Federal Judge Richard Posner described administrative law judges who serve in the immigration courts as ill-trained and insufficient in number during a speech to the Chicago Bar Association this week.

The National Law Journal covered Posner's speech:

Posner, who sits on the 7th U.S. Circuit Court of Appeals, said administrative law judges who serve in the immigration courts are ill-trained and insufficient in number. He also said the bar that represents applicants doesn't have enough qualified lawyers, and that the Board of Immigration Appeals, which has 11 members, is too small. In recent years, Posner has offered glimpses of his dissatisfaction in opinions from the bench as well.

Some of those opinions were for cases won by pro bono attorneys working with NIJC. In his opinion for Mekhael v. Mukasey, Posner wrote: "We understand the Board's staggering workload. But the Department of Justice cannot be permitted to defeat judicial review by refusing to staff the immigration court and the Board of Immigration Appeals with enough judicial officers to provide reasoned decisions." 

Among Posner's specific critiques during the CBA speech were that immigration court judges rely too much on information from the U.S. Department of State in educating themselves about international issues, a concern he also included in his written opinion in Oyekunle v. Gonzales, a Seventh Court victory won by pro bono attorneys from Sidley Austin.

Posner made several recommendations that reflect policies NIJC has long supported in our work to reform the immigration court system. Among his suggestions were that judges receive better training, particularly in international issues that frequently arise in asylum cases, and that the Board of Immigration Appeals add members. Posner's public support for these solutions was heartening.

However, his additional suggestion that law school clinics add immigration clinics to improve the quality of the immigration bar is problamatic. It is unrealistic to expect that law schools can fill the gap to provide legal representation to immigrants seeking protection in the United States. Many law schools have immigration clinics that do an excellent job of representing the relatively small number of clients they are able to accept, but few have the capacity to take on additional, complicated cases.

Non-governmental legal aid organizations like NIJC also suffer from limited resources, but work with committed and dedicated pro bono attorneys who provide quality legal representation, and exponentially expand the number of cases NIJC can accept.  

Even so, the number of unrepresented immigrants facing deportation remains extraordinarily high (especially among those who are detained), placing a burden on the already overloaded immigration courts.

To ensure immigrants are able to exercise their full due process rights, the government should provide court-appointed counsel for, at minimum, individuals in administrative detention pending a decision in their immigration proceedings. Particularly for asylees seeking protection from persecution, receiving fair treatment by our courts can mean the difference between life and death.