BIA Appeals in Federal Courts Are a Long Shot

by Jason Dzubow

The reversal rate for BIA cases in all federal circuit courts for 2009 averaged 11.12%, according to the EOIR Immigration Law Advisor, vol. 4, no. 2.  The reversal rate has dropped every year for the last four years: 2009 (11.12%), 2008 (12.6%), 2007 (15.3%), and 2006 (17.5%). 

For aliens appealing adverse BIA decisions, the most difficult circuit court for 2009 was the Tenth Circuit, with a reversal rate of 1.8%–down from 18.0% in 2006!  The next most difficult court for immigrants was the Fourth Circuit (3.3%), followed by the Fifth Circuit (4.0%), the Second Circuit (5.5%) and the First Circuit (5.6%).  The courts with the highest reversal rates in 2009 were the Ninth Circuit (17.2%), the Third Circuit (16.4%), and the Seventh Circuit (14.3%).  Reversal rates for the remaining courts are: Sixth Circuit (8.6%), Eighth Circuit (7.7%), and Eleventh Circuit (7.1%).

There may be reason to question the accuracy of EOIR’s numbers:  The report separately lists reversals in federal circuit courts for the month of November 2009.  For the Fourth Circuit, the report states that the court decided 16 BIA appeals in November, and that all 16 were affirmed.  However, in at least one case–Baharon v. Holder, decided on November 24, 2009–the Court reversed the BIA’s decision.  This oversight might raise questions about the accuracy of EOIR’s reporting.  

Assuming that the overall EOIR numbers are accurate, there are different possible explanations for the varying reversal rates.  The most obvious reason is that some courts are more conservative than others on immigration issues.  Another possibility is that the quality of the immigration courts varies from jurisdiction to jurisdiction.  It is certainly true that some courts are more likely to grant asylum than others (for example, according to the TRAC database, New York IJs, on average, denied asylum in 31.2% of asylum cases; in Atlanta, IJs denied 85.7% of asylum cases).  This discrepancy could, in turn, be explained in different ways–the philosophy of the individual judges, the varying degrees of attorney representation in different regions of the country, the country of origin of applicants in the different jurisdictions.  The bottom line is this: In juridictions where the IJs make better (i.e., more legally proper) decisions, reversal rates in the federal courts should be lower. 

Theoretically at least, the BIA should mitigate discrepancies originating with the Immigration Judges.  So all things being equal, we should be able to attribute the varying reversal rates at the circuit level to the circuit courts themselves.  Of course, all things are rarely equal, and the BIA does not do enough to correct aberrant IJ decisions.  I think that the different reversal rates may be attributed both to the circuit courts and the Immigration Judges.  Maybe I am biased (I used to clerk for the Arlington, Virginia Immigration Court, located in the beautiful Fourth Circuit), but I believe the low reversal rate in the Fourth Circuit is partly due to the high quality of judges in Arlington and Baltimore.  Both those courts are relatively small and close to EOIR headquarters, and judicial appointments in both cities are coveted.  Not that I’m saying a 3.3% reversal rate is a good thing.  It’s just that I can’t totally blame the Fourth Circuit for it.

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Refugee Protection Act of 2010

by Jason Dzubow

Senators Leahy (D-VT) and Levin (D-MI) introduced the Refugee Protection Act of 2010 (S. 3113) on Monday.  The new bill seeks to ensure that legitimate refugees and asylum seekers are protected by the United States.  Key provisions of the bill:

Increased Protections for Asylum Seekers:

  • Eliminates the requirement that asylum applicants file their claim within one year of arrival.
  • Protects particularly vulnerable asylum seekers by ensuring they can pursue a claim even where their persecution was not socially visible.
  • Ensures fair process by requiring an immigration judge to give notice and an opportunity to respond when the judge requires corroborating evidence of the asylum claim.
  • Gives an applicant the opportunity to explain and clarify inconsistencies in a claim.
  • Enables minors who seek asylum to have an initial interview with an asylum officer in a non-adversarial setting.
  • Allows the Attorney General to appoint counsel where fair resolution or effective adjudication of the proceedings would be served by appointment of counsel.

Reforms to the Expedited Removal Process:

  • Requires the referral of asylum seekers to an asylum officer for a credible fear interview, and, if credible fear is found, for an asylum interview. 
  • Authorizes the United States Commission on International Religious Freedom to conduct a new study on the effects of expedited removal authority on asylum seekers.

