Two federal appeals judges and the chair of the Board of Immigration Appeal painted a bleak picture on Sunday of a growing crisis in the adjudication of immigration cases at the administrative and appeals levels.

Speaking at a panel discussion before an audience at the American Bar Association’s annual meeting in New York City, 2nd U.S. Circuit Court of Appeals Judge Robert Katzmann and 9th U.S. Circuit Court of Appeals Judge M. Margaret McKeown described a crisis fueled by increased enforcement and detention, bad or nonexistent lawyering for immigrants facing deportation, as well as overwhelmed immigration judges and appeal judges. “It’s like a tsunami,” McKeown said.

At the 2nd Circuit, Katzmann said, immigration cases six years ago amounted to only 4 percent of the docket, but now comprise 39 per cent of the court’s cases. In many of the cases, the record is inadequate and shows signs of incompetent representation. “By the time we get the case, it’s often too late,” said Katzmann. “It’s often hard to get a good night’s sleep when you feel the lawyering in a case has not been good.”

The surge in cases began, panelists said, after then-Attorney General John Ashcroft streamlined the removal process in 2002. That, McKeown said, had the effect of giving the attorney general “a clean plate and a clean desk,” but transferred the burden and the caseload to the appeals courts. Some of the streamlining has since been changed after complaints from federal judges.

The nation’s 230 immigration judges have been swamped by nearly 300,000 new cases a year, and they have inadequate resources to keep up, said Juan Osuna, acting chair of the immigration appeals board. As an example, Osuna said, there is only one law clerk for every six judges. When he joined the board, in 2000, Osuna said, the biggest shock was the “bad lawyering” immigrants up for removal had to put up with. “Sometimes they are better off pro se.”

Former New York Times reporter Linda Greenhouse moderated the panel, also decrying the “huge and growing gap in the rule of law.” She cited the recent internal Justice Department report that described the politicization of the way immigration judges were appointed in recent years. Osuna said that what the report described was “disgraceful,” though he said some of the judges who were appointed as political favors have turned out to be good judges.

All three panelists called for more training and outreach and pro bono volunteers to improve legal representation for immigrants, and programs are already under way in both the 2nd and 9th circuits. Greater scrutiny of misconduct by immigration lawyers and judges has also begun. Osuna said that so far this year, 40 cases have been referred to the chief immigration judge for the investigation of possible misconduct by judges.

First reported in The BLT: The Blog of Legal Times