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Report on the New York State Bar Association Commercial and Federal Litigation Section Report: The Continuing Surge in Immigration Appeals in the Second Circuit: The Past, the Present and the Future
A Report of the Committee on the Federal Courts of the New York County Lawyers’ Association
January 27, 2010
The Committee on the Federal Courts endorses the report entitled The Continuing Surge in Immigration Appeals in the Second Circuit: The Past, the Present and the Future (the “Report”). While the Committee agrees with the proposals in the Report, we believe that these proposals do not go far enough and should include the following additional recommendations for managing and reducing the Second Circuit’s immigration docket while ensuring that the interests of justice, fairness and due process are not adversely affected:
The Report details the dramatic surge in the Second Circuit’s immigration case docket between 2002 and the present. Immigration cases, including primarily petitions for review of decisions of the BIA, currently make up an astounding 30-40 percent of the Second Circuit’s docket each year, These cases involve challenges by aliens to final orders of removal. issued by the BIA and to the BIA’s denial of motions to reopen removal proceedings.
Removal proceedings begin when DHS serves an alien with a charging document (currently a Notice to Appear) and then files that charging document with the Immigration Court. The Immigration Courts and the BIA are part of the Department of Justice’s Executive Office for Immigration Review (“EOIR”). Once the charging document is filed, an alien appears before an Immigration Judge (IJ) for a series of hearings to determine that alien’s removability and whether or not that alien is entitled to any form of relief from removal.
It is important to note the Immigration Court is an administrative tribunal not subject to many statutory and constitutional provisions. The Federal Rules of Evidence do not apply and the application of the Fourth, Fifth and Sixth Amendments is severely limited. According to the BIA, Department of Justice and DHS, there is only a privilege and not a right of an alien to representation by counsel at no expense to the alien. The protections of the Fourth Amendment have little application in removal proceedings, and the exclusionary rule does not apply. The Sixth Amendment is completely inapplicable to removal proceedings, and the Fifth Amendment only has limited applicability. An IJ is permitted to draw a negative inference where an alien refuses to testify on the basis of the Fifth Amendment’s protection against self incrimination, an especially problematic situation where an alien may be facing both removal proceedings and criminal prosecution at the same time.
If the IJ finds an alien removable and determines that he or she is ineligible for relief, the IJ will enter an order of removal against the alien. The alien has 30 days from the decision to file an appeal with the BIA. If the II finds an alien is not removable or he or she is eligible for relief from removal, the attorney for the government can appeal the IJ’s decision to the BIA. Once the BIA decides the case, the alien has a statutory right to petition for review to the United States Court of Appeals with jurisdiction over the case. Similarly, an alien with a final order of removal may move either the IJ or the BIA to reopen the proceedings. If the motion is denied, the same chain of appeals follows.
The Report describes the Second Circuit’s immigration caseload as “The Problem of Immigration Appeals.” Despite this characterization, it is important to note the substantial nature of the interests at stake in removal proceedings and the essentiality of judicial review. An alien seeking asylum, withholding of removal or protection under the Convention Against Torture is claiming a fear of torture or persecution in his or her homeland if returned. Persecution is defined as threats to an alien’s life or freedom. Thus, an erroneous determination of an alien’s claims (which can be caused by overwhelming dockets, limited staffing and decisions with limited reasoning) will likely send the alien back and place him or her directly in the hands of the alleged persecutor or torturer.
In non-asylum cases, removal proceedings usually involve the question of whether an alien may remain in the United States with his or her family. When an alien is removed, the alien and his or her family face two choices: separation from the family or relocation of the entire family, which frequently includes United States citizens and permanent residents, to another country. Once an alien is removed, he or she is ineligible to return to the United States for a minimum of ten years. He or she simply cannot come to the United States to visit family. Further, the cost of air travel for a family may be so prohibitive the alien will be unable to see his or her family unless they leave together. Thus, practically, removal often results in either the destruction of the family unit or the de facto deportation of United States family members with the alien. This penalty is perhaps significantly more severe than the penalties in many criminal cases.
