THE PENNSYLVANIA STATE UNIVERSITY SCHREYER HONORS COLLEGE

DEPARTMENT OF POLITICAL SCIENCE

POLITICIZING THE IMMIGRATION COURTS: THE EFFECT OF THE TRUMP ADMINISTRATION ON THE BOARD OF IMMIGRATION APPEALS

ANDREW BERNSTEIN SPRING 2020

A thesis submitted in partial fulfillment of the requirements for baccalaureate degrees in Political Science and Spanish with honors in Political Science

Reviewed and approved* by the following:

Michael Nelson Associate Professor of Political Science Thesis Supervisor

Michael Berkman Professor of Political Science Honors Adviser

*Electronic approvals are on file i

ABSTRACT

While persuading Congress to pass immigration legislation may be difficult for a president, this is not the only mechanism by which a president may influence immigration policy. In fact, even outside of the president’s well-known ability to issue executive orders, the chief executive also has the ability to influence the bureaucracy tasked with interpreting and carrying out immigration policy. In this thesis, I focus on one such element of the bureaucracy:

The Board of Immigration Appeals. And, I focus on it between the middle of the Obama presidency through the middle of the Trump presidency. This Board is an Article I, quasi-judicial body which decides appeals from cases originally heard by immigration judges. Using a logistic regression on the precedent decisions made by the Board, I found that the Trump administration was able to influence the Board of Immigration Appeals such that, all else equal, the Board was more likely to decide cases against immigrants under the tenure of Attorney General William

Barr than under Attorneys General Eric Holder and Loretta Lynch. An analysis at the judge-level was also completed, but no strong relationship was found between individual judges’ votes and presiding attorney general. ii

TABLE OF CONTENTS

LIST OF FIGURES ...... iii

LIST OF TABLES ...... iv

ACKNOWLEDGEMENTS ...... v

Chapter 1 Information ...... 1

Chapter 2 Literature Review ...... 4

An Overview of the Board of Immigration Appeals ...... 5 A History of the Board of Immigration Appeals ...... 8 Attorney General Influence over the Board of Immigration Appeals via Changing the Structure and Procedures of the Board ...... 9 Attorney General Influence over the Board Immigration Appeals via the Certification Power11 Relevant Literature regarding Judicial Behavior ...... 13 Where this Research fits into the Extant Literature ...... 15

Chapter 3 Theory ...... 16

Historical Background ...... 16 Judicial Behavior and the Board of Immigration Appeals ...... 20 Hypotheses ...... 22

Chapter 4 Data ...... 24

Chapter 5 Results ...... 32

Chapter 6 Conclusion ...... 39

Implications ...... 41 Limitations ...... 42

BIBLIOGRAPHY ...... 45

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LIST OF FIGURES

Figure 1. Organizational chart detailing the Executive Office for Immigration Review's place within the Department of Justice ...... 6

Figure 2. Organizational chart detailing the Board of Immigration Appeal's place within the Executive Office for Immigration Review ...... 6

Figure 3. A timeline of the history of the Board of Immigration Appeals ...... 9

Figure 4. The proportion of BIA decisions under each attorney general decided in favor of (light bars) and against (dark bars) immigrants ...... 27

Figure 5. The proportion BIA decisions in favor of immigrants (light bars) and against immigrants (dark bars) across cases where a dissent was recorded (yes) and cases where dissents were not recorded (no)...... 28

Figure 6. The proportion BIA decisions in favor of immigrants (light bars) and against immigrants (dark bars) across cases where a remand was present (yes) and cases where a remand was not present (no) ...... 29

Figure 7. The proportion BIA decisions in favor of immigrants (light bars) and against immigrants (dark bars) across cases where the Department of Homeland Security appealed (DHS) and cases where the immigrant appealed ...... 30

Figure 8. Model predicted probability of a favorable decision for the immigrant across attorneys general, assuming that the case was not remanded to the BIA and the respondent appealed 34

Figure 9. Model predicted probability of a favorable decision for the immigrant across attorneys general, assuming that the case was not remanded to the BIA and DHS appealed ...... 34

Figure 10. Model predicted probability of a favorable decision for the immigrant across attorneys general, assuming the case was remanded to the BIA and the respondent appealed ...... 35

Figure 11. Model predicted probability of a favorable decision for the immigrant across attorneys general, assuming the case was remanded to the BIA and DHS appealed...... 35

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LIST OF TABLES

Table 1. Summary statistics at the case level ...... 30

Table 2. Summary statistics at the judge level ...... 31

Table 3. Logistic regression measuring attorney general impact on the disposition of cases at the case-level ...... 32

Table 4. Logistic regression measuring attorney general impact at the judge-vote level ...... 37

Table 5. Judge-vote predictions based off of the logistic regression model ...... 38

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ACKNOWLEDGEMENTS

I would like to begin by acknowledging Dr. Nelson. His guidance, encouragement, and mentorship were essential to the completion of this work and have bettered me as a student.

Next, I would like to acknowledge Dr. Berkman whose advice and criticisms sharpened my analysis and arguments. I am of course acknowledging my supportive family who will undoubtably need another reminder regarding the topic of my thesis within a day of my submission. Additionally, I am acknowledging my awesome friends, girlfriend, and roommates, including the infamous and mysterious one who prefers to go by the name “data boy.” Thank you to the many others who I may have forgotten to mention. There are simply so many wonderful people who have contributed to bettering my academic experience; it is a blessing most of the time, but a curse when it comes to acknowledging you all. 1

Chapter 1

Information

“Immigration Judges have been placed in the untenable position of having to choose between honoring their oath of office against ensuring their continued employment. Problematic agency policy decisions such as the imposition of quotas and deadlines, micromanagement of individual dockets, and unilateral insertion of the Attorney General into pending cases, have resulted in a fatally flawed system.” (NAIJ, 2019)

The National Association of Immigration Judges released this statement on June 17th,

2019. The goal of this statement was to advocate for an independent immigration court system that would no longer be housed within the Justice Department. As it currently stands, immigration courts are under the control of the Justice Department, which means that they are under the purview of the attorney general. Critics argue that this inherently reduces the independence of immigration courts and that it creates a scenario in which attorneys general who wish to unilaterally upend immigration adjudication have the means to do so (Legomsky, 2006).

This paper explores political influence in immigration adjudication through the study of the Board of Immigration Appeals (BIA or “the Board”). The BIA is a quasi-judicial appellate body within the Department of Justice (DOJ) to which immigrants, the Department of Homeland

Security (DHS), and other actors may appeal decisions in immigration cases. However, scholarly research and recent reporting suggest that attorneys general have looked to the Board in recent years as a vehicle for executing their or their president’s preferred immigration policies. This political influence is a concern due to the fact that the BIA is housed within an agency, the DOJ, that reports to the attorney general This paper will systematically test this claim by looking at the 2

rates at which the Board decided against immigrants during the tenures of different attorneys general.

