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The Ninth Circuit U.S. Court of Appeals on Monday turned aside a constitutional challenge to accelerated deportation proceedings that have flooded the court with appeals. The 2-1 decision leaves in place procedures the Immigration and Naturalization Service adopted in 1999 to respond to a wave of immigration cases. Under the new rules, a single judge from the Board of Immigration Appeals is allowed to summarily affirm deportation orders in clear-cut cases — speeding more immigration cases to the Ninth Circuit. In rejecting the due process claim, Judge M. Margaret McKeown wrote, “We recognize that cases, by their very nature, are not manifestations of abstract legal principles. Still, not every case is novel in the eyes of the law.” She was joined by Judge Barry Silverman. The majority also wrote that under 1996 immigrations reforms, the Ninth Circuit has no jurisdiction to review decisions to streamline an individual’s case. Judge Thomas Nelson dissented on that point. Streamlined cases receive summary treatment at the BIA — a simple confirmation that the result (though not necessarily the reasoning) below is affirmed. Since the INS adopted the accelerated procedures to help cope with the backlog of cases, the number of immigration appeals at the Ninth Circuit has quickly gone up, resulting in a crushing caseload for staff and judges there. It’s not entirely clear how Monday’s decision will affect the court’s caseload, but it appears likely that it will lessen the burden. The panel held that decisions to streamline cases are discretionary, and the 1996 reforms eliminated federal court review of discretionary decisions of the INS (now the Bureau of Citizenship and Immigration Services). “If this decision were to stand, [the Ninth Circuit] might be getting rid of a large number of these cases,” said Nadine Wettstein, head of the American Immigration Lawyers Association’s Legal Action Center. AILA belatedly filed an amicus curiae brief when it learned the issue was under consideration. Wettstein said she has asked the court to take the issue straight to an en banc hearing in nearly a dozen cases. She said AILA will also consider supporting a bid to take Carriche v. Ashcroft, 03 C.D.O.S. 6130, en banc. “This is not the end of the road by any means. It’s one more challenge, among many, for noncitizens in court,” Wettstein said. Wettstein was also critical of the reasoning in the decision. “We think they’re wrong on a lot of the stuff, and not just that we disagree with the decision,” she said. The number of immigration appeals contributed directly to a dramatic jump in the Ninth Circuit’s caseload, at one point clocking in at about 100 per week. The size and location of the circuit make it one of the courts that is most affected by the new procedures. Judges groused about the skyrocketing caseload. Chief Judge Mary Schroeder even teamed up with the chief judge of the Second Circuit U.S. Court of Appeals in New York, another heavily impacted circuit, to find a solution. In a footnote, McKeown hinted at the court’s displeasure with its exploding immigration docket. “Although a stated goal of the new regulation is to eliminate the BIA’s backlog, we observe that the practical result may be to shift the backlog directly to the courts of appeal,” she wrote.

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