University of Cincinnati Law Review University of Cincinnati Law Review
Volume 86 Issue 3 Article 4
December 2018
Creating an Article I Immigration Court Creating an Article I Immigration Court
Rebecca Baibak
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Rebecca Baibak,
Creating an Article I Immigration Court
, 86 U. Cin. L. Rev. 997 (2018)
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997
CREATING AN ARTICLE I IMMIGRATION COURT
Rebecca Baibak
*
I. INTRODUCTION
“[O]ur Constitution unambiguously enunciates a fundamental
principle – that the ‘judicial Power of the United States’ must be reposed
in an independent Judiciary. It commands that the independence of the
Judiciary be jealously guarded, and it provides clear institutional
protections for that independence.”
1
Despite this fundamental principle,
today noncitizens are routinely denied independent adjudication because
the immigration courts and the Board of Immigration Appeals (“BIA”)
are housed in the Department of Justice (“DOJ”), which is directly under
the Attorney General’s control.
2
The Attorney General has exercised this
control by selecting only immigration adjudicators who agree with his or
her political opinions
3
and by terminating judges who do not agree with
those political beliefs.
4
These displays of power lurk in the back of
immigration adjudicators’ minds when making decisions. As a result,
noncitizens are routinely denied their constitutional right to an
independent judiciary.
5
This comment explores some of the many problems with the current
immigration adjudication system and advocates that Congress convert
the immigration courts and the BIA into Article I courts to provide
noncitizens a truly independent judiciary. Section II, Parts A and B
examine the current immigration adjudication system and some of its
many problems. Section II, Parts C and D review the line of Supreme
Court decisions beginning with Northern Pipeline, which assessed the
constitutionality of Article I courts, and outlined the structure of a
current Article I court: the U.S. bankruptcy court. Next, Section III, Part
A argues that Congress should create Article I immigration courts that,
like bankruptcy courts, have a trial and appellate division. Last, Section
III, Part B applies the Northern Pipeline line of decisions and claims,
first, that federal courts should have greater ability to review
immigration decisions and, second, that the standard of review in federal
* Associate Member, 2016-2017 University of Cincinnati Law Review.
1
. N. Pipeline Constr. Co. v. Marathon Pipe Line Co., 458 U.S. 50, 60 (1982).
2
. About the Office, THE UNITED STATES DEPARTMENT OF JUSTICE (Feb. 9, 2017),
https://www.justice.gov/eoir/about-office.
3
. See Stephen H. Legomsky, Fortieth Annual Administrative Law Issue: Immigration Law and
Adjudication: Restructuring Immigration Adjudication, 59 D
UKE L. J. 1635, 1665-1666 (2010).
4
. Id. at 1669.
5
. Noncitizens are entitled to due process because the Due Process Clause applies to all
“person[s]” regardless of their immigration status. Japanese Immigrant Case, 189 U.S. 86 (1903).
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court should not be deferential to the Article I immigration courts.
II.
BACKGROUND
Before discussing possible reforms to the immigration adjudication
system, one must understand the structure of the current arrangement,
the problems this structure creates, and the constitutionality of
legislative courts. Part A discusses the organization of the immigration
adjudication system by following the removal process of a noncitizen
who asserts asylum as a defense.
6
Next, Part B explores some of the
current immigration court system’s problems including the inherent
difficulty of immigration cases, disparities in outcomes among
immigration judges, the mounting backlog on the immigration docket,
and, most importantly, the Attorney General’s control over the
immigration adjudication system. Part C examines recent Supreme
Court decisions that review the constitutionality of legislative courts.
Last, Part D provides an overview of the bankruptcy courts’ structure,
an existing legislative court.
A. The Structure of the Current Immigration Adjudication System
The removal process begins when the Department of Homeland
Security (“DHS”) serves a noncitizen a notice to appear before an
immigration court.
7
The DHS is a cabinet-level executive agency that
enforces immigration laws and provides U.S. immigration benefit
services.
8
After being served, the noncitizen appears before an immigration
court. Immigration courts are trial-level courts housed in the DOJ, which
sit in fifty-seven locations in twenty-eight states.
9
Even though
jurisdiction of the immigration courts spans a wide array of immigration
related matters, the vast majority of their cases are removal
6
. The comment follows an asylum case because asylum is one of the few types of cases that
can be appealed all the way up to the federal circuit courts. A
MERICAN BAR ASSOCIATION
COMMISSION ON IMMIGRATION, JUDICIAL REVIEW BY CIRCUIT COURTS: REFORMING THE
IMMIGRATION SYSTEM: PROPOSALS TO PROMOTE INDEPENDENCE, FAIRNESS, EFFICIENCY, AND
PROFESSIONALISM IN THE ADJUDICATION OF REMOVAL CASES 4-9 (2010),
http://www.americanbar.org/content/dam/aba/migrated/Immigration/PublicDocuments/full_report_part4
.authcheckdam.pdf, [hereinafter J
UDICIAL REVIEW BY CIRCUIT COURTS].
7
. Legomsky, supra note 3, at 1641.
8
. AMERICAN BAR ASSOCIATION: COMMISSION ON IMMIGRATION, REFORMING THE
IMMIGRATION SYSTEM: PROPOSALS TO PROMOTE INDEPENDENCE, FAIRNESS, EFFICIENCY, AND
PROFESSIONALISM IN THE ADJUDICATION OF REMOVAL CASES 19 (Executive Summary, 2010),
http://www.americanbar.org/content/dam/aba/publications/commission_on_immigration/coi_executive_
summary.authcheckdam.pdf, [hereinafter R
EFORMING THE IMMIGRATION SYSTEM].
9
. Id. at 27.
2
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proceedings.
10
Whilst under the jurisdiction of the immigration court,
the noncitizen may seek relief in the form of asylum or withholding of
removal.
11
Alternatively, a noncitizen who is not in a removal
proceeding can assert an affirmative asylum claim by filing an asylum
application with the U.S. Citizenship and Immigration Services
(“USCIS”), which is a component of the DHS.
12
If the application is
granted, the applicant is eligible for permanent resident status.
13
But, if
the application is denied, the asylum applicant is referred to an
immigration court for removal and the noncitizen can assert asylum as a
defense.
14
Then an immigration judge hears the asylum defense and
renders a decision.
15
If the immigration judge finds the noncitizen has a
valid asylum defense, then the judge grants asylum.
16
Once the final order is issued, the opposing party may appeal the
decision to the BIA,
17
a seventeen-member appellate-level body
18
housed in the DOJ.
19
An appeal to the BIA stays removal orders.
20
The
BIA conducts de novo review of legal issues and reviews facts
determined by the immigration court under the highly deferential
“clearly erroneous” standard.
21
The BIA may choose to reject the
asylum claim, remand with instructions, or grant asylum.
22
In an increasingly limited set of circumstances, the noncitizen may
appeal the BIA decision to a federal court of appeals.
23
The noncitizen’s
ability to appeal to federal courts has dramatically changed in recent
years.
24
Historically, Article III courts could hear immigration cases
under their habeas corpus jurisdiction.
25
The standard of review for facts
in a habeas petition was “substantial evidence,” meaning the decision
was only overturned if the facts required a contrary result.
26
10
. Id.
11
. Legomsky, supra note 3, at 1642.
