The announced goal of a broad Justice Department project to improve the performance of the Immigration Courts — started during the Bush Administration but now a continuing challenge for President Obama — has failed to achieve many of its ambitious purposes.

Reforms by Number Performance Evaluations New Judges Evaluation Law Exam for New Judges Improved Training for Judges Improved Training for EOIR Staff Improved Reference Materials Detecting Poor Conduct/Quality Asylum Grant Rate Disparities Deploying Supervisors to Field Code of Conduct Complaint Procedures Streamlining Reforms Practice Manual Sanction Authority for IJs Sanction Authority for BIA Additional Judges and Staff Increase Size of BIA Digital Recording System Improved Transcription Improved Interpreters Fraud and Abuse Pro Bono Programs

This mixed verdict about the actual improvements that so far have been realized in the operations of these important courts after a three-year Justice Department effort is based on a very extensive analysis of thousands of pages of documents and millions of case-by-case records obtained by the Transactional Records Access Clearinghouse (TRAC) from the Executive Office of Immigration Review (EOIR), mostly under the Freedom of Information Act.

Because the EOIR is a key player in the federal government's regulation of immigration, the troubled progress of the effort to make it a fairer and more effective organization has far-reaching economic, security and political implications for all Americans as the United States attempts to better control its borders.

In this and a series of previous special reports — undertaken with the support of the Carnegie Corporation of New York, Syracuse University and several other foundations — TRAC in the last few years has subjected the EOIR to one of the more rigorous, carefully documented and continuing outside examinations that has ever been directed at a major court system in the United States.

Summary Background

Immigration lawyers, civil rights advocates and some members of Congress have for many years been concerned about the operation of the Immigration Courts that are now a part of the Justice Department. But beginning in 2002, a change in EOIR court procedures ordered by then Attorney General John Ashcroft resulted in a stream of unfavorable decisions by appellate level judges in different parts of the country. Ashcroft's successor Attorney General Alberto Gonzales — responding in part to these critical decisions — subsequently ordered the Justice Department to undertake a special study of the EOIR.

About the Research A very wide range of source material was used in this report to document the actions that the government took, and did not take, to implement the 22 changes directed by Attorney General Alberto Gonzales. Although some of the information incorporated in the report is publicly available, other significant material was provided by EOIR only after a number of detailed inquiries by TRAC or on the basis of our repeated requests under the Freedom of Information Act. See more...

In August of 2006 Gonzales, acting upon the findings of this internal study and the first in a series of studies documenting inexplicable disparities in how asylum cases were being decided, ordered the Justice Department to launch a corrective effort he said was necessary "to improve the performance and the quality" of the Immigration Courts and the Board of Immigration Appeals. Gonzales' directive listed 22 specific measures. In March 2007, outgoing EOIR Director Kevin Rooney sent a memo to his staff updating the implementation of the proposed changes and in many cases providing target deadlines for their implementation.

Now nearly three years after these reforms were announced, this TRAC special report assesses what has and has not been accomplished to implement the 22 reform measures. The report updates a 2008 TRAC study that offered at the two-year mark a complete point-by-point assessment of what had been accomplished to implement the Attorney General's directive.

The Bottom Line

While a detailed analysis follows this summary, TRAC's overall conclusion is that in the hiring, training, and quality assurance measures — key components of the changes promised to the Attorney General — much remains to be done. For example:

Selected References AG's 22 Reforms (August 2006) Rooney memo (March 2007) Report to Congress (May 2009) EOIR Internal Documents Judge Training Materials BIA Performance Appraisal Immigration Law Advisor EOIR asylum disparity study ACIJ Pilot Project ACIJ Report to GAO Code of Conduct (OGE letter) Fraud and Abuse Referrals Pro Bono Liaisons Related TRAC Reports Court Resources (2008) Court Backlog (2009) Asylum Process (2006) Asylum Primer (2006) Asylum Disparity (2006) Asylum Disparity (2007) Asylum Disparity (2009) Immigration Judge series Progress on 22 Points (2008) Point-by-Point Details (2008) Other Reports GAO asylum disparity (2008) DOJ political hiring (2008)

• EOIR has fallen far short of hiring the additional judges that the Justice Department had initially said were required.
• EOIR continues to hire judges without immigration law experience; available evidence indicates that comprehensive training in this complex legal area is not provided.
• EOIR has failed to provide evidence that it has established a system for seriously testing the immigration law knowledge of judges.
• EOIR has still not developed a judicial code of conduct or established a standardized system for handling complaints regarding the professional conduct of existing immigration judges. Nor have procedures been worked out to provide the judges the sanction authority they need to control their courtrooms.

TRAC's study also found some areas where real improvements appear to have been made. Among them:

• EOIR has hired more judicial law clerks to assist immigration judges, although their numbers are still so few that on average four judges must share a law clerk.
• EOIR has increased the scrutiny of new judges during a two-year trial period designed to evaluate their fitness. And at least two immigration judges have resigned pending an unfavorable review.
• There has been some reduction in the level of judge-to-judge disparity in asylum denial rates, although problems of disparity still remain.
• EOIR has implemented a Digital Audio Recording System that, as of May 2009, was functioning in 32 of the 54 Immigration Court sites. The new system is regarded as far superior to what it is replacing.

While these and other positive management steps are welcome, many serious long- term problems still remain for individual immigration judges, the EOIR, the Board of Immigration Appeals, the Justice Department and Congress to resolve.

What follows are the details of agency's accomplishments to date in implementing each of the Attorney General's 22 reform measures.

1)

Performance Evaluations for Immigration Judges and Board Members

The Attorney General directed the Deputy Attorney General, with the assistance of EOIR, to "develop and implement a process to enable EOIR leadership to review periodically the work and performance of each immigration judge and member of the Board of Immigration Appeals." According to the Rooney memo, the first evaluation period was to be July 2007 - July 2008. Judges would be rated "Satisfactory," "Improvement Needed" and "Unsatisfactory"; any ratings below Satisfactory would trigger appropriate remedial measures.

Status: EOIR has not conducted any annual performance evaluations of Immigration Court judges or BIA members. EOIR did recently finalize an evaluation policy for immigration judges that will go into effect this summer. EOIR also began a performance evaluation program for BIA members last summer and the first annual review will be held in July 2009.

Details:

• EOIR has conducted one mid-year review of BIA members. No reviews of immigration judge performance have been conducted. [Source: EOIR]


• According to EOIR, a "performance work plan" was implemented for BIA members on July 1, 2008, almost two years after the Gonzales directive was issued. Unlike the immigration judges, BIA members are not unionized and no contract negotiation was required to implement the evaluation program. The first mid-year evaluation was held January 2009, the first annual review will be held July 2009. [Source: EOIR]


• BIA members are evaluated on three "elements": "quality of adjudications," "accountability for organizational results," and "productivity," according to a copy of the evaluation form obtained by TRAC through FOIA. Each element includes sub elements and the form provides examples of satisfactory, improvement needed, and unsatisfactory performance for each element. In order to receive an overall satisfactory rating, BIA members may not receive more than one "improvement needed" in the three elements. [Source: EOIR evaluation form]


• Although the BIA held a mid-year review for BIA members, the mid-year review did not use the concluding metrics as used in the annual review; that is, "satisfactory," "improvement needed" or "unsatisfactory." [Source: EOIR]


• The Justice Department has a collective bargaining agreement with the National Association of Immigration Judges (NAIJ), the union that represents immigration judges, which requires negotiation for any "change in working conditions." EOIR did not submit a proposal for a program evaluation component until July 17, 2007, one year after the Attorney General's directive. EOIR reached an agreement for implementing performance evaluations on December 12, 2008, which was subsequently ratified by the Union and approved by the Justice Department. EOIR plans to implement the performance evaluation program on July 1, 2009, with the first evaluation conducted in July 2011, five years after the Attorney General's directive. [Source: EOIR, NAIJ, EOIR Report to Congress]


• EOIR did not release a copy of the new performance work plan for immigration judges. According to a brief description provided by EOIR, the evaluation program will be similar to the BIA program, although this program will operate on a two-year instead of a one-year cycle. It will evaluate "Legal Ability, Professionalism, and Accountability for Organizational Results." Evaluations will be conducted by Assistant Chief Immigration Judges (ACIJs), who will rate judges on each element. According to NAIJ, the agreement between EOIR and NAIJ also calls for the creation of a "joint labor-management committee whose purpose is to study the appropriateness of using input gained from stakeholder surveys as part of the performance evaluation process." [Source: EOIR, EOIR Report to Congress, NAIJ]

2)

Evaluation During Two-Year Trial Period for New Judges

The Attorney General directed EOIR to use the two-year trial period for Immigration Court judges and Board member "to assess whether a new appointee possesses the appropriate judicial temperament and skills for the job and to take steps to improve that performance if needed." The director of EOIR was also instructed to "provide a short report to the Deputy Attorney General on the temperament and skills of each newly appointed immigration judge or Board member roughly four months prior to the expiration of the two-year trial period."

