Tuesday, April 04, 2006

Update on Threat To Third Circuit Jurisdiction

Senator Specter's proposal to take away future immigration cases from the Third Circuit (and consolidate them in the Federal Circuit along with enacting a new barrier of a one-judge decision on reviewability) is included in section 701 onwards (also known as Title VII) of what is called the Chairman's Mark.

During judiciary committee discussions, there was some opposition so Senator Specter held back the proposal but held hearings April 3, 2006 on the proposal. So there is a danger that the proposal could be made either in the future or as an amendment to any pending bill.

Numerous judges spoke out as individuals against the proposal. Here is a brief summary of the pros and cons. The critics raise substantial issues with the proposal:

On uniformity: a reason to consolidate cases into one court is that it would increase uniformity because on some issues today the various circuit courts take different approaches to the certain issues. It would also help the DOJ maintain a consistent litigating position on substantial issues. However, critics point out that the danger of forum-shopping is very limited in immigration cases because unlike patent cases that can be filed by litigants virtually anywhere, existing rules generally require a litigant to file a case where the person entered or where the person resides. The rampant forum-shopping that prompted consolidating patent cases does not exist in immigration law. Critics also point out that splits among the circuits are very limited although they do exist. Also, a large number of apparent conflicts are irreconcilable because they depend on the facts, such as how believable a particular witness was in an asylum claim. Fact-specific decisions cannot be made uniformly even if consolidated into one circuit.

On case volume: a reason to consolidate cases is that circuit courts will be relieved of the volume of cases that they will no longer be allowed to hear. Critics, though, point out that overburdened circuit courts have already been implementing new procedures to cut back on their backlog. Other critics suggest the proper method to reduce the backlog is to improve the quality and satisfaction level of BIA and immigration judges' decisions so that less appeals will be made (the appeal rate of BIA decisions recently rose from 6% in 2001 to 29% in 2005 and the number of appeals increased 603% from 2001 to 2005). Some wonder whether the Federal Circuit could cope with a sudden ten-fold increase in appeals (while only proposing to increase the number of judges from 12 to 15!). The Federal Circuit's computer system would not be able to cope with the large influx, so a long, expensive transition period to prepare the technology would be needed.

Critics point out the way to tackle the backlog of cases is to have more immigration judges and BIA judges so that they can make quality rulings that are less-often appealed. The 215 immigration judges are required to decide filings of over 300,000 cases per year (averaging 1,400 per year or 27 per week). The 11 BIA judges face 43,000 filings per year (using the conservative assumption that no cases are ever heard by more than one judge, each judge has nearly 4,000 cases per year or around 80 per week). Some critics think the proposal to increase BIA judges from 12 to 15 is too limited and there should be at least 30 BIA judges. The number of immigration judges should be at least doubled.

Whether the Federal Circuit is the right forum: supporters argue that the Federal Circuit could hire staff and new judges who can learn the complex area of immigration law. Critics point out that the current Federal Circuit has no experience with immigration law. Also, judges hearing patent cases rarely review credibility issues in deciding patent disputes, but immigration appeals frequently require credibility determinations that every other circuit court reviews in similar areas of the law. A better alternative for a place to consolidate cases is something similar to the FISAcourt or the TECA court, to appoint judges who already have experience in that area of law.

On the certificate of reviewability requirement: The DOJ favors this requirement and points to the success in filtering out frivolous habeas appeals after those cases required a similar certificate. Critics question the propriety of a one-judge barrier to immigration appeals. Although this exists in habeas cases, immigration cases are not well-suited to this one-judge barrier. Pre-motion habeas cases have already been fully litigated in state courts in front of independent state court judges. Pre-appeal immigration cases, however, have never been reviewed by any independent judges -- only by employees of the Department of Justice agency (immigration judges and the BIA). The idea also violates the tradition of requiring three-judge certificates for circuit courts.

Difficulty on litigants: consolidating all appeals into one court in DC makes it extremely hard for meritorious cases to be appealed. In an area where most litigants are unable to find an attorney and struggle on their own with litigating the case, it would be troubling to make it even harder to appeal a BIA decision. Supporters note that in theory, the Federal Circuit may sit in multiple cities across the country (but I have never heard of a plan to open dozens of offices and case-deciding tours to help litigants access the Federal Circuit).


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