The relevant literature to this topic has found that the BIA and its predecessors have never been statutorily independent and that the Board has been in a subsidiary position to the executive branch throughout its existence (Gonzales & Glen 2016). However, it also makes it clear that attorneys general, and in particular recent attorneys general, have used certain powers in order to influence immigration adjudication and policy (Roberts, 1977; Marston, 2019). How successful these attempts at influence have been, however, has not been thoroughly tested. The literature regarding how judges make decisions suggests that salience may impact how compliant judges are when it comes to applying precedent (Gruhl, 1980); however, this literature is not in total agreement when it comes to this topic, and this research has focused primarily on Article III courts. As a result, it is unclear whether these findings would apply to a study of a court which resides in the executive branch because of the lack of safeguards for the judges who staff these courts (Songer, Seagal, & Cameron, 1994).

The theory behind this research is the attorneys general of the Trump administration (Jeff Sessions and William Barr) have exercised a great deal of influence over the

Board. I argue that this influence has manifested in changes they have made to the structure and composition of the Board as well as their use of a power called the certification power in order to unilaterally decide cases on their own. Therefore, I expect this influence manifests in an increase in cases decided against immigrants (because both attorneys general are seen as carrying out the

Trump administration’s immigration policy preferences which are conceived as being anti- immigrant in most cases) during the Trump administration compared to the Obama 3

administration. Subsequently, the main hypothesis of this paper is that there was an increase in cases decided against immigrants by the BIA under the Trump administration. At the judge- level, the hypothesis of this research is that individual BIA members decided more cases in favor of immigrants during the Obama administration than those same judges did during the Trump administration.

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Chapter 2

Literature Review

The extant literature on the Board of Immigration Appeals (hereafter referred to as “the

Board” or “BIA”) provides the academic community with an understanding of the history of the

Board, including how it has evolved into the role that it now plays in immigration adjudication, and how political forces influence and are intertwined with the decisions that the Board makes.

Most of the literature on the Board is sourced from law reviews, as the institution has received scant attention from political scientists. This review of the literature contains five sections.

Section one explains the current role of the Board and delves into the procedures by which the

BIA comes to its decisions. Section two provides a history of the Board, explaining how the

Board has evolved over time to encompass the role that it does today. Sections three and four explore how the Board makes decisions in the context of the political system in which it finds itself. Both of these sections explore the influence of the attorney general, but section three’s primary concern is how the attorney general can influence the Board through procedural changes, and section four is focused on the attorney general’s certification power. Section five reviews the existing literature on judicial behavior and explains how it is relevant to this study.

Section six summarizes the most important findings from the literature review as they pertain to the research that will be described in the theory section. 5

An Overview of the Board of Immigration Appeals

The Board of Immigration Appeals is housed under the executive branch. It is located within the Executive Office for Immigration Review (EOIR) of the Department of Justice (DOJ) which is headed by the attorney general. The Board, in the words of a former chairman of the

BIA, functions as a “quasi-judicial tribunal attached to the office of the attorney general,” and is quasi-judicial in the sense that it reviews the decisions made by immigration judges and executive agencies that are tasked with carrying out immigration laws (Roberts, 1977).

Therefore, it hears the appeals in immigration court cases made by immigrants and immigration enforcement agencies. The Board is currently composed of 21 members, including a Chairman and Vice Chairman, and its decisions are binding on all immigration judges and Department of

Homeland Security (DHs) officers (Board of Immigration Appeals, 2019). Organizational flowcharts providing an overview of the DOJ and the EOIR and where the Board fits into these entities are provided in Figures 1 and 2 (Board of Immigration Appeals, 2019). 6

Figure 1. Organizational chart detailing the Executive Office for Immigration Review's place within the Department of Justice

Figure 2. Organizational chart detailing the Board of Immigration Appeal's place within the Executive Office for Immigration Review 7

When the Board hears a case, it most often makes its decision based on the briefs alone, although oral argument in front of the BIA is possible if the Board approves (Martin, 1990).

Additionally, even though all decisions are binding, some of the Board’s decisions are designated as precedential decisions which are meant to be applied to the legal system more broadly. These decisions are often decided in panels, and they make up a small but important fraction of the cases that the BIA decides. As of 2019, approximately 30 decisions each year are designated as precedential decisions out of the thousands of cases that the Board hears annually

(Marston, 2019).

The Board is a product of attorney general regulation, meaning that all of the Board’s functions and procedures that have been outlined thus far can be altered unilaterally by the attorney general (Roberts, 1977). In fact, the attorney general’s power to change these functions and procedures is an important way in which she can influence immigration adjudication.

Similarly, the BIA’s members are selected by the attorney general, serve at her pleasure, and do not have fixed terms. Additionally, the attorney general has the power to certify cases from the

Board to herself. This means that the attorney general can review a case that is being decided by the Board and decide it herself. The actors who can request that the attorney general review and decide a case include: The attorney general herself, the Chairman of the Board, a majority of the members of the Board, and the Secretary of the Department of Homeland Security (Chasco,

2007; Gonzales & Glen 2016). The certification power is another method by which the attorney general can influence immigration adjudication, as she can, in essence, pull cases out of the 8

hands of the Board in order to come to her own decisions which then act as binding immigration precedent. This power will be expanded on later in the literature review.

A History of the Board of Immigration Appeals

Immigration functions were not always housed under the DOJ. In fact, they were originally housed under Treasury Department (Roberts, 1977). Later, they were housed under the

Department of Commerce and Labor until that department became the Department of Labor. In the midst of the spike of immigration that occurred following World War I, the Department of

Labor established the predecessor of Board of Immigration Appeals which was then known as the Board of Review (Gonzales & Glen 2016). This Board of Review was established to “assist the Commissioner and Secretary in the discharge of their immigration-related functions, and to hold oral argument and handle certain other review matters,” but, it could not make final decisions regarding cases and could only make recommendations (Gonzales & Glen 2016).

In 1933 the Immigration and Naturalization Service (INS) was founded, and the Board of

Review was converted into the Commissioner's Board of Review (Roberts, 1977). Nevertheless, the Commissioner’s Board of Review was still limited to only making recommendations and could not decide cases itself. However, in 1940 immigration law enforcement duties and the INS were transferred to the DOJ and the attorney general. The Board of Immigration Appeals was then created by regulation of the attorney general to be “a separate entity in the Department of

Justice, responsible directly to the attorney general” like its predecessors (Roberts, 1977). 9

However, unlike its predecessors, the Board had and continues to have the power to decide cases on its own. A timeline of this history as it pertains to the Board is provided in Figure 3.

Figure 3. A timeline of the history of the Board of Immigration Appeals

The history of the Board is important as it illustrates that the Board’s predecessors actually had less ability to influence policy than the Board currently has. Additionally, it shows that the heads of executive departments and agencies have always had significant influence over the Board and its predecessors. Next, sections three and four will discuss concrete examples of how this influence has or could be wielded by the attorney general to influence immigration policy through the modern-day BIA.

