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APPROACHING THE BENCH FROM INSIDE THE IMMIGRATION COURT
By WILLIAM K. ZIMMER
AuthorHouseCopyright © 2013 William K. Zimmer
All rights reserved.
History of the Immigration Court
Lengthy labels seem to characterize agencies charged with administering immigration matters. For example, the immigration court currently resides in The Executive Office For Immigration Review ("EOIR"), a subdivision of the Department of Justice. Try typing this title on an address label without acronyms.
The government entity having immigration responsibilities has Been moved about in the federal government, almost like an unwanted step-child. Congress created the position of "Superintendent of Immigration" in the Treasury Department in 1891 which appears to be the very beginning of the former Immigration and Naturalization Service. See section 7 of the Act of March 3, 1891. The function of the "Superintendent of Immigration" was transferred from the Treasury Department to the Department of Commerce and Labor in 1903. See section 22 of the Act of March 3, 1903. In 1913, the immigration function and the naturalization function were designated as separate bureaus in the newly created Department of Labor. See section 551 of the Act of March 4, 1913. In 1933, Franklin D. Roosevelt, with Congressional approval, directed the consolidation of the immigration and naturalization bureaus into the Immigration and Naturalization Service of the Department of Labor. See Executive Order No. 6166 of June 10, 1933. It was not until 1940 that the Immigration and Naturalization Service was transferred to the Department of Justice in accordance with the "Hoover Plan." See the Reorganization Act of 1939. EOIR, home to the immigration court and the Board of Immigration Appeals ("BIA"), had evolved in the Immigration and Naturalization Service until EOIR emerged as an independent agency in 1983. Finally, in 2002 Congress abolished the former Immigration and Naturalization Service and transferred its operating units to the newly formed Department of Homeland Security ("DHS") as Immigration and Customs Enforcement ("ICE") and Citizenship and Immigration Services ("CIS"). See Homeland Security Act, Pub. L. 107296, 116 Stat. 2135 (2002). These dual operating units are reminiscent of the bifurcated bureaus of Immigration and Naturalization Services that had previously resided in the Department of Labor. Congress, however, preserved the EOIR in the Department of Justice. Thus, the immigration court survived the 2002 transfer of the Immigration and Naturalization Service functions to the DHS and currently remains in the Department of Justice.
Before offering my opinion about the evolution and culture of the immigration court, it is appropriate to outline my experience with immigration inspection and other processes. Hopefully, a brief personal history will provide insight to the reader about my point of view. In 1972, I worked as an employee of the Detroit and Canada Tunnel Corporation as a tunnel guard. The Tunnel Company issued me a badge, a flashlight and a hard hat to carry out my duties of directing traffic and periodically patrolling, on foot, the Detroit Windsor Tunnel for blockages or delays caused by traffic incidents and accidents, or any other anomalies. Tunnel guards were expected to ensure orderly lines of traffic leading to the inspection booths and to request the opening of inspection lanes from Customs and Immigration offices. These offices were located across the traffic lanes from each other. At that time, the Department of Treasury employed customs inspectors and the Department of Justice employed immigration inspectors. The customs office resided on the side of the inspection booths closest to the Detroit River near Randolph Street. The immigration office was located above the customs office on a rise between the inspection booths and Jefferson Avenue on the southern side of Detroit. It might be of interest to some readers to note that a curious twist of geography places Windsor, Canada south of the United States and Canada border. Sometimes, the opening of new inspection lanes in response to increased traffic volume provoked minor verbal skirmishes between the customs crews and the immigration crews when the immigration office lacked sufficient personnel to open a new lane in its turn, especially on a cold winter day. The Customs Service always seemed to have more resources than the Immigration Service. This perception is consistent with the natural impression one might expect an ordinary observer to form, since the Treasury Department generally collects money and the Department of Justice does not. Regardless of the truth regarding disparate resources of the two services, the perception of officers in the field created its own reality. This perception about uneven resources was further strengthened in the minds of immigration and customs officers by the more remunerative reimbursable overtime provisions enjoyed by customs officers under the 1911 Act Governing Overtime. Reimbursable overtime for immigration officers was provided under the Act of March 2, 1931. The above description of the resource disparity is a digression, but the reader was warned in the introduction about random information. Returning to the duties of tunnel guards, when immigration officers rejected aliens applying for admission, the tunnel guards were responsible for escorting the rejected person or persons back to Canada. This was accomplished by walking with rejected pedestrian(s) to the tunnel bus that traveled back and forth in the tunnel between Canada and the United States. The tunnel guard was expected to verify that the rejected alien boarded the bus and that the bus departed. If the rejected person or persons had been traveling by automobile the tunnel guard lowered a chain and directed the driver into the traffic lane heading back to Canada through the tunnel. These escort duties were performed by Detroit and Canada Tunnel Corporation employees because the proprietor of the tunnel was subject to the same laws and regulations that applied to carriers such as aircraft and vessels arriving in the United States from abroad. If for some reason an automobile or a pedestrian evaded inspection or return to Canada after denial of admission to the United States by an immigration officer the Detroit Windsor Tunnel Corporation was fined $500 for each person involved in the violation.
