A proposal from the Executive Office for Immigration Review (EOIR) to "add metrics on the duration and quantity of cases resolved by immigration judges to their performance reviews" was the topic of significant discussion at an oversight hearing on November 1, 2017, before the House Judiciary Committee's Subcommittee on Immigration and Border Security.
At first blush, this appears to be an unexceptional proposal. The performance of employees of any organization, and certainly government employees, is generally judged by the production of the employee. While this particular proposal is more complicated than most, it is not unworkable; however, both the immigration judges and the Department of Justice (DOJ, of which EOIR is a component) have a lot of work to do in order to make such a proposal a reality.
Immigration judges are unique officers in our judicial system. Under the Immigration and Nationality Act (INA):
The term "immigration judge" means an attorney whom the Attorney General appoints as an administrative judge within the Executive Office of Immigration Review, qualified to conduct specified classes of proceedings, including a hearing under section 240. An immigration judge shall be subject to such supervision and shall perform such duties as the Attorney General shall prescribe, but shall not be employed by the Immigration and Naturalization Service.
The Court of Appeals for the Third Circuit has held that "there is nothing constitutionally special about immigration judges," a statement that by itself would not imbue the immigration judge corps with a lot of confidence. In that context, however, the circuit court was referencing a 40-year-old decision by the Court of Appeals for the Ninth Circuit that succinctly summarized the legal authority of such judges. Specifically, in Lopez –Telles v. INS, the Ninth Circuit concluded:
Immigration judges, or special inquiry officers, are creatures of statute, receiving some of their powers and duties directly from Congress ... and some of them by subdelegation from the Attorney General. ... These statutes and the regulations implementing them ... contain a detailed and elaborate description of the authority of immigration judges.
In that case, a Nicaraguan national requested that the immigration court terminate her proceedings for "humanitarian reasons" because her house had been destroyed in an earthquake. The immigration judge found that he lacked that authority, and denied the request. The circuit court, having reached the conclusion above, affirmed that decision. The court continued, finding that an immigration judge's:
[P]owers are sharply limited, usually to the determination of whether grounds for deportation charges are sustained by the requisite evidence or whether there has been abuse by the INS in its exercise of particular discretionary powers. This division between the functions of the immigration judge and those of INS enforcement officials is quite plausible and has been undeviatingly adhered to by the INS.
Most of the authority of immigration judges is regulatory, specifically as detailed in 8 C.F.R. § 1240.1. Pursuant to that regulation, the attorney general has delegated his authority to immigration judges to determine removability and to adjudicate applications for most forms of immigration relief, including asylum, cancellation of removal, and withholding of removal. The most important subsection therein, 8 C.F.R. § 1240.1(c), states: "Conduct of hearing. The immigration judge shall receive and consider material and relevant evidence, rule upon objections, and otherwise regulate the course of the hearing."
The devil, as the trite saying goes, is in the details, however, because not every removal proceeding is the same. The vast majority involve aliens who have entered the United States illegally. And, in the vast majority of those proceedings, the alien simply concedes removability and seeks either an application for relief, voluntary departure, or removal. Or, the alien simply fails to appear at all.
Some removal cases, however, involve complicated interpretations of both the INA, and/or state or federal criminal statutes, and/or often poorly drafted precedential decisions. Such cases can require multiple rounds of briefs, as well as responses thereto, followed by replies thereto. Cases like these can be drawn out for weeks if not months, and that is simply to determine removability. Often thereafter the alien respondent will seek some waiver or relief from removability, and the process will begin anew.
To make matters worse, respondents and sometimes their lawyers will sometimes decide that it is a smart trial tactic to attack the immigration judge personally. As a lawyer, I can assure you that it is difficult to represent two clients in the same matter at the same time. As a former judge, I can state categorically that is all the more difficult when one of those clients is the court. As the adage goes: "A man who is his own lawyer has a fool for his client," but by practice immigration judges hear cases individually, so the judge in this situation must play the fool. Such tactics, however, have few downsides for the alien respondent or counsel because of an unwillingness (real or perceived) on the part of EOIR to defend its judges.
For this reason, simply counting the number of cases that an immigration judge completes in a given period of time is often a poor substitute for rating that judge's performance.