The stakes in immigration cases are high, yet the agency involved in adjudicating these cases has a demonstrated track record of inconsistency in the quality of its decision making. According to statistics compiled by the Office of Immigration Litigation (“OIL”) with respect to the BIA’s determinations of an alien’s credibility, the Second Circuit, despite review under the highly deferential substantial evidence test, overturned the BIA’s credibility determinations in 46 percent of cases it reviewed in 2007; 86 percent of cases reviewed in 2006; and 37 percent of cases reviewed in 2005. Thus, over a three year period, with regard to credibility determinations,the BIA had an accuracy rate of 63 percent at best and 14 percent at worst.
A study by Syracuse University found that the single best predictor of the outcome of an asylum case was not the alien’s country of origin or the nature of the claim itself, but the identity of the particular IJ to whom the case was assigned. Another recent study that included anonymous reporting by IJs, indicated the IJs feel so pressured to comply with case-completion goals that they lack confidence in the accuracy of their decisions.
As the Report indicates, the Immigration Courts and the BIA are consistently overburdened, under staffed and under funded, but DHS continues to increase the number of aliens it places in removal proceedings each year. It is against this background that the Second Circuit’s immigration docket must be evaluated. If the entire system of adjudication of removal cases is to resemble the kind of justice we expect from our system of government, judicial oversight of the agencies involved is absolutely essential. Without it, the system and the quality of its adjudications are likely to deteriorate further. While the Report addresses some of these issues, it does not fully articulate the state of the current system.
Recommendations of the Report
The Report notes the contribution of several factors towards the surge in immigration appeals before the Second Circuit, including the BIA’s previous streamlining procedures, a continuing lack of resources for the BIA and the Immigration Courts, the BIA’s AWO procedure, and problems with access to quality legal representation before the agency and the Second Circuit. In response, the Report makes several recommendations, most of which are targeted at reforming practices of and before the agency.
The Report’s primary suggestion, with which we concur, is that the resources of the Immigration Courts and the BIA should be increased, and the number of Board Members, ijs and support staff should be substantially increased from current levels. This would allow both the IJs and the BIA to issue more reasoned decisions, which, according to the Report, would aid in the identification and disposal of non-meritorious’ claims. We note also that reasoned decisions that cite to the record and are supported by legal authority also increase the perception of fairness in the process, a lack of which may be a contributing factor in the increase in the Second Circuit’s immigration docket. The quality and consistency of the agency’s decisions need improvement, which is only possible if Board Members and IJs have the time and resources they need to devote to hearing cases and issuing decisions. Without more IJs and Board Members, the only way to increase the time and resources devoted to each case would be to significantly reduce the pace of adjudications, which would lead to a substantial increase in the backlog of pending cases.
In a related recommendation, the Report suggests the BIA designate more of its decisions as precedential decisions to provide a uniform interpretation of the immigration laws. We concur with this recommendation. More precedential decisions result in more clarity in the legal standards, which allows the IJs to apply the immigration laws in a more consistent manner and also provides aliens, their attorneys and the courts with meaningful standards against which to assess a given case. Increased clarity makes it easier to detect frivolous appeals and serves as a disincentive for filing such appeals.
The Report also recommends that law firms with pro bono programs take additional immigration cases at the agency and federal court level. We concur with this commendable goal. The Report, however, does not suggest how to implement this suggestion (something we address below).
The Report suggests attorney mentoring programs for poorly performing attorneys, but notes that some attorneys may not be interested in using such a program. We concur with this suggestion but would like to see a more detailed proposal.
The Report recommends further use of agency, state and Circuit disciplinary procedures against attorneys providing sub-standard representation or those who file fraudulent or frivolous applications. We concur, with caution. Poor performing attorneys do a disservice to their clients, and often may end up putting their clients in a worse position than the clients were in at the beginning of the representation. More problematic are notarios, service centers, travel agents and other non-attorney service providers, who often file fraudulent, frivolous or poorly prepared applications on behalf of alien clients. While we recommend vigilant prosecution of individuals and entities engaged in the unauthorized practice of law, and we support the use of disciplinary measures against poor performing attorneys, we caution that attorney discipline measures should comport with the applicable due process standards applied by state disciplinary committees and the federal courts. Such procedural safeguards are not typical of the abbreviated format of the administrative proceedings held before the IJs and the BIA, and the fairness of the system must be maintained. The sanctions power of the BIA and the Immigration Courts should apply to both private attorneys and government attorneys.
