Date Posted: Wednesday, February 25, 2009

By Pamela A. MacLean / Staff reporter

WASHINGTON (NLJ) Feb. 25, 2009 – A group of immigration judges called for the U.S. attorney general to appoint one of their own as the next chief immigration judge, to reform what has been a problem-plagued and overburdened agency for years.

"We have been totally resource-starved and things have been very slow in coming," said Judge Dana Leigh Marks of San Francisco, who is president of the National Association of Immigration Judges.

She pointed out that last year 214 immigration judges completed 350,000 cases, in "traffic court" conditions, despite issuing decisions with consequences that may be tantamount to life or death rulings.

"This is not the time to appoint a chief immigration judge based on political or bureaucratic connections," Marks said on Tuesday.

The organization does not back a specific candidate, but "we think it should be someone with a deep amount of experience in the field, someone who knows what happens where the rubber meets the road," Marks said.

Immigration judges are not part of the judiciary branch, but are hired by and work for the Justice Department in the Executive Office for Immigration Review (EIOR). Decisions can be appealed to the Board of Immigration Appeals, also part of Justice. From there appeals go for their first review to the U.S. circuit courts of appeal.

Elaine Komis, an EIOR spokeswoman said there is no time frame yet for appointment of a new chief judge. Komis said the agency has added 10 judges, increasing totals from 214 to 224 in the past six months. She also said digital audio recording systems have been installed in 29 of the nation's 57 immigration court sites, covering 108 individual courtrooms. They expect to complete all 57 by 2010, she said.

As far back as 2006, former U.S. Attorney General Alberto Gonzales announced a 22-point plan to confront mounting complaints by federal appellate judges about the lack of quality in immigration judging and media reports of abusive judges who faced little or no discipline.

By September 2008, little had been done to implement the Gonzales plan, according to a review of records by the Transactional Records Access Clearinghouse (TRAC), part of Syracuse University.

The courts remain short of training and basic legal resources. The reforms called for a well-defined discipline system, improved audio taping of immigration hearings, more judges to deal with increased caseloads, more law clerks and training for judges.

But circuit courts have continued to criticize individual actions by immigration judges.

As recently as Feb. 23, the 9th U.S. Circuit Court of Appeals cited Immigration Judge Jack W. Staton in Imperial City, Calif., for conducting independent research on the Internet of an alien's claims, without informing the alien or providing an opportunity to respond.

The court, in an unpublished order, sent the case of Kenyan Isaac Kigondu Kiniti-Wairimu, back to a new judge for reconsideration. Kiniti-Wairimu v. Holder, No. 05-70411.

"At oral argument the judges made clear that they thought the case had been tainted," said Sarah Simmons of Morrison & Foerster's San Diego office, who handled the pro bono appeal. She said Kiniti-Wairimu was from a politically active family and his family was jailed without charges when the regime changed.

He was a student when this happened, and "if he returns he would be targeted," she said, but the immigration judge discounted his account without providing a chance to respond.

Staton was not available for comment. Komis declined to comment, saying the agency does not comment on individual cases.

Marks, without referring to the Kenyan case, said judges were pushed five or six years ago into an aggressive program to eliminate a backlog of immigration cases. That produced stress and administrative fatigue, she said.

"If you have people working under that kind of stress, they are going to be impatient and intolerant," she said. "The circuit courts don't really understand the nature of the battle in immigration court and how much an immigration judge is expected to do and with how little resources," she said.

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