Trump’s Aggressive Appointments—Increasing Tension Between the Judiciary & Executive in Immigration Cases

By Caroline Woods, J.D. Class of 2021

Historically, Article III courts have advised using restraint when looking into executive decisions involving immigration issues.¹ However, the Executive’s actions, particularly the Trump Administration’s, in wielding this broad authority has generated resistance in the judiciary.² One scholar notes, “the Trumps administration has made more than 100 changes to immigration law to nearly guaranteed that a wrongful deportation will occur.”³ Immigration courts’ asylum decisions show the impact of these actions as the rate of denial of asylum applications jumped from 54.6% in 2016 to 71.6% in 2020.⁴

The Executive Branch wields significant authority in immigration cases. Immigration cases, including asylum cases, begin in the executive branch either (1) under the Department of Homeland Security’s U.S. Citizen & Immigration Services for affirmative asylum claims⁵ or (2) the Department of Justice’s Executive Office for Immigration Review (EOIR) for defensive asylum claims.⁶ If an affirmative applicant’s claim is denied they too have their claims heard by EOIR, which currently has approximately 460 judges.⁷ The applicant can then appeal any decision to the Board of Immigration Appeals (BIA, also housed in the Department of Justice), which is currently authorized to have 23 members.⁸ Both the BIA members and EOIR judges serve at the pleasure of the Attorney General. Put simply, they act as his or her employees.⁹

Attorneys General under the Trump administration took an aggressive course of action in handling their employees, which impacted the decisions of these executive judges. First, in hiring new judges: out of the 520 lifetime positions available, President Trump’s administration filled two-thirds of them.¹⁰ Further, they “increased permanent membership on the BIA from 17 to 23.”¹¹ Those who were promoted to BIA memberships had high asylum relief denial rates, “81.6%, 89.4%, 86.9%, 92.1, 95.8%, and 98.1%”¹² compared to the average denial rate the same year of 69.1%.¹³ Out of those hired, 42% of judges had no previous experience in immigration law—nearly double the percentage of previous no-experience hires.¹⁴ Second, in training new judges, trainers were selected that favored the government in their decisions, with an average 75% ordering deportation compared to 58% of trainers ordering deportation in 2016.¹⁵ The judge tasked with training credibility determination has an even higher deportation rate, 89%, compared to the trainer in 2016 with a rate of 37%.¹⁶ Lastly, the Attorneys General under the Trump Administration, have exercised their certification power, the power to review opinions of the BIA and create precedential law, 12 times in 3 years.¹⁷ Comparatively, this certification power was invoked 3 times in Clinton’s 8 year administration and 4 times in Obama’s administration.¹⁸ In every instance, the certification resulted in a decision that was favorable to the government.¹⁹ All this reflects the Administration’s priority to remove as many people as possible from the United States.

Far from falling in line with the executive’s stance, federal Circuit Courts of Appeals have pushed back against BIA and Attorney General decisions.²⁰  In a recent Third Circuit opinion, Judge McKee openly criticized the BIA’s decision-making process in a concurrence joined by two other members including Judge Roth, the author of the majority opinion.²¹

[I]t is difficult for me to read this record and conclude that the Board was acting as anything other than an agency focused on ensuring Quinteros’ removal rather than as the neutral and fair tribunal it is expected to be. That criticism is harsh and I do not make it lightly.²²

The Seventh Circuit, in a recent opinion, chastised the BIA and the Attorney General for ignoring their remand order.²³ After the Seventh Circuit remanded, the Board ignored the court’s order and decided a letter authored by the Attorney General—declaring the opinion wrong—took precedence.²⁴ The court responded:

We have never before encountered defiance of a remand order, and we hope never to see it again. Members of the Board must count themselves lucky that Baez-Sanchez has not asked us to hold them in contempt, with all the consequences that possibility entails…. [I]t should not be necessary to remind the Board, all of whose members are lawyers, that the “judicial Power” under Article III of the Constitution is one to make conclusive decisions, not subject to disapproval or revision by another branch of government.²⁵

A recent Fourth Circuit decision reversed without remanding for further consideration the BIA’s denial of petitioner’s asylum claim, because it was unreasonable for the BIA to conclude that petitioner’s membership in her family “was not at least one central reason for her persecution.”²⁶ The court  stated its duty to  “ensure that unrebutted, legally significant evidence is not arbitrarily ignored by the factfinder,”²⁷ and, that here, “[f]ailing to consider repeated evidence of the connection of the threats and attacks to Petitioner’s parents’ ability or inability to pay the extorted demands was error.”²⁸ The Fourth Circuit’s reversal tracks the general trend that Circuit Courts of Appeal rule less frequently on average in favor of the BIA, than other administrative agencies.²⁹ 

With the Trump administration’s lasting impact on immigration adjudication, Courts of Appeals will have to continue providing a check on the executive’s role in this process.³⁰

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[1] Dalen Porter, Trump v. Hawaii: Bringing the Political Branches’ Power Back into Equilibrium over Immigration, 97 Denv. L. Rev. Forum 128 (2019).