Finally, the Report suggests that access to quality legal representation for individuals appearing before the IJs and the BIA should be improved, either through increased pro bono representation or by government-funded attorneys. We concur with this recommendation. Quality representation is often most essential before the Immigration Courts, where the alien will contest removability and/or apply for relief from removal. It is at this stage that the alien is able to submit evidence, present witnesses and testify regarding his or her claim. It is also the stage of the proceedings where the rules and procedures are often the most complex, and where an alien is most able to benefit from representation by an attorney familiar with the procedures and applicable legal standards. Without competent representation, an alien may not have any idea what kind of evidence he or she needs to submit, or even where and how to file or pay for an application. Unfortunately, providing government-funded attorneys in immigration proceedings would require an act of Congress, which is unlikely to occur. On the other hand, we would welcome a proposal on how to increase pro bono representation before the agency, as this may be an obtainable goal if the Second Circuit, the EOIR and local bar associations coordinate,
While the Report makes several worthwhile proposals, we note that most of the proposals appear to be outside the scope of the Second Circuit’s ability to manage its own docket. Our first three proposals concern the Second Circuit’s inherent power to control its docket. Our next three proposals expand on a few of the Report’s proposals relating to EOIR reform.
A significant problem in the adjudication of BIA appeals by the Second Circuit is that many BIA decisions (or IJ decisions where the BIA has issued an AWO) lack clear reasoning that allows the Second Circuit to reasonably evaluate the basis of the decisions. Many of these decisions are easily identifiable prior to the briefing and consideration of the case on the merits. Such decisions could be summarily remanded for clarification upon inclusion in the Petition for Review of such decisions.
Additionally, notwithstanding the numerous and complex standards of review that apply to various components of a BIA decision, the Second Circuit maintains the inherent power to remand cases to the BIA where the BIA’s decision is not sufficiently clear to allow for meaningful review. We propose that, as a matter of policy, the Second Circuit remand these cases, A liberal remand policy would help to preserve the Second Circuit’s resources while protecting the important due process rights of the individual aliens whose cases are before it. It will also send a strong message to the BIA that its decisions must be clear and sufficiently well reasoned to allow the Second Circuit the opportunity for meaningful review. While this will increase the expenditure of resources by the BIA, this additional expenditure is likely to motivate the BIA to issue better decisions initially so that it does not have to revisit cases upon remand. The increased administrative burden on the BIA is also preferable to either an increased burden on the Second Circuit, or the problems with fundamental fairness and due process that would occur if the Second Circuit adopted an approach targeted at either discouraging or dismissing alien appeals.
OIL has recently begun opposing motions for a stay of removal filed by aliens and has also increased its use of motions for summary affirmance and motions to dismiss. Previously, the Second Circuit and DHS arranged a forbearance policy where DHS would agree not to deport an alien while his or her appeal was pending if a motion for stay was filed. This was done to prevent the Second Circuit from expending its resources adjudicating stay motions. OIL has begun opposing motions to stay. As a result, notwithstanding the DHS and Second Circuit forbearance policy, the Second Circuit is now faced with the prospect of having to adjudicate motions it had arranged not to adjudicate.
Additionally, OIL has been filing motions to dismiss and motions for summary affirmance with increasing frequency. The result is many immigration appeals now involve significant motion practice, whereas six months to a year ago such motions were exceedingly rare. The standard for surviving a motion for summary affirmance is very low. An alien need only show that his or her appeal is not frivolous. However, responding to the motion is time consuming and requires a recitation of the facts and issues of the case similar to that required in a brief on the merits, as well as substantial research and drafting of issues that will not be explored in the merits brief. The result is that many hours of additional time are required to represent an alien in a BIA appeal before the Second Circuit, a fact that is ultimately likely to affect the legal fees involved.
