NOI 27: U.S. Immigration Courts: Part 3

Today we continue our discussion about U.S. immigration courts and how external pressures lead to changing standards in our immigration courts.

Jacob Tingen: Today, we are going to kick off this week with a discussion about US immigration courts. This is part three and we’re going to touch base on something called Attorney General certification and how that plays into the immigration court context and into removal proceedings. Let’s get going.

Announcer: You’re listening to Nation of Immigrants.

President Obama: America is a nation of immigrants.

Announcer: A podcast about US immigration law with your host Jacob Tingen.

Jacob Tingen: Okay, so as I said, we’re going to continue our discussion of US immigration courts. In the past couple of episodes, we’ve been talking about tent courts at the US-Mexico border, we’ve been talking about external pressures on judges, quotas that they have and just kind of the pressures that they feel in their positions. Again, don’t envy judges, immigration judges right now they are going through a lot, and I think many of them are doing exceptionally well considering the tumult molten change in the department generally. This is not a making a case against any immigration judge and I wouldn’t want to imply that, but I do think that there’s a case to be made that these external pressures that are being applied to immigration judges affects their ability to decide cases in an impartial manner.

Jacob Tingen: This is something that immigration advocates are talking about, it’s something that immigration judges are talking about, it’s something that the Federal Bar Association is talking about, the American Bar Association, and what we can do or what we can change in the immigration court process to make it more fair and impartial, so this is something that a lot of people are looking at and a lot of people are talking about.

Jacob Tingen: One of the things in particular that people are looking at is this phenomenon called Attorney General certification. What is Attorney General certification? How does it work? What does this have to do with immigration? We’re going to answer all of those questions today, right now, and hopefully we can get to the bottom of how some of these external pressures are playing a role in our immigration courts.

Jacob Tingen: Now, for those of you who’ve listened to the last couple of episodes, you already know that our nation’s immigration courts are not separate and independent courts, they are actually part of the executive branch of government, so inherently it makes it difficult for an immigration judge to make impartial and independent decisions when, in a way, they are beholden to the executive branch of government, a political branch of government. As we talked about last time, we have three branches of government to ensure that this judicial process is as impartial as possible. Of course, humans are imperfect, bias is everywhere. However, the judicial branch and judges in particular have this duty to at least strive to be as impartial as possible. It’s increasingly difficult to do that in an administration like the Trump administration where even Chief’s Justice John Roberts has said about Trump’s comments or remarked in response to Trump’s comments that we don’t have Obama judges and Bush judges, we just have judges.

Jacob Tingen: And that’s the way it should be. I agree with that. And so in the immigration court context, when we see a political arm of government try to essentially take over what should be impartial judicial determinations, that’s alarming. That’s concerning. That’s one of the current problems in the immigration court context.

Jacob Tingen: To kick us off, I want to share a graphic. For those of you who are listening, if you do manage to watch the video, this is Nation of Immigrants episode 27. It will be available on YouTube and also, but I’ve put up a graphic here for those who are watching. It’s titled a visual overview of the immigration court system and where appeals and AG certification fit in. This is a graphic that I used in a presentation over the summer. It shows that the EOIR, what most of US know is the immigration court, has the long formal name of the Executive Office for Immigration Review, EOIR. Then you can appeal from that organization up to the Board of Immigration Appeals, Board of Immigration Appeals, the BIA. Then I have a very light square around this and the text under the DOJ, so it’s under the executive branch of government. Then there are lines between the BIA and the EOIR to the Attorney General, AG certification. We’ll bring this graphic back, but for now I’ll take it away.

Jacob Tingen: What that graphic is trying to communicate and what I want to communicate here in this podcast is that the EOIR, the immigration courts, the Board of Immigration Appeals, the first level of appeal and the Attorney General or all are all arms of the executive branch of government. They’re all part of whoever the president is at the time. The courts, the judges, and the Attorney General are all essentially subject to the will of the president of the United States, the executive branch of government. Currently, that’s Trump. So, it stands to reason that we should look at what’s been happening via Attorney General certification over the past several years.

