The Executive Office of Immigration Review (EOIR) administers and interprets federal immigration laws and regulations through court proceedings, appellate reviews and individual administrative hearings. As a judicial agency, it is entirely separate from the Immigration and Naturalization Service (INS), which bears responsibility for enforcement of immigration laws. Within the EOIR, the Office of the Chief Immigration Judge administers and oversees all immigration courts throughout the country.
This article will provide an overview of the structure and operation of the Anchorage court. Very little has been written on the operation of immigration courts in general and nothing on the court in Alaska in particular. The article has been based on data obtained from EOIR and INS, as well information gained by the author through interviews with immigration judges, INS personnel and immigration attorneys and through regular attendance at court hearings since late 1997. (Except in rare circumstances where the respondent's situation seems to warrant closing hearings for matters of personal security—for example, cases in which domestic violence has been involved—all immigration court hearings are open to the public.)
The Anchorage immigration court, which is located in the Michael Building on East 10th Avenue, handles proceedings for the entire state. Alaska is part of a larger jurisdictional area which also includes Washington, Montana, and Idaho. Immigration court judges for this area are based in Seattle, with three judges handling the Alaska court on an annual rotation basis. The judge travels to Anchorage at least four times a year for a week to hold hearings on individual cases, while master calendar hearings, which essentially combine docket control with preliminary hearings, are conducted telephonically between the Anchorage and Seattle courtrooms. In 1999, seventeen master calendar days were scheduled. While the caseload of the Anchorage court is smaller than that of immigration courts in other states, it nevertheless includes the entire range of types of immigration cases.
In general, respondents appear in immigration court after being placed in removal proceedings by the INS—that is, the INS is acting to have them deported from the country. Those placed in these proceedings can contest the INS charges or seek relief from removal by appearing before an immigration judge. (Those aliens who are excluded by the INS from admission to the country at the port of entry in general are not entitled to a hearing before an immigration judge.) Most respondents appearing in the Anchorage courtroom are not being detained by the INS. As discussed later, those arrested and detained in Alaska usually appear in court outside the state.
Immigration judges conduct formal court proceedings and act independently. Their decisions are administratively final but can be appealed to the Board of Immigration Appeals (BIA), which is also within the Executive Office of Immigration Review. The Board conducts a de novo review. Decisions of the BIA, in turn, are subject to judicial review in the federal courts.
Legislation and Immigration Court
Since 1980 there have been over twenty-five pieces of federal legislation affecting immigration and naturalization, including several comprehensive acts passed in 1986, 1990 and 1996. The overall effect of this legislation over the last two decades has resulted in tightened controls on admission to the U.S. and increased enforcement authority granted to the INS. The legislation has been tied to, or paralleled, both national welfare reform and crime control efforts, particularly drug control —with much of the immigration legislation reflecting a concern with aliens and criminal behavior and aliens and financial responsibility.
The wide-ranging bills passed in 1996—the Antiterrorism and Effective Death Penalty Act, the Personal Responsibility and Work Opportunity Reconciliation Act, and the Illegal Immigration Reform and Immigrant Responsibility Act —changed exclusion and deportation procedures to expedite deportation and alien exclusion through establishing more stringent grounds for admission to the U.S. The legislation also broadened criteria for deportation for "crimes of moral turpitude" and granted state and local law enforcement officials certain powers to arrest and detain illegal aliens. Other provisions of the 1996 legislation made the financial responsibility of immigrants' sponsors more stringent.
The 1996 and earlier legislation have increased the scope of INS work and resulted in a proliferation of laws and regulations affecting both legal and illegal aliens. An expansion in the size of the EOIR has paralleled this. In the last three years the number of immigration judges has more than doubled—to over two hundred in 52 courts throughout the country—and the size of the Bureau of Immigration Appeals has more than tripled from 5 members to 18.
The figures on case completions in the Alaska immigration court do not, however, show substantial increases in the overall case load since 1993 (Table 1), although the number of applications for relief from deportation and the number of appeals have increased (Table 4). Most of those placed in removal proceedings in Alaska are not detained. These figures do not reflect cases involving respondent detention by INS, even if the arrest has occurred in Alaska, because there are no federal detention facilities here, and most detained aliens are held elsewhere. The number of Institutional Hearing Program cases being heard has increased (Table 3). These are cases in which the respondent is in custody in a state or local facility for a criminal offense. The immigration court hearing considers the ramifications of the respondent's criminal status for his immigration status. As mentioned above, the laws affecting the immigration status of an individual convicted of certain criminal offenses have been extended.
Immigration cases can be exceptionally brief, essentially completed at the initial hearing, or much more lengthy, extending for many months in some cases. Table 2 shows the average time required for Anchorage immigration court cases, to the point of appeal. The table also indicates the number of cases which were appealed. The average length of cases has increased over the given time period, as has the percentage for which appeals are made.
