Today, jurisdiction over immigration law is by no means well defined by clear limits. Limitations on jurisdiction have bred a multitude of litigation. The number of federal court cases reviewing removal orders has increased 970% in the past ten years. As of September 2005, the immigration cases represented 18% of the appellate civil docket.
Congress and the courts are not alone in augmenting the number of immigration cases in the federal courts. Congress has also urged the agencies enforcing the immigration laws to increase enforcement, to reduce backlogs and to make removal more swift and certain. At the same time that Congress was shearing away at the forms of judicial review, the Department of Justice and its Executive Office for Immigration Review (“EOIR”) together with the Department of Homeland Security (“DHS”) were increasing the number, rate and speed of adjudication of removal cases.
For these men, women and children in removal proceedings, the incentives to litigate beyond the agency have partially increased as a reaction to the narrowing and elimination of prior forms of relief. Prior to 1996, the immigration statutes provided many people with a way to regularize their status, to become “legal” through the removal process. Now, statutory bars on relief are very strict and other forms of relief have been entirely eliminated. Thus, the individual fights harder either to defeat the government assertion that he or she is subject to removal or in the hope that litigation or time will somehow prevent removal.
In this paper, I argue that many of the reforms taken by Congress or by the agency, although designed to increase efficiency have, in essence, backfired. I explore some of the statutory and administrative sources that are contributing to the increase in immigration-related federal court cases. I also discuss substantive immigration law issues and litigation strategies that, in combination with the statutory/regulatory architecture, are adding to the growth in the number of cases. I look at the interrelationship of these factors. Only by examining these interconnections can we seriously understand the nature of the “problem.” In fact, depending on our goal for the immigration adjudication system, we might conclude that judicial review of removal orders, even at this significant rate, is both manageable and essential for the development of our immigration law and policy.
51 New York Law School Law Review 37-73 (2006-2007)