
Appellate Division of an Article I court and the Office
of Immigration Hearings in an independent agency. It
would combine a “Court of Immigration Appeals” with
an “Immigration Review Agency.”

D. Comparative Analysis
We have compared the three alternative models for
restructuring the immigration adjudication system
primarily based on six criteria. The comparison is
summarized in Table ES-3 and discussed below.

1. Independence
All three models would provide a forum for
adjudication that is independent from any executive
branch department or agency. An Article I court may
be viewed as more independent than an administrative
agency since it would be a wholly judicial body.
However, the method of selection, unlimited tenure,
and protection against removal for immigration judges
in the agency model would give them greater
independence than in an Article I court (as defined
here). The hybrid model combines this type of
independence at the trial court level with the more
judicial features of an Article I appellate court.
2. Perceptions of Fairness
All three models should increase public confidence
in the fairness of immigration adjudication, compared
to the current system. As a wholly judicial body, an
Article I court is likely to engender the greatest level of
confidence in the results of adjudication. The
professionalization of the immigration judiciary in an
independent agency also would go a long way toward
increasing public confidence.
3. Quality of Judges and Professionalism
All three models should attract higher caliber
judges and help professionalize the immigration
judiciary. The greater prestige of an Article I judicial
office may attract more qualified candidates than an
administrative judgeship. However, the method of
selection, unlimited tenure, and protection against
removal without cause in the agency model, which is
based on the ALJ system, offers greater job security and
a proven approach to creating a highly professional
judiciary at the trial court level. The hybrid approach
offers a combination of such professionalism at the trial
court level and greater prestige at the appellate court
level.
4. Efficiency: Relative Cost and Ease of
Administration
All three models should make the adjudication
system for removal cases more efficient for the reasons
set forth in Part 6.B above. By doing so, they will
reduce the total time and cost required to fully
adjudicate removal cases and also should reduce costs
elsewhere in the system, such as detention costs. The
resources needed in terms of judgeships and law clerks

also should be similar under all three options. The cost
of establishing and administering a new system should
not differ significantly between an Article I court and a
new independent agency. The hybrid model is the least
cost-efficient option, since it requires the creation and
operation of two new distinct institutions.
5. Accountability
To some degree, accountability to the political
branches is the flip side of independence. Thus, the
trial judges in an Article I court, with fixed terms,
generally would be more accountable than those in an
independent agency where they would have the
equivalent of life tenure. The Article I court thus
arguably provides greater balance between
independence and accountability than an independent
agency would.
6. Impact on Article III Courts
This factor is impacted by independence and
perceptions of fairness, since greater independence is
likely to lead to greater confidence in results, which in
turn is likely to reduce the number of appeals to the
circuit courts. To the extent the Article I court may be
perceived as more independent and may engender
greater confidence than an independent agency, its
favorable impact on appeals court caseloads should
also be greater.

E. Choice Among Options
Although the hybrid option has intellectual appeal,
it would be the most complex and costly restructuring
option to implement, since it would require the
creation and operation of two new and separate
institutions. We found no advantages of the hybrid
option significant enough to outweigh these major
disadvantages. We, therefore, do not recommend the
hybrid option, and we focus instead on the choice
between an Article I court or an independent
administrative agency for the entire immigration
adjudication system.
The key attractions of the independent agency
model, as defined here, are: (1) the independence and
professionalism that would result from the treatment of
trial judges in a manner similar to Administrative Law
Judges with respect to selection, tenure, evaluation, and
discipline; (2) the agency’s ability to fill and maintain a

REFORMING THE IMMIGRATION SYSTEM | ES-47

large number of judgeships through a civil service type
of process; and (3) the likely perception that an
independent agency is a less drastic departure from the
current system and one that has many precedents in
other independent adjudicatory agencies.
The Article I court model is likely to be viewed as
more independent than an agency because it would be
a wholly judicial body; is likely, as such, to engender
the greatest level of confidence in its results; can use its
greater prestige to attract the best candidates for
judgeships; and offers the best balance between
independence and accountability to the political
branches of the federal government.
Given these advantages, along with the others
discussed in Section III.C of Part 6 of the full Report,
the Article I court model has been selected as the
preferred option. The independent agency model also
would be an enormous improvement over the current
system and offers a strong alternative if the Article I
court is deemed infeasible or unacceptable to Congress
and/or the President.

F. Transitional Measures
Since selection, tenure, and removal of the judges
of an Article I court would differ significantly from the
current system in DOJ, transitional measures would be
needed for the existing judges employed by EOIR. We
suggest the following:
(1) The Chairman of the BIA would serve as Chief
Appellate Judge of the Article I court until replaced by
Presidential appointment (with Senate confirmation).
(2) The current members of the BIA would become the
appellate judges of the Article I court and would serve
out the recommended fixed terms (e.g., 12 to 15 years),
which would be deemed to have begun at the time of
their prior appointment to the BIA. Thereafter, these

ES-48 | REFORMING THE IMMIGRATION SYSTEM

judges would be eligible for reappointment by the
President with the advice and consent of the Senate.
(3) Any vacancy in the appellate division created by a
decision not to reappoint a former BIA member, as well
as other vacancies, would be filled by Presidential
appointment with Senate confirmation and an
opportunity for stakeholder groups to comment on
candidates.
(4) The Chief Immigration Judge in EOIR would serve
as Chief Trial Judge of the new Article I court until
replaced by Presidential appointment (with Senate
confirmation).
(5) The current Assistant Chief Immigration Judges in
EOIR would serve as Assistant Chief Trial Judges in the
Article I court until replaced by the new method of
appointment adopted — i.e., either by the President
(with Senate confirmation) or by the Chief Trial Judge
with the concurrence of the Chief Appellate Judge.
(6) Sitting immigration judges in EOIR would be
allowed to stay on as trial judges in the new court for
the remainder of their fixed terms (e.g., eight to ten
years), which would be deemed to have begun when
they were first selected as immigration judges in EOIR.
At the end of such terms, these judges would be
eligible for reappointment through the new system —
i.e., by the Chief Trial Judge or by the Assistant Chief
Trial Judges for each region (with the approval of the
Chief Trial Judge), in either case from recommendations
provided by a Standing Referral Committee.90
(7) Once appointed to a fixed term through the new
system, both appellate judges and trial judges could be
removed only for incompetency, misconduct, neglect of
duty, malfeasance, or physical or mental disability. The
removal power would reside with the party that
appointed the judge.

Endnotes
1 OFFICE OF IMMIGRATION STATISTICS, U.S. DEP’T OF
HOMELAND SEC., 2008 YEARBOOK OF IMMIGRATION
STATISTICS 91 (2009), available at
http://www.dhs.gov/xlibrary/assets/statistics/yearbook/
2008/ois_yb_2008.pdf.

11 Opinion, USA TODAY, Mar. 25, 2009, available at
http://blogs.usatoday.com/oped/2009/03/our-view-onsta.html.

2 See infra note 20.

13 Jaya Ramji-Nogales, Andrew I. Schoenholtz &
Philip G. Schrag, Refugee Roulette: Disparities in Asylum
Adjudication, 60 STAN. L. Rev. 295, 340-41 (2007). For
an expanded version of the Refugee Roulette study,
with commentary by scholars from Canada and the
United Kingdom as well as from the United
States, please see JAYA RAMJI-NOGALES, ANDREW I.
SCHOENHOLTZ & PHILIP G. SCHRAG, REFUGEE ROULETTE:
DISPARITIES IN ASYLUM ADJUDICATION AND PROPOSALS FOR
REFORM (NYU Press 2009).

