The Executive Office for Immigration Review (EOIR), the Department of Justice (DOJ) component with jurisdiction over the immigration courts, issued a fact sheet earlier this month captioned "Myths vs Facts About Immigration Proceedings."1 That fact sheet has drawn the attention of a heretofore unknown (at least to me, a former immigration judge) organization that styles itself "The Round Table of Former Immigration Judges."2 The fact sheet and the response, oddly enough, demonstrate why calls for an independent immigration court (by the Round Table and others) are a bad idea.
With respect to the EOIR fact sheet, the information contained therein roughly addresses three general areas: (1) the fairness of immigration-court proceedings (including the independence and competence of the immigration judges themselves); (2) EOIR's rationales for recent policies governing supervision of immigration judges; and (3) information about the alien respondents who appear before the court. The first and last points respond to contrary public statements.
The point of the Round Table's letter (addressed to EOIR Director James McHenry but plainly intended for public consumption) is to complain about the temerity of EOIR issuing this document at all, as is evident from its first two paragraphs:
As former Immigration Judges and BIA Board Members, we write to state our offense at EOIR's recently issued memo purporting to present imagined "myths" and wildly inaccurate and misleading information labeled as "fact." The issuance of such a document can only be viewed as political pandering, at the expense of public faith in the immigration courts you oversee.
Even if anything contained in the memo is actually correct, it is simply not EOIR's place to be issuing such a document. EOIR's function is to protect the independence and integrity of the hundreds of judges who sit in its Immigration Courts, on the BIA, and within OCAHO.
It only gets more strident from there, referring to the fact sheet as "propaganda," and attacking the points made therein as inconsistent with the impartiality of a tribunal. I will address each of these points and EOIR's facts, in turn.
Asylum and Detention
As noted, the fact sheet covers three general areas. With respect to the third area, that is information concerning the alien respondents who appear before the immigration court, the fact sheet contains some very interesting statistics, but much of it has been covered elsewhere. For example, it states:
MYTH: Most aliens who claim a fear of persecution in expedited removal proceedings have meritorious asylum claims.
FACT: Out of every 100 credible fear claims, on average, only about 12 result in a grant of asylum by an immigration judge.
MYTH: Most aliens who claim a credible fear of persecution are asylum seekers.
FACT: On average, at least half of aliens who make a credible fear claim and are subsequently placed in removal proceedings do not actually apply for asylum.
These facts were included in EOIR adjudication statistics in a separate fact sheet captioned "Credible Fear and Asylum Process: Fiscal Year (FY) 2008 – FY 2019 First Quarter,"3 which was based upon statistics generated as of January 30, 2019. In fact, I based an April 5 post4 on its companion fact sheet, "Credible Fear and Asylum Process: Fiscal Year (FY) 2018."5 There was no Round Table comment on that fact sheet, or at least none of which I am aware, even though that one used colorful diagrams to make the exact same points.
The facts presented (twice) by EOIR are very salient points in the context of any action that this administration (or any other) takes to stem the flow of aliens who are using the expedited-removal provisions in section 235(b) of the Immigration and Nationality Act (INA)6 to claim credible fear and remain in the United States indefinitely.
Why is this an issue? Do a Google search and see how many times (and in what context) those aliens are referred to as "asylum seekers." For example, on May 10, 2019, Vox published an article captioned "House Democrats want to stop Trump from returning asylum seekers to Mexico to wait."7 That article refers to the administration's Migrant Protection Protocols8 ("MPP," better known as "Remain in Mexico"). The purpose of the MPP is to return third-country nationals who have crossed over the border illegally, or come to the ports with fraudulent documents or no documents all, back to Mexico to await their removal proceedings. The logical purpose of the MPP is to dissuade those aliens who do not have valid asylum claims, but who are seeking to enter the United States to live in this country and work indefinitely, from doing so. Simply put: if you have a good claim you come and wait. If you don't, you won't come.
If, for example, 98 percent of the migrants subject to the MPP were granted asylum to the end of their removal proceedings, the rationale for and reasonableness of the MPP would be weaker than, well, if 12 percent were to be granted asylum. So why would EOIR be the entity that would publish that statistic? Because EOIR, that is the immigration court, would be the entity that would have access to and compile those statistics.