Status: EOIR has increased scrutiny of new judges during a two-year trial period, and at least two immigration judges have resigned pending an unfavorable review. The agency has not provided detailed information on how they evaluate judges, how many judges were found to have problems with their temperament or skills, or what steps have been taken to "improve [...] performance if needed."

Details:

• According to EOIR, it has increased the level of scrutiny during the two-year trial period for all newly appointed immigration judges and BIA members, and has provided unfavorable reviews of a few new appointees during this period. Although EOIR has stated that it has completed implementation of this directive, it is impossible to determine its effectiveness because EOIR has not released details about the implementation of this assessment program, and has only released partial information about the outcomes of these assessments. [Source: EOIR]


• At least three judges have resigned shortly prior to the end of their two-year probationary period. In at least two cases, this was because they were informed that they would be terminated as a result of being found to not have either the correct temperament or the skills to be an immigration judge. EOIR did not provide direct responses to questions asking how many judges had received unfavorable reviews during the trial period. [Source: EOIR]


• EOIR has provided only brief, general descriptions of its assessment program. For example, in a 2009 report to Congress, EOIR stated that it has implemented a "tracking system" to monitor new judges and BIA members, but has not stated what metrics or factors have been tracked or how often these metrics and factors are examined. Similarly, EOIR stated that, as part of the assessment system, "newly appointed immigration judges and Board members are assigned experienced adjudicators to act as mentors and provide input regarding performance." The agency has not, however, provided information on how many judges during the trial period were found to have problems with their temperament or skills or needed further assistance and training. [Source: EOIR report to Congress, EOIR]

3)

Examination on Immigration Law for New Judges

The Attorney General directed that "all immigration judges and Board members appointed after December 31, 2006 will have to pass a written examination demonstrating familiarity with key principles of immigration law before they begin to adjudicate matters." The law exam was to ensure that all judges and BIA members were "proficient in the principles of immigration law."

Status: EOIR states that it has instituted an immigration law "exam" for new judges and a separate exam for all new BIA members. The process by which these new exams were developed and are administered, however, is not public and does not use standard procedures for ensuring legitimacy and accountability. Moreover, from what is known about the examination for new immigration judges, it does not appear to be a substantial test of "key principles of immigration law," as it has no time limit and new judges are tested only on material that they review each day immediately prior to the exam.

Details:

• EOIR has stated that it developed an examination for newly appointed Immigration Court judges and a separate examination for newly appointed BIA members. The immigration law exam has been administered to all new appointees beginning in April 2008, and all 33 of them have passed. The BIA exam has been administered to all new BIA appointees since August 2008, and all six of them have passed. [Source: EOIR, EOIR report to Congress]


• The immigration judges' exam is an online exam administered in approximately one-hour sessions on three consecutive days during the training week. The current version of the exam has 44 questions total, "many of which contain multiple subparts." EOIR has stated that the exam incorporated multiple choice and narrative answers and was graded on a pass/fail basis. [Source: EOIR]


• For immigration judges, the exam sessions are not timed. Each session is preceded by a day of instruction that prepares the appointee for the exam session (see training schedule). EOIR has not provided information detailing the subject matter of the exam, and it is not clear how much of the exam tests substantial immigration law. According to EOIR, "[t]he IJ exam is based in part on IJ procedure, including such things as warnings that must be afforded during hearings, conduct of hearings, and substantive immigration law. [...] Passing the exam indicates that the new Immigration Judge is ready to proceed to the next level of training." [Source: EOIR]


• At least five immigration judges who have taken the exam and passed appear to have no immigration law work experience in their career. [Source: EOIR Immigration Judge Biographies]


• EOIR has stated that "more than one examination" was developed, and that the "[e]xamination is updated periodically," but did not respond to questions asking how many examination versions had been developed, whether there was a written policy on updating the exam or when the exam would be updated. [Source: EOIR]


• EOIR has stated that the "questions were drafted and reviewed by experienced immigration judges, some of whom were also immigration law instructors and had experience in developing examinations." [Source: EOIR]


• TRAC has requested copies of previously administered immigration judge examinations through FOIA. EOIR stated that it had no copies of the exam or of questions asked because all copies had been discarded. When asked to explain how copies of exams administered only a few days prior to receipt of TRAC's FOIA request had come to be discarded, EOIR revised its FOIA response and claimed instead that the exam was not subject to FOIA requirements because it wasn't an "agency record." [Source: EOIR FOIA response]


• The BIA examination is a three-hour examination that is timed and administered in a single sitting. New BIA appointees are not prepared for the exam on the day of the exam. The BIA exam is "based in part on the regulations relating to BIA member authority and jurisdiction, and substantive immigration law." [Source: EOIR]


• The agency does not have a publicly available examination policy that describes how each test was drafted, what level of competency the exam is designed to evaluate, what material is tested, what format the exam takes, what determines a passing grade, who evaluates the exam or what steps have been taken to ensure the consistency and neutrality of the evaluation. Such fully documented procedures — designed to assure the accountability and legitimacy of formal law examinations — are widely used in the immigration law certification examinations regulated by states like Florida and California. [Source: EOIR, Florida State Bar, California State Bar Website, ABA Legal Specialization Certification Website]

4)

Improved Training for Immigration Judges and Board Members

The Attorney General directed EOIR to develop a plan to strengthen training for immigration judges and Board members that would address: "(i) whether expansion of the training program for new immigration judges and Board members is warranted, (ii) ways to ensure that immigration judges and Board members receive continuing education that is appropriate to their level of experience and instructive about current developments in the field of immigration law, and (iii) ways to ensure that immigration judges are trained on properly crafting and dictating oral decisions." According to the Rooney memo, EOIR had subsequently implemented an expanded training program for new immigration judges, and also developed a continuing education program for veteran immigration judges and Board members. The memo further said the continuing education program for veteran IJs would include: training conferences, circuit-specific reference material, a monthly update on immigration law developments, and a peer observation program. Board members would also receive periodic training sessions and in-sessions with federal judges.

Status: EOIR has implemented some new or enhanced training and resources for new and veteran judges. However, the effectiveness of these changes is not clear. For example, training for new immigration judges has been expanded, but written training material on substantive immigration law is far from comprehensive despite the fact that some appointees have no immigration law experience. EOIR has similarly expanded some training resources available to veteran immigration judges, most notably by publishing a monthly legal newsletter, but these resources may be of limited value because judges are not provided with additional time off the bench to use these resources.

