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Immigration laws have long evoked strong emotions in America, and the most recent effort to overhaul the way they are enforced is no exception. On the streets, hundreds of thousands have flocked to protest proposals that would tighten controls over undocumented workers and illegal migrants. In Congress, debate has exposed fissures within the Republican majority, whose members have sparred over whether opening U.S. borders will benefit the country or cause it harm. Yet the dueling bills pending in Congress could alter more than just the demographics of the United States; they could rework the judicial process immigrants navigate to make this country their home. One proposal is to transfer all immigration appeals now heard by federal circuit courts to the U.S. Court of Appeals for the Federal Circuit in Washington and give lone judges authority to decide whether cases are eligible for review. Such a move would foist a growing docket of more than 12,000 cases a year on to a court whose 12 judges usually handle no more than 125 cases annually. The proposal would be the single largest shift in court jurisdiction since the Federal Circuit was created in 1982 to handle patent disputes. Even that was not nearly as sweeping as this proposed expansion, or done with as much haste: The provision was slipped into a bill sponsored by Sen. Arlen Specter (R-Pa.) last month without so much as a hearing. Immigration enforcement is complex, but the usual first stop is an immigration judge, more than 200 of whom are employed by the Department of Justice to review cases. If an immigrant’s claim to remain in the United States is denied, he or she turns to the Board of Immigration Appeals, or BIA, an administrative judicial body with 11 members. There typically a single board member is assigned to a case, and an immigrant can appeal that member’s decision to the regional federal appeals court. Few dispute that this review process needs fixing. A surge in appeals petitions has overwhelmed the federal courts, which have seen the rate of appeals rise from 5 percent in 2002 to roughly 30 percent today, according to the Executive Office for Immigration Review. The system is understaffed and prone to errors. Federal appeals court judges routinely lambaste the BIA in their opinions, and earlier this year, Attorney General Alberto Gonzales launched an investigation into possible abuses by immigration judges. But recent congressional proposals to address the situation have only ignited further criticism from members of the legal community who view the changes as doing little to alleviate the backlog of cases now choking the courts. “Without real oversight, vastly increased staffing — including real funding for defense counsel — and mandated opinions being drafted, there is no way that this bill will ameliorate the very clear problems with the immigration litigation system,” says Timothy Sparapani, legislative counsel for the American Civil Liberties Union. Flooded by letters from lawyers, judges, and interest groups, congressional reaction has been swift. Specter dumped the court-switch provision from his bill last week but also slashed provisions that would have added judges to the BIA. But the idea of shifting jurisdiction is far from dead. It remains in the immigration bill backed by Sen. Bill Frist (R-Tenn.), and Specter called a hearing for April 3 to debate this proposal. Still, at a Judiciary Committee meeting last week, Specter promised reforms. “We need to have more in the way of immigration judges — better trained, better qualified — to handle the tough jobs which they have,” he said. CIRCUIT OVERLOAD? The move to have immigration appeals handled by the Federal Circuit has its roots in the Fairness in Immigration Litigation Act, sponsored by Sen. Orrin Hatch (R-Utah) and Rep. James Sensenbrenner (R-Wis.). The 2004 legislation was an attempt to get tougher on aliens with criminal records, but also sought to create more uniformity of the case law on immigration in the circuit courts. Proponents of the Federal Circuit plan think that more liberal courts, such as the U.S. Court of Appeals for the 9th Circuit, have not been tough enough on illegal immigrants. But whether immigration law needs more centralization is a sticky subject among immigration specialists. Critics, however, say that some splits within the circuits are a sign of a healthy legal system and note that there is a limit to how much “interpretation” judges can engage in. “Most of these cases are pretty fact-bound,” says Judge Edward Becker, a Ronald Reagan appointee to the U.S. Court of Appeals for the 3rd Circuit. The fairness in immigration bill was ultimately abandoned, but many of its ideas resurfaced in Specter’s bill last month. In some ways the current proposal goes further. One provision would tighten the standard of judicial review for immigrants seeking naturalization. Another would make it easier for the government to dismiss