Federal judge Richard Posner, one of the most widely cited appellate judges in the United States, blasted the nation's asylum adjudication system as "inadequate" and offered a number of remedies for it in a speech Monday.
Posner, who sits on the 7th U.S. Circuit Court of Appeals, said administrative law judges who serve in the immigration courts are ill-trained and insufficient in number. He also said the bar that represents applicants doesn't have enough qualified lawyers, and that the Board of Immigration Appeals, which has 11 members, is too small. In recent years, Posner has offered glimpses of his dissatisfaction in opinions from the bench as well.
"This is a system of adjudication that is clearly inadequate," Posner said in the address to the Chicago Bar Association.
Immigration courts overseen by an administrative law judge give initial hearings on the applications for asylum in the U.S. by people who claim they will be subjected to torture or political persecution if returned to their country of origin. The decisions can be appealed to the board and, if necessary, subsequently to the federal circuit courts.
Law school studies have shown a wide variation across the country among the federal circuit courts in terms of how many decisions are reversed, raising concern that inconsistent considerations are being applied and giving reason for a judicial conference on the matter, Posner said.
The board is in the process of increasing its size to 15 members, said Elaine Komis, a spokeswoman for the Executive Office for Immigration Review, an agency in the Department of Justice that oversees the board and the courts. In addition, the office is "very focused" on increasing resources for the immigration courts and has added 11 judges so far this year, will add another 27 in coming months and has added law clerks as well, she said.
The agency is also requiring the 54 immigration courts to abandon local rules and follow a new uniform manual for all courts as of this July, she said.
Judges should be better trained, especially with respect to the international issues they may be asked to consider; more law schools should offer clinics to help improve the quality of the bar; the Board of Immigration Appeals should add members; and judges should hold a conference to exchange ideas on the state of the system, he said.
The immigration court judges rely too much on information from the U.S. Department of State in educating themselves about international issues and are poorly equipped to understand the body language and facts delivered by the applicant, often through an interpreter, he said. All too often they can end up relying on their personal values and biases, he said.
"There's simply a problem with the immigration judges having the knowledge that they need," Posner said. In addition, the board "does not have the resources to give more than a perfunctory review," he said.
The immigration courts handled nearly 55,000 asylum cases in fiscal year 2007, according to the U.S. Department of Justice's Executive Office for Immigration Review. An official with the DOJ was not available for comment at press time.