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Administrative Review in a System of Conflicting Values

Published online by Cambridge University Press:  27 December 2018

Janet A. Gilboy
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Abstract

An issue of continuing debate in the legal and social science literature is how best to control and validate the exercise of essentially legislative powers by administrative agencies. This study examines one mechanism of control, administrative de novo review of agency decisionmaking. It explores how this device functions in immigration bail administration, a system where there is a broad and vague delegation of detention and bail powers to government officials in an area of law where there is no set of preferences as to how conflicting policy claims are to be weighed in decisionmaking. The study shows a system in turmoil. The de novo review body—the immigration court—frequently and substantially modifies the Immigration Service's initial bail decisions. Because there is no agreement on the norms to guide decisionmaking, these changes have little effect on ongoing agency activity and policies. Pronounced interagency conflict and extreme decisional disparity persist given limited institutional and political arrangements for dealing with this dissensus. The study explores in detail the institutional cultures and conflicting legal and social values that shape the practice and patterns of de novo review in this field of law and discusses the implications of such conflict for the full functioning of this external review device.

Type
Articles
Information
Law & Social Inquiry , Volume 13 , Issue 3 , Summer 1988 , pp. 515 - 579
Copyright
Copyright © American Bar Foundation, 1988 

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References

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31 De novo review is commonly provided in government administration involving the granting of benefits or relief. For instance, in the immigration area, disappointed aliens may request a de novo hearing after the Immigration and Naturalization Service denies asylum, 8 C.F.R. § 208.9 (1987), and after it denies an alien's application for a change of status from temporary to permanent U.S. resident: see generally Sofaer, Abraham D., The Change-of-Status Adjudication: A Case Study of the Informal Agency Process, 1 J. Legal Stud. 349, 393–97 (1972) De novo review also occurs in the social welfare benefits area as in AFDC (Aid to Families with Dependent Children) cases, see generally Handler, 43 Soc. Service Rev. (cited in note 12); and the Social Security Disability Insurance Program area, see Mashaw, Bureaucratic Justice 41–44 (cited in note 15); Jerry L. Mashaw, Charles J. Goetz, Frank I. Goodman, Warren F. Schwartz, Paul R. Verkuil, & Milton M. Carrow, Social Security Hearings and Appeals: A Study of the Social Security Administration Hearing System (Lexington, Mass.: D. C. Heath & Co., Lexington Books, 1978) (hereafter “Social Security Study”).CrossRefGoogle Scholar

32 This article discusses bail decisionmaking in the deportation process–the process through which it is determined whether an alien considered to have “entered” the United Stares may remain in the country. See Immigration and Nationality Act (hereafter “INA”), § 242, 8 U.S.C. § 1252 (1982). To date, there is very little empirical work describing bail decisionmaking in deportation cases. One useful piece of research was conducted about 10 years ago by Bruce D. Beaudin, Immigration and Naturalization Service, A Comparison of the Bond-setting Practices of the Immigration and Naturalization Service with That of the Criminal Courts (Bruce D. Beaudin, consultant) july 26, 1978) (unpublished study) (hereafter “Beaudin, Bond-setting Practices”). This INS-commissioned study examines INS bail-setting practices in 10 U.S. jurisdictions. Although the study focuses on INS bail practices, it does contain some discussions of immigration judge bail decisionmaking. Another empirical study that briefly discusses INS bail decisions and their relation to INS resources is Edwin Harwood, In Liberty's Shadow: Illegal Aliens and Immigration Law Enforcement 120–21 (Stanford, Cal.: Hoover Institution Press, 1986) (hereafter “Harwood, In Liberty's Shadow”). Legal discussions of INS detention and hail authority appear in Bell, Stephen C., Detention and Parole of Aliens in Exclusion and Deportation, 3 Immigr. L. Rep. 17 (1984); Chow, Eugene K., Immigration Bonds–Are the Rules Working 5 Immigr. J. 4 (1982); Gordon, Charles, Due Process of Law in Immigration Proceedings, 50 A.B.A.J. 34 (Jan. 1964); Schmidt, Paul Wickham. Detention of Aliens, 24 San Diego L. Rev. 305 (1987) This article does not examine custody decisionmaking in the exclusion process–the process to determine whether an alien may enter the country for the first time or reenter the country after a lengthy absence. See INA § 236, 8 U.S.C. § 1226. See generally on detention in exclusion cases, Thomas Alexander Aleinikoff & David A. Martin, Immigration Process and Policy 293–314 (1985); and Helton, Arthur C. The Legality of Detaining Refugees in the United States, 14 N.Y.U. Rev. L. & Soc. Change 353 (1986).Google Scholar

33 The INS apprehends over a million aliens annually. Typically, these aliens are taken into custody and have two options–to voluntarily return home immediately or to demand a deportation hearing to determine their deportability. Those aliens arrested without a warrant who request a hearing are held pending an INS custody and bail decision that must be made within 24 hours. 8 C.F.R. § 287.3 (1987).Google Scholar

34 The figures on detention days appear in Immigration and Naturalization Service Budget Authorization–Fiscal Year 1986: Hearings Before the Subcommittee on Immigration, Refugees, and International Law of House Committee on the Judiciary, 99th Cong., 1st Sess. 221 (1985) (hereafter “Budget Hearings–FY 1986”). The figures probably include the detention days of both deportable and excludable aliens.Google Scholar

Data from the Department of Justice's Executive Office for Immigration Review (EOIR), Office of the Chief Immigration Judge, provide other data on the detention of aliens pending custody and bail decisions. Data from this source suggest that nationwide about 30% of the new deportation cases received by immigration judges involve aliens in custody who request a bond redetermination hearing after being unable or unwilling to post the INS'S bond or held without bond. This figure was calculated from national data provided to the author by EOIR. Letter to the author from Chief Immigration Judge William R. Rohie (Jan. 17, 1986) (in response to author's request for information).Google Scholar

35 The Immigration and Nationality Act of 1952 authorizes the attorney general to make custody and bond determinations. INA § 242(a), 8 U.S.C. § 1252(a). This authority is delegated by regulation to the INS by the attorney general. 8 C.F.R. § 242.2(a) (1987). The determination may be made by the district director; acting district director; deputy district director; assistant district director for investigations; assistant district director for deportation; assistant district director for examinations; assistant district director for antismuggling; officer in charge; chief patrol agent or his deputy, associate or assistant chief patrol agent. Id. Google Scholar

36 In re Kwun, 13 I. & N. Dec. 457, 460 (BIA 1969) (The INS'S power “was designed for use, where needed, to make the alien available for hearing and, if ordered, for deportation”). In re Arbelaez-Naranjo, Interim Dec. No. 2942 (Reg. Comm. 1983) (same). See also 2 Charles Gordon & Harry N. Rosenfield, Immigration Law and Procedure, § 10.8a(13) app. (containing a reproduction of a bond form) (1985) (hereafter “Gordon & Rosenfield”).Google Scholar

37 Immigration judges' custody and bail authority is delegated by regulation to them by the attorney general. 8 C.F.R. § 242.2(b) (1987). About 20 years ago, immigration judges were granted this power to review INS custody decisions. For historical materials on how the present two-tiered review system emerged see the Board of Immigration Appeals's decision and the INS'S motion for reconsideration in the case of In re Kwun, 13 I. & N. 457 (BIA 1969).Google Scholar

38 See Infra text accompanying notes 146–48.Google Scholar

39 Regarding appeal to the Board of Immigration Appeals see 8 C.F.R. § 242.2(b) (1987). After all administrative review is exhausted, a decision is entered by the BIA, and a habeas corpus action may be brought in federal district court. INA § 242(a), 8 U.S.C. § 1252(a). However, the exercise of administrative discretion is subject to only limited judicial review. It has been held that a determination of the attorney general regarding bail will “be overturned only on a showing of clear abuse.” Carlson v. Landon, 342 U.S. 524, 540 (1952). A brief discussion of habeas review of custody determinations is contained in Schmidt, 24 San Diego L. Rev. 309–10 (cited in note 32).Google Scholar