Similarly, are the aliens who make credible fear claims really "asylum seekers?" To answer that question, you would need to know how many aliens who were found to have credible fear and placed into removal proceedings to apply for asylum actually applied for asylum. Again, only EOIR would have those statistics. Moreover, because they are an independent tribunal, it is better for those facts to come from that office than from the immigration prosecutors at U.S. Immigration and Customs Enforcement (ICE), the Department of Homeland Security (DHS) agency that represents the United States in immigration court.
As noted, the Round Table described the information presented by EOIR as "wildly inaccurate" and "misleading," (although the former EOIR employees who signed that letter offered no contrasting facts or contrary information). Can you imagine the response were ICE to have issued those facts and information? They would be ignored entirely or labeled, well, "propaganda," especially by those who despise the very existence of the agency.9
With respect to the Round Table's contention that the "myths" contained in the fact sheet are "imagined," take the following excerpt from an April 17, 2019 article in Roll Call captioned "Why Democrats aren't rushing to change immigration laws, They don't agree with Trump and public sentiment doesn't provide a mandate toward a solution"10:
While few Democrats have mentioned specific legislative remedies outside of an ambitious overhaul, it's not necessarily reflective of an unwillingness to change immigration laws as Trump asserts.
The existing laws, especially on asylum, are generally ones Democrats believe work. The administration's policies have exacerbated the situation at the border, and the statutory changes Trump is seeking would only do further damage, they argue.
"I think we are responding to what they're doing. And the laws are on the book. If what they're doing is creating this problem, then that's a challenge," House Homeland Security Chairman Bennie Thompson said.
Trump wants to stem the migration trend and send people back to their home countries, while deterring others from seeking asylum in the U.S. — goals Democrats do not share.
Is it a myth that the existing asylum laws work? In order to answer that question, members of Congress need facts on the effectiveness of those laws and how they are utilized in practice. If those laws are "creating this problem" at the border, the public (including and especially Chairman Thompson and House Judiciary Chairman Jerry Nadler) need to know. Statistics are critical to making that assessment. And, because EOIR has those statistics, it is appropriate to package them in a readily digestible form.
It in no way undermines the independence of immigration judges for the office for which they work to adduce those statistics in a persuasive manner. Further, to a degree different from most other executive-branch departments, DOJ itself exerts a level of independence from the White House. Want proof? Two words: Mueller Report. Notwithstanding the independence of DOJ, however, it would be an abdication of that department's responsibility to have statistics that inform the public debate on a fairly vital issue and not present those statistics plainly, particularly where those statistics support administration policy proposals that would ameliorate real-world suffering.11
There is a major precedent for such a step. Most Americans are familiar with the Warren Commission Report.12 They may not know that the actual name of that commission was "The President's Commission on the Assassination of President Kennedy," reflecting the fact that the report itself was an executive-branch document. So why "The Warren Commission?" Because the chairman of that commission was Earl Warren, then-chief justice of the United States and as such the head of the judicial branch. His imprimatur was necessary to validate the findings of the commission on an issue of great concern to the American people. Any complaints that Chief Justice Warren abjured his judicial independence by chairing that commission have been lost in the mists of history.
There are also statistics in that fact sheet that address other questions concerning the (non)appearance of asylum applicants in removal proceedings generally. Respectfully, this addresses a myth that had been peddled by DOJ itself for years, which is that only a limited number of aliens in removal proceedings had failed to appear, a point disproved when my colleague Mark Metcalf presented the actual numbers in a January 2019 Backgrounder.13 As he stated:
If not wholly deaf, EOIR is tone deaf to its grave responsibilities. The 9/11 Commission found failures among federal agencies that disserved their and their sister agencies' statutory enforcement missions. Among its conclusions, the Commission determined that U.S. borders were permeable and that immigration controls were lacking. Among those grounds cited as cause for concern are the same issues immigration courts confront every day in hearings conducted across the United States: fraudulent passports, false statements on visa applications, false statements to border officials to gain entry into the United States, and violations of immigration laws while in the United States. Still, 36 years after its creation and 18 fiscal years since 9/11, EOIR cannot honestly broker a critical dynamic that embraces illegal entry, asylum fraud, and shammed documents.
