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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 ofImmigration Review (EOIR), the office overseeing the nation’s Immigration Court andImmigration Judges, released a five-page document, “Myths vs. Facts About ImmigrationProceedings.” The National Association of Immigration Judges (NAIJ) has conducted a reviewof the document and has determined that the DOJ’s key assertions under both the “myths” andthe “facts” either mischaracterize or misrepresent the facts.
“I would not use the term ‘fact sheet’ to describe this document,” said NAIJ President JudgeAshley Tabaddor. “Rather than disseminating accurate and verifiable facts and figures as itclaims, this document has been presented as a communications tool in furtherance of the lawenforcement policies and public statements of the executive branch.”
NAIJ researchers, in reviewing the document, have preliminarily highlighted eight areas wherethe DOJ has mischaracterized or misrepresented the facts. The eight illustrative examples areoutlined in this news release (see below) and are not a complete list of the concerns with theDOJ’s claims.
“The DOJ’s distorted document is a clear demonstration of why an immigration courtaccountable 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 tothe 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 administrativeadjudicators 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 lawand practice.
The Truth- There is a clear distinction between “case completion goals” and quotas anddeadlines. The DOJ has not imposed “case completion goals” for immigration judges, but hasimposed quotas and deadlines as a condition of continued employment on judges. The former isa carrot designed to enhance the efficiency and professionalism of the workforce, an aspirationalmotivator and resource allocation tool. The latter is a stick designed to punish judges who do notcomplete an arbitrary number of cases within an arbitrary set of deadlines. Quotas and deadlinescompromise the independence and integrity of judges and implicates due process in individualcases, 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 onfederal Administrative Law Judges. Immigration Judges, however, do not have that statutoryprotection 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 ahead of agency review administrative adjudicatory decisions.
The Truth- Two wrongs do not make a right. We now have independent courts such as the TaxCourt, the Bankruptcy Court and the Court of Veterans Appeals, all of whom were created out oftheir previous “agency head review” to avoid the inevitable conflict of interest that compromisesthe integrity and effectiveness of the adjudicatory functions of judges. When it becomes clear, asit has with the immigration court, that the law enforcement role of the agency head is influencingthe 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 precedentdoes 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 judicialprocess. 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 superveto” 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 beeasily converted to an independent Article 1 court because there are over 10,000 federaladministrative judges and no organization has studied the cost of converting the current court toan independent court.
The Truth- The fact that there are over 10,000 federal administrative judges across thegovernment is a red herring, as the relevant number is the 430 immigration judges currentlyserving. Moreover, the fact that a customized financial study has not been conducted does notmean that the conversion to an independent Article 1 court would not be advisable. There isprecedent for creating independent courts from agency adjudications. Through acts of Congressthe Tax Court, Bankruptcy Court, and the Court of Veterans Appeals are independent of theagencies 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 reputableorganizations such as the American Bar Association (ABA).
The Truth- Neither the NAIJ nor the ABA has made such an assertion. The ABA’s reportreferences “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 commentsrelating to the average number of completion of cases in fiscal year 2010 misstates the NAIJ’sposition. The previous administrations’ definition of “completion” is distinct from the currentadministration’s definition of “completion” which expressly excludes “administratively closed”and “change of venue” decisions that previously bolstered the number of “completed” cases. Forexample, under the current definition, an immigration judge with a juvenile docket in LosAngeles has completed 247 cases in this fiscal year (7 months to date). If considered under theprevious 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 theissue 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 ajudge overseeing a detained docket to manage a caseload of 100-300 cases while a judgeoverseeing 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 asjuvenile/unaccompanied minors docket, family unity docket, aged-case docket, arraignmentdocket, etc. To impose a singular quota on all judges regardless of their individual docketconfiguration 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 Judgeshave financial incentives to complete cases with particular outcomes” and proceeds to explainthat judges are paid by a statutory pay scale and not paid based on the outcome of the cases theyadjudicate.
The Truth- Like all judges Immigration Judges are paid a salary. However, in contrast toindependent judges in independent courts who cannot be fired for making good faith decisionson cases based solely on the facts and the law of the case, Immigration Judges are subject toquotas and deadlines as a condition of their continued employment which conflicts with theiroath of office to neutrally uphold the law. If they do not meet an arbitrary case completion quotaor deadline, they can be disciplined for insubordination or given unsatisfactory performanceratings which can lead them to lose their job. This conflict of interest would not be tolerated ifImmigration Judges were treated as independent decision makers in an independent court freefrom 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 toindividuals who have representation debunks a myth that “most aliens with representation aregranted asylum in immigration proceedings.”
The Truth- No one claims that most aliens with counsel are granted asylum. Rather the claim isthat 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 grantrate in their bullet point #3. Under their own statistics, individuals with counsel are twice aslikely to prevail on their asylum application. Moreover, the grant rate of asylum for individualswith counsel neglects to include other forms of relief that may have been granted instead ofasylum, such as withholding of removal, adjustment of status, cancelation of removal, or any ofthe 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 ofVideo-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 datacollection system is due to the fact that the administration restricts judges to selecting only onereason for why a case is continued. By restricting the judges from providing the full basis forcontinuing a matter, EOIR is able to cherry pick the data in support of its results orientedposition. For example, after many interruptions in a hearing due to problems with the VTC, aJudge 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 orinadequate 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 tomeasure whether technical problems have subtly diminished the accuracy or tone ofinterpretation or adversely impacted a credibility determination. Studies regarding the impact ofVTC on these issues have been conducted and raise concerns. Moreover, it must be rememberedthat Immigration Courts are truly unique in the fact that our proceedings are conducted in alanguage 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 ofalternative means of conducting the hearing when a judge deems it appropriate is highlyproblematic and does implicate due process.
The National Association of Immigration Judges (NAIJ), founded in 1971, is a voluntary organization formedwith the objectives of promoting independence and enhancing the professionalism, dignity, and efficiency of theImmigration Court."