Immigration Court, Then and Now

It’s Still Not Really a ‘Court’ – But It’s Better Now than It Was 100 Years Ago

Rejected immigrants leave the USA, 1931. Sueddeutsche Zeitung Photo/Alamy.com

Last Monday, two students in WVU’s Immigration Law Clinic – Taylor Smith and Spencer VanHoose – successfully argued before the Baltimore Immigration Court for relief for their client under the U.N. Convention Against Torture. Later in the week, I was reading Jane Perry Clark’s 1931 treatise, Deportation of Aliens from the United States to Europe, the first academic study of the United States government’s deportation procedures.

In The Accidental History of the U.S. Immigration Courts, I wrote about how far we still have to go toward a truly impartial system for deciding cases for removal of noncitizens. This week, however, I was also struck by how far we’ve come.

The Immigration Courts Today

Today’s immigration courts have many procedural safeguards and a sufficient air of formality that even many lawyers assume the immigration courts are part of the Article III federal judiciary.

They aren’t. What we call the “immigration courts” is really an office of the Department of Justice (DOJ) called the Executive Office for Immigration Review (EOIR). As I’ve just finished teaching my students in Administrative Law, federal agencies have, nearly since their inception, conducted adjudication of claims as part of the implementation and enforcement of the statutes they administer.

That’s what immigration court really is – agency adjudication of the statute it administers, the Immigration and Nationality Act. Technically, since 2002, administration of the immigration laws has been now split between two agencies: the Department of Homeland Security (DHS) handles investigation and prosecution, while EOIR in DOJ handles adjudication.

While separation of those functions into different agencies was a good step toward fairness, EOIR is still an office of the nation’s chief law enforcement agency, not a court in the sense of the Article III federal judiciary. Immigration judges don’t have life tenure, and they can be disciplined or removed by the attorney general if they don’t decide cases consistent with departmental policy. The attorney general doesn’t have unfettered discretion – DOJ immigration policies must still comply with federal statutes and regulations – but that leaves a lot of room for policy (and political agendas).  

If It Looks Like a Court …

When Smith and VanHoose went to the Baltimore Immigration Court this week, a casual observer might not notice the difference between that forum and a federal court. The students argued in a small but conventional-looking courtroom, with two counsel tables, a few rows of seating for witnesses or observers and a seat for the court reporter or translator. The judge sat on an elevated bench.She wore a black robe and we all addressed her as “Your Honor.” An attorney from DHS’s Office of Immigration and Customs Enforcement (ICE) argued for the government.  

But there were clues, if you knew where to look, that this was agency adjudication, not federal court. First, although we walked right by the United States Courthouse in Baltimore, we didn’t go in there – because that building belongs to the federal judiciary. Instead, we went next door, to the “Federal Building” that houses the U.S. executive agency offices. (Afterwards we took the students’ picture beside the U.S. Courthouse sign because there was no similar sign for the federal building, and we knew that even most people in the legal profession wouldn’t know the difference.)

Second, the proceedings lacked some of the procedural formalities of a court hearing. Although attorneys will make the occasional objection, the Federal Rules of Evidence don’t apply in immigration court. And, typical for immigration court, only the client testified in person; the students submitted the testimony of other witnesses, like family members and an expert on country conditions, fifteen days before the hearing along with a legal brief.  

Flashback, 1920s

These hints to the executive control of the proceedings would be easy to miss for those not familiar with immigration court. For the most part, it looked like a court.

That’s no accident. Over a century ago, the immigration courts started off as simply a system of immigration inspectors examining each would-be immigrant to determine whether they had any characteristics that made them ineligible to come in, such as communicable disease, inability to support themself, or – until 1943 – simply being Chinese. If the individual (or, later, the government) wanted to challenge the inspector’s decision, they could go before a “board of special inquiry” to make their case.

These proceedings looked almost nothing like a court when Clark undertook her study in the late 1920s. Clark examined records of the Department of Labor – which then had jurisdiction over immigration – beginning from 1925. She chose that year for a reason; the Immigration Act of 1924, which for the first time drastically restricted immigration, went into effect and substantially increased the number and types of immigration proceedings that DOL had to conduct.  

