Justice Department Initiative to Improve Immigration Courts and BIA
August 16, 2006

After ordering the review of almost 20 immigration courts and conducting extensive field research and interviews, Attorney General Alberto R. Gonzales announced that the Department of Justice will be implementing several new measures aimed at improving the quality and functioning of our nation’s immigration court system (where deportation/removal proceedings are conducted). Upon revealing the new reforms he stated, “I am secure in the knowledge that our immigration judges and Board [of Immigration Appeals] members stand ready to serve their country in discharging their demanding responsibilities to apply the rule of law and protect the Constitution. But there is room for improvement, and I believe these new measures will assist them greatly in their important work.”

The first two of the 22 measures are aimed at developing ways to efficiently and fairly review the performance of individual immigration judges as well as members of the Board of Immigration Appeals. Most notably, newly appointed immigration judges and Board members are to be given a trial 2 year employment period, during which time their adjudication skills and courtroom demeanor will be assessed.

Also, immigration judges and Board members appointed after December 31, 2006 will be required to pass a written examination which will cover key areas of immigration law, and EOIR’s director will review and propose measures to be taken to improve the training of immigration judges, Board members and EOIR staff.

Recognizing that occasionally, an immigration judge or Board member may conduct him or herself poorly, the reforms aim to create a standard procedure for Board members and government attorneys to report court decisions where a judge’s inappropriate conduct might be on display, and track such cases to see if a pattern is developing. A Code of Conduct will be drafted which will pertain to, and be available to immigration judges and Board members. The Director of the EOIR will also create a standardized system to help ensure timely responses to complaints and conduct an analysis of the discovery of disparities that may arise in immigration court decisions in asylum cases.

The reforms also acknowledge the need for immigration judges and Board members to have the resources necessary to maintain order in their courtroom. Accordingly, the Director of the EOIR will review and revise existing rules regarding their powers to impose sanctions as well as draft and propose a new statute providing for a judges ability to sparingly impose a civil money penalty for conduct held to be in contempt of an immigration judge’s authority, including litigant and private counsel misconduct.

Regarding the previously implemented reforms by the Department that helped to streamline the procedures for hearing appeals that were designed to reduce the backlog of cases waiting to be heard, the measures propose a few adjustments. In hopes of further decreasing this backlog, the Director of the EOIR will propose a measure aimed at increasing the use of one-member written opinions for correct decisions, but ones that may need further explanation or clarification due to a judges temperament. This same measure would only allow for three-member written opinions in instances of extremely complex cases.

As with most government departments, the EOIR will seek a budget increase to start in 2008 due to the continuing increase in caseloads. Additionally, the Director of EOIR hopes to decrease the growing caseload by adding 4 permanent members to the Board as well as to continue to use temporary Board members. The position of Assistant Chief Immigration Judge will also be assigned regionally on a trial basis and upon completion of a set amount of time, will be examined to determine the if position has helped with efficiency.

Also contained in the reforms is the creation of a practice manual for counsel and litigants addressing the “best practices for the immigration Courts” and will be available online; the incorporation of a digital recording system in court rooms to replace the current tape recording system; improving the timeliness of transcriptions of oral decision; the creation of a plan to better ensure the selection of proficient interpreters for court; the development of steps which an immigration judge or Board member can take in order to report immigration fraud and abuse; and the improvement and expansion of the EOIR’s pro bono programs.

The Department of Justice hopes that these measures will improve the quality of service provided by the immigration courts and the Board of Immigration Appeals. However, only time will tell if these measures go far enough to make a significant impact on the immigration court system.

Copyright © 2006-2008, By Law Offices of Richard Hanus, Chicago, Illinois