injunctions in order to stop deportations of immigrants. But critics believe the proposed legislation would do little to fix institutional problems with immigration courts. For example, the measure adds only three judges to the Federal Circuit, not nearly enough to meet the increased caseload it would face, critics say. Others have raised the concern that allowing single-judge review would lead to more errors, thereby denying immigrants due process. And by concentrating all cases in Washington, the proposal could hinder immigrants’ access to the courts because they and their lawyers would have to travel to the capital to argue appeals. One staunch opponent of the plan is conservative jurist Richard Posner, chief judge of the U.S. Court of Appeals for the 7th Circuit. In a March 15 letter to the Senate, he wrote that the proposal “would disserve the judiciary and the immigrant community,” adding that he could not “think of an area of law that is more remote from immigration than patents.” The patent community, including the Intellectual Property Owners Association — a trade group that includes some of the most prominent Fortune 500 companies, such as Hewlett-Packard Co. and Monsanto Co. — is also opposed to the idea. The Federal Circuit exists primarily to expedite patent cases, which often have a short shelf life for businesses in rapidly changing industries. Companies and their lawyers are afraid that the change would upset the balance in their legal fiefdom. “They’ll be swamped by the volume,” says Kevin Casey, president-elect of the Federal Circuit Bar Association. “When are they going to get to my patent cases?” Andres Benach, an immigration attorney at Maggio & Kattar in D.C., is also unnerved about how a consolidation might affect his clients. “I don’t even know what law the Federal Circuit would apply,” he says. CLAMPING DOWN, CUTTING BACK Whatever the criticism of the proposed reforms, the problems in the immigration courts are long-standing and undeniable. The choking backlog of cases can be traced to the early 1990s, when congressional clamoring over immigration, which topped 9 million during the decade, was also at a high pitch. In 1994, California, usually a bellwether for immigration politics, passed Proposition 187, which denied public benefits to illegal aliens. Although the proposition did not survive judicial challenge, Congress began allocating larger and larger budgets for border patrol, which, over time, fed more cases to immigration judges. The ranks of the immigration judges also grew, expanding from 75 in 1987 to 215 today. Those judges now handle about 300,000 cases a year — an average of 1,395 each. By 1998 the backlog at the BIA had reached 47,000 cases and was overwhelming the agency’s resources. The next year, DOJ officials stepped in and issued the first wave of changes to pare down the backlog. One of the key methods was to give the BIA discretion to decide certain cases without a three-judge panel or a detailed opinion. The changes made a dent, pushing the backlog down 6 percent in the first year, according to a 2003 study by the law firm Dorsey & Whitney. But with 59,804 pending cases in 2001, the changes were nowhere near enough. So in 2002, then-Attorney General John Ashcroft instituted a second round of reforms. One-judge decisions became the rule, rather than the exception, and the BIA was allowed to issue decisions through “affirmances without opinion,” meaning that there would be virtually no written explanation for the ruling. The board began churning through cases more quickly, but its gains have been stymied by Ashcroft’s decision to cut the BIA from 23 judges to 11 just a few months after the reforms. The BIA cuts have prompted an outcry from immigration lawyers, who feel their clients no longer have credible hearings before the board. “People thought that they didn’t have a fair shot,” says Stephen Yale-Loehr, a law professor at Cornell University who has written a forthcoming law review article on the backlog. The BIA’s curtailed opinion writing has not always stood up well in court. Although the overall rate of reversal of 14 percent is not higher than in previous years, some circuits have found problems with immigration judges’ decisions and behavior. For example, in the 7th Circuit — which presides over Illinois, Indiana, and Wisconsin — 40 percent of BIA decisions were reversed last year, according to data compiled by the Administrative Office of the U.S. Courts. Yet the backlog continues to frustrate both immigrants, whose cases often take years to wind through the legal system, as well as conservatives, who fear the delays allow illegal immigrants to stay in the country longer. “This is an enormous amount of cases,” says David Martin, an immigration law professor at the University of Virginia. “It’s an area where it seems rather important to issue timely decisions on appeals.”
Emma Schwartz can be contacted at [email protected].

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