Additionally, if such a motion is denied and the case is heard on the merits, it essentially requires twice the amount of effort from the Second Circuit as hearing the case on the merits alone. Such motions place an additional burden on the Second Circuit and on the aliens before it (who, as the Report notes, are often faced with difficulty in obtaining affordable legal representation). While the government claims that its motion practice is intended to preserve the resources of the Second Circuit, members of the bar have speculated that the real intent is to increase the cost and difficulty of seeking review of BIA decisions in light of indications of the Second Circuit’s growing frustration with its immigration docket.
The government may save many arguments for its merits brief without risk of waiver. For example, frivolousness is an issue that can be raised in a principal brief, as well as the fugitive disentitlement doctrine. Eliminating or restricting motion practice in immigration cases would substantially benefit the efficient disposition of immigration cases by reducing the amount of the Second Circuit’s resources consumed by each case.
The Second Circuit maintains a list of attorneys it has determined meet necessary levels of immigration and appellate experience to represent a petitioner on appeal: the Pro Bono Panel (hereinafter “the Second Circuit Plan”). Eligibility is open to private attorneys with at least three years of appellate experience. The application process requires completion of a four-page application, submission of three writing samples, preferably appellate briefs in which the applicant was the prime author, admission to the bar of the Second Circuit and application within a particular time period. The goal of the Second Circuit plan is to “provide pro bono counsel to pro se parties in civil appeals in which briefing and argument by counsel would benefit the Court’s review.” The Second Circuit acknowledges the program depends both upon the volunteer efforts of the private bar and the Second Circuit’s commitment to providing service opportunities to attorneys.
The Second Circuit is not the only United States Circuit Court of Appeals with such a panel, but from a review of the other federal circuit courts’ web sites, only two conspicuously advertise their panels: the Seventh Circuit and the Ninth Circuit. The Ninth Circuit’s immigration docket is the largest of the federal circuit courts of appeals; the Second Circuit occupies second place, while the remaining Circuits’ dockets are much smaller. The Ninth Circuit Pro Bono Program (hereinafter “the Ninth Circuit Plan”) has been in existence since 1993, and participants praise it. Thus, it may be an acceptable model for handling extremely large dockets.
The Ninth Circuit Plan differs from the Second Circuit Plan in a few aspects. One is purpose: the Ninth Circuit Plan was bom of the idea to give young lawyers and law students early experience, while the Second Circuit Plan’s chief goal is to provide pro se parties with counsel and assist the Court with reducing its pro se docket, Second, the Ninth Circuit Plan reimburses attorneys for travel within the Circuit, accommodation in a hotel and meals. It also reimburses attorneys for other expenses related to representation, such as:
Third, the eligibility requirements for the Ninth Circuit Plan differ. The Ninth Circuit Plan is open to any attorney in good standing who is a member of the Ninth Circuit bar and advises a District Coordinator (attorneys who volunteer to locate interested counsel within their respective lists) that the attorney wishes to accept Ninth Circuit appeals pro bono, The District Coordinator distributes the cases to attorneys on the panel.
By using the Ninth Circuit Plan as a model on reimbursement and eligibility, the Second Circuit may reduce the backlog in its immigration docket and receive better briefed cases. Specifically, adopting the Ninth Circuit Plan will allow an influx of attorneys willing to take cases pro bono, less-experienced but eager and competent attorneys will be able to participate, and all participating attorneys will be able to recoup some costs.
The objection that reducing the eligibility barrier as described will add to the number of poorly written briefs is understandable. However, the Ninth Circuit does not report an increase in poorly written briefs and, in fact, reports about a 50 percent rate of relief (at least partial reversal or other termination favorable to pro bono client) for those petitioners whose cases are part of the Ninth Circuit Plan. Other courts do not require several years’ experience in the particular field for inclusion on their Pro Bono Panels. For example, the Southern District of New York appears to allow on its pro bono panel any attorney who is a member of the bar of that court in good standing and willing to accept cases, including newly admitted attorneys subject to the Court’s approval/ In addition, some states appear to allow less-experienced criminal attorneys to receive appointments for criminal trials, appeals and post-conviction petitions, cases for which the attorneys may bill the respective court or public defender office. Thus, allowing less-experienced attorneys to be eligible to receive cases pro bona is not new and any fear of the Second Circuit encouraging incompetent briefs may be unfounded.