12
. See, e.g., REFORMING THE IMMIGRATION SYSTEM, supra note 8, at 19.
13
. Leonard Birdsong, Reforming the Immigration Courts of the United States: Why is There No
Will to Make It an Article I Court?, 19 B
ARRY L. REV. 17, 23 (2013).
14
. Legomsky, supra note 3, at 1642.
15
. Id.
16
. See Birdsong, supra note 13, at 23.
17
. Legomsky, supra note 3, at 1643.
18
. Christine Lockhart Poarch, Immigration Court Reform: Congress, Heed the Call, FED.
LAW., Oct.-Nov. 2016, at 10.
19
. About the Office, supra note 2.
20
. Legomsky, supra note 3, at 1643.
21
. Lawrence Baum, Fortieth Annual Administrative Law Issue: Immigration Law and
Adjudication: Judicial Specialization and the Adjudication of Immigration Cases, 59 D
UKE L. J. 1501,
1513-14 (2010).
22
. Birdsong, supra note 13, at 25-26.
23
. Legomsky, supra note 3, at 1643-44.
24
. See, e.g., JUDICIAL REVIEW BY CIRCUIT COURTS, supra note 6, at 4-5 – 4-9.
25
. Id. at 4-5.
26
. Id. at 4-6.
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Discretionary decisions were reviewed under the abuse-of-discretion
standard and legal conclusions were reviewed de novo.
27
However, in
1996, Congress passed two amendments to the Immigration and
Nationality Act (“INA”): the Antiterrorism and Effective Death Penalty
Act (“AEDPA”) and the Illegal Immigration Reform and Immigrant
Responsibility Act (“IIRIRA”).
28
Together the amendments bar federal
review of most discretionary decisions and crime-related removal
orders.
29
Further, in 2005 the REAL ID Act eliminated habeas corpus
review.
30
These restrictions are problematic because the vast majority of
noncitizens in removal proceedings apply for discretionary relief
31
and
often the distinction between a legal question about a statute (which is
reviewable under the amendments) and discretionary use of power
granted in accordance with a statute (which is not reviewable) is
unclear.
32
Today, asylum is the only discretionary issue that is
reviewable by the federal courts of appeals.
33
What is more, the
amendments created a complex layering of procedural rules and
exceptions and, as a result, the federal courts of appeals have developed
a “convoluted labyrinth of case law construing the exceptions,” which
some argue waste the noncitizen and the court’s time and money.
34
If a case is fortunate enough make it to the federal courts, the court of
appeal’s ability to review the case is limited. By stripping habeas corpus
jurisdiction and restricting remand, Congress has virtually eliminated
the court of appeal’s ability to order fact finding.
35
Indeed, when
reviewing BIA decisions, the federal courts of appeals must decide
“only on the administrative record.”
36
According to the INA, “[t]he
administrative findings of fact are conclusive unless any reasonable
adjudicator would be compelled to conclude to the contrary.”
37
The
inability to remand for further fact finding is particularly problematic in
asylum and torture cases because country conditions can change rapidly
so by the time the case reaches the court of appeals three to four years
after the case began the administrative record can be vastly inaccurate.
38
27
. Id.
28
. Id. at 4-3.
29
. Legomsky, supra note 3, at 1696.
30
. JUDICIAL REVIEW BY CIRCUIT COURTS, supra note 6, at 4-8.
31
. Legomsky, supra note 3, at 1696.
32
. JUDICIAL REVIEW BY CIRCUIT COURTS, supra note 6, at 4-10.
33
. Id. at 4-9.
34
. Id. at 4-3.
35
. Id. at 4-12. Lendo v. Gonzales, 493 F.3d 439, 443 n.3 (4th Cir. 2007), Gebremaria v.
Ashcroft, 378 F.3d 734, 737 (8th Cir. 2004), and Wan Ping Lin v. Mukasey, 303 Fed. Appx. 465, 468
(9th Cir. 2008) are all examples of cases where the court of appeals noted that the outcome would have
been different if they could remand for further fact-findings.
36
. 8 U.S.C. §1252(b)(4)(A) (2017).
37
. 8 U.S.C. §1252(b)(4)(B) (2017).
38
. JUDICIAL REVIEW BY CIRCUIT COURTS, supra note 6, at 4-15. To deal with this problem
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Furthermore, unlike appeal to the BIA, appeal to the courts of appeals
does not stay removal orders, so a noncitizen can be removed while
appeal is pending.
39
After reviewing the BIA decision, the courts of
appeals may remand the case to the BIA with instructions or can reject
the BIA ruling, which has resulted in a several circuit splits.
40
B. Problems with the Immigration Courts and the BIA
The first problem with the immigration adjudication system is that the
current scheme exacerbates the already inherently difficult nature of
immigration cases. Immigration cases are fact intensive
41
and, in asylum
cases, courts are often unable to ascertain the facts with certainty and
must rely on the asylum seeker’s testimony.
42
However, the noncitizen
may not be able to communicate well due to language barriers and
inexperience with the law.
43
Judges often have to work with translators
and must go over the facts several times to make sure the judge
understands the noncitizen’s testimony.
44
These inherent difficulties are
made worse by immigration law’s often-ambiguous legal standards
45
and the noncitizen’s pro se status.
46
In addition to ascertaining what
happened in the past, an asylum decision requires the judge to predict
what would happen if the asylum seeker were deported.
47
Immigration
judges must use their speculations about the past and future to make a
life-altering dichotomous decision: the judge either orders removal or
does not.
48
In our present system, these are the only two options and the
judge does not have an opportunity to reconsider the decision once the
noncitizen is deported.
49
When a judge struggles to determine an accurate legal conclusion, the
judges’ preferences are more likely to affect the final decision.
50
Currently, there are sharp disparities in the rate individual immigration
some courts of appeals take judicial notice but this option is restricted by the Rules of Evidence,
therefore a legislative solution that restores the authority to remand is preferable. Id. at 16.
39
. Legomsky, supra note 3, at 1643.
40
. Birdsong, supra note 13, at 26.
41
. E.g., Legomsky, supra note 3, at 1654; Russell R. Wheeler, Fortieth Annual Administrative
Law Issue: Immigration Law and Adjudication: Practical Impediments to Structural Reform and the
Promise of Third Branch Analytic Methods: A Reply to Professors Baum and Legomsky, 59 D
UKE L. J.
1847, 1858 (2010).
42
. Baum, supra note 21, at 1510.
43
. Id.
44
. Legomsky, supra note 3, at 1654.
45
. Baum, supra note 21, at 1509.
46
. Id. at 1510.
47
. Id.
48
. Id. at 1511.
49
. Id.
50
. Baum, supra note 21, at 1511.
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1002 UNIVERSITY OF CINCINNATI LAW REVIEW [VOL. 86
judges grant asylum.
51
According to one study, a Colombian asylum
applicant who appears before the immigration court in Miami has a five
percent chance of being granted asylum under one judge and an eighty-
eight percent chance of being granted asylum before another judge in
the same court.
52
In their Asylum Study, Professors Ramji-Nogales, Schoenholtz, and
Schrag of Georgetown Law School found three variables that impact the
rate at which judges grant asylum.
53
First, whether the asylum seeker has
legal counsel is the single most important factor affecting the outcome
of the asylum seeker’s case.
