The New York Times this week reported on the increasing number of poorly prepared  federal immigration appeals cases coming before the Second Circuit.

There is, Judge Robert A. Katzmann wrote for a panel of Second Circuit judges in February, a "disturbing pattern of ineffectiveness" at the lower levels of the immigration bar, one that rears its head in the appeals courts with "alarming frequency."

The article featured an immigration lawyer who has taken more than 50 cases to federal court and been chastised by judges there at least six times for submitting poorly written briefs. He seemed well intentioned, but readily admitted that he and many other immigration lawyers have not been properly trained on how to handle those cases in federal court.

This is troubling, because more cases than ever are being appealed to the federal courts. In 2002 Attorney General John Ashcroft "streamlined" the immigration adjudication system. He cut the Board of Immigration Appeals (the body that reviews the decisions of immigration judges) by more than half and encouraged its members to issue decisions without written explanation. Since then, the federal courts have more or less taken on the role previously filled by the BIA. Immigration attorneys now frequently appeal their clients' cases there. (In the Seventh Circuit, NIJC has won several opinions that overturn unreasoned opinions by immgiration judges and criticize inadequacy of the immigration court system.) When an immigrant's case is poorly decided by an immigration judge, and that bad decision is affirmed without opinion by the BIA, immigrants whose cases may mean a difference between life or death want to keep fighting, and their attorneys end up in federal courts whether they're ready or not.

And so another betrayal of basic due process rights on the part of the U.S. immigration system is revealed.

People involved in immigration appeals, many of whom are seeking asylum, are often poor. But they are not entitled to lawyers provided by the government.

 

A person accused of shoplifting gets an appointed attorney," said Stephen W. Yale-Loehr, who teaches immigration law at Cornell. Someone who is fleeing persecution and may be tortured or killed if forced to go back to their home country does not.

 

That means asylum applicants may get only the justice they can afford.

 

[...]

 

Notwithstanding the shortcomings of parts of the immigration bar, there is no question that, on average, having a lawyer makes a difference. A study published last year in The Stanford Law Review found that 46 percent of people who appeared with lawyers or other representatives were granted asylum. People without lawyers won 16 percent of the time.

 

Good lawyers do even better. Georgetown University's legal clinic wins 89 percent of the time. Human Rights First, which refers cases to big law firms in New York and Washington willing to handle them without charge, wins 96 percent of the time.

 

All of this points to a disquieting phenomenon. There is a legitimate debate about how liberal the nation's asylum policies should be. But nobody should be happy to hear that whether people who claim to be fleeing persecution are deported or not turns on how good a lawyer they have - or whether they can afford one at all.