As if to rectify this error, the EOIR fact sheet states:
MYTH: Few aliens fail to attend their immigration court proceedings.
FACT: Forty-four percent (44%) of all non-detained removal cases end with an in absentia order of removal due to an alien's failure to attend a scheduled immigration court hearing.
Moreover, the administration as a whole, and DOJ in particular, have been criticized for their failure to cut the backlog in immigration court, which through March 2019 stood at 869,013 cases, according to the Transactional Records Access Clearinghouse (TRAC).14 For example, in a February 2019 article captioned "Trump plan fails to cut immigration court backlog, as caseload soars more than 26%," the Los Angeles Times stated15:
The Trump administration's controversial plan to shrink the ballooning backlog of immigration cases by pushing judges to hear more cases has failed, according to the latest data, with the average wait for an immigration hearing now more than two years.
Since October 2017, when the Justice Department approved a plan aimed at reducing the backlog in immigration court, the pending caseload has grown by more than 26%, from 655,932 cases to just shy of 830,000, according to Syracuse University's Transactional Access Records Clearinghouse, which tracks data from immigration courts.
The number of aliens who game the immigration laws to enter and remain in the United States pending removal proceedings but who, at the end of the day, fail to appear in immigration court is directly relevant to that backlog, as well as to any efforts to reduce that backlog.
Most significantly, however, the in absentia rate is directly relevant to so-called "Alternatives to Detention (ATD)."16 Detention Watch Network lists the following alternatives to detaining aliens pending removal proceedings:
Parole/release on own recognizance
Check-ins at ICE offices
Home visits and check-ins
GPS monitoring through an electronic ankle bracelet
As the American Immigration Lawyers Association (AILA)17 and others have argued:
Immigration detention is growing at an unprecedented rate despite more humane, cost-effective alternatives that ensure due process. In May 2017, U.S. Immigration and Customs Enforcement (ICE) was funded to maintain detention levels of over 39,000 detention spaces each day. ICE jails families and others seeking protection at our southern borders as well as those caught up in the Trump Administration's expanded immigration raids. Immigration detention has been proven to traumatize vulnerable populations, jeopardize the basic health and safety of those detained, and undermine meaningful access to counsel in isolated, remote facilities. Immigration detention is driven by profit and politics, not public safety. It continues to be used despite the availability of effective and cost-efficient alternatives to detention (ATD).
(Emphasis in original).
Do release on bond and parole and other forms of ATD work? I was an immigration judge in a detained court, and my in absentia rate was, logically, zero. Knowing the true in absentia rate is critical to determining whether more funding is needed for detention, or whether aliens can be released on their own recognizance, bond, parole, or some other ATD. The agency that captures that statistic? EOIR.
Again, there is nothing inappropriate about the administrative office that has jurisdiction over the immigration courts informing the public, even in a persuasive manner, that more than 40 percent of all final orders are issued to aliens who fail to appear. In any other court, such a high rate of failures to appear would be an indication that there are serious problems somewhere in the system. As Mr. Metcalf has stated18:
Immigration trial courts issued three times more deportation orders for failure to appear in court than deportation orders for cases that were actually tried (993,593 ÷ 324,402) over the last 22 fiscal years. . . . . On average, more than 45,000 people each year disappeared from court since 1996, making failures to appear the single greatest source of deportation orders in the immigration court system.
In any other court system, such dysfunction would cry for redress. Only in U.S. immigration courts can litigants literally abandon their cases without fear of incarceration or removal, while litigants in nearly any other state or federal court risk arrest, contempt, and new charges for the same conduct. Federal law — 18 U.S.C. § 3146 — imposes penalties from one year all the way to 15 years or more for absconding from a U.S. district court or circuit court of appeals. Not so in federal immigration courts. Rarely, if at all, are aliens held accountable for the same misconduct that in other court systems would land them —or citizens— in jail and in some instances brand them felons. Even more rarely are those who abscond from court ever found much less removed.
Immigration court should be no different. But, you have to recognize a problem before you can address it. EOIR has done just that, at long last.