Jacob Tingen: Now, if you look back to Clinton, Democrat president administrations have not been as active using Attorney General certification as the Bush administration, and now the Trump administration has been. And even the level of activity of the Bush administration is nowhere near the level of activity of the Trump administration. Trump and his Attorney’s General have used Attorney General certification in a way that is previously unseen.

Jacob Tingen: So, what is it? What is Attorney General certification? Well, there’s a provision in the regulations that basically allows the Board of Immigration Appeals to look at a new issue, a nuanced issue, an issue where their judges are making different decisions and they’re seeing lots of splits from judges about how to decide certain issues, and basically it gives them the authority to say, “You know what? I want some guidance from the Attorney General. I’m going to certify this case to the Attorney General.” Okay? That’s one scenario where cases can be certified to the Attorney General where the Board of Immigration Appeals asks for this. Another way that cases can be certified to the Attorney General is when the Attorney General says, “I’m going to certify a case to myself,” and he can just do that.

Jacob Tingen: What we’ve seen under the Trump administration is that Jeff Sessions in particular, but also William Barr, has essentially just plucked cases from immigration precedent decisions and said, “I’m going to completely overturn years of precedent and change the interpretation of asylum law with varying degrees of effectiveness.” I’ll give you two examples and then I’ll talk about additionally some of the more external pressures that we’re seeing immigration judges having to put up with.

Jacob Tingen: One of the cases that came out from Attorney General Jeff Sessions was Matter of AB, where he took a case, I believe it was a domestic violence-based asylum claim. Now for a period of years, through the Bush administration and the Obama administration, immigrant advocates, immigration judges, immigration attorneys, government attorneys, everybody kind of came together and it developed a body of case law, which is pretty normal, but developed a body of case law, which accepted from central American particular but perhaps from other countries, women in a domestic relationship who are unable to flee as a particular social group.

Jacob Tingen: Now, we haven’t gone on a deep dive into asylum in particular social groups, but to when asylum you have to show that you’ve been persecuted on account of your membership in a particular social group. It lists four examples of that: race, religion, nationality, political opinion, or any particular social group. A body of case law has developed that and that pretty much said women fleeing domestic who in their countries cannot escape due to societal pressures, or corruption, or whatever the case may be, could form a particular social group. And there were varying precedents that came out.

Jacob Tingen: One in particular, the Matter of ARCG where the BIA said, “Hey, this is settled law. Women in a domestic violence relationship who can’t escape form a social group.” They didn’t conduct much analysis, and we can talk about the BIA and their lack of analysis later. What’s interesting is that this opinion didn’t conduct much analysis, but it didn’t have to because it was widely accepted that this is the case in asylum circles. People who practice this all the time know that, well, hey. I can propose a social group of women in a relationship with domestic violence and have a recognizable particular social group and I have a shot at winning if I can prove the other factors in addition to proving this factor. Because it’s not just the legal argument, you have to have the facts to back it up.

Jacob Tingen: Well, so Attorney General Jeff Sessions got ahold of the ABK, certified it to himself, and then wrote a wide ranging opinion. The majority of the text, the holding was pretty narrow actually, and then he went on for several pages in what’s known as dicta, which means it’s not necessarily binding. But in that dicta and opinion, just kind of set out something that overrides a lot of the consensus that has been reached among immigrant advocates and immigration attorneys and government attorneys with regards to people fleeing domestic violence who are unable to leave those relationships.

Jacob Tingen: He also had a lot to say about private actors and how private action couldn’t justify a grant of asylum, that the whole point is that governments are persecuting people. Which isn’t necessarily the case. The statute for asylum says that if the government is unwilling or unable to prevent the persecution, so it acknowledges that there are groups, heck, they’re even terrorist groups that work against the law within their own countries and the government is unable to prevent that. If the government had to be the persecutor, then people fleeing ISIS in Syria and those kinds of things wouldn’t qualify for asylum, and that’s mind-blowingly bizarre. Of course those people qualify for asylum.