40 E.g., widespread noncompliance by aliens released from custody in Florida and Texas is reported. Illegal Aliens Gush from Pipeline, Chicago Tribune, Dec. 13, 1984, at 42, col. 5 (reporting an INS study showing that “about three out of four illegal aliens failed to appear after they were released in Miami on bond to await deportation or exclusion hearings and those from the Indian subcontinent had even worse records”). The Gatekeepers: Immigration Service has Mammoth Job, Minimal Resources, Wall St. J., May 9, 1985, at 16, col. 1 (“In McAllen, Texas, officers are sometimes forced to release 20 to 30 illegal immigrants from Central America a day on their own recognizance because there isn't room to detain them in INS facilities or money to house them in the county jail; almost all of the illegal immigrants released without bond are never seen again”).Google Scholar

41 The use (and misuse) of bail in the criminal justice system has for decades been a topic of interest. In the 1950s and 1960s due to the pioneering work of Professor Caleb Foote and the Manhattan Bail Project, issues such as the legality and functioning of monetary-based bail systems were thoroughly analyzed. See generally Caleb Foote, Compelling Appearance in Court: Administration of Bail in Philadelphia, 102 U. Pa. L. Rev. 1030 (1954); id., The Coming Constitutional Crisis in Bail: Parts I & II, 113 U. Pa. L. Rev. 959–89, 1125–85 (1965); Charles Ares, Ann Rankin, & Sturz, Herbert. The Manhattan Bail Project: An Interim Report of the Use of Pretrial Parole, 38 N.Y.U. L. Rev. 67 (1963).Google Scholar

42 The perceived threat of detention pending a hearing or an INS employee's actual threat of incarceration as reported elsewhere, Orantes-Hernandez v. Smith, 541 F. Supp. 351 (C.D. Cal. 1982), may discourage aliens from demanding a deportation hearing and induce them to sign an agreement to return home voluntarily. Even after aliens have requested a deportation hearing, they may abandon pursuit of the hearing and request voluntary departure after being advised of the bond the INS has imposed in the case. See Harwood, Edwin, Arrests Without Warrant: The Legal and Organizational Environment of Immigration Law Enforcement, 17 U.C. Davis L. Rev. 505, 518–19 (1984) (“some aliens change their minds and decide they want to join their friends on the bus and take voluntary return, especially after they learn that they will have to be detained because they cannot post the bond of from $500 to $10,000 and more”).Google Scholar

43 The 1950s may have contained the residue of what Professor Peter H. Schuck calls “restrictive nationalism”–a period in our nation's history when “[l]iberal values were challenged by an array of exclusionary impulses.”Schuck, , The Transformation of Immigration Law, 84 Colum. L. Rev. 1, 3 (1984).CrossRefGoogle Scholar

44 Sunstein, , 72 Va. L. Rev. 281 (cited in note 7).Google Scholar

45 Herbert L. Packer, The Limits of the Criminal Sanction 149–73 (Stanford, Cal.: Stanford University Press, 1968).Google Scholar

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47 Id. at 153, 154.Google Scholar

48 Skolnick, Justice (cited in note 4). Herman Goldstein, Policing a Free Society 8–11 (Cambridge, Mass.: Ballinger Pub. Co., 1977).Google Scholar

49 For a discussion of the concerns and practices of the INS, see sec. III.B.Google Scholar

50 A discussion of the concerns and practices of immigration judges appears in sec. III.C.Google Scholar

51 E.g., West, Administrative Rulemaking (cited in note 20); Skolnick, Justice (cited in note 4). See also references infra at note 178.Google Scholar

52 A discussion of portions of the larger study appears in Gilboy, Janet A., Setting Bail in Deportation Cases: The Role of Immigration Judges, 24 San Diego L. Rev. 347 (1987). Some of the limitations of the study stem from the fact that this was designed as a study of immigration judges and not the INS. For example, my information about the perspectives of INS employees is drawn largely from informal or casual conversations with INS employees during the course of the research.Google Scholar

53 A discussion of the EOIR appears in sec. III.C.Google Scholar

54 At the time of the study, the court was third largest with 6 of the nation's 57 immigration judges assigned to the court. Currently, the Chicago immigration court has 7 judges and nationwide there are 60 judges. At the time of the study, in additlon to hearing cases in Chicago, the Chicago immigration judges were also sent regularly to hear cases in Cincinnati, Kansas City, Milwaukee, Omaha, St. Louis, and St. Paul.Google Scholar

55 In 1985, of the 64 cities and facilities served by immigration judges, the Chicago immigration court ranked eighth in the number of new deportation cases received. This ranking was calculated from data contained in a letter to the author from Chief Immigration Judge Robie (cited in note 34).Google Scholar

56 Throughout the article I use the term “immigration court” to refer to the courts in which immigration judges conduct their proceedings. Technically speaking, there is no immigration court. There is the EOIR, which is the parent organization of the Office of the Chief Immigration Judge. The chief judge has responsibility for supervision of immigration judges.Google Scholar

57 For a lengthy description of the nature of enforcement by patrol agents on the border and investigators in the interior of the country see Harwood, In Liberty's Shadow 49–167 (cited in note 32).Google Scholar

58 See Malcolm M. Feeley on the appropriate question to be asked regarding the selection of a research site, The Process Is the Punishment: Handling Cases in a Lower Criminal Court XX (New York: Russell Sage Foundation, 1979) (hereafter “Feeley, Process”).Google Scholar

I suspect bail administration in the jurisdiction studied is not a unique case given the INS'S national efforts to deal with perceived problems in immigration judge hail decisionmaking through regulations aimed at limiting or eliminating immigration judge hail review authority. See infra notes 99 & 104 and accompanying text. It does not seem very plausible that such efforts would be fueled by tensions between the INS and immigration judges in one jurisdiction in the country. Moreover, some limited data on the proportion of bond hearings in other jurisdictions suggest the possibility that hail administration elsewhere may be similar to that found in Chicago. See Gilboy, 24 San Diego L. Rev. n.49 (cited in note 52).Google Scholar

59 A more complete discussion of the selection of this sample of cases appears in Gilboy, 24 San Diego L. Rev. n.37.Google Scholar

60 The remaining 165 of the 342 cases in the sample included the cases of 111 aliens who were not arrested and bail determinations were not made in their cases; 21 arrested aliens who were in custody at the time of their deportation and therefore the issue of “failure to appear” in court did not arise; and 33 aliens for whom case files or disposition information were missing. A description of the selection of the sample of 342 cases appears in id. at n.60.Google Scholar

61 Unfortunately, I was unable to interview all six judges on the court at the time of my bond redetermination observations. One judge left the Chicago office of the EOIR before my interviews were conducted. Two other judges effectively declined to be interviewed–one judge was unable to find time to be interviewed although several tentative interview dates were set; the second judge suggested that I read the case law (which would fully explain decisionmaking) and that the judge would then be glad to discuss the cases with me at a later date.Google Scholar

62 Specific open-ended questions were asked with various probe questions. There was not, however, one fixed list of questions. The insights gleaned in one interview were explored in the next interview through additional questions. Since by the end of the third interview, there were several questions never asked, particularly of the first judge, a supplementary interview was held with this judge. During each of the interviews, an attempt was made to write down the judge's remarks during the interview. Immediately at the conclusion of the interview, the interview was dictated from my notes and later transcribed.Google Scholar

63 Although the perspectives described are not based on formal structured interviews with a random sample of INS employees, see supra note 52, I consider it some indication of the representativeness of these views that the statistical data appear to be consistent with practices that would be a likely outgrowth of the views expressed.Google Scholar

