Supporting Details:
Implementation of the 22 Improvement Measures

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 - June 2008. Judges would be rated "Satisfactory," "Improvement Needed" and "Unsatisfactory"; any ratings below Satisfactory would trigger appropriate remedial measures.

Reforms by Number

Status: EOIR has not conducted any annual performance evaluations of Immigration Court judges or Board of Immigration Appeals members, or set a firm date for the first set of reviews.

Details:

No evaluations have been conducted to date. [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 agency expects to hold the first evaluation of BIA members at the half-year mark in January, 2009. [Source: EOIR]

EOIR has not finalized an evaluation plan for immigration judges and does not have an estimate for when an evaluation of immigration judges might take place. [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." [Source: NAIJ, EOIR]

The agency submitted a proposed plan to the NAIJ on July 17, 2007. According to NAIJ, the Union "submitted counterproposals … shortly thereafter." [Source: NAIJ]

Negotiations between NAIJ and EOIR are currently ongoing. [Source: EOIR, NAIJ]

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 members "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 stated that it has increased scrutiny of new immigration judges and that it has reported findings from such reviews to the Deputy Attorney General. At least two judges have resigned pending an unfavorable review. The agency has not, however, provided information on how they "continually monitor" a judge's "temperament and skills," 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:

EOIR did not provide information on how they "continually monitor" a judge's temperament and skills" during the two year trial period, declined to provide information on how many of these judges were found to have problems with their temperament or skills, and provided only partial information on what disciplinary actions were taken. [Source: EOIR]

According to the EOIR, it "has used the trial period to more vigorously review the conduct and performance of all newly-hired Immigration Judges, including conducting an in-depth review before the trial period expires." The agency also stated that it "consults with court staff, peers, and interested parties as part of the review and reports its findings to the Deputy Attorney General." [Source: EOIR]

At least two judges have resigned shortly prior to the end of their two-year probationary period because they were informed that they would be terminated as a result of their being found to either not have the correct temperament or the skills to be an immigration judge. [Source: EOIR]

According to the Rooney Memo the agency had established a process where "if a new appointee's performance has been suitable, a final certificate of suitability will be issued at the end of the appointee's probationary period." According to EOIR, however, the current policy is that, "a suitability determination is based on an individual's pre-employment history and is generally made before an individual begins their Federal employment based on the results of a background investigation." [Source: Rooney Memo, EOIR]

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 has instituted a new immigration law exam for new judges. The process by which the new exam was developed and is administered, however, is not public and does not use standard procedures for ensuring legitimacy and accountability.

Details:

EOIR developed an immigration law examination for newly appointed Immigration Court judges and Board members. The immigration law exam has been administered to all new appointees since March 2007. As of June 13, 2008, 13 newly appointed immigration judges and one assistant chief immigration judge had taken the examination, and all of them passed. [Source: EOIR]

EOIR provided minimal information about the exam, how it was developed, or how it was evaluated. EOIR stated that the exam incorporated multiple choice and narrative answers and was graded on a pass/fail basis. EOIR also said 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]

EOIR also stated that the exam was "incorporated into the ... training program. Passing the exam indicates that the new Immigration Judge is ready to proceed to the next level of training." In preparation, new immigration judges "observe immigration courtroom proceedings for up to two weeks and are provided with extensive materials on various immigration law topics relevant to their responsibilities." [Source: EOIR]

The agency does not have a publicly available examination policy that describes how the 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]

At least one judge who passed the examination appeared to have no immigration law experience in his career. [Souce: EOIR Immigration Judge Biographies]

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 aspects of the training for new and veteran judges, but it has also reduced the quality or extent of other training components. Some enhancements have reduced value because of the limited time available to immigration judges.

