by Anna O. Law. New York: Cambridge University Press, 2010. 280pp. Cloth $90.00. ISBN: 9780521767088.
Reviewed by Karen A. Woodrow-Lafield, Maryland Population Research Center, University of Maryland College Park. Email: kwoodrow [at] umd.edu.
The Immigration Battle in American Courts is an examination of the role of the two highest federal courts in treating aliens’ permission to enter or to remain in the United States given the traditions as a nation of immigrants and as having a commitment to equal treatment under the law. The core empirical inquiry is whether the Supreme Court of the United States and the U.S. Court of Appeals are contrasting in opposing and welcoming aliens’ claims for status. The central arguments are that each court’s unique institutional context serves to shape judges’ perception of roles, that each court’s role has been dynamic, and that evolving institutional settings have multiple consequences. Overall, the federal judiciary serves the roles and missions as conceived by the founders.
Congress makes laws on immigration, and these laws are the products of political conflicts within the boundaries of institutional norms and structures. Guided by rules, procedures, and norms, federal judiciary decision making implements those laws in political asylum cases, exclusion cases, and deportation or removal cases. Professor Law demonstrates the protective reach of the U.S. Court of Appeals for politically vulnerable aliens at risk in the immigration bureaucracy. By contrast, the Supreme Court is more deferential to the executive branch on immigration actions and to congressional plenary powers, thus limiting due process for aliens. Law notes the data display a pattern favoring the alien in the cases of the U.S. Court of Appeals against precedent or congressional intent. Immigration law tests the Supreme Court as policy court and court of law. With controversial anti-immigration laws in Arizona, South Carolina, Alabama, Indiana, Utah, and Georgia, the Supreme Court will review in the Arizona case whether states have constitutional authority to regulate immigration.
Social scientists predominantly deal with immigration impacts and trends, rather than focusing on the institutional contexts and development of immigration law, to which legal scholars also do not attend. This book takes a longitudinal strategy over 1881-2002 to discern how the U.S. Courts of Appeals (Third, Fifth and Ninth Circuits) have diverged from the Supreme Court in adjudicating immigration cases. Law illuminates theoretically the development of intercurrence within the federal judiciary despite different systems of purposes, incentives, and motivations. The Supreme Court is hypothesized as becoming more oriented toward policy and jurisprudence due to immigration acts of Congress and being more removed from individual cases, including oversight of the Court of Appeals. Law hypothesizes the latter are more concerned with correcting error from lower courts and citing Supreme Court doctrine, perhaps even resembling the Supreme Court. Augmented by increasing world migration and political, economic, and civil contexts, developments in U.S. immigration policy, including enforcement strategies, laws, and interactions of individual aliens with authorities have altered the appeals workload. From the mid-1980s, immigration policies have resulted in [*19] growing caseloads, especially for the Ninth Circuit in the West (American Bar Association 2010), and that growing pressure has shifted the court toward selectivity.
Especially illuminating is Law's delving into purposive behavior in the courts outside existing doctrine or congressional intent and the incentives deriving from institutional attributes. The second chapter concisely introduces the reader to the federal institutions of the immigration system in regard to alien appeals and presents the multi-method analytical strategy. These institutions are the Department of Homeland Security (DHS), the former Immigration and Naturalization Service (INS), the immigration judges in immigration courts, and the Bureau of Immigration Appeals (BIA) overseen by the Executive Office of Immigration Review in the Department of Justice (EOIR). The BIA is often the endpoint due to the financial burdens of pursuing one's case personally in the Federal Courts unless an appeal can be pursued on pro bono by NGOs or community organizations.
Several major laws were passed in the 1980s and 1990s relating to immigration and immigrants. The Immigration Reform and Control Act of 1986 (IRCA) was meant to solve the illegal immigration problem through provisions for granting legal temporary status for long-term residents and certain agricultural workers with capability for adjusting to lawful permanent residence, intensifying border enforcement, and imposing sanctions to promote employer responsibilities. It was only after enacting IRCA that Congress would seek to improve the legal immigration system and respond through the Immigration Act of 1990 (IA1990) to various demands for increased legal immigration of workers, family members, and others. Newton (2008) described the distinguishing of aliens from citizens due to the 1996 Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) as extending and expanding upon IRCA enforcement provisions and the restrictions upon benefits for immigrants from the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (PRWORA, also known as the 1996 Welfare Reform Act). There were unanticipated consequences for the federal judiciary with policy shifts from the IIRIRA and the Antiterrorism and Effective Death Penalty Act (AEDPA) . The removals procedure came to include deportations and exclusion, and judicial review over BIA decisions was meant to be eliminated or more prescribed. Along with the REAL ID Act in 2003, these changes created numerous legal issues that ultimately immersed the Courts of Appeals in an expanded role. The Supreme Court has usually deferred to Congress on immigration matters and by default allowed executive branch administrative agency personnel to hold considerable regulatory powers. The Supreme Court has thus been viewed as anti-alien through this regard for the plenary power of Congress.