64 INA § 242(a), 8 U.S.C. § 1252(a).Google Scholar

65 BIA decisions serve as precedents for both the INS and immigration judges. 8 C.F.R. § 3.1(g) (1987).Google Scholar

66 In re Patel, Interim Dec. No. 2491, 666 (1976).Google Scholar

67 In re Sugay, Interim Dec. No. 2851 (BIA 1981); In re Shaw, Interim Dec. No. 2744 (BIA 1979).Google Scholar

68 This point was made by Yale Kamisar in another decisionmaking context–the test for the application of the exclusionary rule in search and seizure cases. Yale Kamisar, Gates, “Probable Cause,”“Good Faith,” and Beyond, , 69 Iowa L. Rev. 551, 570–71 (1984). Malcolm Feeley also appears to share this concern about the arbitrariness inherent in undifferentiated lists of “relevant” factors in decisionmaking.Google Scholar

Although some of the acts of substantive justice are vindictive, a great many–perhaps the overwhelming majority–flow from a genuine concern with doing the “right” thing. But these decisions are suspect because they are based upon variable and ill-defined factors. By its very nature individualized justice makes the distinctive and unusual terribly important, which in turn makes the process appear arbitrary. For although “relevant” factors should be taken into consideration, there is really no way of knowing what they may or should be in any given situation. While it has been possible to identify categories of factors that regularly figure in the considerations of officials, various combinations of them provide for a nearly limitless number of possibilities, and there is no way for anyone to predict precisely how they will affect any single decision.Google Scholar

Feeley, Process 285 (cited in note 58).Google Scholar

69 By perspectives is meant the coordinated set of ideas and actions that INS employees or immigration judges develop in response to some perceived problem situation or institutional pressures. They are the ordinary ways in which INS employees and judges have come to think and act in a situation calling for action. The perspectives' approach to explaining behavior asserts that individuals develop a coordinated set of ideas and actions in response to some problem situation or institutional pressure, and that these perspectives serve as solutions to the problems they encountered. Groups tend to have their own perspectives on problems. They are shared perspectives that arise when people see themselves in the same situation and when opportunities exist for mutual interaction and for provisional answers to the common problems faced. For an extensive discussion of the concept of “perspectives” and methods for establishing and describing the ideas and actions group members employ in a situation, see Howard S. Becker, Boys in White: Student Culture in Medical School 34–45 (Chicago: University of Chicago Press, 1961).Google Scholar

An examination of perspectives and the situation in which they develop, I believe, provides a more immediate and direct explanation for individuals' ways of thinking and acting then other sorts of explanations such as an individual's “professional socialization,”“social background,” etc. For a discussion elsewhere of the explanatory value of attempting to describe individuals' behavior in terms of environmental constraints and demands as compared to other possible approaches, see Thomas Y. Davies's study of intermediate appellate decisionmaking in Affirmed: A Study of Criminal Appeals and Decision-making Norms in a California Court of Appeal, 1982 ABF Res. J. 583–85. So far as I know, however, Davies does not attempt to incorporate Becker's developed methodology for the analysis of perspectives into his institutional analysis of the court of appeals.Google Scholar

The focus on perspectives and the situation in which they develop not only provides an immediate and direct explanation for INS and immigration judge behavior, but also provides information that may help us later to explain differences among jurisdictions. For example, institutional pressures may vary by jurisdiction leading to different patterns of thought and action emerging in response to the problems created by these pressures.Google Scholar

70 The discussion in this section owes much to the work of Jerome Skolnick, who in his examination of the exclusionary rule probed the factors in the situation of the policeman that shape his interpretation of legal rules and ultimately leads to the neutralization of legal controls. Skolnick, Justice 204–29 (cited in note 4).Google Scholar

71 Typically, suspected deportable aliens have two options available to them after their arrest–to voluntarily return home immediately or to demand a deportation hearing to determine their deportability. The removal of an alien prior to the commencement of deportation proceedings is sometimes referred to as a “voluntary return” in the jurisdiction studied. These cases may be distinguished from “voluntary departure” cases in which aliens have had a deportation hearing, have been found deportable by an immigration judge, and have been granted the discretionary relief of departing the country voluntarily on their own within a specified period of time. Procedures for the removal or “voluntary return” of aliens without issuance of an order to show cause and finding of deportability are provided by INA § 242(b), 8 U.S.C. § 1252(b). “Voluntary departure” is established by statute as a form of discretionary relief available to aliens under deportation proceedings. INA § 244(e), 8 U.S.C. § 1254(e). A discussion of voluntary departure appears in 2 Gordon & Rosenfield § 7.2 (cited in note 36). For some aliens, a third option is available. This is extended voluntary departure, or the withholding of enforced departure for a limited period of time. Extended voluntary departure is currently available to individuals from several nations including Afghanistan, Ethiopia, , and Poland, . 8 Refugee Reports 17, No. 8 (Aug. 14, 1987).Google Scholar

72 Deportation proceedings in Chicago are frequently begun with the arrest of suspected deportable aliens. In interior locations of the country, such as Chicago, most aliens are arrested without a warrant at their place of work as a result of business surveys (or raids in the case of uncooperative employers) by INS investigators. After questioning, the suspected deportable aliens are taken to the INS'S office for processing and a decision whether to detain the alien without bail, to release the alien on a recognizance bond, or to set a money bond.Google Scholar

73 In order to receive the discretionary relief of voluntary departure, the alien must have “the immediate means with which to depart promptly from the United States.” 8 C.F.R. § 244.1 (1987). It often happens that aliens unable to post bail in order to obtain their release are also unable to afford their travel costs and must be removed, i.e., deported from the country at government expense.Google Scholar

74 See sec. III.C for a discussion of the number of old cases pending on the immigration court's docket in Chicago at the time of this study.Google Scholar

At the time of the study, the EOIR case backlog had been going up. At the end of fiscal year 1984, there were 56,000 pending cases. In June 1985, the chief immigration judge projected that at the close of fiscal year 1985 the pending cases figure would be about 65,000 cases, an increase of 9,000 cases in the backlog. Viewed a little differently, the projections of the chief immigration judge would mean that on the average, each of the 60 immigration judges would experience an increase of 150 cases to their current average backlog of 933 cases. Speech by William R. Robie, Chief Immigration Judge, Executive Office for Immigration Review, 1985 American Immigration Lawyer's Association Annual Conference, June 4–9, 1985, Boston, Mass. (Cassette #10, Recent Developments at the Justice Department, Convention Seminar Cassettes, 2507 Royal Ave., Simi Valley, Cal.) (hereafter “Robie Speech”).Google Scholar

On November 6, 1986, the Immigration Reform and Control Act of 1986, Pub. L. 99–603, was enacted to provide the opportunity for certain aliens to apply for temporary resident status in the United States. This study was conducted prior to this law and the enactment of “amnesty” provisions for illegal aliens. No doubt, some of the aliens eligible to apply for temporary resident status were under deportation proceedings in the immigration court at the time of the enactment of the law. I have no information as to how many of these cases were removed from the immigration court's call and what the size of the backlog is currently.Google Scholar

75 See infra notes 119–20 and accompanying text.Google Scholar

76 The INS investigator quoted mentions that the INS is unable to use Social Security Administration information to locate abscondees. The INS, however, is attempting to rein- state procedures to obtain employment data from the Social Security Administration for certain categories of aliens. The information would be used in the cases of aliens who failed to appear at the INS for deportation after a final order of deportation became effective following their failure to depart the country voluntarily. Budget Hearings–FY 1986 at 189 (cited in note 34) (INS response to supplemental questions submitted by the subcommittee).Google Scholar

77 8 C.F.R. § 243.3 (1986). In 1986, the rule was amended to allow the INS to assume custody of an alien at the time of issuance of a final order of deportation. 51 Fed. Reg. 23,041 (1986). See 8 C.F.R. § 243.3 (1987).Google Scholar

