By Christopher Manion
The United States is a beacon of hope for many foreign
nationals seeking protection from persecution in their home
countries. However, obtaining protection in the United States
is often a difficult process. A person seeking asylum in the
United States must demonstrate a well founded fear of persecution
in his or her home country.
Asylum applications are reviewed by the immigration courts, a
division of the Department of Justice. Although these courts
are supposed to provide a uniform application of immigration laws
in all cases, recent criticisms suggest that the courts are not
achieving this goal. A recent study found an alarming
disparity in the rate at which immigration judges granted
asylum. Moreover, several circuit courts have criticized the
conduct of the immigration court judges. Former Attorney
General Alberto Gonzales conceded there was a problem when he set
forth a plan to improve the immigration courts, and directly
addressed the circuit courts’ concerns.
While these events unfolded, a split developed in the circuit
courts over their proper role in asylum cases. At issue was
whether the circuit courts had jurisdiction to review a type of
ruling by the Board of Immigration Appeals, the appellate division
of the immigration courts, that affirmed the ruling of an
immigration judge without issuing an opinion explaining the
decision. Several circuit courts held that review of this
decision was an improper intrusion into agency action under the
Administrative Procedures Act, while several other circuits held
that review was appropriate. The Administrative Procedures
Act provides a general rule that a person wronged by agency action
is entitled to judicial review of the action, with two narrow
exceptions. The circuit split hinges on the interpretation of
one of these exceptions, which states that judicial review is not
permitted where the challenged agency action is committed to agency
discretion by law. This Note concludes that judicial review
is appropriate because the challenged action does not fall within
the exception. Furthermore, the immigration court’s recent
shortcomings demonstrate that judicial review is
necessary.