54
Under the INA, noncitizens may obtain
representation “at no expense to the government”
55
but they do not have
a Sixth Amendment right to counsel.
56
Noncitizens can only get court
appointed counsel if they prove assistance is necessary to provide
“fundamental fairness.”
57
This high standard has led to the denial of
court appointed counsel in all published cases so far.
58
As a result, the
overwhelming majority of noncitizens are not represented.
59
Second, the immigration judge’s gender significantly impacts the rate
the judge grants asylum.
60
Female judges grant asylum 53.8% of the
time, while their male colleagues grant asylum at a rate of only 37.3%.
61
This disparity may be because female judges are less apt to have
immigration enforcement backgrounds.
62
Most male immigration judges
served as trial attorneys prosecuting immigration cases for the DHS or
the former Immigration and Naturalization Service (“INS”).
63
The more
time the judge worked for the DHS or INS the more likely the judge’s
decisions favor the U.S.
64
This is because lawyers who work in
immigration enforcement are trained to develop a “law enforcement
mindset” and deny entrance or order deportation when the lawyer doubts
the validity of the noncitizen’s claim.
65
51
. REFORMING THE IMMIGRATION SYSTEM, supra note 8, at 27.
52
. Id.
53
. Jaya Ramji-Nogales, Andrew I. Schoenholtz, & Philip G. Schrag, Refugee Roulette:
Disparities in Asylum Adjudication, 60 S
TAN. L. REV. 295, 340-42 (2007) [hereinafter Asylum Study].
54
. Id. at 340.
55
. 8 U.S.C. § 1362 (2017).
56
. See REFORMING THE IMMIGRATION SYSTEM, supra note 8, at 40.
57
. Id.
58
. Id.
59
. E.g., Dana Leigh Marks, Let Immigration Judges be judges, THE HILL CONGRESS BLOG
(May 9, 2013, 8:03 PM), http://thehill.com/blogs/congress-blog/judicial/298875-let-immigration-judges-
be-judges.
60
. Asylum Study, supra note 53, at 342.
61
. Id.
62
. Birdsong, supra note 13, at 33.
63
. See Baum, supra note 21, at 1529.
64
. Id.
65
. Birdsong, supra note 13, at 34.
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Last, Asylum Study found that asylum applicants with dependents are
more likely to be granted asylum.
66
A further problem with the current immigration adjudication system
is its mounting backlog.
67
From 2013 to 2016, the surge at the U.S.-
Mexico border increased the immigration docket by forty-six percent.
68
In January 2016, the immigration court’s docket had 475,000 cases
divided among 250 judges.
69
Cases pending before certain judges in
2016 were scheduled for 2023.
70
As of October 2016, the BIA’s docket
has over 34,000 cases.
71
This backlog is a consequence of amplified immigration enforcement.
In recent years, the DHS has increased apprehending and removing all
criminal noncitizens as well as issuing notices to appear to noncitizens
clearly eligible for benefits but who are “out of status.”
72
While
Congress allocated additional funds to implement these growing
enforcement measures, it did not allocate the resources necessary to
adjudicate the resulting cases.
73
Only recently, under the Trump
administration, has there been an increase in immigration judges.
74
In
addition to inadequate funding, immigration courts have inadequate
support staff.
75
On average, there is one clerk for every four
immigration judges and immigration judges do not have bailiffs.
76
Moreover, the growing number of proceedings pending before the
immigration courts has created a massive immigrant detention system
that is costly and difficult to manage.
77
In the face of this backlog, simply processing cases can become many
judges’ primary goal.
78
Judges with heavy caseloads often adopt
strategies to process decisions, such as a preference to affirm the lower
court (which also made its decision under great pressure).
79
Furthermore, the BIA is incentivized to affirm cases because
affirmations do not require written opinions and reversals do.
80
66
. Asylum Study, supra note 53, at 341.
67
. Poarch, supra note 18, at 10.
68
. Id. at 11.
69
. Id.
70
. Id.
71
. Id.
72
. REFORMING THE IMMIGRATION SYSTEM, supra note 8, at 20.
73
. Tara Lundstrom, Lasting Lessons from the Border Surge: It’s Time We Fund an Independent
Immigration Court System, F
ED. LAW., Jan.-Feb. 2015, at 3.
74
. Mica Rosenberg & Kristina Cooke, Immigration judges exempt from Trump's federal hiring
freeze, R
EUTERS, March 3, 2017.
75
. E.g., Legomsky, supra note 3, at 1652.
76
. Id.
77
. REFORMING THE IMMIGRATION SYSTEM, supra note 8, at 25.
78
. Baum, supra note 21, at 1518.
79
. Id.
80
. Id. at 1519.
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1004 UNIVERSITY OF CINCINNATI LAW REVIEW [VOL. 86
The enormous caseload and the inherent difficultly of immigration
cases causes immigration judges to burnout quickly.
81
One practicing
attorney, explains:
[O]ur immigration laws are comparable in complexity to our tax
laws. Immigration judges . . . . are responsible for knowing the
political, social, and economic conditions in countries spanning the
globe . . . . They must do this while hearing cases for 36 hours per
week from the bench and with only a fraction of a law clerk’s time.
And the nature of their work—listening to heart-wrenching stories
of persecution and torture every day—takes its toll . . . .
82
Despite the seriousness of the aforementioned problems, the Attorney
General’s control over immigration adjudication is by far the most
concerning characteristic of the system. Both the immigration judges
and the BIA members are directly under the Attorney General’s
control.
83
Before 1983, immigration courts and the BIA were part of the
INS.
84
In 1983, in an effort to remove the immigration courts and the
BIA from immigration enforcement, the courts were placed in the newly
created Executive Office of Immigration Review (“EOIR”).
85
While this
restructuring insulates the adjudicators from the INS, both bodies remain
in the DOJ, which answers to the Attorney General.
86
The Attorney General exerts pervasive power over immigration
judges. The Attorney General can directly appoint immigration judges.
87
Once hired, the judges are considered DOJ staff attorneys with a duty of
loyalty to the DOJ.
88
The immigration judges do not have fixed terms
and, since they lack protection against removal without cause, they are
subject to discretionary removal by the Attorney General.
89
As a result,
the immigration judges can potentially serve a life term or be removed
because the Attorney General does not agree with their decisions.
90
Similarly, BIA members are appointed by the Attorney General and
serve under his or her discretion.
91
BIA decisions may be reviewed de
novo by the Attorney General, who may vacate or substitute the BIA
81
. Legomsky, supra note 3, at 1655.
82
. Lundstrom, supra note 73, at 4.
83
. E.g., REFORMING THE IMMIGRATION SYSTEM, supra note 8, at 27, 34.
84
. Birdsong, supra note 13, at 29.
85
. Legomsky, supra note 3, at 1667.
86
. Id.
87
. Birdsong, supra note 13, at 29.
88
. REFORMING THE IMMIGRATION SYSTEM, supra note 8, at 44.
89
. Id. at 29.
90
. Id. at 29-30.
91
. Id. at 34.
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decisions for his or her own.
92
Due to this oversight, the Attorney
General can politicize the BIA by directly firing members or indirectly
threatening to reverse their opinions.
