NAIJ, which has a right to negotiate clear changes to judges' “working conditions,” has objected to details in EOIR's proposed annual review policy for immigration judges as well as the proposed code of conduct for immigration judges on the grounds that these treat immigration judges as “adjudicative employees” or agency attorneys rather than judges. The NAIJ argues that the proposed policies could subject immigration judges to discipline for failing to abide by legal interpretations favored by agency leadership or for failing to achieve agency goals, such as case clearance rates, that may conflict with what a judge believes is necessary for the just adjudication of a legal matter.

“We believe the judicially-based model is essential to safeguard decisional independence and assure that improper factors are not taken into consideration when evaluating immigration judge performance,” wrote NAIJ representatives in a statement.

The level of judicial independence that should be granted to administrative adjudicators has historically been a subject of great controversy.

Unlike a United States District Court judge, an immigration judge's authority is not derived from Article III of the Constitution, which establishes the Judicial Branch. Article III grants United States District Court judges, United States Appellate Court judges and United States Supreme Court judges the highest degree of judicial independence -- their appointments are made for life-tenure and must be confirmed by the U.S. Senate. In contrast, Administrative Law Judges, who adjudicate a variety of matters for different agencies such as the Social Security Administration, derive their power through Congressional legislation. The Administrative Procedures Act of 1946 granted Administrative Law Judges a lesser but still substantial degree of judicial independence -- Administrative Law Judges are not evaluated by the agency in which they conduct hearings and may only be fired for good cause after an independent hearing process, a slightly weaker form of tenure than granted to federal judges under Article III.

Immigration Court judges currently have less judicial independence than Administrative Law Judges. According to current Justice Department rules, immigration judges are “attorneys whom the Attorney General appoints as administrative judges” and are appointed to act “as the Attorney General's delegates in the cases that come before them.” The rules also state that “In deciding the individual cases before them ... immigration judges shall exercise their independent judgment and discretion.”

In the past several years, appellate court rulings have called into question the legal ability or temperament of some immigration court judges, resulting in a call for increased scrutiny and supervision of immigration judges. In a noted case decided in November, 2005, Seventh Circuit Court of Appeals Judge Richard Posner wrote that “the adjudication of [immigration] cases at the administrative level has fallen below the minimum standards of legal justice." Third Circuit Appellate Judge Julio Fuentes wrote in September, 2005 that “Time and time again, we have cautioned immigration judges against making intemperate or humiliating remarks during immigration proceedings.” Such rulings were cited by Gonzales as a key reason that led to the 22-point improvement directive issued in August, 2006.

NAIJ representatives have acknowledged that there have been some problems with individual judges, but argue that the majority of problems reflect the severe workload of immigration judges, a poor transcription process that leads to erroneous court records, and insufficient review of first-order appeals by the Board of Immigration Appeals.

Some critical appellate rulings have also attributed legal errors made by immigration judges to case completion goals imposed by the Justice Department. For example, the Third Circuit held in Hashmi v. Attorney General of the United States, decided on July 7, 2008, that “In our view, the IJ’s denial of a motion for a continuance based on case-completion goals rather than on the facts and circumstances of Hashmi’s case was arbitrary and an abuse of discretion.”

Code of Judicial Conduct

The Code of Judicial Conduct published by the Justice Department as a proposed rule on June 28, 2007 would require immigration judges to “comply with the standards of conduct applicable to all attorneys in the Department of Justice.” The proposed code of conduct would also require judges to “act impartially,” “ not be swayed by partisan interests, public clamor, or fear of criticism,” “act in a professional manner,” and “be patient, dignified and courteous to litigants, witnesses, lawyers and others with whom the judge deals in his or her official capacity.”

The code also exempts communication between agency officials and judges from the prohibition on ex parte communication on the substance of a particular case. Secret contacts between a judge and the disputing parties, or the secret interjection of information or influence, in a particular matter have always raised serious questions about both fairness and the appearance of fairness and are therefore prohibited in regular courts.

NAIJ representatives declined to provide a copy of the NAIJ's proposal for a code of conduct, citing ongoing negotiations with EOIR in accordance with the union's collective bargaining agreement. NAIJ did state, however, that “our main concern with the current approach taken by EOIR is its failure to acknowledge and account for our status and function as judges, not attorneys. Our title and duties as Immigration Judges require a different set of ethical and conduct considerations which are judicial in nature, rather than those applicable to attorney employees.”

Annual Review of Immigration Judges

EOIR did not provide TRAC with a copy of its proposed annual review policy of immigration judges, and NAIJ also did not provide details of its counter proposal, also citing ongoing negotiations.

NAIJ did state, however, that its counter-proposal presented “a system closely patterned on numerous judicial evaluation programs currently employed nationwide by state and federal courts, as well as on the model program created by the American Bar Association. The NAIJ approach involves a panel-administered survey of all the participants in this system and solicits their opinions regarding the strengths and/or weaknesses of a judge’s performance in an effort to encourage self-improvement, to provide a basis for peer mentoring and to educate rather than punish.”

EOIR chose not to respond to NAIJ's comments, including NAIJ statements on the code of judicial conduct and the annual performance review policy, stating that the issues “involve either ongoing discussions and/or labor negotiations with the National Association of Immigration Judges. Therefore, it is not appropriate for us to comment on them at this time.”