Analyses of a variety of cases involves not merely counting winning and losing on the side of aliens but a closer focus on the motivations and mechanisms that [*20] inform legal decision making in federal courts. This modes of legal reasoning approach is supplemented with multiple methodologies. The original database consisted of 2,218 legal opinions on "immigration," "exclusion," and "deportation," with most (2,005) from the three U.S. Courts of Appeals, plus 200 from the Supreme Court. The majority of opinions involved general deportation cases (61 percent), and the rest include asylum cases (24 percent), exclusion cases (4 percent), alien rights cases, deportation cases for criminal aliens, alienage cases and challenging a removal order with U.S. presence after a previous deportation. Further, Law interviewed eight Court of Appeals judges and three staff members, for understanding internal procedures with rising caseloads.
Law’s analytical strategies seek to trace outcomes from legal and institutional norms interacting with institutional structure and contexts. The recurring themes of national sovereignty, plenary power, and procedural due process are foremost in discussions of immigration. Law is sensitive to criticisms of the modes of legal reasoning approach while she is confident of the validity and reliability for these purposes. In Table 2.1, she summarizes the eight most common modes of legal reasoning on a preliminary basis, noting these do not exhibit any underlying aspects of racial or policy bias. Some modes of legal reasoning are a version of the social discourse shaped by themes and beliefs rather than the most basic view of judges’ role as choosing the modes of purely legal principle. Through these analyses, Law assesses the roles of the federal courts and discusses in Chapters 3, 4, 5, and 6 the varying discretion and flexibility the Supreme Court and the U.S. Courts of Appeals demonstrate in employing legal reasoning.
The third chapter reviews the historical role of the federal judiciary and general protections for citizens. Three factors are at play in the evolution of the Supreme Court and Courts of Appeals –key pieces of legislation, “judicialization” of immigration policy, and agency choices of enforcement strategies in U.S. immigration policy. The federal Judiciary Act of 1789 reflected the political concerns of the era and need to support the new federal government. The Evarts Act of 1891 created the U.S. Court of Appeals to allay practical difficulties of circuit courts and backlogs of cases at the Supreme Court, setting the structure of the contemporary federal judiciary.
The particular success of aliens through the appeals process is evident in the history of the judiciary with the Chinese Exclusion Act, but Law notes that non-Chinese also benefited from resorting to appeals rather than seeking relief from the legislative branch. She points out that, at a minimum, an appeal prolongs one’s U.S. stay, extends time for possible legislated relief, and length of residence is correlated with cumulating “deportation-mitigating ‘equities’” (p.75) or accumulating social capital in having a U.S. citizen child or U.S. citizen or legal permanent resident spouse. [*21]
Enforcement methods are not regarded as sufficiently effective because border-crossing attempts and apprehensions are continuing and the presence of unauthorized aliens was greater for the 1990s and 2000s than for the 1970s or 1980s. Immigration enforcement issues are prominent politically and symbolic of a law and order stance with lesser attention to the economic incentives and labor demand during boom periods, such as the late 1990s. The DHS Immigration and Customs Enforcement (ICE) is generally less supported fiscally relative to the DHS Customs and Border Protection (CBP), and even ICE’s emphasis on immigration status violators rather than criminal aliens has been contentious as a poor use of limited resources, creating bureaucratic strain from increased immigration prosecutions. Following a DHS task force evaluation (USDHS 2011), in June 2011, DHS ICE Director John Morton (2011) announced a policy of exercising prosecutorial discretion in deportation cases to more strategically use resources in meeting agency enforcement priorities by focusing on criminal alien cases and taking an approach with more humanitarian considerations of length of unauthorized residence, arrival as a child, and being without a serious criminal record (Wadhia 2011). Although voluntary departure may be offered to noncriminal aliens, an alien may be unable to later obtain an immigration visa having a record of residence as unauthorized and the IIRIRA’s ten-year ban upon readmission. Rather than take voluntary departure, aliens seek to prevail in an appeal in order to stay and avoid deportation. Even marriage to a U.S. citizen that produced children may be regarded as fraudulent and prevent visa issuance (Bernstein 2010).
