Worth Reading Judges blast immigration rulings Cases rushed through review process result in erroneous asylum denials, flood circuits. CIRCUIT COURT REVIEW - National Law Journal October 24, 2005 By Pamela A. MacLean, Staff reporter A Russian mother rescued her newborn with cerebral palsy from a disposal bin of aborted fetal remains where it was thrown to die and fled with her child to the United States, but a Southern California immigration judge denied her family asylum last year. A man who fled China after the forced sterilization of his wife was called a "horrible father" concerned only with his wife's ability to reproduce by an immigration judge in Illinois. In April, a Los Angeles immigration judge refused asylum to a man serving in the Eritrean army and called him "nothing more than a common deserter" and "coward" despite the man's clear evidence of torture for 25 days by the Eritrean military. A government lawyer in Chicago argued in July that "assassination is not torture" in opposing asylum under the Torture Convention for an Albanian man threatened with death, in part for his role as a bodyguard for opposition political leaders. Federal appellate judges in circuits around the country are expressing mounting concern that cases rushed through an administrative review process have not only flooded some circuits with appeals but have also caused lives to get lost in the shuffle of streamlining. Restive federal judges have become more pointed in their critiques of immigration judges, with phrases like, "ignored the evidence" or "riven with error" or "astounding lapse in logic" or analysis that was "woefully inadequate." The criticism has been growing in the wake of a three-year-old program to speed up resolution of a 56,000-case backlog at the time of the Sept. 11, 2001, terror attacks. The program has worked for the U.S. Department of Justice (DOJ). The process cut DOJ's backlog of pending cases to 29,000 this year, according to Gregory Gagne, spokesman for the Executive Office of Immigration Review. "The biggest problem is the administrative appeal process has been eviscerated, if not wholly eliminated," said Lucas Guttentag, director of the American Civil Liberties Union national immigration project in Oakland, Calif. The current streamlining rules issued by former Attorney General John Ashcroft in February 2002 pushed cases through administrative reviews by DOJ's Board of Immigration Appeals (BIA) faster, but that landed more cases in federal appeals courts. Now at least two appellate courts are drowning in immigration appeals. The 9th Circuit, which usually sees half of all immigration appeals in the nation, has had a 560% increase in immigration cases since 2001, from roughly 900 in 2001 to 6,000 in 2004. Now they represent 45% of the court's entire annual docket of 15,700 appeals, according to Chief Judge Mary Schroeder. The smaller 2d Circuit has been buried under a 1,400% increase in these appeals since 2001. The situation in the 2d Circuit has grown so dire that the judges agreed in September to eliminate all oral arguments on asylum appeals and severely restrict the time to file briefs. This is a first for a circuit that prides itself on giving all litigants an opportunity for oral argument. "This is troublesome," said Stephen Yale-Loehr, who teaches immigration law at Cornell University. "No other category of cases is presumptively excluded from oral argument. I don't see why asylum should get short shrift." Yale-Loehr published an exhaustive study on the causes of the buildup of cases, along with two 2d Circuit practitioners, John Palmer and Elizabeth Cronin. And the appeals are not just affecting the court dockets. The crush of appeals has forced DOJ to farm out immigration cases for both briefs and oral arguments to its lawyers around the country who do not specialize in immigration law. While DOJ did not respond to a request for numbers, Matt Richmond, head of the Eastern District of Wisconsin U.S. attorney's civil division in Milwaukee, said his civil lawyers alone have pitched in on 15 immigration briefs. Under the old system, a foreigner seeking asylum or seeking to avoid expulsion from the United States on a number of grounds began by making a case before an administrative law judge who worked for DOJ. That decision could be appealed to three-judge panels of the BIA, also an entity of DOJ. Failing there, an alien's first independent judicial review came in the circuit courts. Few immigration cases get to the Supreme Court. Under the current streamlining rules, a single BIA judge can summarily dismiss an appeal without a written opinion. The overhaul also eliminated the right to de novo review, or a fresh look at the case, by a BIA judge. And under streamlining, Ashcroft cut the BIA from 23 judges to 11 in what some called a purge of judges who were more likely to dissent from deportation orders. Lory Rosenberg, one of the BIA judges who left, said staff attorneys didn't want to help with dissents because the pressure was on clearing the docket. "Nobody ever got