Jacob Tingen: Anyway, these arguments put forth by Jeff Sessions were widely decried as against asylum law, as overturning decades of precedent and progress, as not being well-reasoned legally. Lots of people said clearly Jeff Sessions wanted to be on the Supreme Court, but he’s not a very good legal scholar. You know, there were lots of things that were said, and not many of them very kind towards Jeff Sessions. Then of course, some people on the immigration hardliners side were like, “No, Jeff Sessions did a great job. This is, of course, asylum was never meant for these private actors and those kinds of things.” I’m of the opinion that it was poorly written. Again, it wasn’t effective in doing what it needed to do, and frankly it flies in the face of a lot of facts. Yeah.

Jacob Tingen: But that’s an example of how Attorney General certification has been used. Now, I’m going to give you another example of how Attorney General certification has been used by the current Attorney General, William Barr. There’s a case that came out of the Board of Immigration Appeals a couple of years ago, Matter of LEA and basically it tried to narrow, again the definition of a particular social group. Now, for years it has been widely accepted, not only in many cases before immigration judges, and in some cases before the BIA, and in many judicial circuits, have come out and said family is a particular social group. Kinship ties, that’s a, that’s a particular social group. You know, the inquiry ends there. We don’t have to think a lot about this a lot. Of course family is the basis for a particular social group. So if you’re being persecuted because of your family relationship, then you can get an asylum in the United States, as long as you can prove the other factors you have to prove.

Jacob Tingen: LEA narrowed that a bit, but even it I believe had a footnote about cases in the fourth circuit saying we don’t know that this necessarily applies in the fourth circuit. Well, William Barr gets ahold of LEA, certifies it to himself, and then writes a fairly wide-ranging opinion. He looks and says, “Look, there are all these circuit courts, federal judges who have determined that family is a particular social group.” Then he said, “They’re all wrong.” Which to me is fascinating, that one person appointed by someone with political ambitions, a president, can overturn the consensus of many a circuit court with the stroke of a pen.

Jacob Tingen: What’s interesting is that there’s this now inequity where people are saying, well, does four circuit precedent apply here in Virginia on the issue of family as a social group or does the Attorney General’s opinion control? Because generally when you take issue with a case that’s decided at the level of the Board of Immigration Appeals, or I presume even an Attorney General opinion that he just makes when he certifies an opinion to himself, you can appeal. It’s called a Petition for Review, and I’m going to bring my graphic back.

Jacob Tingen: You can appeal up to the federal appellate court for whatever geography you’re in, and that appeals to the federal circuit are called Petitions for Review of an agency decision. The court can only overturn decisions when they’re manifestly contrary to law and an abuse of discretion. Then additionally, federal courts apply a legal doctrine known as Chevron Deference to agency decisions. That’s going to be another video, so forget Chevron Deference for now. But essentially to overturn a decision, you have to prove that this is just completely against how the law should be.

Jacob Tingen: What’s interesting is if you’re looking at the chart, and for those of you who are listening, your first opportunity to be heard by an impartial entity is at the federal appellate court level. If you’re talking to an immigration court judge, or to a Board of Immigration Appeals, or even the Attorney General, all these people answer to the president. That’s the executive branch of government. This is the first time that if you appeal your case up to this level, that your case is actually heard by a panel of impartial judges. That matters. We should have judicial independence and it would lead to a lot of different results.

Jacob Tingen: Let me follow up and just kind of finish off with this, external pressures the immigration judges have had to put up with. In the past, immigration judges could manage their docket, so the cases before them, by using something called administrative closure. So let’s say I’ve got somebody who’s come into my immigration court for removal proceedings, and I’ve got to make a determination onto whether or not they should be deported or removed from the country. But their attorney also presents, “Hey, this particular immigrant is married to a US citizen and their process is almost done. We just need to wait on USCIC to finish up a couple of things, and then there’ll be a green card holder and wouldn’t be subject to deportation.” Just to give you kind of an example. Okay?

Jacob Tingen: In the past, a judges could have that discretion to just kind of administratively close it, or even possibly a working with government attorneys to terminate cases, so that they could manage their docket, that we’ve got a million case backlog. This was widely accepted, normal. It was a good thing. I’ve talked about this before in a prior Nation of Immigrants episode, I think it’s 14 about the decision in Zuniga V. Bar, and this is where we’re headed.

