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WASHINGTON � Immigration reform in Congress promises more lawyers on the prosecution and defense sides of an expected surge in immigration cases, but does little to solve the sometimes overwhelming management and legal issues confronting federal trial and appellate courts in this area of the law. Despite the ongoing struggle for consensus on an immigration reform package that both Congress and the president can accept, there appears to be no controversy over the need for more lawyers right now as well as in the future. The main Senate proposal, for example, would increase the number of attorney positions within the Office of Immigration Litigation (OIL) in the U.S. Department of Justice by not fewer than 50 in each of fiscal years 2008 through 2012. OIL is within the department’s Civil Division and has jurisdiction for all civil immigration litigation. By fiscal 2008, OIL’s caseload is expected to reach 25,000 cases � nearly four times as many cases as in 2002. For some time now, the department has been farming out OIL cases to every part of the department, including U.S. attorney’s offices, said department spokesman Charles Miller. “We’ve even had our criminal attorneys working on them when they could,” he said. “All of a sudden a lot of individuals discovered that once the immigration judge and the [Board of Immigration Appeals] turned them down, they still have recourse to the courts. There are just a lot of appeals.” In its most recent budget request, the department is seeking 124 new attorneys and $14.1 million for the Civil Division to handle the sharp rise in immigration cases. The hope is to centralize the handling of immigration cases once again. The proposed substantial increase in border patrol agents also means an increase in illegal-immigration prosecutions by U.S. attorneys. Immigration cases are already the largest category of cases filed by U.S. attorneys, according to the department. The Senate measure directs the attorney general to increase the number of attorneys in those offices in each of the next four years by not fewer than 50, compared with the number for which funds were available in the prior fiscal year. “You have to think of all parts of the equation,” said Timothy Crooks, president of the National Association of Federal Defenders and chief of the appellate section of the Federal Defender’s Office in Houston. “If you’re looking to increase enforcement, there is going to be a bottleneck if you have more prosecutors and no defense attorneys to respond to these cases,” he said. “There’s going to be another bottleneck if there aren’t increased judgeships to help adjudicate these cases. Judges can’t process more than they’re processing now.” The greatest need for more defense attorneys, he said, is in the so-called border districts. Last summer in an interview with the NLJ, Federal Defender Robert Kinney of Las Cruces, N.M. � a border district � noted that when he started in that office in 1995, the average caseload per attorney was 50 to 60 cases closed per year. In 2006, the average was closer to 160, while the national average was 75. At the time, he said, his office could easily justify 10 more attorneys. The Senate immigration proposal directs the Administrative Office of the U.S. Courts to increase the number of attorneys in the Federal Defender Program who litigate criminal immigration cases by not fewer than 50 in each of the next four fiscal years. The bill would beef up attorney numbers and support staff in other parts of the immigration system as well: nDepartment of Homeland Security: an increase in trial attorneys of not fewer than 100, compared with the number for which funds were available in the preceding year. nDepartment of Justice: law clerks for immigration judges and members of the Board of Immigration Appeals (BIA) � not fewer than one per judge and per member. Few, if any, judges have clerks. nImmigration judges: an increase of not fewer than 20 full-time judges and not fewer than 80 support staff for them. nBIA: an increase by 10 of the number of BIA members serving on the date of enactment; an increase of not fewer than 20 in the number of BIA staff attorneys; and not fewer than 10 in the number of support personnel for them compared with the number of such positions for which funds were available in the preceding year. Curiously, an entire section of the original bill, which dealt with one of the thornier problems in the system � immigration appeals to the BIA and federal appeals courts � was dropped from the most recent Senate version. The BIA is the chief administrative law body for immigration law. The board essentially has two purposes: to decide individual appeals by aliens found to be deportable by immigration judges and to issue precedential decisions as guidance for immigration judges, aliens and others within the immigration system. In 2002, then-Attorney General John Ashcroft proposed new “procedural reforms” for the board which was struggling to eliminate a growing backlog of cases. Those reforms ignited controversy among immigration scholars, litigators and civil rights groups. The 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 review of facts; imposed time limits for processing appeals; and reduced the size of the board from 23 to 11 members. The reforms helped the board begin to reduce its backlog, but they also created a surge of appeals to the federal circuit courts. And some judges on those appellate panels have been highly critical of board decisions without opinions and have remanded them to the board with stinging comments. “It continues to be a problem and nothing in the bill fixes the problem,” said the vice president of the American Immigration Lawyers Association, David Leopold of Cleveland. “It just adds U.S. attorneys around the country to prosecute immigrants and not to handle the voluminous petitions resulting from the board’s affirmances without opinions.” The original Senate proposal set out qualifications for board members, standards of review of appeals, limits of affirmances without written opinions and other requirements. All that remains is the increase in board size and support staff. The original provisions may have been dropped because of fears that provisions more hostile to immigrants would be inserted, suggested immigration scholar Kathleen Moccio of the University of St. Thomas School of Law. “Immigration legislation consistently tries to limit the ability of noncitizens to access the courts.” But, she added, the Executive Office of Immigration Review, which oversees the BIA, has been trying to fix problems at the board. The number of appeals decided by affirmance without opinion, she said, has dropped from 36% to 9%. The office is also in the process of implementing 22 measures ordered by Attorney General Alberto Gonzales to improve the BIA and immigration courts, according to DOJ’s Miller. They include increasing the board’s size from 11 (it now has only nine permanent and four temporary members) to 15; performance evaluations for BIA members and immigration judges, and increasing the number of written opinions. At the end of fiscal 2006, the BIA’s backlog was 27,918 appeals.

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