93
One practicing immigration
attorney declared, “[i]f one draws the curtain back on first impressions,
the attorney general sits as the great and powerful Oz at the helm of the
entire judicial enterprise.”
94
The Attorney General’s control over the immigration judges and the
BIA has resulted in several political scandals in recent years. During an
investigation of the hiring process of immigration courts, Monica
Goodling, principal deputy director of public affairs under Attorney
General Ashcroft, confirmed that the immigration judges hired between
2004-2006 were appointed based on their conservative political views.
95
In response to the scandal and circuit criticism, the Attorney General
issued a twenty-two-point plan to improve the immigration courts.
96
Fifteen of the twenty-two reforms were enacted including some funding
to hire additional judges and support staff, the installation of digital
recording in the courts, and training for all immigration judges.
97
In 1999 and 2002, in response to the BIA’s mounting backlog, the
Attorney General implemented a series of BIA reforms.
98
In 2002, the
BIA’s standard of review was changed: the BIA could no longer
conduct de novo review of the facts but instead had to review facts
under the “clearly erroneous” standard.
99
This standard inhibits the
BIA’s ability to correct mistakes made by the immigration judges
(which are increasingly difficult to avoid given the judge’s crushing
caseload) and obstructs their ability to check against disparities between
individual immigration judges.
100
Additionally, prior to 1999, cases before the BIA were heard by a
minimum of three members.
101
In 1999, a single member of the BIA was
empowered to review decisions and issue Affirmances Without
Opinions (“AWO”s)
102
in a limited category of cases.
103
In 2002, this
category was greatly expanded.
104
Today, the vast majority of cases
92
. Id.
93
. REFORMING THE IMMIGRATION SYSTEM, supra note 8, at 34.
94
. Poarch, supra note 18, at 11.
95
. Legomsky, supra note 3, at 1665-66.
96
. Birdsong, supra note 13, at 37.
97
. Id. at 37-38.
98
. REFORMING THE IMMIGRATION SYSTEM, supra note 8, at 31.
99
. Id.
100
. Id. at 32.
101
. Id. at 31.
102
. AWOs are final decisions to affirm the immigration judge that are not accompanied by a
written opinion.
103
. REFORMING THE IMMIGRATION SYSTEM, supra note 8, at 31.
104
. See id. at 31-32.
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1006 UNIVERSITY OF CINCINNATI LAW REVIEW [VOL. 86
before the BIA are reviewed by single-members
105
and many final
decisions are either AWOs or short, cursory opinions.
106
Single-member
review results in less precedent (single-member decisions are not
precedential), precludes dissent and the interplay of legal minds, and
renders the BIA less likely to catch errors by the immigration courts.
107
Further, the lack of detailed reasoning denies the noncitizen and his or
her counsel a sufficient explanation for the BIA decision.
108
As a result,
noncitizens have less confidence in the BIA rulings and are more likely
to appeal to the federal courts of appeals.
109
In fact, it is widely observed
that the number of immigration appeals to the federal courts has
dramatically increased since 2002.
110
For example, in 2008, thirty
percent of the BIA’s decisions were appealed and comprise seventeen
percent of circuit courts’ caseload.
111
This increase in appeals
particularly burdens the Ninth and Second Circuits.
112
Perhaps the most controversial 2002 reform was Attorney General
Ashcroft’s decision to reduce the BIA from twenty-three to eleven
members, even though the stated purpose of the 2002 reforms was to
alleviate the BIA’s massive backlog.
113
The decision to remove twelve
current BIA members was unprecedented; in the BIA’s sixty-three-year
history, the Attorney General had never removed a BIA member.
114
After the Attorney General announced his decision to reduce the number
of BIA members, but before declaring which member would be let go,
the BIA members, fearing for their job security, rendered more decisions
that favored the U.S.
115
Their fears were not unfounded; the twelve BIA
members who were eventually terminated ruled in favor of noncitizens
more frequently.
116
The number of BIA members subsequently
increased and, currently, the BIA has seventeen members.
117
The 2002
change in the BIA membership illustrates the extensive power the
Attorney General exerts over the BIA and the effect of that power –
pressure to rule according to the Attorney General’s political agenda and
termination when members do not succumb to this pressure.
105
. Legomsky, supra note 3, at 1657.
106
. REFORMING THE IMMIGRATION SYSTEM, supra note 8, at 32.
107
. E.g., REFORMING THE IMMIGRATION SYSTEM, supra note 8, at 32; Legomsky, supra note
3, at 1664.
108
. REFORMING THE IMMIGRATION SYSTEM, supra note 8, at 32.
109
. JUDICIAL REVIEW BY CIRCUIT COURTS, supra note 6, at 4-18.
110
. Id. at 4-17.
111
. Legomsky, supra note 3, at 1646.
112
. E.g., JUDICIAL REVIEW BY CIRCUIT COURTS, supra note 6, at 4-18.
113
. E.g., Legomsky, supra note 3, at 1668.
114
. Id. at 1669.
115
. Id.
116
. Id.
117
. Poarch, supra note 18, at 10.
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In light of the above-mentioned issues, countless judges, attorneys,
and academics advocate converting the immigration courts and the BIA
into legislative courts.
118
To evaluate this proposal, this comment first
explores the constitutionality of legislative courts.
C. The Constitutionality of Article I
Article I courts, or legislative courts, are tribunals created by
Congress that are not staffed with Article III judges.
119
Congress has the
power to make legislative courts under Article I, Section 8, Clause 9 of
the Constitution.
120
Unlike Article III judges, legislative judges are not
necessarily nominated by the President and approved by the Senate, do
not have lifetime tenure, and do not have Article III salary protection.
121
Examples of legislative judges include tax court judges
122
and
bankruptcy court judges.
123
Traditionally, there were three permissible Article I courts: territorial
courts, military courts, and courts that adjudicate “public rights”
disputes.
124
The “public rights” exception was created in Murray’s
Lessee
125
and permits Congress to create legislative courts to adjudicate
public rights, which were originally defined as disputes between a party
and the government.
126
When deciding the constitutionality of Article I
courts, the Supreme Court oscillates between a formulistic approach,
which advocates for bright line rules,
127
and a functionalistic approach,
which focuses on utility and often employs balancing tests.
128
In Northern Pipeline, Justice Brennan’s plurality opinion adopted a
formulistic approach and held that, to fall within the public rights
exception, the U.S. must be a party in the suit.
129
Consequently, the
118
. E.g., REFORMING THE IMMIGRATION SYSTEM, supra note 8, at 9; Marks, supra note 59;
Lundstrom, supra note 73, at 5; Poarch, supra note 18, at 10.
119
. MOORE’S MANUAL: FEDERAL PRACTICE AND PROCEDURE §1.03 (2016).
120
. U.S. CONST. art. I, §8, cl. 9.
121
. MOORE’S MANUAL: FEDERAL PRACTICE AND PROCEDURE §1.03 (2016). The Article III
salary protections guarantee that Article III judges’ salaries cannot be diminished. Id.
122
. Id.
123
. See, e.g., Commodity Futures Trading Com. v. Schor, 478 U.S. 833, 853 (1986).
124
. Thomas v. Union Carbide Agric. Prods. Co., 473 U.S. 568, 585 (1985).
125
. N. Pipeline Constr. Co. v. Marathon Pipe Line Co., 458 U.S. 50, 67 (1982).