Details:

Training for new immigration judges has increased to five weeks from three weeks since 2006, and 20 new appointees have gone through the expanded training program. The current training "includes working with mentor judges in their home court and in a training court." [Source: EOIR]

EOIR did not provide information about the curriculum for the "comprehensive" training that, in at least three cases over the past two years, was directed at new appointees who did not have any background in immigration law. [Source: EOIR]

EOIR has changed part of their training program for new immigration judges from a course taught by live professors at the National Judicial College to a videotaped presentation of previous training seminars. [Source: National Judicial College, NAIJ]

An immigration judges training conference was held in August, 2007, which included presentations by federal circuit judges and a workshop on asylum disparities. There was no "conference" in the traditional sense in 2008. Instead, EOIR held a virtual conference including videotaped sessions on August 20 and 21; planned presentations included "procedural and substantive issues that may arise when adjudicating asylum cases." [Source: EOIR]

According to NAIJ, "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]

EOIR did not provide any examples of circuit-specific reference material that it had provided to judges in certain appellate circuits, but did state that such material was included in the new judicial benchbook. [Source: EOIR]

EOIR has published a monthly internal legal newsletter, The Immigration Law Advisor, summarizing new developments in immigration law, since January, 2007. Seventeen issues had been published as of July, 2008. [Source: EOIR, NAIJ]

According to EOIR, a peer observation program was "piloted successfully" and is now being implemented nationwide. Observations were also planned as part of the August 20 training session. The agency did not respond to TRAC requests for the number of observations that had taken place to date, or how often observations would take place, when the observations had been implemented, or whether the observations resulted in any kind of report or metric. According to EOIR staff, the observation program had been implemented on an ad-hoc level at best. [Source: EOIR, NAIJ]

BIA members participated in a conference facilitated by the Federal Judicial Center. The conference was held at Georgetown University in October 2006 and included federal judges. EOIR also stated that "BIA Members and staff receive periodic on-site training throughout the year on legal and procedural issues," but did not provide any details. Similarly, EOIR stated that "The BIA leadership also holds regular formal liaison meetings with federal judges. To date, the BIA has met with the Ninth Circuit three times, the Second Circuit three times, the Seventh Circuit two times, and the Third Circuit one time since 2005." [Source: EOIR]

According to the NAIJ, immigration judges 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 up-coming 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, EOIR has not ordered the newest version of leading immigration law reference, "Kurzban's Immigration Law Sourcebook," for immigration judges because of budget constraints, and does not plan to do so until the new fiscal year begins in October. [Source: NAIJ]

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 had 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 the agency, 10 training sessions have been held for BIA staff beginning in 2007. [Source: EOIR]

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. According to EOIR, this benchbook includes "suggested approaches for dealing with certain cases; ... legal resources from the BIA; circuit specific authorities; an aggravated felony case summary outline; an asylum credibility outline by circuit; information on new Immigration Court Operating Policies and Procedures; and updates on widely-used immigration materials as well as legal, regulatory, and policy changes that affect Immigration Judges." 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 the Rooney Memo stated that the benchbook committee was "soliciting the views of interested non-governmental entities," no non-governmental 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]

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, "You 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]

EOIR has not made the benchbook publicly available, stating that it is an internal document. [Source: EOIR]

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 systematically "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:

The BIA now refers cases where there is an apparent case of inappropriate judicial behavior to the Chief Immigration Judge. According to the agency, the BIA referred 50 such matters involving 21 different judges during 2007 and 16 such matters involving 12 different judges during the first half of 2008. [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. The agency stated it is not possible to breakdown the data into referrals solely for immigration judge conduct vs. Board quality. [Source: EOIR]

Beyond general figures for the gross number of referrals from BIA and OIL, EOIR does not systematically track and report statistics such as high reversal rates, or frequent and serious complaints. For example, the agency is unable to provide a list of 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]

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 did not provide details about the monitoring process or subsequent actions taken.

Details:

In November of 2007, EOIR's Office of Legislative and Public Affairs released a backgrounder on "Asylum Variations in Immigration Court" that concluded "Asylum adjudication does not lend itself well to statistical analysis ... It is therefore important that any statistical analysis acknowledge these variables and not draw comparisons between substantially different cases." The backgrounder listed several improvement measures taken by EOIR to improve the quality of adjudications from the Attorney Generals directives, but made no mention of Rooney's statement that judges with unusually high or unusually low asylum grant rates were being supervised. [Source: EOIR website]

EOIR stated that "OCIJ does systematically monitor and supervise Immigration Judges who have unusually high or low asylum grant rates ... and uses the grant rate data as well as other measures of performance (such as consideration of reversals on appeal), to determine whether specific judges require training, mentoring, peer observation, and/or counseling." The agency did not provide any information about how often such monitoring led to agency action, or what kind of action was taken. Nor did it provide details about the monitoring process itself or how "unusually high or unusually low asylum grant rate discrepancies" were defined or determined. [Source: EOIR]

EOIR also stated that it "ensures that Immigration Judges are aware of the studies indicating grant rate disparities." A session on grant-rate discrepancies was held during the 2007 immigration judges conference. [Source: EOIR]

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.