Details:

• Training for new immigration judges has increased to five weeks from three weeks since 2006. According to EOIR, the training is composed of "intensive one week classroom training on law and procedure, two weeks of field court mentoring, two weeks of home court mentoring." The agency has stated that additional changes since June 2008 include new written course materials, an expanded curriculum that includes additional procedural and substantive law sessions, hands-on hearing exercises, expanded use of computer technology to train judges, and a pilot Transcript Review Team program where new immigration judges are assigned to an experienced judge who will review and discuss the first three transcripts of hearing and oral decision with the new judge. [Source: EOIR report to Congress, EOIR]


• EOIR has not publicly detailed the "comprehensive" training program currently administered to new immigration judge appointees. In the past three years, at least five appointees had no immigration law work experience. [Source: EOIR]


• Based on reviews of training material obtained by TRAC through a FOIA request, the one-week classroom training provides an overview of the immigration system and the immigration judge's role, but does not provide thorough instruction in substantive and procedural immigration law of the sort that would, for example, be offered in an immigration law course at an accredited law school. For example, a training session held August 10-15, 2008 at the San Diego Immigration Court consisted of approximately five full days of instruction and training and concluded with an investiture (see training schedule). Each day included presentations on multiple topics, with an emphasis on the judicial role (i.e. "introduction to the master calendar," "preparation and delivery of oral decisions"). Many complex substantive law topics, such as asylum claims or bond hearings, were dealt with in one or two hour-long sessions. Written training material given to the judges provided a broad outline of substantive or procedural topics, but was not an in-depth resource for judicial training. The training materials provided by EOIR to TRAC in response to a FOIA request can be viewed here.


• Classroom training for new immigration judges was at one point held at the National Judicial College, but has since been held at Immigration Courts due to budget cuts, according to remarks made by former BIA Chair Juan Osuna. [Source: Brookings Institute Panel Transcript]


• According to details provided by EOIR, training for veteran immigration judges consists of an annual conference plus a few hours of additional training during the year. From June 2008 to June 2009, veteran immigration judges received approximately 24 hours of training, of which approximately 4 hours were professional training not having to do specifically with immigration courts, and of which approximately 4 hours were pursuant to Congressional mandates. [Source: EOIR staff].


• Specifically, since June 2008, training for veteran immigration judges consisted of: a two-day virtual conference where judges viewed videotaped presentations on asylum adjudication, the REAL ID Act, administrative notice, "Dada" guidance, recent circuit court decisions, appellate review of oral decisions and other topics; a four-hour training in Fall 2008 for immigration judges on government ethics; a two-hour training in December 2008 on the International Religious Freedom Act; and a two-hour training in March 2009 on the Trafficking Victims Protection Reauthorization Act. [Source: EOIR]


• According to EOIR staff, immigration judge caseloads were not reduced to compensate for training time during Fall 2008, December 2008 or March 2009 trainings. [Source: EOIR staff].


• EOIR plans to hold a week-long training conference on August 3-7, 2009 for BIA members and immigration judges. This is a return to conferences held in previous years. Last year, EOIR did not hold a "conference" in the traditional sense. Instead, EOIR held a "virtual conference" on August 20 and 21, 2008; presentations included "procedural and substantive issues that may arise when adjudicating asylum cases." [Source: EOIR, NAIJ]


• According to NAIJ, in-person conference are much more valuable than virtual conferences. "The ability to interact and share experiences and innovative solutions with colleagues who have similar challenges in other Courts is an invaluable part of in-person training conferences and is something for which there is no substitute." [Source: NAIJ]


• According to EOIR, a peer observation program was "piloted successfully" and was being implemented nationwide. Judges engaged in at least one observation session as part of the August 2008 training session. According to NAIJ, no other structured implementation of peer observation for veteran immigration judges has taken place since that time. [Source: EOIR, NAIJ]


• In its report to Congress, EOIR stated that it had "formed a training committee which developed and implemented a comprehensive training program [...] the core of which" is the August 2009 conference. EOIR has not released any other information about this training committee, or provided any information about how the committee's "comprehensive" training program expands or improves upon previous training programs. NAIJ was not aware that such a committee had been formed as of June 2009. [Source: Report to Congress, NAIJ]


• Since January 2007, EOIR has published a monthly internal legal newsletter, The Immigration Law Advisor, summarizing new developments in immigration law. The Immigration Law Advisor includes a feature article about an issue in immigration law, federal court activity (which includes circuit-specific information about appeals and interesting cases), BIA precedent decisions, and a regulatory update. Through FOIA requests, TRAC has obtained electronic copies of the Immigration Law Advisor's first 25 issues, which may be viewed here. [Source: EOIR's Immigration Law Advisor]


• In addition to summaries of important circuit-court cases in Immigration Law Advisor, EOIR stated that it had provided circuit-specific reference material to judges in certain appellate circuits. The new Judicial Benchbook (initially partially withheld in response to TRAC's FOIA request but now available in its entirety online) does include links to opinions from each circuit (for example, http://www.ca1.uscourts.gov/). It also includes "circuit-specific references" for the second and ninth circuits; however, these references are merely links to reference materials provided by the second and ninth circuits respectively and the private bar. With the exception of an outline of criminal immigration law written by an EOIR immigration judge, EOIR has not created any new circuit-specific reference material outside of the circuit-court case summaries provided in the Immigration Law Advisor. [Source: EOIR, EOIR Benchbook, EOIR's Immigration Law Advisor]


• According to the NAIJ, immigration judges usually spend as many as 36 hours a week in court hearings, and have only a few hours to conduct other necessary administrative tasks, such as reviewing motions, reviewing and correcting transcripts, reviewing the records of proceedings for upcoming hearings, and drafting reserved decisions. Accordingly, "With this minimal amount of time off the bench, [immigration judges] barely have the time to keep current on their on-going cases, let alone to consult or absorb the newly provided materials such as the updated benchbook or monthly analysis of trends in case law [...] Without some provision for docket relief, [...] it is simply impossible to find the time to observe experienced colleagues in action, to engage in peer review activities, to share best practices innovations, or to integrate new ideas and approaches into one's daily work routine." [Source: NAIJ]


• According to NAIJ, immigration judges did not receive the newest version of the leading immigration law reference, "Kurzban's Immigration Law Sourcebook," for one full year after it was published because of budget constraints. The sourcebook is published every two years. [Source: NAIJ]


• According to EOIR, new BIA members receive "a personalized training, led by the Chairman and a senior legal advisor, promptly after they enter on duty. The training consists of substantive legal topics and Board procedure, with an emphasis on the Board's standard and scope of review, the criteria for adjudicating motions, and various administrative topics particular to the Board (e.g., how cases are certified to the Attorney General, internal case circulation procedures). The training highlights substantive areas of immigration law that appear most readily at the administrative appellate level, such as asylum, cancellation of removal, and voluntary departure." [Source: EOIR]


• EOIR has not conducted any training for veteran BIA members in the past year. EOIR held a training conference for BIA members in October 2006 that included federal judges. [Source: EOIR]

5)

Improved Training and Guidance for EOIR Staff

The Attorney General directed EOIR to propose a plan for improving training for BIA staff, with a special focus on "major recurring issues (e.g. correct screening standards, proper standards of review, and how to craft effective draft opinions)" and ensuring that "Board members provide staff attorneys with appropriate guidance in drafting decisions in individual cases." According to the Rooney memo, an improved training program has been implemented, including periodic training on both substantive and procedural topics and a quality assurance program had been implemented "to increase the likelihood that any errors in proposed orders are detected prior to issuance."

Status: EOIR has conducted ongoing training for BIA staff attorneys.

Details:

• According to EOIR, the agency held four training sessions for BIA staff attorneys in 2009, each lasting two hours and ranging in topics from drug trafficking to aggravated felonies to adjustment of status overview. Ten training sessions were also held between June 2007 and July 2008. [Source: EOIR]

6)

Improved On-Bench Reference Materials and Decision Templates

The Attorney General directed EOIR to develop "up-to-date reference materials and standard decision templates" for immigration judges "that conform to the law of the circuits in which they sit." The Rooney memo stated that a committee had been formed to revise and update the benchbook.

Status: EOIR has completed and deployed an intranet-based judicial benchbook, although it did not solicit external input, and judge representatives find the benchbook cumbersome.

