Monday, March 27, 2006

In bills' small print, critics see a threat to immigration

In bills' small print, critics see a threat to immigration
The measure would designate the U.S. Court of Appeals in Washington as the only court in the nation to handle immigration appeals.

By Rachel L. Swarns
Saturday, March 25, 2006

WASHINGTON — A little-noticed provision in two key Senate immigration bills would reshape the handling of immigration appeals cases and has touched off an outcry from several legal scholars, federal judges and the policymaking group for the federal courts.

The measure would designate the U.S. Court of Appeals for the Federal Circuit in Washington, an administrative court that focuses primarily on patent cases and currently handles no immigration appeals, as the only court in the nation to handle immigration appeals.

Such appeals are currently shared by the other 12 federal appellate courts.

The judges and scholars say that the circuit court in Washington, which handles about 1,500 nonimmigration cases a year, would be swamped by an additional 12,000 immigration cases. And they say that the court lacks the expertise to handle complex immigration cases, which often raise a host of constitutional and human-rights issues.

The question of how these cases are handled is particularly sensitive because federal appeals court judges have sharply criticized what they have described as a pattern of biased and incoherent decisions from immigration judges in asylum cases, which are the bulk of immigration appeals.

The two bills — one by Sen. Arlen Specter, R-Pa., chairman of the Senate Judiciary Committee, the other by Senate Majority Leader Bill Frist, R-Tenn. — were intended in part to ease the burden on the nation's federal appeals courts, which have had a sharp increase in immigration cases.

The provisions could come up for a vote in the Senate as early as next week.

Judiciary Committee staff members said that designating a single court to handle the cases would ensure a consistent standard for immigration decisions and discourage immigrants from shopping for favorable courts.

They said that immigration lawyers would be assigned to the court to help enhance expertise and that the number of judges would be increased to 15 from 12.

But Richard Posner, a federal appeals court judge in Chicago, said the measures were "not a sound solution."

Even with the three additional judges, he said, the annual caseload would surge to 900 per judge from 125.

"I cannot think of an area of law that is more remote from immigration than patents," Posner wrote in a letter to Sen. Dick Durbin, D-Ill., a Judiciary Committee member. "No doubt the judges of the federal circuit can become knowledgeable about immigration law, but they will be overwhelmed by the new caseload."

Leonidas Ralph Mecham, secretary for the Judicial Conference of the United States, a group of judges that makes policy for the federal courts and presents the judiciary's views to Congress, raised similar concerns.

"No sufficient justification to support changing the status quo and shifting these cases from the regional courts to the federal circuit has been provided," Mecham wrote in a letter to Specter.

The judges also raised concerns about a proposal that would appoint a single judge to decide whether immigration cases were worthy of consideration for appeal. If the judge declined the case, no further review would be available.

Durbin said he planned to offer an amendment that would kill the measures, telling his colleagues on the Judiciary Committee that it would be premature to make such changes before holding hearings.

Critics of the new legislation also say that a better solution would be to add resources to the overstrained local immigration courts and the immigration appeals court, known as the Board of Immigration Appeals.

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