Attorney General Influence over the Board of Immigration Appeals via Changing the Structure and Procedures of the Board

As previously mentioned, the Board was created by regulation of the attorney general.

This means that it is not statutorily independent, and that the attorney general can change the 10

structure and procedures of the Board unilaterally. This can have sweeping effects on the Board and therefore on immigration adjudication and policy as well. To give an illustrative example of this, this section proceeds by explaining reforms carried out in the early 2000s by Attorney

General John Ashcroft which greatly impacted the Board.

From 2002 to 2003, Attorney General Ashcroft implemented a series of reforms that altered the size, character, and day-to-day operations of the Board. Starting with size, the Board was made much smaller as Ashcroft reduced the number of members of the Board from 23 to 11, for the expressed purposes of “cohesiveness and collegiality” as well as reducing the backlog of cases that the Board was facing (Sydenham, 2006). However, Ashcroft’s reform that more directly addressed reducing the backlog was allowing the Board members to hear cases as individual Board members instead of in panels of three in the majority of cases (Legomsky,

2006). This reform also stipulated that, instead of a written opinion, the Board was allowed to issue an affirmance without opinion (AWO) in the majority of cases as well. It is important to note that these AWOs allowed BIA members to circumvent writing an opinion if and only if they affirmed the previous decision made in the case.

Scholars have noted that these reforms resulted in monumental changes to the Board.

Firstly, it has been proposed that the majority of the Board members who were removed when the Board was scaled down to 11 members were the Board members who were more likely to rule in favor of immigrants (Legomsky, 2006). Additionally, the use of AWOs skyrocketed from

3% of the Board’s decisions to 60% of the Board’s decisions in 7 months (Sydenham, 2006).

Even though this may appear to be politically neutral at first glance, immigrants are more likely to appeal than immigration agencies are, so allowing the Board to get away with doing less work 11

if they affirm immigration judge decisions incentivizes them to decide against immigrants more often than not. It is therefore conceivable that the interaction of fewer justices on the Board who favored immigrants and the increased incentive to affirm led to a higher rate of immigrants appeals getting denied. And, the data seems to bear this out, as “Board decisions in favor of noncitizens fell from 25 percent to 10 percent” following the reforms (Sydenham, 2006). These reforms even had consequences for other branches of government, as petitions for review of

Board decisions in the courts of appeals increased dramatically in the years following the reforms, rising from 1,764 in 2002 to over 8,000 for every year between 2003 and 2009

(Legomsky, 2010).

It is clear from this example that the attorney general has a great deal of power to influence the Board via her power to change the structure and procedures of the Board. However, the attorney general is not limited in her exercise of influence over the Board to just this mechanism. In fact, the next section highlights another example of a tool that the attorney general can use to influence the Board, this tool in question being the certification power.

Attorney General Influence over the Board Immigration Appeals via the Certification Power

As previously mentioned, the attorney general possesses the power to certify cases from the Board to herself (or have other actors certify cases to her), at which point she can decide the case for herself. After doing so, the attorney general’s decision is final and controlling in the case insofar as the Board is concerned (although the attorney general’s decision could potentially be overturned in an Article III court if the decision is appealed to a circuit court or the Supreme 12

Court). The attorney general also possesses a great deal of latitude when it comes to procedural requirements related to the certification power. When using the certification power, the attorney general does not need to give notice to the affected parties, does not need to indicate the issues that she is considering in the review, does not need to provide an opportunity for the affected parties to be heard, and does not need to solicit amici (Trice, 2010). This allows the attorney general to wield a great deal of power when certifying these cases.

A case called Matter of A-T- provides an illustrative example of a past use of the certification power and the importance that these decisions carry. In Matter of A-T-, a woman applied for asylum in the United States on the basis that she was a victim of female genital mutilation in her native Mali. In 2004, an immigration judge ruled that she was not eligible to apply for relief, and the Board later agreed. The Board justified this decision by reasoning that female genital mutilation is a one-time harm that could not be repeated (Loughman, 2008).

However, in 2008, then Attorney General Michael Mukasey certified the case to himself and vacated the decision, making it clear that past female genital mutilation was not a “fundamental change in circumstances” nor a “one-time act” that could not be repeated. Through his decision,

Mukasey clarified the law surrounding female genital mutilation and asylum claims, setting precedent that has ramifications for future, similarly situated applicants (Loughman, 2008).

The combination of the latitude that the attorney general has with regard to using the certification power and the fact that these certified cases create precedent that apply to many similar cases leads to the certification power being a powerful tool for the attorney general to influence immigration adjudication and policy. Matter of A-T- provides an illustrative example of this regarding a politically salient immigration issue. The next section of the literature review 13

reviews the literature surrounding judicial behavior and provides insights into whether, why, and how factors that we presume influence judges (such as precedent) actually work out in practice.

Relevant Literature regarding Judicial Behavior

While the Board is not, technically speaking, a judicial body; it does perform semi- judicial functions and adopts the practices of appellate courts in the sense that it hears appealed cases; writes opinions for these cases; and by doing so, creates precedent for lower level judicial officials to follow. Therefore, a small review of the literature regarding judicial behavior is called for in order to more fully understand the Board.

It is important to consider the literature regarding judicial hierarchies. These studies have often focused on how the Supreme Court of the United States has ensured that its subordinates

(typically the courts of appeals) follow the precedents that they set. Researchers are not in total agreement about how often and under what conditions the courts of appeals are compliant with the Supreme Court. Some have found that, with regard to search and seizure law, the appellate courts are fairly compliant, but sometimes fail to be compliant when the cases in front of them are fairly ambiguous (Songer, Seagal, & Cameron, 1994). However, other findings suggest that this may not always be the case in every area of law. For example, appellate courts appear to be far more compliant with the Supreme Court in the realm of libel law, to the point that researchers have noted that the classical legal models of describing judicial behavior may be best suited to explain the results (Gruhl, 1980). It should be noted, however, that libel law is far less ideologically driven than search and seizure law; so, the higher compliance with regard to libel 14

law may be explained by the fact that judges may have weaker preferences regarding the cases in front of them. Lastly, and relatedly, research has also shown that fear of reversal is not sufficient in and of itself as an explanation of appellate court compliance with the Supreme Court (Klein &

Hume, 2003).

Some additional findings regarding the judicial hierarchy that are worthy of consideration consider the effect of whistle-blowing on compliance and how lower court judges react to remanded cases. Whistle-blowing is a phenomenon by which a lower court judge can signal to a higher court that there is reason to get involved with and potentially overrule a case. Often, when judges decide cases in the form of panels, whistle-blowing is performed via the whistle-blowing judge’s writing of a dissenting opinion. Research has shown that whistle-blowing can be effective, but that it has diminishing returns when whistleblowing becomes too frequent (Beim,

Hirsch, & Kastellec, 2014). With regard to how lower court judges react to remanded cases, research has found that remanded cases often cause judges to make changes to these cases; but that lower court judges may respond with greater compliance to the remand when the remand is published and/or accompanied by specific instructions (Boyd, 2015).

