American Renaissance

Judges Criticize Immigration Courts

NEPA News, Associated Press, Jan. 27

One federal appeals court recently criticized an immigration judge’s decision as “more puzzling than plausible, more curious than common sense.” Another complained about an immigration appeals board ruling it said eluded “the elementary principles of administrative law, the rules of logic, and common sense.”

Harsh criticism of the performance of immigration judges has become increasingly common in the federal courts as they have been bombarded with thousands of appeals from aliens who say an effort to streamline the nation’s immigration appeals system has led to flawed rulings.

In the 12 months after Attorney General John Ashcroft announced a raft of new rules that would let immigration judges dispose of cases faster, the number of aliens appealing the decisions to federal courts has skyrocketed 379 percent, according to the Administrative Office of the U.S. Courts.

Immigrant-advocacy groups have complained that the reforms, begun in February of 2002, created an environment where immigration judges are too quick to rubber-stamp deportations.

And the federal judges increasingly called on to review run-of-the-mill immigration disputes have sometimes taken a critical view of work done by their immigration court colleagues.

In one opinion issued in late December, the 3rd U.S. Circuit Court of Appeals in Philadelphia upheld the constitutionality of streamlining policies that began under the Clinton administration, but sharply criticized an immigration judge for reaching “perplexing” conclusions.

Those sentiments were echoed by the 7th U.S. Circuit Court of Appeals in Chicago earlier this month in a pair of cases involving immigrants who claimed to need protection from persecution in their home countries of Bulgaria and Sudan.

Judge Richard A. Posner said decisions by the Board of Immigration Appeals to deny refugee status to the men contained “startling omissions” and were part of “a pattern of serious misapplications by the board and the immigration judges of elementary principles of adjudication.”

Justice Department spokesmen did not return phone messages seeking comment on the issue Tuesday.

The chairwoman of the Board of Immigration Appeals, Lori Scialabba, said in a recent letter to the American Bar Association that the quality of the board’s work was excellent and had not suffered under the reforms.

The changes made by Ashcroft have whittled away at a notorious backlog of immigration cases that advocates had long agreed was in desperate need of attention.

Some immigrants now wait years in detention while their cases crawl their way through administrative appeals, and the new procedures sought to speed the process by allowing single judges to decide requests for asylum, rather than three-judge panels, and by giving the Board of Immigration Appeals the ability to affirm rulings without issuing a written opinion.

But both reforms, plus a simultaneous move to cut the number of immigration judges hearing cases, have been assailed by immigrant-rights groups.

“If you want to move these cases along expeditiously, the way to not do that is to have cases decided so summarily, and so quickly that mistakes are made,” said Esther Lardent, chairwoman of the American Bar Association’s Commission on Immigration Policy.

Several courts have upheld the efforts to streamline the system as legal, but in doing so questioned whether immigration judges were making bad decisions in the rush to resolve cases quickly.

In a separate opinion attached to the recent 3rd Circuit case, Judge Theodore McKee cited several instances in which he believed immigration judges made poorly informed judgments.

In one, an immigration judge decided it was unrealistic that a Guinean policeman would have risked his career to allow a man seeking political asylum to pass through a checkpoint for a bribe worth only $150. Reviewing the case, the 3rd Circuit noted that $150 is more than most Guineans earn in several months.

In another, a judge dismissed a Sudanese immigrant’s tale of being treated for an illness with herbal medicines by quipping, “That is not the case. All countries have hospitals and doctors,” despite evidence that professional medical attention in rural Sudan is scarce.

“Time and again this Board has considered appeals in which assumptions of this nature have been proven to be totally wrong,” McKee wrote.

Judge Samuel Alito dissented, saying federal courts should resist the temptation to second-guess. Federal law, he said, only allows the decisions of immigration judges to be overturned in cases where “any reasonable adjudicator would be compelled to conclude to the contrary.”

“This limited role sometimes puts us in the uncomfortable position of deferring to a credibility determination about which we are skeptical. But the statute leaves us no alternative,” he wrote.