Justice Overwhelmed

By Katherine McIntire Peters

July 15, 2006

When it comes to immigration, there's one thing everyone can agree on: The system for adjudicating cases is broken.

What do attorneys in the Justice Department's Environmental and Natural Resources Division have in common with attorneys from the Federal Deposit Insurance Corporation? Attorneys from both now are handling immigration cases. So beleaguered is the immigration litigation system that Justice is turning to some unlikely places for help, such as FDIC.

Late in February 2005, just three weeks into his tenure as attorney general, Alberto Gonzales decried the system that adjudicates immigration cases in a speech at Stanford University's Hoover Institution in Stanford, Calif.: "The department and the federal courts are straining under the weight of an immigration litigation system that is broken," said Gonzales, the grandson of Mexican immigrants. "Under the current system, criminal aliens generally receive more opportunities for judicial review of their removal orders than noncriminal aliens. Aliens should be given hearings that are fair and complete. But reforms would ensure that the system does not reward criminals or overburden our court system with unnecessary appeals."

As prospects dim for passage of a comprehensive immigration reform bill this year, federal agencies, judges, lawyers and immigrants themselves can expect no near-term relief from the burgeoning caseloads, lengthy appeals process, overcrowded detention facilities and packed court calendars that define immigration court proceedings today. The problems have been growing for years, and it likely will take years to resolve them, say immigration experts.

The numbers alone paint a bleak story: There are 215 federal immigration judges serving in 53 immigration courts across the country. Last year, they handled more than 350,000 specific matters, including 270,000 individual cases. Denise Noonan Slavin, an immigration judge in Miami and president of the National Association of Immigration Judges, a professional association and the collective bargaining unit for immigration judges nationwide, told the House Government Reform Subcommittee on the Federal Workforce and Agency Organization in May that immigration judges typically have four full hearings each day to determine the merits of a claim for asylum or other requests for relief from deportation. "They are expected to render oral decisions from the bench on each case, with little time for reflection," she said. "We are charged with applying a complicated and frequently amended governing statute, which has repeatedly been acknowledged as second only to the tax code in its legal complexity."

While immigration judge decisions are considered administratively final, petitioners can appeal to the Board of Immigration Appeals. Last year, the 11 judges rendered more than 46,000 decisions, including cases and motions. BIA decisions are binding, unless the attorney general or a federal appellate court overrules a decision on appeal.

Overwhelming Caseloads, Delays

Jonathan Cohn, Justice's deputy assistant attorney general for the civil division, told lawmakers in April that the number of board decisions appealed to federal courts between 2001 and 2005 rose by 603 percent, from 1,757 cases to 12,349 cases. "In the Second Circuit alone, there has been a staggering 1,400 percent increase in the number of BIA appeals," Cohn testified before the Senate Judiciary Committee.

As caseloads have grown, so too have delays. "In [the Second Circuit], according to the Administrative Office of the U.S. Courts, processing times for cases resolved on the merits have increased 171 percent, and it takes almost 27 months to resolve a [board] appeal," Cohn said. "Without question, this is a problem that must be solved. An immigration system that survives only with delay is at odds with immigration enforcement."

John M. Walker, chief judge for the Second Circuit U.S. Court of Appeals in New York, says the huge increase in cases stems, in his view, from "a severe lack of resources and manpower at the immigration judge and BIA levels in the Department of Justice.

"I fail to see how immigration judges can be expected to make thorough and competent findings of fact and conclusion of law under these circumstances. This is especially true given the nature of immigration hearings. Aliens frequently do not speak English, so the immigration judge must work with a translator, and the immigration judge normally must go over particular testimony several times before he can be confident that he is getting an accurate answer from the alien. Hearings, particularly in asylum cases, are highly fact-intensive and depend upon the presentation and consideration of numerous details and documents to determine issues of credibility and to reach factual conclusions," says Walker.

The situation at the appeals board is even more dire, he says. "For the BIA to keep current on its docket, even with streamlining so that the disposition is by a single judge, each judge must dispose of nearly 4,000 cases a year-or about 80 per week-a virtually impossible task," he says. In 2002, in an attempt to address what was then a considerable backlog, then-Attorney General John Ashcroft initiated a plan to streamline appeals.