Law’s study shows the divergence of the Supreme Court and the Courts of Appeals in deciding cases. Use of modes of legal reasoning is similar in the Third, Fifth, and Ninth Circuits after considering the representation of deportation cases in which statutory meanings are crucial and asylum cases for which evidence and facts are requisite. More than one-half of the Supreme Court cases, however, employed statutory interpretation as mode of legal reasoning, whereas the Courts of Appeals cases were based on several approaches –fact/evidence (27 percent), statutory interpretation (26 percent), doctrine (21 percent), and procedural due process (15 percent) –therefore taking on a more investigative role for these appellate courts. Although in the historical case of the Chinese Exclusion Act, the Supreme Court defined Chinese on the basis of race rather than nationality or ethnicity, taking a powerful policy role, more recently the Supreme Court is deferential to the plenary power of the Congress, but the deference is less visible in the Courts of Appeals. She cites two deportation cases (de Reynoso v. Immigration and Naturalization Service, Ninth Circuit 1981 and Ramos v. Immigration and Naturalization Service, Fifth Circuit 1983) as demonstrating the individualized, case-by-case approach of the Courts of Appeals contrasted with the group adjudication approach of the Supreme Court. The latter is less likely [*22] to attain a decision according to individual circumstances of hardship relief. The exercise of discretion in granting hardship relief in suspension of deportation and adjustment of status is a point of tension with the Courts of Appeals judges sometimes reluctant to review the BIA administrative decision making.
Law makes clear that there is a range of strategic options implicated in choosing among legal modes of reasoning Chapter 4 treats the interstitial aspects to policy making that augment the legitimate modes of legal reasoning of textualism, structuralism, doctrine and others without bringing one’s personal views or whims into legal reasoning. One source is the internal procedures of a court. Ideology per se is exercised only through the institutional constraints of the courts of law subject to available options. The text of positive law cannot be comprehensive which means that statutory interpretation becomes a mode of legal reasoning involving judicial preferences.
Furthermore, in the current judicial hierarchy, the court of final appeal is most often one of the eleven Courts of Appeals; purposive or strategic behavior would be more likely in cases unlikely to be reversed by the Supreme Court. The IIRIRA set forth generic grounds for “cancellation of removal” grounds for “suspension of deportation” that allowed an alien who met certain criteria to avoid deportation and to remain in the United States as a Lawful Permanent Resident, or LPR. Nevertheless, these grounds have language shown in quotations that leaves interpretation to judges. They have been in the country continuously for ten years; they have been “of good moral character,” they have not been convicted of certain crimes, and their deportation will result in “exceptional and extremely unusual hardship” for parents, a spouse, or children who are citizens or LPRs.
Law refers to case law defining circumstances that do not constitute extreme hardship, ones that native-born Americans might easily expect to be offered. Law offers interesting discussions of key cases on “good moral character,” “extreme hardship,” and “adultery.” Congress has limited what federal judges may do in reviewing administrative decision making, specifically, as to orders against criminal aliens and “denials of discretionary relief.” Congress’ aim in streamlining was to reduce caseloads. She notes that discretion had become a “flashpoint” in the Ninth Circuit and I point out that prosecutorial discretion has recently become even more pivotal with ICE policies for 2011 amid policy debates over deportations, DREAM Act-type proposals, and separated families. The U.S. Court of Appeals can review BIA decisions if there is an “abuse of discretion.” Law considers the facts and evidence mode of legal reasoning as deriving from either a single incident or an accumulated history and deferring any decision.