rewarded for discovering an egregious asylum denial and preventing someone getting killed," she said. "What people were praised for was deporting people, essentially." The Executive Office for Immigration Review counters that streamlining has withstood every legal challenge to the restructuring. The process "greatly reduces the time that a respondent must wait for a decision, including those who merit relief from deportation," the agency said in response to criticism in 2004. DOJ's Gagne added that the claims of a purge are "without merit." He said, "Every BIA case receives careful consideration." Yale-Loehr's study found that lawyers and their clients, dissatisfied with BIA review, shifted their focus to the more sympathetic courts of appeal: That shift was triggered in part by the high volume of expulsion orders issued by the BIA. Judge Michael Daly Hawkins of the 9th Circuit and representatives of the 2d and 3d circuits met with top DOJ officials and the chief immigration judge in August to look for ways to ease the appeals pressure. Hawkins said he found immigration judges often share a single law clerk among 10 judges. "Those people are crushed by a lack of resources," he said. "The BIA has been effectively neutered by the streamlining," he added. "The frustrating thing is without this [immigration caseload], we would have no backlog" in the 9th Circuit. We would be current," he said. He and others encouraged DOJ to provide the resources and to find more cases to mediate or remand before they get to the appellate court, if it becomes clear the aliens are entitled to visas. He described the associate attorney general as "very responsive" during the August meeting. "They are legitimately trying to do something about the numbers." Hawkins recently took a government lawyer to task during oral argument for failing to negotiate a resolution for a man with an American wife and child who was clearly entitled to a visa. In a highly unusual order from the bench, the panel gave the government lawyer 30 days to mediate the case but not before a tongue-lashing from all three judges. Cases fall through the cracks But the fear that deserving cases may fall through the cracks, "that is the potential tragedy," said Karen Musalo, director of the Center for Gender and Refugee Studies at the University of California Hastings College of the Law in San Francisco. With the transcripts of immigration judges' hearings the only record to review and many aliens unable to afford lawyers, it may fall to law clerks to ferret out an important legal issue buried in a case, Musalo said. In the case of the Russian mother who rescued her disabled child then fled forced institutionalization and beatings later inflicted on the child, the appellate court held that persecution of the child can also be persecution of the parent. The appeals court reversed the denial of asylum in Tchoukhrova v. Gonzales, 404 F.3d 1181 (9th Cir. 2005). "It is shocking what happened to that infant," Musalo said, particularly under an administration that values respect for the sanctity of life. On the issue of torture, cases are fact- specific. If the torturer just wanted information, that may not qualify as a ground for asylum, but if he were motivated by religion or anti-trade unionism, those are important questions, Musalo said. "You have to look at the intent of the persecutor," she said. "These are cutting-edge issues in all the circuits," she said. The 9th Circuit overturned the deportation order for former Eritrean soldier Ukashu Nuru, saying the immigration judge misinterpreted clear evidence of torture. Nuru v. Gonzales, 404 F.3d 1207 (9th Cir. 2005). As for the other aliens, the appeals court sent the case of the fleeing Chinese father back to the immigration court for reconsideration-but this time by a new judge. Wang v. Gonzales, 423 F.3d 260 (7th Cir. 2005). Judge Richard Posner rejected the government's assertion that "assassination is not torture" in Comollari v. Ashcroft, 378 F.3d 964 (7th Cir. 2004). And now Congress has ratcheted up the difficulty of clearing appellate backlogs with passage of the REAL ID Act, which will eliminate the ability of jailed aliens to go first to federal district court to fight deportation. Those cases will go straight to the appellate courts, increasing the flow of cases. Representative Howard Berman, D-Calif., proposed a bill to eliminate the streamlining rules. He hopes to create an independent agency within DOJ with 14 judges to hear appeals in panels of three and restore de novo review. The only thing streamlining accomplished was shifting the backlog to circuit courts, he said. "That's not an acceptable response," he said. "Congress shouldn't ignore this problem." His Civil Liberties Restoration Act has languished in subcommittees since its only hearing in April, but he has been promised another hearing. Cornell's Yale-Loehr said the idea of creating an independent immigration review court has been around for years. The question is: "Politically, is there a will in Congress to do that?" TOP