The implications of this research with regard to how it applies to this study will be elaborated on in the theory section. The next section of this review of the literature summarizes the major takeaways from this literature review and begins a discussion of how this study builds upon the literature. 15

Where this Research fits into the Extant Literature

The literature makes it abundantly clear that the decisions made by the BIA matter, and that the attorney general has considerable power to influence or unilaterally make these decisions. Furthermore, the literature suggests that we can think of the relationship between the attorney general, the Board, and immigration judges as a form of judicial hierarchy. However, whether or not these findings regarding judicial hierarchy will be proven to apply to the BIA explicitly has not yet been explored, as most of these studies have focused on Article III courts.

For that matter, no quantitative, case-level study of the Board has been carried out to this point.

So, this research will also test the conventional wisdom laid out by legal scholars regarding the extent to which the attorney general influences the decisions made by the BIA. The hypotheses made in the theory section reflect a willingness to accept the conventional wisdom, and through a thorough study of the Board under multiple attorneys general, including two who served under a president with very explicit opinions regarding immigration, this conventional wisdom will be tested.

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Chapter 3

Theory

In order to lay the groundwork for the hypotheses of this research, this section of the paper will lay out the theory that underlies the hypotheses. Specifically, it utilizes the information laid out in the literature review and applies it to the Board, and specifically, where applicable, to the Board under the Trump administration. Therefore, it is divided into three sections. Section one discusses how both of President Trump’s attorneys general have used the certification power as well as changes to the composition, structure, and procedures of the Board in order to influence the Board to decide cases in line with their administration’s views regarding immigration. Section two evaluates the literature previously included on judicial behavior and discusses its utility with regard to analyzing the behavior of Board members. Lastly, section three lays out the hypotheses that are derived from the theory and discusses their implications.

Historical Background

Similar to former Attorney General John Ashcroft, Attorney General William Barr used and continues to use his power to influence the Board’s structure and procedures in order to advance his administration’s preferred policies regarding immigration. First, Barr implemented a series of three reforms that changed the procedures of the Board. One, Barr made it so that the attorney general has the power to order, unilaterally, that a decision by the Board becomes binding on all immigration judges and DHS (Marston, 2019). This reform greatly expanded

Barr’s ability to take cases with decisions that are in alignment with his views and make their 17

decisions binding nationally. Two, Barr implemented a rule which requires that federal courts assume that the BIA properly handled any case that gets appealed to them, meaning that they are to assume that the Board “considered all issues, arguments, and claims, even if the BIA did not mention some of them in the decision,” (Marston, 2019). This clearly makes it harder for those appealing BIA decisions to the federal courts to get those decisions they are repealing reversed.

Third, Barr implemented a new procedure which allowed the Board to decide cases on any issue, even if it was not an issue raised by either party on appeal. This increases the power of the

Board; which Barr most likely did because of the changes he made to the composition of the

Board which will be discussed next.

In addition to these structural reforms, Barr also changed the composition of the Board.

In August, 2019, Barr appointed six new members to the Board (out of the total of twenty-one).

These six new members of the Board were all immigration judges who were found to have rejected asylum claims at a higher rate than average between 2013 and 2018 (Naham, 2019). The average asylum denial rate for that period was 57.6%; but, the six appointed BIA members had the following asylum denial rates: 98.1%, 95.8%, 92.1%, 89.4%, 86.9%, and 81.6% (Naham,

2019). These rates are extraordinarily high, and Barr was very likely to have prior knowledge of these judges’ tendencies as these appointments carry weight with regard to immigration adjudication. Therefore, it is likely that Barr was seeking to appoint members to the Board in order to influence the decisions of the Board in a way that disfavored those seeking asylum.

Combine these appointments with the greater power that Barr gave the Board and a clear picture emerges of how Barr may conceptualize his ability to advance immigration policy through the

BIA. 18

However, Barr is not the only attorney general under President Trump that has sought to influence the Board in order to advance immigration policy. Former Attorney General Jeff

Sessions has sought similar influence, and he often did so through the attorney general’s certification power. The mechanics and one historical example of the use of the certification power has already been described, but it is important to understand the historic trend of the usage of this power to grasp how it is now being used deliberately as a tool to shape policy unlike before. The historic trend has been that the attorney general has used this power less frequently in recent years than in the past. To give a dramatic example, the certification power was used 37 times in 1952 alone, but was only used 4 times throughout the entire 8 years of the Obama administration (Gonzalez & Glen, 2016). However, by contrast, the power was used seven times in the twenty-one months during which Sessions was attorney general, putting him on pace to far exceed recent historic norms (Frankel, 2018). Another historic trend is that the opinions written by the attorney general in the cases that have been certified to her have become more substantial.

For example, summary disposition has been used by the attorney general in 108 of the certified cases over the history of the Board, but the last time a certified case was summarily disposed of, meaning that no opinion accompanied it, was in 1966 (Gonzalez & Glen, 2016). This trend indicates that the certification power has become more of a tool for implementing or influencing policy when it is used because the binding words contained in the opinion is the mechanism by which the attorney general can influence interpretation of immigration law, and, as we already know from the literature regarding judicial behavior, judges are more likely to follow precedent when it is accompanied by a written opinion. 19

To finally present a case in which former Attorney General Jeff Sessions used the certification power to influence immigration policy, the case of In re A-B- will now be discussed.

The case involved a Salvadoran woman who applied for asylum on the basis of her having suffered persecution due to her membership in a particular social group. She identified this group as being: “El Salvadoran women who are unable to leave their domestic relationships where they have children in common’ with their partners” (“In re A-B-“, 2018). An immigration judge originally denied this claim in 2015, but the Board reversed in 2016. The Board used the precedential decision In re A-R-C-G- (which found that Guatemalan women in similar circumstances were deemed an appropriate social group) in order to overturn the immigration judge. However, in March of 2018, Sessions invoked the certification power in order to change the outcome of the case and overturn In re A-R-C-G-, specifically with regard to how identifiable social groups were defined within asylum law. The result of this certification was that Sessions made it clear that the women from these cases did not constitute an identifiable social group, and that the BIA and immigration courts had to uphold this precedent.

In summary, it is clear that both Barr and Sessions have attempted to use the powers vested in them as attorneys general in order to influence the Board, and in turn influence immigration adjudication. The question that remains to be answered is how effective were there efforts. 20

Judicial Behavior and the Board of Immigration Appeals

In order to inform the hypotheses made in this paper, and the assumptions underlying these hypotheses, it is of great importance to specify exactly how the previously summarized literature applies to this study of the Board. The reason for this, as previously alluded to, is that this paper conceptualizes the Board as an appellate judicial body, this being reasonable because the Board performs many judicial functions (resolving disputes, setting precedents, etc.) and mirrors court practices (writing opinions, hearing cases in panels, etc.).

