Thread: Prominant Judge Lends Support for Those Fearing Deportation

http://www.jsonline.com/news/nat/jul05/345027.asp

Prominent federal judge has lent support to those fearing persecution if deported

By NAHAL TOOSI
ntoosi@journalsentinel.com
Posted: July 30, 2005

People seeking asylum in the United States are gaining support from an unexpected source: the Chicago-based 7th Circuit U.S. Court of Appeals and, in particular, its best-known judge, Richard Posner.

By the Numbers
Immigration cases reaching the federal appeals court in Chicago:
50 in 2001
135 in 2002
236 in 2003
241 in 2004

Nationwide backlog for the Board of Immigration Appeals:
57,200 in 2002
32,100 in 2005

Sources: 7th Circuit U.S. Court of Appeals; U.S. Justice Department Executive Office for Immigration Review

The appeals court, which oversees Wisconsin, has seen a major jump in its immigration caseload since 2002, when the U.S. attorney general streamlined the processing of immigration cases to clear a huge backlog. The court has issued a string of opinions criticizing - sometimes in harsh tones - how immigration judges have ruled against asylum-seekers.

For asylum-seekers, the nation's circuit appellate courts are usually the last line of defense against being deported to countries where they claim they will be persecuted.

The people who have received a reprieve from the 7th Circuit hail from around the world, ranging from a Pakistani man who claimed he was kidnapped, beaten and stabbed for his family's political affiliations to an ethnic Albanian woman who feared returning to Kosovo, where she had been gang-raped and beaten by Serbian soldiers.

Immigration lawyers and advocates for asylum-seekers say they're surprised: The appeals court in Chicago has long been considered one of the most conservative in the country and has not had a reputation of being immigrant-friendly. Posner, who has written some of the most critical opinions, is one of the nation's most influential legal thinkers.

"This is a big surprise, and it is a major shift in the court's thinking on immigration issues," said Paul Zulkie, an immigration attorney in Chicago and past president of the American Immigration Lawyers Association. "But one should be careful. It has been limited to asylum cases."

That's still a problem, said Mark Krikorian, executive director of the Center for Immigration Studies, which favors tighter immigration controls. Asylum is one area within immigration law where the judicial branch has been extraordinarily active, invoking all sorts of reasons to allow people to stay in America, he said.

In a case decided in March, Posner laid out a handful of "disturbing features" that loomed large in the growing number of immigration cases reaching the appellate court. Among them: immigration judges' unfamiliarity with foreign cultures and a perceived insensitivity to translation problems.

A search of a legal database found that in 2004, the appeals court sided with the asylum seeker in about one-third of the asylum cases it decided, sending the cases back to the immigration judges.

Just three years before, the court handled far fewer asylum cases, and far fewer immigration cases overall.

But in 2002, while the nation still grappled with a response to the attacks of Sept. 11, 2001, then-U.S. Attorney General John Ashcroft decided it was paramount to make the immigration system more efficient. One way was to eliminate the backlog of 57,200 immigration cases - ranging from asylum to criminal deportations - that burdened the Board of Immigration Appeals, which reviews the appealed decisions of immigration judges. Both the board and the immigration judges are part of the Justice Department.

To do this, Ashcroft said the board could more often rely on single members instead of three-member panels when reviewing cases. He paved the way for the board to more often issue "affirmances without opinion," meaning it could agree with the immigration judge's opinion without issuing full opinions as to why. He also cut the number of immigration board members from 19 to 11, saying procedure, not personnel, caused the backlog.

As a result, immigrants who are denied a right to stay by the Board of Immigration Appeals are more often appealing to the federal appeals courts. Between 1995 and 2001, the 7th Circuit U.S. Court of Appeals received from 46 to 66 immigration cases annually. In 2002, the figure jumped to 135. In 2003 it hit 236, and last year it rose to 241.

But relatively speaking, the 7th Circuit has had it easy compared with its sister circuits. The 9th Circuit, which includes California, has been deluged by immigration cases since 2001 - getting nearly 6,000 in 2004.

Annual reports from the 7th Circuit do not break down immigration cases by type. But a search of the legal database Westlaw found that in 2004, at least 54 rulings dealt directly with claims from people denied asylum by the Board of Immigration Appeals, up from at least four in 2002.

Far more of the cases reach the appeals court without substantial written opinions from the board. In 2000, the appeals board issued affirmances without opinions in 118 cases. In 2004, it did so in 15,560 cases, about 32% of its decisions.

The rhetoric in some of the appellate court's resulting opinions, especially those authored by Posner, is tough.

"The immigration judge's conclusion . . . manages the difficult trick of being at once truthful and absurd," Posner wrote in an April 2004 ruling that dealt with people fleeing persecution in Kazakstan and Bulgaria. He went on to acknowledge that immigration courts have large caseloads, but wrote "we have never heard it argued that busy judges should be excused from having to deliver reasoned judgments because they are too busy to think."

In an e-mail, Posner declined to comment for this article.

In a written response, Elaine Komis, a spokeswoman for the Executive Office for Immigration Review at the Justice Department, would not comment on the rulings, writing "each case decision speaks for itself."

Erin Corcoran, a staff attorney for Human Rights First, a group based in New York, said it's useful to refer to 7th Circuit rulings when lobbying legislators who favor tighter restrictions on asylum-seekers precisely because of the court's conservative reputation.

Corcoran and other immigrant advocates say they hope that the appellate courts' mounting frustration - some rather harsh opinions have been issued in several circuits - could lead the Department of Justice to review the streamlining that occurred in 2002 and make the Board of Immigration Appeals more effective.

Now at the immigration board level, the cases "are not getting meaningful review - if they are, they don't know," said Erich Straub, a Milwaukee immigration attorney.

Komis disputed this.

"The BIA does not believe that (affirmances without opinion) meaningfully changed the board's role in any way," she wrote. "All appeals are reviewed thoroughly by a board staff attorney and by a board member or board members."

The backlog of cases has fallen from 57,200 to 32,100 since the streamlining.

Something has to be done to clean up this system like passing a law that restricts the evidence....it should be based solely on....do you have papers or not...if not, then off and out you go.

American Citizens should not be underwriting complex reviews on something as simple as are you here legally or not. Sure, they may need a chance to prove they are here legally...drive to their house and get their papers....download records from a computer...something simple that can take about 30 minutes or less if they are legal to verify. If they can't verify, then ff and out you go.

What is complicated about that?

It's a simple process as simple as returning a damaged item to the store. Either you have the receipt (papers) and can prove you bought it there (credit card receipt or store records or item number on the box) or you can't.

If you can't, then what store is going to hold a RETURN HEARING?

Get with the program....24 hour magitrates....open all day and all night....for the sole purpose of determining whether or not you have papers to be legally in the US or you don't.

It's not a hard question; it doesn't involve all these judges and review boards; and all this nonsense.

Among them: immigration judges' unfamiliarity with foreign cultures and a perceived insensitivity to translation problems.

OUR culture is what counts--not theirs.