126
. Id. at 67-68.
127
. See id.
128
. See Schor, 478 U.S. 833 (1986).
129
. N. Pipeline, 458 U.S. at 67-68. The formalist and functionalist approaches are not necessarily
sealed from one another; in Northern Pipeline the Court used the two approaches in the same decision.
Justice Brennan pointed out functionalistic reasons why the Bankruptcy Courts were unconstitutional
including the fact that the Bankruptcy Courts had the power to enter final judgments and, while appeal
to a federal district court was possible, the standard of review upon appeal was “clearly erroneous,” a
highly deferential standard. Id. at 85-86.
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bankruptcy judges serving under the Bankruptcy Act of 1978 did not fall
under the public rights exception because the U.S. is not a party in
bankruptcy disputes.
130
Justice White dissented in Northern Pipeline and upheld that
bankruptcy courts employing a functionalist balancing test, which
included the following factors: (1) the availability of appellate review to
an Article III court;
131
(2) the extent to which the Article I court would
undermine the authority of Article III courts;
132
and (3) Congress’
justifications for creating the Article I court.
133
Thereafter, Justice O’Connor embraced Justice White’s formulistic
approach in her majority opinions in Thomas v. Union Carbide and
Commodities Futures Trading Commission v. Schor.
134
The dispute in
Thomas involved a data-sharing arrangement between pesticide
companies under the Federal Insecticide, Fungicide, and Rodenticide
Act (“FIFRA”), which required all disputes about compensation
between pesticide companies be decided in binding arbitration with a
legislative judge.
135
The Court held that the Article I court was
constitutional under the balancing approach because it had elements of
public and private rights.
136
While the case did not meet the Northern
Pipeline’s public right exception (for the U.S. was not party in the
dispute), it was not purely a private right because it arose under a
complex regulatory scheme that did not exist at common law.
137
O’Connor balanced the three factors found in White’s dissent and found
that all weighed in favor of upholding the statutory scheme.
138
O’Connor further developed her functionalist approach by
130
. Id. at 71.
131
. N. Pipeline, 458 U.S. 50, 100 (1982).
132
. Id. at 103.
133
. See id. at 117. Applying these factors Justice White upheld the bankruptcy Courts because
(1) the Bankruptcy Act provided appellate review to an Article III court, id. at 100; (2) the bankruptcy
judges would not encroach on power of Article III judges since Article III judges would still hear the
vast majority of cases, id. at 103; and (3) the bankruptcy courts provided more efficient adjudication and
were specialty courts, which allowed the judges to adequately specialize in the complex area of law, id.
at 117.
134
. See Thomas v. Union Carbide Agric. Prods. Co., 473 U.S. 568 (1985); see also Schor, 478
U.S. 833 (1986).
135
. Thomas, 473 U.S. at 571-73.
136
. Id. at 589.
137
. Id.
138
. (1) FIFRA provided appellate review to an Article III court, id. at 592; (2) the dispute
involved a complex regulatory scheme that would not exist absent the statute, id. at 589.; and (3) the
complex regulatory scheme was logical and fair, id. at 590. The scheme was fair because it set a fee for
using the information from another company to compensate that company. Id. Disputes between
companies were resolved through arbitration, which takes the case out of the public eyes thereby
shielding companies that deal with products that could danger public health if dealt with improperly. See
id. Moreover, the arbitrators were independent federal agents so the decision makers were free from
political influence. Id.
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enumerating a five-part factor test in Schor. In that case, Schor and
Mortgage Services of America brought a claim for reparations against
their broker, ContiCommodity Services, Inc., before a non-Article III
judge in accordance with the Commodity Futures Trading Commission
(“CFTC”).
139
ContiCommodity counterclaimed for nonpayment.
140
To
determine whether the non-Article III judge could hear the counterclaim,
O'Connor laid out a balancing test that considered the following factors:
(1) the origins and importance of the right that is being adjudicated; (2)
the extent to which the legislative court exercises the range of
jurisdiction and powers normally vested in Article III courts; (3) the
extent to which the essential attributes of judicial power are reserved for
Article III courts; (4) the ability of an Article III court to hear the case;
and (5) Congress’s reasons for departing from adjudication in an Article
III court.
141
Applying this test, the Court determined that the
adjudication of the counterclaim did not violate Article III.
142
Even
under this balancing approach, the majority did not discount the
distinction between public and private rights, but held that it was one
among many factors courts should consider.
143
Most recently, in Stern v. Marshall, the Supreme Court adopted a
more formulistic approach and distinguished, but did not overrule,
Thomas and Schor. In Stern, the Court was asked whether the
bankruptcy court could hear a tort counterclaim.
144
The Supreme Court
focused on the public and private rights dichotomy and held that the
bankruptcy court could not hear the counterclaim because it was a state
law action between two private parties.
145
The Court distinguished the
counterclaim from the preceding cases.
146
Unlike the claim in Thomas,
the counterclaim did not flow from a complex statutory scheme.
147
Unlike Schor, the counterclaim did not depend on the adjudication of a
139
. Schor, 478 U.S. at 837.
140
. Id. at 838.
141
. Id. at 851.
142
. (1) The counterclaim existed at common law, id. at 852; (2) CFTC tribunal only reviewed a
particular area of law, id.; (3) the parties themselves chose to go to the non-Article III court, id. at 849;
(4) Article III courts can review CFTC decisions under a highly deferential standard of review, id. at
853; and (5) the counterclaim jurisdiction was necessary to create a workable framework, id. at 855.
143
. See id. at 853-54.
144
. J. Howard did not include Vickie Lynn Marshall (Anna Nichole Smith) in his will even
though they married a year before his death. Stern v. Marshall, 564 U.S 462, 470 (2011). Peirce,
Howard’s son, filed a complaint in the bankruptcy Court for defamation and Vickie filed a counterclaim
for tortious interference with a gift. Id. The bankruptcy court awarded Vickie $400 million in
compensatory damages and $25 million in punitive damages. Id. at 470-71. Pierce appealed arguing that
Vickie’s counterclaim was outside the bankruptcy court’s jurisdiction. Id. at 471.
145
. Id. at 488.
146
. Id. at 493.
147
. Id.
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claim created by federal law.
148
The Court stated that even though it was
more efficient to hear the counterclaim in the bankruptcy court,
efficiency was not the only factor.
149
Despite this formalistic holding,
the Supreme Court decision also had functionalistic aspects. For
example, the Court acknowledged that the bankruptcy judges had
limited power
150
and parties could appeal to an Article III court,
151
but,
the standard of review was deferential to the bankruptcy court.
152
Since many demands for immigration court reform call for an Article
I court with a trial and appellate division,
153
it is beneficial to examine
the structure of U.S. bankruptcy courts, which includes an optional
appellate-level tribunal.
D. U.S. Bankruptcy Court
The U.S. bankruptcy courts were established in 1898.
154
Nearly 100
years later, in 1978, Congress converted the bankruptcy courts into
Article I courts and invited each circuit to establish a Bankruptcy
Appellate Panel (“BAP”),
155
a panel of three bankruptcy judges that hear
appeals from the bankruptcy courts.