Details:

• A new web-based benchbook has been completed and deployed on the EOIR intranet. The committee that revised the benchbook operated under the Chief Immigration Judge and was comprised of "an ACIJ, Immigration Judges, attorney advisors, and a staff assistant." The committee also received input from the Federal Judicial Center. [Source: EOIR]


• Although EOIR initially declined to make the benchbook public, stating that it was an internal document and withheld large portions in response to TRAC's subsequent FOIA request, EOIR has recently published the benchbook in its entirety on its public website. The online benchbook includes scripts for hearings, worksheets and checklists for different types of bench proceedings, outlines on a few topics of substantive law, several sample orders, a single template file, "alerts" citing changes in immigration law, and links to external legal reference material. [Source: EOIR, EOIR Benchbook]


• According to the NAIJ, "[the new benchbook] is still extremely cumbersome to use. While it is an improvement to have it available on the internet, it is not user friendly." The NAIJ also states that because of the time spent actively hearing cases by judges and the cumbersome nature of the benchbook, "[y]ou would need to give a judge a minimum week off the bench to pour through the benchbook to really figure out the information that is in there." [Source: NAIJ]


• Although the Rooney memo stated that the benchbook committee was "soliciting the views of interested non-governmental entities," no non-government views were solicited. According to the agency, "The benchbook is an internal document for the Immigration Judges to use. Therefore, we did not solicit views from non-governmental parties." [Source: EOIR]


• EOIR conducted a workshop to train judges on the new benchbook during the August 2007 immigration judges conference. [Source: EOIR]

7)

Mechanisms To Detect Poor Conduct and Quality

The Attorney General directed EOIR to "establish regular procedures [...] for Board members and the Civil Division's Office of Immigration Litigation (OIL) to report adjudications that reflect immigration judge temperament problems or poor Immigration Court or Board quality" and "to track and report [...] statistics that may signal problems in temperament or quality (e.g., unusually high reversal rates, unusually frequent or serious complaints, and unusually significant backlogs).

Status: Although EOIR and DOJ have implemented a system for referrals, the agency does not regularly "track and report [...] statistics" concerning such referrals or for other factors such as reversal or remand rates that may signal problems in temperament or quality.

Details:

• Although EOIR has publicly stated that it has "completed" this directive, EOIR has acknowledged that it does not regularly track and report any statistics on immigration judges as directed by the Attorney General, including reversal rates, complaints, and backlogs. Instead EOIR states that such measures are considered in "individual situations." [Source: EOIR]


• EOIR did establish a referral system for the BIA. The BIA now refers cases where there is an apparent case of inappropriate judicial behavior to the Chief Immigration Judge, as well as for "any number of" other reasons that EOIR did not specify. According to the agency, the BIA referred 50 decisions during 2007, 39 decisions during 2008, and 80 decisions in 2009 as of June 5, 2009. EOIR did not provide any explanation for the large increase in referrals during 2009. [Source: EOIR]


• The DOJ's Office of Immigration Litigation (OIL) in the civil division refers cases of either apparent judicial misconduct or erroneous rulings by BIA members not consistent with current law. According to the agency, as mentioned above, OIL in 2007 referred 573 such cases to the agency; in the first six months of 2008, it referred 199 such cases. EOIR declined to answer this question in 2009. [Source: EOIR]


• The agency does not track, and may not have the ability to track, how many complaints against judges have been received from OIL, or how referrals from BIA and OIL have been disposed of (e.g. did they result in discipline against a judge, were they without merit, etc.) [Source: EOIR, NAIJ]


• According to NAIJ, there is no internal data available to judges that details how referrals against judges are disposed of, or that tracks the remand rates and reversal rates of specific judges. Such data would provide a more complete picture of whether apparent problems perceived by OIL or BIA members are actual problems or reflect other issues, such as errors in transcription or differing legal interpretations that remain within the permissible interpretations of immigration law recognized by the federal appellate circuits. [Source: NAIJ]


• According to the NAIJ, there is a lack of transparency in the process since the criteria defining the circumstances under which OIL makes a referral are not available. Thus, Immigration Court judges have no information on what criteria OIL can use. [Source: NAIJ]


• EOIR declined to answer questions asking whether EOIR had a written policy explaining the process by which referrals from OIL are processed, including whether notice of the referral must be provided to the judge, whether there is an avenue for appeal, or what disciplinary actions may be taken. [Source: EOIR]

8)

Analysis and Recommendations Regarding Disparities in Asylum Grant Rates

The Attorney General directed EOIR to review the TRAC study documenting wide disparities in the asylum grant rates of immigration judges, "provide an analysis and, if appropriate, make recommendations [...] with respect to this issue." The Rooney memo stated that as part of a program to preclude disparities that did not result from differences in case types and other factors, EOIR was "closely supervising those immigration judges who have unusually high or low asylum grant rates."

Status: Although EOIR stated that it systematically monitors judges with unusually high or unusually low asylum grant rate discrepancies, it has not provided any details about the monitoring process or subsequent actions taken. A GAO report has confirmed immigration judge asylum grant-rate disparities and criticized the methods EOIR used to identify judges with unusually high or low asylum grant rates.

Details:

• EOIR has stated that it has completed this directive and that it "continues to monitor asylum grant rates regularly." EOIR declined to answer questions asking whether it has conducted any recent analysis of grant-rate disparities, whether it has taken any specific actions to mitigate grant rate disparities generally, or whether it has taken any specific action to mitigate unusually high or low asylum grant rates of individual judges. [Source: EOIR]


• In response to a Congressional request to investigate asylum grant-rate disparities, the Government Accountability Office issued in September 2008 a report titled "Significant Variation Existed in Asylum Outcomes across Immigration Courts and Judges." The report concluded that after controlling for nine factors such as affirmative and defensive asylum claims, applicant's nationality, time period of asylum decision, and representation, "disparities across immigration courts and judges existed. For example, affirmative applicants in San Francisco were still 12 times more likely than those in Atlanta to be granted asylum. Further, in 14 of 19 immigration courts for affirmative cases, and 13 of 19 for defensive cases, applicants were at least 4 times more likely to be granted asylum if their cases were decided by the judge with the highest versus the lowest likelihood of granting asylum in that court." [Source: GAO-08-940]


• EOIR originally responded to this directive by submitting a response to TRAC's asylum grant rate disparities report to the Attorney General in September 2006. TRAC obtained this response through FOIA. In the response, EOIR was critical of TRAC's study and concluded "it is very difficult if not impossible, for anyone to provide a definitive, well-supported comparison of the denial rates of the more than 200 judges in the immigration court system." The review also found that "most judges appear to grant and deny asylum claims at comparable rates." However, presenting its own analysis of asylum grant rates, EOIR concluded "there are some notable variances in denial rates [...] attributable to a relatively small number of judges." And that "some of the largest disparities in the denial of asylum claims among a handful of immigration judges merit close attention." [Source: EOIR 2006 report to Attorney General]


• According to a Government Accountability Office report, EOIR "did not run statistical analyses on the [2006] data, nor use the results of the 2006 study to identify immigration judges whose grant rates could be considered to be outliers. EOIR officials also said that immigration judges' supervisors — ACIJs — had not been informed of the study's results as of May 2008 because EOIR had not decided the value of the grant rate information." [Source: GAO-08-940]


• EOIR conducted a second study of grant rates during June 2008. Although TRAC requested the report under FOIA, EOIR withheld the report. According to a GAO report, "EOIR's June 2008 grant rate study determined the asylum grant and denial rate for each immigration judge and identified those deemed to be outliers — that is, according to EOIR, immigration judges who were among the top 16 percent of asylum granters and the top 16 percent of asylum deniers. Pursuant to the 2008 grant rate study, ACIJs were provided information on those immigration judges under their supervision whose grant or denial rates were among the top 16 percent of immigration judges in their local immigration court and nationally." The GAO report noted that EOIR's grant-rate report did not control for factors relevant to asylum grant rates, and therefore "the completeness, accuracy, and usefulness" of the report was "limited." [Source: EOIR, GAO-08-940]


• GAO further found "important differences" between the set of judges identified using EOIR methods and judges GAO identified as having unusually high or low asylum denial rates. [Source: GAO-08-940]


• In June 2009, TRAC published a further study to assess whether the level of decision disparity had changed since the Attorney General's 22 directives were issued. The 2009 report followed TRAC's earlier 2006 report and 2007 report and its annually updated series on individual immigration judges. TRAC found that among the fifteen immigration districts that decide the bulk of all asylum matters, disparity rates in ten of them have declined. There were also a few districts where the disparities increased. [Source: TRAC analysis of EOIR data]

9)

Pilot Program To Deploy Supervisors to Regional Offices

The Attorney General directed EOIR to conduct a pilot program assigning assistant chief immigration judges to serve regionally in one of the courts in the region that they oversee, and to report whether the regional assignments improved "managerial contact and oversight."

