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The Challenge of Immigration Cases for the Courts

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The Challenge of Immigration Cases for the Courts When Legal Representation is De½cient: The Challenge of Immigration Cases for the Courts Robert A. Katzmann Abstract: When the quality of lawyering is inadequate, courts are frustrated in their adjudicative role. Downloaded from http://direct.mit.edu/daed/article-pdf/143/3/37/1830445/daed_a_00286.pdf by guest on 27 September 2021 Nowhere is this more apparent than in cases involving immigrants hoping to fend off deportation. As an appellate judge on a court whose immigration docket reached 40 percent of our caseload, I have too often seen de½cient legal representation of immigrants. Although courts are reactive, resolving cases before them, judges can systematically promote the fair and effective administration of justice. With the aid of some outstanding legal talent, I created the Study Group on Immigrant Representation to help address the immigrant representation crisis. Our work has encompassed a variety of activities, including: publishing symposia; conducting studies documenting the enormity of the problem and proposing solutions; creating initiatives to expand pro bono representation; facilitating the ½rst local government funding of direct immigrant legal services; creating legal orientation programs for immigrants; and developing the Immigrant Justice Corps, an innovative fellowship program. These initiatives represent some steps towards easing the crisis in immigrant legal representation. A courtroom has multiple players with different roles, but all would agree that adequate legal repre- sentation of the parties is essential to the fair and effective administration of justice. De½cient repre- sentation frustrates the work of courts and ill serves litigants. All too often, and throughout the country, courts that address immigration matters must con- ROBERT A. KATZMANN, a Fellow tend with such a breakdown in legal representation of the American Academy since –a breakdown of crisis proportions. 2003, is Chief Judge of the United In brief, the nation’s immigrant representation States Court of Appeals for the Sec - prob lem is twofold: 1) there is a profound lack of rep - ond Circuit. His publications in - resentation, indicated by the fact that more than 40 clude Judging Statutes (forth coming percent of non-citizens in deportation proceedings 2014), Courts and Congress (1997), lack representation nationwide; and 2) in far too In stitutional Disability: The Saga of Transportation Policy for the Disabled many deportation cases, the quality of counsel is sub - (1986), and Regulatory Bu reaucracy: standard. Immigrants are easy prey for unscrupu- The Federal Trade Commission and An - lous law yers, who gouge their clients out of scarce titrust Policy (1980). re sources and provide shoddy legal services. Apart © 2014 by Robert A. Katzmann doi:10.1162/DAED_a_00286 37 The from the representation problem, there are prove the administration of justice for non- Challenge also issues relating to the functioning of citizens, thereby addressing a grave prob- of Immi - gration the immigration adjudication system it - lem of profound human consequence that Cases self (a subject worthy of its own examina- has tested the federal courts’ ability to ren- for the 1 Courts tion). der justice. I ½rst offer some background My views are shaped by experience as a on the representation issue, and then give judge on the United States Court of Ap - a sense of the activities of the Study Group peals for the Second Circuit, where our on Immigrant Representation, based in workload nearly doubled as a consequence New York City, which I had the privilege of of an avalanche of immigration cases (rang - creating. ing from thirty-two to forty-eight cases per week at the peak). My perspective is also In the past decade, the number of immi- Downloaded from http://direct.mit.edu/daed/article-pdf/143/3/37/1830445/daed_a_00286.pdf by guest on 27 September 2021 informed by new research, described be - gration cases–that is, proceedings in low, on immigrants and the impact of rep - which the federal government seeks to de - resentation on case outcomes. I write, I port an individual residing in the United should emphasize, in an individual capac - States–has increased dramatically. These ity, not as an of½cial representative of my cases begin when the Department of Court. In my work on immigrant represen - Home land Security (dhs) charges a non- tation, I have been guided by Canon 4 of citizen as deportable. The case is then the Code of Conduct for United States heard by an immigration judge in immi- Judges, which encourages judges, to the ex - gration court, based in the Department of tent that their time permits and impartiali- Justice (doj). In adjudicating the matter, ty is not compromised, to contribute