156
In addition, the Bankruptcy
Reform Act of 1978 expanded bankruptcy court jurisdiction while
simultaneously limiting federal court review, which led to Northern
Pipeline.
157
As discussed above, in Northern Pipeline the Supreme
Court held that the jurisdiction provision of the 1978 Act
unconstitutionally granted non-Article III judges too much judicial
authority.
158
In response, the Judicial Conference of the U.S. passed the
Emergency Model Rule (“Rule”), which subjected the bankruptcy
judges’ factual and legal findings to de novo review in the district
courts.
159
The Rule, however, did not mention the legality of BAPs.
160
The First Circuit found that the Rule implicitly withdrew the BAP’s
148
. Id.
149
. Stern, 564 U.S at 501.
150
. Id. at 475.
151
. Id. at 502.
152
. Id.
153
. E.g., REFORMING THE IMMIGRATION SYSTEM, supra note 8, at 9; Marks, supra note 59;
Lundstrom, supra note 73, at 5; Poarch, supra note 18, at 10.
154
. Judith A. McKenna & Elizabeth C. Wiggins, Alternative Structures for Bankruptcy Appeals,
76 A
M. BANKR. L. J. 625, 637-38 (2002).
155
. Id. at 63.
156
. COLLIER ON BANKRUPTCY, ¶ 5.02 (Alan N. Resnick & Henry J. Sommer eds., 16th ed).
157
. Tisha Morris, The Establishment of Bankruptcy Appellate Panels Under the Bankruptcy
Reform Act of 1994: Historical Background and Sixth Circuit Analysis, 26 U. M
EM. L. REV. 1501, 1503
(1996).
158
. Id. at 1504.
159
. McKenna & Wiggins, supra note 154, at 641.
160
. Id.
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authority to hear appeals,
161
while the Ninth Circuit held that the Rule
did not affect the BAP.
162
Two years after Northern Pipeline, Congress passed the Bankruptcy
Amendments and Federal Judgeship Act of 1984, which increased
district court control by specifying that bankruptcy courts were units of
the district courts and their judges were judicial officers of the district
courts.
163
The 1984 Amendments allowed circuits to establish BAPs
subject to the following changes: once a circuit established a BAP, each
district court in the circuit had to authorize appeals to the BAP from that
district; all parties had to consent to BAP review; and the BAPs could
only hear noncore (or non-bankruptcy) appeals if the parties permitted
the bankruptcy judge to enter a final judgment on the noncore claims.
164
In 1994, spawned by the Ninth Circuit’s success in reducing the
federal courts’ workloads, BAPs became mandatory.
165
The Bankruptcy
Act of 1994 directed judicial councils of each circuit to establish a BAP
unless the council determined that the circuit had insufficient judicial
resources or establishing a BAP would cause undue delay.
166
Subsequently, five circuits established a BAP.
167
Today, the First, Sixth,
Eighth, Ninth, and Tenth Circuits all have BAPs.
168
BAPs are celebrated for reducing federal court workload and
providing a specialized perspective, which produces higher quality
decisions that are less likely to be reversed than the district court
decision.
169
Further, due to the BAP’s specialization, attorneys have
greater confidence in their opinions and thus make fewer appeals.
170
But, BAPs come at a price: BAPs require additional administrative
costs
171
and, since BAP adjudicators are current bankruptcy judges,
161
. Massachusetts Dep’t Pub. Welfare v. Dartmouth House Nursing Home, Inc., 726 F.2d 26,
30 (1st Cir. 1984).
162
. In re Burley, 738 F.2d 981, 986 (9th Cir. 1984).
163
. Morris, supra note 157, at 1507.
164
. Id. at 1507-08. The 1984 amendments distinguished between core and noncore proceedings.
In core proceedings the bankruptcy judge could issue a final order subject to traditional appellate review
in the district court or the BAP. In noncore proceedings, the bankruptcy judge could only submit
proposed findings of fact and conclusions of law subject to de novo review in the district courts (or the
parties could appeal noncore proceedings to the BAP if they consented to the bankruptcy judge entering
a final order, as stated above). McKenna & Wiggins, supra note 154, at 641-42.
165
. Morris, supra note 157, at 1508-09.
166
. McKenna & Wiggins, supra note 154, at 644.
167
. Id.
168
. COLLIER, supra note 156, at ¶ 5.02. The BAPs hear cases from some or all of the districts in
the circuit, depending on the circuit. Id. In districts that have agreed to BAP review, litigants have three
routes to appeal orders from bankruptcy judges, the parties may appeal: to the district courts, 28 U.S.C.
§ 158(a) (2017); to the BAP (if the parties consent), 28 U.S.C. § 158(b); or directly to the courts of
appeals in limited circumstances, 28 U.S.C. § 158(d).
169
. Morris, supra note 157, at 1517-20.
170
. Id. at 1519.
171
. Id. at 1520-21.
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BAPs increase bankruptcy judges’ workloads.
172
III.
ANALYSIS
Numerous judges, attorneys, academics, and legal institutions urge
Congress to convert the immigration courts and the BIA into Article I
courts.
173
Congress has the power to do this because immigration cases
clearly fall within the public rights exception, as the U.S. is a party in all
immigration proceedings.
174
Nonetheless, Stern makes clear that the
public rights exception, while important, is not the only consideration in
assessing the constitutionality of a legislative court. Therefore, the
remainder of this comment argues that Congress should look to the line
of Supreme Court decisions beginning with Northern Pipeline when
determining how to structure Article I immigration courts. Part A
contends that Congress should create legislative immigration courts that,
like bankruptcy courts, have a trial and appellate division. Part B applies
the Northern Pipeline line of decisions and asserts, first, that the
availability of review by federal courts should be expanded and, second,
that the standard of review in federal court should be less deferential to
the immigration courts.
A. Article I Immigration Courts with Trial and Appellate Divisions
The ABA,
175
the Federal Bar Association,
176
and the National
Association of Immigration Judges
177
all advocate that immigration
courts and the BIA be converted into legislative courts. This structural
change is needed to give immigrant adjudicators the job security they
need to make decisions based on law and fact rather than on the
outcome that pleases the current Attorney General.
178
Dana Leigh
Marks, the president of the National Association of Immigration Judges
explained, “[w]hile seemingly technical, this change is essential to
achieve the most fundamental expectation we American’s hold about
judges: that they are independent and protected from undue influence by
any party to their proceedings.”
179
172
. Id. at 1521-23.
173
. E.g., REFORMING THE IMMIGRATION SYSTEM, supra note 8, at 9; Marks, supra note 59;
Lundstrom, supra note 73, at 5; Poarch, supra note 18, at 10.
174
. Immigration was listed in Crowell v. Benson, 285 U.S. 22, 51 (1932) as a familiar example
of a public right.
175
. REFORMING THE IMMIGRATION SYSTEM, supra note 8, at 9.
176
. Lundstrom, supra note 73, at 5.
177
. Marks, supra note 59.
178
. See Legomsky, supra note 3, at 1691.
179
. Marks, supra note 59.
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As a preliminary matter, immigration court structural reform is
admittedly unlikely in the current political climate. In the late 1990s,
Congress considered and rejected three bills to establish Article I
immigration courts.
180
Currently, Congress is not likely to create Article
I immigration courts for two reasons. First, Congress lacks the political
will to create legislative courts because many representatives believe
restructuring the immigration courts and the BIA would require
additional funding.
