Image: Laura Wytsma, Judy London and a Cameroonian woman
Jae C. Hong  /  AP
A Cameroonian woman who did not want to be identified for fear of reprisals against her and her family, poses for a photograph with her attorneys, Laura Wytsma, left and Judy London in Los Angeles, in this Dec. 2, 2010 photo. It took five years for the mother who was raped and beaten to win asylum. For a time, her three children in Africa didn't know she was alive - she feared she would jeopardize their safety if she contacted them.
By AP National Writer
updated 4/10/2011 4:01:53 PM ET 2011-04-10T20:01:53

The mother from Cameroon came to immigration court bearing scars: She'd been imprisoned back home, she said, beaten with cables, burned with cigarettes and raped repeatedly, contracting HIV. Her husband had died behind bars; her three children she'd left behind were struggling to survive.

She was seeking asylum, hoping to remain in Los Angeles and bring her children there. They were on their own after their grandmother died, living in a bamboo hut without water or a toilet, begging for food. For years, the mother, who'd fled Cameroon, had no contact with her kids, fearing she'd jeopardize their safety. When she finally did, her oldest son — gravely ill with malaria — sent her a letter:

"Ever since you left us mum, six years now, life has become so miserable, hope God intervains," the 20-year-old wrote. "Our greatest desire is to be beside you and ... acquire the love we need from you mama."

If the system had worked, this kind of asylum case would have been resolved promptly. But this was immigration court, where justice often moves at a glacial pace. Files were lost. Background checks delayed. Hearings scheduled at least 12 times over five years. The woman's lawyers, fearing their fragile client had become suicidal, were so alarmed they appealed to two members of Congress — not to intervene, but to call attention to what they say is a system in desperate need of reform.

"So many things are wrong, it's hard to know where to start," says Judy London, one of two Los Angeles lawyers who represented the Cameroon mother.

Some steps are being taken to fix the courts — federal officials are adding judges, improving training, reducing the influence of politics. But critics say these reforms are too little and long overdue. They follow a flurry of studies, congressional testimony and calls to do something about the crush of cases, complaints about erratic judges and delays that can leave thousands of immigrants in limbo for years.

Malcolm Rich, director of Chicago Appleseed Fund for Justice, a legal research and advocacy group that has studied the courts, is hopeful the spotlight will have an impact. "Can I predict it with certainty?" he asks. "Of course not. But we do have people in place who want to improve the way these courts are run."

One of the most immediate changes is the addition of 38 judges and about 90 others, including clerks, in the past 18 months. They'll help address a staggering backlog of nearly 268,000 cases at the end of last year, according to the Transactional Records Access Clearinghouse, a research group affiliated with Syracuse University.

That's far short of about 100 judges called for in an American Bar Association-commissioned study released last year. But Dana Leigh Marks, head of the union representing the judges, says "it's a very important first step and we hope they'll continue to follow through on the massive crisis that we face."

More staff, though, seems unlikely now; a temporary hiring freeze is in effect.

Judges deal with an overwhelming caseload. They completed, on average, more than 1,500 cases each in fiscal year 2009, Marks testified last summer in a congressional hearing. That can mean as many as nine trials a day — some involving potentially life-and-death matters.

"The consequences for the people in court are very, very high," says Marks, a San Francisco judge. "They may fear persecution in their homeland. That's a valid defense to deportation, even if they are in the United States illegally. ... If we're wrong, it's almost equivalent to sentencing someone to death."

The caliber of immigration judges themselves was at the heart of a recent political scandal that revealed how cronyism had tainted the system.

An internal Justice Department report in 2008 concluded that top advisers to then-Attorney General Alberto Gonzales broke the law by choosing immigration judges over a two-year period based on political loyalties rather than qualifications. That practice was "systematic in nature," according to the report. Several hires had little or no experience in immigration law.

The report noted the Executive Office for Immigration Review — the department running the courts — was occasionally allowed to publish vacancies but no one was considered without the proper political pedigree. As a result, numerous slots remained open for long periods despite pleas for more judges.

In congressional testimony last year, Juan Osuna, now acting director of the office, said "significant steps" had been taken to improve the courts, including changes in hiring practices. His office, he said, notifies more than 120 legal groups of vacancies and casts a wide net for those with the right skills, experience and proper "demeanor and temperament."

He outlined other reforms, including better training, a more open complaint system and more thorough rulings in the appeals stage.

In 2004, for instance, more than 30 percent of the decisions upheld by the Board of Immigration Appeals didn't explain the reasons. That has been reduced to 4 percent, Osuna testified.

His office also says it has made substantial progress in complying with nearly two dozen changes recommended by the Justice Department in 2006. Those proposals came amid reports of wide disparities in asylum granted by judges working in the same city.

Among other improvements: a digital recording system, testing of new judges, and programs to deal with, report and monitor questionable conduct by judges.

But some say serious flaws remain. An extensive three-year study by TRAC, the research group, said while there was progress, the plan to fix the courts "has failed to achieve many of its ambitious purposes."

And Laura Wytsma, a lawyer who worked on the Cameroon case, has her doubts about a turnaround.

"There are too many other priorities for the federal government ... it's so far down the totem pole," says Wytsma, a former government immigration lawyer. "There are no politicians accountable to this constituency (the immigrants). They are not wealthy. They have no voting power. They have none of the things that put any pressures on the powers that be to make change. I'm not optimistic at all."

London, her partner on the case, also says while there are "very competent judges," she's not "confident there has been anything done to stop the more egregious behavior we see again and again."

