Bush Crackdown on Immigrant Rights Alarms Judges

by Jim Lobe

Ashcroft's latest move calls for halving the number of judges on the Board of Immigration Appeals (BIA), imposing strict time limits on the Board to consider appeals from non-citizens facing deportation, and empowering single BIA judges, rather than the usual three-judge panels, to summarily dismiss appeals.

The plan, announced earlier this month, follows a written appeal to Congress by the union representing the country's immigration judges to remove their courts from Ashcroft's control in order to guarantee "independence and impartiality in the hearing process."

Ashcroft's new "scheme would effectively deny thousands of innocent immigrants their constitutionally guaranteed day in court and put their fate solely in the vest pocket of the attorney general," says Timothy Edgar, legislative counsel for the American Civil Liberties Union (ACLU).

Anwen Hughes, staff attorney at the Lawyers' Committee for Human Rights (LCHR) in New York, calls Ashcroft's plan extremely alarming and says it must be seen "in the context of what the Justice Department has been doing over the last five months in reducing due process protections for immigrants."

Regulations adopted since Sept. 11 give the Immigration and Naturalization Service (INS), which reports to the Attorney General, power to detain non-citizens for an unspecified "reasonable time" without charges before being brought before an immigration judge and, in some cases, to effectively overrule immigration judges or the BIA who may order their release.

Ashcroft also issued a secret regulation requiring immigration judges to close their hearings to the public if the INS requests them to do so for security reasons.

These rules helped prompt the country's 220 immigration judges, through their union, the National Association of Immigration Judges, to submit a 20-page report asking Congress to create a separate immigration court system outside the Justice Department.

"It is the most fundamental aspect of due process," the Association wrote, "that one be given the opportunity to present one's case and confront the adverse evidence in an impartial forum. At present, there is at least the perception that this is not always provided."

This perception grew sharply as the FBI and the INS rounded up hundreds of mainly Muslim immigrants in the weeks following the Sept. 11 attacks and held them for weeks, and in some cases months, on minor violations of immigration law or on no charges at all -- and without access to legal advice or even family members.

At one point, the Justice Department disclosed that more than 1,000 men were being held at the INS's behest, although it repeatedly declined to publish their names or why they were being held. The number of non-criminal immigrants still being held has declined to around 470, according to recent reports.

Alyson Collins, a senior staffer at Human Rights Watch (HRW), which recently was permitted to meet a number of detainees, said interviewers found many detainees still uncertain about their status.

"We have very serious concerns about the way the post-9/11 detainees have been treated, particularly the lack of access to legal counsel, to their consulates, and their physical treatment," she told IPS.

"Many had received deportation orders and were anxious to go home but yet remained in jail and didn't know why. Many were confused about their status and said they have no idea what they had signed or agreed to, especially when they were first picked up. In some cases, people said they still hadn't been charged for anything or seen a judge."

Such cases have alarmed human rights groups and angered immigration judges who, while still part of the Justice Department, have gained increasing independence over the past 20 years and particularly since 1983, when they were separated from the INS and became part of a new Executive Office for Immigration Review (EOIR).

In recent years, immigration judges and the BIA have ruled frequently against the INS, even to the extent of throwing out regulations they found violated due process rights. Federal courts frequently have upheld their decisions when the INS appealed.

In one celebrated case, the BIA ruled that the INS's retroactive application of a 1996 law which made immigrants convicted of certain crimes automatically deportable was unconstitutional. The U.S. Supreme Court sustained the BIA's ruling last year.

In adopting policies since Sept. 11, Ashcroft has said he wants the immigration judges "on the same page as the rest of the Justice Department."

The agency has billed the new rules as an effort to streamline the appeal process and reduce the backlog of some 55,000 cases, many of which, according to the ACLU, resulted from faulty INS interpretation of the 1996 law.

"The only way to cut the backlog, if you're also cutting by half the number of appeals board judges, is to reduce the attention given to each case," says LCHR's Hughes, who notes that "the stakes are extremely high" for people who will be deported if they lose. "People need to have a serious review," she adds, noting that most immigrants cannot afford lawyers.

As a result, the only recourse left to immigrants who wish to appeal an immigration judge's ruling is the federal courts, "which are very difficult to navigate, especially without a lawyer," according to Hughes.

The ACLU's Edgar also is concerned about Ashcroft's plans to reduce the number of BIA judges from 23 to 11 over six months. "How do you think they're going to be ruling during that six months?" he asks, adding that judges who do not go along with the INS could well find themselves looking for other jobs.

The case for a strong and independent BIA was illustrated, he says, by what happened with Ali Al-Maqtari, who was detained shortly after Sept. 11 while driving his wife, a U.S. citizen and member of the armed forces, to her military base in Kentucky.

He was subsequently held for almost eight weeks and released only after the BIA dismissed the INS's claim that it had authority to detain indefinitely, for "intelligence-gathering purposes," otherwise innocent immigrants who posed no demonstrable risk of flight or harm to the community.

The proposed rules, said Edgar in testimony before a Congressional committee last week, "represent the latest in a troubling series of actions on the part of the Justice Department that seems to see the EOIR -- and judges in general -- as an obstacle, not a partner, (to) our nation's law enforcement efforts."