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Washington�The good news, says the Department of Justice, is that tough action is clearing away a huge backlog of immigration appeals. The bad news, say the federal courts, is that the backlog has shifted to them. The Administrative Office of the U.S. Courts�the management arm of the federal judiciary�reported last month that circuit court appeals from decisions of the Bureau of Immigration Appeals (BIA) surged by nearly 400% over a 12-month period ending in March. Court officials said they don’t expect the numbers to return to normal any time soon. The appeals generally come from aliens who failed to win relief from deportation orders in their petitions to the BIA. Court officials track the beginning of the unprecedented increase in their appeals to Feb. 6, 2002, when Attorney General John Ashcroft announced procedural reforms designed to clear a BIA backlog of about 56,000 cases by April 2003. A month later, all courts of appeals began to see the fallout from a near-doubling of production by the BIA. In March 2002, appeals from BIA decisions rose by 48%; in April 2002, 73%. There is currently a backlog of more than 5,000 appeals. Hardest hit have been the 2d and 9th circuits. In the 9th, monthly appeals filed rose 385% from February 2002 to February 2003. The 2d Circuit saw a 781% increase in the same period. The increased filings come at a difficult time for the judiciary. It is bracing for severe budget constraints proposed in Congress. If the courts are feeling overwhelmed by the surge of immigration appeals, so are government attorneys. They are seeking additional time to produce records and consenting to temporary stays of deportation, said some court officials and lawyers for aliens. “The government is also swamped,” said 2d Circuit Clerk of Court Roseann MacKechnie. “They don’t ask for stays but they agree not to have the deportation go through. It’s a measure to keep things manageable.” Court officials’ assessment of the reason behind the surge in appeals was buttressed a week ago by a study of Ashcroft’s procedural reforms. The study was done pro bono by about 50 lawyers and legal assistants at Minneapolis’ Dorsey & Whitney, which has an extremely small immigration practice. The study was requested by the American Bar Association’s Commission on Immigration Policy, Practice and Pro Bono. The study attributes the jump in court appeals not only to increased production at the BIA but also to “the dissatisfaction of aliens and their counsel with unexplained affirmances” by the BIA of immigration judges’ decisions. Courts, it reported, are finding “tragic” errors in some cases, resulting from little or no review by the BIA of the record below. The study is likely to become additional fodder in an intense legal and political debate between the Justice Department (which called the study “baseless”) and the immigration bar over administrative handling of aliens’ cases. The appeals bureau The quasi-judicial BIA is the chief administrative law body for immigration law. Its members are appointed by and serve at the pleasure of the attorney general. Its purposes are to decide individual appeals by aliens found to be deportable by immigration judges and to issue precedential decisions to guide immigration judges, aliens and others within the immigration system. The backlog has been at least a decade in the making. It is the result of a combination of factors, according to the Dorsey report and immigration scholars: Record U.S. immigration in the 1990s, resulting in a huge increase in the number of expulsion hearings. A growing number of bottom-level immigration decisions, stemming partly from a 300% increase in the number of immigration judges (from 75 in 1987 to more than 220 today). This has led to a 50% increase in the number of appeals. Nine new immigration statutes since 1986. The BIA historically sat in three-member panels to decide appeals. It had de novo review of facts and law, and it issued written opinions with its decisions. In 1999, the Justice Department implemented “streamlining rules” in an attempt to deal with the BIA’s caseload and backlog. The rules allowed members of the board to act alone in affirming certain decisions of immigration judges without written opinions. The board’s chair was authorized to designate categories of cases for summary affirmances. In December 2001, an independent audit by Arthur Andersen reported that the streamlining rules were working and recommended continuing them. But in February, Ashcroft proposed new “procedural reforms” that ignited controversy among immigration scholars, litigators and civil rights groups. The reforms-challenged unsuccessfully as arbitrary and capricious rule-making in federal district court-basically expand the use of affirmances without opinion by single board members to nearly all cases, while preserving three-member panels for complex, precedential cases; eliminate de novo review of facts; impose time limits for processing appeals; and reduce the size of the board from 23 to 11 members. “The BIA needed a complete overhaul,” said Justice Department spokesman Jorge Martinez. “It has become a bottleneck in the immigration court system and it undermined enforcement of U.S. immigration laws. At the time of the reforms, more than 10,000 cases had been pending for more than three years. The board did not provide effective guidance on complex immigration issues to the INS or the aliens themselves.” Critics of the reforms