If words were spontaneously combustible, a recent immigration opinion issued by the 3rd U.S. Circuit Court of Appeals at Philadelphia might have incinerated half of the City of Brotherly Love.
“The case now before us exemplifies the ‘severe wound … inflicted’ when not a modicum of courtesy, of respect or of any pretense of fairness is extended to a petitioner and the case he so valiantly attempted to present. Yet once again, under the ‘bullying’ nature of the immigration judge’s questioning, a petitioner was ground to bits.” Cham v. Attorney General of the United States, 445 F.3d 683.
And that’s just the second paragraph of Judge Maryanne Trump Barry’s April 28 opinion. Indeed, the judge opens with a quote from a separate case about dignity as the hallmark of the American justice system.
Nor was it the first time the circuit court had taken the particular immigration judge, Donald V. Ferlise, to task, as the opinion quickly pointed out. The court also noted that on Jan. 9, the same day that it heard oral arguments in Cham, U.S. Attorney General Alberto Gonzales announced a review of immigration courts and issued a memorandum to immigration judges, who are employees of the Department of Justice.
The memorandum condemned immigration judges who “fail to treat aliens appearing before them with appropriate respect and consideration” and pointed out that, “to the aliens who stand before you, you are the face of the American justice system.” Nor is the 3rd Circuit alone in its frustration with the way immigration judges treat immigrants in asylum proceedings.
Other circuit courts have also questioned the skills and temperament of some immigration judges whose asylum cases are increasingly appealed. The result has been a logjam in the federal circuits, as immigration appeals back up. (See “Asylum Logjam,” October 2005 ABA Journal, page 18.)
Many of the appeals are remanded for new hearings based on a lack of due process in the original proceedings. And many of the opinions feature scoldings as sharp as Judge Barry’s.
For example, in a case heard before the Chicago based 7th U.S. Circuit Court of Appeals, a Chinese woman who sought asylum alleged she was forced to undergo an abortion after an unsuccessful attempt to hide from family planning officials. The woman, Yu Yan Yueng, had become pregnant with her second child in violation of China’s one child per family rule.
Her teenage son, San Kai Kwok, who also sought asylum at the same hearing, alleged that he had been arrested at school and held in detention by government officials who demanded to know where his mother was hiding. The immigration judge found the woman and son not credible because they mixed up some of the dates in their testimony and failed to produce documents supporting their story.
In granting a petition for review, a 7th Circuit panel noted that the woman had a speech impediment that made it difficult for even her son to understand her in her native language, which added to the general confusion.
But in its July 25 ruling, the court was especially critical of the immigration judge: “We hold that the IJ’s credibility determination was speculative and lacked substantial supporting evidence. The purported inconsistencies upon which the IJ based his ruling were, for the most part, so inconsequential that the determination cannot be supported.
Nor was the IJ entitled to hold the petitioners responsible for failing to produce corroborating evidence, when the evidence the IJ expected to see was irrelevant.” San Kai Kwok v. Gonzales, 455 F.3d 766.
Other circuits have also locked horns with immigration judges and their appellate body, the Board of Immigration Appeals.
It has gotten so that immigration lawyers can tell early on how the immigration judge will rule on asylum appeals.
Michael J. Meehan, whose Hicksville, N.Y., practice includes immigration law, says he can often tell from the moment he learns which judge is assigned to one of his cases whether the client will prevail.
“You do have a pretty good idea going into the hearing whether your client will get a good result,” says Meehan.
Andrew I. Schoenholtz, a law professor at Georgetown University Law Center, agrees with Meehan’s assessment that the likelihood of granting asylum tends to vary widely among immigration judges.
Schoenholtz’s ongoing study of asylum judges shows that, on average, about 38 percent of all asylum petitions are granted. “Most judges fall within a range of, say, 25 to 50 percent. But some grant 10 percent and others grant 80, 90 percent. That much discrepancy is a problem,” says Schoenholtz, a member of the ABA Commission on Immigration.
The surge in rancor between the circuit courts and the immigration courts has a long backstory. A study released in July by the Transactional Records Access Clearinghouse, a research organization connected to Syracuse University, calculated the rate at which immigration judges granted and denied nearly 300,000 asylum petitions from late 1993 through late 2004.
The study found that the petitions were denied 64 percent of the time for asylum seekers with attorneys and 93.4 percent of the time for those without attorneys.
