Sunday, February 25, 2007


The NY Times has another story on the problems facing the nation's immigration courts:

In a move that immigration lawyers say is highly unusual, a federal appeals court has recommended that a Justice Department appeals board review all immigration cases still on appeal involving a judge who has been criticized as being hostile to people seeking asylum.

The request came in a ruling on Wednesday by the United States Court of Appeals for the Second Circuit in Manhattan that struck down a decision by Judge Jeffrey S. Chase in the case of a Mauritania native who said he would be persecuted if he was returned to his home country.

The court said Judge Chase’s decision to deny asylum contained a “plethora of errors and omissions.” The three-judge panel capped off its ruling by saying that “given the court’s history with Chase, it may improve judicial efficiency” if the Board of Immigration Appeals “closely re-examined all of his cases” that are still on appeal.

The board is the first level of appeal in immigration cases before they can advance to the federal appellate courts. A phone call to the board’s offices in Falls Church, Va., last night was not returned.

Immigration experts say the court’s rebuke of Judge Chase highlights the escalating demands on the nation’s 218 or so immigration judges, who handle some 350,000 cases a year without the help of law clerks, bailiffs or stenographers. A scarcity of competent immigration lawyers and language barriers only complicate matters.

. . .

Mr. Chase is one of several immigration judges who have been criticized by the appeals courts in recent years. The nation’s immigration judges are employees of the Justice Department, not the court system.

In fact, Judge Chase has a record of approving asylum requests more often than the average judge. He denied 58 percent of asylum claims, compared with about 62 percent by immigration judges nationally, from 2000 to early 2005, according to the latest data available from Transactional Records Access Clearinghouse at Syracuse University.

Lauris Wren, who runs an asylum clinic at Hofstra University’s School of Law, said the court was “scapegoating Judge Chase instead of addressing” systemwide problems.

Mr. Ba’s lawyer, Thomas V. Massucci, told The Associated Press that he had never heard of a court making such a recommendation. “There are probably hundreds of these cases in the pipeline,” he said.

As I noted here, the difference between the highest and lowest asylum denial rates among New York judges from 2000-2005 was 86 percentage points. Some asylum claims, no matter how strong on the merits, have virtually no chance of approval simply because of the judge who happens to be assigned to the case. And advocates of a stricter asylum system can’t be happy with the immigration judges who approve 80 or 90 percent of their cases. Pinning the blame on Judge Chase for acting uncivilly in his courtroom only distracts from the greater obscenity of a system with these outcomes.

As further evidence of the pressure [on the immigration system due to a large caseload], the appeals court issued a temporary notice on Friday that asylum cases would no longer be scheduled for oral arguments unless requested by the parties involved and approved by the court. The court’s immigration caseload has expanded in recent years as the Justice Department has curtailed its own appeals process. The court will take public comments before deciding whether to make the change permanent.

The overload of immigration cases in federal courts was the predictable outcome of Attorney General Ashcroft's decision to cut the number of judges on the Board of Immigration Appeals by half, purging it of its liberal members and gutting it of its ability to serve as a useful filter between immigration judges and the federal courts. This might have been an early example of the Bush administration's efforts to destroy the immigration system from within to stimulate legislative change to the system. Or it could just be incompetence--it's often hard to tell with this administration.

“Can you imagine if they said there were no longer going to be oral arguments in criminal cases, civil libertarians would go crazy,” said Bryan Lonegan, a lawyer with the Legal Aid Society’s immigration unit. “But they’re doing this in these asylum cases because the workload is huge.”

And because noncitizens can’t count on being treated as human beings in U.S. courts.

If they can manage to even get there. Andrew Sullivan links to this article detailing a new facility at Guantanamo to keep men imprisoned the government admits are innocent:

Camp 6 includes detainees who have been cleared for transfer because the military has determined that they are no longer considered to be a danger to the United States or its allies, that they no longer have any intelligence value and that there is no other reason to keep them locked up. They remain only until they can be repatriated to their country of origin, or another country willing to accept them. Can there be any justification for a civilized country to hold any of this group of approximately 100 men, in conditions worse than maximum security? The answer is surely no. Yet we do.

. . .

There are about 400 men imprisoned at Guantánamo. Only 10 of them were charged under the president's first military commission system that was struck down by the U.S. Supreme Court, and none has been charged under the new military commission system passed by Congress last year. The government claims it intends to charge and try 60 to 80 men; with approximately 100 men languishing, but cleared for transfer, this leaves more than 200 men already imprisoned or at risk of being imprisoned under conditions that are worse than the harshest prisons in our federal system-without due process and with no end in sight. The situation at Guantánamo is worsening, desperate and critical. Many minds have already been lost and their bodies will soon follow.

The most important indicators of guilt for a noncitizen who ends up in a U.S. prison appear to be (1) lack of U.S. citizenship and (2) the act of being in prison. Once those two conditions are met, the noncitizen is guilty as charged. Or can be—it’s in the judge’s discretion, so long as he uses polite language and shows the proper deference to the detainee as he tramples on notions of due process built over centuries.

On a side note, Legal Aid does good work for a range of clients. These permanent resident brothers served years in prison for a crime they never committed, and were convicted without any physical evidence linking them to the crime. Due to their own persistence and some resourceful Legal Aid attorneys, they managed to get the charge overturned.

Although one of the brothers may be deported anyway. This is the way the well-oiled machine that is our immigration system works.

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