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Immigration Reforms Result in Fewer Judges, More Prosecutors

Wednesday, August 27, 2008

  • Daily Journal

When Scott Laurent was named an immigration judge in 2007, his selection coincided with an ambitious federal plan to revamp the nation's troubled immigration courts.
The initiative called for additional funding to help the immigration bench deal with a crushing caseload that often included life-or-death asylum claims.
But nearly two years after then-Attorney General Alberto Gonzales introduced the reforms, much of the plan remains on paper.
Fewer judges are on the bench today than in August 2006, when Gonzales launched the 22-point initiative.
This year's annual training conference for judges was canceled because of budget problems.
And prospective new judges, such as Laurent, who is assigned to a Lancaster immigration court, have yet to hear a single case. Their appointments are stalled by budget woes and the scandal over the politicized hiring of immigration judges.
"If the department doesn't pay closer attention to immigration courts, the courts are in danger of collapsing under the weight of the caseload," said a Department of Justice official, not speaking on behalf of the department.
Now, some people are asking why Gonzales' 2006 plan to increase court funding led to fewer resources, while agencies charged with prosecuting immigrants received big budget increases, creating serious due process concerns.
The lopsided funding has created serious problems, say critics, who fear judges face new backlogs while prosecutors ramp up criminal charges.
"The core issue here is due process," said Crystal Williams, of the American Immigration Lawyers Association, a Washington D.C.-based trade group that represents some 10,000 attorneys.
"We've seen a tremendous uptick in enforcement spending and no uptick in court spending," said Rep. Zoe Lofgren, a San Jose Democrat who chairs the House immigration subcommittee.
Between 2006 and 2008, the budget for Immigration and Customs Enforcement legal proceedings unit, composed of attorneys who prosecute cases in immigration court, increased 62 percent. At the same time, the U.S. Department of Justice nearly doubled the ranks of government attorneys assigned to litigate deportation or detention orders in federal circuit courts.
Known as the Office of Immigration Litigation, the unit's number of attorneys increased from 123 in July 2006, to 245 in July 2008, according to Justice Department records. That number is expected to hit 300 in the coming year.
Charles Miller, a spokesman for the Justice Department, said it does not track the immigration litigation unit's budget. However, the Justice Department's budget requests submitted to Congress and available online indicate base funding for immigration litigation increased from $26.1 million in 2006, to $56.8 million in 2008.
Yet, if prosecutors saw their budgets double, the money was slow in coming to the courts.
Between 2006 and 2008, funding for the immigration courts and its appellate division, called the Board of Immigration Review, increased a mere 13 percent. During that time, the number of sitting immigration judges not only failed to increase, it fell by one, dropping from 218 in Aug. 5, 2006, to 217 on Aug. 18, 2008.
"Under the plan, we were promised additional resources," said Dana L. Marks, an immigration judge in San Francisco and president of the judges' union. "Yet none of those resources have been forthcoming.
"To the contrary, we are getting less. We are losing resources at a time when the caseloads continue to increase and the complexity of the cases is increasing exponentially."
The lack of resources is not disputed.
In 2006, Gonzales acknowledged the immigration courts were in trouble after a flurry of federal circuit courts decisions rebuked immigration judges for intemperate behavior and flawed rulings.
Gonzales responded by promising money, and unveiling his plan that called for performance reviews for judges, a court handbook, more training, new courtroom technology and additional staff.
In a March 2007 speech to the Judicial Conference in Washington D.C., Gonzales announced the money was in the pipeline.
"I am pleased to report that in our fiscal 2007 appropriation Congress has approved our request for 120 additional immigration judges, staff attorneys and law clerk positions," Gonzales told the federal judges.
And he promised more judges would be hired the following year.
That help never arrived.
Congress approved the extra funding for 20 new judges and 100 staff members for fiscal 2007, but the funding was ultimately used for other things, officials said.
"Just as the fiscal year 2007 budget was approved in December 2006, the Justice Department imposed a hiring freeze for immigration judges until new hiring procedures could be adopted," said Susan Eastwood, a spokeswoman for the Executive Office for Immigration Review, which also oversees the hiring of judges.
"They never filled the positions," said David Burnham, co-director of Syracuse University's Transactional Records Access Clearinghouse, a nonpartisan group.
The TRAC report found Gonzales' plan resulted in fewer judges handling more cases and having less time to decide cases often involving asylum claims.
The hiring freeze was in response to the scandal involving the illegal political hiring of immigration judges with strong Republican Party credentials but little or no immigration experience.
The scandal became public in May 2007, after Monica M. Goodling, a Justice Department official who served as liaison to the White House, told Congress she considered politics when recommending candidates for immigration judge positions.