78 See sec. III.B2.Google Scholar

79 See sec. III.C.Google Scholar

80 An additional frustration to investigators is that the alien out on bond is likely to return to work illegally or resume criminal activities. As one INS employee explained:Google Scholar

It's frustrating to have a case where the bond is reduced. The guy's back out on the street before the investigator is even out of the office that day. They are out on bond working again or involved in criminal activity. It's the bird in hand thing. Depending on how they were apprehended, we may have spent time to arrest him then the guy is out on the street again. There are a certain number that will be bag and baggage cases [aliens sought after they fail to leave after an alternative order of voluntary departure and deportation is issued] or that will fail to appear for the deportation hearing. The request for a deportation hearing is an abuse of the system. Some do not have any equities, for example, they have not been here a minimum of 7 years. They view the bond as [permission to work], not as something to assure their appearance, but to be back out.Google Scholar

81 During the study, a decision was made by the Chicago INS district office to transfer responsibility for locating aliens who failed to depart on a voluntary departure order from INS investigators to deportation officers.Google Scholar

82 See supra note 71.Google Scholar

83 A similar assessment is made by Edwin Harwood:Google Scholar

[S]ubtle pressure to encourage aliens to accept voluntary return may be communicated from higher-ups in the district office to the patrol agents or Cls because of limited detention space or a desire to keep the caseload of hearings within manageable bounds. On occasion, when it appears aliens are having a hard time making up their minds what to do, officers may try to tip the scale in favor of a decision to take voluntary return through subtle or not so subtle cueing, as by hinting that they might end up spending time in a jail where other inmates don't speak their language. Harwood, In Liberty's Shadow 116 (cited in note 32). See also Harwood, , 17 U.C. Davis L. Rev. 505 (cited in note 42).Google Scholar

84 See, e.g., Handler, Protecting the Client 52 (cited in note 4). Discussing fair hearing procedures in social benefits programs he observes: The fair hearing challenge is a direct affront to the field official's discretionary competence because the client first challenges the officer's decision, then asks the officer's supervisor to say that the client is right and the officer is wrong, and finally asks the hearing officer to say that the client is right and the whole agency is wrong. To add insult to injury, the hearing occurs outside the agency structure. In effect, then, the client is asking outsiders to evaluate the agency's professional judgment.Google Scholar

85 Skolnick, Justice 229 (cited in note 4).Google Scholar

86 Agency pressures on aliens to voluntarily return home have been the subject of lawsuits in other jurisdictions. In Orantes-Hemandez v. Smith, for instance, Salvadoran refugees seeking asylum in the United States alleged that the INS sought to ensure their acceptance of voluntary return to El Salvador by using coercive tactics and by failing to inform them of their rights. To ensure that the aliens were not deprived of their ability to assert their rights, the court ruled the Salvadoran aliens were entitled to a preliminary injunction prohibiting the INS from using coercion to induce them to voluntarily return and requiring the INS to advise the aliens of their right to apply for political asylum and their right to a deportation hearing. Orantes-Hernandez v. Smith, 541 F. Supp. 351 (C.D. Cal. 1982). See also Nunez v. Boldin, 537 F. Supp. 578 (S.D. Tex.), appeal dismissed, 692 F.2d 755 (5th Cir. 1982) (holding that due process requires the Service to advise refugees from El Salvador and Guatemala of their right to apply for asylum). For a discussion of the trend toward stricter federal judicial enforcement of procedural protections in the immigration area, see Developments in the Law–Immigration Policy and the Rights of Aliens, 96 Harv. L. Rev. 1286, 1389–93 (1983) (hereafter “Developments”). For a thorough discussion of the decline in judicial deference toward Congress and the executive branch in immigration matters see Schuck, 84 Colum. L. Rev. (cited in note 43).CrossRefGoogle Scholar

87 Whether the INS perceives this as a problem in other jurisdictions is unknown. Another researcher, Edwin Harwood, reports only the opposite phenomenon–aliens shifting from requests for a deportation hearing to requests to voluntarily return to their country in lieu of a hearing after learning about the size of the INS'S bond. Harwood, , 17 San Diego L. Rev. 518–19 (cited in note 42): “What officers find frustrating is that after doing the paperwork, some aliens change their minds … and take voluntary return, especially after they learn that they will have to be detained because they cannot post the bond of from $500 to $10,000 and more.”Google Scholar

88 Beaudin, Bond-setting Practices 25 (cited in note 32).Google Scholar

89 Id. Google Scholar

90 Id. at 18–19.Google Scholar

91 See supra note 86.Google Scholar

92 Immigration Service officials' use of the threat of detention to obtain voluntary returns was noted, for instance, in Orantes-Hernandez v. Smith, 541 F. Supp. 351 (C.D. Cal. 1982).Google Scholar

93 Even when a deportation hearing has been requested, the actual INS bond set in the individual case may lead aliens to abandon their right to a hearing and to request a voluntary return. For a description of aliens shifting from requests for a hearing to requests for voluntary return after imposition of the INS'S bond in their case, see Harwood, 17 San Diego L. Rev. (cited in note 42).Google Scholar

94 Statistical data from the study indicate that although in 7% of the cases in which there was a bond redetermination hearing the government reserved appeal at the close of the hearing, in no case was an appeal actually taken. (In 8% of the cases the alien reserved appeal and in one case an appeal was filed.)Google Scholar

95 Normally, the chance of reversal is considered not very great by government attorneys. The setting of a bail amount is a matter considered within an immigration judge's discretion. At bond redetermination hearings, judges set the bond based on such considerations as credibility determinations, and the BIA is viewed by some government attorneys as unlikely to see things differently from an immigration judge. Moreover, it is reported that typically it is difficult for the government to establish on appeal that the alien won't show up, largely because these are often first apprehensions and there is no history of prior bond forfeitures or other evidence that would suggest the alien's high risk of absconding.Google Scholar

96 Immigration & Naturalization Service, Using Alien Characteristics in Bond Level Determination (Feb. 1987), cited in United States General Accounting Office, Report to the Honorable Alan J. Dixon, U.S. Senate, INS Delivery Bonds: Stronger Internal Controls Needed 15 (March 1988) (hereafter “GAO Report”).Google Scholar

97 Id. at 15.Google Scholar

98 48 Fed. Reg. 18,162–18,163 (1983).CrossRefGoogle Scholar

99 48 Fed. Reg. 18,162 (1983).CrossRefGoogle Scholar

100 Id. Google Scholar

101 Bond redeterminations would be committed exclusively to the authority of district directors. Speech by Maurice C. Inman, Jr., General Counsel, Immigration & Naturalization Service, 1985 American Immigration Lawyers Association Annual Conference, June 4–9, 1985, Boston, Mass. (Cassette #10, Recent Developments at the Justice Department, Convention Seminar Cassettes, 250 Royal Ave., Simi Valley, Cal.) (hereafter “Inman Speech”).Google Scholar

102 Id. Google Scholar

103 50 Fed. Reg. 44,296 (1985).CrossRefGoogle Scholar

104 Id. Google Scholar

105 In April 1986 the Department of Justice's Semiannual Regulatory Agenda indicated that a rule to impose a minimum bond as a condition of release was “not presently being considered.” 51 Fed. Reg. 14,167 (1986). While proposals to eliminate or reduce immigration judge and BIA bail review and voluntary departure authority have proceeded no further than the projected rulemaking stage, other efforts to tighten enforcement through the regulatory process are currently being pursued. In July 1987 the INS proposed a rule to eliminate surety bonds as acceptable security on immigration bonds used in several situations including bonds to secure an alien's appearance and departure. Aliens would be required to provide cash as security for an immigration bond and would no longer be able to use the intercessions of bondsmen to gain their release. The rule change was proposed as a result of millions of dollars worth of “outstanding delinquent breached surety bonds” owed the INS by surety companies (some companies had become insolvent) and the failure of the surety bond system to assure aliens' appearance. 52 Fed. Reg. 24,475 (1987).Google Scholar

