Thursday, May 18, 2006

Judicial independence and asylum law

A good note on the role of judges in asylum law from Judge Reinhardt. After noting the pretty ironclad independence of Article III judges, he then notes that in the asylum field, most judicial functions are performed by the executive branch (BIA, EOIR), and that the judiciary proper has a fairly limited ability to review them---this is essentially a New Deal administrative law situation. Immigration Judges are DoJ (now DHS) employees, the deportee does not have a right to counsel (and two-thirds are not represented), and the findings of the IJ are given a great deal of deference. (For a typical example of how procedurally Chevron-hard a circuit judge must work to overrule a lower finding, see Mohammed v. Gonzales, by Judge Reinhardt himself. A reversal of an IJ can occur only if "the evidence [that the asylum seeker] presented was so compelling that no reasonable factfinder could fail to find the requisite fear of persecution," which is quite a high standard.)

Most importantly, Reinhardt's fears in 2001 about streamlining weren't misplaced: Ashcroft's plan in 2002 to cut from 23 to 11 the number of BIA appellate members is indeed generally considered to have been fairly political, with both the cut itself, and the immigration attitudes of the cut members, being somewhat suspect. (I should add that I have never seen an independent assessment of this, though, giving details and evidence of the biased cuts.) This is just what Article III was designed to prevent.

UPDATE: See ELS for a discussion of how shrinking relative Article III salaries may be undermining judicial independence. The salary ratio of being a partner at a big law firm to being a circuit court judge is now about 6.


Blogger Justin Cox said...

The very high standard of review that you mention, btw, does not mean that Art. III judges don't find such errors (you probably know better than me, since you are in the Immigration Clinic). This is, as one very famous Art. III judge sitting on the 2nd Circuit said, IJs are not only "overworked, and many aren't that smart."

One note on Judge Reinhardt: he met with some Yale ACS members a couple months ago, and not only is he a very smart guy, he's also quite a nice guy. To top it off, his wife, Ramona Ripston, is the Executive Director of the ACLU of Southern California. Quite the progressive power couple.

1:00 PM  
Blogger Sean Strasburg said...

Yes: also, some of Posner's comments on IJ's and asylum officers are pretty damn viciously funny. It's an unfortunate situation; although Reinhardt in the paper I linked to is a bit more solicitous of the work they put in and their ability.

Reinhardt's decision in Mohammed is a progressive asylum lawyer's dream. Hopefully it'll get accepted outside the 9th Cir someday...

1:03 PM  

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