3 OFFICE OF IMMIGRATION STATISTICS, U.S. DEP’T OF
HOMELAND SEC., IMMIGRATION ENFORCEMENT ACTIONS:
2008, at 3 (2009), available at
http://www.dhs.gov/xlibrary/assets/statistics/publicatio
ns/enforcement_ar_08.pdf.
4 Id. at 4.
5 Jeremy Roebuck, VALLEY MORNING STAR, Mar. 11,
2009, available at
http://www.valleymorningstar.com/news/guevara_4767
5___article.html/immigrants_stipulated.html.
6 Brad Heath, USA TODAY, Mar. 30, 2009, available at
http://www.usatoday.com/news/nation/2009-03-29immigcourt_N.htm.
7 Nina Bernstein, N.Y. TIMES, Mar. 12, 2009, available at
http://www.nytimes.com/2009/03/13/nyregion/13immi
gration.html?scp=11&sq=immigrant%20federal%20jud
ge&st=cse.
8 Michelle Roberts, AP, Mar. 16, 2009, available at
http://www.msnbc.msn.com/id/29706177/.
9 Albor Ruiz, N.Y. DAILY NEWS, Mar. 26, 2009, available
at http://www.nydailynews.com/
ny_local/2009/03/26/2009-0326_ice_locks_em_up_throws_away_key_immigrat.htm.
10 Nick Miroff & Josh White, WASHINGTON POST, Oct.
5, 2008, at A1, available at
http://www.washingtonpost.com/wpdyn/content/article/2008/10/04/
AR2008100402051_pf.html).

12 Ken McLaughlin, MERCURY NEWS, Mar. 24, 2009.

14 Alternatively, the Assistant Chief Trial Judges would
be appointed by the Chief Trial Judge with the
concurrence of the Chief Appellate Judge.
15 We recognize that DHS and ICE have announced
new initiatives as part of the comprehensive
immigration detention reforms, and some of these new
initiatives are in accordance with our
recommendations. See Press Release, U.S. Immigration
& Customs Enforcement, Secretary Napolitano and
ICE Assistant Secretary Morton Announce New
Immigration Detention Reform Initiatives (Oct. 6,
2009), available at
http://www.ice.gov/pi/nr/0910/091006washington.htm.
However, the implementation and details of these
reforms, and their effectiveness in dealing with the
acknowledged problems in the immigration detention
system, remain to be seen.
16 OFFICE OF IMMIGRATION STATISTICS, U.S. DEP’T OF
HOMELAND SEC., IMMIGRATION ENFORCEMENT ACTIONS:
2005, at 5 (2006), available at
http://www.dhs.gov/xlibrary/assets/statistics/yearbook/
2005/Enforcement_AR_05.pdf; U.S. IMMIGRATION &
CUSTOMS ENFORCEMENT, ICE FISCAL YEAR 2008 ANNUAL
REPORT: PROTECTING NATIONAL SECURITY AND
UPHOLDING PUBLIC SAFETY 8 (2009), available at
http://www.ice.gov/doclib/pi/reports/ice_annual_report
/pdf/ice08ar_final.pdf.

REFORMING THE IMMIGRATION SYSTEM | ES-49

17 EXECUTIVE OFFICE FOR IMMIGRATION REVIEW, U.S.
DEP’T OF JUSTICE, STATISTICAL YEAR BOOK 2000 D1 (2001).
Prior to the effectiveness of the Illegal Immigration
Reform and Immigrant Responsibility Act of 1996
(“IIRIRA”), the United States government expelled
deportable or inadmissible noncitizens from the United
States through deportation and exclusion proceedings.
IIRIRA replaced deportation and exclusion proceedings
with removal proceedings. See IIRIRA, Pub. L. No.
104–208, § 304, 110 Stat. 3009-546, 3009-587-97
(codified at 8 U.S.C. §§ 1229-1229c).

24 Under the categorical approach, the adjudicator
looks to the applicable criminal statute to determine
whether the conduct necessary to violate this criminal
statute is a crime involving moral turpitude, and if the
statute is “divisible” (i.e., criminalizes different acts,
some of which are crimes involving moral turpitude
and others of which are not), then the adjudicator may
inquire into the individual’s record of conviction for the
purpose of determining the applicable subpart of the
statute under which such individual’s conviction falls.
Any inquiry, however, into the particular acts of such
individual is prohibited.

18 EXECUTIVE OFFICE FOR IMMIGRATION REVIEW, DEP’T OF
JUSTICE, FY 2008 STATISTICAL YEAR BOOK C3 (2009),
available at
http://www.usdoj.gov/eoir/statspub/fy08syb.pdf.

25 24 I. & N. Dec. 687, 704 (AG 2008).

19 See data provided by the Office of Immigration
Statistics, U.S. Department of Homeland Security, and
the Office of Policy, Immigration and Customs
Enforcement, in November 2009 (on file with the
American Bar Association Commission on
Immigration).
20 See data provided by the Office of Policy,
Immigration and Customs Enforcement, in November
2009 (on file with the American Bar Association
Commission on Immigration).
21 Asylum officers at USCIS conduct credible fear
interviews. During secondary inspection of individuals
without travel documents at ports of entry, CBP officers
ask questions of these individuals to determine
whether they may be asylum seekers. ICE officers
make parole decisions affecting asylum seekers in
removal proceedings.
22 TRANSACTIONAL RECORDS ACCESS CLEARINGHOUSE,
SYRACUSE UNIVERSITY, NEW DATA ON THE PROCESSING OF
AGGRAVATED FELONS (2007),
http://trac.syr.edu/immigration/reports/175/;
TRANSACTIONAL RECORDS ACCESS CLEARINGHOUSE,
SYRACUSE UNIVERSITY, HOW OFTEN IS THE AGGRAVATED
FELONY STATUTE USED? (2006), available at
http://trac.syr.edu/immigration/reports/158/.
23 See INA § 237(a)(2)(A)(i)(II), 8 U.S.C.
§ 1227(a)(2)(A)(i)(II).

ES-50 | REFORMING THE IMMIGRATION SYSTEM

26 For example, expedited removal orders generally
are not subject to review by the immigration courts and
the BIA, and judicial review through habeas corpus
proceedings is limited to very few types of issues (for
example, whether the person is a citizen or LPR,
refugee, or asylee).
27 See Yamatama v. Fisher, 189 U.S. 86, 101 (1903);
Leng May Ma v. Barber, 357 U.S. 185, 187 (1958).
28 U.S. COMM’N ON INT’L RELIGIOUS FREEDOM, ASYLUM
SEEKERS IN EXPEDITED REMOVAL: EXECUTIVE SUMMARY 5-6
(2005); Andrew I. Schoenholtz, Refugee Protection in the
United States Post-September 11, 36 COL. HUM. RTS. L.
REV. 323, 333 (2005) (reporting findings from UNITED
NATIONS HIGH COMM’R FOR REFUGEES, STUDY OF THE U.S.
EXPEDITED REMOVAL PROCESS: REPORT TO THE U.S.
DEPARTMENT OF HOMELAND SECURITY (2003)
(unreleased)).
29 ABA, ENSURING FAIRNESS AND DUE PROCESS IN
IMMIGRATION PROCEEDINGS (2008) [hereinafter ENSURING
FAIRNESS], available at
http://www.abanet.org/poladv/transition/2008dec_imm
igration.pdf; see also Letter from Robert D. Evans, Dir.,
Governmental Affairs Office, Am. Bar Assoc., to
Senators (Apr. 4, 2006), available at
http://www.abanet.org/publicserv/immigration/cir_sen
ate_ltr4406.pdf; ABA, DUE PROCESS & JUDICIAL REVIEW
(2006), available at
http://www.abanet.org/poladv/priorities/immigration/p
p_duep_judrev.pdf; Letter from Robert D. Evans, Dir.,
Governmental Affairs Office, Am. Bar Assoc., to
Regulations Branch, Office of Regulations and Rulings,
Bureau of Customs & Border Prot. (Oct. 12, 2004),
available at
http://www.abanet.org/poladv/letters/108th/immigratio
n101204.pdf.

30

ENSURING FAIRNESS, supra note 29, at 7.

31 ALISON SISKIN, CRS REPORT FOR CONGRESS,
IMMIGRATION-RELATED DETENTION: CURRENT LEGISLATIVE
ISSUES CRS-12 (2004), available at
http://www.fas.org/irp/crs/RL32369.pdf.
32 U.S. Immigration & Customs Enforcement,
Detention Management (Nov. 20, 2008),
http://www.ice.gov/pi/news/factsheets/detention_mgm
t.htm (includes individuals detained in ICE, Office of
Refugee Resettlement, and Bureau of Prison facilities).
33 U.S. IMMIGRATION & NATURALIZATION SERVICE, 2001
STATISTICAL YEARBOOK OF THE IMMIGRATION AND
NATURALIZATION SERVICE 235 (2003), available at
http://www.dhs.gov/xlibrary/assets/statistics/yearbook/
2001/yearbook2001.pdf.