181
Second, and more importantly, the Attorney
General and administrative state does not want to relinquish its power
over the immigration adjudication system.
182
Nevertheless, while
converting the immigration courts and the BIA into Article I courts is
improbable at present, “[i]t is beneficial to churn ideas and be ready
should an opportunity arise.”
183
Some argue that converting the immigration adjudicators into
administrative law judges (“ALJs”) is more realistic in our political
climate.
184
Advocates of this reform point out that even though, as ALJs,
the immigration adjudicators would be housed in the executive branch,
they would be further removed from executive control than they are in
the present structure.
185
Yet, as discussed above, subjecting immigration
adjudicators to executive control, even if diminished, is highly
problematic. Even proponents of this reform recognize that ALJs are
under the Attorney General’s control and subject to his or her political
whims.
186
Thus, to ensure sufficient independence from the executive
branch, Congress must establish legislative immigration courts.
The Article I immigration courts should include a trial and appellate
division. One may argue that Article I courts traditionally do not have
appellate divisions so a two-tiered Article I immigration court would be
inappropriate. Yet, as aforementioned, the BAPs are an exception to this
general rule. Furthermore, BAPs have proven to be an efficient means of
reducing the federal court workload and producing high quality
decisions.
187
Moreover, the legislative preference to make a BAP is so
strong that, if a circuit council finds that the circuit need not create a
BAP because one of the two statutory exceptions are satisfied
(insufficient resources or undue delay), the council must submit a report
180
. Birdsong, supra note 13, at 44.
181
. Id. at 46.
182
. Id.
183
. Wheeler, supra note 41, at 1848.
184
. Id. at 1868.
185
. See id. at 1869.
186
. Id.
187
. Morris, supra note 157, at 1517-20. In fact, Judge James Browning, the former chief judge of
the Ninth Circuit, recounts that the benefits of establishing an appellate-level bankruptcy court were so
evident that when the opportunity to create a BAP came along “it seemed to [him] there was no choice.”
Id. at 1517.
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to the Judicial Conference of the U.S. explaining its findings.
188
The
Judicial Conference has the power to overrule the circuit council.
189
The legislative immigration courts would benefit from a trial and
appellate division because immigration, like bankruptcy, is a high-
volume court. In 2016, 1,131,341 cases were pending before the
bankruptcy courts
190
and, as stated, in January 2016, the immigration
courts had 475,000 cases on their dockets.
191
While the immigration
courts have smaller dockets, as above-mentioned, immigration cases are
inherently difficult both in the complexity of the laws and the intricacies
of the facts. Plus, most noncitizens require translators, which doubles
the time necessary to process the noncitizens in court. As a result, unlike
bankruptcy, Congress should permit appeal to the Article I immigration
court(s)
192
in every case.
One may point out that BAP review is optional – circuits do not have
to create a BAP and even if a circuit establishes a BAP each district
court in the circuit must approve the BAP and the parties must consent
to BAP review – and, thus, review by the Article I immigration appellate
court should also be optional. However, one must remember that
Congress established the above options to ensure the BAP’s
constitutionality, which was called into question after Northern Pipeline.
In Northern Pipeline, the Supreme Court made clear that, since the U.S.
is not a party in bankruptcy proceedings, bankruptcy does not fall within
the traditional public rights exception.
193
After Northern Pipeline,
Congress gave federal courts greater control over the bankruptcy
proceedings, such as by making BAP review optional, to ensure the
bankruptcy courts’ constitutionality.
194
Immigration, on the other hand,
clearly falls within this traditional public rights exception because the
U.S. is a party in the suit. Therefore, Congress does not have to make
review to the appellate-level Article I court optional.
Professor Legomsky contends that having two rounds of appellate
review, one by an Article I immigration court and another by a federal
court, is duplicative
195
and costly.
196
Yet, this criticism is misguided.
First, removing the immigration courts and the BIA from the executive
188
. COLLIER, supra note 156, at ¶ 5.02.
189
. Id.
190
. UNITED STATES COURTS, U.S. BANKRUPTCY COURTS—BANKRUPTCY CASES COMMENCED,
TERMINATED, AND PENDING DURING THE 12-MONTH PERIODS ENDING DECEMBER 31, 2015 AND 2016,
Table F, http://www.uscourts.gov/sites/default/files/data_tables/bf_f_1231.2016.pdf.
191
. Poarch, supra note 18, at 11.
192
. Determining the necessary number of immigration trial and appellate courts is beyond the
scope of this comment.
193
. N. Pipeline Constr. Co. v. Marathon Pipe Line Co., 458 U.S. 50, 71 (1982).
194
. See Morris, supra note 157, at 1507.
195
. Legomsky, supra note 3, at 1680.
196
. Id. at 1696.
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branch would increase their independence, which would lead to greater
confidence in their decisions, and, in turn, would lead to fewer appeals
to the federal courts.
197
Second, the dual round of appeals would be
beneficial for the cases that would nonetheless appeal to the federal
courts. Third, immigration appellate judges would provide their
specialized understanding of the complexities of immigration law and
the federal, generalist judges would serve as an equitable check on
abuses of life and liberty.
198
Both specialist and generalist judges offer distinct benefits.
Specialized judges familiarize themselves with a complex area of law,
allowing them to work more efficiently, both monetarily and
temporarily.
199
Further, specialist judges reach more consistent
outcomes
200
and repeated exposure to the practical consequences of their
decisions leads to results that are fair and pragmatic.
201
Generalist
judges, on the other hand, can draw guidance and analogies from other
areas of law and are able to approach cases with less-engrained
biases.
202
This well-rounded perspective is particularly important in
immigration cases that deal with the restriction of personal liberty and
human rights.
203
One may contend that some issues are inherently challenging,
regardless of the adjudicator’s level of expertise;
204
since immigration
cases are innately difficult, two rounds of review by a specialized judge
would have limited benefits.
205
Yet, this argument is flawed because
abolishing the appellate-level immigration court would flood the federal
courts with time-consuming immigration cases. What is more, if
Congress increased the number of federal judgeships (or created a new
Article III court to hear immigration appeals as Professor Legomsky
suggests) in response to this influx of immigration cases,
206
this would
dilute the prestigious status of Article III judges.
207
B. Lessons from Northern Pipeline
When converting the immigration courts and the BIA to legislative
courts, Congress should be guided by the Supreme Court line of
197
. See REFORMING THE IMMIGRATION SYSTEM, supra note 8, at 44.
198
. See JUDICIAL REVIEW BY CIRCUIT COURTS, supra note 6, at 4-20.
199
. Legomsky, supra note 3, at 1680.
200
. Id. at 1694.
201
. Id. at 1693.
202
. Id. at 1695.
203
. JUDICIAL REVIEW BY CIRCUIT COURTS, supra note 6, at 4-20.
204
. Baum, supra note 21, at 1543.
205
. See id. at 1548.
206
. Legomsky, supra note 3, at 1640.
207
. Wheeler, supra note 41, at 1864-65.
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decisions beginning with Northern Pipeline. As stated, immigration
clearly falls within the public rights exception because the U.S. is a
party in all immigration proceedings. Still, the Supreme Court made
known in Stern that the public/private rights dichotomy is not the only
factor considered when assessing a legislative court’s constitutionality.
