An Empirical Study of Political Control Over Immigration Adjudication

Abstract

Immigration reform plays a central role in the Trump Administration’s political agenda. This Article presents the first comprehensive empirical assessment of the extent to which Immigration Judges (IJs), the administrative officials charged with adjudicating whether a given noncitizen will be deported from the country, decide cases on the basis of an Administration’s political preferences rather than an independent assessment of the legal merits of a given case.

We constructed an original dataset of over 800,000 removal proceedings decided between January 2001 and November 2018. First, we found that every Administration — not just the current one — disproportionately appoints IJs with backgrounds in the former Immigration and Naturalization Service (INS), the Department of Homeland Security (DHS), or the Department of Justice (DOJ), agencies with responsibilities in prosecuting noncitizens. Second, using logistical regression to control for over a dozen variables that might impact a decision to remove, we found that the identity of the Administration that appointed an IJ was not a statistically significant predictor of the likelihood of ordering removal. That is, after controlling for other variables, Trump appointees were no more likely to order removal than Obama or Bush appointees.

Finally, using logistical regression and controlling for other variables, we found that the Administration in control at the time of decision is a statistically significant predictor of removal rates. For example, Bush appointees who served during the Bush, Obama, and Trump Eras were far more likely to order removal during the Trump Era. Specifically, when all other variables are held constant, they were 14% less likely to order removal during the Obama Era than during the current Era, and 12% less likely to order removal during the Bush Era than during the Trump Era. These results suggest that the current Executive-in-Chief exercises a profound influence over removal decisions, undermining the assumption of independence among administrative adjudicators.

Keywords: immigration, administrative law, agency adjudication, presidential administration