As part of the initiative, more cases that went before the board were deemed eligible for review by single judges as opposed to a three-judge panel. Critics contend this has resulted in more faulty decisions by BIA, but Justice officials say there is no evidence of that. According to the Executive Office for Immigration Review, the organization that oversees immigration judges and the appeals board, streamlining has allowed the BIA to reduce its backlog from 56,000 cases in August 2002 to 28,000 by January 2006. According to Justice Department data, more than 90 percent of BIA decisions appealed to federal court are upheld.

Walker, in his position on the Second Circuit, has reviewed hundreds of petitions for review of BIA decisions. "The factual records on appeal are frequently substantial, with hundreds of pages of testimony and related material. In addition, the BIA is supposed to rule on questions of law raised by the petitions. One of my court's problems with the BIA is that it rarely seems to adjudicate the outstanding legal issues in a case, no doubt because the judges lack the time to do so. If the BIA were not so pressed, it could properly play its role of providing uniform national rules of law in these cases."

Walker believes at least 30 BIA judges are needed rather than 11, and that the number of immigration judges, now at 215, should be doubled.

Criticism Mounts

Inadequate resources at the Homeland Security Department, which has responsibility for enforcing immigration laws, and Justice, which adjudicates immigration cases, have created a situation for dealing with immigration claims that is widely viewed as arbitrary and unfair, with weaknesses easily exploited by criminals. Of the 774,112 illegal aliens apprehended during the last three years, 36 percent were released due to a shortage of law enforcement personnel, lack of space in detention facilities, or inadequate funding necessary to detain them while their immigration status was determined.

According to an April audit by Homeland Security's inspector general, 62 percent of aliens apprehended and then released eventually will be ordered deported by immigration judges at Justice, but because they fail to appear at court hearings, most are never removed. "As of Dec. 30, 2005, there were more than 544,000 released aliens with final orders of removal who have absconded," the audit found.

"Collectively, the bed space, personnel and funding shortages coupled with [other factors] has created an unofficial 'mini-amnesty' program for criminal and other high-risk aliens," auditors wrote. One Homeland Security official reported that intelligence assessments indicate terrorist organizations "believe illegal entry into the U.S. is more advantageous than legal entry for operations reasons," auditors reported.

The situation in immigration courts is such that nearly everyone is assured a miserable experience: Federal judges and lawyers labor under staggering workloads; immigration advocates say the judges increasingly produce shoddy work and are sometimes belligerent; immigrants who do show up at proceedings live in limbo, sometimes for years, as their cases work their way to resolution.

Earlier this year, Gonzales ordered Deputy Attorney General Paul J. McNulty and Associate Attorney General Robert D. McCallum to conduct a comprehensive review of the immigration court system. In Jan. 9 memos to judges who sit on the nation's 53 immigration courts and to appeals board members, Gonzales wrote that he was troubled by reports that some judges were abusing their authority over petitioners and rendering poorly considered decisions: "I have watched with concern the reports of immigration judges who fail to treat aliens appearing before them with appropriate respect and consideration and who fail to produce the quality of work that I expect from employees of the Department of Justice." Although "most immigration judges ably and professionally discharged their difficult duties, I believe there are some whose conduct can aptly be described as intemperate or even abusive," he wrote.

The review, which had not been released at press time, was to examine both the quality of the work and the manner in which it was performed in immigration courts as well as the BIA.

Deborah J. Notkin, president of the American Immigration Lawyers Association, commended Gonzales for ordering the review. AILA has been especially concerned about the BIA's use of a procedure called "affirmance without opinion," where a single judge may affirm an immigration court decision without comment. The procedure was adopted during Ashcroft's streamlining initiative. The idea behind it was if the BIA judge deemed the immigration judge had rendered a correct decision, there was no point in the BIA judge reiterating the lower court's argument in the judge's own findings. But immigration lawyers contend that the procedure has resulted in BIA judges adopting a far less thorough review of administrative appeals.

In a Jan. 10 letter to Gonzales, Notkin wrote, "Increasingly, courts are reversing immigration decisions due to seriously flawed [immigration judge] decisions." She cited the experience of the Seventh Circuit Court of Appeals, which recently calculated that it had reversed BIA decisions in "48 percent of the petitions for review that were decided on the merits in the preceding 12 months."

