NAIJ Nails EOIR: Facts vs. Fiction

NAIJ, May 13, 2019

"National Assn. of Immigration Judges Say DOJ’s “Myths v. Facts” Filled with Errors and Misinformation

DOJ Document Demonstrates the Need for an Independent Immigration Court Say Judges

This month the Department of Justice’s (DOJ) Executive Office of
Immigration Review (EOIR), the office overseeing the nation’s Immigration Court and
Immigration Judges, released a five-page document, “Myths vs. Facts About Immigration
Proceedings.” The National Association of Immigration Judges (NAIJ) has conducted a review
of the document and has determined that the DOJ’s key assertions under both the “myths” and
the “facts” either mischaracterize or misrepresent the facts.

“I would not use the term ‘fact sheet’ to describe this document,” said NAIJ President Judge
Ashley Tabaddor. “Rather than disseminating accurate and verifiable facts and figures as it
claims, this document has been presented as a communications tool in furtherance of the law
enforcement policies and public statements of the executive branch.”

NAIJ researchers, in reviewing the document, have preliminarily highlighted eight areas where
the DOJ has mischaracterized or misrepresented the facts. The eight illustrative examples are
outlined in this news release (see below) and are not a complete list of the concerns with the
DOJ’s claims.

“The DOJ’s distorted document is a clear demonstration of why an immigration court
accountable to our chief federal prosecutor undermines the integrity and effectiveness of the
immigration court system. The country would be better served by an independent court similar to
the Tax Court and Bankruptcy Court.”

Examples of Errors and Misinformation Include:

Item 1 DOJ “fact”- In bullet point #11, the DOJ asserts that the majority of administrative
adjudicators or judges are subject to performance measures and “case completion goals.” Later,
in bullet point #12 the claim is made that “case completion goals” are an acceptable norm in law
and practice.

The Truth- There is a clear distinction between “case completion goals” and quotas and
deadlines. The DOJ has not imposed “case completion goals” for immigration judges, but has
imposed quotas and deadlines as a condition of continued employment on judges. The former is
a carrot designed to enhance the efficiency and professionalism of the workforce, an aspirational
motivator and resource allocation tool. The latter is a stick designed to punish judges who do not
complete an arbitrary number of cases within an arbitrary set of deadlines. Quotas and deadlines
compromise the independence and integrity of judges and implicates due process in individual
cases, while case completion goals assist in identifying areas in which additional resources and/
or training is needed. Congress prohibited by statute the application of quotas and deadlines on
federal Administrative Law Judges. Immigration Judges, however, do not have that statutory
protection and thus are compromised by current DOJ practices and policies.

Item 2 DOJ “fact”- In bullet point #13, the DOJ asserts that it is not unprecedented to have a
head of agency review administrative adjudicatory decisions.

The Truth- Two wrongs do not make a right. We now have independent courts such as the Tax
Court, the Bankruptcy Court and the Court of Veterans Appeals, all of whom were created out of
their previous “agency head review” to avoid the inevitable conflict of interest that compromises
the integrity and effectiveness of the adjudicatory functions of judges. When it becomes clear, as
it has with the immigration court, that the law enforcement role of the agency head is influencing
the administration of the adjudicatory function of the agency, the two must be separated.

Item 3 DOJ “fact”- In bullet point #14, the DOJ asserts that following case law and precedent
does not compromise an Immigration Judge’s decisional independence.

The Truth- No one has made such a claim. What does compromise the court system, however,
is allowing the agency head, who is the chief prosecutor, to insert himself into the judicial
process. The current system permits the U.S. Attorney General to issue “precedent decisions”
consistent with the law enforcement priorities of the administration. Such a “prosecutorial super
veto” power compromises the integrity and independence of the court.

Item 4 DOJ “fact”- In bullet point #15, the DOJ asserts that the immigration court can not be
easily converted to an independent Article 1 court because there are over 10,000 federal
administrative judges and no organization has studied the cost of converting the current court to
an independent court.

The Truth- The fact that there are over 10,000 federal administrative judges across the
government is a red herring, as the relevant number is the 430 immigration judges currently
serving. Moreover, the fact that a customized financial study has not been conducted does not
mean that the conversion to an independent Article 1 court would not be advisable. There is
precedent for creating independent courts from agency adjudications. Through acts of Congress
the Tax Court, Bankruptcy Court, and the Court of Veterans Appeals are independent of the
agencies from which they originated.

Item 5 DOJ “fact”- In bullet point #16, the Agency asserts that completing 700 cases per year,
per judge without violating due process is supported by the NAIJ and other reputable
organizations such as the American Bar Association (ABA).

