Deputy Attorney General Rosenstein Writes Op-Ed On Idea For Immigration Appellate Court

On December 6, 2018, Deputy Attorney General Rod Rosenstein published an interesting op-ed in the Wall Street Journal titled “Impose Boundaries on Immigration Law.”¹

In general, appeals of administrative decisions filed by the Board of Immigration Appeals (BIA) go directly to the Federal appellate court having geographic jurisdiction over the area in which the immigration case arose. For example, appeals in cases arising in New York are handled by the United States Court of Appeals for the Second Circuit, appeals in cases arising in New Jersey are handled by the United States Court of Appeals for the Third Circuit, and appeals in cases arising in California are handled by the United States Court of Appeals for the Ninth Circuit. We cover the jurisdiction of the Federal circuit courts in a separate article [see article].

In his op-ed, the Deputy Attorney General argued that the current system has several flaws:

The Nationality Clause of the United States Constitution vests in Congress the power “To establish a uniform rule of naturalization.” The Immigration and Nationality Act “takes up only a single chapter of the United States Code.” However, “each circuit court may interpret the law differently.” As a result, “[a] uniform interpretation emerges only in the rare event that the Supreme Court hears an immigration case.” Accordingly, “despite the constitutional mandate to establish a uniform rule, the system often produces divergent results.”
“In 2018, about 56% of all BIA appeals, or about 2,700 cases, were filed in the Ninth Circuit…” DAG Rosenstein identified this as a problem because he described the Ninth Circuit as “the jurisdiction most willing to grant lengthy temporary stays of removal.” For example, he criticized the Ninth Circuit's recent decision in Barajas-Romero v. Lynch, 846 F.3d 351 (9th Cir. 2017) [PDF version], which he described as “reject[ing] the 13-year old legal standard used by the Board of Immigration Appeals and all other federal courts to evaluate eligibility for withholding of removal…”
Immigration cases make up a large portion of the federal docket and lead to significant case backlogs. DAG Rosenstein noted that “In fiscal 2018, there were 4,795 appeals of BIA decisions filed in the federal courts of appeals. At the end of the year there were approximately 8,276 immigration appeals pending.” Immigration appeals “account for some 86% of all administrative agency appeals pending before circuit courts.” Because of the large number of immigration appeals, “Alien cases routinely languish for well over a year, several years if the court requires oral argument.” He added that nearly a quarter of the Ninth Circuit's cases are immigration appeals and about 13% of the Second Circuit's caseload were appeals of BIA decisions.

Having identified these problems, DAG Rosenstein suggested giving a single circuit court subject-matter jurisdiction over all BIA appeals. As we explain in our article on the jurisdiction of the federal circuit courts, twelve of the thirteen circuit courts have geographic jurisdiction. The United States Court of Appeals for the Federal Circuit is the only circuit court which currently has subject-matter jurisdiction, meaning it hears all appeals from around the country in designated areas set forth in 28 U.S.C. 1295 [PDF version]. DAG Rosenstein suggested a similar scheme for BIA appeals. Referencing the Federal Circuit, he argued that this proposal for immigration appeals, if implemented, would have the following benefits:

It would “restore uniformity and promote efficiency by consolidating all immigration appeals in a specialized court of immigration appeals.” This would avoid “confusion and delay” that results from having twelve Federal appellate courts interpret the same provisions of the INA. The judges sitting on a specialized immigration appellate court would “gain expertise in specialized areas of the law, resulting in greater clarity and consistency in its rulings.”
“It would also help relieve the appellate dockets, which are swamped by immigration cases.”
It would also ensure that courts sitting in specific geographic areas do not have a disproportionate effect on the immigration laws.
In sum, “This would promote prompt adjudication of aliens' claims and fulfill Congress's duty to establish 'a uniform Rule of Naturalization.'”

DAG Rosenstein suggested that Congress could either create an entirely new circuit court having subject-matter jurisdiction over BIA appeals or expand the subject-matter jurisdiction of the Federal Circuit.

In his op-ed, DAG Rosenstein alludes to the fact that the changes he is proposing would have to be enacted by Congress. Similarly to proposals to break up the Ninth Circuit [see blog], it is unlikely that Congress will seriously contemplate DAG Rosenstein's proposal in the near future. However, the proposal is worth keeping in mind for future discussions about immigration reform. It is possible that President Donald Trump and/or members of Congress will push the issue as part of a broader legislative package on immigration.

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1. Rosenstein, Rod. “Impose Boundaries on Immigration Law.” The Wall Street Journal. (Dec. 6, 2018.) https://www.wsj.com/articles/impose-boundaries-on-immigration-law-1544139768