This creates a dilemma, however. If EOIR is to ever regulate its immigration judges, there have to be some metrics by which to measure a judge's performance. Otherwise, either there is no standard for a judge's performance, or alternatively any evaluation becomes purely subjective. Neither is a good outcome, for the following reasons.
Imagine that there is an immigration judge who consistently issues erroneous decisions that are regularly overturned on appeal. Without a system to assess the performance of that judge, the judge has no value to the immigration system or to the interests of justice. In essence, the immigration judge would be accepting a paycheck without providing any benefit to the taxpayers.
In the alternative, imagine two separate judges, in two different courts, with two different supervisors. Each hears the same number of cases, and each has the same reversal rate on appeal. In this scenario, ideally the two separate supervisors would assess the performance of the judges equally. There is no guarantee, however, that this will be the outcome in the absence of objective criteria to measure each judge's performance.
Of course, the immigration judges have their own representative independent of EOIR. The National Association of Immigration Judges (NAIJ) is a "voluntary organization" that has been "designated as the recognized representative for collective bargaining for all U.S. Immigration Judges." When I was an immigration judge, I was a member of NAIJ, despite the fact that I had a good working relationship with my supervisors and that I believed that my work was always rated fairly. I was a member, however, as a form of "insurance policy" against the possibility that EOIR might at some point in the future change its policies in a way that would adversely affect my ability to do my job, and against any possible frivolous complaints about my performance or demeanor filed by respondents or members of the bar.
In a statement that it prepared for an October 2017 DOJ oversight hearing before the Senate Committee on the Judiciary, NAIJ asserted: "Events at EOIR have taken a decidedly alarming turn with regard to the judicial independence of the judges. The Agency is now planning to evaluate judges' performance based on numerical measures or production quotas."
NAIJ continued: "Tying numerical case completions to the evaluation of the individual judge's performance evaluation specifically interferes with judicial independence and clearly will put Immigration Judges in a position where they could feel forced to violate their legal duty to fairly and impartially decide cases in a way that complies with due process in order to keep their jobs." It concluded:
If EOIR is successful in tying case completion quotas to judge performance evaluations, it could be the death knell for judicial independence in the Immigration Courts. Judges can face potential termination for good faith legal decisions of which their supervisors do not approve. In addition, the nation's Circuit Courts will be severely adversely impacted as they were when Attorney General John Ashcroft implemented streamlining measures at the Board of Immigration Appeals [BIA], thereby causing a flood of cases in the higher courts. Should judges be subjected to performance metrics, the result will be the same and appeals will abound, repeating a history which was proven to be disastrous. Rather than making the overall process more efficient, this change will encourage individual and class action litigation, creating even greater backlogs.
With due respect to the authors of that document, "potential termination for good faith legal decisions of which their supervisors do not approve" does not logically follow from the establishment of "case completion quotas". There is no reason that a judge cannot be both efficient and fair. Moreover, NAIJ itself would be a firewall between the application of such standards and the arbitrary dismissal of a judge based on political factors, that is, decisions with which the judge's supervisors do not approve, the apparent implication of this statement.
If there were no accounting for the ability of a judge to issue a decision in a reasonable (or representative) period of time, absurd results would follow. Again, consider two separate judges, this time in the same court. Each hears a case involving an identically situated alien seeking an identical form of relief. One judge disposes of the case (from master calendar to final decision) within a month, along with decisions in 60 similar cases. The other judge, however, is unable to make a decision on our hypothetical case. Multiple continuances are granted, multiple hearings are held, and other cases are bumped, but the second judge still cannot make a decision. Months go by with no determination, and the rest of the judge's calendar suffers as a result. The judge's other colleagues must take up the slack that results from the judge's indecision or inability to render a judgment. There is neither "fairness" nor efficiency nor "justice" in this scenario.
Part of the issue with measuring immigration judge performance currently has to do with the expectations and behavior of the parties and the court. I have written extensively in the past about the large number of continuances that have plagued the court system and inflated the backlog. A major issue, as I have explained before, is that "[t]here is ... significant pressure from federal courts and the BIA on IJs to grant continuances, and little downside to the IJs in doing so."
EOIR should, therefore, use metrics and goals to modify behavior of both the judges and the parties that is harmful to the immigration-court system.
