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These days, the huddled masses are increasingly seeking solace inside the massive fortress of the 9th U.S. Circuit Court of Appeals. The court has been hit with a flood of immigration appeals, clocking in at around 100 per week. The reasons are unclear — it’s probably the result of efforts to clear immigration backlogs at the Justice Department — but the potential for impact on court staff and the judges is not. “The attorney general has gone on the record saying he wants to clear the backlog, so they’re heading this way,” said 9th Circuit Clerk Cathy Catterson. If the current rate was sustained over the course of a year, immigration cases would comprise an astonishing percentage of the court’s docket — almost half. Few expect that to happen, but according to 9th Circuit Judge Sidney Thomas, the number of so-called administrative appeals filed this year already exceeds the number filed in 2001. “It really will take some time before we know what the impact is,” Thomas said. One reason for the crush could be a pilot streamlining process used by the Board of Immigration Appeals since 1999. Under those rules, a single BIA judge, rather than the usual three-judge panel, can summarily decide cases that don’t present complex issues. The BIA reviews decisions by immigration judges — who are employees of the Justice Department — on whether immigrants are eligible to remain in the United States. Immigrants charged with crimes, including the crime of re-entering the country illegally, are dealt with by federal prosecutors and their cases proceed through district court. The events of Sept. 11 brought renewed focus on U.S. immigration policy, and in February, Attorney General John Ashcroft announced that he wanted to clear a backlog of cases, some of which had been pending for several years. To do that, Ashcroft said he would expand the streamlining program established in 1999. “He’s proposing to carry that considerably further,” said Linton Joaquin, litigation director for the National Immigration Law Center in Los Angeles. It usually takes three to six months for the BIA to review decisions on immigrants in federal custody, and up to a year for those who aren’t. But with streamlined review, BIA decisions are handed down more quickly. Under federal rules, those appeals bypass the federal district courts and go straight to the courts of appeals. Whether the current influx is the result of the February promise of expanded streamlining isn’t clear. Thomas doubts that’s the reason. “It may be that the Board of Immigration Appeals is simply completing its work more quickly,” Thomas said. But some see signs that the INS is already aggressively pursuing streamlined review on more cases than usual. “In the past few months, I believe the board has expanded the types of cases deemed appropriate for one-judge review,” said Zachary Nightingale, an immigration attorney with San Francisco’s Van Der Hout & Brigagliano. “In almost all types of cases, including asylum cases which are often very fact-specific, we have started to see [a number] of cases being given summary affirmances.” The Justice Department’s Executive Office of Immigration Review was not able to provide figures for the number of immigration cases decided by the BIA in recent months. Attempts to sort out the status of the new streamlining regulations were referred to the Justice Department, which did not return a phone call for comment. The most immediate impact will be on court staff. Some of the appeals may be out of the purview of 9th Circuit jurisdiction, but even determining that requires staff attorneys to inspect the record in each case, Catterson confirmed. Next to feel the impact will be the court’s motion panels, which are manned by the judges. They decide appeals where there is directly controlling precedent. After that, more cases will likely show up on the 9th Circuit’s oral argument calendar — which is already loaded with immigration cases. With the one-judge summary review comes concern about the quality of the record being presented to the 9th Circuit. “I have a lot of reports from some attorneys that the BIA missed the issue completely,” said Joaquin, who helps shape arguments through amicus briefs on appellate review. Federal judges, as in habeas appeals from state courts, prefer to have a developed opinion rather than a one-sentence dismissal. “I always prefer to have a reasoned opinion from the court below rather than a summary disposition,” said 9th Circuit Judge Kim Wardlaw. “It gives me a greater understanding of the case.” Meanwhile, Ashcroft has also announced that he will trim the size of the Board of Immigration Appeals from 24 to 11, which has left some wondering how those plans dovetail with an attempt to clear a backlog of cases. “Nobody really knows how they’re going to cut down on the decision time and reduce the number of appeals, given that the number of appeals are increasing,” Nightingale said.

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