Before There Were Immigration Judges By Joseph P. Whalen (12/14/2011)Before there were Immigration Judges (IJs) there were Special Inquiry Officers.The former Immigration and Naturalizations Service’s (INS’) Special InquiryOfficers (SIOs) were veteran Immigration Officers given the task of presiding overHearings in Exclusion and Deportation Proceedings. SIOs evolved from the corpsof Inspectors from the original Immigration Service who served on Boards ofSpecial Inquiry that formed out of necessity at Ellis Island that closely reviewedeach exclusion case. The operations of the U.S.’ first Immigration Service underthe Secretary of the Treasury began in New York Harbor at a “new” Federalimmigration station on Ellis Island, which opened January 2, 1892. The TreasuryDepartment’s Customs Inspectors had been collecting head-taxes on new arrivalssince 1820, and later Immigration Inspectors first employed by States beganexcluding idiots, lunatics, and those likely to become a public charge and later alsoexcluded criminals (especially for crimes involving moral turpitude) and thosewith communicable diseases. SIOs were later transformed into ImmigrationJudges and split from INS in 1983, and placed in the Executive Office ofImmigration Review (EOIR) where today’s Removal Proceedings take place inImmigration Courts.The Decisions of SIOs along with decisions of various other precursor andsuccessor officials (including District and/or Port Directors and the variousRegional Commissioners and later Regional Service Center Directors) were oftenappealable in the same manner as today’s administrative decisions. In the oldendays, the Secretary of Labor created an administrative body named theImmigration Board of Review within the Immigration Bureau in the mid-1920s todeal with immigration matters (a reworking of the Ellis Island Boards of SpecialInquiry—that’s where the title came from).In 1940, the Attorney General (AG) became the Cabinet member who was stuckwith the new INS. The AG kept the Labor Secretary’s concept and transformed itinto the Board of Immigration Appeals (BIA or Board). See Matter of L-, 1I. & N. Dec. 1 (1940). The early BIA shared some appellate authority with the AGand later the INS Commissioner and the Commissioner’s delegates. Eventually the
Executive Associate Commissioner became the appellate authority and formed anAdministrative Appeals Unit (around the same time as EOIR was created in 1983)which became the Administrative Appeals Office (AAO) headed by a Chief in yetanother reorganization in 1994. With the creation of the Department of HomelandSecurity (DHS), the AAO stayed and became a part of U.S. Citizenship andImmigration Services (USCIS). The EOIR with its Immigration Courts and theBIA as well as the Office of the Administrative Hearing Officer (OCAHO) createdin 1987, as a direct result of IRCA (1986) all stayed in the Department of Justice.A review of the historical context for administrative appellate authority inimmigration matters is timely right now for at least three reasons. First, AAO stillhas not promulgated the promised rulemaking concerning itself. The need for suchrulemaking has existed for a very long time. Matters pertaining to properjurisdiction were initially the main items addressed in the 1980s and revisited inthe 1990s following IMMACT (1990) and IIRIRA (1996) as well as key cases.AAO procedural questions were never adequately answered, partly because theywere not effectively asked initially. Many matters were not adequately addressedin the early to mid-1980s when the various appellate bodies came into existence inthe forms most closely resembling what we have today. A need was recognized inthe mid-1990s. A rulemaking was begun and later dropped. Then all hell brokeloose on September 11, 2001, and such matters rightly took a backseat. However,AAO has truly been floundering since DHS was created and officially came intobeing on March 1, 2003. In light of the fact that the AAO shifted into theCustomer Service oriented agency for all of DHS, namely USCIS, the status quoand reliance on rules and regulations promulgated by the former INS which was aLaw Enforcement oriented agency has simply not worked out very well at all.The second reason to review this historical context is the U.S. Supreme Courtdecision of December 12, 2011. Judulang v. Holder, No. 10-694 actually cites toMatter of L-, 1 I. & N. Dec. 1 (1940)1 which was decided by the Board August 29,1940. Judulang involves a case from the Ninth Circuit and is a remand. This is nosurprise by itself because a great many Ninth Circuit cases, especially theirimmigration-related cases, get overturned. The real surprise is that the Ninth1 The case is available on the USCIS website but not on the EOIR website.
Circuit upheld the BIA Decision in the first place. Please read Judulang andMatter of L-.The third reason to review the historical context is to see how things have comealmost full circle. On November 7, 2011, USCIS issued PM-602-0050, entitled:“Revised Guidance for the Referral of Cases and Issuance of Notices to Appear(NTAs) in Cases Involving Inadmissible and Removable Aliens” created a newentity to be known as an N-400 NTA Review Panel (Review Panel). Each localField Office is to establish a Review Panel. These Review Panels will serve tocheck the overzealous adjudicators trapped in and oppressed by the “Culture ofNO!” and/or who are incapable of exercising sound judgment or properly weighingevidence under the correct standard of proof. ICE has been invited to participateand these panels may serve to bridge the communication gap between the ICEAgents and Counsel, and the USCIS Officers and Counsel. These key DHSagencies have needed to improve communication for quite some time. The properexercise of Prosecutorial Discretion is a joint decision between the Benefits andEnforcement arms of the Department. It is more cost and time effective to closelyreview a case before entering the realm of Removal Proceedings. In cases where aremedy is attainable through DHS actions alone, it is counterproductive to foist acase on the IJs and BIA, which may then wind up in the Federal District and/orCircuit Courts and ultimately the U.S. Supreme Court. Certain issues and onlycertain issue actually need to be elevated so high for resolution. When it is trulynecessary for the highest court to weigh-in on an issue, so be it. Whethersomething needs it is a whole other matter.Still on that third reason, on June 7, 2011, USCIS published PM-602-0039,entitled: “The Role of USCIS District Directors in the Board of ImmigrationAppeals Recognition and Accreditation Process; Revisions to the Adjudicator’sField Manual, New Chapter 12.6, AFM Update AD 11-34”. This shift of emphasisin a step towards fulfilling a responsibility that was already there. It seems thatthis effort is almost completing a full circle and bringing a majority of thisresponsibility back to where it started. INS used to bear the full responsibility ofaccepting requests to be recognized, accredited, and listed; made the decisions; didwhatever checking was deemed necessary; and maintained the lists. Thejurisdiction over matters of maintaining the lists of legal service providers shiftedfrom INS to EOIR’s OCIJ effective March 31, 1997, pursuant to IIRIRA (1996).Also, appellate jurisdiction in matters concerning recognition and accreditationshifted from the Assoc. Comm’r Exams. (AAO) to the BIA in that same rulemaking at 62 FR 9071-9075 (2/28/97). It’s worth reading that old FR Notice.