Finally, this statistic also is relevant to the president's request for critically needed additional border funding, which I described in a May 3, 2019 post.19 Included in that post is the following:
Despite the need for this additional funding, it does not appear that a key House Democrat, Nita Lowey (D-N.Y.), the chairwoman of the House Appropriations Committee, is supportive. The Washington Post states that Lowey criticized the request "as an attempt to expand detention of immigrants by the Immigration and Customs Enforcement agency." It quotes her as stating:
The Trump administration appears to want much of this $4.5 billion emergency supplemental request to double down on cruel and ill-conceived policies, including bailing out ICE for overspending on detention beds and expanding family detention .... Locking up people who pose no threat to the community for ever-longer periods of time is not a solution to the problems at the border.
Is detaining alien respondents pending removal "ill-conceived?" In order to be sure, you need to know the in absentia rate. Again, only EOIR would have that statistic.
I also would note that EOIR actually released this statistic earlier in its Adjudication Statistics20, with little or no comment about the propriety of doing so. Presenting this fact in a Myth vs. Facts fact sheet is simply a way of breaking through the noise.
Fairness of Immigration Proceedings
In addition, there are a number of facts in that fact sheet that address the second point, that is, the fairness of the proceedings (including the independence and competence of the immigration judges themselves).
For example, some of those facts relate to the availability of counsel in removal proceedings:
MYTH: Most aliens in immigration proceedings do not have representation. Most asylum applicants and unaccompanied alien children (UAC) in immigration proceedings do not have representation. Most aliens who appeal an immigration judge's decision do not have representation on appeal.
FACT: Sixty-eight percent (68%) of aliens with pending immigration cases and eighty-five percent (85%) of pending asylum applicants in immigration proceedings have representation. Sixty-five percent (65%) of all UAC cases and seventy-nine percent (79%) of UAC cases that have been pending for more than one year have representation. Eighty-one percent (81%) of aliens in cases on appeal have representation.
MYTH: Most aliens with representation are granted asylum in immigration proceedings.
FACT: The asylum grant rate for cases with representation is approximately twenty-one percent (21%). The asylum denial rate for cases with representation is approximately forty-eight percent (48%). These rates are essentially the same as the national averages.
Critics have argued that aliens should be afforded greater access to counsel in the past, and offered purported facts to support those arguments. For example, the National Immigration Law Center (NILC)21 has asserted:
The difference in outcomes for immigrants who are represented by a lawyer in immigration court—even for those not in detention— is undeniable. Mounting empirical data show that having a lawyer to help navigate the complex maze of the immigration detention and court systems makes a profound difference in a person's ability to gain release from detention, challenge the government's grounds for seeking their deportation, and present and win a defense that allows the person to remain in the U.S.
Upholding true due process of law and the right to a fair trial—fundamental principles in the American legal system—requires the guarantee of actual, high-quality representation that is available to all immigrants in removal proceedings.
Is there an issue with a lack of representation immigration court? Does having a lawyer make it more likely that a respondent applying for asylum will be granted that relief? Should the American taxpayer be on the hook to pay for lawyers for respondents in removal proceedings? There is only one way to tell: by analyzing the statistics to determine how many aliens are represented, and to determine whether an alien is more likely to be granted asylum if the alien has a lawyer. And again, there's only one dispositive source for that information: EOIR.
The law does not provide for paid counsel in removal proceedings generally, and there's nothing inherently wrong with the office that has jurisdiction over those proceedings and with the facts about representation generally and outcomes with or without a lawyer specifically to rebut contrary contentions by presenting those facts in a persuasive manner—remember Chairman Thompson above stating "the laws are on the book?" The laws are on the book. If the facts were to the contrary, I would not expect any outcry were EOIR to present those alternative facts in the same manner.
Competence of Immigration Judges
There is also a number of facts in the fact sheet that address the independence and competence of immigration judges. For example:
MYTH: There is wide discrepancy in asylum grant rates across all immigration courts.
FACT: The median asylum grant rate for all immigration courts is eleven percent (11%). Eighty percent (80%) of immigration courts, 50 out of 62, have a grant rate of twenty-one percent (21%) or lower. Only 12 out of 62 courts have grant rates more than ten percent (10%) above the median grant rate. Only 1 out of 62 courts has a grant rate above fifty percent (50%).
