April 2006

Senate Considers Immigration Litigation Reform

Five federal judges appeared before the Senate Judiciary Committee in April 2006 to express their views on proposals now under consideration in the Senate that would consolidate all immigration appeals in the U.S. Courts of Appeals for the Federal Circuit. Testifying before the committee were Chief Judge Paul R. Michel (Fed. Cir.) Chief Judge John M. Walker, Jr. (2nd Cir.), Judge Carlos T. Bea (9th Cir.), Judge Jon O. Newman (2nd Cir.), and Judge John McCarthy Roll (D. Ariz).

In a March 23 letter to Judiciary Committee members, the Judicial Conference noted its opposition to concentrating appellate review of actions of administrative agencies and decisions of Article I courts in a single Article III court, preferring dispersed review in the courts of appeals. Nor does it generally endorse the creation of specialized or subject-matter courts in the judicial branch.

In a second letter sent to the Judiciary Committee on March 31, the Conference also opposed a provision that would require that petitions for review of decisions of the Board of Immigration Appeals be assigned to a single circuit judge and, unless that judge issued a certificate of reviewability (COR) permitting the case to be heard by a three-judge panel, the petition for review would be denied. The Conference noted that the COR provisions would create an additional layer of review of immigration appeals, would remove flexibility from the courts of appeals to manage their dockets, and could raise issues of fairness by permitting a single judge to dismiss the appeal without further review by the courts of appeals. The Conference noted that streamlining both the administrative and appellate review of immigration cases raises concerns about whether the process would provide a meaningful review of these cases.