The Customs Service hired me as a customs inspector in 1974. At that time, customs inspectors were cross-designated immigration inspectors through training for the purpose of primary border inspection. I worked at the Detroit Windsor Tunnel and the Ambassador Bridge, a second designated international port of entry in Detroit, performing border inspections of people and vehicles coming to the United States from Canada. Upon transferring to Houston, Texas, in 1978, I worked at the Houston Intercontinental Airport, the Houston Hobby Airport and the Houston ship channel. Airport duties in Houston at that time were divided between passenger inspection terminals, airline cargo facilities and other warehouses. At the Houston Hobby Airport, private aircraft and some commercial cargo aircraft were inspected, usually by a single inspector. If aliens were on board the aircraft an immigration officer was also assigned in the discretion of the immigration officer in charge of the port of entry. When a ship arrived at the Port of Houston from abroad, an immigration officer and a customs officer boarded the ship. The customs officer who boarded the ship would obtain the manifest from the ship's captain. Customs officers ultimately compared unladed cargo from the ship with cargo listed on the manifest. Customs officers were assigned to supervise the unlading of ships and to inspect cargo, such as oil well casing and steel and other cargo for which immediate release had been sought by the importer. For oil and chemical tankers, customs officers measured the product on the ship before and after unlading and also gauged the shore tank(s) before and after unlading. The immigration officer would inspect the crew and passengers if any and determine whether to admit crew and passengers by issuing an Arrival Departure Record (Form I-94). Any person not admitted would be confined on board the ship which was the responsibility of the ship's captain. As you can see, the Customs Service is oriented to control things that come into the United States by inspecting them and collecting tariffs. The Immigration Service is oriented to control people arriving in the United States through the inspection process.
My first employment as a licensed attorney occurred in 1985 as Assistant District Attorney in the 9th Judicial District of Montgomery County, Texas. I worked in intake, drafting and presenting indictments to the Grand Jury, as well as drafting complaints to obtain arrest and search warrants, and took part in five criminal trials. While I was working as an Assistant District Attorney, Congress passed the Immigration Reform and Control Act of 1986 ("IRCA"). This legislation not only contained amnesty provisions for the legalization of aliens (including agricultural workers) who had been continuously present in the United States after illegally entering the United States as of 1982, employer sanctions for knowingly hiring aliens without work authorization and increased border enforcement. IRCA also provided for the hiring of immigration trial attorneys. Although I enjoyed working for the Montgomery County District Attorney's Office, I applied for re-employment by the federal government as an immigration trial attorney. Ultimately, I was hired by the former Immigration and Naturalization Service ("INS") as a trial attorney in 1987 and assigned to the Houston, Texas litigation unit. Before I was hired as a trial attorney, there were only two government immigration trial attorneys in Houston. At the same time, however, three Special Inquiry Officers (now entitled Immigration Judges) presided in Houston. This required the infant Houston litigation unit to decide which courts would not be attended by a trial attorney. If an immigration investigator was available he or she would be assigned to represent the INS in the immigration court that lacked a trial attorney. See 8 C.F.R. § 242.9(a)  (providing for assignment of an additional immigration officer to perform the duties of a trial attorney). Current regulations require assignment of a government attorney when the removal charge is contested or is not conceded and when an unrepresented alien in immigration proceedings is incompetent or under 18 years of age. In all other circumstances, assignment of a government attorney is optional. See 8 C.F.R. § 1240.2(b).
Houston trial attorneys were not only assigned to immigration court for exclusion, deportation and rescission proceedings. Sometimes a trial attorney would appear in state criminal court or submit a brief in state criminal court to present the INS position regarding a Judicial Recommendation Against Deportation ("JRAD"). If the state court judge issued a JRAD in a criminal proceeding, the offense for which the alien was convicted could not be used to frame an exclusion or deportation charge to justify initiating immigration court proceedings, except for drug convictions and foreign convictions. Trial attorneys sometimes explained to state court judges that a conviction does not absolutely mandate deportation. For example, if the offense for which the alien was convicted is a petty offense issuing a JRAD would diminish the defendant's incentive for rehabilitation because the INS would not be able to combine the offense with a subsequent offense to justify future deportation or exclusion proceedings. Trial attorneys would sometimes explain that the defendant would have an opportunity to present equities that would be weighed against adverse factors in immigration court if a waiver was available, or that the defendant could qualify for other relief from deportation in the absence of a JRAD. I can't recall any Houston case in which the INS did not oppose the issuance of a JRAD. As of November 29, 1990, Congress repealed the JRAD provision by enacting section 505 of the Immigration Act of 1990, Public Law No. 101-649. However, JRADs issued before November 29, 1990 must still be honored. This is another detail for immigration attorneys to remember, whose clients established a criminal history before the JRAD repeal date. Given the expanding definition of "Aggravated Felony" under section 101(a)(43) of the Immigration and Nationality Act, as amended ("the Act"), as well as the seemingly increasing risk that ICE will brand an offense with the nebulous stamp of disapproval (i.e. crime involving moral turpitude ("CIMT")) some immigration attorneys would probably applaud the return of JRADs.
