Panel Discusses Challenges in Immigration Court System

March 28, 2008

Immigration courts have eliminated a once-hefty backlog, but in recent years the number of cases sent to a federal appeals court has grown substantially, according to a panel of experts who met at the Law School on March 12.

(L to R) Kevin Rooney, former director of the Executive Office of Immigration Review; David L. Neal, Chief Immigration Judge; Juan P. Osuna, acting chairman of the Board of Immigration Appeals; and moderator, Professor David Martin.
(L to R) Kevin Rooney, former director of the Executive Office of Immigration Review; David L. Neal, Chief Immigration Judge; Juan P. Osuna, acting chairman of the Board of Immigration Appeals; and moderator, Prof. David Martin.

During a discussion moderated by Professor David Martin and sponsored by the Immigration Law Program, the panelists explored the challenges these cases present and the ways immigration courts are coping.

Juan P. Osuna, acting chairman of the Board of Immigration Appeals (BIA), explained the trial and appellate system for immigration cases.

"The Department of Homeland Security — brings formal charges against an immigrant — and places them in removal [deportation] proceedings," he said.

Those who appeal immigration judges' decisions take their cases to the BIA, which is composed of eight appeals court judges sitting in Falls Church, Va., Osuna said.

However, such appeals are infrequent. Almost 90 percent of immigration judges' decisions are not appealed, he said.

"They are decided by the immigration court judges and that's where they end," Osuna said.

In 2007, immigration judges handled almost 350,000 cases, while the BIA issued about 35,000 decisions.

In court, immigration judges deal daily with respondents struggling with challenges such as the language barrier, inadequate representation, or cultural differences, according to Chief Immigration Judge David L. Neal.

Since most immigrants before the court don't speak English, the court has to work through interpreters. In about two-thirds of the cases, the respondents represent themselves, and the other third may not have the best representation available, Neal said.

Though Fifth Amendment due process protection applies in these cases, the Sixth Amendment right to counsel does not, Osuna said. However, respondents who can afford an attorney may have one.

Neal also said nearly every case involves sensitive cultural issues. An asylum applicant, for example, may find it difficult to testify about past suffering, particularly rape or torture, Neal said.

An immigration court in action is "not very pretty," the judge said.

"We're administrative tribunals that are part of the executive branch…not the judiciary, not part of the federal court system," Neal said. "I like to describe our courts as 'traffic court with Supreme Court implications.'"

Because of the volume of cases, immigration judges usually pronounce their decisions orally shortly after they hear all the evidence, he said. Those decisions are recorded into the tape of the hearing.

The BIA's caseload grew dramatically during the 1990s.

"In 1992, the board received 12,500 cases. By 1999 that number went well over 40,000 cases a year," Osuna said. Despite increases in the budget and the number of judges, the caseload continued to grow. "By 2000 there was a backlog of pending cases at the BIA numbering 60,000."

The process was streamlined beginning in 2000, Osuna said, with a second round in 2002. The changes included a shift from three-member panels to single-member adjudications in most cases, and a new review standard, which requires deferring to the immigration judge on factual findings if there was no clear error. The backlog was gone by 2003.

Today, cases move quickly at the appellate level, Osuna said. While it used to take four or five years for a case to be decided, it's now usually eight to 18 months. Even so, the number of BIA decisions appealed to federal court rose over the past decade from an historic average of 5 percent to 30 percent . That prompted further streamlining reforms in 2006 by former Attorney General Alberto Gonzales, which included technological changes, increased funding, an increase in the number of staff attorneys, and pro bono initiatives.

"For the first time," Osuna said, "over the past year we've seen a decrease in petitions for review filed in federal court from BIA decisions."

But outside factors can also strain the system. When Congress passes tougher immigration laws and creates more enforcement personnel, a bulge of cases enters the system. However, legislators aren't usually as quick to increase funding, staffing, and other resources to help the courts cope with the inevitable increase, Osuna said.

The political process also affects the way the courts function. Kevin Rooney, former director of the Executive Office of Immigration Review and now an adjunct professor at the Law School, oversaw both the BIA and the immigration courts from late in the Clinton administration until 2007.

"When the Clinton administration began — there were increases in funding for the Border Patrol, detention, and deportation that resulted in a big backlog, and delayed cases being resolved.When the Bush administration came in, that lengthy process was seen as a negative and they sought to speed up the process," Rooney said.

Once streamlining reduced the backlog and shortened the time it took to adjudicate their cases, respondents began appealing BIA judgments to the U.S. Court of Appeals.

Rooney said the appeals courts were unprepared for the massive influx of immigration cases. Streamlining required the BIA to uphold many immigration judge decisions without issuing their own opinion. As a result, the record for the federal court often consisted only of the immigration judge's transcribed oral decision. When the federal appeals court judges looked at these decisions, they were often appalled, he said.

"These were those off-the-cuff, 10-minute summaries," Rooney said. While most of the decisions were well written, "Other times you could see that the judge had been sitting in that courtroom all day."

The attorney general's 2006 reforms led to both increased immigration law training for federal appeals court judges and to clearer decisions from immigration and BIA judges, Rooney said.

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