MYTH: Immigration adjudicators in the Department of Justice are prosecutors.
FACT: Immigration removability proceedings are civil proceedings, not criminal. The Department of Homeland Security, not the Department of Justice, represents the enforcement interests of the government in those proceedings. Department of Justice adjudicators, including immigration judges and the Attorney General, are neutral adjudicators who make decisions based on the facts and applicable law in each case.
MYTH: EOIR contains the only federal adjudicatory system in which the head of the agency, the Attorney General, may review administrative adjudicatory decisions.
FACT: Agency head review has been a common feature of adjudications at many federal administrative agencies for decades.
MYTH: Immigration judges lack decisional independence because they are required to follow precedent and their decisions are subject to administrative review.
FACT: Immigration judges are required by regulation to "exercise their independent judgment and discretion" and may take any action consistent with their authority under the law. In the United States, almost all types of judges at all levels are required to follow precedent, and a requirement to adhere to precedent does not mean that a judge does not exercise independent decisionmaking in individual cases. Similarly, decisional independence is not compromised by the availability of administrative appellate review of an immigration judge's decision.
MYTH: Immigration judges routinely engage in unprofessional or unethical behavior or violate due process and the rights of respondents in adjudicating immigration cases.
FACT: Despite an increase in the number of immigration judges in FY2018, the number of complaints of judicial misconduct decreased.
MYTH: Immigration judges have financial incentives to complete cases with particular outcomes.
FACT: Immigration judge pay is set by a statutory scale based solely on length of service with adjustments based on locality. Immigration judges do not receive bonuses or financial awards based on the number of cases they complete or the outcomes of those cases.
I would note that the current immigration court system has been in place since 1983 with the establishment of EOIR22, but it is only been recently that the independence of immigration judges within that system has been called into question. For example, in October 2018 opinion piece in The Hill, Ben Johnson asserted23:
More than 200 years ago, the framers of the Constitution distributed federal power among three branches of government to ensure that no single branch was unchecked. Today, we are seeing that principle eroded as Attorney General Jeff Sessions wields his considerable authority over the immigration courts to advance a transparently anti-immigrant agenda. In the process, he is bending the system to its breaking point.
Many Americans are not aware that our nation's immigration courts, unlike other courts, are a part of the U.S. Department of Justice (DOJ) — the very same law-enforcement agency that is charged with prosecuting immigration cases in federal courts.
Just as it would be unacceptable for a district attorney to supervise trial judges, it should be unacceptable for the Attorney General to control the jurisprudence, docket management, and even the terms of employment of immigration judges. This has long been recognized as a fundamental structural flaw in our immigration court system, but Congress has so far failed to rectify the situation and create a new system that is truly independent.
"Many Americans" may not be aware that our nation's immigration courts are part of DOJ, but it is hardly a secret. In fact, a large DOJ seal was secured to the wall directly behind my bench in immigration court. Many Americans may also not be aware that the Coast Guard is not part of the Department of Defense (it is part of DHS), but I doubt that if many Americans knew that fact, it would make any difference to them as to whether the Coast Guard should maintain a large fleet of armed ships able to interdict traffic on the high seas.
Further, DOJ as a whole is technically not "charged with prosecuting immigration cases in federal courts," at least not in the way that most Americans would view the term "prosecuting," that is, pressing and proceeding with charges. The Office of Immigration Litigation (OIL)24, in the Civil Division at DOJ (which is separate from EOIR) defends the decisions of EOIR and the Attorney General in federal courts when aliens file petitions for review of those decisions, hence the reason why those cases generally list the Attorney General as the appellant. OIL attorneys also seek "to ensure that there is uniform application of our immigration laws as these laws evolve to meet the new challenges our country faces,"25 hardly an infringement on the independence of the immigration courts.
Put simply, when I was an immigration judge, no OIL lawyer ever told me how to decide a case, or even advised me with respect to any case I heard. And, I cannot think of a single case in which any OIL attorney ever did so for any of my colleagues.
