Congress Gets Three Views of America's Immigration Courts

By David North on June 18, 2010

Remember the story about the blind men who examined different parts of an elephant and came up with widely differing views of what it was? The man who felt the tusk was sure it was a big piece of polished wood, the one who touched the trunk said it was a snake, and the one who grasped one of the legs called it a tree.

This is essentially what happened yesterday at a hearing of the immigration subcommittee of the U.S. House of Representatives regarding the nation's immigration courts. It was hard to tell that the witnesses were describing the same entity.


"These are play courts," according to ex-Immigration Judge Mark H. Metcalf. "The present court system – one without authority, one diminished by abuse – is broken."

He complained in his testimony that these courts could not order someone to leave the country, that was up to ICE (Immigration and Customs Enforcement), but the courts could, and did, grant legal status in the nation on their own authority. ICE frequently does not follow through on court orders that a given alien is deportable.

"From 2002 through 2006 50.3 percent of all aliens summoned to court disappeared," he said.

The immigration courts in question are those under the umbrella of the Executive Office of Immigration Review (EOIR), in the U.S. Department of Justice and include the several hundred immigration judges who hear, among other things, asylum cases, as well as the appellate body, the Board of Immigration Appeals (BIA). If one loses a case at the BIA level, one can appeal to the U.S. Circuit Court of Appeals, which is part of the main federal judicial system.

The subcommittee was holding one of its periodic oversight hearings regarding the immigration courts.

While Judge Metcalf complained about a powerless entity, the witness for the American Bar Association, Karen T. Grisez, in her testimony lamented a system that had a "lack of independence," "large caseloads and inadequate resources," "inadequate decisions and reasoning," "too few judges" and "a lack of adequate staff support . . . On average there is only one law clerk for every four immigration judges."

She also deplored a new BIA procedure, designed to reduce backlogs, that assigned many cases to single-member reviews, as opposed to less frequent assignments of cases to panels of judges, or to en banc decisions by all 15 BIA members sitting on a single case. She quoted a GAO report that "found only 7% of the single-member decisions favored the alien in asylum appeals, compared to 52% of panel decisions."

She did not elaborate on that puzzling pair of numbers. Why would the same set of judges, when acting alone, nearly always say no to an appellant while, when sitting with other judges, usually say yes? Were the more attractive cases assigned to panels, while the easy-to- reject ones were given to single members?

The administration witness, Juan P. Osuna, the Associate Deputy Attorney General, had a more benign view of matters. In his testimony he pointed out that the Justice Department had hired and trained more immigration judges, that the government was spending more on the system, and that the rate of judicial rejection of BIA decisions had fallen from 17.5 percent in 2006 to 11.2 percent in 2009.

In reply to a question from the subcommittee chair, Rep. Zoe Lofgren (D-CA), he said that so far this year the rate had fallen to about 10 percent.

Lofgren and the ranking minority member, Rep. Steve King (R-IA), were the only two members of the subcommittee to attend the whole hearing; three Democratic members stayed long enough to ask questions of Osuna, and then went away. King was the only Republican present at any time. There were plenty of empty seats in the room. Meanwhile, on the other side of the hall in the Rayburn House Office Building, the chief executive of British Petroleum was speaking and there was a huge noisy scrum of reporters, cameramen, and people wanting to watch that hearing.

King asked some general immigration court questions of the witnesses but spent much of his time trying to bring what he called "America's most famous asylum case" into the discussion.

This was the recent decision of a Boston-based immigration judge to reverse an earlier decision and grant asylum to President Obama's father's half-sister, Zeituni Onyango. King's efforts to get her to be a witness at this hearing had been reported in the press earlier.

Lofgren, as chair, had not cooperated with King's moves to get the committee to subpoena Ms. Onyango, and the lady had declined to appear voluntarily. King's effort to get a copy of the asylum hearing transcript had been similarly foiled. (Had the majority of the committee wanted it, it could have had the file.)

In reply to questions about the Onyango case, Osuna said that as far as he was concerned there was no indication that any White House intervention had occurred. Judge Metcalf, a minority witness, replied to a question from King about the case saying that this sort of thing happened all the time, and that was the problem.

Ms. Onyango had applied for asylum, been turned down by an immigration judge in 2004, and had been ordered to leave the country. She did not do so, and revived her asylum application recently, and got a favorable decision this time.

While I can understand King's suspicions, my sense of the situation (with absolutely no inside information) is that any immigration judge faced with a decision like this one would be likely to rule the same way. The case was about Kenya, after all, which is no Sweden; and Ms. Onyango, who went to court in a wheelchair, had no criminal record. Why rock the boat when the applicant in question was related to the president? And when that president was on record as advocating comprehensive immigration reform which would have, presumably, granted amnesty to the likes of his half-aunt?

My further speculation is that both the president and Attorney General Eric Holder probably viewed the situation as suggested in the prior paragraph, so why risk a terrible scandal by trying to intervene, a maneuver that might be difficult to keep secret?

Maybe there is more to it than I see, and, if there is, we will certainly hear about it.