Chapter five describes institutional responses to surging immigration appeals in 2003 for the Ninth and Second Circuits (New York, [*23] Connecticut, and Vermont) due to the geographic distribution of immigration and settlement. The Second Circuit then allowed decisions in asylum claims without oral argument; the Ninth Circuit began automatic stays of all deportation orders. The increases in immigration appeals are frequently attributed to BIA streamlining, to allow single-member adjudications in most cases and summary rulings. These procedural changes and the opaqueness of decision making became subjects for criticism of several sources that Law discusses and develops through qualitative research. The recent immigration laws, the AEDPA and IIRIRA, affected workloads and caseloads rather than actually reducing them and system abuses as was congressional intent. Law gives insights to how the staffers manage and classify the cases for oral argument or screening. Some cases sent to screening panels are “kicked” back for oral argument, and Law’s interviews yielded a report of a judge who “would automatically kick any cases involving U.S. citizen children” because of her belief that the deportation of an alien parent is the de facto deportation of the citizen children” (p. 162). Such purposive behavior may be more likely now after wide dissemination of DHS statistics that about 5 percent of the 2 million immigrants who were deported in 1997-2007 (more than 100,000) were parents of children who were U.S. born citizens (USDHS 2009; Falcone 2009; Kremer and Hammell 2009). An innovation that is sensible and efficient is bundling of cases on nationality for oral argument and screening so that judges are listening to extensive background about country conditions that overlap among cases. Similarly, bundling on legal issues can be helpful for constructing special-purpose screening panels. The easiest solutions to the burden on the Ninth Circuit –referring more cases to screening and upholding administrative adjudications – are not favored by individual judges.
The judiciary’s plight in handling the value of immigration appeals is worsened by inadequate numbers of immigration judges and attorneys and, in the opinion of the appeals judges, an immigration bar that is apparently poorly qualified. Certainly, the legal shifts have led to more frequent errors and omissions in reviewing the facts and evidence, and the U.S. Court of Appeals bears the ultimate responsibility for corrections. Due to the risk of such errors, one study (Ramji-Nogales, Schoenholtz, and Schrag 2007) applied the label “refugee roulette” and these errors result in “howlers” (p. 181) caught by the appeals judiciary. Law notes that immigration appeals may be more complicated factually than appeals relating to veterans benefits or social security, although appeals on disability insurance applications have become more extensive in recent years with surging disability applications since the economy declined and unemployment increased. Some of the judges who were interviewed were not sanguine about the Courts of Appeals as institutionally appropriate for the in-depth consideration appropriate for the immigration appeals. [*24]
Recent recommendations on reforming the immigration system (ABA 2010) included a key proposal for creation of independent tribunals by Congress or to perhaps create an independent adjudication agency in the executive branch. The crucial element is recognized as better legal representation for noncitizens in removal proceedings regardless of how well the immigration adjudication system were modernized with greater transparency and functionality. Aliens in detention have no due process guarantee of legal counsel and with inadequate or no representation they are unlikely to be allowed to stay.
In Chapter 5, the case study of the Ninth Circuit under an increasingly high caseload burden, is informative as to disparate consequences of immigration law within the judiciary. The federal courts' commitment to due process is demonstrated by the many examples of aliens' successful challenges before the Supreme Court and the U.S. Court of Appeals on the basis of procedural due process in the exercise of federal power. The federal judiciary has been responsible for shaping due process for aliens in exclusion and deportation cases. Law summarizes the evolution and operationalization of due process in the immigration context. Substantive due process applies to the inherent rights of individuals which the state cannot violate, and procedural due process protects individuals against arbitrary state action. From minimal judiciary oversight of due process for aliens in exclusion cases, the judiciary changed to support procedural due process in deportation proceedings. Aliens already on U.S. soil have been regarded as having more due process protection than those trying to be admitted initially. Similarly, those with long U.S. residence who have left and then seek re-entry are given a higher level of procedural protection.
Aliens themselves have a role in the administration of their cases with BIA despite the “transmission belt” model. The most common mode of legal reasoning among aliens' successful appeals is procedural due process. Law shows this derives from consistency across time because it was never the most frequently used mode in any decade. Law discusses the concept of "phantom norm" and "procedural surrogates" (Motomura 2006). She argues that judges are not motivated by their policy preferences or pro-alien bias and thus use procedural due process from their deep commitment to due process and fairness.
Passage of AEDPA and IIRIRA was intended by Congress to reduce judicial review and bar habeas review especially for aliens with criminal convictions. What actually happened is that the judges resisted these efforts by Congress by interpretation that lessened the consequences for aliens. Section 212C of the INA was targeted by Congress for aliens' capability to present mitigating factors to argue against their deportation. Basically, AEDPA multiplied the crimes to serve as bars to 212C relief. The IIRIRA later repealed Section 212C with the "cancellation of removal" procedure with "removal" proceedings consisting of exclusion and deportation. The U.S. [*25] Courts of Appeals generally support deeply technical determinations of alien status and whether an alien is deportable under the INA. The circuit courts did not view as clearcut the effective dates of the AEDPA and the IIRIRA reforms and raised the retroactivity question given two dates involved in IIRIRA. Further, the U.S. Court of Appeals regarded Congress as not having specifically abolished habeas corpus, a position later supported by the Supreme Court.
