Courts Criticize Judges' Handling of Asylum Cases

December 26, 2005
By ADAM LIPTAK, NY TIMES

Federal appeals court judges around the nation have repeatedly excoriated immigration judges this year for what they call a pattern of biased and incoherent decisions in asylum cases.

In one decision last month, Richard A. Posner, a prominent and relatively conservative federal appeals court judge in Chicago, concluded that "the adjudication of these cases at the administrative level has fallen below the minimum standards of legal justice."

Similarly, the federal appeals court in Philadelphia said in September that it had "time and time again" been forced to rebuke immigration judges for their "intemperate and humiliating remarks." Citing cases from around the country, the court wrote of "a disturbing pattern" of misconduct in immigration rulings that sent people back to countries where they had said they would face persecution.

The harsh criticism may stem in part from a surge in immigration cases before the federal appeals courts. Immigration cases, most involving asylum seekers, accounted for about 17 percent of all federal appeals cases last year, up from just 3 percent in 2001. In the courts in New York and California, nearly 40 percent of federal appeals involved immigration cases.

The increase occurred after Attorney General John Ashcroft made changes in 2002 to streamline appellate review within the immigration courts, which are part of the Justice Department.

Many federal appeals court judges say those changes essentially shifted work to their courts. The Justice Department counters that the increase is largely unrelated to the Ashcroft changes and is instead the result of a higher rate of appeals in the courts in New York and California.

Jonathan Cohn, a deputy assistant attorney general in the Justice Department, said the quality of the decisions rendered by the immigration courts on the whole was good, noting that the government won more than 90 percent of the cases in the federal appeals, or circuit, courts.

"The circuit courts do not see any of the tens of thousands of correctly decided cases that aliens choose not to appeal," Mr. Cohn said. "They're only seeing a fraction of the cases, and only a small fraction of those give rise to criticism."

But that criticism can be very sharp, particularly given the temperate language that is the norm in the federal appellate courts.

In the Philadelphia decision in September, Judge Julio M. Fuentes of the United States Court of Appeals for the Third Circuit had this to say about Annie S. Garcy, an immigration judge, or I.J., in Newark: "The tone, the tenor, the disparagement, and the sarcasm of the I.J. seem more appropriate to a court television show than a federal court proceeding."

Judge Garcy ordered Qun Wang returned to China, where he said his wife had been forcibly sterilized. "He's a horrible father as far as the court's concerned," Judge Garcy ruled, saying Mr. Wang was obsessed with having a son and did not pay enough attention to his daughter, who is disabled.

All of that was irrelevant to the issues before Judge Garcy, Judge Fuentes wrote, returning the case to the immigration system for a rehearing before a different judge. "The factual issue before" Judge Garcy, Judge Fuentes wrote, had been only "whether Wang's wife had been forcibly sterilized and whether, if he returned to China, the Chinese government would inflict improper punishment on him for leaving the country."

Through a spokeswoman, Judge Garcy declined to comment.

In another decision, Judge Marsha S. Berzon of the United States Court of Appeals for the Ninth Circuit, in San Francisco, said a decision by Nathan W. Gordon, an immigration judge, was "literally incomprehensible," "incoherent" and "indecipherable." A crucial sentence in Judge Gordon's decision, she said, "defies parsing under ordinary rules of English grammar."

Judge Gordon ordered Ernesto Adolfo Recinos de Leon returned to Guatemala, notwithstanding Mr. Recinos's testimony that he would be persecuted there for his political activities. Judge Berzon sent the case back to the immigration system for another hearing.

Judge Gordon, now retired, did not respond to a request for comment.

A spokesman for the Executive Office for Immigration Review, the unit of the Justice Department responsible for immigration adjudications, declined requests for interviews with officials there but provided answers to written questions.

"We would caution against drawing broad conclusions," the statement said, "from a small number of cases in the federal courts." The nation's roughly 215 immigration judges, the statement continued, "handle more than 300,000 matters every year," and "the vast majority of I.J.'s do an excellent job given such a large caseload."

Denise Noonan Slavin, the president of the National Association of Immigration Judges, a union affiliated with the A.F.L.-C.I.O., said she was concerned about what she called the rising number of "scathing opinions" from federal appeals court judges.

"To go name-calling and having an open season on judges, it's crossing the line of civility," Judge Slavin said. "That is not to say that immigration judges don't make mistakes."

But Lory Diana Rosenberg, a former judge on the administrative body within the Justice Department that reviews decisions from immigration judges before they reach the federal appeals courts, said the recent criticisms were warranted.