39 We recognize that ICE will change its parole policy,
effective as of January 4, 2010, in a manner consistent
with this recommendation. See U.S. Immigration &
Customs Enforcement, News – Revised Parole Policy
for Arriving Aliens with Credible Fear Claims (Dec. 16,
2009), http://www.ice.gov/pi/news/factsheets/crediblefear.htm. It remains to be seen whether the application
of this revised parole policy by ICE will be consistent
with this recommendation.
40 Ramji-Nogales et al., supra note 13, at 296.
41 TRANSACTIONAL RECORDS ACCESS CLEARINGHOUSE,
CASE BACKLOGS IN IMMIGRATION COURTS EXPAND,
RESULTING WAIT TIMES GROW (2009),
http://trac.syr.edu/immigration/reports/208/.
BD. OF VETERANS’ APPEALS, FISCAL YEAR
OF THE CHAIRMAN 3 (2009), available at

42

2008 REPORT

34 OFFICE OF IMMIGRATION STATISTICS, U.S. DEP’T OF
HOMELAND SEC., IMMIGRATION ENFORCEMENT ACTIONS:
2008, at 3 (2009), available at
http://www.dhs.gov/xlibrary/assets/statistics/publicatio
ns/enforcement_ar_08.pdf.

http://www.va.gov/Vetapp/ChairRpt/BVA2008AR.pdf;
U.S. SOC. SEC. ADMIN., ANNUAL STATISTICAL SUPPLEMENT
2008, at 2.F (2009), available at
http://www.ssa.gov/policy/docs/statcomps/supplement/
2008/index.html.

35 See DORA SCHRIRO, DIR., OFFICE OF DETENTION
POLICY & PLANNING, U.S. IMMIGRATION & CUSTOMS
ENFORCEMENT, IMMIGRATION DETENTION OVERVIEW AND
RECOMMENDATIONS 6 (2009), available at
http://www.ice.gov/doclib/091005_ice_detention_repor
t-final.pdf.

43 Board of Immigration Appeals: Streamlining, 64
Fed. Reg. 56,135 (Oct. 18, 1999); Board of Immigration
Appeals: Procedural Reforms to Improve Case
Management; Final Rule, 67 Fed. Reg. 54,878 (Aug. 26,
2002).

36 Id. at 2.

44 For the sources and methodology underlying this
Table, see Table 3-1 and the accompanying discussion
in Part 3 of the full Report.

37 See Fact Sheet, U.S. Dep’t of Homeland Sec., ICE
Detention Reform: Principles and Next Steps (Oct. 6,
2009), available at http://www.ice.gov/doclib/10-06-09fact_sheet_ice_detention_reform.pdf; Press Release,
U.S. Immigration & Customs Enforcement, ICE
Announced Major Reforms to Immigration Detention
System (Aug. 6, 2009), available at
http://www.ice.gov/pi/nr/0908/090806washington.htm;
Press Release, U.S. Immigration & Customs
Enforcement, 2009 Immigration Detention Reforms
(Aug. 6, 2009), available at
http://www.ice.gov/pi/news/factsheets/2009_immigrati
on_detention_reforms.htm.
38 See supra note 15.

45 U.S. GOV’T ACCOUNTABILITY OFFICE, U.S. ASYLUM
SYSTEM: SIGNIFICANT VARIATION EXISTED IN ASYLUM
OUTCOMES ACROSS IMMIGRATION COURTS AND JUDGES 49
& fig. 6 (2008), available at
http://www.gao.gov/new.items/d08940.pdf.
46 David Martin, Major Developments in Asylum Law
over the Past Year, 83 INTERPRETER RELEASES 1889 (2006);
John R.B. Palmer, et al., Why are so Many People
Challenging Board of Immigration Appeals Decisions in
Federal Court? An Empirical Analysis of the Recent Surge
in Petitions for Review, 20 GEO. L.J. 1 (2005).
47 U.S. GOV’T ACCOUNTABILITY OFFICE, supra note 45,
at 55.

REFORMING THE IMMIGRATION SYSTEM | ES-51

48 According to former BIA Chairman Juan Osuna,
the AWO rate was 36% in FY 2003, 32% in FY2004,
30% in FY2005, 15% in FY2006, and 9% in both FY2007
and FY2008. For the first six months of FY 2009, the
rate was 5%. See July 28, 2009 email from Deputy
Assistant Attorney General Juan Osuna (on file with
the American Bar Association Commission on
Immigration); see also Interview with Philip G. Schrag,
Professor, Georgetown University Law Center (AWOs
represent just 5% of the BIA’s decisions in 2008); Fact
Sheet, Executive Office for Immigration Review, U.S.
Dept. of Justice, EOIR’s Improvement Measures –
Update 3 (June 5, 2009) (“EOIR decreased the issuance
of AWOs to approximately 4 percent by the beginning
of calendar year 2009.”), available at
http://www.usdoj.gov/eoir/press/09/EOIRs22Improvem
entsProgress060509FINAL.pdf.
49 For the data underlying this graph, see Table 3-2
and accompanying discussion in Part 3 of the full
Report.
50 See Table 3-3 and accompanying discussion in Part
3 of the full Report.
51 See Table 3-4 and accompanying discussion in Part
3 of the full Report.
52 See Table 3-5 and accompanying discussion in Part
3 of the full Report.
53 See Peter J. Levinson, The Façade of Quasi-Judicial
Independence in Immigration Appellate Adjudications, 9
BENDER’S IMMIGR. BULL. 1154 (2004).
54 INS v. St. Cyr, 533 U.S. 289, 314 n.38 (2001)
(“Congress could, without raising any constitutional
questions, provide an adequate substitute [for habeas
corpus] through the courts of appeals.”).
55 ABA COMM’N ON IMMIGRATION POLICY, PRACTICE &
PRO BONO, SEEKING MEANINGFUL REVIEW: FINDINGS AND
RECOMMENDATIONS IN RESPONSE TO DORSEY & WHITNEY
STUDY OF BOARD OF IMMIGRATION APPEALS PROCEDURAL
REFORMS 2-4 (2003), available at
http://www.abanet.org/publicserv/immigration/bia.pdf.

61 EXECUTIVE OFFICE FOR IMMIGRATION REVIEW, U.S.
DEP’T OF JUSTICE, FY 2008 STATISTICAL YEAR BOOK, at G1
(2009), available at
http://www.justice.gov/eoir/statspub/fy08syb.pdf.
62 See Improving Efficiency and Promoting Justice in
the Immigration System: Lessons From the Legal
Orientation Program 1 (May 2008), available at
http://www.vera.org/download?file=1780/LOP%2Beval
uation_May2008_final.pdf.
63 Ramji-Nogales et al., supra note 13, at 340-41.
64 Id.
65 U.S. GOV’T ACCOUNTABILITY OFFICE, supra note 45, at
30. Statistics cited are for the period from 1995 through
2007. An affirmative asylum case is where the
noncitizen files a Form I-589 Application for Asylum,
which is reviewed by USCIS in a non-adversarial
process.
66 Id. A defensive case is where an individual requests
asylum before an immigration judge in response to an
expedited removal or other removal action by DHS.
67 See Charles H. Kuck, Legal Assistance for Asylum
Seekers in Expedited Removal: A Survey of Alternative
Practices, in 2 U.S. COMM’N ON INT’L RELIGIOUS
FREEDOM, REPORT ON ASYLUM SEEKERS IN EXPEDITED
REMOVAL 239, 244-50 (2005), available at
http://www.uscirf.gov/images/stories/pdf/
asylum_seekers/ERS_RptVolII.pdf.
68 See Catholic Legal Immigration Network, Inc. et al.,
Petition for Rulemaking to Promulgate Regulations
Governing Appointment of Counsel for Immigrants in
Removal Proceedings 6-8 (June 29, 2009), available at
http://www.bc.edu/centers/humanrights/metaelements/pdf/Petition_for_Rulemaking_for_Appointed
_Counsel.pdf.
69 INA § 292, 8 U.S.C. § 1362.