The Criminal Division in DOJ does "prosecute" immigration crimes26, in much the same way that it prosecutes other federal offenses. It has done so as long as it has existed, however (191927), and I do not remember any complaints such as those advanced by Mr. Johnson (although he asserts to the contrary) until recently. Most saliently, I did not hear them when I, as an Associate General Counsel at the former Immigration and Naturalization Service (INS, a DOJ component) was advising former Attorney General Janet Reno, then the chief immigration adjudicator, before whom I also filed requests for certification of BIA decisions.
It is important to note that the National Association of Immigration Judges (NAIJ, the immigration judges' union-- yes, there is one and yes, I was a voluntary member) has echoed Mr. Johnson's refrain. For example, Immigration Judge Dana Marks, writing in the Washington Post as president emerita of NAIJ28, opined:
Many of the flaws in our operations stem from the fact that we are administrative courts located within a law enforcement agency, so crucial decisions are made by officials with little or no experience as judges. It is time to change that.
The volume of work can be overwhelming. Some of our judges carry caseloads of 5,000 cases or more, usually with limited support staff. Because we work for the Justice Department, we are directed how to arrange our dockets and micromanaged about how much time we spend on cases. Beginning in October of last year, judges were ordered to complete 700 cases each year or risk a less-than-satisfactory performance evaluation, which can cost a judge his or her job. This is not how a court should be run. Attorney General William P. Barr told Congress this week that he is hoping to boost the number of judges in our courtrooms from around 425 to 535 over the next few years and for a commensurate boost in lawyers and clerks. We desperately need the help.
But more than that, we need to be free to be independent judges, not be monitored and rated like assembly-line workers. We must be allowed to use our expertise to decide our cases without interference. The current structure detracts from due process and makes people doubt the fairness of the courts we preside over. We need skilled, experienced, neutral managers who understand how to run a court and make transparency, independence and public access paramount — not administrators who want to keep the trains running on time above all else.
A number of lawyers' organizations and scholars agree, and endorse the creation of an Article I Immigration Court. It would free our courts from the political influences of both the Justice and Homeland Security departments and the political whims of each new administration. It would allow a reliable funding stream from Congress to assure we have the resources needed to address our burgeoning caseload in a timely manner. It would mean that neutral judges would use their skills to make the rules and assure a level playing field for all. An independent immigration court will be an efficient and effective court that provides an example to the world of the superiority of the American justice system. We can and must fix this fatal flaw now.
The purported "fatal flaw" that Marks complains about is actually the way that Congress set up the system to begin with, that is to say, a "feature," not the "bug" she asserts it is.
Specifically, section 103(a)(1) of the INA states "determination and ruling by the Attorney General with respect to all questions of [immigration] law shall be controlling."29 As an immigration judge, I exercised, through delegation, this and other authorities of the Attorney General in my court – it was my power to issue decisions. There were three attorneys general of two different parties under whom I served as an immigration judge: Alberto Gonzales, Michael Mukasey, and Eric Holder. And each of them asserted the same level of personal interference with my judicial independence: zero.
I did not get to pick and choose my cases as an immigration judge, but then I don't know any judge who does. My cases were assigned me by my court administrator, a highly skilled and experienced professional who supervised her staff efficiently. Transparency and public access? We had a window that any individual – lawyer, member of a respondent's family, or member of the public – could go to at regularly posted hours. There was a publicly available phone number for the court that anyone could call to inquire about a case during regular hours. Case information is also available through an 800 number 24 hours a day. Independence? My case administrator would not give any person access to the judge (me) outside of court, without my permission, with the exception of her staff, my bailiff, and the Assistant Chief Immigration Judge(s) (ACIJ) who supervised me.
As for the latter point, I had at least two ACIJs who supervised me in succession, and "supervised" is probably too strong a word. They would check in from time to time to see if I needed anything, and once a year we would discuss my performance evaluation. I do not remember much about my performance evaluation, but almost any employee (public or private) would likely have gladly traded places with me.
I am not sure how the current system "detracts from due process," either. In fact, if I failed to ensure that a respondent received due process, the respondent could request that the Board of Immigration Appeals (BIA) review my decision as a matter of right, and could request that the circuit court review that decision by filing a petition for review. Finally, the Supreme Court could review any of my decisions through a petition for certiorari. None of those tribunals are shy about identifying due process violations, though none did in any of my cases, to my recollection. Like all of my colleagues, I took my responsibilities as a judge seriously, and I doubt that my position within DOJ or in an Article I court would have made any personal difference.