Both lawyers are among a growing chorus of legal advocates urging the court become a separate institution — similar to bankruptcy court — removed from the Justice Department.

They and others say the current system gives the appearance prosecutors (who work for the Department of Homeland Security) and judges have the same client: the federal government.

"It's really about the independence of the judges," says Karen Grisez, a Washington lawyer who heads the ABA's committee on immigration. "Right now, the attorney general can hire and fire the immigration judges. ... Judges can be reassigned or disciplined if they're perceived as too lenient or have too many continuances."

But establishing a separate court is costly and time-consuming, and many say it's not likely to happen without a major overhaul of immigration laws, if then.

Grisez says progress can be made immediately by providing the most vulnerable — children and mentally ill — with appointed lawyers. (In immigration court, people can hire a lawyer or find free representation, but often end up defending themselves.)

"It's the biggest travesty of all" to expect kids and emotionally disturbed people to represent themselves in an adversarial hearing with complex laws, Grisez says. A report last year found some U.S. citizens with mental disabilities were detained and even deported because they couldn't navigate the courts alone.

The courts plan to hire an assistant chief judge to deal specifically with vulnerable populations.

Marks, president of the National Association of Immigration Judges, has her own "wish list." She wants judges to have transcripts of cases so they can read them and do legal research rather than ruling moments after testimony is over. Oral decisions, she says, can cause trouble.

"Sometimes you will say something succinctly or in shorthand or without it being in context," she says, "and that's when some of the judges are accused of being prejudiced or biased." Some appellate decisions have harshly criticized rulings by immigration judges.

Marks says it's sometimes hard to find the root of the problem. "When the system is broken so severely, it's impossible to tell what the cause is — whether someone is buckling under the stress of the work of whether the person is a bad fit for a job," she says.

But it will take more than extra staff to create a fair, efficient court, says Rich, the legal advocate.

He says both sides should meet before trial to dispense with easier cases, leaving more time for difficult ones so an immigrant facing deportation after being charged with shoplifting, for instance, is not treated the same as one accused of drug dealing.

"No matter what the situation is, every case is basically given the same level of scrutiny and the same level of resources," he says. "It's not an efficient way of running a court system. If you had that in the state and federal courts, they would grind to a halt. It ends up being unfair to some people and doesn't serve the public interest."

Last year, U.S. Immigration and Customs Enforcement — which is charged with removing those ordered deported — issued two memos to help ease the court backlog.

One said that since ICE lacked the resources to deport everyone here illegally, priority should be given to those who are most dangerous. The second recommended that ICE offices review and dismiss certain cases if appropriate, including those where there isn't enough evidence, hasn't been adequate notice of a hearing or there are alternative ways to remove someone.

Critics pounced, claiming it was an attempt to create a backdoor amnesty, a charge the agency firmly denied. ICE says it placed more people in immigration proceedings in the last fiscal year than ever before. Calling for discretion is a way "to avoid wasting tax dollars and resources within our overburdened courts on cases that are likely to be granted relief anyway," said Brian Hale, chief ICE spokesman.

Even those pushing to streamline the system say certain steps, such as law enforcement checks, are absolutely necessary. "Nobody should arrive on our doorstep on Monday and be granted asylum on Friday," Wytsma says. "That will never happen."

But she says there's no reason it should have taken the Cameroon mother five years.

The woman, now 37, first sought asylum in late 2004, a year after fleeing her homeland in desperation. She and her husband had been jailed and beaten, her lawyers say, after holding a meeting of a political opposition party in their home.

She eventually was freed; he was not. She was still nursing her 20-month-old daughter when she left.

Her case bogged down in court, but in mid-2007, her lawyers were hopeful of a breakthrough when the woman's brother made it to Los Angeles. He, too, had been tortured in Cameroon and the lawyers believed his testimony would offer compelling evidence to buttress her story.

The brother quickly won asylum. (He also delivered heartbreaking news to his sister: Her husband had died in prison. Her mother, tortured and raped, contracted AIDS and died. Her father had died, too.)

But her fight stalled — the government was still working on background checks four years into the case. Diagnosed with severe post-traumatic stress disorder, she became so frustrated that she began talking about returning to Cameroon, telling her lawyers she couldn't abandon her children. She knew, too, she'd likely be arrested or even killed if she did go back.

Finally, in late 2009, she was granted asylum.

"We were two people with 40 years of legal experience thinking it shouldn't be so difficult to move this case along, but we won it by the hair of our chinny chin chin," London says.

This woman's ordeal, she says, highlights the flaws in the system. "If a judge or the government had looked at this case early on ... I don't think these children would have ended up fighting for their lives," she says.

The children were eventually located in Cameroon. By then, two were seriously ill; all were begging.

When the lawyers couldn't get the judge to expedite the case, they bypassed the courts and won permission through a branch of Homeland Security for the children to come to the U.S. The approval, London says, was based on evidence they faced life-threatening living conditions in Cameroon.

The two brothers, 22 and 18, and their 10-year-old sister, arrived last fall.

"There's an old adage — justice delayed is justice denied," Wytsma says. "That's particularly true here. When you have children exposed to malaria who almost died, when you have kids who lived in squalid conditions, a little girl separated from her mother in the most formative years of her life, I don't think anyone can say no harm."

___

Sharon Cohen is a national writer for The Associated Press, based in Chicago. She can be reached at features(at)ap.org.

Copyright 2011 The Associated Press. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.

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