The final chapter reaches the peak point of due process as entitlement of continuity in the middle of institutional development because both the Supreme Court and Courts of Appeals maintain procedural due process in immigration appeals. This chapter makes for particularly interesting reading in conjunction with Lina Newton's Illegal, Alien, or Immigrant that delves into the political discourse over the IIRIRA. The commitment of the federal judiciary to due process in dealing with both recent immigration legislation and an unprecedented presence of unauthorized residents, both those entering illegally and those entering legally and overstaying visas, has probably mitigated the overall effect on aliens. There were high numbers of deportations in recent years, and the accumulating total has been publicized as have the familial consequences. The judicial burden is considerable and without any visible horizon on diminishing short of major restructuring as has been proposed (ABA 2010; American Judiciary Society 2009).
Law's book is highly informative and gives valuable insights on the institution of the federal judiciary during an historic immigration era for the United States that has been characterized by legislated priorities for U.S. citizens. Setting aside the social policy issues, the control and abatement of unauthorized immigration is big business for many proponents, and it is encouraging that individuals are not lost within the judiciary system for immigration appeals. The chances of comprehensive immigration reform seem slim, but due process protections and a more moderated deportation-driven enforcement system may be the product of the judiciary appeals structure.
American Bar Association, Commission on Immigration. 2010. "Reforming the Immigration System: Proposals to Promote Independence, Fairness, Efficiency, and Professionalism in the Adjudication of Removal Cases." http://www.abajournal.com/files/Reforming_the_Immigration_System_Executive_Summary_advance_1_25_10.pdf.
American Judicature Society. 2009. "The Crisis in the Immigration Courts." October 24. Retrieved from http://www.ajs.org/ajs/ajs_editorial-template.asp?content_id=998.
Bernstein, Nina. 2010. “Fatal Ending for Family Forced Apart by Immigration Law,” New York Times, February 12. A25.
Falcone, Michael. 2009. “100,000 Parents of Citizens Were Deported Over 10 Years,” New York Times, February 14. A16.
Kremer, Moccio, and Hammell 2009. "Severing a Lifeline: The Neglect of Citizen Children in America’s Immigration Enforcement Policy." Dorsey & Whitney and the Urban Institute.
Morton, John. 2011. "Exercising Prosecutorial Discretion Consistent with the Civil Immigration Enforcement Priorities of the Agency for the Apprehension, Detention, and Removal of Aliens." Department of Homeland Security, U.S. Immigration and Customs Enforcement. June 17. http://www.ice.gov/doclib/secure-communities/pdf/prosecutorial-discretion-memo.pdf.
Motomura, Hiroshi. 2006. Americans In Waiting: The Lost Story of Immigration and Citizenship in the United States .Oxford: Oxford University Press.
Newton, Lina. 2008. Illegal, Alien or Immigrant: The Politics of Immigration Reform. New York and London: New York University Press.
Ramji-Nogales, Jaya, Andrew Schoenholtz, and Philip G. Schrag. 2007. “Refugee Roulette: Disparities in Asylum Adjudication,” 60 Stanford Law Review: 295-408.
U.S. Department of Homeland Security, Office of Inspector General.2009. "Removals Involving Illegal Alien Parents of United States Citizen Children." OIG-09-15.January.
U.S. Department of Homeland Security. 2011.Task Force on Secure Communities Findings and Recommendations. http://www.dhs.gov/xlibrary/assets/hsac-task-force-on-secure-communities-findings-and-recommendations-report.pdf.
Wadhia, Hoba Sivaprasad. 2011. "The Morton Memo and Prosecutorial Discretion: An Overview." July. Special Report, Immigration Policy Center, American Immigration Council. http://immigrationpolicy.org/sites/default/files/docs/Shoba_-_Prosecutorial_Discretion_072011_0.pdf
De Reynoso v. Immigration and Naturalization Service 627 F.2d 958, (9th Cir. 1980).
Ramos v. Immigration and Naturalization Service 695 F.2d 181 (5th Cir.1983).
Copyright by the Author, Karen A. Woodrow-Lafield.