Former immigration judges: appellate review crucial to fix errors - Reuters

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• Overburdened immigration courts need checks from appeals courts
• 11th Circuit created split by finding appellate review is limited
• Immigration courts' backlog has grown to nearly 1.4 mln cases

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(Reuters) - Nearly three dozen former immigration judges have urged the U.S. Supreme Court to rule that federal appeals courts have the power to review immigration court rulings on whether individuals are eligible for relief from deportation.

In an amicus brief filed on Tuesday, lawyers from Gibson Dunn & Crutcher wrote on behalf of the 35 former judges that court review of non-discretionary decisions by overburdened immigration courts and the Board of Immigration Appeals is necessary to catch and rectify legal errors.

Nearly 40 immigration law professors and a coalition of advocacy groups including the National Immigration Litigation Alliance and American Immigration Council also filed briefs on Wednesday.

The briefs came in the case of Pankajkumar Patel, an Indian national who has asked the Supreme Court to overturn an 11th U.S. Circuit Court of Appeals decision that created a circuit split in holding that federal courts' jurisdiction to review BIA decisions is extremely limited.

The one-time judges said Patel's case is emblematic of why court review of BIA decisions is necessary. The board upheld an immigration judge's ruling that found Patel had lied on a Georgia driver's license application by stating he was a U.S. citizen.

But the judge failed to note that in Georgia, individuals only need to be legally present in the U.S. to obtain a driver's license, so Patel's claim that the misrepresentation was a mistake was reasonable, the former judges said in their brief.

"Because deportation is always a particularly severe penalty, it is crucial that predicate nondiscretionary determinations in a case be reviewable to ensure that IJs and the BIA do not categorically bar discretionary relief based on an objectively incorrect finding," the former judges said.

Patel's lawyer, Ira Jay Kurzban of Kurzban Kurzban, did not immediately respond to a request for comment. Neither did the U.S. Department of Justice.

The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) amended the Immigration and Nationality Act to eliminate judicial review of any judgment regarding the granting of five specific forms of discretionary relief.

Since then, nine federal appeals courts have held that IIRIRA did not strip them of the ability to review non-discretionary decisions regarding eligibility for relief, such as determining whether a non-citizen can show 10 years of physical presence in the U.S.

But the en banc 11th Circuit went against the grain in its 2019 ruling in Patel's case. The court said IIRIRA's jurisdictional bar extended to threshold determinations related to the five forms of discretionary relief listed in the law.

The Supreme Court agreed to hear the case in June. The government has long taken the position that IIRIRA authorizes court review of non-discretionary determinations, so the Court appointed Taylor Meehan of Consovoy McCarthy to argue in support of upholding the 11th Circuit ruling.

In their brief on Tuesday, the former judges said the 11th Circuit's expansive reading of the law rendered the list of specific forms of relief superfluous. Congress clearly intended to preserve court review of the many non-discretionary findings in deportation cases that can carry "life or death consequences" for non-citizens, they said.

And courts' review power has become even more important as immigration courts' backlog has grown to nearly 1.4 million cases, and a 2019 rule allowed the BIA to affirm more decision by judges without writing opinions, the former judges said.

The case is Patel v. Garland, U.S. Supreme Court, No. 20-979.

For Patel: Ira Jay Kurzban of Kurzban Kurzban

For the government: Acting Solicitor General Brian Fletcher

Court-appointed amicus: Taylor Meehan of Consovoy McCarthy

Daniel Wiessner

Dan Wiessner (@danwiessner) reports on labor and employment and immigration law, including litigation and policy making. He can be reached at daniel.wiessner@thomsonreuters.com.

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