Chicago Appleseed Fund For Justice- Immigration Court Reform

Posted on March 8, 2010 by Mike Baker

To the editor: A Policy Statement from Chicago Appleseed

Last year, Appleseed and the Chicago Appleseed Fund for Justice released a comprehensive report, “Assembly Line Injustice,” outlining findings that American immigration courts regularly fall beneath basic standards of justice. The report compiled the reports of trained court-watchers as well as more than 100 interviews with individuals who are involved in immigration court on a day-to-day basis, including practitioners (pro bono and fee-charging), officials of nonprofit associations and professional organizations, academics and governmental players. The report offered 34 recommendations aimed at promoting accuracy, efficiency and legitimacy throughout the immigration court process.

Many of these recommendations are practical reforms that would help repair many of the problems cited in our report without dramatic overhaul of the entire system. Others involve more sweeping changes.

Moreover, Appleseed and Chicago Appleseed are not alone in calling for reform. The American Bar Association recently released its own report on the immigration court system, calling for new policies and practices. Many of these reforms overlap the recommendations found in “Assembly Line Injustice.” It is clear that the immigration court system is in need of substantial, immediate change.

There are many fine immigration judges and government attorneys working in this underfunded but critically important judicial system. But we heard of too many cases in which judges engaged in verbal abuse, mocking a pro bono attorney for being a “New York big firm do-gooder,” or yelling at an immigrant for not looking him in the eye, not understanding that eye contact was inappropriate in the immigrant’s culture.

We heard repeatedly that training of immigration judges is inadequate. In one case, responding to an immigrant’s claim that he faced persecution as a result of sexual orientation, a judge declared that the immigrant “didn’t look gay” and denied asylum.

Professionalism is certainly not the only thing that is too often lacking in the immigration court system. More than 85 percent of those who enter removal proceedings require translation services that are too often inadequate. A large percentage of immigrants in removal proceedings appear without counsel. These individuals are not given the tools they need to navigate through a Byzantine court system, and are instead subjected to procedures that are dehumanizing and wasteful of taxpayer money. Where the Supreme Court itself said, “Justice must satisfy the appearance of justice,” our immigration court system is widely recognized as ineffectual and unfair.

Many urge the restructuring of the immigration court as an Article I court to combat political bias. While independence as an Article 1 court can combat a number of the issues, more targeted actions are necessary in the meantime to restore legitimacy to the immigration court system.

In meetings with DOJ and DHS, Appleseed reviewed several in-the-trenches, practical reforms that would repair many of the problems cited in our research. It is particularly necessary to address inefficiencies that can, for example, lead to months-long stays at detention facilities when immigrants’ removal proceedings drag on far longer than necessary. Detention can cost upward of $200 per day per detainee, totaling $2.4 billion annually for detention operations.

We review some of those recommendations here:

Reinforce professionalism standards for immigration judges. Situations in which judges bully immigrants and attorneys are unacceptable, and the judges’ Code of Conduct must be updated and enforced. Regular, mandatory training sessions for judges will address issues of cultural competence and impartiality. In the case mentioned above where a judge ruled on the basis of sexual orientation stereotypes, training was provided by the court of appeals and the judge reconsidered his decision.

Hire more immigration judges and law clerks. Though DOJ has sworn in six immigration judges recently and claims to be in the process of hiring more, reducing each judge’s caseload by only one case per day would require the hiring of nearly 60 more, plus a corresponding number of judicial clerks. Judges have less than two hours to review each case file, conduct a hearing, and render a decision. Even with regular training on professionalism and efficiency, this reality denies both judges and immigrants the right to a reasoned, accurate decision.

Reform the hiring process for judges and Board of Immigration Appeals members. This includes depoliticizing the hiring process, as well as broadening the candidate pool for immigration judges beyond its current “farm team” of Department of Homeland Security trial attorneys. Drawing from the ranks of experienced private attorneys and academics will balance what is currently a pool of judges predisposed to rule in favor of the government.

Improve translation services. In one asylum case, despite the prohibition on opining, an interpreter refused to translate an immigrant’s claim that he had been attacked by anti-Semites in the Ukraine. The interpreter responded, “That sort of stuff doesn’t happen in the Ukraine.” Not only must certification standards be improved, DOJ must design complaint-tracking and removal procedures for interpreters. In addition, simultaneous translation of everything said in court, not only communication between judge and immigrant, should be mandated, such that immigrants may understand the context of questions asked.

Eliminate videoconferencing in merits hearings. In one case, a judge ruled that a client’s story about physical abuse was not credible because she could not see the scars on the immigrant’s dark skin on the small, dimly lit television screen. Though implemented in the name of efficiency, videoconferencing dehumanizes immigrants, denies them the right to confer privately with their lawyers, and undermines the ability of a judge to make credibility and demeanor judgments, which are especially important in immigration cases.