According to Notkin, the Seventh Circuit found that "the adjudication of [immigration] cases at the administrative level has fallen below the minimum standards of legal justice. . . . [I]t cannot be in the interest of the immigration authorities, the taxpayer, the federal judiciary, or the citizens concerned with the effective enforcement of the nation's immigration laws for removal orders to be routinely nullified by the courts. . . . [T]he power of correction lies in the Department of Homeland Security, which prosecutes removal cases, and the Department of Justice, which adjudicates them."

The Seventh Circuit's experience is an anomaly, the civil division's Cohn testified in April. The court hears no more than 2 percent of the total number of appeals from BIA decisions; the nationwide average was 14 percent, as calculated by the Administrative Office for the U.S. Courts. "To say the court reversed the BIA 14 percent of the time overstates the reversal rate for two reasons," he said. "First, the 14 percent figure reflects only those cases that were terminated on the merits. It does not account for all of the aliens' appeals that were dismissed on procedural grounds." According to statistics tracked by the civil division at Justice, Cohn said, "the government prevailed in 91.5 percent of its immigration cases last year, and thus incurred reversals or remands in only 8.5 percent of the cases." That percentage is consistent with data compiled for each year since 2002, and considerably higher than that for 2000, when the government prevailed in only 83.1 percent of cases.

Critics are not mollified. Notkin's organization has cataloged recent errors committed by immigration judges and believes they most likely would have been remedied by BIA were it not for the Ashcroft streamlining.

Judge Carlos T. Bea, in the Ninth Circuit Court of Appeals, told the Senate Judiciary Committee in April that "petitioners and their attorneys do not think the one-judge BIA review and [affirmation of immigration judge decisions without comment] has adequately dealt with the claimed errors on appeal. They think they have received 'rubber stamp' treatment," he said. Bea, who was appointed to the court in 2003 by President Bush, is uniquely qualified to assess the immigration litigation system. He is likely the only circuit judge to have been ordered deported by the Immigration and Naturalization Service (that agency was rolled into Homeland Security in 2003), a decision he successfully appealed to BIA. Additionally, before his judicial appointment, he represented alien clients before immigration judges.

Long delays in adjudication are another reason for the increase in appeals, Bea says: "During that period of delay, events may change the alien's chances of staying in the country. Those changes may be personal, such as a marriage to a United States citizen or the birth of children or any number of other conditions affecting removability. Or those changes may be political, such as changed country conditions in the alien's home country, or legislative and administrative, such as immigration reform in this country, giving the alien new hopes to remain here. Even if the appeal lacks all merit, the backlog of cases in the circuit courts provides an incentive to appeal by almost guaranteeing a significant delay in deportation."

Contributing Factors

A significant increase in appeals court caseloads was predictable when, in the mid-1990s, Congress boosted resources at the Immigration and Naturalization Service and ordered stepped-up immigration enforcement op-erations, says University of Virginia Law School Professor David A. Martin, who served as general counsel for INS in the mid-1990s.

"Activity essentially doubled, and so did the number of immigration judges. That expansion itself was likely to bring to the courts an eventual doubling of the appellate caseload," a need that wasn't factored into judicial budgets, he says. "The courts were shielded from the full impact for several years by backlogs at the BIA. When the BIA cleared much of the backlog in a burst of activity in 2002-2004, a large spurt of appeals suddenly arrived at the courts," he says.

Another reason for the rise in appeals can be attributed to the 1996 Illegal Immigration Reform and Immigrant Responsibility Act, which resulted in complex legal changes, raising a host of interpretive questions for the courts. "One can expect an increase in court challenges in the wake of any massive legislative change, until the new statutory provisions receive authoritative interpretation and rulings on their constitutionality," a "settling" process that continues, Martin says.

Still, he says, streamlining at BIA has contributed to the explosion of cases in federal appeals courts. In particular, he is critical of the decision under Ashcroft to reduce the number of BIA judges from 23 to 11, ostensibly because they were no longer required under streamlining. "Why it was thought that a cut in the board size was a good idea, in the face of a massive caseload, is mystifying," Martin says, and proved to be a false economy. "In my view, these changes helped trigger the higher appeal rate that has consumed so much time and energy of appellate lawyers drawn from far and wide in Justice."


By Katherine McIntire Peters

July 15, 2006

http://www.govexec.com/magazine/features/2006/07/justice-overwhelmed/22381/