Jacob Tingen: So, decisions about administrative closure have been appealed up to the fourth circuit. The Attorney General certification opinion was called Matter of Castro-Tum that said that immigration judges could no longer administratively close. That’s, you know, a good, we have to point this out. The Attorney General said, “No more. No more administrative closure. We’re not doing that.” I think this was a Jeff Sessions opinion where even said, “Judges have never really had this power and it was wrong to do it in the past.” Well, finally this issue gets appealed to the fourth circuit and Zuniga V. Bar and the fourth circuit overturns it and says, “Hey, judges of course can manage their own dockets,” and talks about a lot of reasons why administrative closure, and they actually went to a lot of the case law before a Matter of Castro-Tum and said, “Hey, that reasoning is still good reasoning,” and they even come up with some additional reasoning to support administrative closure by an immigration judge and said, “Of course judges can manage their own dockets.”

Jacob Tingen: There’s a lot of parallels between administrative closure and other courts scenarios, which is why it’s been being done for so many years. They said, “The agency can’t just make an about face on this issue just because it fits their essentially political agenda.” I mean, I don’t think they went that far. It’s been a while since I heard the opinion. But that’s an example of an external pressure on the immigration court system. It doesn’t make the courts more efficient. It doesn’t lead to more equitable results. It makes it harder for everybody. It makes it more likely for immigration court system to collapse, which some people believe is the purpose behind some of these rules. But in the end, it leads to a less fair, less impartial process.

Jacob Tingen: That’s kind of why I wanted to point out here is that the immigration courts are struggling under an enormous burden, and the actions that are being taken via Attorney General’s certification are only making that burden higher for immigrants and for judges. So when an immigrant looks at winning or losing their case, and I explain in part some of this stuff to my clients, and I say, “Hey, the first time you’re going to be heard by a truly impartial judges after you appeal two times,” and I explained to them some of the things that have been happening with Attorney General certification and results when people appeal, most clients realize, they say, “It’s totally worth it for me to appeal, isn’t it?” And I say, “Yes. Yes it is. In the current climate, it’s totally worth it for you to appeal, because that may be the first time you get a shake, a fair shake without any external pressure and an opportunity to have legal reasoning, widely-accepted legal reasoning applied to your case that isn’t being determined at the stroke of a pen by the Attorney General because of political considerations.”

Jacob Tingen: And that is what’s happening. I mean, this is no secret. People are talking about this. I just feel like it’s an important part of the immigration debate to add a little nuance. I know I said I’d never wanted to get too much into the weeds on these podcasts, but we got into the weeds a bit today, but you kind of have to, that this court system exists that is pretty much controlled by the executive branch. And if the executive branch doesn’t like the way that the immigration attorneys, the immigration judges and the government attorneys are beginning to adjudicate cases, he can, through the Attorney General, just that, just because they feel like it. It has these repercussions for different individuals and different cases and it causes the circuits to get involved.

Jacob Tingen: The next time, I want to talk about this thing called Chevron Doctrine and Chevron Deference. We’ll talk about how that influences the appellate courts as they review decisions from the immigration courts. But it’s a continuation of the same topic, that our US immigration courts are really struggling to manage what is essentially a backlog of a million cases that frankly doesn’t need to be that big. Obama, even if you felt like he deported a lot of people, the way that he organized things made sense, and it really did streamline immigration court, make things a lot more efficient, deport more immigrants with criminal records.

Jacob Tingen: Just by comparison of the two different methods, one is more effective than the other. Period. Then there’s this added layer of Attorney General certification and how it’s complicated things for a lot of people that needs to be talked about more. And so like I said, next time we’ll talk Chevron Deference and we’ll talk about, frankly, the need for an independent and impartial immigration judiciary.

Jacob Tingen: So, next time on Nation of Immigrants. Thanks again for listening. If you’d like to continue to support the podcast, visit me and You can click on the link for podcasts and make a donation there. We’re almost done with our nonprofit setup. Then also, you can find US on YouTube, Facebook, Twitter, follow us, subscribe. Thank you. Again, we’re more than a hundred subscribers now, so I’m probably pretty excited about that. And yeah, have a good one. Until next time,

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