Details:

EOIR stated the pilot program was initiated and found to be successful; the agency concluded in a report to the Deputy Attorney General that the program was "an effective method for monitoring, mentoring, and managing the Immigration Judges in the Immigration Courts and therefore, the use of ACIJs should be made permanent." [Source: EOIR]

EOIR did not provide this report to TRAC, stating that it was an internal document. EOIR stated it would not review this decision without a formal FOIA request. [Source: EOIR]

EOIR currently has appointed 11 ACIJ's as of August, 2008, ten of whom have been assigned to supervise an administrative subset of Immigration Courts. Six of these judges are physically based in one of the courts that they supervise. [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. The agency did release a proposed code in June, 2007.

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]

A code of conduct was published as a proposed rule on June 28, 2007. No final rule has been issued. [Source: EOIR]

NAIJ has stated that it has concerns that the proposed code of conduct treats judges as attorney employees, and not as judges. See sidebar: Judicial Oversight v. Judical Independence. [Source: NAIJ]

EOIR has abandoned its attempt to implement a code of judicial conduct through the rule making process. In a statement provided to TRAC immediately before this report was published, EOIR wrote: "After review by the Office of Government Ethics and the Department's Ethics Office, the code was revised and incorporated into the existing ethics manual." "Upon further review," EOIR reports it is still making revisions to the ethics manual, and no firm date has been set for completing the revision of the new ethics manual ("soon"). In an earlier response to TRAC inquiries provided on June 16, EOIR had stated that the codes of judicial conduct were under review by DOJ. [Source: EOIR]

No new or updated ethics manual has been published. [Source: EOIR]

NAIJ representatives said that they were "not informed" that EOIR abandoned its attempt to implement a code of judicial conduct through the rulemaking process and now planned an update of the ethics manual. NAIJ representatives noted that the rulemaking process requires public notice and comment, and stated that they believed that "input makes a better document." The representatives also stated that a change to the ethics manual might require negotiation with the union under its bargaining agreement, but that this would depend on whether the changes represented a "change in working conditions."[Source: NAIJ]

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: Although EOIR has appointed a new Assistant Chief Immigration Judge to handle complaints against immigration judges, it has not published any information on how the complaint process works. The agency was also unable to provide any information about how many complaints have been received and how those complaints were disposed of.

Details:

The agency charged an Assistant Chief Immigration Judge position with responsibility for managing "conduct and professionalism." 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. [Source: EOIR]

The agency has not published or disseminated to immigration judges a policy detailing the new complaint process. No information is known about: what the roles of different agencies such as ACIJ, OGC, OPR and OIG are; 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 and whether there is an appeal. [Source: EOIR]

Immediately prior to the publication of this report, EOIR did provide TRAC with a very general outline of what it said was the usual process, writing:
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]

According to NAIJ representatives, EOIR has not circulated any description of the process EOIR uses to handle complaints to immigration judges, and the description furnished to TRAC "does not accurately reflect the interaction we have observed between OCIJ and OPR." Union representatives also said that members have expressed concerns that "timely notice" has not always been provided to judges that are under investigation because of a complaint. [Source: NAIJ]

The agency could not provide information on how many overall complaints the new ACIJ's office has handled or how those complaints were disposed of. These complaints would include both complaints referred by OIL and BIA as well as complaints received from attorneys, immigrants and other external parties. In specific, EOIR stated that the number of complaints against immigration judges processed by ACIJ Keller in 2007 and 2008 was "not readily available." [Source: EOIR]

The agency has 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 has included a three paragraph section in the new Immigration Court manual that mentions several ways that complaints can be filed, including directing interested parties to their website. [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" 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. The rule provides the BIA with greater discretion on whether to issue an affirmance with or without opinion, 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]

No proposed rule has been published that would return cases to the BIA for reconsideration. 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 single member affirmances without opinion currently "make up only about 10 percent, of the BIA's decisions, as opposed to more than one-third four years ago." [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 on TRAC website, 11MB), and went into effect throughout the court system on July 1, 2008. [Source: EOIR]

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. [Source: Federal Register, EOIR]

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]

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. The department has not even hired judges to fill existing positions; EOIR had 28 unfilled immigration judge openings as of July 24, 2008.