Improve document availability. An immigrant must submit a Freedom of Information Act request for his own records, though less than 1 percent of these requests are rejected by DOJ and DHS. This statistic reveals a process that consumes resources rather than one that enhances justice – again, costing taxpayers millions of dollars.

Ensure that trial attorneys are handling cases professionally and efficiently. DHS trial attorneys have only about 20 minutes to prepare for each case. Despite this time limitation, they often neglect to settle minor issues out of court or drop weak cases, charging ahead to seek the worst possible outcome for every immigrant. In one case, a trial attorney argued that a man provided “material support” to Burundi terrorists when they robbed him of $4.12 and his lunch. Ensuring professionalism and efficiency for trial attorneys will include updating the mission statement, mandating pre-trial conferences at the request of either party, encouraging prosecutorial discretion to reduce time-wasted on petty matters, and extending immigration judges’ sanctioning authority to attorneys who appear in court unprepared.

Fix the appeal process. Multiple interviewees reported that the appeal process is often simply a regurgitation of the previous decision. Requiring fully reasoned written opinions and eliminating affirmance without opinion, as well as a return to three-member panels in situations where motions decide the outcome of a case, are necessary to keep the appeal process from being simply another waste of resources.

Several of these recommendations fall under the individual responsibilities of DOJ and DHS, but many address actions by both, and are for the most part cost-effective, in-the-trenches reforms rather than high-cost overhauls. Appleseed has met with officials in both agencies who have acknowledged that these reforms are necessary and indicated that they will be addressed.

We look forward to continuing conversations that we deem necessary to restore professionalism, efficiency, and legitimacy to an immigration court system that has fallen beneath the standards of American justice.

Malcolm C. Rich, executive director, Chicago Appleseed Fund for Justice; Julliard Lin, intern, Chicago Appleseed Fund for Justice; Vikas K. Didwania, Kirkland & Ellis LLP

Chicago Appleseed Fund For Justice – Immigration Court Reform

Posted in Chicago Immigration Court, Immigration Court Reform | Leave a comment

Motion to Reopen After Departure from U.S./Sua Sponte Authority to Consider Belated Motions

Posted on March 6, 2010 by Mike Baker

CA7 affirmed denial of motion to reopen by departed alien, finding that petitioner’s motion was unquestionably time-barred where petitioner offered no basis to excuse a six-plus year delay in moving to reopen. (Munoz de Real v. Holder, 2/11/10).

A petition for review, a BIA’s decision affirming IJ’s denial of a Mexican national’s motion to reopen removal proceedings on the ground that based on intervening developments in the law, the conviction of felony drunk driving was not a proper basis for removal, is denied as petitioner’s motion to reopen was unquestionably time-barred.

Read Munoz de Real v. Holder, No. 09-1945

Appellate Information: On Petition for Review from an Order of the Board of Immigration Appeals Decided February 11, 2010

Judges: Before: Easterbrook. Chief Judge, and Kanne, Circuit Judges, and Kennelly, District Judge Opinion by District Judge Kennelly

In Munoz De Real v. Holder, 2010 WL 455404 (7th Cir. 2010), the U.S. Court of Appeals for the Seventh Circuit, in denying a petition for review, upheld an order by the BIA which refused to a reopen a final removal order against a Mexican citizen who claimed that the order was rendered a “legal nullity” by virtue of a Seventh Circuit decision after his physical removal, which decision held that drunk driving offenses are not “crimes of violence.” The circuit court did not reach the legal issue of whether the fact of the alien’s departure from the U.S. precluded his motion but ruled that IJ’s declination to exercise her sua sponte authority to entertain the petitioner’s belated motion was justified and therefore did not constitute an abuse of discretion.

In January 2001, the petitioner, a former legal permanent resident of the U.S., was convicted of operation of a motor vehicle while intoxicated (OWI), with a prior OWI, in violation of Indiana law. At the time of his conviction, this offense was considered an aggravated felony (crime of violence). Removal proceedings were commenced against him pursuant to INA § 237(a)(2)(iii) [8 USCA § 1227(a)(2)((iii)], and an IJ ordered his removal on April 11, 2001. The petitioner did not challenge the IJ’s order, and he left the country shortly after its issue. In December 2007, he moved to reopen his removal proceedings, citing to the Seventh Circuit’s opinion in Bazan-Reyes v. I.N.S., 256 F.3d 600 (7th Cir. 2001), decided in July 2001, and ruling that drunk-driving offenses are not crimes of violence and therefore not aggravated felonies for the purposes of determining an alien’s removability. The IJ denied this motion in December 2008 for lack of jurisdiction pursuant to 8 CFR § 1003.23(b)(1) because the petitioner had departed the U.S. The IJ further ruled that there was no basis to reopen the proceeding sua sponte because the 2001 removal order was lawful and in accordance with the law at the time when it was issued and did not result in a “gross miscarriage of justice.” In affirming the IJ’s ruling, the BIA relied on its precedent decision, Matter of Armendarez-Mendez, 24 I. & N. Dec. 646, 2008 WL 4490316 (B.I.A. 2008), which held that immigration courts lack jurisdiction over a motion to reopen filed by an alien who has departed the U.S.

