There are more than 228,000 pending cases in the nation’s Immigration Courts, an all time high, in part because of lingering judicial vacancies on the courts, according to a Transactional Records Access Clearinghouse analysis released Friday.

Immigration judges oversee deportation proceedings and make decisions on asylum, removal and adjustment of status for aliens. Unlike other federal judges, immigration judges are appointed by the attorney general and do not require Senate confirmation.

According to the Syracuse University’s TRAC, in the first few months of fiscal year 2010, the number of pending cases rose to 228,421, a 23 percent increase since the end of fiscal 2008. That number also represents an 82 percent increase from 10 years ago, according to a TRAC news release. The analysis also found that the average length of time cases had been pending has increased to 439 days. Longer wait times reach as high as 713 days in Los Angeles and 612 days in Boston, The Washington Post reported.

As of Jan. 12, 2010, there were 48 vacancies — or 17 percent of all judge positions — on the Immigration Courts, according to TRAC. To deal with the vacancies, Congress has allocated funds for additional judge positions over the past several years, The Post reports.

“The failure to fill positions that Congress has provided money for is baffling,” TRAC co-director David Burnham told The Post. “People are waiting days and days to get their cases considered, judges have less and less time to deal with each case. Clearly there’s an effectiveness issue. But it also raises really strong fairness questions.”

Criminal prosecutions since 1989. (Courtesy of TRAC)

Federal prosecutions soared in the 2009 fiscal year, reaching a record high of 169,612.

The 9 percent increase over the previous year was driven by cases filed against immigration violators, according to Justice Department data analyzed by the Transactional Records Access Clearinghouse at Syracuse University. Immigration prosecutions shot up 15.7 percent, and amounted to more than half of all criminal cases brought by the federal government.

Meanwhile, drug, weapons and white-collar cases were up only slightly or declined.

Experts told The New York Times the jump stems from efforts during the Bush administration to step up immigration enforcement and expedite prosecutions. In addition to increasing the number of Border Patrol agents, the Bush administration launched Operation Streamline, which promoted mass processing of plea deals in immigrant cases. The Obama administration has continued the policy. The Obama administration was in power for more than two-thirds of fiscal 2009.

Immigration cases are disposed of in an average of two days, and they are rarely turned down by prosecutors. White-collar cases typically linger for about 460 days, and prosecutors reject about half those referred to them by law enforcement agencies.

In Arizona, where nearly a quarter of the immigration cases were processed, Operation Streamline has run into trouble. The U.S. Court of Appeals for the Ninth Circuit, which has jurisdiction over the state, recently held that the process of mass pleadings violates the federal rule that shields defendants from being coerced into a guilty plea, according to the Times.

Arizona U.S. Attorney Dennis Burke, who was confirmed by the Senate in September, has said border enforcement is a top priority.

Arizona is also home to Maricopa County Sheriff Joe Arpaio, whose tough enforcement of immigration laws have led to the arrest of thousands of illegal immigrants. He has been accused of unfairly targeting Latinos in his crime sweeps, traffic stops and immigration raids. Arpaio denies wrongdoing, saying his officers are simply enforcing the law.

The Justice Department has set up a telephone tip-line as part an investigation of Arpaio, known as “Sheriff Joe.”

Click here for the full NYT story, and click here for a summary of TRAC’s findings.

Five immigrant rights organizations are petitioning the Justice Department to allow immigration judges to appoint counsel under certain circumstances, The BLT reports.

The petition, filed June 29, argues that judges should be permitted to appoint counsel only when doing so preserves the fundamental fairness of the proceedings. The judge should consider eight factors in making such a determination, the groups said. Among them: The alien’s ability to read, write, and comprehend the English language; the complexity of the case; and whether the alien is detained.

The groups want the Justice Department, which oversees the nation’s roughly 50 immigration courts and the Board of Immigration Appeals, to create a new rule.

“The massive increase in the number of immigration detainees, the increased complexity of the immigration law, and the inability of most immigrants to navigate the legal system without counsel all suggest the reconsideration of the appointment of counsel,” the petition states.

The petition was submitted by the Catholic Legal Immigration Network Inc.; the National Immigration Forum; the National Immigrant Justice Center; the Northwest Immigrant Rights Project, and the Post-Deportation Human Rights Project, Center for Human Rights and International Justice at Boston College. Jones Day provided pro bono assistance.

Attorney General Eric Holder today vacated an order issued by former Attorney General Michael Mukasey’s in his final days in office that had greatly narrowed the appeals rights of immigrants.

Mukasey’s Jan. 7 order in Matter of Compean  overturned Board of Immigration Appeals (BIA) precedent and procedures by preventing immigration applicants from appealing rulings based on claims of ineffective counsel.  The Mukasey order, issued without the usual public comment period for federal rules, caused an uproar in the immigration bar, especially given the crisis of crooked and/or incompetent immigration lawyers who prey on clients.

The American Immigration Law Foundation sent this letter in February asking Holder to reconsider Mukasey’s ruling. It was signed by more than 130 organizations, law firms, and individuals. The letter said Mukasey “improperly reached for and decided a constitutional question in Compean.”

The letter also said:

In Compean, the outgoing Attorney General employed a rarely used procedural device and after an expedited briefing schedule, issued this sweeping decision rejecting the right to counsel and finding that there is no right to remedy ineffective assistance of counsel.  The decision overrules decades of precedential decisions from the Board of Immigration Appeals and disagrees with numerous courts of appeals on an issue of great national significance.     

Below is Holder’s statement, from the DOJ news release:

The integrity of immigration proceedings depends in part on the ability to assert claims of ineffective assistance of counsel, and the Department of Justice’s rulemaking in this area will be fair, it will be transparent, and it will be guided by our commitment to the rule of law.  It is important that the American people have the opportunity to participate in formulating our procedures in this area, and this new process will ensure they do.