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NEW YORK — An influential federal appeals judge has written a scathing criticism of immigration judges, including the Board of Immigration Appeals (BIA), over what he called poor work in cases coming to his and other circuits. In an opinion overturning the denials of two asylum requests, Judge Richard Posner said the cases show “a pattern of serious misapplications by the board and the immigration judges of elementary principles of adjudication.” Posner is a prolific writer of books on law and probably the best-known federal appellate judge. He sits on the Seventh Circuit U.S. Court of Appeals. His criticism follows a surge in appeals of BIA actions to the circuit courts. The Administrative Office of the U.S. Courts reported last fall that immigration appeals had risen 400 percent over a 12-month period ending March 2003. At the same time, the circuit courts had a backlog of about 5,000 of those appeals. Court officials dated the increase from Feb. 6, 2002, when Attorney General John Ashcroft announced changes designed to clear a board backlog of about 56,000 immigration cases by April 2003. A study of those changes by Dorsey & Whitney on behalf of the American Bar Association attributed the jump in appeals to “the dissatisfaction of aliens and their counsel with unexplained affirmances” by the board of immigration judges’ decisions. Courts, it reported, are finding “tragic” errors in some cases, errors resulting from little or no review by the BIA of the record below. The two cases before a three-judge panel that included Posner moved through the BIA before the 2002 procedural reforms. They were adjudicated under earlier “streamlining” procedures that let board members act alone in affirming certain decisions of immigration judges without written opinions. The 2002 reforms expanded the use of affirmances without opinion by single board members to nearly all cases, while preserving three-member panels for complex, precedential cases; eliminated de novo reviews of facts; imposed time limits for processing appeals; and reduced the board from 23 to 11 members. The board 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. The board had issued a summary affirmance in one of the cases before Posner, in which Peter Blagoev, a professional musician in Chicago, his wife and stepdaughter had been denied asylum after overstaying their visas from Bulgaria. Blagoev v. Ashcroft, No. 03-1115. With no BIA opinion to review, the panel turned to the immigration judge’s opinion, which, Posner wrote, contained “startling omissions,” a “striking non sequitur” and a “yawning void” in its analysis of whether the Blagoevs faced persecution in Bulgaria. In the other case, Posner said, the immigration judge made factual errors in deciding that Nourain Niam could be deported to Sudan. The board had affirmed the judge’s decision after finding that one error, the incorrect identification of the regime in power in Sudan during Niam’s 1990 arrest there, was “harmless.” Niam v. Ashcroft, No. 02-4292. Posner said the decision was “riven” with errors that the board had overlooked, “and so the board’s conclusion that the one error it did catch was harmless does not validate the immigration judge’s decision to deny Niam relief.” The Posner opinion shows how poor some immigration judges’ decision-making can be, said immigration law scholar T. Alexander Aleinikoff of Georgetown University Law Center. TROUBLING ‘REFORM’ “Any reform that makes full review less likely at the board level is troubling,” Aleinikoff said, referring to the 2002 changes. “One could be happier with a streamlined board proceeding if one had greater confidence in the way immigration judges do their work.” Justin Burton of Chicago’s Jeffrey A. Kruezelman & Associates, counsel to Blagoev, said that the judge in his case was one of the best, despite the mistakes. “These two cases just show the stress those judges are under,” said Burton. “It’s not the judges; it’s the system. I think with Ashcroft limiting what the board can do and pushing immigration judges to get cases off of their dockets, even more mistakes are going to be made. It’s just going to get worse.” Under the best circumstances, the board deals with a huge body of cases, said David Martin of the University of Virginia School of Law. And the judges have varying skills and talents, he said. They are under “real pressure to conclude their cases and move forward,” said Martin, which is why they tend to dictate their opinions at the end of the proceeding, unlike federal judges who may take weeks to consider and write an opinion. The Justice Department didn’t respond to a request for comment. A spokesman said last fall that “streamlining” was needed because the board had “become a bottleneck in the immigration court system and it undermined enforcement of U.S. immigration laws.” Posner remanded the two cases to the immigration service with the suggestion that they be assigned to different judges. Marcia Coyle is a reporter for The National Law Journal , a Recorder affiliate based in New York City.

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