The literature regarding judicial hierarchy is relevant because it studies how higher and lower courts interact, and an understanding of the incentives and strategies underlying the interactions between the Board and immigration judges is tantamount to a thorough understanding of the Board’s behavior and how the attorney general may be able to influence this behavior. While Gruhl found that classical legal models that lean less on the beliefs of judges may be best suited to explain judicial decision-making in the realm of libel law, this paper is more convinced by the research of Songer, Seagal, and Cameron, which more strongly supports the idea that judges’ ideologies matter with regard to whether or not they will be compliant within a hierarchy. The implication of this for this research is that this paper will take into account that the ideologies of the members of the Board, of immigration judges, and the attorney general matter when trying to determine whether any of these actors will follow precedent and/or be capable to get their subordinates to follow precedent that they attempt to set.

Therefore, developments such as the aforementioned appointments by Attorney General Barr of

Board members with high rates of ruling against immigrants will be hypothesized to have an 21

effect on how compliant these members, and therefore, to some extent, the Board as a whole, are with regard to precedents involving immigrants’ rights.

Next, the literature regarding whistle-blowing, while most certainly a subset of the literature regarding the judicial hierarchy, still provides an additional takeaway which applies to this study of the BIA. This literature suggests that dissenting opinions operate as signals, and that they are most effective when they are not over-used. The members of the Board have the ability to dissent within the three-member panels which decide cases. The use of dissents among members of the Board is rare, but could be very telling with regard to the relationships between members of the Board and the attorney general, especially if members are using dissents as signals as the literature suggests. While this study is not primarily focused on the use of dissents among members of the BIA, this phenomenon is still worthy of consideration, and as such dissents will be accounted for in the collection of data.

Also, the literature regarding how judges react to remanded cases is of importance to engender an understanding of the Board, as the Board’s precedent decisions are remanded to immigration judges, accompanied by a written opinion. The reviewed literature suggests that judges are more responsive to remanded cases when they are accompanied by written opinions and when these written opinions are explicit. This study does not analyze how explicitly written the remands from the Board and attorney general are, but it does pay attention to whether cases are decided in favor of immigrants or not. Since all decisions are remands and are accompanied by written decisions, an increase in these remands would be expected to change the behavior of immigration judges and therefore be a way by which the Board and/or attorney general could exercise influence over the immigration system. 22

Hypotheses

The major hypothesis of this research is that President Trump’s attorneys general have influenced and continue to influence the Board of Immigration Appeals in order to have it decide more cases against immigrants. This hypothesis stems from the accounts of Session’s and Barr’s actions as attorneys general described previously, as well as the extant literature on judicial behavior that was found to be applicable to the Board in its relation to the attorney general in a hierarchical framework. For this hypothesis to be true, it must be true that a higher proportion of cases were decided against immigrants by the Board under the Trump administration than under the previous administration. Otherwise, the hypothesis misgauged the intent or the success of the attorneys general, or underlying assumptions regarding the hierarchical relationship between the

Board and the attorney general are false.

Outside of the case-level, this analysis will also investigate whether or not the presiding attorney general impacts how likely any individual judge is to vote in favor of or against the immigrant in any particular case. In other words, there will be a judge-level analysis to compliment the case-level analysis. In order to conduct this analysis, data will be collected on the individual judges and their individual votes across cases for the Holder, Lynch, Sessions, and

Barr tenures.

An implication to these hypotheses, if correct, is that any attorney general could in theory influence immigration adjudication as long as she is deft with her usage of the powers bestowed upon the attorney general to influence and shape the Board, and as long as the incentives and behavior of the Board members remain susceptible to manipulation by the attorney general.

In conclusion, the major aim of this thesis is to test two hypotheses: 23

Hypothesis 1: The BIA decided a statically significantly higher proportion of their cases against immigrants throughout the tenures of the attorneys general of the Trump administration as compared to the tenures of Eric Holder and Loretta Lynch of the Obama administration.

Hypothesis 2: Individual BIA members decided more cases in favor of immigrants during the tenures of Holder and Lynch than those same judges did during the tenures of Sessions and Barr.

24

Chapter 4

Data

To test attorney general influence on the decisions made by the BIA, I collected data on the precedential decisions made by the BIA and precedential decisions made by attorneys general through their use of the certification power. The precedential decisions do not represent every determination that the BIA makes, instead, they represent only those decisions that are considered by the DOJ and BIA to be important enough to guide immigration adjudication in future cases. All of these precedential decisions are made available online by the DOJ. In total,

136 decisions were collected, representing a period (2014-2020) that spans 5 attorneys general and 2 presidents.

For each case, I coded a number of case-specific factors. During my time frame, 5 attorneys general served: Eric Holder, Loretta Lynch, Jeff Sessions, Matthew Whittaker, and

William Barr. Of the 136 cases, 19 were decided during the tenure of Eric Holder, 45 were decided during the tenure of Loretta Lynch, 49 were decided during the tenure of Jeff Sessions, 2 were decided during the brief tenure of Matthey Whittaker, and 21 were decided under the tenure of William Barr. Therefore, 64 cases representing 47% of all of the cases were decided during the tenures of Obama administration attorneys general, and 72 cases representing 53% of all the cases were decided during the tenures of Trump administration attorneys general.

I also coded whether the BIA or the attorney general actually made the decision. This variable was coded 0 if the BIA made the decision and 1 if the attorney general made the decision. Out of the 136 cases, 8 were self-certified by the attorneys general. The remaining 128 cases were decided by the BIA. Of the 8 self-certified cases, 1 occurred during the tenure of Eric 25

Holder, 3 occurred during the tenure of Jeff Sessions, and 4 occurred during the tenure of

William Barr (it is important to note, however, that at certain points cases were pulled out of the system via the certification power by one attorney general, only to be decided by a later attorney general).

I also coded whether or not any judge in the three-judge panel dissented. The lack of a dissent was coded as 0, and the presence of a dissent was coded as 1. This occurred in 9 cases, meaning that no dissent was recorded in 119 precedent cases decided by the BIA over this period of time. 2 of the 9 dissents occurred during the Lynch tenure, and 7 occurred during the Sessions tenure. However, of the 7 that occurred during the Sessions tenure, 3 dissents were both concurrences and dissents (cases in which the dissenting judge agreed with the outcome of the case, but did not agree with the majority’s reasoning). The individual judges who heard each case were also recorded to keep track of dissents and to be able to conduct an analysis on the judge-vote level in addition to the case-level.

The party who appealed in the case such that it was then decided by the BIA or attorney general was also recorded for this analysis. The focus for this research will be on whether or not the respondent or the Department of Homeland Security (DHS) appealed the case (coded as 1 and 0 respectively). To that end, 103 of the cases were appealed by respondents and 30 cases were appealed by DHS. The remaining cases were either decided directly by an attorney general before the case could be appealed, appealed jointly, or appealed by a judge.