57 Id.

70 ABA COMM’N ON IMMIGRATION, THE QUEST TO
FULFILL OUR NATION’S PROMISE OF LIBERTY AND JUSTICE
FOR ALL: ABA POLICIES ON ISSUES AFFECTING IMMIGRANTS
AND REFUGEES 6 (2006), available at
http://www.abanet.org/leadership/2006/midyear/daily_j
ournal/107a.doc.

58 See infra Part 6: System Restructuring.

71 ENSURING FAIRNESS, supra note 29, at 2.

59 28 U.S.C. § 2243 (1994).

72 See News Release, U.S. Department of Justice,
EOIR Adds Twelve New Legal Orientation Sites 1 (Oct.
15, 2008), available at http://www.usdoj.gov/eoir/press/
08/LegalOrientationProgramExpands101508.htm.

56 ENSURING FAIRNESS, supra note 29, at 8.

60 28 U.S.C. § 2347(c) (1994).

ES-52 | REFORMING THE IMMIGRATION SYSTEM

73 See IMMIGRATION ENFORCEMENT ACTIONS: 2008, supra
note 34; IMMIGRATION DETENTION OVERVIEW AND
RECOMMENDATIONS, supra note 35.
74 In re Lozada, 19 I. & N. Dec. 637, 638 (BIA 1988).
75 In re Compean, 24 I. & N. Dec. 710, 714 (AG 2009).
76 In re Compean, 25 I. & N. Dec. 1 (AG 2009).
77 Id.
78 See Press Release, Executive Office for Immigration
Review, U.S. Dep’t of Justice, EOIR to Expand and
Improve Pro Bono Programs (Nov. 15, 2007), available
at
http://www.usdoj.gov/eoir/press/07/ProBonoEOIRExpa
ndsImprove.pdf; see also Fact Sheet, Executive Office
for Immigration Review, U.S. Dep’t of Justice, EOIR’s
Improvement Measures –– Progress Overview (Sept. 8,
2008), available at
http://www.usdoj.gov/eoir/press/08/EOIRs22Improvem
entsProgressOverview090508v2.pdf (noting EOIR
“[b]egan developing regulations to strengthen both the
recognition/accreditation process for immigration
practitioners and the requirements for private attorneys
and organizations to appear on EOIR’s List of Free
Legal Services Providers”).
79 See Andrew F. Moore, Fraud, the Unauthorized
Practice of Law and Unmet Needs: A Look at State Laws
Regulating Immigration Assistants, 19 GEO. IMMIGR. L.J. 3
(2004) (citing Edwin Garcia, Activists Help Those Who
Fall Through the Cracks, SAN JOSE MERCURY NEWS, Aug.
25, 2003, at 1A).
80

ENSURING FAIRNESS, supra note 29, at 6.

81

Id.

83 See Peter Levinson, A Specialized Court of
Immigration Hearings and Appeals, 56 NOTRE DAME L.
REV. 644, 651 n.52 (1981) (“On various occasions
Congress has recognized that a judicial forum provides
a more appropriate structure for resolving controversies
that had been left to executive decision-making
[through agency boards] in the past”); Harold H. Bruff,
Specialized Courts in Administrative Law, 43 ADMIN. L.
REV. 329, 351 (1991) (comparing Legislative (Article I)
Judges and Administrative Judges).
84 Bruff, supra note 83, at 344.
85 Id.
86 Id.
87 APPLESEED, supra note 82, at 35-36.
88 Id. at 35.
89 The appellate and trial judges would be selected
from among persons screened and recommended by a
Standing Referral Committee. Details about this
Committee are set forth in the Summary of
Recommendation for System Restructuring in this
Executive Summary.
90 See Summary of Recommendation for System
Restructuring in this Executive Summary regarding the
composition of the Committee.

82 APPLESEED, ASSEMBLY LINE INJUSTICE: BLUEPRINT TO
REFORM AMERICA’S IMMIGRATION COURTS 35 (2009),
available at
http://www.appleseeds.net/Portals/0/Documents/Public
ations/Assembly%20Line%20Injustice.pdf.

REFORMING THE IMMIGRATION SYSTEM | ES-53

Table ES-1
Summary of Recommendations
DISCUSSION
(Part‑Section
In Report and
Starting Page
In Executive
Summary)

RECOMMENDATION
(Description)

AUTHORITY
NEEDED
Existing
Regulation
Legislation

RELATIVE
TIME FRAME
Short Term
Long Term

SCOPE OF
REFORM1
Incremental
Restructuring
Both

RELATIVE
COST
Low
Moderate
High

Part 1: Department of Homeland Security
Increase use of prosecutorial discretion
by DHS officers and attorneys to
reduce the number of Notices to
Appear served on noncitizens and to
reduce the number of issues litigated.

1-IV.A.1
ES-20

Regulation

Short Term

Both

Low

Give DHS attorneys greater control
over the initiation of removal
proceedings. In DHS local offices with
sufficient attorney resources, establish
a pilot program requiring approval of a
DHS attorney prior to issuance of all
discretionary Notices to Appear by
DHS officers.

1-IV.A.2
ES-20

Regulation

Short Term

Both

Moderate

To the extent possible, assign one DHS
trial attorney to each removal
proceeding, which would increase
efficiency and facilitate the exercise of
prosecutorial discretion in a manner
consistent with DHS policies.

1-IV.A.3
ES-20

Existing

Long Term

Both

Moderate

Authorize USCIS asylum officers to
review asylum claims that are raised in
expedited removal proceedings. The
asylum officer would be authorized
either to grant asylum if warranted or
refer the claim to the immigration court.

1-IV.A.4
ES-20

Regulation

Long Term

Both

Moderate

It may be possible to divert to the
Asylum Division defensive asylum
claims made in removal proceedings in
the immigration courts and thereby
further reduce the burden on
immigration courts and trial attorneys.

1-IV.A.4
ES-20

Legislation,
Regulation

Long Term

Both

Moderate

1 Indicates whether the recommendation is an incremental reform, applies only in conjunction with the system restructuring proposal, or
applies in both cases.

ES-54 | REFORMING THE IMMIGRATION SYSTEM

Table ES-1
Summary of Recommendations (continued)
DISCUSSION
(Part‑Section
In Report and
Starting Page
In Executive
Summary)

RECOMMENDATION
(Description)

AUTHORITY
NEEDED
Existing
Regulation
Legislation

RELATIVE
TIME FRAME
Short Term
Long Term

SCOPE OF
REFORM1
Incremental
Restructuring
Both

RELATIVE
COST
Low
Moderate
High

Part 1: Department of Homeland Security (continued)
Cease issuing Notices to Appear to
noncitizens who are prima facie
eligible to adjust to lawful permanent
resident status.

1-IV.A.5
ES-20

Existing

Short Term

Both

Low

Create a position within DHS to
oversee and coordinate all aspects of
DHS immigration policies and
procedures, including asylum matters.

1-IV.B
ES-21

Existing

Long Term

Both

Low

Permit all eligible noncitizens to
adjust to lawful permanent resident
status while in the U.S.
Alternatively, eliminate the threeyear, ten-year, and permanent bars
to reentry, which will encourage
eligible noncitizens who have
accrued unlawful presence in the
U.S. to become lawful permanent
residents by consular processing
outside of the U.S.

1-IV.C.1
ES-21

Legislation

Short Term

Both

Low

Amend the definition of “aggravated
felony” to require that any
conviction must be of a felony and
that a term of imprisonment of more
than one year must be imposed
(excluding any suspended sentence).
Eliminate the retroactive application
of the aggravated felony provisions.

1-IV.C.2
ES-22

Legislation

Short Term

Both

Low

Amend the INA to require that a
single conviction of a crime involving
moral turpitude is a basis for
deportability only if a sentence of
more than one year is actually
imposed. Alternatively, amend the
INA to require a potential sentence
of more than one year.

