Some Misunderstanding About the Qualifications To Be an Immigration Judge

An uncool tweet

By Andrew R. Arthur on January 4, 2021

There was a tweet that caught my eye last month. I am not going to post the tweet because I do not want it to get more publicity, and also to protect the main object of that tweet. I will quote it, but suffice it to say: (1) it was truly uncool; and (2) the author apparently misunderstands the qualifications required to be an immigration judge (IJ).

I have a certain expertise in this area, as I myself was an IJ (for eight years, one month, and 26 days, depending on how you count it) and appeared before dozens of IJs during my five-year tenure as a trial attorney and associate general counsel at the former INS.

I also oversaw IJs (to the degree anyone can) during my time on the Hill, both as oversight counsel for the House Judiciary Committee's Subcommittee on Immigration, Border Security, and Claims, and as staff director for the House Oversight and Government Reform Committee's National Security Subcommittee.

Let me say this at the outset: Immigration court is a volume business. By my own rough count, I handled cases involving approximately 20,000 respondents. In eight years, one month, and 26 days, there are approximately 1,432 days when court was in session and I was on the bench. That means that I handled roughly 14 cases per day, but a lot of those cases were reset more than once, so the true total is closer to 21 cases per day.

And I would often swear in new citizens on my days off, about 1,000 in total.

The George W. Bush and Obama administrations under which I served as an IJ didn't help much, and neither did Congress at the time. When I left, there were just 254 IJs. That year, 197,618 new cases were filed with the immigration courts, on top of hundreds of thousands of already pending cases. That was 778 new cases for each IJ, again, not counting the cases they were already handling.

Understand that there is no jury in immigration court. Each IJ is the arbiter of law and fact, meaning that the IJ must determine what the facts are, and then apply the Immigration and Nationality Act (INA) to each of them.

First, the IJ must determine whether the respondent is removable under the INA, then assess whether the respondent is eligible for any relief under the INA, and then consider new facts to figure out whether the respondent is eligible for that relief, and whether he or she should be granted it in the exercise of discretion (where the relief was discretionary, which it usually was).

Of course, there are also bond proceedings — separate from removal hearings — at which respondents seek release from ICE custody (mine was a detained court). That brings in a whole new set of facts, and a completely different standard of law. Judging future conduct (will the respondent appear at a future hearing and will the respondent break the law if released, or worse, hurt somebody) by past acts and simple promises may sound simple, but in practice it is not.

Usually I got that part right, but sometimes I got it wrong — once very, very wrong.

Issuing bond decisions is usually just a matter of checking boxes on a government form (although a written explanation — often prepared well after the fact — is required if the respondent or the government appeals). Removal and relief decisions are almost always delivered orally (there is no transcriber in court, but proceedings are recorded and decisions are transcribed if the case is appealed) and can run up to 50 pages of written transcript.

Speaking of pages, usually the respondent — but occasionally the government — would file voluminous evidentiary submissions (some of it of questionable relevance). All of it has to be read before a decision can be issued, and I was given four hours of "administrative time" a fortnight to do so.

In my free time, I also had to issue decisions on various motions — most often motions to reopen cases that other IJs (sometimes years in the past) or I had issued. There were also motions to reconsider decisions that I had made. Nothing says "you're wrong" like a motion to reconsider.

Some of the cases I handled had been remanded by the Board of Immigration Appeals (BIA) or the circuit courts in matters that I had decided, or my erstwhile colleagues had. I did not (all things considered) get many of those for myself, but reviewing other IJs' decisions in cases that may have run hundreds of pages was harrowing.

Did I mention the fact that most of those respondents did not speak English, meaning that an interpreter had to repeat every question and convey every response that the respondent, the respondent's attorney (when there was one), the government attorney, and I had asked and given? Usually, those interpreters were in court with us, but sometimes they appeared telephonically (which could cause its own headaches).

And then, of course, there was the issue of controlling the courtroom throughout the entire process.

Normally, this was not difficult, as most respondents were respectful (as were most attorneys), but there were notable exceptions. I had excellent bailiffs to keep order, and growing up the youngest in a household of four children trains you to accept a certain amount of abuse. Personal attacks were rare, but they occurred (as did at least one death threat), but I never had to use my gavel once.

None of this is to say that I or any other IJ deserves special praise. No one forced me to take the job, and I was free to leave whenever I wanted. It was an honor, and it still is, but one that allowed me to understand why people often say they are "humbled" when placed in a position of responsibility.

But it is to say that being an IJ requires a certain mindset, a certain demeanor, and a certain set of skills. And a good team behind you.

Donald Trump and his first Attorney General, Jeff Sessions, made the hiring of new IJs a priority — for good reason, as I hope the foregoing shows. Those efforts (and the continued efforts of Sessions' successors) were successful, and there are currently more than 520 serving IJs, a 70 percent increase since Trump's inauguration.

All of which brings me to the referenced tweet.