Houston trial attorneys also handled employer sanctions litigation before the Office of the Chief Administrative Hearing Officer ("OCAHO") in EOIR. This type of litigation involved discovery under the Federal Rules of Civil Procedure, such as interrogatories and depositions, which I can only describe as time consuming. Employer sanctions cases in Houston also attracted a significant amount of media attention, and INS headquarters considered them to be sensitive. Trial attorneys were instructed not to talk to the media about employer sanctions or any other subject.
The Houston INS litigation unit assigned a trial attorney to the U.S. Attorney's Office as a Special Assistant United States Attorney ("SAUSA"). The SAUSA would assist the representation of the INS and the Department of Justice ("DOJ") in civil and criminal cases. However, the INS, not the United States Attorney's Office, paid the SAUSA's salary. Inevitably, this assignment involved responding to writs of habeas corpus and other motions relating to immigration matters filed in U.S. District Court.
Trial attorneys were also assigned to represent the INS in Merit System Protection Board ("MSPB") cases. These cases involved controversies between the agency and an employee. See 5 U.S.C. Part III and 5 C.F.R. Part 1201. See Douglas v. Veterans Administration, 5 M.S.P.B. 313; 5 M.S.P.R. 280 (1981).
Finally, Houston trial attorneys provided legal advice to operating units, but operating units were not required to follow legal advice from the local litigation office. Acceptance of legal advice depended on the officer and his or her supervisor. Many of the requests seemed to come from deportation officers who would inquire about motions to reopen before deporting an alien. Investigators involved in employer sanctions enforcement would usually communicate well with the assigned trial attorney. Sometimes, investigators would seek advice about search and seizure. Occasionally, trial attorneys would receive inquiries from examination officers and supervisory inspectors, but almost never from any other unit. There was no requirement for operating units to seek legal advice in the ordinary course of business, even if it involved initiating exclusion, deportation, or rescission proceedings.
This brings me to an opportunity to offer an opinion about the evolution of the immigration court and how the system could be improved to ensure independent decision making and fundamental fairness. Legislative history and the collective experience of customs officers and immigration officers relating to the processing of aliens arriving in the United States from abroad strongly suggests that the creature we know as the immigration court evolved out of the inspection process. The inspection process in the context of this book is the face to face interaction between an international traveler seeking admission to the United States and a government officer or surrogate.
After passage of the notorious Alien Sedition Acts of 1798 which expressly expired two years after enactment and the almost forgotten Naturalization Act of 1798, Congress did not pass any significant immigration related legislation until after the American Civil War. It might be interesting to some readers to note that the Naturalization Act of 1798 not only required registration of aliens for the first time in United States history. The Naturalization Act of 1798 made naturalization almost impossible. Congress repealed the provisions of the Naturalization Act of 1795 which required 5 years of residence in the United States and a declaration of intent to become a United States citizen 3 years before naturalization. Under the new provisions of the Naturalization Act of 1798, an applicant for naturalization was required to declare an intention to become a United States citizen 5 years before naturalization; prove 14 years residence in the United States; and prove registration that had to be maintained throughout the entire 14 year period by re-registration upon each arrival in the United States. Perhaps, this restrictive change in law reflected fear of foreign influence during a dangerous time in United States history. Tensions between the United States and France were running high during John Adams' presidency, after war had been declared between Britain and France in 1793. It seems that the interest of current day politicians in the political leanings of immigrant groups is nothing new.
Excerpted from APPROACHING THE BENCH FROM INSIDE THE IMMIGRATION COURT by WILLIAM K. ZIMMER. Copyright © 2013 by William K. Zimmer. Excerpted by permission of AuthorHouse.
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Table of Contents
Quotation From The Federalist, No. 31.................... ix
Chapter I — History of the Immigration Court.................... 1
Chapter II — Removal Proceedings.................... 29
Chapter III — Persecution and Torture Claims.................... 41
Chapter IV — Hardship Claims.................... 65
Chapter V — Legitimation of Immigration Status.................... 91
Chapter VI — Marriage Fraud Amendments.................... 105
Chapter VII — Waivers.................... 119
Chapter VIII — Voluntary Departure.................... 165
Chapter IX — Bond Hearings.................... 175
Chapter X — Motions to Reopen and Motions to Reconsider................... 183
Quotation From Midsummer's Night Dream, Act V, Scene 2.................... 195