Decisions can be appealed from the BIA to the circuit courts, and these cases can then be remanded from the circuit courts back to the BIA. Therefore, the presence of a remand was indicated for each case that had one. Of the 136 cases, 16 were remanded from circuit courts. In 26

addition to noting the presence of a remand, the data set also indicates which circuit court remanded each remanded case. There were 10 Ninth Circuit cases, three Second Circuit cases, and one case each from the Third Circuit and the Fifth circuit. One case was appealed all of the way to the U.S. Supreme Court.

Lastly, the decision rendered in each case was recorded. These decisions could be coded as 0 for “against the immigrant,” as 1 for “in favor of the immigrant,” or as 2 for “ambiguous” if the outcome was not readily discernable. In total, 104 of the decisions were decided against the immigrant, 31 cases were decided in favor of the immigrant, and 1 case was ambiguous.

Because this variable is the dependent variable in this analysis, its relationship with other variables is of particular interest. The plot below shows the relationship between this variable and the attorney general at the time the case was decided. The x-axis in Figure 4 represents each attorney general in the dataset. Each bar in the plot is made up of a darker bar which represents decisions rendered against immigrants and a lighter bar which represents decisions rendered in favor of immigrants. For each attorney general, the height of each bar represents the proportion of the cases decided under that attorney general that were coded as in favor of or against immigrants. 27

Figure 4. The proportion of BIA decisions under each attorney general decided in favor of (light bars) and against (dark bars) immigrants

Interpreting the above plot, the BIA ruled against immigrants in 68% of their precedent decisions throughout the Holder tenure and ruled in favor of immigrants in 32% of their precedent decisions. Comparing these percentages to those that occurred during the Barr tenure makes evident stark discrepancies. Of all the precedential decisions decided during the Barr tenure, 95% were decided against immigrants and 5% were decided in favor of immigrants. This chart supports the notion that large discrepancies exist with regard to how the BIA rules at the case-level between the Obama attorneys’ general tenures and the Trump attorneys’ general tenures.

Figure 5 plots the presence of dissent as the independent variable. Self-certified cases were removed from this plot, as a dissent is not possible in these cases. Again, the darker bars represent cases decided against immigrants and the lighter bars indicate cases decided in favor of immigrants. The interpretation of this figure is that, of the cases in which a dissent recorded, the 28

overall rate in these cases of deciding against immigrants was about half the rate at which immigrants were decided against when there was not a dissent in the case.

Figure 5. The proportion BIA decisions in favor of immigrants (light bars) and against immigrants (dark bars) across cases where a dissent was recorded (yes) and cases where dissents were not recorded (no).

Figure 6 uses the presence of an appellate court remand as the independent variable. As is fairly apparent in the figure, the presence of a remand does not seem to make much of difference as the rates of decisions in favor of and against immigrant are fairly similar across both iterations of this independent variable. 29

Figure 6. The proportion BIA decisions in favor of immigrants (light bars) and against immigrants (dark bars) across cases where a remand was present (yes) and cases where a remand was not present (no)

Figure 7 uses source of appeal as the independent variable. For the purpose of this analysis only the respondent and DHS were included as appealing parties. The few exceptions to these two categories were excluded from the chart as they were a miniscule part of the dataset.

As expected, it is the case that negative decisions for immigrants are more frequently rendered in the BIA’s precedent cases when the appealing party is the DHS as compared to the immigrant. 30

Figure 7. The proportion BIA decisions in favor of immigrants (light bars) and against immigrants (dark bars) across cases where the Department of Homeland Security appealed (DHS) and cases where the immigrant appealed

Table 1 provides summary statistics for all of the independent variables included in the dataset at the case level. It includes information on the dependent variable as well as the other independent variables mentioned above.

Summary Statistics Yes (%) No (%)

Case Decided in Favor of the Immigrant 0.24 0.76 Case included a dissent by one of the judges 0.07 0.93 The BIA decided the case 0.94 0.06 The respondent appealed the case 0.76 0.24 An appellate court remanded the case 0.12 0.88

Table 1. Summary statistics at the case level

In order to test Hypothesis 2, I also collected data at the level of the judge-vote. All of the case-level variables were also coded at the level of the judge-vote. Additionally, I coded which party occupied the White House at the time of the appointment of the particular member. If this 31

data was unavailable, then the party of the president who was in office at the time of the board member’s most recent reappointment was used instead. Table 2 provides summary statistics of the data collected at the judge level.

Summary Statistics Yes (%) No (%)

Judge voted in favor of the immigrant 0.21 0.79 Judge was appointed during a republican administration 0.64 0.36

Table 2. Summary statistics at the judge level

32

Chapter 5

Results

Because the dependent variable is dichotomous, a logistic regression was estimated at the case-level in order to test whether or not the presiding attorney general has an effect on whether or not an immigrant is more likely to be decided against within the precedent cases that are under analysis. Hypothesis 1 suggests that the BIA decided a statically significantly higher proportion of their cases against immigrants throughout the tenures of the attorneys general of the Trump administration as compared to the tenures of Eric Holder and Loretta Lynch of the Obama administration. Table 3 summarizes this logistic regression and is provided below:

Table 3. Logistic regression measuring attorney general impact on the disposition of cases at the case-level

33

The dependent variable in this logistic regression was whether or not the case was decided in favor of the immigrant. The independent variable was the attorney general who presided over the DOJ at the time of the BIA’s decision in the case. Attorney General Whittaker was removed from the analysis due to lack of data. Control variables in this analysis were which party made the appeal and whether or not the case was remanded to the BIA by a circuit court.

The regression uses former Attorney General Holder as the baseline in the analysis. Therefore, the results show how the tenures of the other attorneys general compare to his. As predicted, there appears to be no significant difference between the BIA’s likelihood to decide against immigrants during the Lynch tenure as compared to the Holder tenure.

Counterintuitively, the same relationship holds when comparing the Sessions tenure to the Holder tenure as evidenced by the lack of statistical significance in the model. Less surprisingly, a significant difference was found to exist between the Barr tenure and the Holder tenure with regard to the disposition of these cases.

Predictions were calculated based off the logistical regression model regarding the likelihood that the BIA, under any particular attorney general, would decide in favor of the immigrant in light of changes in the control variables. The four charts below show the model predicted probability of these favorable decisions in light of changes to two dichotomous variables: whether the case was remanded by a circuit court to the BIA and whether the respondent or DHS appealed the case to the BIA. 34

Figure 8. Model predicted probability of a favorable decision for the immigrant across attorneys general, assuming that the case was not remanded to the BIA and the respondent appealed

Figure 9. Model predicted probability of a favorable decision for the immigrant across attorneys general, assuming that the case was not remanded to the BIA and DHS appealed 35

Figure 10. Model predicted probability of a favorable decision for the immigrant across attorneys general, assuming the case was remanded to the BIA and the respondent appealed

Figure 11. Model predicted probability of a favorable decision for the immigrant across attorneys general, assuming the case was remanded to the BIA and DHS appealed

In each table, it is evident that the model predicts that the BIA is less likely to rule in favor of immigrants during the Sessions and Barr tenures as opposed to the Holder and Lynch tenures.