Status: DOJ and EOIR have appointed additional assistant chief immigration judges (ACIJs) and assigned them to directly supervise subsets of immigration courts. The GAO, however, has raised criticisms about whether the current deployment provides effective supervision.

Details:

• EOIR stated that the pilot program had been initiated and was found to be successful. In a letter to the Attorney General obtained by TRAC through a FOIA request, the agency concluded that the program resulted in improved oversight of the professional conduct of judges, improved communications between the field and headquarters, increased willingness of people to volunteer for important projects, such as developing an improved benchbook, and has improved public confidence in the management of the immigration courts. The letter stated that the reassignment of six ACIJs to the field had become permanent. [Source: EOIR letter, obtained by TRAC through FOIA]


• According to the GAO, "EOIR has not determined how many ACIJs it needs to effectively supervise immigration judges, and it has not provided ACIJs with guidance on how to carry out their supervisory role." Moreover, according to the GAO report, the number of ACIJs was insufficient to conduct effective oversight over the immigration judges. Also, the GAO report noted that EOIR had not decided whether to make the field ACIJ program permanent. [Source: GAO-08-940]


• It is not clear whether EOIR has taken steps to address the concerns cited in the GAO analysis. Through a FOIA request, TRAC did obtain a report submitted by EOIR to the GAO that was intended to be an "assessment of the resources and guidance needed to ensure that immigration judges receive effective supervision," however these documents do not amount to more than a list of skills and knowledge required of ACIJs and a list of ACIJ functions and responsibilities. [Source: EOIR GAO Letter].


• In its report to Congress in May 2009, EOIR stated that it has placed six ACIJs in the field and is "piloting other mechanisms for improving the management of the Immigration Courts, namely: the establishment of an Organizational Results Program, with an aim of ensuring that each immigration court receives a performance assessment every year; revising all Operating Policies and Procedures Memoranda and consolidating them into a comprehensive manual; and expansion of the field ACIJ program to include an additional field ACIJ in calendar year 2009." [Source: EOIR Report to Congress]


• However, according to EOIR's website on June 24, 2009, EOIR has for some time had only five ACIJs physically based in the field in one of the courts that they supervise. EOIR told TRAC that the agency had transferred one of the six field ACIJ positions back to headquarters. [Source: EOIR]

10)

Code of Conduct

The Attorney General directed EOIR to "draft a Code of Conduct specifically applicable to immigration judges and Board members" and to "submit it to the Deputy Attorney General." The Attorney General also directed that "Thereafter, it will be available online to counsel and litigants who appear before the Immigration Courts and the Board." According to the Rooney memo, implementation was targeted for Spring 2007.

Status: The Justice Department has not implemented a code of judicial conduct. After releasing a draft code of conduct in June 2007, EOIR changed course and stated that it would make revisions to its ethics manual instead. EOIR recently began negotiations with the judges union over proposed revisions to the ethics manual.

Details:

• No new code of conduct has been implemented, and no new code of conduct has been posted online or made available to counsel and litigants. [Source: EOIR]


• EOIR published notice of a proposed code of conduct on June 28, 2007 in the federal register. EOIR received negative comments in a letter from the United States Office of Government Ethics (obtained by TRAC through a FOIA request), saying that the proposed codes were not adequate because they "appear to supplement the Standards of Ethical Conduct for Employees of the Executive Branch (Standards), without following the supplemental rulemaking requirements of Executive Order 12674, as implemented by 5 C.F.R. § 2635.105." In addition, the NAIJ had also informed EOIR of concerns that the proposed code of conduct would treat judges as attorney employees, and not as judges. (See sidebar from previous report: Judicial Oversight v. Judicial Independence.) In late August 2008, EOIR stated that it was no longer pursuing a proposed code of conduct and that instead it would make revisions to the Ethics Manual, saying those revisions would be completed "soon." [Source: EOIR, DOJ Office of Government Ethics, NAIJ]


• Revisions to the Ethics Manual may trigger negotiation requirements under the collective bargaining agreement between the Justice Department and NAIJ. According to EOIR, it has not yet determined whether a revision of the Ethics Manual would trigger bargaining obligations. EOIR provided a revised copy of the Ethics Manual to the NAIJ on March 10, 2009, six months after it stated it abandoned pursing a stand-alone code of conduct. According to EOIR, it is currently reviewing union proposals regarding the proposed revision to the Ethics Manual. [Source: EOIR, EOIR Report to Congress]

11)

Complaint Procedures

The Attorney General directed EOIR to improve the existing complaint procedure by "(i) standardiz[ing] complaint intake procedures; (ii) creat[ing] a clearance process that will clearly define the roles of EOIR, OPR, and OIG in the handling of any particular complaint; and (iii) ensur[ing] a timely and proportionate response." According to the Rooney memo, EOIR had implemented a new standardized procedure by May 2007.

Status: EOIR has not completed implementing a standardized, clearly defined process for processing complaints. Inexplicably, EOIR stated on June 4 that it has completed this directive despite the fact that it acknowledged a month earlier in a report to Congress that it was still drafting a standard operating procedure and that negotiations about the roles of different offices within the Justice Department were ongoing. EOIR did assign an Assistant Chief Immigration Judge to specifically handle complaints against immigration judges.

Details:

• EOIR stated in its June 5, 2009 press release on its implementation of the Attorney General's directives that it had completed this directive. Inexplicably, EOIR did not mention in the press release that it is still negotiating with DOJ's Office of Professional Responsibility (OPR) as to how complaints should be handled, and that it had not yet completed drafting a written policy clearly describing the complaint process, as it acknowledged a month earlier in a report to Congress. In fact, EOIR has not provided any details about how its complaint process operates to either the public or to immigration judges. [Source: EOIR, EOIR Report to Congress]


• Specifically, EOIR has not published or internally disseminated information describing the roles of the ACIJs, the Office of General Counsel (OGC), the Office of the Inspector General (OIC), OPR and others; how quickly EOIR will respond to a complaint; who the final decision maker is on disciplinary actions; if and when judges are notified of complaints; and whether there is an appeals process for immigration judges. The only information EOIR has provided has been a brief outline provided to TRAC in response to a question posed in 2008: Complaints against Immigration Judges usually come directly to either the ACIJ for Conduct and Professionalism or to the ACIJ supervising the judge who is the subject of the complaint. Whichever ACIJ receives the complaint first notifies the other ACIJ and provides a copy of the complaint. The two ACIJs consult on the proper course of action. The supervising ACIJ investigates each complaint, which involves, as appropriate, contacting the complainant, the judge, and witnesses, and reviewing the hearing record. The supervising ACIJ consults the ACIJ for Conduct and Professionalism with his or her findings. The ACIJ for Conduct and Professionalism forwards to OPR or OIG complaints that fall within their jurisdiction for further investigation. Complaints deemed appropriate for EOIR management action are resolved in consultation with EOIR's Employee and Labor Relations Unit regarding the appropriate type and measure of discipline. If the matter is referred to OPR and/or OIG, that entity conducts its own investigation, makes findings, and makes recommendations to EOIR on what discipline should be imposed. [Source: EOIR]


• In its 2009 report to Congress, EOIR stated that: "A standard operating procedure which captures in full the currently followed process is being drafted, and discussions continue with OPR regarding the roles of each agency in handling complaints." In addition, EOIR acknowledged in responses to TRAC's questions that it did not have a written policy on how complaints were to be recorded or how actions responding to complaints were to be recorded. [Source: EOIR, EOIR Report to Congress]