Beginnings of Procedural Protections

Those proceedings had some familiar procedural safeguards: Inspectors asked if they consented to make a statement before the inspectors took their testimony, and they warned the noncitizens that their statements could be used against them. (Originally the inspectors told them their statements could be used “for or against” them, but they eventually conceded that was inaccurate and dropped the “for”).

At the hearing (though not before), noncitizens could choose to have an attorney present. If they objected to the decision of the inspector, they could ask to be appear before the Board of Review, a non-statutory, non-regulatory body set up by the Secretary of Labor so that he didn’t have to personally review and sign the crush of immigration cases now coming at him after the 1924 Act. By the time Clark wrote her treatise, the Board of Review had its own room, labeled “Court Room” on the door, and the Board members sat on an elevated bench before a bar where the attorneys appeared in the small number of cases entitled to oral arguments.

But …

Despite these protections (many of which had been imposed by the federal courts in due process litigation over the years), immigration proceedings had loopholes that inspectors regularly used, loopholes that limited the value of the protections that courts had imposed.

Most significant, according to Clark, was the “preliminary statement.” While hearings themselves required procedural protections, immigration inspectors typically presented the noncitizen with an arrest warrant and asked them to make a preliminary statement at the immigration service office. (Before FDR established the INS in 1933, immigration services and naturalization services were conducted by separate offices, since naturalization had always been a federal power but federal immigration power dated only to 1875.)

Nobody would mistake these proceedings for courts: Multiple immigration inspectors sat at desks in a large room, taking statements from various noncitizens at the same time. Sometimes the inspector himself also served as the translator and stenographer; sometimes another inspector did that.

Because the preliminary statement had few procedural safeguards, immigration inspectors learned to use it to establish nearly all the facts they would need to prove their case for deportation, Clark found. When the inspector and the noncitizen later appeared before a board of special inquiry, the inspector could introduce the preliminary statement in support of their case. If the noncitizen didn’t call any additional witnesses or submit any additional evidence, as many were unprepared to do, the preliminary statement became the whole case. So much for procedural protections at the hearing.

What about the right to counsel? By the late 1920s, the government already allowed the noncitizen to have counsel at the hearing at their own expense. But according to Clark, the government waited until the hearing to inform the noncitizen that they could have counsel present. The government would ask the noncitizen if they wanted to waive their right to counsel, and if they did so, the hearing went forward.

Even where they requested counsel, things weren’t too much better. If the noncitizen requested counsel, the hearing would be paused for a few days while the noncitizen retained a lawyer. The lawyer, who had effectively no time to prepare, would come into the hearing and be confronted with that preliminary statement the government had already taken. The noncitizen likely had already incriminated themself in many ways they didn’t have to before the lawyer even got involved.

After the hearing, the lawyer had a couple of weeks to prepare and submit a brief. If the decision went against his client, he could appeal to the Board of Review and, in some cases, make an argument in the “Court Room” described above. Unfortunately, according to Clark, the Board of Review included two INS inspectors from a division that was, in that era, a dumping ground for thugs to whom some politician owed a favor – records of the Roosevelt administration noted that those inspectors included one who had been fired as a Prohibition agent “for murdering 3 persons.”

Looking Back and Looking Ahead

This system stunk, and INS knew it. The Administrative Procedure Act of 1946 established stronger protections in most agency adjudications, but the Supreme Court in 1955 held that Congress had carved immigration hearings out of the APA. Even with this get-out-of-the-APA-free card, though, directors of the INS made substantial changes to hearing procedures to minimize the blowback of public opinion.

First, in 1956, they required a different “examining officer” from the inspector who did the investigation, and they created a record file that excluded any inadmissible material found in the investigation. In 1973, INS by regulation changed the name of “special inquiry officer” to “immigration judge,” and as a matter of practice started having judges wear black robes (a change that became mandatory in 1994). In 1983, INS took a big step toward separating adjudication from the investigation and prosecution functions by creating EOIR as a separate office that only did adjudication. That’s the office that Congress kept in DOJ when it moved investigation and prosecution to the new DHS in 2002.   

While immigration adjudication has come a long way in 100 years, I can’t help but wonder why we haven’t come further. As Justice Jackson wrote in 1950: “A deportation hearing involves issues basic to human liberty and happiness and, in the present upheavals in lands to which aliens may be returned, perhaps to life itself.” That’s no less true today than it was in 1950.