An alternative to reducing the barrier completely to the level of the Ninth Circuit Plan is to allow eligibility upon completion of a training program between an aspiring applicant with less experience and one or more approved experienced immigration appellate attorneys. Such an idea is not new. Several United States District Courts maintain Criminal Justice Act (“CJA”) Panel lists of attorneys willing and qualified by the respective District Courts to accept paid appointments of criminal defendants. Several of those District Courts allow for aspiring applicants to obtain the needed experience by 1) operating as second-chair attorneys to members of the CJA Panel on a limited number of cases and 2) completion of CLE courses on criminal defense and the Federal Sentencing Guidelines. For instance, the Southern District of New York and the District of New Jersey have such a training program. The Southern District of New York even allows the trainee attorney to bill for his or her time (at a reduced rate).
The training requirement can vary for attorneys of different experience levels. This model of training is similar to that in some states allowing attorneys to receive state criminal appointments. For example, for the newest or least experienced attorneys in criminal law, a state may require several CLE hours and limit appointments to misdemeanors. Those with substantial criminal experience may receive homicide or capital appointments.
The aspiring applicant would bear the burden of beginning and completing the training process. At application, the aspiring applicant would certify, along with the mentor(s), that he or she completed the training program. Specifically, the Circuit could require an aspiring applicant to find a Second Circuit Plan attorney who is willing to mentor/supervise through a certain number of immigration appeals and to attend a CLE specifically focused on Second Circuit immigration practice. To aid aspiring applicants in locating Plan attorneys willing to mentor/supervise, the Second Circuit could publish the contact information of the Second Circuit Plan members on its website and indicate those willing to mentor/supervise, allowing aspiring applicants the opportunity to contact those Plan attorneys on their own. In addition, the mentoring/supervising attorney may also, upon prior approval by the Circuit, be an experienced practitioner who is not a member of the Plan. After completion of the training, the Second Circuit should allow the aspiring attorney to immediately apply for inclusion on the Plan list and should accept rolling admissions.
The Second Circuit’s Plan explicitly acknowledges expenses are not generally reimbursable, though some might be upon an application to the Office of Legal Affairs showing undue hardship on the attorney. By reimbursing attorneys to a limited extent, the Second Circuit should be able to attract additional attorneys to its Pro Bono Plan, Also, the Ninth Circuit’s Program actively encourages prevailing attorneys to seek statutory attorneys’ fees and then offset the Court’s reimbursement against them. The Second Circuit should similarly encourage prevailing attorneys to seek statutory attorneys’ fees, because Plan members may be unaware they are allowed to seek such fees.
While the Report stresses the importance of having the BIA issue precedential decisions, it does not mention the BIA’s numerous other decisions. Some of the BIA’s non-precedential decisions are available from electronic databases like Lexis and Westlaw, however, the number is substantially limited and the process by which such decisions are chosen for public release is unclear. As noted above, the BIA’s decisions suffer from a marked lack of consistency. This is due, in part, to the lack of guidance in the form of precedential decisions.
However, the lack of consistency is also due to the fact the vast majority of BIA decisions are not subject to public scrutiny because they are unavailable to the public to review and compare. Thus, it is difficult to determine how (and often if) the BIA is applying its own precedents. This makes it difficult for aliens and their attorneys to evaluate a claim to predict the likely outcome, and it also makes it difficult to spot when the BIA is diverging from its established standards. To rectify this situation, the BIA should be required to publish all of its decisions, even if they are not designated as precedential decisions. The agency, the Second Circuit, the bar and the aliens involved will all benefit from the additional transparency in the system, the consistency in adjudications and the applications of the legal standards developed by the BIA that would be promoted by this proposal.
The statute and regulations allow an alien to file one motion to reopen his or her removal proceedings within 90 days of the BIA’s final decision in the case. However, there are exceptions. The most notable exception is where an alien is seeking to reopen proceedings in order to apply for asylum based on changed country conditions. The time and number limits may also be tolled where the alien has been adversely affected by ineffective assistance of counsel.
