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Washington—Swamped by immigration appeals to the federal circuits, the Office of Immigration Litigation within the U.S. Department of Justice is “farming out” several hundred cases a month to lawyers within the department’s other divisions and U.S. attorney’s offices throughout the country. The extra legal help comes as a result of a directive issued late last year by Deputy Attorney General James Comey. The Office of Immigration Litigation, which handles appeals from decisions by the Bureau of Immigration Appeals, is “overwhelmed,” said Department of Justice (DOJ) spokesman Charles Miller. The office has seen an increase in appeals from 5% in 2001 to 25%, he said. Miller said each DOJ division decides the lawyer assignments based on how many cases it decides to take. Immigration administrative agency appeals come at the end of a very lengthy legal process. An alien may file an appeal with the federal courts after his or her case has been prosecuted by the Department of Homeland Security, reviewed and decided by an immigration judge and appealed to the Board of Immigration Appeals (BIA). A larger problem The increased workload in the Office of Immigration Litigation is just another piece of a problem about which the federal courts rang alarm bells more than a year ago. [NLJ, 10-27-03.] The Administrative Office of the U.S. Courts-the management arm of the federal judiciary-reported this month that in the last four years, court appeals from decisions made by the BIA surged upward by 515%. Hardest hit were the 9th and 2d U.S. circuit courts of appeals: In the 9th Circuit, the 954 BIA appeals in fiscal year 2001 increased to 5,368 appeals in fiscal year 2004, a 463% percent increase; in the 2d Circuit, filings increased from 170 in fiscal year 2001 to 2,632 in fiscal year 2004, a 1,448% increase. The appeals flooding the federal courts and overwhelming the Office of Immigration Litigation generally come from aliens who failed to win relief from deportation orders in their petitions to the BIA. Court officials tracked the beginning of the unprecedented increase in those appeals to Feb. 6, 2002, when former Attorney General John Ashcroft announced procedural reforms designed to clear a BIA backlog of about 56,000 immigration cases by April 2003. The reforms-challenged unsuccessfully as arbitrary and capricious rule-making in federal district court-basically 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 review of facts; imposed time limits for processing appeals; and reduced the size of the board from 23 to 11 members. A near-doubling of production by the BIA and dissatisfaction by aliens and their counsel with unexplained affirmances of deportation orders were responsible for the surge in appeals, according to court officials, immigration lawyers and others in the system. Their assessment was buttressed by a 2003 study of the Ashcroft reforms conducted pro bono by Dorsey & Whitney for the American Bar Association’s Commission on Immigration Policy, Practice and Pro Bono. The Dorsey study also found: Before the spring of 2002, the BIA was reversing one in four appeals-victories for aliens-but since then, reversals 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. “The problem is the BIA is not doing its job adequately, which is creating problems for the Justice Department and the courts,” said Nadine Wettstein, director of the American Immigration Law Foundation Legal Action Center. “We’ve seen these cases where lawyers with no experience in immigration, which is a very technical area of the law, raise issues that are bogus and courts have to deal with them. And sometimes people on the other side are not represented.” Although the DOJ’s antitrust or tax attorneys may be able to handle the appeals, Wettstein said, “It does take some level of knowledge, experience and digging into the record because the statute is not self-explanatory and the laws are very difficult. It’s very daunting to try to pick up these cases. I sympathize.” The DOJ criticized the Dorsey study as “baseless” at the time it was issued.

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