Monday, December 26, 2005

Immigration system in the U.S. is biased and incoherent

The New York Times has an article today by Adam Liptak ["Courts Criticize Judges' Handling of Asylum Cases," December 26, 2005 - backup link here] that is scathing in its criticism of the courts' handling of immigration cases.

Lory Diana Rosenberg, "a former judge on the administrative body within the Justice Department that reviews decisions from immigration judges before they reach the federal appeals courts" characterized the behavior of immigration judges as "a pattern of unfettered misuse of authority."

The article is peppered by the obligatory quotes defending the quality of the system, most or all of which we can safely discount as meaningless due to the obvious self interest involved. It should, however, be emphasized that blame should clearly be placed on the systemic roots of the problem and not on individual judges who are undoubtedly overworked.

Some choice excerpts below:

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."

Similarly, the federal appeals court in Philadelphia said in September that it had "time and time again" been forced to rebuke immigration judges for their "intemperate and humiliating remarks." Citing cases from around the country, the court wrote of "a disturbing pattern" of misconduct in immigration rulings that sent people back to countries where they had said they would face persecution.

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."

"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.


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