Central deportation court opposed

Judges say plan to concentrate appeals in D.C. won't fix surge of poorly decided cases


WASHINGTON -- 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 question at issue might 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.

Republicans say a surge in the number of deportation appeals is swamping the 12 regional appeals courts. Their proposal to channel them all through a single court in Washington has ignited a firestorm of protest - some 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 have written to Senate Judiciary Chairman Arlen Specter. "Indeed, the reverse is likely."

The judges' opposition persuaded Specter, a Pennsylvania Republican, to temporarily remove the proposal from the mammoth immigration reform bill being debated in the Senate and to schedule a hearing on the controversy today.

In essence, Specter has proposed sending all immigration and asylum appeals - about 11,000 a year - to the court of appeals for the federal circuit. The court is one of the smallest in the federal system, handling just 1,500 cases a year, primarily patent and trademark cases. His proposal also would give just a single judge from the court the power to decide whether an appeal would proceed; currently, a three-judge panel must make those decisions.

Specter has said that concentrating the appeals in a Washington court would foster more consistency in decisions and relieve the burden on other federal judges.

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 former U.S. Attorney General John Ashcroft, including streamlining procedures and cutting in half the number of judges hearing immigration cases.

Now, about 200 immigration judges, who are part of the Department of Justice, 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 only 11 judges. The cases often get only cursory review by the immigration judges, and so many mistakes are made, federal judges contend, that 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 Judge Richard Posner of the 7th Circuit Court of Appeals in Chicago in a letter to the Judiciary Committee.

Posner noted that federal judges in his circuit were reversing 40 percent 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."

U.S. Attorney General Alberto R. Gonzales has acknowledged that the immigration courts and the board of immigration appeals have been doing substandard work.

Gonzales has not taken a position on Specter's proposal, and few senators are promoting it publicly. But Specter's staff members say he is determined to address the issue.

Immigration advocates say they suspect the plan's advocates are motivated by more than a desire for increased efficiency.

Congressional Republicans, they note, have long sought to divide up the 9th Circuit in San Francisco, which is seen as too big, too powerful and too liberal. With immigration appeals making up 40 percent of 9th Circuit cases, the court quickly would lose a sizable part of its workload and be more vulnerable to being split up, the advocates speculate. They also claim that the Washington court is ill-equipped to deal with such appeals.

"It's almost the last court you would want handling them," said Caroline Fredrickson of the American Civil Liberties Union.

Maura Reynolds writes for the Los Angeles Times.

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