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 iii 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 iv 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 v 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