The Truth- Neither the NAIJ nor the ABA has made such an assertion. The ABA’s report
references “managing” a caseload of 700 which is distinct from “completing” 700 cases per year.
(Currently our judges “manage” upwards of 5,000 cases). Similarly, the NAIJ’s comments
relating to the average number of completion of cases in fiscal year 2010 misstates the NAIJ’s
position. The previous administrations’ definition of “completion” is distinct from the current
administration’s definition of “completion” which expressly excludes “administratively closed”
and “change of venue” decisions that previously bolstered the number of “completed” cases. For
example, under the current definition, an immigration judge with a juvenile docket in Los
Angeles has completed 247 cases in this fiscal year (7 months to date). If considered under the
previous definition, the judge would have completed over 800 cases in the same time frame.
Thus, any reference to NAIJ’s historical “completions” rate of cases grossly mischaracterizes the
issue and misstates the NAIJ position on quotas and deadlines.
Moreover, Immigration Judges do not have a uniform set of assigned cases. It is not usual for a
judge overseeing a detained docket to manage a caseload of 100-300 cases while a judge
overseeing a non-detained docket to manage a caseload of 5,000 cases or more. Additionally,
even in the context of managing thousands of cases, the court has specialized dockets such as
juvenile/unaccompanied minors docket, family unity docket, aged-case docket, arraignment
docket, etc. To impose a singular quota on all judges regardless of their individual docket
configuration is not supported by any reputable organization or entity.

Item 6 DOJ “fact”- In bullet point #18, the DOJ sets forth a “myth” that “Immigration Judges
have financial incentives to complete cases with particular outcomes” and proceeds to explain
that judges are paid by a statutory pay scale and not paid based on the outcome of the cases they
adjudicate.

The Truth- Like all judges Immigration Judges are paid a salary. However, in contrast to
independent judges in independent courts who cannot be fired for making good faith decisions
on cases based solely on the facts and the law of the case, Immigration Judges are subject to
quotas and deadlines as a condition of their continued employment which conflicts with their
oath of office to neutrally uphold the law. If they do not meet an arbitrary case completion quota
or deadline, they can be disciplined for insubordination or given unsatisfactory performance
ratings which can lead them to lose their job. This conflict of interest would not be tolerated if
Immigration Judges were treated as independent decision makers in an independent court free
from the prosecutorial enforcement policies of the agency head, the U.S. Attorney General.

Item 7 DOJ “fact”- In bullet point #6, the DOJ claims that a 21% grant rate of asylum to
individuals who have representation debunks a myth that “most aliens with representation are
granted asylum in immigration proceedings.”

The Truth- No one claims that most aliens with counsel are granted asylum. Rather the claim is
that individuals with counsel have a far greater likelihood of prevailing on their asylum claim.
This claim is supported even using the DOJ’s faulty definition of “median” 11% asylum grant
rate in their bullet point #3. Under their own statistics, individuals with counsel are twice as
likely to prevail on their asylum application. Moreover, the grant rate of asylum for individuals
with counsel neglects to include other forms of relief that may have been granted instead of
asylum, such as withholding of removal, adjustment of status, cancelation of removal, or any of
the other reliefs available under immigration law.

Item 8 DOJ “fact”- In bullet point #9, the DOJ claims that less than one-tenth of one percent of
Video-Teleconferencing (VTC) hearings are continued due to VTC malfunction.

The Truth- This statistic does not reflect the reality of our judges’ experience with VTC.
Immigration Judges routinely report technical problems with the use of VTC, such as pixelated
screens, sound quality issues, and dropped Internet reception. A major flaw in EOIR’s data
collection system is due to the fact that the administration restricts judges to selecting only one
reason for why a case is continued. By restricting the judges from providing the full basis for
continuing a matter, EOIR is able to cherry pick the data in support of its results oriented
position. For example, after many interruptions in a hearing due to problems with the VTC, a
Judge can continue the case because there remained inadequate time to complete the hearing.
The choice of continuance code to use is random, as either a code based on VTC problems or
inadequate time are both correct. This is but one reason why this statistic is highly unreliable.
The other reason is that a hearing may proceed, despite the difficulty, but it is impossible to
measure whether technical problems have subtly diminished the accuracy or tone of
interpretation or adversely impacted a credibility determination. Studies regarding the impact of
VTC on these issues have been conducted and raise concerns. Moreover, it must be remembered
that Immigration Courts are truly unique in the fact that our proceedings are conducted in a
language other than English. Approximately 85% of the time an interpreter is required
(sometimes even requiring relay interpreters), making VTC hearings additionally problematic.
NAIJ has not and does not assert that a VTC hearing always compromises due process.
However, we do strongly assert that undue reliance on VTC without easy availability of
alternative means of conducting the hearing when a judge deems it appropriate is highly
problematic and does implicate due process.

The National Association of Immigration Judges (NAIJ), founded in 1971, is a voluntary organization formed
with the objectives of promoting independence and enhancing the professionalism, dignity, and efficiency of the
Immigration Court."