One part of the study focused on judges deciding at least 100 claims by asylum seekers represented by attorneys from late 1999 to late 2004. While the median denial rate for judges for that period was about 65 percent, some judges denied nine out of every 10 petitions, while a few granted nine out of 10. One judge in Miami, a former Immigration and Naturalization Service employee, denied 96.7 percent of asylum petitions. Conversely, a New York immigration judge who had worked in the Legal Aid Society’s immigration unit denied only 9.8 percent.
Even among judges in the same jurisdiction, hearing cases of asylum seekers from the same country, the disparity in denial rates was enormous. The study found that about 22 percent of all asylum seekers nationwide are Chinese. In New York, one judge denied 94 percent of petitions from Chinese asylum seekers represented by an attorney, while another denied only about 7 percent.
Ferlise’s denial rate for asylum seekers represented by attorneys from 1999 to 2004 was not the highest among immigration judges; he denied 86.3 percent of the asylum petitions before him, while 18 out of 208 judges had higher denial rates.
The discrepancies reflect a lack of good hiring and training practices in the immigration judge system, according to Schoenholtz. Judges, he says, should also carry smaller caseloads and have research help like their federal judiciary counterparts.
A CLOGGED SYSTEM
Neither immigration judges nor members of the BIA are Article III court judges under the U.S. Constitution. The nation’s immigration courts are run by the Executive Office for Immigration Review, which is part of the Justice Department. Appeals from BIA determinations go directly to the circuit courts, bypassing federal district courts. Federal trial courts do, occasionally, hear habeas petitions from illegal immigrants, but in the past decade Congress has severely curtailed their power to grant habeas relief to immigration detainees.
About 200 immigration judges nationwide handle more than 250,000 immigration cases annually, including some 25,000 asylum petitions. Of the quarter million total, about 40,000 are appealed to the BIA. About 12,000 of those are eventually appealed to the federal circuit courts, which overturn about 40 percent of immigration appeals nationwide, according to the Syracuse study, Schoenholtz’s own data and the Administrative Office of the U.S. Courts.
“Some IJs are really, really good. Some are not. There needs to be a standard of competence and experience in hiring, and there needs to be training–at the beginning and ongoing–because the law changes, [and] the circumstances in other countries change,” says Schoenholtz.
Asylum is a specific form of immigration relief designed to allow otherwise deportable illegal aliens to remain in the U.S. because of grave threats to their safety if they should be returned to their country of origin. Petitioners must apply within a year of entering the U.S. And they must meet high standards for proving they are likely to suffer persecution based on factors such as their political or religious beliefs, or policies of the home country that the U.S. deems inhumane, such as China’s forced abortion policy or some African countries’ female circumcision practices.
CREDIBLE PROOF REQUIRED
Petitioners must prove they run a specific, articulable risk based on threats against them personally or, in some cases, based on persecution suffered by close family members who share the characteristic, such as a religious belief.
But the problems arise because often documents are unavailable and so proofs rest on the credibility of the petitioner’s and witnesses’ testimony, coupled with evidence of the country’s political and social climate.
This credibility determination is where some immigration judges seem to go off the rails, according to circuit court opinions. The courts sometimes find that immigration judges ask for documentation that is irrelevant to the asylum claim or that common sense says is unavailable.
“Of course, someone who is claiming to have been tortured or mistreated doesn’t have papers to prove it. This, too, goes back to the competence and training issue,” Schoenholtz says.
The results frequently are impatient immigration judges, confused petitioners who don’t understand the language or the American justice system, and frustrated immigration lawyers.
Meehan recalls a recent case with a judge in New Jersey. Meehan felt his client had a strong case for disproving some of the government’s allegations against him regarding his legal status. But Meehan was troubled as he sat in the courtroom watching other cases that were called before his. The judge, he says, repeatedly thanked attorneys who “cooperated” by conceding the government’s allegations against their clients and then merely arguing that the client should nevertheless be allowed to stay. Then, when one lawyer denied the allegations against his client, the judge “went ballistic” according to Meehan, berating the lawyer for wasting the court’s time by forcing the government to prove the allegations.
It’s that kind of experience that even has appellate judges furious, not to mention the attorneys themselves.
A CASE IN POINT
Take the 3rd circuit’s cham case, for example. in making the unusual move of publicly naming the immigration judge it was scolding, the court quoted at length from the transcript of Abou Cham’s immigration hearing.
Cham, who is from Gambia, claimed that he would be persecuted if he were returned to his home country. His uncle had been president until he was ousted by a military coup in 1994, when Cham was a teenager, he told the court. He said that at least four members of his family had been imprisoned since the ouster.
