March 25, 2006
In Bills' Small Print, Critics See a Threat to Immigration
By RACHEL L. SWARNS
WASHINGTON, March 24 - A little-noticed provision in two key Senate immigration bills would reshape the handling of immigration appeals cases and has touched off an outcry from several legal scholars, federal judges and the policy-making group for the federal courts.
The measure would designate the United States Court of Appeals for the Federal Circuit here, an administrative court that focuses primarily on patent cases and currently handles no immigration appeals, as the only court in the nation to handle immigration appeals. Such appeals are currently shared by the 12 other federal appellate courts.
The judges and scholars say that the circuit court in Washington, which handles about 1,500 nonimmigration cases a year, would be swamped by an additional 12,000 immigration cases. And they say that the court lacks the expertise to handle complex immigration cases, which often raise a host of constitutional and human-rights issues.
The question of how these cases are handled is particularly sensitive because federal appeals judges have sharply criticized what they have described as a pattern of biased and incoherent decisions from immigration judges in asylum cases, which make up the bulk of immigration appeals.
The two bills - one by Senator Arlen Specter, Republican of Pennsylvania and chairman of the Senate Judiciary Committee, the other by Senator Bill Frist, Republican of Tennessee and the majority leader
- were intended in part to ease the burden on the nation's federal appeals courts, which have had a sharp increase in immigration cases.
The provisions may come up for a vote in the Senate as early as next week.
Judiciary Committee staff members said that designating a single court to handle the cases would ensure a consistent standard for immigration decisions and discourage immigrants from shopping for favorable courts.
They said that immigration lawyers would also be assigned to the court to help enhance expertise and that the number of judges would be increased to 15 from 12.
"You're trying to avoid forum shopping and trying to create a uniform national policy for immigration," said a senior aide to Mr. Specter who spoke on condition of anonymity because details of the legislation were still being negotiated.
But Richard A. Posner, a prominent federal appeals judge in Chicago, said the measures were "not a sound solution."
Even with the three additional judges, Judge Posner said, the annual caseload would surge to 900 per judge from 125.
"I cannot think of an area of law that is more remote from immigration than patents," the judge wrote to Senator Richard J. Durbin, an Illinois Democrat on the Judiciary Committee. "No doubt the judges of the federal circuit can become knowledgeable about immigration law, but they will be overwhelmed by the new caseload."
Leonidas Ralph Mecham, secretary for the Judicial Conference of the United States, a group of judges who make policy for the federal courts and who present the judiciary's views to Congress, raised similar concerns.
"No sufficient justification to support changing the status quo and shifting these cases from the regional courts to the Federal Circuit has been provided," Mr. Mecham wrote to Mr. Specter.
The judges also raised concerns about a proposal that would appoint a single judge to decide whether immigration cases were worthy of consideration for appeal. If the judge declined the case, no further review would be available.
Mr. Durbin said he planned to offer an amendment that would kill the measures, telling his colleagues on the Judiciary Committee that it would be premature to make such changes before holding hearings.
But the senior aide to Mr. Specter strongly defended the measure, noting that the Federal Circuit would have fewer cases than many of the federal appeals circuits, even with the additional workload. He also pointed out that most of the Federal Circuit's judges were generalists, not specialists, before they were appointed.
The surge in immigration appeals occurred after Attorney General John Ashcroft made changes in 2002 to streamline appellate review within the immigration courts.
Many appellate judges say those changes essentially shifted work to them. Immigration cases accounted for about 17 percent of all federal appeals cases last year, up from 3 percent in 2001. In New York and California, nearly 40 percent of federal appeals involved immigration.
Critics of the new legislation say that shifting appeals to Washington is misdirected and that a better solution would be to add resources to the overstrapped local immigration courts and to an interim-level immigration appeals court, known as the Board of Immigration Appeals.
They said proposed increases in financing were inadequate, leaving immigration judges overburdened and threatening immigrants' rights to federal review.
"Congress needs to address the virtual collapse of the immigration judge and appeals system, not deny immigrants a chance to have their day in federal court," said Lucas Guttentag, director of the American Civil Liberties Union's immigrant rights project.
The American Intellectual Property Law Association, which represents 16,000 lawyers, also objects to the change, saying the caseload increase would hurt the way patent cases are handled.
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