Once again, the
Senate Judiciary Committee has rolled out a massive amnesty for
more than 11 million illegal aliens. Rewarding aliens who have
violated federal law is bad enough. However, the Comprehensive Immigration Reform Act (CIRA,
S.2611) does much more than that. Buried deep inside the
bill-beginning at page 540-are provisions that would radically
alter our immigration courts, making them far less likely to
enforce and implement the law faithfully. Not surprisingly, these
items have not caught the attention of many senators.
U.S. has a talented and experienced group of immigration judges.
With few exceptions, they are dedicated to enforcing the law and
perform a difficult job well. Most serve for life.
bill would change all of that. After seven years, all immigration
judges-including the current ones-would step down. And it seems
(the provision is very poorly drafted) that their replacements
would have to be attorneys with at least three years' experience
practicing immigration law. Who meets that requirement? The same
immigration attorneys who currently represent aliens in the
immigration courts. These attorneys are considered by many to be
the most liberal lawyers in America. And they are not fond of
enforcing immigration laws.
Regardless of how
that particular clause is interpreted, the bill ensures as a
practical matter that only immigration attorneys will become
immigration judges. Because of the seven-year term, only
immigration attorneys would want the job. It would be offer a
seven-year break from defending illegal aliens, after which the
attorney could return to private immigration-law practice with a
nice credential on his or her resume.
ICE attorneys on the enforcement side would face no similar
incentive to become immigration judges. ICE attorneys are career
civil servants. Like other federal employees, they earn a
retirement package after 30 years of federal service. Why would
experienced ICE attorneys want give up their current positions and
benefits for a job that expires after seven years?
bill also strips from the Attorney General the power to overrule
bad decisions by the Board of Immigration Appeals (BIA). Members of
the BIA are executive branch officials whose decisions ultimately
speak for the Department of Justice. Accordingly, the Attorney
General has always had the power to overrule BIA decisions that
deviate from the executive branch's interpretation of immigration
Department of Justice statistics, in the last fifteen years the
Attorney General has personally reviewed only 25 out of 422,000
cases-many of which were sent to the Attorney General by the BIA
itself. Attorney General review is an infrequently used tool. But
its existence is critical to immigration law enforcement and to
maintaining a consistent interpretation of the Immigration and
For example, in
2002 Attorney General Ashcroft reversed a BIA decision that held
that an aggravated drug trafficking felony did not constitute a
"particularly serious crime" under the Immigration and Nationality
Act. This BIA decision had plainly distorted the law, to the
benefit of illegal alien criminals. By intervening and overruling
the BIA, the Attorney General helped bring BIA decisionmaking into
line with the intent of Congress.
General review, the BIA would be free to wander from the road of
enforcing and applying the law fairly to pursue a path that is
decidedly more political.
Just when the rest
of the country is waking up to the threat of unchecked judges who
pursue a radical political agenda, the Judiciary Committee's bill
would turn similar forces loose in our immigration court
Bringing Back the
During the years
that Janet Reno was Attorney General, the nation witnessed the
emergence of a massive backlog of cases at the BIA. Presumably in
an effort to deal with this problem, she more than quadrupled the
size of the BIA. In a series of incremental steps, she increased
the number of BIA members from 5 to 23. But as the number of BIA
members increased, the backlog of undecided cases only grew
By the beginning
of the Bush Administration, the backlog had reached crisis
proportions-over 50,000 cases. Both a cause and a consequence of
this backlog was the fact that the Board was adjudicating cases
extremely slowly. Justice was not only delayed, it was derailed.
More than 10,000 of the pending cases were over three years
In 2002, Attorney
General Ashcroft introduced comprehensive reforms of the BIA to
rationalize the way it decided cases and to cope with backlog-which
had climbed to more than 56,000 cases.
reforms imported several aspects of the federal court system into
the immigration courts. The reforms restricted the BIA to the
review of legal issues and left to the immigration judges
the finding of facts. Reading a cold transcript long after the
facts have been presented, appellate courts are too removed from
the evidence to accurately evaluate them. A judge needs to see a
witness's face and hear his testimony firsthand in order to assess
reforms also implemented a system of screening cases to separate
groundless appeals from truly difficult cases. Single BIA members
were authorized to decide baseless appeals, and three-member panels
were reserved for cases that required elevated scrutiny. In this
way, the resources and time of three-member panels were no longer
In addition, the
Ashcroft reforms reduced size of the BIA to 11 members-making the
body more manageable and encouraging consistency of decisionmaking.
The Attorney General recognized that the backlog was not a
personnel problem; it was a procedure problem.
The results were
impressive. By January of 2006, the backlog of cases had been
reduced to 28,000. The reforms had been sustained against legal
challenges in the Circuit Courts, and BIA was operating much more
Committee's bill would undo many of these reforms. It would
restrict the use of single-member review to decide groundless
appeals (although it could still occur in limited circumstances).
It would also return the BIA to a bloated 23 members.
The delay that the
Committee's bill would add to the time it takes to resolve
immigration cases is difficult to predict. But there is no doubt
that it would increase delays-and as a result, increase the case
backlogs. That is bad news for immigration enforcement but good
news for the immigration attorneys.
Delays have a
pernicious influence in the immigration court system. Unscrupulous
immigration attorneys have an incentive to appeal every case to the
BIA because a delayed system is a good system from their
perspective-if a case is pending at the BIA for years, their client
gets more time in the United States. As the Supreme Court
recognized in the 1992 case of INS v. Doherty, "every delay
works to the advantage of the deportable alien who wishes merely to
remain in the United States."
Delay also works
to the advantage of the immigration attorneys. The longer the case
remains pending, the more opportunities the attorney will have to
bill his client.
provisions will have truly pervasive and destructive impact on the
enforcement of immigration laws. The immigration courts must be the
foundation of any effort to restore the rule of law to immigration.
Improvements in the immigration laws and in the enforcement
capacity of ICE will be in vain if the immigration courts become
derailed and lose their focus on interpreting immigration law as
Congress intended it.
Kris W. Kobach is a
Professor of Law at the University of Missouri-Kansas City. During
2001-2003, he served as Counsel to the U.S. Attorney General and
was the Attorney General's chief advisor on immigration law.