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Alaska Justice Statistical Analysis Center |
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Immigration Court in Alaska 1993-2002
Sidebar story: Description of an Asylum Case
The Executive Office for Immigration Review
(EOIR) is the court system responsible for hearing immigration cases.
It is located within the Department of Justice, a judicial structure separate
from the Immigration and Naturalization Service. It has not been directly
affected by the reorganization of INS.
The Anchorage immigration court handles
cases from throughout the state. Alaska is part of a jurisdiction also
encompassing Washington, Montana, and Idaho. Judges for this area are
based in Seattle. They handle the different court locations on rotation.
An immigration judge travels to Alaska several times each year for a week
to hear individual cases. Master calendar hearings, which essentially
combine docket control with preliminary hearings, are conducted by video
around once or twice a month. (Over the period covered by the data here,
immigration court hearings in Alaska have been open to the public except
on the rare occasions where the respondent’s security—for
example, in cases in which domestic violence has been part of the case
background—has warranted closing the hearing.)
In general, respondents appear in immigration
court after being placed in removal proceedings by the INS—that
is, the INS is seeking to have them deported. (Since the data presented
in this article predate the reorganization of immigration and naturalization
function under the Department of Homeland Security, all references are
to the INS, although the agency no longer exists. See other
articles in this issue.) Respondents can contest INS charges in immigration
court or seek relief from removal.
The immigration court structure provides
for appeal through the Board of Immigration Appeals (BIA), which is also
with the Executive Office of Immigration Review. Decisions of the BIA,
in turn, are subject to judicial review in the main federal court system.
Despite the thrust of the immigration legislation
of the 1990s, which tightened controls on admissibility and broadened
ground for deportations, the overall caseload of the Anchorage court has
not fluctuated wildly over the last decade (Table 1), although the number
of applications for relief from deportation rose after 1995 (Table 2).
(The figures for the Anchorage court do
not reflect those cases in which the respondent is being detained by the
INS. Because there are no INS detention facilities in the state, most
aliens detained for removal proceedings are transferred out of state and
appear in court elsewhere.)
Table 3 shows data on the Institutional
Hearing Program. These are cases in which the respondent is in custody
in a state or local facility for a criminal offense. The immigration court
considers the implications of the individual’s criminal status for
his immigration status, which may be changed as a result of a criminal
conviction. As discussed in the accompany article, “Immigration
Consequences of Criminal Conviction,” the legislation of the
last decade expanded grounds for deportation for non-citizens with criminal
convictions. The number of cases in the IHP rose strongly beginning in
1995 but has declined sometwhat in the last two years.
The length of immigration cases can vary widely, from essentially being completed at the initial hearing or extending for many months. Table 4 shows that the average case length has fluctuated, rising steeply in the late ‘90s and then declining again.
Applications for Relief
As stated above, when an individual is placed in removal proceedings, he has the option of contesting the charges or admitting the charges and seeking relief from removal. Although exact figures are not available, 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 frequently in the Anchorage court: adjustment of status (for example, an individual who has entered the country illegally and has since married a citizen); asylum cases; conditional residence applications; cancellation of deportation cases; and voluntary departure cases. With voluntary departure a respondent is spared the imposition of certain prohibitions against reentry which accompany official departure 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 Cases
Asylum is another form of relief from deportation. The INS may grant asylum or it may be granted through immigration court proceedings. (See “Immigration and Naturalization Operations in Alaska” in this issue.) Table 5 presents basic numbers on Alaska immigration court asylum cases for FY 1993 through FY 2002. Criteria for granting asylum are governed by federal statutes consistent with international protocols to which the U.S. is a signatory. Under current federal law, in accordance with these protocols, the immigration status—legal or illegal—of an applicant for asylum is not relevant to the asylum claim. The table shows that immigration court in Alaska grants very few asylum claims.
Legal Representation
All respondents appearing in immigration
court have a statutory right to an attorney, but not at government expense.
Here, the INS counsel provides a list of possible sources for legal assistance.
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 overall since the early 1990s (Tables
1-3, 5), but a significant number of respondents still handle their own
cases.
Relatively few attorneys practice immigration
law in Alaska on a regular basis. The Immigration and Refugee Program
at Catholic Social Services is essentially the only social service agency
in the state providing legal assistance on immigration and asylum cases.
The program employs several staff attorneys, places cases on a pro bono
basis and provides attorney training. The program also works with the
Public Defender and attorneys with other social service agencies to provide
guidance on the legal complexities faced by non-citizens in the criminal
justice system.
Interpretation and Translation
Respondents in immigration court are always provided an interpreter at government expense, if their English skills are not adequate to understand and participate actively in the proceedings. Proceedings will be delayed or postponed until interpretation or translation services acceptable to all parties are found. In general, the court tries to anticipate as far in advance as possible what the language needs 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 also makes use of telephonic interpretation services, such as the AT&T telephone service. Table 6 shows the languages used in immigration court in Anchorage from FY 1999 through FY 2002. Spanish was, by far, the most common language employed.
***
This overview of immigration court in
Alaska covers its operations through the end of federal fiscal year 2002.
The massive reorganization of immigration and naturalization functions
occurring with the establishment of the Department of Homeland Security
and the provisions of the legislation passed in the wake of 9/11 will
undoubtedly have implications for the work of the court, even if the structure
of EOIR itself has not been affected. For example, in other court jurisdictions—but
not apparently in Alaska—considerations of national security have
resulted in closed hearings.
Data on court operations—available
through the Washington, D.C. office of the EOIR—should reflect the
ways in which the court operation changes as a result of the emergence
of the new department. This information will have to be viewed in conjunction
with the data assembled by the various immigration bureaus of the new
department—the nature of which is as yet undetermined.
The preceding article is based on information and data obtained through the EOIR and the INS as well as through interviews with INS and EOIR personnel, immigration attorneys and observation at court proceedings.
Description of an Asylum Case
The following are the facts of an asylum case heard by an immigration judge in Anchorage in spring 2003:
The twenty-three-year-old man, from a
South American country, had entered the United States illegally in 1999.
(An individual’s immigration status has no bearing on the application
for asylum, which is reviewed on its own merits.) He had applied for asylum
in 2002, after having been taken into custody by the INS and placed in
removal proceedings. He was represented by counsel.
The asylum claim, as it was presented in
court, was based on his fear of being killed by a guerilla group in his
native country if he returns. He had been threatened once, in 1997, by
members of the group who were active in the countryside near his mother’s
home. The guerillas had pressured him to join their cause and he had refused.
After the incident, he had left the region immediately and returned to
the capital city, where he lived with his grandmother. The guerillas had
returned at least once to ask his mother about him. Two years passed between
the time of this threat and his entry into the United States. During that
period he finished high school.
While in the United States he had used a
forged green card to obtain work. He had held several jobs in Alaska.
He had been convicted of a low-level criminal offense—furnishing
alcohol to a minor—and had successfully completed a community-service
sentence.
The young man claimed that he would be in
increased danger if he returned to his country, because individuals returning
from the U.S. are perceived to support U.S. policies.
The immigration judge denied the application
for asylum, finding that the facts did not support a sufficient claim.
He accepted the agreement for voluntary departure, with a bond. The respondent’s
attorney reserved the right to appeal.