106 For a description of the tensions and morale problems in the INS Investigations Division in the period before the new priorities went into effect, see George J. Weissinger, Law Enforcement and the Immigration and Naturalization Service: Resolving an Apparent Contradiction 117–39 (Ph.D. diss., New York University, 1982). The study focuses on the New York district INS office where the author was an investigator. For a discussion of immigration law enforcement prior to the case management system, see generally Harwood, 17 San Diego L. Rev. (cited in note 42).Google Scholar

107 U.S., Department of Justice, Immigration & Naturalization Service, Investigations Case Management System 1–3 (Oct. 1, 1985).Google Scholar

108 Id. at 2.Google Scholar

109 Id. at 1–2. In fiscal year 1984 interior enforcement distributed its personnel's time among impact levels as follows: Impact Level I: 50%; Impact Level II: 30%; Impact Level III: 20%. Fiscal Year 1985 Budget Authorization of Immigration and Naturalization Seruice: Hearing Before the Subcommittee on Immigration and Refugee Policy of the Senate Committee on the Judiciary, 98th Cong., 2d Sess. (March 13, 1984), at 86–87 (testimony of Ray Kisor, designee, Associate Commissioner for Enforcement).Google Scholar

110 Harwood indicates that the location of abscondees generally tends to be given low priority in busy INS district offices. Harwood, Edwin, The Crisis in lmmigration Policy, 4 J. Contemp. Stud. 51 (Fall 1983): “aliens who abscond either before or after a deportation hearing and become ‘locate’ cases often are a low priority in busy district offices and may never be actively pursued.”Google Scholar

111 More recently, however, deportation officers, not investigators, pursue aliens who have failed to depart the country.Google Scholar

112 This percentage was calculated from an examination of the dispositions given to all cases disposed by immigration judges in Chicago during April and May 1983. The dispositions are recorded on the immigration court's daily court sheets.Google Scholar

113 One INS administrator suggested to me still another reason for immigration judges' use of voluntary departure orders–judges' desire to minimize appeals. The INS administrator described why he believed voluntary departure orders were so popular: “The voluntary departure is a 'cop-out.' It satisfies everyone. The alien feels nothing has immediately happened to him, and judges abdicate their responsibility and give voluntary departure because they know a person won't appeal from the order. I think when the law was written it was intended to be used selectively but it is widely used.”Google Scholar

114 Harwood, , 17 U.C. Davis L. Rev. 513 (cited in note 42). There are signs, however, of the INS'S frustration with the enforcement of voluntary departure orders. In the past three years several official and “unofficial” rules have been proposed by the INS that would limit or eliminate immigration judge and BIA use of voluntary departure orders. See sec. III.BI.Google Scholar

115 For an extensive description of the process by which the INS verifies an alien's departure for purposes of cancelling or refunding the bond to the alien or obligar, see Gilboy, 24 San Diego L. Rev. n.80 (cited in note 52).Google Scholar

116 U.S., Dep't of Justice, Immigration & Naturalization Service, Report of Field Operations, Fiscal Year 1982, Chicago, Form 23.6. Similar backlogs are reported in other jurisdictions. In the Washington, D.C., office of EOIR (a one-judge court) in the 1984 calendar year there were 1,500 cases on the court's docket. Heavy Caseload Strains Immigration Office, Washington Post, Jan. 9, 1984, at D7, col. 2. In Los Angeles, the court's backlog has led to noncustody cases being scheduled for a deportation hearing a year later. Inman Speech (cited in note 101).Google Scholar

117 For more information about this sample see supra note 59 and accompanying text.Google Scholar

118 Viewed a little differently, this means about one-third of all cases initiated in this period were still pending over one year later. Specifically, 48 of 157 cases of aliens arrested and placed under deportation proceedings in April-May 1983 were still pending 15 months later.Google Scholar

119 Robie Speech (cited in note 74), indicating that “[t]here are a number of things that we're doing to try to address this increasing caseload without significant numbers of additional resources”; specifically he referred to a nationwide transcription contract; the uniform docketing system; an expanded management officer system; improvement of support to judges including law clerks; caseload distribution assessment; preparation of court procedural rules; training of new judges; and an automated case system.Google Scholar

120 This research was conducted prior to the Immigration Reform and Control Act of 1986; see supra note 74. I have no information on whether the removal from the court's call of the cases of aliens applying for temporary resident status under this new law has affected the INS'S perspective as to the capability of immigration judges to get on top of and keep abreast of their caseload.Google Scholar

121 Although data exist on the number of appeals disposed by the BIA (see Legomsky, Stephen H., Forum Choices for the Review of Agency Adjudication: A Study of the Immigration Process, 71 Iowa L Rev. 1297, 1401 app. (1986)), as far as I know, there is no published empirical study of the length of time to process immigration appeals. Substantial delays can occur, however. For instance, in a recent speech, the chief immigration judge reported that there were 6,000 appeals waiting to be transcribed in his office. He anticipated that it would be a year before incoming cases were sent to the transcriber. (Detained cases are sent out for transcription within about a week of receipt.) Speech by Chief Immigration Judge William R. Robie, Executive Office for Immigration Review, 1987 American Immigration Lawyers Association Annual Conference, June 16–21, 1987, Philadelphia, Pa. (Cassette #33, Session on Immigration Court Developments, Convention Seminar Cassettes, 2507 Royal Ave., Simi Valley, Cal.).Google Scholar

122 Legally, although several persons in the INS may make custody and bail decisions (see supra note 35), in the Chicago district office most decisions are made by the assistant district director for investigations–the head of the section which investigates and apprehends aliens. Normally, the assistant district director for investigations reads the Record of Deportable Alien form (Form I-213), typically a half-page narrative about the case, prepared by the apprehending investigator. If there are questions, the investigator will be queried. This, however, infrequently occurs. Upon a reading of the Record of Deportable Alien, a custody and bail decision is made. During the period of the study, the assistant district director for investigations reported that he based his decisions upon a consideration of whether the alien would appear in court, not upon whether the alien would also depart the country if ordered to do so. The factors he considered were described by him as follows:Google Scholar

When I receive the case the OSC/WA already is prepared. I am looking at should the individual be released on recognizance or what is the amount of bond necessary to assure that there is more motivation to appear at the hearing than to abscond.Google Scholar

In determining the bond amount, what is the length of the person's presence in the United States, whether the individual has an address or domicile, whether the individual was convicted of any criminal offenses and the number of times they were apprehended by INS in the past. If they have been apprehended before, what is their past track record? Also I consider the relative cost to the respondent of abandoning the bond. I look at the cost to the person of reentering the country unlawfully as opposed to the cost of posting and abandoning the bond. Specifically, if we get an individual who lives in a Mexican border town, who has access to the border and a place where it is relatively inexpensive to cross, then I figure the individual posting the bond is quite likely to appear. In order to continue to appear, economic risk is such that a bond of $3,000 to $4,000 might represent 5 or 10 times the cost of being deported and making the outlay to return. As opposed to if an individual would be deported to Europe, Africa, or the Middle or Near or Far East, it might be more cost efficient to breach the $3,000–$4,000 bond rather than take a chance on deportation to the homeland and then go through the sticky procedure of obtaining e.g., a counterfeit non-immigrant visa and a round trip fare.Google Scholar

Interview with Assistant District Director for Investigations James Cole, May 11, 1984.Google Scholar

123 More specifically, bonds were set in the following ranges by the INS in the 157 cases: recognizance bond (20 cases); $500–$1,500 (1 case); $2,000–$3,000 (77 cases); $3,500–$4,500 (29 cases); $5,000–$6,000 (15 cases); $6,500–$7,500 (2 cases); $9,500–$10,500 (10 cases); over $15,000 (3 cases).Google Scholar