The Circuit Court explained that, pursuant to the Supreme Court’s recent decision in Kucana v. Holder, 2010 WL 173368 (U.S. 2010), it had jurisdiction to review the denial of a motion to reopen (MTR) a removal proceeding. It indicated that the Seventh Circuit had not yet considered the question of whether the aforesaid regulation, precluding aliens who had departed the U.S. following a removal order from filing an MTR, was in conflict with the general statute authorizing MTRs, INA § 240(c)(7)(A) [8 USCA § 1229a(c)(7)(A)]. It observed that the Fourth and Ninth Circuits have ruled that immigration courts may hear such MTRs on behalf of departed aliens but concluded that it did not need to determine the effect of the regulatory departure bar in the instant case.

The court pointed out that INA § 240(c)(7)(A) requires that an MTR be filed within 90 days of the entry of an order of removal and that this 90-day period expired over six years before the petitioner filed his MTR. The court noted that the petitioner had argued that he had received ineffective assistance of counsel from the attorney who handled his removal proceedings and that this factor should excuse his untimely filing of the MTR. The court responded that attorney negligence is not, without more, a basis to toll a statute of limitations. Moreover, it stated that the petitioner offered no basis to excuse a six-plus-year delay in moving to reopen.

In addressing the petitioner’s contention that the IJ erred by not recognizing her sua sponte discretion to consider the belated MTR, the court considered that the IJ did in fact reach the question of whether to exercise such discretion to reopen the case but chose not to do so. It emphasized that the IJ found that there was insufficient evidence that the removal order was a gross miscarriage of justice such as to justify its reopening. The court determined that the petitioner had offered nothing to suggest that the IJ’s finding in that regard was an abuse of discretion.

Posted in 7th Circuit, 7th Circuit Cases- Aliens, Motion to Reopen | Leave a comment

EOIR Releases 2009 Statistical Year Book

Posted on March 6, 2010 by Mike Baker

The Department of Justice’s (DOJ’s) Executive Office for Immigration Review (EOIR) has recently released its Fiscal Year (FY) 2009 Statistical Year Book, summarizing the work of the EOIR for the past five years. The 129-page report was prepared by the EOIR’s Office of Planning, Analysis and Technology. The report predominately covers cases before immigration courts and the Board of Immigration Appeals (BIA) but also includes cases received and completed by the Office of the Chief Administrative Hearing Officer (OCAHO).


The report begins with a list of highlights for FY 2009. According to the report, receipts by the immigration courts increased by 11% between FY 2008 (when they were 351,477) and FY 2009 (when they were 391,829). Immigration court completions in FY 2009 (353,082) increased by 4% from FY 2008 (339,440). Decisions by immigration judges (IJs) were found to have increased by about 1.5% between FY 2008 (229,316) and FY 2009 (232,212) but were down 12% compared to the recent high in FY 2005 (264,785). Thirty-nine percent of all completed court proceedings involved legal representation in FY 2009, a 1% decrease from 40% of represented cases in FY 2008. Among immigration court case completions, Mexico, El Salvador, Guatemala, Honduras, and China were the leading nationalities of the aliens in the immigration court completions.

The overall failure-to-appear rate fell to 11% of cases, a new five-year low, resulting in 25,330 in absentia orders being issued. The failure-to-appear rate for aliens who were once detained but subsequently released on bond or on their own recognizance decreased to 22% (23% in FY 2008), and the rate for those aliens who were never detained decreased to 27% (29% in FY 2008).

With respect to asylum statistics, the FY 2009 asylum filings at the immigration courts continued to decrease with a drop of 7,400 applications, with the decrease split nearly equally between affirmatively-filed and defensively-filed applications. Atlanta, Georgia; Los Angeles, California; Miami, Florida; New York City, New York; and San Francisco, California, received over half of all asylum filings in FY 2009.

While the rate at which asylum applications were granted increased slightly from 45% in FY 2008 to 47% in FY 2009, the actual number of grants decreased over the same time frame, with a total of 10,757 being granted in FY 2008 and only 10,186 in FY 2009. The five immigration courts that heard at least 100 cases and have the highest percentage of approved asylum cases are East Mesa, California (90%, 99 grants out of 110 cases), Arlington, Virginia (74%, 372/505), New York City, New York (73%, 4,076/5,608 grants), Honolulu, Hawaii (72%, 119/165), and San Diego, California (69%, 264/384 grants). The five immigration courts that heard at least 100 cases and have the lowest grant rates are Krome North SPC, Florida (8%, 221/249 denials), Eloy, Arizona (8%, 92/100 denials), Florence SPC, Arizona (11%, 93/104), Omaha, Nebraska (12%, 199/226) and Denver, Colorado (165/209). A table from the FY 2009 Statistical Year Book showing FY 2009 asylum grant rates listed by specific immigration court location is reproduced below.