Parole of Asylum Seekers:

  • Codifies the current DHS policy that asylum seekers be considered for release (“parole”) and requires DHS to issue regulations establishing criteria for parole.
  • Establishes a nation-wide, secure “alternatives to detention” program.
  • Requires changes in the immigration detention system to ensure asylum seekers and others have access to counsel, medical care, religious practice, and visits from family.

Terrorism Bar to Admissibility:

  • Modifies definitions in the statute to ensure that innocent asylum seekers and refugees are not unfairly denied protection as a result of the material support and terrorism bars in the law, while ensuring that those with legitimate ties to terrorist activity will continue to be denied entry to the United States.

Protection for Refugees and Asylees:

  • Eliminates the one year waiting period for refugees and asylees to apply for a green card. 
  • Allows certain children and family members of refugees to be considered as derivative applicants for refugee status.  All such applicants must pass standard security checks. 
  • Authorizes the Secretary of State to designate certain groups as eligible for expedited adjudication as refugees. 
  • Prevents newly resettled refugees from slipping into poverty by adjusting the per capita refugee resettlement grant level annually for inflation and the cost of living. 

The bill was praised by immigrant advocacy groups such as the National Immigration Forum, the International Rescue Committee, and the ACLU.

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We Need More Judges

by Jason Dzubow

Syracuse University’s Transactional Records Access Clearinghouse (TRAC) has issued a new report confirming what immigration attorneys already know: the waiting time for cases in the Immigration Courts is longer than ever.  From my experience, a typical case in the over-burdened Arlington, Virginia court takes almost two years.  It turns out, Arlington isn’t the slowest court in the land:

From the TRAC website:

Cases awaiting a hearing in the nation’s Immigration Courts reached an all-time high of 228,421 in the first months of FY 2010, according to very timely government enforcement data obtained by the Transactional Records Access Clearinghouse (TRAC). The current number of pending cases is up 23 percent just since the end of FY 2008, and 82 percent higher than it was ten years ago.

Wait times also vary markedly from one court to the next. At one extreme there are the Los Angeles and Boston Immigration Courts where pending cases have now been waiting for an average of 713 days and 612 days, respectively. At the other extreme, there is the Florence, Arizona Immigration Court with an average wait time of 75 days and the Miami (Krome) Immigration Court with 82 days.

I imagine that the courts in Florence and Miami are faster because those locations deal primarily with detained immigrants.  The courts make detained cases a priority.  Not, as you might expect, because the alien is in detention, but rather because the alien is in detention at government expense. This is made clear when you view the courts’ files, which are prominently labeled, “Detained at Government Expense.”

The problem could be alleviated (or at least ameliorated) if the Department of Justice would begin filling some of the 48 immigration judge vacancies.  Indeed, according to TRAC, since 2007, the number of immigration judges has actually gone down (from 229 to 227) while the case load has increased dramatically.  The backlog has resulted in difficult waits for asylum seekers and others caught in the system.

In a strongly-worded response to TRAC, EOIR Acting Director Thomas Snow calls the report “unbalanced” and states that it fails to acknowledge EOIR’s efforts to fill the vacant positions.  Acting Director Snow points out that 15 judges are in the final stage of the selection process, and EOIR is interviewing hundreds of candidates to fill the remaining IJ openings.  For aliens in the system, the process cannot move fast enough.  To properly enforce the nation’s immigration laws, ensure due process, and fulfill our humanitarian obligations, we need more judges.

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Immigration “Consultants” and Fraud

by Jason Dzubow

When asylum seekers arrive in the United States, they are often unfamiliar with how to file for asylum and how to find help with their cases.  Such people commonly hire “consultants” (or “notarios” in the Spanish-speaking community) to assist them.  The consultants prepare the case and sometimes attend the asylum interview as an interpreter.  They charge a fee–often the same or a little cheaper than a legitimate attorney.  Sometimes these cases succeed and asylum is granted.  More frequently, the case is denied and referred to the Immigration Court.  Other times, the consultant just takes the money and runs. 