Yet at one point during the hearing, Ferlise, the immigration judge, told Cham to stop trying to speak English because “your English isn’t very good” and to stop stating that Cham was sorry for misunderstanding and not following the judge’s directions, according to the opinion.
Ferlise went on to question Cham intensely about several discrepancies, such as the exact date of the coup in which his uncle was ousted. At times, Cham was unable to answer the questions in his native Wolof language, but the judge refused to accept his answers in English–even after the interpreter said she did not know all the Wolof words for the calendar months because most native Wolof speakers use English or French to name the months.
The 3rd Circuit said the “belligerence” of the judge’s questioning and the resulting tension in the courtroom “demonstrated the intensity with which Judge Ferlise sought, at all costs, to support his denial of relief to Cham.” The court advised that on remand for a new hearing, the attorney general should assign the case to a different immigration judge. Efforts to contact Ferlise were unsuccessful. He is no longer hearing immigration cases, although he remains an employee of the Executive Office for Immigration Review, according to his attorney, Ralph Conte of Washington, D.C. Conte declined to give further details.
Meanwhile, after the Sept. 11, 2001, terrorist attacks, the backlog of cases in immigration courts grew, as the federal government–first as the old Immigration and Naturalization Service and later as part of the newly minted Department of Homeland Security–significantly stepped up efforts to find and deport illegal foreigners. Between 2001 and 2003, immigration cases rose from about 3 percent of the average federal court caseload to about 15 percent on average nationwide, while the percentage rose to nearly 30 percent in the 2nd and 9th Circuits, which include New York and California, respectively, according to statistics from the Administrative Office of the U.S. Courts.
The number of immigration cases appealed to the BIA each year more than doubled during the ’90s, resulting in a backlog of more than 63,000 cases by 2000. In 2003, the ABA commissioned the law firm of Dorsey & Whitney to produce a report on the continuing backlog in resolution of immigration cases. The report notes that in 1999 the BIA streamlined its review process, allowing some cases to be reviewed by a single member of the BIA, instead of the traditional three member panel.
STREAMLINING OR RUBBER STAMPING?
By 2002 the backlog had grown further, and then Attorney General John Ashcroft ordered even more cases disposed of by single member summary review and made other procedural changes to streamline BIA review.
While the streamlining orders succeeded in dramatically reducing the backlog, some immigration lawyers began to question the fairness of the process, arguing that BIA review had become little more than a rubber stamp of immigration judges’ determinations. Very quickly, the former BIA backlog began to shift to the federal courts, as more immigration petitioners sought review based on fundamental fairness, due process and similar grounds.
“Now all you usually get is a one sentence denial of your BIA appeal. There’s no indication that they’ve even read the file,” says Meehan.
Part of the streamlining order included reducing the number of members of the Board of Immigration Appeals from 23 to 11. The members who were dismissed were primarily pro immigrant, says Hiroshi Motomura, a law professor at the University of North Carolina at Chapel Hill.
“The problem is, there is no meaningful review, coherence or uniformity now at the BIA level, so everything gets kicked up to the federal courts,” Motomura says.
ABA policy calls on Congress to ensure due process for immigration petitioners. The ABA’s recommendations include a call for immigration judges to be required to make findings of fact and conclusions of law in ruling on petitions, and for federal courts to be allowed to conduct meaningful review of immigration court decisions where deportation or removal from the U.S. is at stake. In addition, the ABA endorses the independence of immigration courts so that they are no longer controlled by any executive branch officer. But some immigration reform advocates contend it is the “activist” federal circuit courts that are harming the executive branch’s immigration courts.
“In our view, judges are creating the problem. They have the tools to be more skeptical of these claims. Without speedy adjudication, the system remains vulnerable to the chaos of backlogs,” says Mike Hethmon, general counsel for the Immigration Reform Law Institute, an affiliate of the Washington, D.C. based Federation for American Immigration Reform.
THE REFORM AGENDA
At the same time that more immigration cases are winding up in federal circuit courts, Congress has been considering immigration reform proposals. Some of them include limiting the jurisdiction of federal courts in immigration cases, making the BIA determination the final stop for most immigrants.
In 2005, Congress passed the Real ID Act, which will require states wishing to receive federal funds to comply with strict requirements when issuing driver’s licenses and state ID cards. Included among the act’s provisions are requirements that applicants for state IDs prove that they are in the country legally. States are required to collect a variety of personal data, including name, home address, Social Security number and other specific identifying information, and to keep it in a shared database accessible to all other states, as well as the federal government.