124 See also 1A Gordon & Rosenfield § 5.4a (cited in note 36), suggesting that arrested aliens are seldom denied bail. The standards for denial of bail area also discussed. Id. at § 8.16.Google Scholar

125 No statistical data were located to compare the levels of bonds set by the Chicago district to other district offices. Each district director establishes a general policy regarding bonds. In chis district these are not published, but were reported not to contain a set formula for setting bonds. According to one INS employee, the bonds set in Chicago were probably somewhat higher than most other district offices because Chicago is considered to have a fairly sophisticated community where people are able to readily change identities and where it is hard to find someone. On the other hand, some immigration lawyers reported that Chicago bonds are lower than in some jurisdictions with bonding companies operating, which would tend to make money more readily accessible to aliens.Google Scholar

126 For a general discussion of the data sources on which cable 2 is based see Gilboy, 24 San Diego L. Rev. n.37 (cited in note 52). Because the sample of cases did not include antismuggling cases, one potential reason for release on personal recognizance (“witness in a proceeding”) does not appear in this table. Id. Google Scholar

127 Recognizance bonds, e.g., were not given in cases with unfiled visa petitions even if the alien was verified by the investigator as having a U.S. citizen spouse–an immigrant category where visas are available. (This is a category of cases for which immigration judges typically reduce the bond to a recognizance or minimum bond.) Recognizance bonds (or minimum bonds) also were not extended to aliens with approved nonpreference petitions with set priurity dares. In some of these cases, however, visas were not available for many years.Google Scholar

128 For example, no aliens in the study eligible to request the discretionary relief of suspension of deportation (because they had been in the country seven years or longer) were given a recognizance bond or minimum bond for solely this reason. We might expect that for some aliens under deportation proceedings the likelihood of a grant of this discretionary relief is substantial, particularly since the INS does not prescreen suspension-eligible apprehended cases before initiation of deportation proceedings. Because immigration judges are responsible for determining whether suspension of deportation is appropriate, the INS does not identify which apprehended aliens are likely to prevail at a deportation hearing and divert these cases to its other INS sections for review and grant of appropriate relief.Google Scholar

One interpretation of the INS's practice of not extending recognizance bonds to any aliens applying for suspension of deportation is that the INS routinely views these applications as frivolous or lacking in merit. Another interpretation is that in suspension cases, the bond also must be sufficient to cover the circumstances where aliens are found deportable and granted voluntary departure. Typically the INS does not set a different and higher bond after a voluntary departure order. The absence in any case of assurance of a grant of discretionary relief may increase the administrative pressure for the imposition of some money bond in every case. The INS's bond decision, however, was reported to be based upon a consideration of whether the alien would appear in court, not upon the likelihood of his departure, if ordered. (See supra note 122.) Thus, this factor would not seem to be an explanation for the practice of not extending recognizance bonds to those likely to appear in court. Irrespective of the basis for the INS's bail decision, the lack of use of recognizance or minimum bonds in any of the suspension eligible cases would suggest that recognizance bonds are not granted even where the likelihood of a grant of discretionary relief may be substantial.Google Scholar

129 An average detention cost of $50 per day was noted in a memorandum (dated Feb. 6, 1986) sent by a Department of justice employee to the Department of Justice in response to the rule proposed in 51 Fed. Reg. 3471 (1986). For a more extensive discussion of the number of detention days annually reported by the INS and estimated detention costs, see Gilboy, , 24 San Diego L. Rev. 405 (cited in note 52).Google Scholar

130 One criminal justice study with some comparative data is Roy B. Flemming, Punishment Before Trial: An Organizational Penpective of Felony Bail Processes (New York: Longman, 1982). The study contains 1972 pretrial release data for 1,500 felony cases prosecuted in each of the cities of Detroit and Baltimore. In Detroit, 49% of the felony defendants were released on their own recognizance and the median cash bail set was $2,000. The data for Baltimore show that 12% of the felony defendants received recognizance release and the median cash bail amount was $4,650. Id. at 9 table 1.2. Unlike the situation in Chicago, however, in Detroit and Washington defendants were able to use bondsmen to obtain their release.Google Scholar

131 For a discussion of deposit bail plans in criminal court systems see Wayne H. Thomas, Jr., Bail Reform in America 183–99 (Berkeley: University of California Press, 1976).Google Scholar

132 I did not contact bonding companies to determine why they apparently were unwilling to help aliens purchase their release from custody. Perhaps the maximum premiums bondsmen could charge in these cases were perceived as not offsetting the high risks of absconding and difficulties of apprehensions in these cases. Recently, the INS proposed eliminating nationwide surety bonds as acceptable security for immigration appearance, public charge, and maintenance of status and departure bonds. The proposed rule appearsat 52 Fed. Reg. 24,475 (1987).Google Scholar

133 Marriage fraud cases usually involve a sworn statement by the alien's spouse that the alien has not resided with them as man and wife and that the marriage was only entered into so that the alien could receive an immigration visa. The highest bond of $50,000 (see table 3) was set in a suspected marriage fraud case involving an apparent scheme by the alien to deceive the INS by having another woman pose as his wife at an INS interview regarding the marriage.Google Scholar

134 8 C.F.R. § 242.2(b) (1987).Google Scholar

135 Data for Chicago indicate that more than two-thirds of the deportation proceedings initiated in recent years involved arrested aliens. Gilboy, , 24 San Diego L. Rev. 361 table 1 (cited in note 52).Google Scholar

136 The sample of roughly one-third of the aliens arrested and placed under deportation proceedings during April and May 1983 contained 170 cases. For 13 cases no case files were located; hence, the final sample size was 157 cases. Of the 157 cases, 111 cases received a bond hearing.Google Scholar

137 See supra note 136. Of the 157 cases in the sample, 137 were required to post a money bond.Google Scholar

138 The statistical data in the study also allow us to look at the consistency of decisionmaking among judges, assuming each receives similar cases for bond redetermination hearings. The table below displays this information for the five judges in the sample with 10 or more bond redetermination hearings. The table also displays information on the percentage of reduction in bonds for all the cases handled by a judge (including cases with no reduction). Frequency of Bail Modifications and Average Size of Reductions by Immigration Judges (Chicago Office of the Executive Office of Immigration Review) Judge No. Modification Rate % Reduction Among Cases Modified by Judges (N= 104) % Reduction Among All Cases Handled by Judges (N.110)Google Scholar

1 92.3 82.1 75.8Google Scholar

2 95.2 70.0 70.8Google Scholar

3 100.0 71.3 67.9Google Scholar

4 100.0 65.9 65.9Google Scholar

5 88.2 49.7 43.8Google Scholar

The interjudge variation in modification rates is small. All the judges modify most of the INS's bonds. The table suggests, however, that the reduction of an alien's bond is affected to some extent by the identity of the judge. Among the five judges, the average reduction for cases modified ranges from 50% to 82% of the INS'S bond–a difference of 32%. If we exclude judge 5, however, the difference is cut in half to 16%. Practically speaking, if the INS's bond were set at $3,000, the largest difference in bonds expected among the four judges would be about $500. In such a refined examination of interjudge variance, however, we should not lose sight of the fact that whether a judge cuts the INS's bond in half or by over four-fifths, these are substantial reductions in both instances.Google Scholar

139 See supra note 136. In only 6 of the 111 cases receiving a bond hearing was there no modification of the INS'S bond.Google Scholar

140 Large reductions of INS bonds (an average of 50%) by immigration judges were also reported by the National Lawyers Guild. National Lawyers Guild, Inc., National Law Project, Bond Practice Manual 17 (1986).Google Scholar