As for "people doubt[ing] the fairness of the courts [immigration judges] preside over," it was not my experience that the aliens in my court cared (or even knew) whether I was in DOJ or not (the seal notwithstanding). Many losing litigants question the fairness of the tribunal, regardless of where that court sits. How many people doubted the fairness of Bush v. Gore, issued by the highest and most independent court in the land? You get my point.
If anything, the independence of the immigration courts is reinforced by the fact that a sitting immigration judge was able to write such a scathing indictment of the system under which she operated. With no apparent repercussions, might I add. Marks' complaint undermines much of her argument.
In any event, Marks would likely concur with the second fact contained in the EOIR fact sheet that I listed above ("Department of Justice adjudicators, including immigration judges and the Attorney General, are neutral adjudicators who make decisions based on the facts and applicable law in each case." They are not prosecutors). She would likely agree with the third fact, as well, about exercising independent judgment and discretion and following precedent. Those facts are all unexceptional. Except, they go to Mr. Johnson's point that "it should be unacceptable for the Attorney General to control the jurisprudence . . . of immigration judges."
This apparently relates to the Attorney General's authority to issue decisions on certification, an issue on which I have written extensively. For example, in describing former Attorney General Jeff Sessions' immigration legacy30, I wrote:
The second most significant impact that Sessions made on immigration was in providing guidelines for IJs to follow in issuing continuances and adjudicating asylum applications, as well as ending the practice of "administrative closure", using his so-called "certification" authority.
Again, the Attorney General's certification authority is a feature, not a bug in the immigration laws. As my April 18, 2018, Senate testimony31 makes clear, certain immigration decisions directly affect the foreign policy of the United States, an area in which the executive branch (here, the Attorney General) has supremacy under our constitutional system. Taking that authority away from the Attorney General and placing it in the hands of an Article I tribunal would have serious constitutional ramifications. In other words, immigration judges inevitably must follow precedent set down by the Attorney General, contradicting any myths to the contrary.
As for the third fact ("Agency head review has been a common feature of adjudications at many federal administrative agencies for decades."), that is simple administrative law.
I trust that Marks would applaud the fifth fact, related to a decrease in the number of complaints for judicial misconduct (and would possibly properly claim some credit for NAIJ for that decrease).
The last myth (that immigration judges receive "financial incentives to complete cases with particular outcomes.") is just plain stupid and beneath rebuke. That EOIR had to refute such nonsense is ridiculous. That said, when you have immigration judges publicly assert that "[t]he current structure [of the courts] detracts from due process and makes people doubt the fairness of the courts [judges] preside over," it would logically lead people to believe almost any canard.
The first fact is a bit more tricky, at least for the outlier courts (including Marks's court, San Francisco). According to EOIR statistics32, the median grant rate in FY 2018 was 11 percent. Twelve of the 62 immigration courts had grant rates that were more than 10 percent above the median, including San Francisco, where the grant rate approached 40 percent. As Marks noted in the Post:
Our courts' decisions are life-changing. . . . . And, at times, the decisions can amount to a death sentence, such as when we deny an application for asylum because the law does not protect all those who find themselves in harm's way back home.
What she did not state is that there are real-world costs to granting asylum to an alien who does not have a valid claim, or whose claim is based on fraud. Such decisions undermine the integrity of our immigration laws, abuse the humanitarian impulses of the American people (no one wants to be a sucker), increase the number of claims, and force respondents with valid asylum claims to wait for relief, at potential risk to their families back home who would otherwise be able to immigrate.
Such a wild disparity in grant rates suggests that there are either significant differences between the validity of asylum claims among the various courts (a real possibility, given the fact that conditions are worse in different countries, and aliens often tend to relocate within the United States to where their fellow nationals already reside) or, alternatively, that there are real problems with the manner in which certain immigration judges grant asylum (there were no courts identified with grant rates more than 10 percent below the median, but four – Fishkill, San Juan, Saipan, and Ulster – where the grant rate was zero). There is nothing that EOIR can do to address the latter issue, however, without infringing on the independence of immigration judges, at least as those courts are currently structured.