[2] Marvin L. Astrada, Fear & Loathing in the Present Political Context: The Incubus of Securitizing Immigration, 32 Geo. Immigr. L.J. 169, 182 (2018); Jill E. Family, Beyond Decisional Independence: Uncovering Contributors to the Immigration Adjudication Crisis, 59 Univ. Kan. L. Rev. 541, 551-63 (2011) (discussing issues in immigration adjudication predating the Trump administration).

[3] Kari Hong, Gideon: Public Law Safeguard, Not A Criminal Procedural Right, 51 U. Pac. L. Rev. 741, 770 (2020)

[4] Asylum Denial Rates Continue to Climb, TRAC Immigration (Oct. 28, 2020) https://trac.syr.edu/immigration/reports/630/.

[5] The Affirmative Asylum Process, U.S. Citizen & Immig. Servs. (Jan. 26,, 2021) https://www.uscis.gov/humanitarian/refugees-and-asylum/asylum/the-affirmative-asylum-process.

[6] Executive Office for Immigration Review: Office of the Chief Immigration Judge, U.S. Dep’t Justice (Dec. 7, 2020), https://www.justice.gov/eoir/office-of-the-chief-immigration-judge [hereinafter EOIR Office]

[7] Reade Levinson, et al., Special Report: How Trump administration left indelible mark on U.S. immigration courts, Reuters (Mar. 8, 2021, 7:06 AM), https://www.reuters.com/article/us-usa-immigration-trump-court-special-r/special-report-how-trump-administration-left-indelible-mark-on-u-s-immigration-courts-idUSKBN2B0179; EOIR Office, supra note 6.

[8] Executive Office for Immigration Review: Board of Immigration Appeals, U.S. Dep’t Justice (Dec. 7, 2020), https://www.justice.gov/eoir/board-of-immigration-appeals.

[9] Jill E. Family, The Executive Power of Process in Immigration Law, 91 Chi.-Kent L. Rev. 59, 79 (2016); see also 8 U.S.C. § 1101(b)(4).

[10] Levinson, supra note 7.

[11] Id.

[12] Hong, supra note 3, at 773.

[13] Asylum Decisions by Outcome (FY 2019), TRAC Immigration (Feb., 2021) https://trac.syr.edu/phptools/immigration/asylum/.

[14] Levinson, supra note 7.

[15] Id.

[16] Id.

[17] Hong, supra note 3, at 774; see also 8 C.F.R. § 1003.1(h)(1)(i) (2020) (“The Board shall refer to the Attorney General for review of its decision all cases that: (i) The Attorney General directs the Board to refer to him.”).

[18] Id.

[19] Id; see, e.g., Matter of A-B-, 27 I. & N. Dec. 316, 323-24 (A.G. 2018) (declaring that domestic and gang violence were generally not grounds for asylum).

[20] C.f. Shoba Sivaprasad Wadhia & Christopher J. Walker, The Case Against Chevron Deference in Immigration Adjudication, 70 Duke L.J. 1197, 1221 (2021) (“BIA’s win rate [at federal court of appeals]–70.2 percent–was nearly fifteen percentage points less than the agency win rate for statutory interpretations embraced in all other hearing-based agency adjudications in the dataset–84.7 percent.”).

[21] Quinteros v. Atty. Gen. of U.S., 945 F.3d 772, 789 (3d Cir. 2019) (J. McKee, concurring).

[22] Id.

[23] Baez-Sanchez v. Barr, 947 F.3d 1033, 1035 (7th Cir. 2020).

[24] Id.

[25] Id. at 1036–37.

[26] Hernandez-Cartagena v. Barr, 977 F.3d 316, 322 (4th Cir. 2020).

[27] Id.

[28] Id.

[29] Wadhia & Walker, supra note 20, at 1221.

[30]Id; Levinson, supra note 7. See generally Daniel Buteyn, The Immigration Judiciary’s Need for Independence: Breaking Free from the Shackles of the Attorney General and the Powers of the Executive Branch, 46 Mitchell Hamline L. Rev. 958 (2020).