• EOIR has taken some steps towards implementing this directive. Most notably, EOIR assigned an Assistant Chief Immigration Judge with responsibility for managing "conduct and professionalism" in July 2006. The first appointment to this position was made in an acting capacity on July 26, 2006 and appointed as permanent ACIJ on April 4, 2008. While initially this ACIJ's assignment focused exclusively on these specialized duties, now managing conduct and professionalism duties are in addition to a regular workload supervising immigration courts. [Source: EOIR]


• The agency also created a web page on its website that provides an email address for submitting complaints about immigration judges. The web page does not include a description of the kinds of complaints that will be considered, the name of a contact person for the complaints, information about the complaint procedures, and does not set forth what kind of a response, if any, a person filing a complaint will receive. [Source: EOIR]


• The agency also did not provide any information in response to repeated questions about how many overall complaints the new ACIJs office has handled or how those complaints were disposed of. Despite the fact that the Attorney General directed EOIR to establish a "clearly defined" clearance process for complaints, EOIR stated that it was "unable to report an exact number of 'complaints' as that term is not defined." Instead, EOIR stated that "[c]oncerns about EOIR adjudicators can come in the form of court decisions, BIA decisions, private bar complaints, DHS complaints, OPR and OIG investigations, anonymous tips, observations of colleagues or supervisors, and from disgruntled parties." EOIR stated that it tracked "concerns and their resolutions," but provided no details. [Source: EOIR]


• EOIR stated that it was not able to provide any information about the disposition of complaints, but that "since FY 2007 to the present, EOIR has issued 9 reprimands and 11 suspensions, counseled numerous IJs, and sent more than 20 IJs for additional training. These actions may or may not have been taken as a direct result of a 'complaint.'" [Source: EOIR]


• EOIR has declined to state whether it has conducted any written analysis, aggregations, or summaries of complaints. EOIR has not responded to TRAC's February 18, 2009 FOIA request for these records. [Source: EOIR]

12)

Improvements to the Streamlining Reforms

The Attorney General directed EOIR to draft a rule that would "(i) encourage the increased use of one-member written opinions to address poor or intemperate immigration judge decisions that reach the correct result but would benefit from discussion or clarification; and (ii) allow the limited use of three-member written opinions — as opposed to one-member written opinions — to provide greater legal analysis in a small class of particularly complex cases." In addition the Attorney General directed the Assistant Attorney General for Legal Policy to "draft a proposed rule that would return cases to the Board for reconsideration when OIL identifies a case that has been filed in federal court and, in OIL's view, warrants reconsideration." The March 2007 Rooney memo said that a proposed rule was expected to be issued in Spring of 2007.

Status: The Justice Department has not finalized a rule that would decrease the use of single-member appellate "affirmances without an opinion" (AWOs) and increase more rigorous appellate reviews by a three-person panel. A proposed rule was issued in June 2008. The Justice Department has not issued even a proposed rule that would return wrongly-decided cases to the BIA for reconsideration.

Details:

• A proposed rule was published on June 18, 2008, a year after the target deadline, and according to EOIR, that rule is currently under review. The rule would provide the BIA with greater discretion on whether to issue an affirmance with or without opinion, and expands the authority of board members to refer a case for a three-member panel review. The rule also authorizes a procedure by which the board can publish certain decisions as precedents, and states that the criteria the board uses for exercising its affirmance without opinion authority is solely for internal guidance, and therefore, it argues, not reviewable by federal appellate courts. [Source: Federal Register, EOIR]


• No proposed rule has been published that would return cases to the BIA for reconsideration. According to EOIR, "The proposed rules remain under review." [Source: Federal Register, EOIR]


• According to EOIR, the BIA has "largely implemented changes included in the proposed rule," even though the rule has not been finalized. The agency stated that affirmances without opinion have declined proportionally by a substantial percent. According to EOIR the BIA issued 3,086 AWOs in FY2007, 3,461 in FY2008, and 882 as of June 5, 2009. Again, according to figures provided by EOIR, the BIA issued 2,171 three-member panel decisions in FY 2007, 1,973 in FY2008, and 1,594 as of June 5, 2009. [Source: EOIR]

13)

Immigration Court Practice Manual

The Attorney General directed EOIR to draft "a Practice Manual that describes a set of best practices for the Immigration Courts."

Status: EOIR has completed a new Immigration Court practice manual that went into effect July 1, 2008.

Details:

• The manual was launched on EOIR's website on February 28, 2008 (PDF version, 11MB), and went into effect throughout the court system on July 1, 2008. [Source: EOIR]


• According to a letter from then Chief Immigration Judge David Neal, the practice manual was to be a "living document" updated regularly in response to changes to law and policy as well as user comments. The practice manual has been updated several times since July 1, 2008, most recently on April 9, 2009. [Source: EOIR, EOIR practice manual updates]

14)

Updated and Well-Supervised Sanction Authorities for Immigration Judges for Frivolous or False Submissions and Egregious Misconduct

The Attorney General directed EOIR and the DOJ to draft an "appropriate" new proposed rule that "creates a strictly defined and clearly delineated authority to sanction by civil money penalty an action (or inaction) in contempt of an immigration judge's proper exercise of authority [...] [I]ts use will require substantial oversight (e.g., approval by the Director of EOIR or another overseeing body), and one would anticipate it would be used sparingly." According to the Rooney memo, a proposed rule was to be issued in two phases, with one phase directed toward attorney misconduct targeted for spring of 2007, and a second phase directed towards "non-attorney 'preparers' who create fraudulent documents" targeted for summer of 2007.

Status: The Justice Department has not issued even proposed rules that would grant immigration judges authority to impose monetary sanctions in the courtroom.

Details:

• No rules have been issued. According to the agency, the proposed rules are being considered by the Justice Department. Notably, this was the same response provide by the agency last year. [Source: Federal Register, EOIR]


• The Justice Department did publish a final rule, effective January 20, 2009, that "increases the grounds for disciplining attorneys and representatives who appear before immigration courts or the BIA, with a focus on attorney diligence, competence, negligence, and client communication. This regulation also gives EOIR the ability to discipline counsel for strictly defined categories of gross misconduct that have been occurring before the BIA." This rule, however, increases the discipline authority of EOIR, not of individual judges in their capacity as courtroom administrators. Moreover, this rule does not apply to government attorneys. [Source: Federal Register, EOIR, EOIR Report to Congress]

15)

Updated Sanctions Power for the Board

The Attorney General directed EOIR and the DOJ to draft new rules that would provide authority to the BIA to sanction "litigants and counsel for strictly defined categories of gross misconduct." According to the Rooney memo, the rules, which would be incorporated with measure #14, were targeted for the spring and summer of 2007.

Status: The Justice Department has not issued even proposed rules that would grant BIA members authority to impose monetary sanctions in the courtroom.

Details:

• No rules have been issued. According to the agency, the proposed rules are being considered by the Justice Department. [Source: Federal Register, EOIR]


• The Justice Department did publish a final rule which became effective on January 20, 2009 that "increases the grounds for disciplining attorneys and representatives who appear before immigration courts or the BIA, with a focus on attorney diligence, competence, negligence, and client communication. This regulation also gives EOIR the ability to discipline counsel for strictly defined categories of gross misconduct that have been occurring before the BIA." This rule, however, increases the discipline authority of EOIR, not of individual BIA members. Moreover, this rule does not apply to government attorneys. [Source: Federal Register, EOIR, EOIR Report to Congress]

16)

Seek Budget Increases for Additional Staff

The Attorney General announced the DOJ would seek additional funding, starting in FY 2008, to hire additional immigration judges and judicial law clerks as well as more staff attorneys to support the Board of Immigration Appeals.

Status: The Justice Department has not consistently sought increased funding for immigration judges since FY 2008, as specified by the Attorney General. Further, the primary reason there aren't more immigration judges currently on the bench is because the Justice Department has for many years failed to fill the openings that EOIR has long had on its books.