Additionally, it is evident the control variable of source of appeal functions as expected:

Across all attorneys general in the sample, the likelihood that the BIA will decide in favor of an immigrant goes up when the immigrant is appealing the initial decision, and goes down when 36

DHS is appealing the initial decision. It appears from these charts that the presence of a remand works against the immigrant, as the likelihood that the BIA rules in favor of the immigrant decreases across all attorneys general when the case was remanded back to the BIA. However, there were not many remands in the dataset, so it is possible that this result may not be significant.

In addition to the case-based approach, a judge-based approach was also undertaken in order to test the likelihood that individual judges would rule in favor of or against immigrants in any individual case and how this determination turned on who the presiding attorney was at the time of the vote. Recall that Hypothesis 2 suggested that individual BIA members decided more cases in favor of immigrants during the tenures of Holder and Lynch than those same judges did during the tenures of Sessions and Barr. This model was run with the judge-vote as the unit of analysis. The results were counterintuitive and are displayed in the table below. 37

Table 4. Logistic regression measuring attorney general impact at the judge-vote level These results indicate that the only significant relationship in the data is that an individual judge was more likely to cast a vote in favor of an immigrant in a particular case when that case was heard during the Lynch tenure as compared to the Holder tenure. Otherwise, no significant relationships were found, which is fairly surprisingly considering the analysis of these same cases at the case level; there, as discussed above, cases were significantly more likely to be decided in favor of immigrants under the Holder tenure as compared to the Barr tenure. From this result, it is difficult to conclude with any certainty that the second hypothesis of this thesis is supported. However, in order to further examine this hypothesis, predictions were ran based off the logistic regression, and the results from these predictions are in the table below.

38

Holder Lynch Sessions Barr Immigrant appealed No remand Republican Appointment 0.17 0.36 0.18 0.06 Immigrant appealed No remand Not a Republican Appointment 0.18 0.37 0.19 0.06 Immigrant appealed Remand Republican Appointment 0.12 0.27 0.13 0.04 Immigrant appealed Remand Not a Republican Appointment 0.13 0.28 0.13 0.04 DHS appealed No remand Republican Appointment 0.14 0.31 0.15 0.05 DHS appealed No remand Not a Republican Appointment 0.15 0.32 0.15 0.05 DHS appealed Remand Republican Appointment 0.1 0.23 0.11 0.03 DHS appealed Remand Not a Republican Appointment 0.1 0.24 0.11 0.04

Table 5. Judge-vote predictions based off of the logistic regression model

The correct interpretation of row one of this table is that, if an immigrant appealed the

case, there was no remand in the case, and the individual judge under consideration was a

republican appointment; the model would predict that the probability that said judge under said

conditions would vote in favor of the immigrant was 17% during Holder’s tenure, 36% during

Lynch’s tenure, etc. These predictions confirm the surprising disparity between Holder and

Lynch, with Holder’s results proving to be more similar to those of the Trump attorneys general

than Lynch’s, even when the control variables are manipulated. 39

Chapter 6

Conclusion

The Trump Administration has been active in its attempts to influence the Board of

Immigration appeals. These methods of influence included changes to the rules and procedures surrounding that govern the Board, appointing new members to the Board who have a proven track record of deciding cases against immigrants, and increasingly implementing the certification power in order to unilaterally remove cases from the Board’s jurisdiction so that they may decide the case themselves.

Less certain is the extent to which these attempts have affected judicial behavior. The rich literature on this topic suggested that the ideologies of the members of the BIA would influence the decisions that they render within the quasi-judicial hierarchy in which they find themselves, drawing on arguments advanced by Songer, Seagal, and Cameron. At the same time, the work of Gruhl suggests that ideology does not always influence judicial decision-making in a hierarchy, and that this especially the case when a case is less ideologically-salient. Additionally, the research of Klein and Hume suggests that the fear of reversal is not sufficient in and of itself to explain appellate court behavior. Lastly, the literature also suggested that both remanded cases and dissents at the appellate level operate as signals and should impact the disposition of cases in certain cases (Beim, Hirsch, & Kastellec, 2014; Boyd, 2015).

I argued that judicial behavior on the BIA would be affected by the hierarchical environment in which BIA members find themselves. Specifically, I expected that BIA outcomes would vary based on the partisanship of the Attorney General who sits at the top of these members’ judicial hierarchy. 40

I tested this hypothesis with an original dataset of BIA decisions dating back to 2015.

Logistic regression results revealed no significant difference between the likelihood that the BIA would decide in favor of an immigrant under Lynch and the likelihood that the BIA would decide in favor of an immigrant under Holder. The results also revealed a significant decrease in the likelihood that the BIA would decide a case in favor of an immigrant under Barr when compared to this probability under Holder. Contrary to expectations, the model found no difference between Holder and Sessions with regard to the probability that an immigrant would receive a favorable decision from the BIA under either of their tenures. However, predictions produced by the model did find that the probability that an immigrant would receive a favorable decision from the BIA were generally higher during the Obama administration attorneys’ general tenures as compared to the tenures of the Trump administration attorneys general.

Another logistic regression, this time at the judge-level, was ran in order to test whether or not this influence varied at the level of the judge, rather than the case. This regression produced counterintuitive results in that it did not find that individual judges changed their voting behavior significantly between the tenures of the Obama administration attorneys general and the Trump administration attorneys general. In fact, the only statistically significant relationship that was found was that BIA members were more likely to vote in favor of immigrants under the Lynch tenure than they were under the Holder tenure.

The results seem to indicate that the BIA under the Trump administration has become more hostile towards immigrants. However, the existence of this hostility at a statically provable level with regard to the precedent decisions rendered by the BIA could only be found within the cases decided during the tenure of Barr as attorney general. This finding, when combined with 41

the finding at the judge-level that individual judges’ voting behavior did not appear to be influenced by whether a Trump or Obama administration attorney general was in office, might point towards the conclusion that the greatest influence that the Trump administration has had on the BIA has come from its power to appoint new members. This could potentially explain the

“lag” that appears to exist wherein no significant relationship appears between the administrations at the case-level until the Barr tenure. It would also explain how the overall disposition of cases could significantly change without the voting behaviors of individual members changing as well. Future research should specifically analyze the Trump administration’s BIA appointments in comparison to the other members in order to test the theory that the appointment power created the statically significant relationship that was found to exist between the Board’s decisions under Holder and the Board’s decisions under Barr.