On December 18, DOJ announced the investiture of 14 new IJs. One was a state district attorney, four came from the Office of the Principal Legal Advisor (OPLA) at ICE, one was a state trial judge in Puerto Rico, two were most recently and exclusively judge advocates in the military (10 in total had served or were also serving as JAGs), two were DOJ attorneys (one at the Office of Immigration Litigation in the Civil Division, which represents DOJ in federal court immigration cases; he was previously at OPLA), and three were in private practice (one of whom had previously been in OPLA, as well).

That is 13: Three in private practice, one state prosecutor, one state judge, two JAGs, two from DOJ, and four directly from OPLA.

The tweet in question stated: "This administration continues to stack the bench with hires from enforcement-oriented backgrounds." That begs the question of whether the administration is "stacking the bench" — which I read as hiring applicants expected to be favorable to enforcement in real cases in immigration court — or whether DOJ hired the best applicants to be IJs. I have no reason to believe that the former is true, and I doubt the tweeter does, either.

They all come from good colleges (including Columbia), reputable law schools (including Georgetown), and have solid backgrounds. One (the state district attorney) went to MIT and is a nuclear engineer — not necessarily prerequisites to be an IJ, but definitely evidencing a certain level of intelligence. The state court judge has been one for a decade.

As for the OPLA lawyers (and the DOJ ones, as well), being an IJ is a career stepping stone from jobs that otherwise have a ceiling. IJs make more money (they have their own pay scale), get a prenominal, a black robe, and a lot more respect than most government lawyers. The latter three have attractions for private lawyers, as well, but the income can be good — very good — in private practice, especially if you do visa work, as well.

Being a trial attorney as I was (essentially the same as being an ICE OPLA attorney today) gave me a lot of courtroom experience because it put me in court, a lot. I spent five to seven hours a day there. Private attorneys can rack up similar numbers, but in my experience, they rarely do. And the more they work with USCIS on petitions, the fewer hours they spend in court.

This is not to denigrate — in any way — the private bar. Many if not most are great lawyers, sharp on their feet, reasoned in their arguments, and with a passion for justice. More than one changed my mind on a critical issue of law at a crucial juncture.

Rather, there are more reasons to go from the government to being an IJ than there are to go there from private practice, and ICE lawyers definitely show up knowing what the job entails.

Which brings me to the 14th IJ, who was specifically called out on Twitter. As the tweet states, he is "an individual that worked for the U.S. Border Patrol for over 20 years." Your point being?

That individual (whom I will not name) actually spent 24 years with the Border Patrol, four as sector counsel in Laredo. Do you know what a sector counsel does? He advises the agents who are actually enforcing the law, not just on the INA, but also on use of force and any number of other federal laws. Laredo and its ilk is where the immigration rubber meets the road.

He also served at Border Patrol headquarters in D.C. over three successive administrations (George W. Bush, Obama, and Trump) headed by both parties — as chief of staff, special assistant, and senior advisor. This is not the nephew that you stuck in the mailroom waiting for you to retire so he can take over the family business. This is a guy who knows the INA — likely better than I ever will — and several other statutes as well.

Plus, he has served 34 years as a Marine Corps JAG, including as defense counsel and legal assistance officer. There is no bias that I can see at all in his biography. And, respectfully, any implication that there is bias (to the degree there is one, the tweet leaves much unsaid) is presumptuous, at a minimum.

Here are the uncool parts: One, this new IJ has been called out on a social media platform essentially for no greater offense than the fact that he has 30-plus years of government service. In fact, his specific biography was highlighted in that tweet.

Two, now that he is an IJ, he cannot do anything to defend himself. IJs have to be impartial, in act and appearance, and he is literally unable to respond to this tweet in any way outside his own household and circle of friends (and even then, only discreetly).

In any event, as for the new IJs who lack immigration experience (not referenced in the tweet), that is likely less important than you may think. The INA, for all of its flaws, is by and large commonsensical. Is it complex? Yes. But that complexity is not as difficult for a good lawyer to make his or her way through in a short period of time as you might think.

I was on my own as a trial attorney after two days of shadowing another trial attorney. Two days. I came in with vast knowledge of three arcane provisions in the INA that really did not help me handle the Pakistani asylum case I was first assigned. Or the 212(c) cases, suspension cases, adjustment cases, and rescission cases that followed. I was not sent to training for four months, at which point it was rather worthless.

The last time I taught new IJs, the course was a week long and held before they took the bench. And, before you begin as an IJ, you spend two weeks shadowing IJs in two separate courts. Learning to be a judge was harder than learning the INA, and for those eight-plus years, I did it the exact same way my mentor IJ did it in El Centro.

Am I correct in my assessment that these 14 are good choices to be IJs? I don't know them or even anything about them, aside from their biographies on the DOJ website and the fact that they were selected as IJs. Time will tell.

More importantly, the BIA and circuit courts will let them know if they are not cut out for the job, in short order. Plus, all IJs serve a probationary period, during which they can be fired at will. The Biden administration DOJ will likely keep them on a short leash.

But I have a feeling that they will be just fine. And the respondents and government will be, too.