1-IV.C.3
ES-22

Legislation

Short Term

Both

Low

1 Indicates whether the recommendation is an incremental reform, applies only in conjunction with the system restructuring proposal, or
applies in both cases.

REFORMING THE IMMIGRATION SYSTEM | ES-55

Table ES-1
Summary of Recommendations (continued)
DISCUSSION
(Part‑Section
In Report and
Starting Page
In Executive
Summary)

RECOMMENDATION
(Description)

AUTHORITY
NEEDED
Existing
Regulation
Legislation

RELATIVE
TIME FRAME
Short Term
Long Term

SCOPE OF
REFORM1
Incremental
Restructuring
Both

RELATIVE
COST
Low
Moderate
High

Part 1: Department of Homeland Security (continued)
Withdraw In re Silva-Trevino, 24 I&N
Dec. 687 (AG 2008), and reinstate the
categorical approach in removal and
other immigration proceedings to
determining whether a criminal
conviction is of a crime involving
moral turpitude, rather than holding
open-ended hearings on the facts
underlying past convictions.
Curtail the use of expedited removal for
noncitizens apprehended at the border
or within the United States by: (1)
eliminating expedited removal for
individuals who are already in the
United States, unaccompanied minors,
and the mentally ill; (2) permitting DHS
officers to issue expedited removal
orders only if they determine that
individuals lack facially valid travel
documentation; and (3) expanding
judicial review (through habeas
proceedings) to allow a court to
consider whether the petitioner was
properly subject to the expedited
removal provisions and to review
challenges to adverse credible fear
determinations.

1-IV.C.3.b
ES-23

Existing

Short Term

Both

Low

1-IV.D.2
ES-23

Legislation

Short Term

Both

Low

1 Indicates whether the recommendation is an incremental reform, applies only in conjunction with the system restructuring proposal, or
applies in both cases.

ES-56 | REFORMING THE IMMIGRATION SYSTEM

Table ES-1
Summary of Recommendations (continued)
DISCUSSION
(Part‑Section
In Report and
Starting Page
In Executive
Summary)

RECOMMENDATION
(Description)

AUTHORITY
NEEDED
Existing
Regulation
Legislation

RELATIVE
TIME FRAME
Short Term
Long Term

SCOPE OF
REFORM1
Incremental
Restructuring
Both

RELATIVE
COST
Low
Moderate
High

Part 1: Department of Homeland Security (continued)
Ensure proper treatment during
expedited removal proceedings of
noncitizens who fear persecution or
torture upon return to their countries of
origin by improving supervision of the
inspection process at ports of entry and
border patrol stations, including by
expanding the use of videotaping
systems to all major ports of entry and
border patrol stations. In addition,
make a copy of any videotape or other
recording of the interview of a
noncitizen during expedited removal
proceedings available to such noncitizen
and his or her representative for use in
his or her defense from removal.

1-IV.D.4
ES-24

Existing,
Regulation

Short Term

Both

Low

Curtail the use of the administrative
removal process by which DHS officers
may order the removal of noncitizens
who are alleged to be convicted of
“aggravated felonies” and are not lawful
permanent residents. Prohibit use of
this procedure for minors, the mentally
ill, noncitizens who claim a fear of
persecution or torture upon return to
their countries of origin, or noncitizens
with significant ties to the United States.
Authorize the immigration courts to
review DHS determinations that the
conviction was for an aggravated felony
and that the noncitizen is not in any of
the protected categories listed above.

1-IV.D.1
ES-23

Existing,
Regulation,
Legislation

Short Term

Both

Low

Eliminate mandatory detention
provisions or narrow them to target
persons who are clearly flight risks or
pose a threat to national security, public
safety, or other persons.

1-IV.E.1
ES-25

Legislation

Short Term

Both

Low

1 Indicates whether the recommendation is an incremental reform, applies only in conjunction with the system restructuring proposal, or
applies in both cases.

REFORMING THE IMMIGRATION SYSTEM | ES-57

Table ES-1
Summary of Recommendations (continued)
DISCUSSION
(Part‑Section
In Report and
Starting Page
In Executive
Summary)

RECOMMENDATION
(Description)

AUTHORITY
NEEDED
Existing
Regulation
Legislation

RELATIVE
TIME FRAME
Short Term
Long Term

SCOPE OF
REFORM1
Incremental
Restructuring
Both

RELATIVE
COST
Low
Moderate
High

Part 1: Department of Homeland Security (continued)
In any event, DHS should implement
policies designed to avoid detention
of persons who are not subject to
mandatory detention, are not flight
risks, and do not pose a threat to
national security, public safety or
other persons.

1-IV.E.1
ES-25

Existing

Long Term

Both

Low

Improve and expand Alternatives to
Detention, and use them only for
persons who would otherwise be
detained. Review current Alternatives
to Detention programs to determine
whether they constitute custody for
purposes of the INA; if so, DHS could
extend these programs to mandatory
detainees who do not pose a danger to
the community or a national security
risk and for whom the risk of flight,
within the parameters of the programs,
is minimal.

1-IV.E.2
ES-25

Existing

Long Term

Both

Low

Grant parole where asylum seekers
have established their identities,
community ties, lack of flight risk,
and the absence of any threat to
national security, public safety, or
other persons. In addition, conduct
parole determinations as a matter of
course for asylum seekers who have
completed the credible fear screening.

1-IV.E.3
ES-25

Existing

Short Term

Both

Low

Adopt policies to avoid detaining
noncitizens in remote facilities located
far from family members, counsel, and
other necessary resources.

1-IV.E.4
ES-25

Existing,
Regulation

Long Term

Both

Moderate

1 Indicates whether the recommendation is an incremental reform, applies only in conjunction with the system restructuring proposal, or
applies in both cases.

ES-58 | REFORMING THE IMMIGRATION SYSTEM

Table ES-1
Summary of Recommendations (continued)
DISCUSSION
(Part‑Section
In Report and
Starting Page
In Executive
Summary)

RECOMMENDATION
(Description)

AUTHORITY
NEEDED
Existing
Regulation
Legislation

RELATIVE
TIME FRAME
Short Term
Long Term

SCOPE OF
REFORM1
Incremental
Restructuring
Both

RELATIVE
COST
Low
Moderate
High

Part 1: Department of Homeland Security (continued)
Upgrade DHS’s data systems and
improve processes to permit better
tracking of detainees within the
detention system, and improve
compliance with ICE’s National
Detention Standard for Detainee
Transfers.

1-IV.E.4
ES-25

Existing

Long Term

Both

Moderate

Part 2: Immigration Judges/Courts
Request additional immigration
judges (approximately 100), increase
number of law clerks to increase ratio
to one clerk per judge, and increase
number of support personnel.

2-IV.C.1
ES-28

Legislation

Short Term

Both

High

Require more formal, reasoned
written decisions that are clear
enough to allow noncitizens and their
counsel to understand the bases of the
decision and to permit meaningful
BIA and appellate review.

2-IV.C.2
ES-30

Existing

Short Term

Both

Low

Give immigration judges statutory
protection against being removed or
disciplined without good cause, in
order to protect them from retribution
for engaging in ethical and
independent decision making.

2-IV.A.2
ES-30

Legislation

Short Term

Both

Low

Adopt a new, single, consolidated
code of conduct for immigration
judges based on the ABA Code of
Judicial Conduct, tailored to the
immigration adjudication system.

2-IV.B.2
ES-29

Existing

Short Term

Both

Low

1 Indicates whether the recommendation is an incremental reform, applies only in conjunction with the system restructuring proposal, or
applies in both cases.

REFORMING THE IMMIGRATION SYSTEM | ES-59

Table ES-1
Summary of Recommendations (continued)
DISCUSSION
(Part‑Section
In Report and
Starting Page
In Executive
Summary)

RECOMMENDATION
(Description)

AUTHORITY
NEEDED
Existing
Regulation
Legislation

RELATIVE
TIME FRAME
Short Term
Long Term

SCOPE OF
REFORM1
Incremental
Restructuring
Both

RELATIVE
COST
Low
Moderate
High

Part 2: Immigration Judges/Courts (continued)
Implement judicial model performance
reviews for immigration judges based
on the ABA’s Guidelines for the
Evaluation of Judicial Performance and
the Institute for Advancement of the
American Legal System’s proposed
model for judicial performance.