Details:

• The DOJ requested funding for 120 new staff positions in FY 2008, including 20 immigration judge positions, but Congress did not appropriate the funding. Congress did make permanent 120 positions that had been temporarily funded through the end of FY 2007 during a FY 2006 wartime supplemental. [Source: DOJ Budget Requests, Budget of the United States Government]


• The DOJ did not request funding for additional staffing in FY 2009. However, last April in the 2009 Omnibus Appropriations Act, Congress increased EOIR's funding by $5 million over what the administration had requested in part to hire additional immigration judges and other needed staff. [Source: DOJ Budget Requests; Public Law 111-8]


• The DOJ requested 172 additional staff positions in FY 2010, including funding for 28 additional immigration judges and 28 more judicial law clerks. [Source: DOJ Budget Request, EOIR]


• In July 2008 EOIR said that all 28 unfilled positions were in the process of being filled, but with the increased "background" scrutiny required it would take "a considerable amount of time" to process candidates. However, as of June 2009 EOIR still had 19 immigration judge positions that remained unfilled. [Source: EOIR]


• Because of the slow pace of hiring, the number of immigration judges steadily fell rather than grew since the AG's announcement. Not until April 24, 2009, with the swearing in of 10 new immigration judges, did the number of judges finally inch up to and slightly surpass (238 versus 230) the number of judges who were working at the time the Attorney General announced a critical need for more resources. [Source: Office of Personnel Management, EOIR]


• As a result of the failure to fill existing positions, the backlog of immigration cases has grown by 19 percent since FY 2006, and wait times have increased 23 percent. Over the last decade case backlogs have grown by 64 percent, and wait times have increased by a third. [Source: TRAC analysis of EOIR data]


• A report released by the Justice Department's Office of Professional Responsibility and the Office of Inspector General found that inability of EOIR to fill open positions from 2004 to December 2006 was due to the Justice Department's use of an illegal, politicized process to appoint immigration judges with conservative political credentials. [Source: DOJ Inspector General's Report]


• For a full report about the funding and hiring of Immigration Court judges and law clerks, please see TRAC's 2008 report, "Effort to Hire More Judges Falls Short" and its 2009 report, "Case Backlogs in Immigration Courts Expand, Resulting Wait Times Grow."

17)

Increase in Size of the Board of Immigration Appeals

The Attorney General directed EOIR to "draft and submit to the Assistant Attorney General for Legal Policy a proposed rule to increase the size of the Board of Immigration Appeals from 11 to 15, by adding four permanent members.

Status: The Board has increased the size of the BIA from 11 to 15 members, but is still two member short of the stated goal. A vacancy announcement for one of the two remaining permanent BIA member positions closed on April 9, 2009.

Details:

• An interim rule was issued on December 7, 2006 that increased the size of the board from 11 to 15; the final rule was published on June 16, 2008. [Source: Federal Register]


• During FY 2008 the Attorney General appointed five new BIA members and a new Chair. A new Vice Chair was appointed in January 2009. These hires left one vacancy on the BIA until recently, when BIA Chair Juan Osuna was appointed to be the Deputy Assistant Attorney General for the Office of Immigration Litigation on May 22, 2009. There are currently 13 members on the BIA. [Source: EOIR, EOIR press releases]


• The vacancy announcement for one of the two open positions closed on April 9, 2009. Currently immigration judges and senior BIA attorneys are serving as temporary members. [Source: EOIR, EOIR report to Congress].

18)

Updated Recording System and Other Technologies

The Attorney General directed EOIR to begin piloting a digital audio recording system during FY 2007, and to begin nationwide implementation of that system "as soon as feasible."

Status: EOIR has implemented a Digital Audio Recording program at 32 immigration courts (110 courtrooms) as of May 1, 2009, and plans to complete implementation by the end of 2010.

Details:

• EOIR stated that the pilot program for Digital Audio Recording (DAR) was implemented on August 13, 2007. [Source: EOIR]


• As of May 1, 2009, the agency reports that 32 court sites (for a total of 110 courtrooms) and the BIA Oral Argument Room have received the DAR system. Those court sites are: Atlanta, GA; Aurora and Denver, CO; Baltimore, MD; Batavia, Buffalo, Fishkill and Ulster, NY; Bloomington, MN; Charlotte, NC; Cleveland, OH; Dallas, TX; Detroit, MI; Elizabeth and Newark, NJ; Florence and Phoenix, AZ; Kansas City, MO; Las Vegas, NV; Memphis, TN; New Orleans and Oakdale, LA; Oklahoma City, OK; Omaha, NE; Orlando, FL; Portland, OR; San Francisco and San Francisco Sansom, CA; San Juan, PR; Seattle and Tacoma, WA; and York, PA. In fourteen of these court sites, the DAR system was installed during the past year. Several of the largest courts, including New York City and Miami, have yet to receive the new system. [Source: EOIR]


• According to NAIJ representatives, "[m]ost IJs who have begun use of the system find that DAR is far superior in terms of being user friendly [...] The DAR technology has been a bright spot in administrative improvements for the immigration courts." [Source: NAIJ]


• EOIR has not conducted an analysis of the effectiveness of DAR, but according to EOIR the agency has "already experienced a number of both time and cost savings at the immigration courts, at the Board of Immigration Appeals, and in the Office of the General Counsel (OGC)." EOIR states that these efficiencies include: decreases in immigration judge administrative workload due to integration of DAR with the new case management system, as this removes the need for data-entry by the judge; the ability to more easily arrange an immigration judge's calendar by using an electronic docket; and the ability of BIA clerks to immediately access recording from immigration court hearings as opposed to needing to order and ship analog recordings. In addition, EOIR states that the Office of General Counsel will now be able to instantly review hearing recordings in cases where ethics issues are raised. [Source: EOIR].

19)

Improved Transcription Services

The Attorney General directed EOIR to "strengthen the transcriptions of oral decisions, including improving the timeliness of transcription to the extent feasible." According to the Rooney memo, in FY 2006 EOIR assessed liquidated damages on a transcription company, resulting in improved performance, and contracted with another transcription provider to improve service.

Status: EOIR has increased the speed of its court transcriptions, in part by hiring additional contractors. Accord to EOIR staff, however, the agency has not rectified key problems with the quality of transcriptions.

Details:

• According to EOIR, it has contracted with a third transcription provider since 2006. Subsequently, a backlog of tapes awaiting transcription has been eliminated, and most transcriptions are now available within five days. [Source: EOIR]


• According to NAIJ, "The major problem with transcripts is the poor quality, not the speed with which they are produced. Poor quality is reflected in the large number of "indecipherables" and total inaccuracies in transcripts, despite the fact that those present in court in the moment understood what was said." [Source: NAIJ]


• Some NAIJ members continue to report that "they have not seen an improvement in the quality of transcripts recently, but rather improvement in the speed in which they are generated, which is of dubious value and in fact has raised concerns that it is a factor which contributes significantly to continued poor quality." [Source: NAIJ]


• EOIR has stated that it expects the implementation of digital audio recording to improve transcription quality, stating that the new recording technology: "uses focused microphones true channel separation, sophisticated high fidelity audio mixing equipment, and courtroom-specific tuning to improve the quality of the sound collected. These elements are a considerable improvement over the old analog tape recorders in the recording and playback of multiple speakers and speakers with foreign accents. Improved sound quality increases accuracy and completeness of transcriptions." [Source: EOIR]


• EOIR also stated that it "documents quality control issues and brings them to the vendor's immediate attention for correction. Meetings are held regularly to discuss quality issues, the vendor's compliance with contract provisions, and remedial measures to be taken to ensure quality transcriptions." No specifics were provided on how EOIR identifies or "documents quality control issues," or on the number of such issues brought to vendors' attention, or whether the volume of issues was increasing or decreasing. [Source: EOIR]


• According to NAIJ, the immigration judges are not included in the quality control process and "have no knowledge of whether management meets to describe the quality issues to the vendors. We are not included in that process. Immigration judges routinely correct transcripts of oral decisions, but it does not appear that those corrections are being brought to the attention of the vendor as quality control issues." The NAIJ also stated that it was not aware of any criteria that defined "how many mistakes a transcript has to contain to be a quality control issue." [Source: NAIJ]

20)

Improved Interpreter Selection

The Attorney General directed EOIR to develop a plan to improve "the screening, hiring, certification, and evaluation of staff interpreters, and [...] to ensure that contract interpreters meet similar standards of quality." According to the Rooney memo, a new process had been developed where newly-hired government interpreters would be required to become certified by an agency-approved testing organization; current staff interpreters will be required to become certified within two years. Staff interpreters were to be subjected to a suitability review on a regular basis, and a quality assurance review team was to monitor contract interpreters. Implementation was targeted for the fall of 2007.

