Thread: Immigration appeals pile up

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Immigration appeals pile up
By DANIEL GILBERT
dgilbert@manassasjm.com
Monday, June 19, 2006


Homeland Security claimed two victories last week in its efforts to curb illegal immigration, busting 55 undocumented workers at Dulles Airport and deporting 829 illegal immigrants following a nationwide round-up.

The success of "Operation Return to Sender," may, however, be mitigated by a bureaucratic speed bump.

The majority of individuals apprehended in "Return to Sender" have been placed in removal hearings, at a time when appeals courts are struggling to cope with unprecedented caseloads.

Immigration appeals have exploded in recent years as government agencies progressively crack down on illegal immigration, clogging federal appellate courts and significantly adding to the time it takes to resolve all appeals.

As Homeland Security steps up interior enforcement, legal experts, scholars, and lawmakers worry about appellate courts' ability to keep up with mounting immigration appeals.

In the period from 2000 to 2005, appeals of decisions by the Board of Immigration Appeals shot up 602 percent, from 1,723 to 12,349, straining some circuit courts and swamping others. In 2005, the median time to resolve a case in the Ninth Circuit - which processes the most appeals in the country - took over 16 months.

The Fourth Circuit, which encompasses Virginia, Maryland, the District of Columbia and other mid-Atlantic states, resolves the average case in 9.2 months - the fastest turnaround time of all circuit courts. Still, that is a sharp increase from the 7.4 months of decisional time in 2005, and the proportion of immigration appeals in the Fourth's caseload has increased steadily from 1 percent in 2001 to 7 percent last year.

Delays in processing appeals "will cloud any enforcement message of quick resolution of cases where people seem easily deportable," said David Martin, a professor of law at the University of Virginia, who witnessed the appeals pile up firsthand as general counsel of Immigration and Naturalization Services from 1995 to 1998.

Martin traces the backlog to more aggressive enforcement beginning in the mid-1990s.

"General enforcement levels doubled roughly, but the appeals level went up fivefold," he said.

Justice Department officials are reluctant to acknowledge a direct relationship between increased enforcement and immigration appeals. Elaine Komis, in the Department's Executive Office for Immigration Review, noted that Homeland Security retains "prosecutorial discretion," and that not all illegal immigrants have the right to a trial.

The majority of the 2,179 illegal immigrants apprehended in "Return to Sender" were charged with "administrative immigration violations," and will face an immigration judge.

Tim Counts, a spokesman for Immigration and Customs Enforcement, said that "in general, someone with no criminal record would likely be released." According to Counts, the majority of illegal immigrants in detention are considered threats to the community or flight risks.

As Homeland Security ramps up interior enforcement, some legal experts expect immigration appeals to continue to flood circuit courts.

"The more cases [Homeland Security] presses, the more appeals there will be, because there will inevitably be injustices and inaccuracies to remedy," said Elizabeth Wydra, an attorney based in San Francisco, who previously argued immigration cases in the Fourth Circuit.

Petitioners in immigration cases are not assigned attorneys by the government, and without legal assistance, their cases tend to languish, Wydra said.

"Procedurally, this is a difficult area of the law," she said. "I've had cases where I was appointed pro bono counsel that took about one year from appeal of the BIA decision to the argument. In other cases, when I have been appointed down the line, procedural issues have been kicked around for four years."

Wydra represented a Mexican national last December, which she said took a year and a half from filing the appeal to the argument phase. But even with Wydra's help, the petitioner, who alleges he was tortured in Mexico on account of his sexual orientation, is still waiting for the court's decision.

Lawmakers have not been blind to the circuit courts' dilemma, and the Senate Judiciary Committee convoked a panel of circuit court judges on April 3 to discuss a reform of the immigration appeals system.

Judges present expressed a concern that with increasing delays in resolving immigration appeals, illegal immigrants would have a greater incentive to appeal cases.

"Even if the appeal lacks all merit, the backlog of cases in the circuit courts provides an incentive to appeal by almost guaranteeing a significant delay in deportation," testified Carlos Bea, a judge on the Ninth Circuit, which faced nearly 17,000 pending cases in December 2005.

If a backlog rewards illegal immigrants seeking to postpone their deportation, it places others with a legitimate claim to legal status at a disadvantage, according to Jonathan Cohn, deputy assistant attorney general of the Justice Department's civil division.

"Because they have to wait longer for an adjudication of their claims, they are without lawful status - and the benefits associated with that status - for a longer period of time," Cohn testified on April 3.

Bea, at least, has firsthand experience in the appealing an immigration decision.

Once a Cuban citizen, he claims with some pride to be the only circuit court judge ordered deported by the U.S. government. Bea, while a legal resident of the U.S., left the country to play Olympic and professional basketball in Europe for a year. When he returned on a non-permanent student visa, an immigration judge ruled he had forfeited his permanent status, and ordered him removed.

Bea, then a student at Stanford University Law School, represented himself and won, becoming a U.S. citizen shortly afterwards.

He barely mentions that the appeal process lasted four years.

Could somebody explain to me why this has to go through the court system? I understand due process of law and innocent until proven guilty but does that apply to an illegal immigrant?

If the person is an illegal, and from what I have read in many, many articles when picked up they seem to mostly admit to it, why can't they just be deported without a court date.

And more to the point I do not believe they should be allowed to appeal the deportation decision once they have had their day in court. At that point they should be on the next mode of transportation out of here.

This is not brain surgery. If you're illegally in our country, you have broken the law. Illegals should have no rights and be deported immediately. If they desire to apply for asylum, have them do it outside our borders!