Plan to Reroute Immigration Appeals Hits Some Red Lights

As senators debate the merits of offering visas to guest workers, judges and lawyers are tussling on the sidelines over the fate of thousands already here who annually appeal deportation orders.

The specific question at issue may appear technical to a layperson: whether would-be immigrants and asylum-seekers should be able to appeal deportation orders in the region they are in, or whether those appeals should be filed in Washington.

Republican backers of a proposal to channel them all through a single court in the capital say a surge in the number of deportation appeals is swamping the 12 regional appeals courts. But their plan has ignited protest -- with some cries coming from the same overburdened federal judges Republicans say they want to help.

“Reassigning petitions for review to the Federal Circuit ... will neither reduce the backlog more efficiently nor protect the aliens’ entitlement to adequate review,” said the chief judge of the 2nd Circuit, John M. Walker Jr., one of many who has written in recent weeks to Senate Judiciary Committee Chairman Arlen Specter (R-Pa.). “Indeed, the reverse is likely.”

The judges’ vocal opposition convinced Specter to temporarily remove the proposal from the mammoth bill on the Senate floor that would overhaul immigration laws. Specter has scheduled a hearing on the controversy for Monday.

“It’s unusual to have a hearing in the middle of floor action, but that’s what we’re doing, because there’s a dispute as to whether there ought to be consolidation in the Federal Circuit on appeals,” Specter said Thursday.

Specter has proposed sending all immigration and asylum appeals -- about 11,000 a year -- to the U.S. Court of Appeals for the Federal Circuit. The court is one of the smallest in the federal system, handling 1,500 cases a year -- primarily patent and trademark issues.

His proposal also would give a single judge from the court the power to decide whether an appeal would proceed; currently, a three-judge panel must make such decisions.

Specter has said that concentrating the appeals in the Washington court would foster more consistency in immigration decisions and relieve the current burden on federal judges elsewhere in the country.

But federal judges argue that the real problem isn’t the number of appeals -- it’s the number of cases poorly decided lower down, in the immigration courts. They fault changes implemented in 2002 by then-Atty. Gen. John Ashcroft, including streamlining procedures and cutting in half the number of judges hearing immigration cases.

About 200 immigration judges -- who are part of the Justice Department, not the judicial branch -- hear about 300,000 deportation cases a year. About 43,000 of those decisions are appealed to the Board of Immigration Appeals, which has 11 judges.

The cases often get only a cursory review by the immigration judges -- and so many mistakes are made, federal judges contend, saying that is why the number of appeals is growing.

“It is tempting to suppose that most petitions for review are frivolous, designed only to postpone the inevitable day of removal. The experience of my court has been different,” wrote Richard A. Posner, a judge on the 7th Circuit Court of Appeals, in a letter to the Senate Judiciary Committee last month.

Posner noted that federal judges in his circuit, in Chicago, were reversing 40% of the immigration cases that reached them. “The higher the reversal rate, the more petitions for review are filed,” Posner wrote. “Only by bringing down the reversal rate can the flood of petitions be staunched.”

Atty. Gen. Alberto R. Gonzales has acknowledged that the immigration courts and the Board of Immigration Appeals have been doing substandard work.

In a January memo announcing a formal inquiry, Gonzales said he was concerned by reports “of immigration judges who fail to treat aliens appearing before them with appropriate respect and consideration and who fail to produce the quality of work that I expect from employees of the Department of Justice.”

Gonzales wrote that although he was convinced that “most immigration judges ably and professionally discharge their difficult duties, I believe there are some whose conduct can aptly be described as intemperate or even abusive and whose work must improve.”

Gonzales has not taken a position on Specter’s proposal, and few senators or other advocates are promoting it publicly.

But behind the scenes, the provision was put back in the draft of the immigration bill last month after Specter removed it, according to Democratic staffers familiar with the incident, and only taken out Thursday after Democrats objected.

Specter’s staff said the incident was a drafting error, but also said he was determined that the issue would be addressed as part of the immigration bill.

Immigrants’ advocates say they suspect the plan’s backers are motivated by more than a desire for increased efficiency.

Congressional Republicans, they note, long have sought to divide up the largest of the regional courts, the 9th Circuit in San Francisco, which is seen by conservatives as too big, too powerful and too liberal.

With immigration appeals now making up 40% of 9th Circuit cases, the court would lose a sizable part of its workload and be more vulnerable to being split up, the immigrants’ advocates say.

They also argue that the Washington court is ill-equipped to deal with such appeals.

“The court that specializes in patents is not uniquely qualified to deal with immigration cases. In fact, it’s almost the last court you would want handling them,” said Caroline Fredrickson, Washington legislative director for the American Civil Liberties Union.

With the Senate pushing to complete the immigration bill before the chamber recesses for Easter, federal judges are urging Specter and other Republicans to slow down on the proposal.

“No sufficient justification to support changing the status quo and shifting these cases from the regional courts to the Federal Circuit has been provided,” Leonidas Ralph Mecham, secretary of the Judicial Conference, the policy-making arm of the federal judiciary, wrote to Specter.

“Such a significant change calls for careful analysis to ensure that it would not interfere with the ability of the courts of appeals to manage their caseload and provide meaningful review of such cases, and would not impose an unwarranted burden on the judiciary or litigants.”