141 See supra note 65.Google Scholar

142 See supra note 69.Google Scholar

143 Conversation with Assistant District Director for Investigations James Cole, Oct. 19, 1984.Google Scholar

144 See supra note 66 and accompanying text for a discussion of the Patel case.Google Scholar

145 Skolnick, Justice 24 (cited in note 4).Google Scholar

146 The EOIR operates under the supervision of the U.S. Deputy Attorney General. The United States Government Manual 1984-85 at 357 (Office of the Federal Register, National Archives & Records Service, General Services Administration). Immediate supervision of both the Office of the Chief Immigration Judge and the BIA is by the director of EOIR, 8 C.F.R. § 3.0 (1987), who is currently also the chairman of the BIA.Google Scholar

Generally speaking, immigration judges are part of the administrative judiciary of the executive branch of the federal government. Although involved in administrative agency adjudication, immigration judges are not administrative law judges. They are part of a group of government hearing officers classified by the U.S. Office of Personnel Management as General Schedule 905 “attorney examiners.” See Morse, Marvin H., The Administrative Law Judge: A New Direction for the Corps 30 Fed. B. News & J. 398, 400 (Sept.Oct., 1983). Other government adjudicators grouped in this category include, for instance, hearing officers of the Merit Systems Protection Board, members of the Board of Veterans Appeals, and Boards of Contract Appeals of various government bodies. Id. Historically, many immigration judges were employees of the INS and advanced up the “career ladder” from being naturalization examiners to government trial attorneys to immigration judges. In contrast to the path by which many individuals became immigration judges, top INS administrators were often initially border patrol agents, who became investigators, then supervisors, and finally top administrators including district directors. As suggested by Bruce Beaudin, these different career paths within the INS have led to distinct philosophical differences in approach between INS administrators and judges–a “law enforcement” versus “service” emphasis. Moreover, he suggests the system of recruitment “pits one school against another,” with bonds often becoming “the ultimate battleground between the two factions.” Beaudin, Bond-setting Practices 18 (cited in note 32). But see Developments at 1364 (cited in note 86): “promotions within the INS are linked to enforcement experience; thus long-time prosecuting attorneys receive immigration judgeships, and an ‘enforcement mentality' permeates the agency.” Since immigration judges’ separation from the INS, the chief immigration judge has attempted to increase the diversity of the backgrounds of the newly hired immigration judges. During fiscal years 1983 and 1984, and as of June 1985, 17 judges were recruited. Eight were attorneys from the INS, 2 were attorneys from the Department of Justice, 5 were judges elsewhere when they were hired and 2 were from private practice. Robie Speech (cited in note 74).Google Scholar

147 See Levinson, Peter J., A Specialized Court for Immigration Hearings and Appeals, 53 Notre Dame Law. 644, 645–47 (1981); Roberts, Maurice A., Proposed: A Specialized Statutory Immigration Court, 18 San Diego L. Rev. 1, 7–11 (1980)Google Scholar

148 Levinson, 53 Notre Dame Law 646; Roberts, 98 San Diego L. Rev. 8 (both cited in note 147).Google Scholar

149 Of all aliens arrested in mid-1982, 36% requested a bond redetermination hearing. See infra note 151 for a description of the source of these data. One year later, in mid- 1983, 71% of all arrested aliens requested bond redetermination hearings.Google Scholar

150 Shortly after the current district director of the Chicago district office, Mr. A. D. Moyer, assumed his position, bonds were increased over the levels set by his predecessor.Google Scholar

151 The data are from the sample of aliens entering the immigration court in May, June, and July 1982. See sec. II for a discussion of this sample of cases. There were 199 arrested aliens in the sample (177 aliens were eventually released from custody and 22 aliens were never released prior to deportation proceedings).Google Scholar

The statistical data indicate that 36% of all aliens arrested during this period received a bond redetermination hearing (72 of 199 cases). Of just those aliens required by the INS to provide a money bond (176 of 199 cases), 54% posted the bail amount required by the INS and 46% remained in custody. Of those who remained in custody (81 cases), 89% demanded a bond redetermination hearing.Google Scholar

Of the 72 aliens requesting a bond redetermination hearing, 68% received a reduction in their bonds. The bond redetermination hearings resulted in an average reduction of 34% of the original INS bond. (The cases in which there were no bond reductions were given a $0 value for purposes of calculating the average reduction figure.)Google Scholar

152 E.g., Professor Harold Levinson has raised the question whether non-administrative law judge hearing officers should be brought into the proposed Administrative Law Judge Corps. Levinson, L. Harold, The Proposed Administrative Law Judge Corps: An Incomplete but Important Reform Effort, 19 New England L. Rev. 733, 745–46 (1984).Google Scholar

153 See, e.g., Roberts, 18 San Diego L. Rev. (cited in note 147).Google Scholar

154 See Jaffe, Judiclal Control 50 (cited in note 8); Sunstein, , 72 Va. L. Rev. 281 (cited in note 7).Google Scholar

155 See generally Sunstein, , 72 Va. L. Rev. 281 (cited in note 7).Google Scholar

156 See supra note 60 and accompanying text.Google Scholar

157 Of the 177 cases that entered the system in 1982, 39 were still pending at the time of the research 36 months later.Google Scholar

158 See supra note 59 and accompanying text.Google Scholar

159 For a more complete discussion of the data on failure to appear in this sample of cases, see Gilboy, , 24 San Diego L. Rev. 379 (cited in note 52).Google Scholar

160 See text following supra note 60.Google Scholar

161 For a more complete analysis of the failure to depart rate, including a discussion of three different ways to calculate the level of noncompliance depending upon the question being asked, see Gilboy, , 24 San Diego L. Rev. 379–91 (cited in note 52).Google Scholar

162 See text accompanying supra note 161.Google Scholar

163 The study's data showed a 62% average reduction of the INS'S bonds by immigration judges in cases where the alien did depart.Google Scholar

164 See Herbert L. Packer, The Limits of the Criminal Sanction 166 (Stanford, Cal.: Stanford University Press, 1968), for a discussion of the due process model ideology that espouses individual interests over greater efficiency in crime control.Google Scholar

165 The features of de novo review described in this study might strike most people as rather unexpected. But the question may be asked, how similar or different is de novo review in this setting from the way it functions in other contexts. I have no settled answer. The data are skimpy and show a mixed picture. On the one hand, much less disparity exists in another area of the law, welfare administration. Joel Handler reports, for instance, that state administrative de novo-type review of county-level welfare decisions often results in reversal (45% of the time), but there are very few appeals in the first place. Handler, , 43 Soc. Service Rev. 20, 22 (cited in note 12). The latter data suggest that the cases being reviewed are “borderline” cases, the significance of which is discussed in the text at note 166. On the other hand, in another immigration adjudication context called “change-of-status” adjudication, there is also a very high rate of challenge by disappointed claimants as well as very high rates of modification of initial decisions. Sofaer, , 1 J. Legal Stud. 396 (cited in note 31). The inconsistency between the INS and immigration judges (then called Special Inquiry Officers) is attributed generally to “differing views of the law” and to “broad discretion.”Id. at 387, 420. In the Social Security disability benefits area there is also a high rate of reversal (50%) by administrative law judges of state-level disability decisions; see Mashaw, Bureaucratic Justice 41–42 (cited in note 15). Mashaw's study does not report the rate with which claimants demand de novo review by an ALJ. A recent report to the Administrative Conference of the United States indicates that ALJs are often asked to review state agency disability decisions and this review often results in the award of benefits previously denied. More specifically, in 1986 state-level examiners denied about 60% of the disability claims. Of these claimants, 40% sought state-level reconsideration of this decision, and of the reconsideration decisions issued, 83% were unfavorable to the claimant. After reconsideration, 65% of the claimants demanded a hearing before an ALJ. Of the cases that went to a hearing, 61% resulted in the award of benefits previously denied. Charles H. Koch, Jr., & David A. Koplow, The Fourth Bite of the Apple: A Study of the Operation and Utility of the Social Security Administration's Appeals Council 37, 39, 45, & chart 2 (Final Report to the Administrative Conference of the United States, Jan. 28, 1988) (hereafter “Koch & Koplow, Social Security Appeals Council”). Future studies may clarify better the functioning and factors shaping de novo-type review in these and other settings.Google Scholar