However, it is not uncommon for an alien to become eligible to apply for lawful permanent residency status after proceedings have concluded and after the expiration of the 90- day period. The BIA may reopen an alien’s removal proceedings in such a circumstance if an exception applies or the parties file a joint motion – that is, if the ICE Assistant Chief Counsel in the case consents to joining in a motion to reopen. To this end, ICE previously had a policy to join in motions to reopen where an alien became eligible to adjust status, was not eligible at the time of the prior hearing and merited a favorable exercise of discretion. However, it appears that ICE policy, at least at the local level, strongly disfavors joining in motions to reopen. The result is that aliens who are eligible to adjust status are left without a forum for doing so because more than 90 days have passed since the BIA’s decision, ICE refuses to join in a motion to reopen and no exceptions apply. It is not difficult to imagine that this creates an incentive to file motions to reopen based on asylum claims that are either weak or lacking in merit. Many of these motions to reopen are denied by the BIA and then appealed to the Second Circuit.
Compounding the problem is OIL’s apparent policy of limiting settlement. Only cases that would clearly be the subject of an adverse decision by the Second Circuit and would result in criticism by the Second Circuit or in bad publicity seem to qualify for settlement consideration. Decisions that could result in bad publicity might be those in which an IJ has acted in a biased, hostile or inappropriate manner, or the BIA has clearly and obviously applied the wrong legal standard to a case. This apparent policy has limited the effectiveness of the Second Circuit’s Civil Appeals Management Plan (CAMP) program in immigration cases.
The result of these two DHS policies is an overburdened immigration docket in the Second Circuit. Cases that could be resolved through the joint motion process often unnecessarily end up before the Second Circuit, and cases before the Second Circuit stay before it rather than being resolved by the parties. This often happens even though the alien is eligible to legalize his or her status. The Second Circuit should attempt to persuade ICE that it is not in the best interests of the Second Circuit or the system as a whole to maintain policies that promote litigation and prevent eligible aliens from legalizing their status.
The BIA’s A WO procedure is commonly cited as a principal cause of the initial surge in the Second Circuit’s immigration docket. However, as noted by the Report, even though the BIA’s use of AWOs has declined, the BIA often issues cursory decisions that contain little reasoning and leave the alien with little confidence that the BIA actually considered the facts, arguments and evidence in the case. The entire administrative system involved has been operating in accordance with an emphasis on speed and efficiency since 2002 or earlier. The result is numerous decisions of the federal courts criticizing the decisions of the BIA and Us, a massive surge in the number of immigration appeals before the Second Circuit, and a lack of faith in the fairness of the system by most of the parties involved. The BIA’s decisions show a demonstrated lack of quality and consistency that raises questions about whether or not its adjudications meet basic standards of justice. There appears to be a correlation between the agency’s emphasis on speed and the criticism of its decisions. It is time for the agency to slow down and issue reasoned decisions to ensure that the interests of justice, and not just case- completion goals, are served.
The Committee recommends the adoption of the Report and the additional proposals discussed above.
While there are systematic and pervasive problems in the administrative adjudication system that contribute to the Second Circuit’s immigration docket, these problems militate in favor of judicial oversight of the BIA’s decisions and decision-making process. However, the Second Circuit has the ability to control its docket to minimize the impact of the immigration docket, assure the fair and efficient adjudication of immigration appeals, and encourage the agencies involved to adopt policy and structural changes to improve the fairness and accuracy of the system as a whole. Further, the agencies involved have the ability to initiate changes to begin to fix some of the current flaws in the system that have caused the Second Circuit’s large immigration docket. The proposals in the Report, and the additional proposals herein, provide a useful starting point for reform of agency practices and enhancement of the Second Circuit’s docket-control measures.
New York County Lawyers’ Association
Committee on the Federal Courts
Gregg Kanter, Chair
Subcommittee on Immigration Report Recommendations
Daniel B. Lundy, Co-Chair
Stuart A. White, Co-Chair