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Been there, done that!
Redux of the “Ashcroft Purge of the BIA” in ‘03!🤮 That touched off a crisis in the Circuit Courts who were infuriated by the resulting sloppy “rubber stamp” denials and intemperate language from some IJs. Circuit Judges Posner (CA 7) and Walker (CA 2) were particularly harsh and publicly critical of EOIR’s poor performance. Former GOP House staff member and “practical scholar” Peter Levinson published the definitive analysis of this due process farce in his article “The Facade of Quasi-Judicial Independence In Immigration Appellate Adjudications,” available here: https://immigrationcourtside.com/2024/04/02/%e2%9a%96%ef%b8%8f-bia-expands-to-28-appellate-judges-plus-bonus-coverage-lest-we-forget-the-ashcroft-purge-of-the-bia/
⚖️ BIA EXPANDS TO 28 APPELLATE JUDGES! — PLUS BONUS COVERAGE: “Lest We Forget: The Ashcroft Purge of the BIA!” Dan Kowalski reports: This document is scheduled to be published in the Federal Register on 04/02/2024 “On April 1,
Not surprisingly, following the purge, the BIA found it difficult to operate with an arbitrarily reduced number of members. To fill the gap that they had created, DOJ politicos and “EOIR Management” began designating senior BIA staff attorneys as “Temporary Board Members” (“TBMs”). Unlike the “purged members” who had gone through a competitive selection process prior to appointment, the designation of TBMs was solely within the discretion of EOIR Management subject to approval by the Deputy Attorney General.
Only “BIA staff insiders” were considered for these appointments. There was no transparent public selection process.
Significantly, the TBMs had no vote at en banc conferences nor could they vote on publication of precedents (although they could be panel members on published precedent decisions voted on by a majority of “permanent” Board Members). While their terms of service were supposed to be limited, subject to reappointment, this requirement was largely ignored by the DOJ and EOIR Management until somebody raised it as a potential issue and corrective action was taken. Obviously, TBMs who aspired to one day join the BIA on a permanent basis had every incentive not to “rock the boat” or show “undue independence” in a way that might displease EOIR Management or the DOJ politicos who were involved in such selections.
At first, this “insider process” was kept largely “below the radar screen.” But, eventually, as attorneys started noticing unfamiliar names on appellate decisions, the process was acknowledged by EOIR Management and the names and bios of the TBMs started appearing on the EOIR website. (The BIA had previously, on occasion, used field Immigration Judges, OCAHO ALJs, and rehired retired Board Members “sitting by designation,” on panels in a manner similar to the U.S. Circuit Courts of Appeals. The regulations had been changed to permit the designation of senior BIA staff as an additional option.)
Eventually, the DOJ “came clean” and began once again expanding the “permanent membership” of the BIA without ever publicly acknowledging that it had been problematic and wasteful to reduce the BIA’s membership for political reasons in the first place. That expansion eventually reached 28 Appellate Immigration Judges as described in the “Courtside” link above.
So, now begins a new round of arbitrary, politically motivated, “reductions” in the size of the BIA, even in the face of overwhelming backlogs. But, if this “politically weaponized” parody of a ”court system” continues into the future, don’t be surprised if some future DOJ politicos return to the “TBM system” or start once again increasing the number of BIA “permanent” judges.
That, of course, highlights the bigger question: How does a “court system” where politically-motivated Executive Branch employees have complete control and discretion over the hiring, firing, and “supervision” of “administrative judges” pass muster under the due process clause of the 5th Amendment? Basically, both Article III Courts and the Congress have “punted” on the glaring conflicts of interest and inherent biases presented by such a “captive” tribunal.
Here’s additional coverage from Britain Eakin on Law360, quoting me, among others:
Trump Admin To Nearly Halve Immigration Appeals Board – Law360
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⚖️ Due Process Forever!
PWS
02-21-25