"They're a brave, honest and proper reaction," Ms. Rosenberg said, "to a pattern of unfettered misuse of authority."

Mary M. Schroeder, the chief judge of the Ninth Circuit, which hears almost half of all immigration appeals, said the current system was "woefully inadequate."

Immigration judges, she said, "are very unevenly qualified, and they work under very bad conditions."

The people who appear before immigration judges often do not speak English, and their cases often turn in part on changing political and social conditions around the world. In a decision in March, Judge Posner wrote that immigration judges' "lack of familiarity with relevant foreign cultures" was "disturbing."

Judge Slavin, who sits in Miami, disagreed, saying she and her colleagues often had a sophisticated understanding of conditions in the most relevant countries, which are China for immigration judges in New York and Philadelphia; Eastern Europe for those in Chicago; Haiti, Columbia and Venezuela for those in Miami; and Central and South America for those in California.

"I know more about Haitian politics than the people coming before me," Judge Slavin said. But she acknowledged both the difficulty and the importance of her work.

"Immigration law can be life-or-death decisions in terms of whether you're going to send someone back to a place where they may be killed," Judge Slavin said. "I have over 1,000 cases on my docket. Most of us do about four decisions a day. In Texas, on the border, you might get 10 a day."

Judges at the top and bottom of the system blame the administrative body between them, the Board of Immigration Appeals, for the surge in appeals and the mixed quality of the decisions reaching the federal appeals courts. The board is meant to act as a filter, correcting erroneous or intemperate decisions from the immigration judges and providing general guidance. The losing party can appeal the board's decision to the federal courts.

But the board largely stopped reviewing immigration cases in a meaningful way after it was restructured by Mr. Ashcroft in 2002, several judges said.

Mr. Ashcroft reduced the number of judges on the board to 11 from 23. "They just hacked off all the liberals is basically what they did," said Ms. Rosenberg, who served on the board from 1995 to 2002.

Mr. Ashcroft also expanded the number of appeals heard by a single board member and encouraged the use of one-word affirmances in appropriate cases.

The goal of the changes, Mr. Ashcroft said, was streamlining. The board had a backlog of more than 56,000 cases, which fell to 32,000 by September 2004.

At a conference at New York Law School in September, John M. Walker Jr., the chief judge of the United States Court of Appeals for the Second Circuit, in New York, said the changes at the board level served to transfer its backlog to his court and other federal appeals courts.

"He just moved the problem from one court to another court," Judge Walker said of Mr. Ashcroft.

In the two and a half years after April 2002, said John R. B. Palmer, a staff lawyer at the Second Circuit, his court received twice as many appeals from immigration board decisions as it had in the previous 30 years combined.

Several federal appeals court judges said they were frustrated by the quality of the board's review of decisions from immigration judges.

In his March decision, Judge Posner wrote that the board often affirmed "either with no opinion or with a very short, unhelpful, boilerplate opinion even when" the immigration judge had committed "manifest errors of fact and logic."

As a consequence, Judge Walker said, "We're the first meaningful review that the petitioner has."

In its statement, the immigration review office said "we absolutely disagree" with Judge Walker's comment. "Each decision that comes before the board is carefully reviewed by a staff attorney and at least one board member," the statement said.

According to the office, the number of one-word affirmances dropped this year, to about 20 percent from about a third in previous years.

The solution to some of what recent criticisms identified as problems, several federal appeals court judges said, is to add positions to the immigration board and to require judges there to explain the reasons for their decisions.

"At least write a couple of pages, three pages," said Jon O. Newman, a judge on the Second Circuit. "It would really help us."

An article to be published early next year in the Georgetown Immigration Law Journal concludes that the shift toward the federal appeals court "was triggered by the high volume of B.I.A. decisions issued starting in March 2002, and a general dissatisfaction with the B.I.A.'s review."

In its statement, the immigration review office disagreed.

"The surge in federal appeals," the statement said, "is not related to the board's increased number of decisions but the rate of appeal." In some parts of the country, immigrants appeal only 7 percent of the time, the statement said. In the states covered by the federal appeals courts in New York and California, the appeals rate is now more than 30 percent.

At an argument in an appeal of an immigration case in September in Chicago, the three judges on the panel expressed exasperation with the current state of affairs.

"Does the Justice Department have any idea of what is happening to your cases in this court?" Judge Posner asked Cindy S. Ferrier, the government lawyer defending the decision of the immigration judge.

She said yes.

A second judge, Ilana Rovner, offered Ms. Ferrier a measure of sympathy.

"It is so cruel to send a lovely human being like you in here to be a messenger of such madness, such nonsense," Judge Rovner said.