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. [Source: DOJ Budget Requests]

DOJ and EOIR have not hired immigration judges to fill existing positions in a timely fashion. As of July 24, 2008, EOIR had 28 unfilled immigration judge openings. [Source: EOIR]

EOIR has said that all current positions are in the process of being filled, but with the increased "background" scrutiny now required it takes "a considerable amount of time" to process candidates. [Source: EOIR]

As a result of the failure of DOJ to seek additional judge positions as well as to fill existing positions, the number of judges available to hear cases has declined. The net result is that as the total number of matters handled by the Immigration Courts has increased over the last decade, today's immigration judges have less time to handle a case received by the court than they did ten years ago. [Source: EOIR and TRAC analysis]

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 was due to the Justice Department's use of an illegal, politicized process to appoint immigration judges with conservative political credentials from 2004 to December 2006. [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 full report, "Effort to Hire More Judges Falls Short."

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: DOJ has increased the size of the BIA from 11 to 15 and hired five new board members. The Board, however, is still two members short of the stated goal.

Details:

An interim rule was issued on Dec. 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]

EOIR announced the appointments of five new members of the Board on May 30, 2008, bringing the total number of members to 13. [Source: EOIR]

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 pilot program, and is proceeding to install the program in all courts with 18 court sites completed to date.

Details:

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

Currently the agency reports that 17 Immigration Courts out of 54 including 18 separate court sites, and the BIA oral argument room, have received the DAR system. Those court sites are: Bloomington, MN; York, PA; Memphis, TN, Baltimore, MD; Buffalo and Batavia, NY; Phoenix, AZ; Orlando, FL; Atlanta, GA; Cleveland, OH; Oakdale, LA; Detroit, MI; Seattle and Tacoma, WA; Portland, OR; Denver and Aurora, CO; Dallas, TX. [Source: EOIR]

DAR has not been implemented in any large Immigration Court, although it is currently being installed in San Francisco. The courts where DAR has been implemented serve 44 judges, or less than 25 percent of the overall judges in the system. [Source: EOIR and EOIR website]

DOJ also requested an additional $8.3 million for DAR implementation in the 2009 budget request. If Congress approves this request, EOIR reports that most of the remaining installations will occur during 2009 and will be completed by 2010. [Source: DOJ Budget Request, EOIR]

19)

Improved Transcription Services

The Attorney General directed EOIR to "strengthen the transcription 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. According 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]

NAIJ also stated that "We 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 [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 bad a transcript has to be 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 it 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:

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 the 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 the past year. [Source: EOIR]

According to NAIJ, the union was not 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 a statement provided immediately before this report was published, however, EOIR wrote: "Between October 2007 and June 2008, EOIR reviewed 73 referrals regarding possible fraud related to immigration proceedings. The Fraud and Abuse Program forwarded 40 of these referrals to the appropriate investigative agency for further consideration." In June, in response to questions from TRAC, EOIR said that number of referrals of fraud and abuse made to investigative agencies "is not readily available." In the Rooney Memo of March, 2007, EOIR stated "a substantial number of referrals have been made under this program" although no figures were provided. [Source: EOIR]

While making this limited information available to TRAC, EOIR has not released 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]

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 it hoped would increase pro bono representation. Contrary to the Attorney General's directive, however, the agency did not include private bar stakeholders on the committee. The agency also has not publicly released the committee's full recommendations.

Details:

EOIR formed an EOIR Committee on Pro Bono. [Source: EOIR]

The committee did not include representatives from the private immigration bar on the committee, 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. [Source: EOIR]

EOIR declined to provide a copy of the report to TRAC, saying that it was an internal document and not publicly available. EOIR stated it would not review this decision without a formal 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. [Source: EOIR]

According to the agency, it has also expanded the use of Legal Orientation and Groups Rights Presentations, such as the DOJ-funded legal orientation program operated by the Vera Institute of Justice. [Source: EOIR]

Back to Main Report