2-IV.B.3
ES-29

Regulation

Short Term

Both

Low

Establish a new, more independent and
transparent system to manage
complaints and the disciplinary process
by establishing a new office in EOIR
that would segregate the disciplinary
function from other supervisory
functions, creating and following
publicly available procedures and
guidelines for complaints and discipline,
fully implementing a formal right of
appeal/review for adverse disciplinary
decisions, and allowing public access to
statistical or summary reporting of
disciplinary actions (individual
disciplinary records themselves would
not be made public).

2-IV.B.4
ES-29

Legislation

Short Term

Incremental

Moderate

Provide additional opportunities
for training of immigration judges,
including training in assessing
credibility, identifying fraud, changes
to U.S. asylum and immigration law,
and cultural sensitivity and awareness;
provide sufficient funding to permit
all judges to participate in regular,
in-person trainings on a wide range
of topics in immigration law; and
designate an administrator to
facilitate communication among
immigration judges.

2-IV.C.4
ES-28

Existing

Short Term

Both

Moderate

2-IV.C.6.b
ES-30

Existing

Short Term

Both

Low/Moderate

Limit use of video conferencing to
procedural matters in which the
noncitizen has given consent.

1 Indicates whether the recommendation is an incremental reform, applies only in conjunction with the system restructuring proposal, or
applies in both cases.

ES-60 | REFORMING THE IMMIGRATION SYSTEM

Table ES-1
Summary of Recommendations (continued)
DISCUSSION
(Part‑Section
In Report and
Starting Page
In Executive
Summary)

RECOMMENDATION
(Description)

AUTHORITY
NEEDED
Existing
Regulation
Legislation

RELATIVE
TIME FRAME
Short Term
Long Term

SCOPE OF
REFORM1
Incremental
Restructuring
Both

RELATIVE
COST
Low
Moderate
High

Part 2: Immigration Judges/Courts (continued)
In hiring immigration judges, add
questions on applications, interviews
and reference checks designed to
evaluate a candidate’s background,
judicial temperament, and ability to
demonstrate cultural sensitivity and
treat all persons with respect; allow
more public input in the hiring process
by permitting professional organizations
to participate in screening candidates
who reach final levels of consideration.
Increase administrative time available to
immigration judges to allow increased
participation in live training and
opportunities to interact with other
immigration judges on their courts.

2-IV.A.1
ES-29

2-IV.C.3
ES-28

Legislation or
Regulation

Short Term

Incremental

Low

Existing

Short Term

Both

Low

Encourage immigration courts to hold
prehearing conferences as a matter of
course in order to narrow the issues and
provide clearer guidance to noncitizens
and their counsel on what evidence and
testimony will be important.

2-IV.C.7
ES-30

Existing

Short Term

Both

Low

Significantly increase the number of
Assistant Chief Immigration Judges to
permit a more appropriate ratio of
judges to supervisors, and expand their
deployment to regional courts.

2-IV.B.1
ES-29

Existing

Short Term

Incremental

Moderate

Implement GAO recommendations
that EOIR develop and maintain
appropriate procedures to accurately
measure case completion, identify and
examine cost-effective options for
acquiring the data, and acquire the
necessary expertise to perform useful
and reliable analyses of immigration
judges’ decisions.

2-IV.C.5
ES-29

Existing

Short Term

Incremental

Low/Moderate

Give priority to completing the rollout
of digital audio recording systems to
facilitate fair and efficient proceedings.

2-IV.C.6.a
ES-30

Existing

Short Term

Both

Low/Moderate

1 Indicates whether the recommendation is an incremental reform, applies only in conjunction with the system restructuring proposal, or
applies in both cases.

REFORMING THE IMMIGRATION SYSTEM | ES-61

Table ES-1
Summary of Recommendations (continued)
DISCUSSION
(Part‑Section
In Report and
Starting Page
In Executive
Summary)

RECOMMENDATION
(Description)

AUTHORITY
NEEDED
Existing
Regulation
Legislation

RELATIVE
TIME FRAME
Short Term
Long Term

SCOPE OF
REFORM1
Incremental
Restructuring
Both

RELATIVE
COST
Low
Moderate
High

Part 3: Board of Immigration Appeals
Increase resources available to
the Board, including additional
staff attorneys and additional
Board members.

3-IV.G
ES-34

Legislation

Short Term

Incremental

High

Require three-member panel review in
all non-frivolous merits cases that lack
obvious controlling precedent. Allow
single-member review for purely
procedural motions and motions
unopposed by DHS.

3-IV.A
ES-32

Regulation

Short Term

Incremental

Included
Above

Extend deadline for issuance of singlemember decisions from 90 to 180 days
from receipt of appeal (i.e., the same
deadline as for panel review).

3-IV.D
ES-33

Regulation

Short Term

Incremental

Included
Above

Restore the Board’s ability to conduct
a de novo review of immigration
judge factual findings and credibility
determinations.

3-IV.C
ES-32

Regulation

Short Term

Incremental

Low

Issue more precedential decisions,
expanding the body of law to guide
immigration courts and practitioners.
Continue to require the full Board to
authorize designation of an opinion as
precedential. Make non-precedential
opinions available to noncitizens and
their representatives.

3-IV.E
ES-32

Existing

Short Term

Incremental

Low

1 Indicates whether the recommendation is an incremental reform, applies only in conjunction with the system restructuring proposal, or
applies in both cases.

ES-62 | REFORMING THE IMMIGRATION SYSTEM

Table ES-1
Summary of Recommendations (continued)
DISCUSSION
(Part‑Section
In Report and
Starting Page
In Executive
Summary)

RECOMMENDATION
(Description)

AUTHORITY
NEEDED
Existing
Regulation
Legislation

RELATIVE
TIME FRAME
Short Term
Long Term

SCOPE OF
REFORM1
Incremental
Restructuring
Both

RELATIVE
COST
Low
Moderate
High

Part 3: Board of Immigration Appeals (continued)
Finalize 2008 proposed rule that
would make Affirmance Without
Opinion discretionary rather than
mandatory. Written decisions should
address all non-frivolous arguments
raised by the parties, thus providing
sufficient information to facilitate
review by federal appeals courts, to
allow participants to understand the
Board’s decision, and to promote
their confidence in the fairness of
the decision.

3-IV.B
ES-32

Regulation

Short Term

Incremental

Moderate

Apply new code of conduct proposed
for immigration judges, based on the
ABA Code of Judicial Conduct, to
Board members as well.

3-IV.F
ES-34

Existing

Short Term

Both

Low

Part 4: Judicial Review
Enact legislation to restore courts’
authority to review discretionary
decisions under the abuse of discretion
standard in effect prior to 1996
legislation. Require that courts apply a
presumption in favor of judicial
review and specifically reject attempts
to insulate more and more actions by
labeling them as discretionary.

4-IV.A
ES-36

Legislation

Short Term

Both

Moderate

Amend the INA to permit the courts of
appeals to remand cases for further fact
finding under the standard provided in
the Hobbs Act for review of other
agency actions — i.e., where “the
additional evidence is material” and
“there were reasonable grounds for
failure to adduce the evidence before
the agency.” See 28 U.S.C. § 2347(c).

4-IV.B
ES-36

Legislation

Long Term

Both

Moderate

1 Indicates whether the recommendation is an incremental reform, applies only in conjunction with the system restructuring proposal, or
applies in both cases.

REFORMING THE IMMIGRATION SYSTEM | ES-63

Table ES-1
Summary of Recommendations (continued)
DISCUSSION
(Part‑Section
In Report and
Starting Page
In Executive
Summary)

RECOMMENDATION
(Description)

AUTHORITY
NEEDED
Existing
Regulation
Legislation

RELATIVE
TIME FRAME
Short Term
Long Term

SCOPE OF
REFORM1
Incremental
Restructuring
Both

RELATIVE
COST
Low
Moderate
High

Part 4: Judicial Review (continued)
Require each final order in which the
government prevails to include notice
of right to appeal, the applicable circuit
court, and the deadline for filing an
appeal.