The ABA (American Bar Association) has created a program called Fight Notario Fraud to help report and crack down on consultant fraud.   From the ABA website:

Unscrupulous “notarios” or “immigration consultants” have become an increasingly serious problem in immigrant communities throughout the United States. Often using false advertising and fraudulent contracts, notarios hold themselves out as qualified to help immigrants obtain lawful status, or perform legal functions such as drafting wills or other legal documents. Unethical Notarios may charge a lot of money for help that they never provide. Often, victims permanently lose opportunities to pursue immigration relief because a notario has damaged their case. The [American Bar Association] Commission is working to provide immigrant communities with information about this dangerous practice, and to support advocates who represent victims.

Unfortunately, as the ABA notes, consultant “fraud is usually identified after the fact, when an immigrant has already suffered an adverse event as the result of a consultant’s services.”  If you have been a victim of consultant fraud, you can report the fraud to the ABA, and they may be able to assit you.  Submit your contact information and a description of the problem here.

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How Confidential Is the Asylum Process?

by Jason Dzubow

Asylum in the United States is meant to be a confidential process.  However, it is not uncommon for the BIA and the federal circuit courts to identify asylum seekers by name in their decisions, and to describe the applicants’ claims of persecution.  We lawyers sometimes wonder whether anyone in the home country ever learns about such cases.

In a recent example from the Ninth Circuit, a Cambodian couple was denied asylum before the Immigration Judge and the Board of Immigration Appeals.  They filed a petition for review with the U.S. Court of Appeals for the Ninth Circuit, which was denied. See Kin v. Holder, No. 05-73079 (9th Cir. Feb. 18, 2010).  Someone in Cambodia was paying attention, and the case recently appeared in the English language Phnom Penh Post:

Two Sam Rainsy Party (SRP) members who say they were tortured by authorities after participating in a 1998 political rally have had their bid for political asylum in the United States blocked by an appeal court there. In a legal opinion filed on Thursday, Judge Richard C Tallman of the US Court of Appeals for the Ninth Circuit upheld an earlier ruling by the Board of Immigration Appeals (BIA) rejecting the pair’s asylum requests, saying their asylum claim was riddled with inconsistencies.

The article goes on to identify the couple by name, and to describe their claims of persecution in detail.  The article concludes:

Senior CPP [Cambodian People’s Party – the ruling party of Cambodia] lawmaker Cheam Yeap could not confirm or deny the validity of the allegations raised by Kin Sambath and Prak Bunnary, but stated that peddling falsehood was not uncommon for the opposition. “It is characteristic of the SRP that they raise untrue issues because they want to live in a third country,” he said.

Now that the Ninth Circuit’s decision has exposed the names and stories of the two asylum seekers and a “Senior CPP lawmaker” is aware of their claims, they may have an argument to reopen their case in the U.S.: Even if their initial stories were not credible, the Cambodian government has become aware that they applied for asylum in the United States.  The very fact that they made this application–and accused the Cambodian government of persecuting them–might result in the government punishing them upon their return.  And that may be enough to support a new claim for asylum.

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ABA Recommends Creation of Independent Immigration Courts

by Jason Dzubow

From Human Rights First:

After conducting a comprehensive review of the U.S. immigration adjudication system, the American Bar Association (ABA) Commission on Immigration released is long-anticipated report, “Reforming the Immigration System: Proposals to Promote Independence, Fairness, Efficiency and Professionalism in the Adjudication of Removal Cases.” The study found that pressures on the adjudication system have grown exponentially in recent years, as the number of people in immigration proceedings has increased and immigration enforcement efforts have heightened. The study recommends the creation of an independent immigration court, either as an Article I court or as an independent agency. It also makes a series of recommendations related to funding and staffing and suggests legal changes necessary to improve the fairness and efficiencies of immigration processes.

The full report is available here.

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The Fourth Circuit and Asylum

by Jason Dzubow

Among lawyers (like me) who practice in the U.S. Court of Appeals for the Fourth Circuit, there has been ongoing speculation about whether the conservative court is moving to the left.  AILA’s Immigration Slip Opinions discusses several positive asylum decisions from the last few months, including my case, Baharon v. Holder, 588 F.3d 228 (4th Cir. 2009).   The one common factor in these cases is Judge Gregory, who seems to favor a more expansive judicial review of asylum cases than many of his colleagues.  The Fourth Circuit has traditionally been considered very conservative when it comes to immigration cases in general, and asylum cases in particular, but that may be changing.  The newest judge, Barbara Milano Keenan, confirmed last week may further tip the balance.  And there are currently four more vacancies on the Court.  We’ll see if the new appointments make the Fourth Circuit friendlier terrain for asylum seekers.

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