166 Social Security Study at 20 (cited in note 31).Google Scholar

167 Two-thirds or more of the aliens placed under deportation proceedings in recent years were arrested. Of the aliens arrested, 87% were required by the INS to post a money bond. For more details, see Gilboy, , 24 San Diego L. Rev. 358–61 (cited in note 52).Google Scholar

168 See discussion in sec. III.C.Google Scholar

169 Mashaw, Bureaucratic Justice 199 (cited in note 15).Google Scholar

170 See supra note 65.Google Scholar

171 Data from the case file study of aliens arrested and placed under deportation proceedings in Chicago during April and May 1983 show that approximately 20% of the aliens were unrepresented at the bond redetermination hearing. Although unrepresented aliens faired less well than represented aliens, still over 78% of the unrepresented aliens were released after a bond hearing. More specifically, in represented versus unrepresented cases, bond hearings resulted on the average in a 70% as compared to a 57% reduction in the size of the bond. After the hearing, 22% of the unrepresented aliens as compared to 7% of the represented aliens remained in custody unable to post hail. For a discussion of how the presence of counsel may affect case outcomes see Janet A. Gilboy, Administrative Review in a System of Conflicting Values 56–61 (ABF Working Paper #8708).Google Scholar

172 See text following supra note 143.Google Scholar

173 Daniel J. Gifford, Review Essay: Need Like Cases Be Decided Alike? Mashaw's Bureaucratic Justice, 1983 ABF Res. J. 985, 989.CrossRefGoogle Scholar

174 See text accompanying supra notes 146–47.Google Scholar

175 Roberts, Maurice A., The Exercise of Administrative Discretion Under the Immigration Laws, 13 San Diego L. Rev. 144, 164–65 (1975).Google Scholar

176 For a discussion of the political science literature using these approaches to explain differences in the voting patterns of supreme court justices, see Davies, 1982 ABF Res. J. 546–47, 583–85 (cited in note 69).Google Scholar

177 See supra note 69 for a discussion of the analysis of perspectives.Google Scholar

178 James Eisenstein & Herbert Jacob, Felony Justice: An Organizational Analysis of Criminal Courts 265–66 (Boston: Little, Brown & Co., 1977) (noting that the competing ideologies of rehabilitation, punishment, disablement, and retribution are a source of decisional freedom in the sanctioning process); Robert M. Emerson, Judging Delinquents: Context and Process in Juvenile Court 24 (Chicago: Aldine Publishing Co., 1969) (describing the nature and consequences of the court's adaptation to a setting sharing the conflicting goals of rehabilitation and law enforcement); Susette Talarico, The Dilemma of Parole Decision Making, in George F. Cole, ed., Criminal Justice: Law and Politics 447 (North Scituate, Mass: Duxbury Press, 1976) (noting the impediments to rational and equitable decisionmaking in the parole setting that are created by the competing claims of individual interests in release and maintenance of public order).Google Scholar

179 See discussion in sec. III.B.Google Scholar

180 See generally the discussion in sec. III.D on the substantial rate of compliance of aliens after immigration judges made large reductions in the INS'S bonds.Google Scholar

181 For a summary of various survey findings about American views on immigration, see Harwood, In Liberty's Shadow 10–13 (cited in note 32).Google Scholar

182 Id. at 12–13.Google Scholar

183 Id. at 13.Google Scholar

184 I do not wish to be understood here as suggesting the elimination of the use of voluntary departure grants. As I have indicated elsewhere, however, our use of such orders suffers from our lack of information about who will or will not abscond if permitted to depart the country on their own after a finding of deportability. Gilboy, , 24 San Diego L. Rev. 404–8 (cited in note 52). This lack of knowledge not only diminishes our law enforcement effectiveness but also threatens to create conditions leading to INS practices antagonistic to individual liberties.Google Scholar

185 See text accompanying supra notes 98–105 & note 105.Google Scholar

186 Maranville, Deborah, Book Review, 69 Minn. L. Rev. 325, 331 (1984).Google Scholar

187 Mashaw, Bureaucratic Justice 41–42 (cited in note 15). See Koch & Koplow, Social Security Appeals Council (cited in note 165) for a discussion of the rate with which claimants appeal state-level disability determinations.Google Scholar

188 Mashaw, Bureaucratic Justice 19 (cited in note 15). Liebman, Lance & Stewart, Richard B., Book Review: Bureaucratic Vision, 96 Harv. L Rev. 1952, 1959 (1983) (“The reversals do not trigger changes in the day-to-day functioning of the lower levels of the mass justice process…. Thus, the ALJs and the judges reverse particular decisions but do not make the law of the system”).CrossRefGoogle Scholar

189 Mashaw, Bureaucratic Justice 77 (cited in note 15).Google Scholar

190 Maranville, e.g., roundly criticizes Mashaw's notion that many of The problems with Social Security disability programs result primarily from problems in administration rather than from value conflicts. Maranville, , 69 Minn. L Rev. 327, 335–36 (cited in note 186). Professor Boyer, in reviewing Mashaw's Bureaucratic Justice, suggests that a fundamental social consensus on values may not exist as Mashaw assumes. Boyer, , 82 Mich L, Rev. 978–79 (cited in note 30).Google Scholar

191 For a discussion of nonacquiescence by the Social Security Administration (SSA), see Buzbee, William Wade, Administrative Agency Intracircuit Nonacquiescence, 85 Colum L. Rev. 582, 583–84 (1985). See generally Koch & Koplow, Social Security Appeals Council 63–64, 141 (cited in note 165)(noting a recent change in SSA policy to one of acquiescence).CrossRefGoogle Scholar

192 Skolnick, Justice 6 (cited in note 4).Google Scholar

193 Id. Google Scholar

194 This thesis is most vividly developed in Skolnick's discussion of the impact of the exclusionary rule. Id. at 204-29.Google Scholar

195 Id. Google Scholar

196 Stewart, , 88 Harv. L. Rev. 90 (cited in note 1).Google Scholar

197 See text accompanying supra notes 99, 101, 103–4.Google Scholar

198 GAO Report 16, 23 (cited in note 96).Google Scholar

199 Mashaw, Bureaucratic Justice 42–43 (cited in note 15) (reporting the testimony of Judge Kaufman in an ALJ class action suit against the Social Security Administration). For an additional discussion of ALJ production quotas and reversal allowances see Donna Price Cofer, Judges, Bureaucrats, and the Question of Independence: A Study of the Social Security Process (Westport, Conn.: Greenwood Press, 1985).Google Scholar

200 I would like to thank one of the anonymous reviewers for Law and Social Inquiry for raising this important question and for suggesting that the most potent explanatory variable for decisional disparity may not be value dissensus but rather differences in institutional and political arrangements for dealing with dissensus. These comments were insightful and well-taken, and I have drawn upon them in preparing this section.Google Scholar

201 For instance, it has been suggested that the resolution of conflicts by executive rulemaking action may be enhanced by moving away from “overjudicialized” rulemaking procedures that styrnie negotiation and accommodation among competing interests. West, Administrative Rulemaking 11 (cited in note 20).Google Scholar

202 Fuller, Lon L., The Forms and Limits of Adjudication, 92 Harv. L. Rev. 353, 357 (1978).CrossRefGoogle Scholar

203 Judith Resnik, Tiers, 57 S. Cal. L. Rev. 840, 870 (1984).Google Scholar

204 See text accompanying supra notes 186–94.Google Scholar