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Monday, December 26, 2005

Law - Appeals Courts Criticize Immigration Judges' Handling of Asylum Cases

An Adam Liptak article in the NY Times today (also reprinted in a shortened version here in the Indianapolis Star) reports that:

Federal appeals court judges around the nation have repeatedly excoriated immigration judges this year for what they call a pattern of biased and incoherent decisions in asylum cases.

In one decision last month, Richard A. Posner, a prominent and relatively conservative federal appeals court judge in Chicago, concluded that "the adjudication of these cases at the administrative level has fallen below the minimum standards of legal justice."

That ruling was reported in this ILB entry - the case was Benslimane v. Gonzales.

More from the Liptak article:

[C]riticism can be very sharp, particularly given the temperate language that is the norm in the federal appellate courts.

In the Philadelphia decision in September, Judge Julio M. Fuentes of the United States Court of Appeals for the Third Circuit had this to say about Annie S. Garcy, an immigration judge, or I.J., in Newark: "The tone, the tenor, the disparagement, and the sarcasm of the I.J. seem more appropriate to a court television show than a federal court proceeding." * * *

In another decision, Judge Marsha S. Berzon of the United States Court of Appeals for the Ninth Circuit, in San Francisco, said a decision by Nathan W. Gordon, an immigration judge, was "literally incomprehensible," "incoherent" and "indecipherable." A crucial sentence in Judge Gordon's decision, she said, "defies parsing under ordinary rules of English grammar." * * *

Mary M. Schroeder, the chief judge of the Ninth Circuit, which hears almost half of all immigration appeals, said the current system was "woefully inadequate."

Immigration judges, she said, "are very unevenly qualified, and they work under very bad conditions."

The people who appear before immigration judges often do not speak English, and their cases often turn in part on changing political and social conditions around the world. In a decision in March, Judge Posner wrote that immigration judges' "lack of familiarity with relevant foreign cultures" was "disturbing."

Judge Slavin, who sits in Miami, disagreed, saying she and her colleagues often had a sophisticated understanding of conditions in the most relevant countries, which are China for immigration judges in New York and Philadelphia; Eastern Europe for those in Chicago; Haiti, Columbia and Venezuela for those in Miami; and Central and South America for those in California.

"I know more about Haitian politics than the people coming before me," Judge Slavin said. But she acknowledged both the difficulty and the importance of her work.

"Immigration law can be life-or-death decisions in terms of whether you're going to send someone back to a place where they may be killed," Judge Slavin said. "I have over 1,000 cases on my docket. Most of us do about four decisions a day. In Texas, on the border, you might get 10 a day."

Judges at the top and bottom of the system blame the administrative body between them, the Board of Immigration Appeals, for the surge in appeals and the mixed quality of the decisions reaching the federal appeals courts. The board is meant to act as a filter, correcting erroneous or intemperate decisions from the immigration judges and providing general guidance. The losing party can appeal the board's decision to the federal courts.

But the board largely stopped reviewing immigration cases in a meaningful way after it was restructured by Mr. Ashcroft in 2002, several judges said.

Mr. Ashcroft reduced the number of judges on the board to 11 from 23. "They just hacked off all the liberals is basically what they did," said Ms. Rosenberg, who served on the board from 1995 to 2002.

Mr. Ashcroft also expanded the number of appeals heard by a single board member and encouraged the use of one-word affirmances in appropriate cases.

The goal of the changes, Mr. Ashcroft said, was streamlining. The board had a backlog of more than 56,000 cases, which fell to 32,000 by September 2004.

At a conference at New York Law School in September, John M. Walker Jr., the chief judge of the United States Court of Appeals for the Second Circuit, in New York, said the changes at the board level served to transfer its backlog to his court and other federal appeals courts.

"He just moved the problem from one court to another court," Judge Walker said of Mr. Ashcroft.

This criticism of immigration judges is not new, however. Here is a quote from the beginning of a report in Siskind's Immigration Bulletin:
The San Jose Mercury News recently [it was in 2001] released the results of its study of asylum adjudications. The study, conducted with information gathered through a Freedom of Information Request, reveals what many instinctively knew about the asylum process – that whether a person is granted asylum depends less on the merits of the person’s case and more on the judge before whom they present their case. The paper examined 176,465 cases that came before the 219 Immigration Judges between 1995 and 1999.

Some judges granted asylum in half of the cases they heard, while other judges granted asylum in less than two percent of cases. Some judges even routinely deny asylum to applicants from countries such as Bosnia and Somalia, where conditions mean that most applicants are granted asylum. The INS does not evaluate judges on the basis of the rate at which they grant asylum, and do not keep records on how many of their decision are eventually overturned.

According to the Mercury News analysis, there was one factor that was key in determining how an Immigration Judge would rule according their legal background. Judges who worked in the private sector before being appointed granted asylum at a 50 percent higher rate than judges who had previously worked for the government. There are twice as many former government lawyers working as Immigration Judges as former private sector attorneys.

The Mercury News 10-part series, "Uncertain Refuge" by Frederic N. Tulsky, won a number of awards. I have, however, been unable to locate it online.

Posted by Marcia Oddi on December 26, 2005 07:27 AM
Posted to General Law Related | Ind. (7th Cir.) Decisions