had two major concerns. First, that reducing the board’s size was illogical considering its workload. When five board members were asked to leave, critics said, they were those who tended to be pro-immigrant. Second, that affirming more decisions without opinions and eliminating de novo review opened the door to serious errors going uncorrected. “I supported the initial streamlining, but this particular set of changes just went too far,” said David Martin of the University of Virginia School of Law and general counsel to the Immigration and Naturalization Service (INS) from 1995 to 1998. “It had the other impact of removing some of the board members, and there seemed like a fairly distinct pattern to those removals.” The ABA panel wanted “a neutral analysis of what was happening on the ground” as a result of the changes, said its vice chairman, Ed Yohnka. It turned to Dorsey because of its commitment to pro bono work and its capacity to do a detailed caseload analysis, he said. Besides analyzing the surge of appeals at the circuit courts, the Dorsey study reported other startling statistics. Before the spring of 2002, the BIA was reversing one in four appeals-wins for aliens. Since then, reversals have dropped to one in 10. Through the end of 2001, approximately 10% of BIA decisions were summary affirmances. By March 2002, more than 50% were summary affirmances. “We had no ax to grind and no preconceived notions,” said Dorsey partner Paul Klaas, who led the study. Klaas called the data on the outcome of appeals at the BIA “striking.” Hasty review Immigration scholar T. Alexander Aleinikoff of Georgetown University Law Center said the decrease in reversals suggests that many of the circuit appeals are meritorious-cases that before the “reforms” would have been reversed. “You are actually having meritorious cases that don’t get a full hearing now until they get to the court of appeals,” he said. “As a matter of administrative law, that makes no sense. You want those cases reversed early on.” The study found that affirmances without opinions, the reduction in board size and the surge in circuit appeals present formidable legal and practical problems. “The problem with affirmance without opinion is the circuit courts now can’t look to a BIA opinion to determine why the administrative agency did what it did,” Klaas said. “They have to dig down to the immigration judge’s opinion. So, in addition to the number of appeals coming now to the circuit courts, they are faced with more challenging records.” Some circuit courts are sending cases back to the BIA with stinging comments that it did not do what it should have done. The Dorsey report gives five “illustrative” instances of remands in which circuit courts found clear errors in decisions that were summarily affirmed by the BIA. “In a lot of these cases, it’s pretty clear the board member did not look at the case or properly affirm,” said Nadine Wettstein, director of the Legal Action Center of the American Immigration Lawyers Foundation. “We know of at least 10 situations where the government itself has said a case shouldn’t be in the circuit court. Instead of filing a brief, the government has asked for remand.” Dorsey report criticized Affirmance without opinion is really the big issue in the BIA controversy, said Michael Hethmon, staff counsel to the Federation for Immigration Reform, which supports the Ashcroft reforms. “This report was produced for a special interest that benefits economically,” said Hethmon. He noted that a number of circuits have reviewed the constitutionality of summary affirmance by the BIA and have upheld it. “It shifts much more responsibility to the alien’s counsel to develop a competent record early on in the process,” he said. “Quite frankly, the idea of litigating in a trial-type process has not been a distinctive feature of immigration practice as it has in other areas. Changing times are requiring the immigration bar to develop a better set of litigation skills that will enable them to prepare a conclusively convincing defense of their client in the original proceeding.” Georgetown’s Aleinikoff countered that, regardless of one’s politics or immigration stance, an appellate body that acts without writing opinions is “just a bad system.” If one-third of the dockets of circuit courts is immigration appeals without formal opinions from the BIA, he said, “The courts of appeals aren’t going to stand for it in time.” For now, the courts are simply trying to cope. The administrative office has been talking to the Justice Department to find ways to ensure that administrative records in the appeals are filed promptly so the courts can act on the appeals. In the 2d Circuit, the court is giving the government extra time to produce records and is using mediation of blocks of cases where appropriate, MacKechnie said. Similar efforts are under way in the 9th Circuit. The ABA’s Yohnka said the huge influx of appeals “has to be sending a clear message that there are problems. “We hope the responsible parties will read the report and see it as a clarion call for change,” he said. “Right now this process combined with the government’s new authority to detain people for longer periods of time clearly are resulting in individuals being in detention for far longer than is necessary to resolve their status questions and to advance security and safety here in the United States.” Coyle’s e-mail address is [email protected].

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