Status: Although EOIR has stated that is has increased scrutiny of staff interpreters and implemented monitoring of contract interpreters, it has abandoned a previously stated goal of certifying interpreters externally. In addition, according to NAIJ, knowledge of the complaint-based monitoring program among judges is limited at best.

Details:

• According to the agency, "[n]ew interpreters are now assessed on a quarterly basis during the one year probationary period and are provided targeted feedback to improve their skills." In addition EOIR states that it has centralized and standardized staff interpreter evaluations. EOIR also states that it: designed a continuing education program for interpreters, created an "online Interpreter Resource page containing glossaries, reference materials and links to other interpreter resources," and that it plans to update interpreter reference libraries in each court during FY 2009. EOIR has also created a web page providing general instructions for emailing complaints about interpreters, and a corresponding email address. [Source: EOIR Report to Congress]


• The agency has abandoned the plan, outlined in the Rooney memo, to have newly-hired and veteran interpreters certified by an agency-approved testing organization. According to the agency, "Upon investigating a certification program for staff interpreters, OCIJ discovered that formal certification would be cost-prohibitive [...] OCIJ has developed a set of internal interpreter hiring, training, assessment, and process enhancements to achieve the goal of improving interpretation in the immigration courts." [Source: EOIR]


• According to the agency, a bi-annual review for staff interpreters has been "enhanced." In 2007, "mid-year progress review and final appraisal were conducted at EOIR headquarters by a team of supervisory interpreters." Out of 105 staff interpreters, "three interpreters were provided additional resources, tools and mentoring to improve their skills and performance, and one interpreter was placed on a Performance Improvement Plan." [Source: EOIR]


• According to the agency, a "quality assurance team dedicated to monitoring contract interpreter accountability" was created in FY 2008. The unit acts on complaints from immigration judges, court staff and attorneys, and has received and reviewed approximately 80 interpreter complaints over the course of a year. [Source: EOIR]


• According to NAIJ's comments in 2008, the union had not been made aware of any steps taken to implement an internal evaluation program or a contract interpreter monitoring team, and the union was not consulted in the process. [Source: NAIJ]

21)

Referral of Immigration Fraud and Abuse

The Attorney General directed EOIR to develop "a procedure by which immigration judges and Board members may refer cases of immigration fraud and abuse to the appropriate investigative body for appropriate action, including possible future referral to and prosecution by the U.S. Attorney's Offices." According to the Rooney memo, a new program implemented by EOIR's Office of General Counsel requires every employee who detects "suspicious conduct" to report it; a new fraud and abuse program manager investigates each allegation and refers it to an investigative agency if appropriate.

Status: EOIR has implemented a new policy requiring all EOIR staff members to refer apparent instances of fraud and abuse in the Immigration Court systems. The agency, however, does not publish any statistics about the implementation of this policy.

Details:

• EOIR has instituted a new Fraud and Abuse program operated by the Office of General Counsel, which EOIR says requires every employee to report "suspicious conduct." A "Fraud and Abuse Program Manager analyzes the information and makes a referral to an investigative agency, if appropriate." [Source: EOIR]


• In response to a TRAC Freedom of Information request, EOIR released a highly redacted listing of entries in its "Fraud Program Database." This listing included 195 entries covering the period August 2006 through March 11, 2009. However, entries within the 195 cases being tracked were not limited to reports of fraud or abuse. They include, for example, requests for information from EOIR. Information from the section on the "actions" taken was entirely redacted, even on closed cases. EOIR stated: "referral sources have included members of the public, other EOIR employees, and other governmental agencies." EOIR's response also indicated that apart from the database the agency had no other "reports, correspondence, or other documents summarizing or aggregating referrals of fraud and abuse made to investigative agencies." [Source: EOIR]


• EOIR stated that the Fraud and Abuse Program, located in the Office of General Counsel, was created in August 2006 and is currently staffed by one full-time attorney and one-third of a paralegal. [Source: EOIR]


• While making this limited information available to TRAC, EOIR has not released any other information about the nature of referrals that were received or what actions were taken by investigative agencies on the referrals EOIR forwarded. EOIR still does not publish regular statistics on the program. [Source: EOIR]


• According to EOIR, the Fraud Program has created a monthly publication for distribution within EOIR to educate EOIR employees about immigration fraud." [Source: EOIR]

22)

Expanded and Improved EOIR-sponsored Pro Bono Programs

The Attorney General directed EOIR to form a committee to oversee the expansion and improvement of EOIR's Pro Bono Program. The committee was to be composed "of immigration judges, representatives of the board, other EOIR personnel, representatives of the Department of Homeland Security and the private immigration bar."

Status: EOIR formed a pro bono committee and has implemented some changes that it hopes will increase pro bono representation. Contrary to the Attorney General's directive, however, the agency did not include private bar stakeholders on the committee, although the committee occasionally meets with private bar members. The agency also has not publicly released the committee's full recommendations.

Details:

• EOIR has formed an EOIR Committee on Pro Bono. According to the agency the committee's work is ongoing. [Source: EOIR, EOIR Report to Congress]


• The committee did not include representatives from the private immigration bar on the committee as directed by the Attorney General, but did solicit the views of "nongovernmental organizations, [...] bar associations and [...] private law firms." According to EOIR, the decision not to include external members on the committee was made because of "legal concerns" that would be raised by open-government laws. [Source: EOIR]


• In summer 2007, the committee made 17 recommendations to expand and improve EOIR's pro bono program. EOIR declined to provide a copy of the report to TRAC, saying that it was an internal document and not publicly available and also withheld the entire document in response to TRAC's FOIA request. [Source: EOIR]


• As a result of the committee's recommendations, EOIR published a new policy on pro-bono activities in Immigration Courts, which among other issues, calls for each court to appoint a pro-bono liaison judge and orders judges to take special consideration of scheduling issues and practice rules with pro-bono attorneys. EOIR has appointed immigration judge "pro-bono liaisons" in every court and pro-bono committees in larger courts (New York City, NY; Miami, FL; Arlington, VA; San Francisco and Los Angeles, CA). [Source: EOIR]


• EOIR also expanded the use of Legal Orientation Program [LOP] from 14 to 25 sites. The LOP "provides detained aliens who are in removal proceeding with basic information on immigration law and court procedures." LOP does not provide pro bono representation, but does offer referrals for pro bono representation. [Source: EOIR]


• According to EOIR, the BIA's Pro Bono Project also continues to expand. The Project summarizes cases on appeal to the BIA according to criteria selected by NGOs, who then distribute those summaries in an attempt to solicit pro bono representation for certain BIA cases. [Source: EOIR]


• According to EOIR, the agency has held "model hearing programs" at several courts during which immigration judges "recruited and trained pro bono attorneys" in cooperation with the EOIR representation programs or local nonprofit legal services programs. Immigration courts hosting the model hearings included: San Diego (September 2008), Orlando (November 2008), Seattle (August 2008), York (June 2008), Houston (June 2008), and Newark (April 2009). Additionally, a BIA member participated in a pro bono training in January 2009 on representing cases before the BIA through the BIA Pro Bono Project. [Source: EOIR]


• EOIR states that it currently "does not have statistics tracking the extent of pro bono representation." As of November 2008, EOIR claims it created a pro bono case tracking code and is now training staff to use it. However, it declined to answer TRAC's questions about how the tracking code will be used or what will be tracked. EOIR also has not explained how this newly created pro bono case tracking will differ from EOIR's current systems for tracking of pro bono representation in the Immigration Courts and before the Board of Immigration Appeals. Further, EOIR has not provided the data it is collecting on pro bono representation from its current systems in response to a TRAC February 5, 2009 FOIA request for this information. [Source: EOIR]