The main provisions of the act take effect in May 2008, although some provisions related to immigration are already being enforced. The act requires that applicants for asylum now prove that persecution they have suffered or foreseeably will suffer in their home countries is primarily a result of their “race, religion, nationality, membership in a particular social group or political opinion.” Prior to the act’s passage, applicants needed only to prove that one or more of these characteristics was “a” reason for their persecution. Now, the applicant must prove that the characteristics are the “central” reason for their persecution. Just how an asylum petitioner can prove the motivation of his or her tormentors remains up in the air, critics say.
The Real ID Act also further limits the jurisdiction of the federal courts to hear habeas petitions from people in immigration detention, but reiterates the courts’ jurisdiction to hear substantive appeals–yielding more direct appeals from BIA decisions, according to Motomura.
Another proposal floating around the halls of the U.S. Capitol would consolidate jurisdiction over immigration appeals in the U.S. Court of Appeals for the Federal Circuit, which is based in Washington, D.C. While some immigration lawyers say this will only make appeals more cumbersome and expensive, others believe that consolidation will have the effect of limiting appeals from petitioners whose cases are marginal. An ABA letter to senators calls for thorough study of such a proposal, saying the expense “may be particularly burdensome or even prohibitive for immigrants represented by nonprofit agencies or pro bono counsel.”
FAIR likes the idea of consolidation because it goes along with the organization’s general premise that the United States cannot accommodate the present level of immigrant entries into the country, Hethmon says. He advocates Congress abandoning the “piecemeal” approach to immigration reform and changing the status of more classes of aliens to “not admitted.”
“The court backlog problem can’t be solved until the crisis in mass immigration is dealt with,” says Hethmon.
Hethmon advocates a carrot and stick approach to immigration reform that, he says, will have the added benefit of reducing the demand for admission by improving conditions in other countries. The carrot, he says, would provide for follow up by the U.S. State Department or the United Nations to make sure that deported asylum seekers are not mistreated when they return to their home countries. In addition, he advocates special consular services being made available for U.S. citizen family members who may leave the country when a loved one is deported. These services would allow the citizen family member to seek help directly from the nearest U.S. consul office or embassy if a family member is in need of protection.
The stick to encourage countries to treat returnees well would be denial of U.S. visitor visas to high ranking officials, royals and their family members from countries that engage in persecution.
Motomura thinks that such suggestions are shortsighted. U.S. officials in other countries don’t have the authority to intervene in individual situations, and royals or government officials denied U.S. visas will simply do their vacationing and luxury shopping in Europe or elsewhere, he says.
Apparently, at least one federal appellate judge also dislikes the proposal. In a letter to senators, 7th Circuit Judge Richard Posner wrote that consolidating cases in the Federal Circuit would be a “disservice” to both the courts and the petitioners.
Noting that the Federal Circuit currently handles mostly patent cases, Posner opined that Federal Circuit judges have no special expertise in immigration law. In addition, such a move would increase that court’s caseload by more than 500 percent.
In the long term, Motomura says, Congress can encourage positive change in immigration courts by making immigration judges more independent of the Department of Justice, which has a duty to carry out the policies of the executive branch. Efforts also must be made to change the culture of the immigration courts, according to Motomura. “Right now, immigration judges and DHS are all part of the same culture. Too many judges have come up through the ranks of immigration prosecution. We need more from other back grounds, such as defense, to balance the system,” he says.
Schoenholtz agrees that the immigration court system must be made more independent of the Justice Department. He notes that creating hiring guidelines, providing much more training, offering research support and lessening caseloads are also key to solving the “quality” problems federal courts find with many immigration court determinations.
TIME TO DECIDE
Even more fundamentally, motomura says, Americans have to come to terms with our feelings about immigration.
“This is an easy issue for both sides to preach to their choirs. But immigration unrest is a symptom for everything going on in the world and our relationships with other countries,” he says.
Put another way, the U.S., often seen as a nation of immigrants, must decide how, and perhaps whether, it will continue, in the words of the Emma Lazarus poem on the base of the Statue of Liberty, to “lift my lamp beside the golden door.”
The poem, by the way, formed the basis of Cincinnati based 6th Circuit Judge Boyce F. Martin Jr.’s March 24 concurring opinion in the asylum case N’Diom v. Gonzales, 442 F.3d 494.
Added Martin: “We have come a long way from these sentiments. Indeed, in the halls of our immigration courts today, the sentiments all too often are more like ‘don’t let the door hit you on your way out.’ ”
Margaret Graham Tebo, a lawyer, is a senior writer for the ABA Journal.
Margaret Graham Tebo, a lawyer, is a senior writer for the ABA Journal.