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Chart: 9th Circuit Border Traffic With the Ninth Circuit U.S. Court of Appeals drowning in immigration cases, Chief Judge Mary Schroeder went looking for a life preserver in Washington, D.C., last month. She’s still holding her breath. “I don’t think anyone is quite sure what to do,” Schroeder said. Since 9/11, the Ninth Circuit has seen a five-fold increase in immigration appeals. Schroeder blames changes within the Department of Justice’s immigration court system that, she said, eliminated “meaningful, adequate” appellate review. In order to clear a backlog of cases, former Attorney General John Ashcroft reduced both the number of immigration appellate judges and their ability to review cases. Even though this “streamlining” succeeded in putting to bed thousands of DOJ cases, Schroeder and many immigration lawyers say it merely shifted the burden of routine case disposition from the administrative courts into federal circuit courts. “When you only have one [Board of Immigration Appeals] judge who’s just rubberstamping . . . we have to review every issue that the immigration judges decide,” Schroeder said. Other lawyers and judges disagree and say there’s no proof that the high appellate case volume is a result of shoddier work in the immigration courts. They say the circuits are merely doing their job sorting out novel legal issues, including some stemming from other changes to immigration policy made in the wake of 9/11. Immigration cases now account for more than 40 percent of Ninth Circuit judges’ caseload, and the burden is slowing down the circuit’s adjudication of other matters, Schroeder said. “What it means is that the regular civil cases that do not have priority are now taking a year and a half rather than a year,” Schroeder said. For now, members of Congress seem more concerned with budget and security issues, and only one bill in the current session deals directly with the immigration backlog. The Civil Liberties Restoration Act, by Rep. Howard Berman, a California Democrat, would undo streamlining and abolish the DOJ’s current system of immigration courts, replacing it with a more independent structure. More Congress members talk about splitting the Ninth Circuit — which Schroeder opposes — than changing immigration courts. In fact, Idaho Republican Congressman Mike Simpson, who introduced a split proposal this year, is open to linking it with immigration court changes in order to win more support, a spokesman said. Schroeder is hopeful that Congress will pass on splitting the circuit and will, instead, tackle immigration. Although “we did not get to the point of talking bills,” Schroeder said, Congress members, including House Judiciary Committee Chairman James Sensenbrenner, R-Wisconsin, seemed amenable to helping reduce the immigration caseload. Schroeder knew it would be a tough sell before she left. “I think a lesson from Washington seems to be that constructive changes won’t get done unless they catch the public’s attention,” she said. But Berman’s bill — part of a larger package of measures designed to restore congressional oversight of issues affected by the USA Patriot Act — might not be the best vehicle. “I wouldn’t see anything having to do with civil rights passing in this Congress,” Schroeder said. Berman first introduced the bill last session. Massachusetts Democrat Edward Kennedy floated a companion in the Senate, but neither went anywhere. Kennedy is working on a package of immigration reforms with Republican Sen. John McCain of Arizona, but it’s unclear whether it will include anything about immigration courts. Federal appellate courts are the last stop for people appealing immigration court rulings on asylum, deportation and other matters. Before they hit the circuits, litigants have first gone before the Board of Immigration Appeals. The DOJ implemented streamlining in the wake of 9/11, reducing the size of the BIA and limiting its review of lower judges’ rulings. Not everyone agrees that streamlining is to blame for the appellate courts’ headache. “I think these are cases we would probably have seen anyway,” said Ninth Circuit Judge Alex Kozinski. He also pointed out that asylum seekers and others can remain in the country while their cases are decided. “One reason we have so many appeals is that there’s such a great incentive to appeal,” he said. The Executive Office of Immigration Review, which oversees the BIA, also disagrees with Schroeder and lawyers who criticize the immigration courts’ standard of review. “There is no evidence that the federal courts’ reversal/remand rates of BIA decisions have changed significantly since the new procedures were instituted,” according to a letter written by the DOJ to the Sacramento Bee in response to an article on streamlining. “This indicates that the quality of the BIA’s jurisprudence has remained consistent.” The DOJ has not taken a position on Berman’s bill. Other ideas are circulating among immigration lawyers and judges, including: taking away circuit courts’ ability to second-guess immigration judges’ credibility determinations, establishing an appellate court that would just handle administrative appeals like immigration and social security cases or shifting all immigration appeals into the Federal Circuit or the D.C. Court of Appeals. Although Schroeder is upfront about her views on immigration court reform, it’s unclear what role she or any other judges will play in lobbying Congress. Judges usually steer clear of political lobbying, but, for his part, Berman said he didn’t think they should be excluded from the immigration court debate because it’s not really an “ideological” discussion. Berman, a former labor attorney and the ranking Democrat on the House Judiciary Committee, is optimistic he can get bipartisan support. “There are still some people around here who will once in a while listen to the federal courts,” he said.

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