Consequently, Congress should be mindful of the functional balancing
approach the Court applied in Thomas and Schor. This balancing
approach makes clear that, after the public/private rights distinction, one
of the most important considerations when assessing an Article I court’s
constitutionality is the availability of federal appellate review and the
standard of review upon appeal. Accordingly, when Congress changes
the immigration courts and the BIA into legislative courts, Congress
should expand the availability of federal court review and enact a less
deferential standard of review.
As demonstrated above, a noncitizens’ ability to appeal to an Article
III court has been greatly restricted in recent years. From a practical
standpoint, this restriction is problematic because it forecloses federal
judicial review of all discretionary issues (except decisions to grant
asylum) and has resulted in a complex layering of rules that waste the
litigants and courts’ time and resources. Furthermore, Northern Pipeline
and its prodigies reveal that the federal court’s limited ability to review
immigration cases is problematic from a constitutional perspective. In
both Thomas and Schor, the Supreme Court stressed the importance of
federal judicial review of the Article I courts’ decisions.
208
Even Stern,
with its formalistic focus on the public/private right dichotomy, noted
the availability of review to an Article III court.
209
While the Supreme
Court did not maintain that appellate review to an Article III court alone
was sufficient to find a legislative court constitutional, the Court
articulated that the availability of federal judicial review is a central
factor in assessing the constitutionality of an Article I court. Thus, to
ensure that the new Article I immigration courts are constitutional,
Congress should permit the federal courts of appeals to review all
discretionary decisions and should empower the federal courts to
remand immigration cases for further fact finding.
210
Furthermore, the line of decisions following Northern Pipeline made
known that it was not enough simply to permit review in an Article III
court. Beginning in Northern Pipeline, the Court pointed out that highly
deferential standards of review in federal court, such as the Bankruptcy
208
. See Thomas v. Union Carbide Agric. Prods. Co., 473 U.S. 568, 592 (1985); see also
Commodity Futures Trading Com. v. Schor, 478 U.S. 833, 853 (1986).
209
. Stern v. Marshall, 564 U.S. 462, 502 (2011).
210
. REFORMING THE IMMIGRATION SYSTEM, supra note 8, at 12-13.
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2019] CREATING AN ARTICLE I IMMIGRATION COURT 1017
Act of 1978’s abuse of discretion standard, were problematic.
211
The
Court clarified this holding in Schor when it distinguished Northern
Pipeline and held that the CFTC’s less deferential weight of the
evidence standard for orders and de novo review of legal determinations
were constitutional.
212
These decisions reveal that, in addition to
restoring review of discretionary decisions, the standard of review in
federal court should not be deferential to the legislative courts.
Therefore, in creating Article I immigration courts, Congress should
restore the standards of review previously available to federal court
under their habeas corpus jurisdiction: facts should be reviewed under
the substantial evidence standard;
213
discretionary decisions should be
reviewed under the abuse of discretion standard;
214
and legal
conclusions should be considered de novo.
215
In addition, as stated, the 1996 Amendments to the INA eliminated
the federal court of appeal’s ability to remand for further fact finding.
Even though the Northern Pipeline line of decisions did not speak
directly to this issue, the decisions stand for the proposition that Article
III courts should be permitted wide discretion when reviewing Article I
courts’ decisions. Hence, to ensure the constitutionality of legislative
immigration courts, Congress should amend the INA to permit the
courts of appeals to remand cases to the immigration courts for further
fact finding.
216
One may contend that permitting federal judicial review of all
discretionary decisions would flood the federal courts of appeals. But, as
demonstrated above, the present high volume of appeals to the federal
courts is a result of the perception that the immigration adjudication
system is unfair.
217
Indeed, following the 2002 reforms to the BIA, the
number of appeals to the federal courts increased dramatically because
noncitizens and their attorneys lacked confidence in the BIA’s
decisions.
218
If both the trial and appellate immigration court were
removed from the executive branch,
219
litigants would have greater
confidence in the courts’ decisions and be less likely to appeal to the
federal courts.
Finally, while transforming the immigration trial and appellate courts
211
. See N. Pipeline Constr. Co. v. Marathon Pipe Line Co., 458 U.S. 50, 85 (1982).
212
. Schor, 478 U.S. at 853.
213
. See e.g., Paredes-Urrestarazu v. INS, 36 F.3d 801, 807 (9th Cir. 1994).
214
. See e.g., Bazrafshan v. Pomeroy, 587 F. Supp. 498, 501 (D.N.J. 1984); see also Soroa-
Gonzales v. Civiletti, 515 F. Supp. 1049, 1057 (N.D.Ga. 1981).
215
. See e.g., Paredes-Urrestarazu v. INS, 36 F.3d at 807.
216
. See REFORMING THE IMMIGRATION SYSTEM, supra note 8, at 13.
217
. JUDICIAL REVIEW BY CIRCUIT COURTS, supra note 6, at 4-18.
218
. Id.
219
. And the appellate immigration court was not permitted to issue AWOs but instead had to
issue reasoned opinions.
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1018 UNIVERSITY OF CINCINNATI LAW REVIEW [VOL. 86
into legislative courts would vastly improve the immigration
adjudication system, this change alone would not be enough. It is widely
recognized that the immigration courts are understaffed.
220
Immigration
court reform must account for this gross deficiency and increase the
number of judges and support staff accordingly. The ABA’s 2010
report, Reforming the Immigration System, called for an additional 100
judges and enough clerks to increase the clerk to judge ratio from one to
four to one to one.
221
Predicting the current judge and staff deficiency is
beyond the scope of this comment, but given that the number of
immigration cases has only grown since 2010 with the surge of
unaccompanied minors,
222
it is safe to say that the new Article I
immigration courts would require at least an additional 100 judgeships.
IV.
CONCLUSION
A fundamental principle in our constitutional system is that “there is
no liberty if the power of judging be not separated from the legislative
and executive powers.”
223
Yet, while we condemn judicial comingling
with the political branches in other areas of law, we tolerate it in the
immigration adjudication system.
224
As a result of this passivity,
noncitizens are denied their constitutional right to an independent
adjudicator. To correct this wrong, Congress should establish Article I
immigration courts with trial and appeal divisions. Further, to comply
with the Northern Pipeline line of decisions, Congress should empower
the federal courts to review the Article I courts’ discretionary decisions,
to remand cases for further fact finding, and to reinstate the less
deferential standards of review formerly available to federal courts
under their habeas corpus jurisdiction. While these reforms would not
solve all of the aforementioned problems, the changes would ensure
noncitizens independent judicial review, thereby restoring faith in our
immigration system.
220
. E.g., Legomsky, supra note 3, at 1652.
221
. REFORMING THE IMMIGRATION SYSTEM, supra note 8, at 11.
222
. E.g., Tom Dart, Child migrants at Texas border: An immigration crisis that’s hardly new,
T
HE GUARDIAN (July 9, 2014), https://www.theguardian.com/world/2014/jul/09/us-immigration-
undocumented-children-texas.
223
. Stern v. Marshall, 564 U.S. 462, 483 (2011) (quoting THE FEDERALIST NO. 78 (Alexander
Hamilton)).
224
. Poarch, supra note 18, at 10.
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