Courts overwhelmed by immigration cases

 Fewer judges, hasty decisions and drawn-out appeals are creating an unmanageable backlog.

Published May 29, 2006

MIAMI — In a small, downtown courtroom overlooking the Miami River, Kenny Rivera, 20, nervously awaits a long-delayed immigration hearing.

 Three years have passed since he applied for asylum, fearing he would be killed by a notorious street gang if he were forced to return to his native Honduras.

This kind of delay is not unusual at Miami’s immigration court, which is one of the nation’s busiest — and most backlogged.

As the United States tries to secure the border with Mexico, the nation’s overburdened immigration courts are bursting at the seams.

The nation’s 225 immigration judges, who are employees of the Justice Department, handled more than 352,000 matters last year (up 23 percent from 2004), according to the department’s Executive Office for Immigration Review, or EOIR, which runs 53 courts nationally.

Efforts to speed up the process have created unexpected problems.

The backlog has spilled over into the federal courts. Complaints of judicial misconduct and anti-immigrant bias have resulted in a rash of appeals to the nation’s 11 circuit courts, prompting some federal appellate judges to rebuke lower-ranking colleagues on the immigration bench.

“Time and again, we have cautioned immigration judges against making intemperate or humiliating remarks during immigration proceedings,” railed Philadelphia Circuit Judge Julio M. Fuentes in a ruling last September .

“The tone, the tenor, the disparagement and the sarcasm” of the immigration judge “seem more appropriate to a court television show than a federal court proceeding,” he wrote.

After complaints by federal judges began piling up last year, Attorney General Alberto Gonzales ordered a comprehensive review of U.S. immigration courts. In a sharply worded memo in January, Gonzales, whose grandparents were Mexican immigrants, chastised immigration judges for “intemperate or even abusive” conduct toward asylum-seekers.

“I won’t deny there are some judges with a problem out there,” said Denise Slavin, president of the National Association of Immigration Judges. “But I don’t think we should all be tainted by the same brush.”

A 10-year immigration court veteran in Miami, Slavin said she hopes the Justice Department’s review spotlights the tough work conditions immigration judges face.

“We are so low on funds. We haven’t had a break off the bench for three years,” she said. “We have had no training conferences, no cultural sensitivity training.”

Funding is so poor, Miami’s 20 immigration court judges have to share three law clerks. The court has no bailiff or stenographer.
Slavin and others say the problems stem in part from changes introduced in 2002 by then-Attorney General John Ashcroft.

Instead of funding improvements at the front end of the process, Ashcroft overhauled the appeals process, creating a ripple effect of unintended consequences.

Ashcroft slashed the number of judges on the Board of Immigration Appeals from 23 to 11. Ashcroft also expanded an existing practice known as “streamlining,” whereby appeals can be heard by a single board member. BIA judges were instructed not to write lengthy rulings when one-word denials would suffice.

“It was a purge. They brought in people who have all worked from one side of the issue, the government perspective,” said immigration attorney Lory Rosenberg, who served on the board from 1995 to 2002 and left just before the changes took effect.

Case completions have since jumped 65 percent from 26,000 in 2001 to almost 43,000 in 2005. As a result, the backlog of appeals has also shrunk from 56,000 to 29,500.

But critics say streamlining has failed to speed up the overall appeals process. It simply moved the problem from one court system to another.
In the past five years, federal appellate courts have been swamped by a six-fold increase in immigration cases.

Immigration cases accounted for about 17 percent of all federal appeals cases last year, up from just 3 percent in 2001. In New York and California, the busiest immigration districts, they accounted for nearly 40 percent.

The 11th U.S. Circuit Court of Appeals in Atlanta, which covers Florida, had 621 immigration-related appeals in 2005, compared with only 67 in 2001, an increase of 827 percent.

The Justice Department says foreigners file frivolous appeals to delay deportation.

“The surge in federal appeals is not related to the board’s increased number of decisions but the rate of appeal,” the EOIR said in a statement last January.

The number of appeals has also overstretched the Justice Department itself.

It has had to reassign attorneys, even from its environmental division, to help handle the immigrant case load.

Critics say the changes at the appeals board have fueled a rubber-stamp mentality that allows controversial rulings to stand.

In one decision last year, Richard A. Posner, a federal appeals court judge in Chicago, wrote that the board often affirmed “either with no opinion or with a very short, unhelpful, boilerplate opinion,” even when the immigration judge had committed “manifest errors of fact and logic.” In one case last year, the board was overturned after an immigration judge ignored evidence that the petitioner had been   tortured.

“I have been told by (BIA) staff members that they are really only given 15 minutes to review the record and make a decision. That is just ridiculous,” said Ira Kurzban, a Miami immigration lawyer.

Immigration judges aren’t happy either.

“Our case loads are increasing,  and at the same time we are being asked to render better decisions,” Slavin said. “Before (2002), the (appeals) board would clean it up. Now we are expected to render a decision that is expected to be a final verdict.”

Under the Justice Department’s “case completion guidelines,” immigration judges get very little time to review their cases, with only half a day a week set aside to review files and write motions.

Haste isn’t the only problem, critics say.

The American Immigration Lawyers Association lists on its Web site some 35 recent examples of cases overturned by federal appeals courts because of rude or insensitive immigration judges.

In one case, a Newark, N.J.,  judge ordered a 34-year-old asylum-seeker, Qun Wang, to be deported back to China despite evidence of persecution by family planning officials  who forcibly sterilized his wife.

“He’s a horrible father as far as the court’s concerned,” Judge Annie S. Garcy ruled, saying Wang was “obsessed” with having a son and was guilty of “ignoring” his disabled daughter.

Character judgments have no place in immigration hearings, federal Circuit Judge Fuentes ruled, before recommending that the case be reheard by a different immigration judge.

Judges in Florida’s four courts at Bradenton, Orlando, Miami and Krome (outside Miami) have escaped criticism from the appellate bench.

Immigration lawyers say one of their biggest concerns is the uneven way in which immigration cases are handled around the country.

Because immigration courts are part of the executive branch of government, rules are different from federal courts.

“Federal rules of evidence don’t apply,” said John Lund, a Tampa lawyer. “It’s very informal. There are no strict standards. It varies from court to court and judge to judge.”

The immigration lawyers association has recommended several fixes, including tougher standards for recruiting immigration judges and going back to three-judge panels at the Board of Immigration Appeals. Congress is also considering a proposal to shift immigration appeals from regional appeals courts to new, specialist judges in Washington, D.C.

The attorney general’s review is expected out any day.

Meanwhile, Rivera waits for his case to be decided.

He is not in detention and is allowed to work. His hearing last month before an immigration judge was continued after some files went missing.

A second hearing May 18 was continued after the judge offered attorneys more time to substantiate documents.

Even if the judge orders Rivera deported at his hearing June 21, his appeal could take two years.

Information from the New York Times was used in this report. David Adams can be reached at dadams@sptimes.com.