4-IV.C
ES-37

Regulation

Short Term

Both

Low

Extend the current 30-day deadline to
file a petition for review with the court
of appeals to 60 days, with the
possibility of a 30-day extension where
the petitioner is able to show good
cause or excusable neglect.

4-IV.C
ES-37

Legislation

Short Term

Both

Moderate

Long Term

Both

High

Part 5: Representation
Establish a right to governmentfunded counsel in removal
proceedings for indigent noncitizens
who are potentially eligible for relief
from removal and cannot otherwise
obtain representation. Apply this right
at all levels of the adjudication process,
including immigration court
adjudications, appeals at the BIA and
federal appellate courts, and habeas
petitions challenging expedited
removal. Provide representation at
government expense for
unaccompanied minors and
noncitizens with mental disabilities
and illnesses, at all stages of the
adjudication process, whether or not
the proceeding may necessarily lead to
removal. Eliminate the “no expense to
the Government” limitation of section
292 of the INA in order to limit
controversy over whether the
provision of government-funded
representation is permitted under
current law.

5-IV.A.1
ES-40

Legislation

1 Indicates whether the recommendation is an incremental reform, applies only in conjunction with the system restructuring proposal, or
applies in both cases.

ES-64 | REFORMING THE IMMIGRATION SYSTEM

Table ES-1
Summary of Recommendations (continued)
DISCUSSION
(Part‑Section
In Report and
Starting Page
In Executive
Summary)

RECOMMENDATION
(Description)

AUTHORITY
NEEDED
Existing
Regulation
Legislation

RELATIVE
TIME FRAME
Short Term
Long Term

SCOPE OF
REFORM1
Incremental
Restructuring
Both

RELATIVE
COST
Low
Moderate
High

Part 5: Representation (continued)
Where representation at government
expense is required (as proposed
above), require it to be provided by an
attorney in proceedings raising
substantial questions of law, such as
appeals to the BIA where a significant
legal issue is presented, all appeals to
the federal appellate courts, and in the
preparation of habeas petitions
challenging expedited removal orders.
In other matters, in addition to
attorneys, second-level accredited
representatives would continue to be
able to represent the noncitizen.

5-IV.A.1
ES-40

Regulation

Long Term

Both

High

Expand the Legal Orientation Program
(“LOP”) to provide services for all
detainees and at immigration courts
for non-detained noncitizens in
removal proceedings.

5-IV.A.2
ES-41

Legislation

Long Term

Both

High

Modify the LOP’s current screening
system so that it screens all indigent
persons (not only detainees) in
removal proceedings and refers them
to individuals or groups who can
represent them in adversarial
proceedings, using a set of standards
developed by EOIR. The system would
also screen noncitizens to determine
whether they belong to one of the
groups entitled to representation.
Qualifying cases could be referred to
charitable legal programs or pro bono
counsel. Where these services were
unavailable, government-paid counsel
would be appointed. Establish an
administrative structure for the
enhanced LOP to enable it to provide
counsel at government expense for
noncitizens in some cases.

5-IV.A.3
ES-41

Legislation or
Regulation

Long Term

Both

High

1 Indicates whether the recommendation is an incremental reform, applies only in conjunction with the system restructuring proposal, or
applies in both cases.

REFORMING THE IMMIGRATION SYSTEM | ES-65

Table ES-1
Summary of Recommendations (continued)
DISCUSSION
(Part‑Section
In Report and
Starting Page
In Executive
Summary)

RECOMMENDATION
(Description)

AUTHORITY
NEEDED
Existing
Regulation
Legislation

RELATIVE
TIME FRAME
Short Term
Long Term

SCOPE OF
REFORM1
Incremental
Restructuring
Both

RELATIVE
COST
Low
Moderate
High

Part 5: Representation (continued)
Permit recognized nonprofit agencies
to charge “reasonable and appropriate
fees,” as opposed to “nominal
charges,” for their services.

5-IV.B.2.a
ES-41

Existing

Short Term

Incremental

Low

Have EOIR create a pro se litigant
guide in various languages and
distribute it to court clerks, charitable
organizations involved in immigration
matters, community organizations, pro
bono providers, and churches.

5-IV.B.2.b
ES-41

Regulation

Short Term

Incremental

Low

Require immigration judges to consult
with local bar associations and other
local stakeholders in determining the
criteria for inclusion on EOIR’s pro
bono service providers list.

5-IV.B.2.d
ES-42

Regulation

Short Term

Incremental

Low

Strictly enforce legal prohibitions
against the unauthorized practice of
law, and put in place mechanisms to
ensure that noncitizens are not
deprived of substantive and
procedural rights as a consequence of
the unauthorized practice of law. Have
courts and immigration officials
continue to follow EOIR’s Fraud
Program guidelines, monitor
immigration cases for indications that
fraudulent operators are at work, and
prosecute them to the full extent of
the law.

5-IV.B.1.b
ES-42

Existing

Short Term

Both

Low

1 Indicates whether the recommendation is an incremental reform, applies only in conjunction with the system restructuring proposal, or
applies in both cases.

ES-66 | REFORMING THE IMMIGRATION SYSTEM

Table ES-1
Summary of Recommendations (continued)
DISCUSSION
(Part‑Section
In Report and
Starting Page
In Executive
Summary)

RECOMMENDATION
(Description)

AUTHORITY
NEEDED
Existing
Regulation
Legislation

RELATIVE
TIME FRAME
Short Term
Long Term

SCOPE OF
REFORM1
Incremental
Restructuring
Both

RELATIVE
COST
Low
Moderate
High

Part 5: Representation (continued)
Amend EOIR’s Rules of Conduct to
allow for civil monetary penalties to be
imposed by immigration judges
against both private and government
attorneys.

5-IV.B.1.a
ES-42

Regulation

Short Term

Incremental

Low

Expand and improve the EOIR pro
bono program to facilitate and
encourage attorney participation.

5-IV.B.2.c
ES-42

Existing

Short Term

Incremental

Moderate

Part 6: System Restructuring
Create Article I court with trial and
appellate divisions, headed by Chief
Trial Judge and Chief Appellate Judge,
respectively. President appoints Chief
Appellate Judge, other appellate judges,
Chief Trial Judge, and possibly Assistant
Chief Trial Judges, with advice and
consent of Senate, from among persons
screened and recommended by a
Standing Referral Committee. Other
trial judges appointed by Chief Trial
Judge or Assistant Chief Trial Judges,
also using Standing Referral
Committee. Fixed terms of 12-15 years
for appellate judges, 8-10 years for trial
judges. Judges removable by
appointing authority only for
incompetency, misconduct, neglect
of duty, malfeasance, or disability.
Existing judges can serve out the
remainder of the new fixed terms
(which are deemed to have begun at
the time of their prior appointment to
current positions) and are eligible for
reappointment thereafter.

6-III.A.1
ES-9, 43

Legislation

Long Term

Restructuring

High

In the alternative, if Article I court is
not established, create independent
agency for both trial and appellate
functions.

6-III.A.2
ES-43

Legislation

Long Term

Restructuring

High

1 Indicates whether the recommendation is an incremental reform, applies only in conjunction with the system restructuring proposal, or
applies in both cases.

REFORMING THE IMMIGRATION SYSTEM | ES-67

Table ES-2
Features of Major Restructuring Systems
FEATURE

CURRENT SYSTEM

ARTICLE I COURT

INDEPENDENT AGENCY

HYBRID
APPROACH

Appointment of
Trial Judges

Appointed by Attorney
General. Chief
Immigration Judge (CIJ)
reviews applications and
refers candidates to
EOIR panels for review.
EOIR Director and CIJ
select at least 3
candidates to
recommend for final
consideration. Second
panel interviews finalists
and recommends one to
the AG, who approves
or denies. If denied,
either AG or Deputy AG
can request additional
candidates.