to the the immigration judge may conduct a trial- law, the legal system, and the administra- like hearing. The immigrant is entitled to tion of justice. defend him or herself, but because depor- Immigrants are largely a vulnerable pop - tation charges are not criminal, the gov- ulation of human beings who come to this ernment does not provide the immigrant country in the hopes of a better life, often with a lawyer. Because many immigrants entering without knowledge of the En - cannot afford to pay thousands or tens of glish language or American culture, in eco - thousands of dollars to an attorney, a signif - nomic deprivation and in fear. Too often, icant portion of them must go it alone, try - the lack of adequate counsel for immi- ing to navigate our complex immigration grants all but eliminates their hopes to ex - system without the aid of legal counsel. perience the American dream, to live with If either the immigrant or dhs want to their families openly and with security, to challenge the immigration judge’s decision, contribute to their new country.2 This fail- the next step is to appeal to the Board of ure should be a concern for all of us: I think Immigration Appeals (bia), which is an we can all imagine our own ancestors or administrative adjudicatory body within the ancestors of friends and relate to the the doj that oversees the immigration anxieties of today’s newcomers. We are a courts. The party making that appeal must na tion of immigrants, whose contributions explain why the immigration judge’s de - have been vital to who we are and hope cision was legally or factually wrong; for to be. immigrants who may lack education, lan- What follows is a description of my ef - guage skills, and legal training, appealing forts, working with the legal community without the help of counsel is a tall order. both in and outside of government and These cases reach federal courts of ap - philanthropic organizations, to help im - peals like mine if, after the bia decides the 38 Dædalus, the Journal ofthe American Academy of Arts & Sciences case, the immigrant seeks review again. As cases rather than the usual three-member Robert A. before, the party seeking review makes the panels, and permitting single board mem - Katzmann appeal must explain why the bia’s de cision bers to decide appeals through summary was legally or factually wrong. There are dismissals and af½rmances without issu- procedural hurdles associated with nav - ing an opinion explaining their reasoning. igating this process, facts to marshal into As bia decisions greatly increased, the evidence, and complexities of law that can num ber of petitions for review in federal make this process dif½cult for those with- court grew exponentially and began to out legal training. over whelm our dockets. As my colleague Judge Jon O. Newman put it: “It’s as if a Until the 2000s, immigration cases were dam had built up a massive amount of water over the years, and then suddenly a small percentage of the workload of my Downloaded from http://direct.mit.edu/daed/article-pdf/143/3/37/1830445/daed_a_00286.pdf by guest on 27 September 2021 court, the Court of Appeals for the Sec- the sluice gates were opened up and the ond Circuit (which encompasses New water poured out.”6 Indeed, by 2005, ap - York, Connecticut, and Vermont). In 1999, pellate courts were receiving about ½ve when I began working as an appellate times as many petitions for review as they judge, the immigration docket was a min - were before 2002. As Judge Walker re - uscule percentage of our workload. But marked: “What we thought was a one- within a few years, that changed dramat- time bubble has turned into a steady flow ically. In 2000, 255,420 cases were initiated of cases,” in excess of 2,500 a year,7 which in immigration courts and 28,104 cases was about a 50 percent increase in our total were appealed to the bia nationwide.3 By annual ½lings.8 Most of these cases were 2012, those numbers had grown signi½ - asy lum matters, which involve claims that cantly: 410,753 cases were initiated in im - the in dividual will be persecuted if he or migration courts and 31,489 cases were ap - she re turns to the home country, and there - bia 4 pealed to the . This means that each fore require careful review of often lengthy immigration judge must review nearly rec ords. 1,500 cases each year, which amounts to The vast majority of these appeals are more than ½ve cases each business day. con centrated in two circuits. Half are lo - Consequently, the burdens on all actors in cated in the Ninth Circuit, which covers the im migration system are now extraor- Alaska, Arizona, California, Hawaii, Idaho, dinary and the challenges for any judge, Montana, Nevada, Oregon, Washington, however conscientious, to dispose of all and the territories of Guam and the North - these cases with due care are overwhelm- ern Mariana Islands.
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