For example, there are rules setting time frames for the filing of evidence in individual merits calendar cases in immigration court. This does not, however, stop lawyers from showing up on the date of the individual merits calendar case with hundreds of pages of background evidence that was available at the filing deadline, but that the lawyer simply didn't file. The judge in this situation is faced with three options: (1) continue the matter to review the late-filed evidence; (2) reject the late-filed evidence; or (3) adjourn the matter to review the documents.
Each option has its drawbacks. If the judge chooses option one, a docket slot will be lost and the judge's calendar will be adversely affected. If the judge were to choose option two, however, the lawyer submitting the documents would likely allege on appeal that his or her client's due process rights have been violated by the court's failure to consider that evidence, and there is a distinct possibility (if not likelihood) that the BIA would simply remand the matter to the judge to consider the evidence. While this would get the case off the BIA's docket, in essence the judge would have to hear the same case twice. If the judge chooses the third option, the parties will have to wait in the courtroom pending review of that evidence in chambers, and the judge will likely run out of time to complete the case.
Attorneys will also appear in court unprepared to proceed for other reasons. For example, they will enter last-minute entries of appearance, or assert that they are double-booked in a different court. Alternatively, the lawyer will assert that some other exigency intervened to prevent proper preparation.
The obvious solution is for the parties to be prepared to have their cases heard at the initial individual merits calendar date. How can EOIR obtain that solution, however?
The National Center for State Courts (NCSC) has a plan. NCSC is "an independent, nonprofit court improvement organization founded at the urging of Chief Justice of the Supreme Court Warren E. Burger". As NCSC's website states, all of its "services — research, information services, education, consulting — are focused on helping courts plan, make decisions, and implement improvements that save time and money, while ensuring judicial administration that supports fair and impartial decision-making." This organization has developed "a set of realistic and balanced performance measures" for courts to follow called "CourTools".
There are 10 CourTools performance measures, but measure number five (trial date certainty) in particular would be especially helpful for measuring the performance of immigration judges. "Trial date certainty" is defined as "[t]he number of times cases disposed by trial are scheduled for trial." CourTools explains:
A court's ability to hold trials on the first date they are scheduled to be heard (trial date certainty) is closely associated with timely case disposition. This measure provides a tool to evaluate the effectiveness of calendaring and continuance practices. For this measure, "trials" includes jury trials, bench trials (also known as non-jury trials or court trials), and adjudicatory hearings in juvenile cases.
Measuring trial date certainty requires identifying all cases disposed by trial during a given time period (e.g., a year, quarter, or month). After the cases are identified, additional information must be collected to determine whether those cases were tried on the first date they were set for trial or were continued one or more times before the trial actually began.
In the immigration court context, for example, EOIR could set a percentage of cases that judges would be expected to complete at the initial individual merits calendar date. Seventy percent would be a reasonable initial average, to be adjusted upward as the expectations and behavior of the courts and the parties changed. Under this system, lawyers would know that the immigration courts would be measuring the number of initial individual merits calendar cases completed, and would be able to anticipate that they should be prepared to go forward on the assigned date, or alternatively that they should request a date at the master calendar that would provide sufficient time for case preparation.
The judges would also have an impetus to be prepared to go forward on that initial individual merits calendar date, and to only grant continuances when truly necessary. EOIR would have to measure and examine on an ongoing basis the percentage of cases that were completed in a timely manner under this standard to ensure that the standard was reasonable. Judges who failed to complete cases in a timely manner could receive additional training on meeting this standard.
The BIA, DOJ generally, and the attorney general in particular would also have roles to play under this standard. Both the BIA and the attorney general would have to issue precedent decisions that limited continuances to those that were truly meritorious and essential to the interests of justice. DOJ attorneys in the Office of Immigration Litigation would also have to be prepared to defend denials of continuances before the courts of appeal, in order to make this a workable standard. Finally, the solicitor general may be required to seek Supreme Court review of adverse circuit court decisions that subverted this standard, and that countenanced frivolous requests for continuances.
The American people have the right to expect that government employees do the job they are paid to do, in a fair and efficient manner. Immigration judges are no different. By changing the behavior that has allowed untenable backlogs to occur, DOJ can meet this standard. Whether it does so is up to the attorney general, the BIA, and the judges themselves.