Senate Holds Hearing on Immigration Courts, II

By David North on May 18, 2011

Congressional hearings on the immigration court system usually focus on resources and the length of the backlogs.

This morning's U.S. Senate Judiciary Committee hearing dealt with these subjects but also with some other matters:

  • the utility to the system as a whole – not just to the aliens involved – of having the aliens represented by counsel; and

  • the specific problems with deporting aliens to China and India.

(See my colleague Jon Feere's report on the hearing here.)

An alien caught up in the immigration courts does not have a right to government-funded counsel; as a result many aliens argue their own cases, sometime through an interpreter. These pro se situations exist not only in the Immigration Courts but in the two appellate levels as well, before the Board of Immigration Appeals, and, less frequently, before the U.S. Circuit Courts of Appeal.

Julie Myers Wood, who had been an Assistant Secretary of DHS in the previous administration, and who was one of the three witnesses today, was one of several voices at the hearing pointing out the delays often caused in the system by the lack of counsel. Aliens, acting on their own (and without benefit of legal training), will often file inherently useless appeals of decisions when a lawyer could have told them that there were no "grounds for relief."

Had a lawyer been involved, such cases would have been terminated without an appeal.

Ms. Wood's argument produced appreciative nods and comments from the panel's members, three of whom had been prosecutors earlier in their careers. Committee chair, Sen. Patrick Leahy (D-VT), noted: "a prosecutor has an easier time when he is facing a competent defense attorney."

Usually the argument is that the alien should have tax-supported counsel as a matter of fairness, since the government's side is always represented by an attorney.

The ranking minority member of the committee, Sen. John Cornyn (R-TX), asked if the nation of origin of the alien in proceedings played a role in the deportation process, and Ms. Wood said yes, unfortunately it does; she said that since neither India nor China were accepting of deportees that situation allowed some aliens to avoid being sent home.

She commented that the U.S. has many more significant issues with both countries, so that the deportation snags had not been addressed successfully in bi-national negotiations.

The title of the hearing conducted by the full Senate Judiciary Committee was "Improving Efficiency and Ensuring Justice in the Immigration Court System." See here for the full text of the testimony.

The other senators present were Chuck Grassley (R-IA), Al Franken (D-MN), who served as acting chair after Sen. Leahy left for another committee meeting, and Richard Blumenthal (D-CT). The other witnesses were Karen Grisez, a Washington, D.C., attorney, and Chair of the American Bar Association's Commission on Immigration, and Juan P. Osuna of the Justice Department.

Osuna had been promoted from Acting Director of the Executive Office for Immigration Review (EOIR) to permanent director the day before, according to a departmental press release, and the chair congratulated him on his appointment. Earlier in his career Osuna had been a member of, and later chair of, the Board of Immigration Appeals (BIA), a major component of EOIR. The Immigration Courts are also under Osuna's jurisdiction.

Grassley asked Osuna if he was "content" with the Attorney General's decision earlier in the month to send a BIA decision back to that body regarding the proposed deportation of an Irish illegal alien named Paul Wilson Dorman who was in a civil union with a male U.S. citizen. Holder's grounds for the order included the administration's decision not to defend the constitutionality of the Defense of Marriage Act, and other related matters.

Grassley was clearly not content with the Attorney General's decision, which was discussed in two CIS blogs here and here.

Osuna replied blandly that Holder (his boss) had the legal authority to overrule the BIA, that he did that rarely, and that in this case there were a number of issues for the BIA to consider.

Osuna had opened the hearing with a report of what he regarded as progress in the courts, the hiring of 50 new judges, and higher rates of confirmation, by the circuit courts, of BIA decisions. He also noted that 92 percent of all immigration court cases ended there, and that only 8 percent were appealed.

Ms. Grisez stressed the large caseload of the immigration judges, saying that while Immigration Judges, on average in 2008, handed down 1,014 decisions during the year, the comparable number for a Veterans Administration judge was 729, while administrative law judges in the Social Security System handled 544 cases, on average. She called for the hiring of enough additional immigration judges to bring the average annual caseload down to 700.

While Ms. Grisez did not quantify, in terms of number of judges, the hiring needed to reach the 700-cases-a-year goal, my back-of-the envelope calculations would be that this would increase the number of judges by 50 percent or more than 130 additional judges.

She contented herself, instead, in her written testimony, with supporting the Justice Department's budget request for "an additional 21 judge teams for fiscal year 2012" without quoting any dollar figures. (My sense is that unclogging these courts by simply adding more judges, and not making other major changes in the system, would be so expensive that no one at the hearing wanted to speak – or hear – the numbers.)

Ms. Grisez also said that court production could be increased, and the quality of opinions would be improved, if the immigration judges, instead of sharing one law clerk among four judges, had a whole clerk each. (That sounds modest, but it would involve hiring something like another two hundred clerks.)

The Center for Immigration Studies will, on May 24, conduct its own panel discussion on the immigration courts, at 9 a.m. at the National Press Club in Washington. That session will discuss a new report by a former Immigration Judge, Mark H. Metcalf, "Built to Fail: Deception and Disorder in America's Immigration Courts."