Immigration judges and the members of the Board of Immigration Review are career civil servants, not political appointees.
Last month, an inspector general's report found Goodling and other Justice Department officials broke the law and caused long delays in appointing immigration judge when they nominated candidates with strong party ties.
Among those candidates recommended by the White House was Garry Malphrus, a former staff member to a Republican senator from South Carolina and a member of the Bush-Cheney Florida recount team in 2000, who had no immigration experience.
"Malphrus did not submit an application to become an immigration judge and was never formally interviewed," the inspector general's report said.
Nontheless, he was appointed to the bench in March 2005 and promoted to the Board of Immigration Review this month.
At least one candidate nominated by the White House was so questionable he was rejected for the post. The candidate, a big GOP donor, was dropped after he "used profanity during the interview, acted abrasively and, when asked what his greatest weakness was, responded 'blondes,'" according to the inspector general's report.
The ensuing scandal and hiring freeze fueled the crisis at the immigration courts.
The new political litmus test led to "delays in appointing immigration judges, which increased the burden on the immigration courts that were already experiencing an increased workload," the report found.
New jobs went unfilled, and new vacancies were created as judges retired or quit.
At the same time, immigration agents ramped up enforcement of existing immigration laws, creating new cases for the immigration courts.
Last year, 334,000 cases were filed in immigration court.
"This means greater delays in a system that is already saddled with a lot of problems," said David Martin, former general counsel to the Immigration and Naturalization Service and now a law professor at University of Virginia School of Law.
Among the courts hardest hit is Los Angeles, considered the busiest court in the nation in 2007.
Twenty-five judges had 38,000 cases pending by July 2008, according to the Justice Department.
"I've never seen it this bad," said Niels Frenzen, a professor at University of Southern California's Gould School of Law, who oversees the immigration clinic.
"It's not that the system is moving slowly, it feels as if it's grinding to a halt," Frenzen said. "I've known some of the judges for more than a decade, and you hear them in open court saying they are at their wits' end."
Among those who struggled was Gilbert T. Gembacz, a Los Angeles immigration judge who retired in June, after nearly a decade on the bench.
"On average, everyone handles in excess of 1,000-plus cases at any given time," Gembacz said.
"We are playing calendar roulette," Gembacz said. "We may schedule five to eight cases in the morning and another five to eight cases in the afternoon. Usually, only two of those cases are ready to go, but the question is what happens if they all move forward?"
The crisis has pushed many judges to the edge, adopting time-saving measures rarely seen in other courtrooms.
At the Lancaster immigration court, housed inside the Mira Loma Detention Center, Judge William J. Nickerson Jr. begins most days facing a group of immigrants clad in blue uniforms. Most of the men can't afford an attorney. Unlike criminal defendants, immigration detainees are not assigned public defenders because the proceedings are considered civil.
Nickerson begins by conducting an en masse rights advisory presentation to the dozen men sitting before him. A translator simultaneously speaks in Spanish, often drowning out the judge's words.
The presentation is intended to inform immigrants of the basic rules, including the evidentiary rules of the court and their right of appeal.
At times, some of the dozen immigrants lean forward, straining to hear Nickerson and the translator, whose words are nearly inaudible. Some of the men raise their hand and ask questions, while others appear confused.
Nickerson is one of two judges at the Lancaster court. More than 8,500 cases were filed before them in 2007.
The Lancaster court's caseload is expected to increase this year as the number of detainees increases from 800 to 1,400, as part of a planned expansion at the facility.
Help is expected to arrive this month when Laurent finally takes the bench. A former immigration trial attorney, he was selected last August, but his appointment stalled because of a rigorous new application, evaluation and interview process that can take a year, according to the Justice Department.
The immigration courts' troubles are hardest on detained immigrants, some of whom are waging life-or-death battles to stay in the United States.
"This puts tremendous pressure on detained immigrants to give up their cases, especially if you are sitting in an overcrowded facility with poor health care," Frenzen said.
He said one client sat in an immigration detention center two years, while the immigrant's case wound its way through the immigration courts.
Similar accounts are offered by some of the immigrants once held at the San Pedro facility that abruptly closed last year. Many of those immigrants spent more than a year in detention while their cases were rescheduled or moved to new court venues.
Frenzen said such delays could leave immigrants and families in a dangerous kind of limbo.
"Many of our clients have very strong claims, and in some cases, the delays have endangered the lives of family members," Frenzen said. "We have clients who have spouses and children in hiding. So the delays and our inability to win relief means we can't get those family members out of the country."

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