There were a total of 25,665 cases filed under the U.N. Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT or Convention Against Torture). Of those, 504 were granted some form of relief, 10,894 were denied, 5,583 were withdrawn, 1,340 were abandoned, and 7,344 resulted in some other type of action not listed.


Turning to the BIA, the number of cases filed with the BIA decreased slightly to 32,859 in FY 2009, down from 33,464 in FY 2008. Only 8% of the decisions made by IJs were appealed to the BIA in FY 2009.

At the end of FY 2009, there were 27,969 cases pending at the BIA, down slightly from FY 2008 in which 28,874 were pending at the end of the fiscal year.

Cases in which aliens are represented remained about the same, with 77% of completed cases, or 22,770, having some representation for the alien.
The FY 2009 edition of the EOIR Statistical Year Book, which includes many charts, graphs, and a glossary of terms, can be found at http://www.justice.gov/eoir/statspub/fy09syb.pdf.

Posted in Asylum, EOIR, EOIR Statistical Year Book | Leave a comment

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Posted on March 6, 2010 by Mike Baker

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Gonzalez-Balderas v. Holder (7th Circuit March 5, 2010)

Posted on March 6, 2010 by Mike Baker

On Petition to Review an Order of the BIA, the Seventh Circuit affirmed a denial of a Mexican National’s request to reapply for admission retroactive to the date of her second reentry. The petitioner initially entered the U.S. illegally by using someone else’s documentation and removed, which made her ineligible to seek readmission for five years. She illegally reentered a second time, which meant that she would be prevented from reapplying for permission to enter for ten years. Thus, in affirming the denial, the court held that application for retroactive relief cannot be granted when the effect would be to lift the ten-year bar.

Gonzalez-Balderas v. Holder, No. 09-1890

The petitioner, a Mexican citizen, entered the United States illegally by the use of someone else’s documentation and was promptly removed. 8 U.S.C. § 1225(b)(1)(A)(i). Her removal made her ineligible to seek readmission to the United States for five years unless she obtained permission to reapply for permission earlier. §§ 1182(a)(9)(A)(i), (iii).

Rather than either wait or ask for permission to reapply, she snuck back into the United States a month later. This meant that she was forbidden to reapply for permission to enter for ten years. § 1182(a)(9)(C)(i)(II)(ii). Still, here she was, undetected, and the following year her husband, a lawful permanent resident of the United States (since then he has become a citizen), whom she had married shortly after her second illegal entry, filed a visa petition on her behalf. The petition was granted, and later she filed an application to adjust her status, on the basis of her husband’s status, to that of a lawful permanent resident. § 1255(i)(1).

Upon discovering that she had reentered the country illegally after being removed, the Department of Homeland Security, though it could have removed her summarily, § 1231(a)(5), instead merely denied her application for adjustment of status and scheduled a new removal hearing. At that hearing which she asked the immigration judge to permit her to reapply for ad- mission retroactive to the date of her reentry. Her authority was 8 C.F.R. § 212.2(i)(2), which states that an adjustment of status can be ordered retroactively.

The immigration judge, seconded by the Board of Immigration Appeals, ruled on the authority of In re Torres-Garcia, 23 I. & N. Dec. 866 (BIA 2006), that an application for retroactive relief (which the Board calls “nunc pro tunc”—“now for then”—relief, a term that properly refers, rather, to correcting a mistake, Central Laborers’ Pension, Welfare & Annuity Funds v. Griffee, 198 F.3d 642, 644 (7th Cir. 1999); King v. Ionization Int’l, Inc., 825 F.2d 1180, 1188 (7th Cir. 1987)) cannot be granted when the effect would be to lift the ten-year bar.

Retroactive relief is a tool long employed by the immigration authorities, based on what they believe to be implied statutory authority to provide relief from the harsh provisions of the immigration laws in sympathetic cases. See, e.g., Patel v. Gonzales, 432 F.3d 685, 693 (6th Cir. 2005); Edwards v. INS, 393 F.3d 299, 308-09 (2d Cir. 2004). This case conceivably is one. The petitioner is 51 years old and has three children, one a U.S. citizen and the others lawful permanent residents, and apart from her illegal entries she has been law-abiding. But the Board ruled that the regulation cannot contravene the statute that bars a removed alien from reapplying for admission for ten years.

Posted in Adjustment of Status, Reinstatement, Removal, Removal hearing | Leave a comment