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Key Excerpt: Durbin and Sotomayor on Immigration

CQ Transcriptions

DURBIN: In 2002, then-Attorney General John Ashcroft issued so-called streamlining regulations that made dramatic changes in our immigration courts, reducing the -- the size of the Board of Immigration Appeals from 23 to 11. This board stopped using three-member panels, and board members began deciding cases individually, often within minutes and without written opinions. In response, immigrants began petitioning the federal appellate court in large numbers. In 2004, immigration cases constituted 17 percent of all federal appeals, up from 3 percent in 2001, the last year before the regulations under Attorney General Ashcroft.

I raised this issue with Justice Alito during his confirmation hearing, and he told me, and I quote, "I agree with Judge Posner that the way these cases are handled leaves an enormous amount to be desired. I've been troubled by this."

What has been your experience on the circuit court when it came to these cases? And what is your opinion of Judge Posner's observation in this 2005 case?

SOTOMAYOR: There's been four years since Judge Posner's comments, and they have to be placed somewhat in perspective. Attorney General Ashcroft's what you described as streamlining procedures have been by, I think, all of the circuit courts that have addressed the issue affirmed and given Chevron deference.

So the question is not whether the streamline procedures are constitutional or not, but what happened when he instituted that procedure is that, with all new things, there were many imperfections. New approaches to things create new challenges.

And there's no question that courts faced with large numbers of immigration cases, as was the Second Circuit -- I think we had the second-largest number of new cases that arrived at our doorsteps, the Ninth Circuit being the first, and I know the Seventh had a quite significantly large number, were reviewing processes that, as Justice Alito said, left something to be desired in a number of cases.

I will say that that onslaught of cases and the concerns expressed in the number of cases by the judges in the dialogue that goes on in court cases with administrative bodies, with Congress resulted in more cooperation between the courts and the immigration officials in how to handle these cases, how to ensure that the process would be improved. I know that the attorney general's office devoted more resources to the handling of these cases.

There is always room for improvement. The agency is handling so many matters, so many cases, has so many responsibilities making sure that it has adequate resources and training is an important consideration, again in the first instance by Congress because you set the budget.

In the end what we can only do is ensure that due process is applied in each case according to the law required for the review of these cases.

Read the entire exchange between Sen. Durbin and Judge Sotomayor. Read more about Sotomayor and immigration.

By  |  July 14, 2009; 6:25 PM ET
Categories:  Hearings , Supreme Court , Topics: Immigration  
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