President appoints Chief
Trial Judge (CTJ) and
possibly Assistant Chief
Trial Judges (ACTJs)
with Senate
confirmation. CTJ
appoints trial judges; or
ACTJ for each region
appoints trial judges in
that region, with
approval of CTJ. Trial
judges selected from
among persons
recommended by
Standing Referral
Committee.

President appoints Chief
Immigration Judge (CIJ)
and possibly Assistant
Chief Immigration
Judges (ACIJs), with
Senate confirmation.
Alternatively, ACIJs
selected by CIJ from
among current IJs based
on recommendations
from Standing Referral
Committee. Other trial
judges appointed based
on merit selection
system (including
testing) similar to the
one now used to hire
Administrative Law
Judges, but administered
by the new agency
rather than OPM.

Same as in
independent
agency model.

Appointment of
Appellate
Judges

AG has authority to
appoint, but it is
sometimes delegated.

President appoints Chief
Appellate Judge and
other appellate judges,
with Senate
confirmation. Selected
from among persons
recommended by
Standing Referral
Committee.

President appoints
Chairperson and
members of Board of
Immigration Review,
with Senate
confirmation. Selected
from among persons
recommended by
Standing Referral
Committee.

Same as in
Article I court
model.

ES-68 | REFORMING THE IMMIGRATION SYSTEM

Table ES-2
Features of Major Restructuring Systems (continued)
FEATURE

CURRENT SYSTEM

ARTICLE I COURT

INDEPENDENT AGENCY

HYBRID
APPROACH

Qualifications of
Trial Judges

Licensed to practice law
in a state, territory or
DC; US citizen; at least
7 years of relevant legal
experience; at least one
year equivalent to GS15; and either
(1) knowledge of
immigration law and
procedure,
(2) substantial litigation
experience,
(3) experience handling
complex legal issues,
(4) experience
conducting admin.
hearings, or
(5) knowledge of
judicial
practices/procedures.

Licensed to practice law
in a state, territory,
Puerto Rico or DC; US
citizen; 5 years of
experience as licensed
attorney or judge
involved in litigation or
admin. law matters at
federal, state or local
level. Strong
consideration to
candidates with at least
5 years of experience in
immigration law.

Licensed to practice in a
state, territory, Puerto
Rico or DC; US citizen;
at least 7 years of
experience as licensed
attorney preparing for,
participating in and/or
reviewing formal
hearings or trials
involving litigation
and/or admin. law.
Strong consideration to
at least 5 years of
experience in
immigration law.

Same as in
independent
agency model.

Tenure of Trial
Judges

No fixed term.

Fixed renewable terms
of moderate length (e.g.,
8-10 years).

CIJ appointed for
relatively short term
(e.g., 5-7 years). All
other judges have
unlimited tenure (like
ALJs).

Same as in
independent
agency model.

Tenure of
Appellate
Judges

No fixed term.

Fixed, relatively long
renewable terms (e.g.,
12-15 years).

Fixed, relatively short
renewable terms (e.g.,
5-7 years).

Same as in
Article I court
model.

Removal of
Judges

Removable by AG at any
time without cause.

Only for incompetency,
misconduct, neglect of
duty, malfeasance or
disability. Appellate
judges, CTJ and possibly
ACTJs are removable
only by the President.
Other trial judges are
removable by CTJ on
recommendation of the
ACTJ for the applicable
region and with
concurrence of other
ACTJs.

Board members and CIJ
can be removed by
President only for
inefficiency, neglect of
duty or malfeasance.
ACIJs can be removed as
ACIJs by the CIJ under
same standard.
Immigration judges (like
ALJs) can be removed
only for good cause after
hearing before Merit
Systems Protection
Board (MSPB), subject
to judicial review.

Same as
Article I
model for
appellate
judges.
Same as
independent
agency model
for trial
judges.

REFORMING THE IMMIGRATION SYSTEM | ES-69

Table ES-2
Features of Major Restructuring Systems (continued)
FEATURE

CURRENT SYSTEM

ARTICLE I COURT

INDEPENDENT AGENCY

HYBRID
APPROACH

Supervision and
Evaluation

CIJ is responsible for
supervision of
immigration judges,
with assistance of ACIJs.
IJs are exempt from
performance appraisals
applicable to other civil
service employees, but
subject to caseload
review. EOIR and NAIJ
are negotiating
performance review
system.

Trial judges supervised
by their local ACTJ.
Appellate judges
supervised by Chief
Appellate Judge.
Performance reviews
based on ABA
Guidelines for
Evaluation of Judicial
Performance and model
for judicial performance
evaluation proposed by
Institute for
Advancement of the
American Legal System.
System stresses
improvement and
cannot be used for
discipline.

Similar to Article I court
model. Performance
reviews are used to
promote improvement
and cannot be used as
basis for rewarding,
reassigning, promoting,
reducing in grade,
retaining or removing an
Immigration Judge.

Same as
Article I court
model for
appellate
judges.
Same as
independent
agency model
for trial
judges.

Discipline

Immigration judges
subject to multiple
codes of conduct and
ethics. Complaints filed
with ACIJ and
forwarded to Office of
CIJ. Assistant Chief
Judge for Conduct and
Professionalism reviews
all complaints and
allegations of
misconduct. EOIR may
refer complaints to DOJ
Office of Professional
Responsibility or Office
of Inspector General.

Judges subject to code of
ethics and conduct
based on ABA Model
Code of Judicial
Conduct and complaint
procedure similar to
what is used for other
federal judges.

Agency would have
separate office
responsible for
receiving, reviewing and
investigating complaints
against Board members
and IJs. Discipline
subject to review by
MSPB and subsequent
judicial review.

Same as
Article I court
model for
appellate
judges.
Same as
independent
agency model
for trial
judges.

ES-70 | REFORMING THE IMMIGRATION SYSTEM

Table ES-3
Comparison of Major Restructuring Options
CRITERIA

ARTICLE I COURT

INDEPENDENT AGENCY

HYBRID APPROACH

Independence

Viewed as more independent
because it is a wholly judicial
body.

Method of selection, unlimited
tenure and protection against
removal for trial judges gives
them greater independence
than judges on a court.

Combines independence of
trial judges with more judicial
features at the appellate level.

Perceptions
of Fairness

Likely to engender greatest
level of confidence, as a wholly
judicial body.

Professionalization of the
immigration judiciary at trial
judge level should increase
public confidence.

Combines confidence derived
from professionalization at trial
level with confidence in judicial
body at appellate level.

Quality of
Greater prestige of Article I
Judges and
court judgeship may attract
Professionalism more qualified candidates.

Method of selection, unlimited
tenure and protection against
removal offers greater job
security to trial judges.

Combines greater job security
at trial judge level with greater
prestige of a court at appellate
level.

Efficiency, Cost Ability to fill and maintain
and Ease of
several hundred judgeships at
Administration trial court level could be
significant challenge.

Can fill and maintain trial
judge positions through proven
civil service type of process.

Most costly option, requires
creation and operation of two
new distinct institutions.

Accountability

Trial judges with fixed terms
will be more accountable to the
President and Congress.

Trial judges chosen by merit
system with unlimited tenure
will have little or no
accountability to the political
branches.

Combines little or no
accountability to the political
branches at trial judge level
with greater accountability at
appellate level.

Impact on
Article III
Courts

Greater independence and
perceptions of fairness could
result in fewest appeals to
circuit courts.

Should reduce the number of
appeals to circuit courts, but
possibly not as much as Article
I court.

Impact should be somewhere
between independent agency
and Article I court.

REFORMING THE IMMIGRATION SYSTEM | ES-71

American Bar Association
Commission on Immigration
740 Fifteenth Street, NW
Washington, DC 20005-1022
202-662-1005

Reforming
the Immigration
System
Proposals to Promote
Independence, Fairness,
Efficiency, and Professionalism
in the Adjudication
of Removal Cases

Executive Summary

Commission on Immigration
740 Fifteenth Street, NW
Washington, DC 20005-1022
immcenter@abanet.org

Commission on Immigration