Implications

An important implication of these results is that a president can clearly influence the

Board with regard to immigration policy through that president’s attorney general. While it was not clear that the attorney general could get the Board members to change their voting behavior on an individual level, it was evident that the Board as a whole rendered decisions differently depending on who occupied the White House and who ran the DOJ. Therefore, support may be found for the policy reform, backed by many in the legal community who value stability in the law, that the Board should not be housed under the executive branch. 42

Based on my research, I would advocate for the Board to be afforded the protections and independence afforded to Article III courts, such that political influence can be kept to a minimum. The easiest way to accomplish this would be via removing the immigration court system from under the purview of the executive branch and moving these courts into the judicial branch of the government. If this proves infeasible, another recommendation that I would posit would be additional congressional oversight over the appointment and removal of judges from the BIA. While this would not end political influence over the Board, it would at least afford the

Board the protections offered by checks and balances.

A related but more general implication of these findings is that presidential elections matter with regard to changes to bureaucratic bodies with sweeping power over policies. As it stands currently, any president / attorney general can make sweeping, unilateral changes within and to the Board such that immigration adjudication can turn on its head without congressional action. This truth does not solely apply to the Board, but applies to other executive branch bureaucracies as well. Therefore, when thinking about the impact of elections, the results from this thesis imply that effects on the bureaucracy should not be overlooked.

Limitations

First and foremost, this thesis was inherently limited in that it only analyzed the precedent decisions made by the BIA. I suspect that these cases are not representative of the entire body of cases decided by the BIA. Furthermore, I suspect that the differences between the

BIA under the Trump administration and the BIA under the Obama administration are more 43

exacerbated once one moves outside of the precedent decisions. This would be the case because the BIA would apply the precedent that it has set, so small differences at the precedent level would likely equate to larger differences at the general case level as there are far more cases decided that do not serve as precedent than there are cases that do. Future research should incorporate this data into the analysis and retest the hypotheses that were made in this thesis in order to further test their validity. Another set of data that would have been helpful to my analysis would have been a more reliable and complete repository of information regarding who had appointed members to the Board, as I could not find the original appointer for some of the

Board members.

Additionally, this study is inherently incomplete as it does not compare the entire Obama presidency with the entire Trump presidency. If the main mechanism by which a president can influence the BIA is through appointment, then it stands to reason that this effect might take a few years to manifest to its fullest extent. Therefore, future research should compare the entire tenure of two or more presidents instead of partial tenures. It also stands to reason that a larger dataset could lead to more robust conclusions statistically speaking.

Lastly, as someone who is not an expert on immigration adjudication, I had to make a few personal judgements on what constituted a decision in favor of an immigrant and what did not. Therefore, it is possible that some coding mistakes exist in my data which could result in modifying the results slightly considering the fact that the dataset is not immense in size. Outside of potential mistakes, I also decided to exclude a small number of these ambiguous cases that I could not make a reasonable judgement on. Therefore, the sample size was smaller than it could have been. 44

In spite of these limitations, this thesis found some interesting results and should serve as an indicator that the BIA is worthy of study as a politically important, quasi-judicial body that influences our nation’s immigration adjudication within the clutches of the executive branch. 45

BIBLIOGRAPHY

In re A-B. (2018, December 10). Retrieved from https://harvardlawreview.org/2018/12/in-re-a-b/.

Board of Immigration Appeals. (2019, September 16). Retrieved from https://www.justice.gov/eoir/board-of-immigration-appeals-bios.

Chasco, J. (2007). Judge Alberto Gonzales? The Attorney General's power to overturn Board of Immigration Appeals' decisions Southern Illinois University Law Journal 31(2), 363-384.

Gonzales, A. R., & Glen, P. J. (2016, March). Advancing executive branch immigration policy through the attorney general's review authority. Iowa Law Review, 101(3), 841+.

Legomsky, S. H. (2006). Deportation and the war on independence. Cornell Law Review, 91(2), 369-410.

Legomsky, S. H. (2010, May). Restructuring immigration adjudication. Duke Law Journal, 59(8), 1635+.

Loughman, K. (2008). Attorney general mukasey ruling clears path for future fgm-related asylum claims. Georgetown Immigration Law Journal, 22(4), 801-804.

Marston, H. (2019, July 10). A New EOIR Rule Expands Powers of the Board of Immigration Appeals and Attorney General. Retrieved from http://immigrationimpact.com/2019/07/09/new-rule-board-of-immigration-appeals- attorney-general/#.XaTc2EZKg2w.

Martin, D. (1990). Reforming Asylum Adjudication: On Navigating the Coast of Bohemia. University of Pennsylvania Law Review, 138(5), 1247-1381.

NAIJ. (2019, June 17). Retrieved from https://www.naij- usa.org/images/uploads/newsroom/Growing_Support_for_an_Independent_Immigration_ Court.pdf

Naham, M. (2019, August 23). Barr Packs Board of Immigration Appeals with Judges Who Denied Asylum Claims at 'High Rates'. Retrieved from https://lawandcrime.com/high- profile/barr-is-packing-board-of-immigration-appeals-with-judges-who-deny-asylum- claims-at-high-rates/.

Roberts, M. A. (1977). Board of immigration appeals: critical appraisal, the San Diego Law 46

Review, 15(1), 29-44.

Sydenham, A. (2006). A political response to crisis in the immigration courts. Georgetown Immigration Law Journal , 21(1), 1-60.

Trice, L. S. (2010). Adjudication by fiat: The need for procedural safeguards in attorney general review of board of immigration appeals decisions. New York University Law Review, 85(5), 1766-1800. 47

ACADEMIC VITA

Andrew Bernstein

[email protected] EDUCATION The Pennsylvania State University, Schreyer Honors College University Park, PA BA in Political Science, BA in Spanish, Minor in Economics Graduation: May 2020

Semester Abroad Santiago, Chile IES Abroad, Santiago – Politics, Social Justice, and Language February 2019 – June 2019 • Immersed myself in Spanish by living with a local family and through taking intensive courses taught only in Spanish • Visited a plethora of museums, art installations, and cultural events in order to foster cultural immersion and understanding • Served on the program’s student council which allowed me to act as an intermediary between students and staff

WORK EXPERIENCE Penn State University Park, PA Research Assistant, Political Science Department October 2018 - Present • Coded information regarding federal and state judges to help construct models for understanding judicial behavior • Analyzed existing state of judicial behavior literature to consult with Dr. Michael Nelson regarding his upcoming book • Translated and summarized over 30 accounts of interbranch conflict impacting the judiciary within the federal governments of Latin American countries to better understand judicial power in Latin America

Centre County Public Defender’s Office Bellefonte, PA Legal Intern, child welfare law June 2018 - August 2018 • Developed impactful and meaningful relationships with dependent youth by visiting residential programs and foster homes • Analyzed the situations of dependent youth and their biological parents during child welfare agency meetings in order to contribute to the synthesis of plans that furthered each child’s well- being • Shadowed and observed the public defender in court to gain insights regarding legal strategy

SKILLS AND DISTINCTIONS • Professional proficiency in Spanish and working knowledge of Voter Access Network and R (Statistical programming) • Distinctions: Student Marshal for the Department of Political Science at Penn State, summa cum laude academic distinction