Applications for Relief
As stated above, when an alien is placed in deportation/removal or exclusion proceedings the individual has the option of admitting the charges and seeking relief or of fighting the charges altogether. Although precise figures are not accessible, in the Anchorage court it appears that the majority of respondents do not fight charges but rather admit them—that is, admit that they are in the country in violation of the law—and then seek relief from deportation. The following types of relief cases are handled most frequently in the Anchorage court: adjustment of status (for example, a respondent has married a U.S. citizen); conditional residence applications; asylum cases; cancellation of deportation cases; and voluntary departure cases. With voluntary departure a respondent is spared the imposition of certain prohibitions against re-entry which accompany official deportation or removal. In addition, there are criminal cases in which no relief is available but which may involve a constitutional issue and are taken through immigration court to preserve the right to appeal.
Asylum is a form of relief from deportation for which respondents in certain circumstances may apply. Tables 5 and 6 present basic numbers on Alaska asylum court cases for the years 1993 through 1998. An asylee is defined as an alien in the U.S. who is unable or unwilling to return to his or her country of nationality because of persecution or a fear of persecution. Criteria for granting asylum are governed by federal statutes which are consistent with international protocols in this area. Under current federal law, the immigration status, whether legal or illegal, of an applicant for asylum is not relevant to the claim. The law sets no limits on the number of individuals who may be granted asylum. The tables show that immigration court grants very few asylum claims. After a year of residency in the U.S., an asylee may apply for adjustment to permanent resident status.
All respondents appearing in immigration court may be represented by an attorney, at their own expense. There is no provision for court-provided attorneys. The INS counsel will provide a list of possible sources of legal aid for indigent respondents and also a list of legal rights; proceedings will be postponed to permit the respondent to find counsel if desired.
EOIR figures show that overall the percentage of cases in which the respondent has been represented has increased substantially since 1993 (Table 1), but a significant number of individuals still handle their own cases. The figures on representation for those cases in which the respondent filed for relief from removal have remained fairly steady over the given period. (It should be noted that representation has not always involved an attorney. For several years a non-attorney employee of Catholic Social Services, who was accredited by the court, represented many respondents in court proceedings.)
As Table 3 indicates, the level of representation for those respondents who are in custody is significantly lower than the overall level of representation, and the percentage has declined as the number of these cases has grown. Since the interface between state criminal law and immigration statutes is complex, legal representation in these cases is particularly necessary. Tables 5 and 6 indicate that a sizeable number of asylum claims are also made without legal representation.
Relatively few attorneys practice immigration law in Alaska. A report from the Access to Civil Justice Task Force of the state court system due to be released in December 1999 states that there are only three attorneys experienced in immigration law in private practice in Alaska. All reside in Anchorage. In addition, three attorneys work with Catholic Social Services in Anchorage, which is the only agency in the state providing legal assistance to indigent or low-income immigrants. The task force report states that the program receives an average of 600 phone calls each month for legal assistance.
Alaska Legal Services is now prohibited by federal law from offering legal assistance to non-citizens in most situations, although the Pro-Bono Program has conducted immigration clinics in Anchorage, Juneau and Kodiak.
Detainees and Immigration Court
The arrest and detention of an alien in Alaska by the INS often results in the transportation of the individual outside the state, since there are no INS detention facilities within the state. Court hearings are then held where the individual is being detained.
Interpretation and Translation
Respondents in immigration court hearings in Anchorage are always provided a translator, at government expense, if their English is not adequate to understand and participate actively in the proceedings. Proceedings can be delayed for a shorter or longer period while adequate translation or interpretation services with which all parties are comfortable are located. In general, the court tries to anticipate as far in advance as possible what the language needs in a particular case will be and arrange for the presence of a translator in the courtroom during individual hearings. With some languages, this can mean obtaining a translator from outside the state. The court employs a variety of services in handling the language demands of cases, including Berlitz and the AT&T telephone translation service. The phone translation service is used primarily during master calendar hearings.
Table 7 lists the various languages which have been needed in Anchorage cases since 1993. Other than English, the language most commonly used is Spanish; over the period studied over 60 per cent of the hearings have required a Spanish translator. Russian, Albanian, Polish, and Tagalog—a language used in the Philippines—are also used fairly often.
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Within this overview of the structure of immigration court in the Anchorage and its operations are points which deserve more exploration—the exact nature of asylum cases in Alaska; the nature of cases in which the respondent is also under a criminal charge; the availability of legal representation in immigration court proceedings in these and other cases; the problems posed by the intersection of the Alaska criminal code and current federal immigration law; and the particulars of the situation faced by those arrested in Alaska and detained elsewhere. Examination of these points and others could clarify public understanding of the ramifications of immigration policies.