Rationale for Recent DOJ Policies
The third area the fact sheet addresses generally is the rationale for recent DOJ policies, particularly as they relate to the immigration court. Three points specifically respond to criticism of rules that EOIR has established to improve the functioning of the immigration courts and reduce backlogs, goals that the Government Accountability Office (GAO) called for almost two years ago.33 They are:
MYTH: EOIR is the only federal agency in which judges or administrative adjudicators are subject to performance measures or case completion goals.
FACT: Ninety-seven percent (97%) of administrative judges or administrative adjudicators, excluding administrative law judges, are subject to performance measures just as immigration judges are. Although not subject to performance evaluations, many administrative law judges are subject to case processing goals, just as immigration judges are.
MYTH: EOIR's case completion goals are unfounded in law and contrary to the recommendations of other governmental bodies.
FACT: Multiple statutory provisions reflect the intent of Congress to adjudicate immigration cases within specified time frames. The Government Accountability Office, the Department of Justice Office of the Inspector General, and Congress have all called for EOIR to establish case completion goals, particularly for nondetained cases that make up the bulk of the pending caseload.
MYTH: Immigration judges cannot complete 700 cases per year without violating due process.
FACT: Historically, multiple sources have asserted that immigration judges have completed well over 700 cases per year with no noted allegations of due process violations associated with those higher completion numbers, including the Government Accountability Office and the National Association of Immigration Judges. The American Bar Association has also twice recommended that immigration judges should manage a caseload "roughly on par with the number of cases decided each year by judges in other federal administrative adjudicatory systems (around 700 cases annually)."
These points support the Performance Goals announced by EOIR Director James McHenry in March 201834, the "700 cases each year" referenced by Marks above. Pursuant to those performance goals, to maintain a "satisfactory performance" rating, an immigration judge is expected to complete 700 cases a year and have fewer than 15 percent of all cases remanded by the BIA or circuit courts, in addition to meeting certain other benchmarks.
A rating based on the completion of 700 cases, however, are not a hard-and-fast rule. As EOIR Director James McHenry stated in his e-mail announcing those metrics35, pursuant to Article 22.5.d. of the Collective Bargaining Agreement between EOIR and NAIJ (yes, there is a collective bargaining agreement for immigration judges), EOIR must "give an immigration judge the opportunity to provide input regarding his or her performance prior to rating the judge below Satisfactory in any element." So, if the immigration judge had a number of cases presenting unique and difficult issues that took significant time to complete, or did not have enough cases to complete 700 during the year, the immigration judge could present that fact during the evaluation process.
To receive an "unsatisfactory performance" rating, the immigration judge had to have completed fewer than 560 cases per year.
In assessing these numbers, it is important to remember that 44 percent of all decisions in non-detained removal cases are an in absentia order of removal, which counts as a completion.
Again, given the public rebuke of EOIR for its case completion goals, it is appropriate for the office to issue a public response to those complaints, as it did in the fact sheet. This is especially true given two points alluded to above: that immigration judges have a union, and that there is a collective bargaining agreement between the union and EOIR. Put another way, labor (in this case, NAIJ through Marks's statement above) has asserted publicly that a term of employment is wrong and management (EOIR in its fact sheet) has presented its side of the story. For EOIR to remain silent on the issue (as the Round Table apparently suggests that it should) would necessarily put labor in a superior bargaining position, at least with respect to public opinion. That does a disservice to the public and to the Congress.
Two other facts have to do with the conduct of removal proceedings through Video Teleconferencing (VTC), as opposed to an in-person appearance by the respondent in immigration court:
MYTH: EOIR is the only federal administrative agency that uses video teleconferencing (VTC) for court hearings or case adjudications, and eliminating or restricting the use of VTC through litigation would affect only EOIR.
FACT: VTC is widely used at numerous federal administrative agencies for court hearings or case adjudications similar to how it is used by EOIR, including at the Social Security Administration, the Department of Veterans Affairs, and the Department of Health and Human Services. Any restriction or elimination of the use of VTC for court hearings or case adjudications would have implications for all agencies utilizing VTC—not just EOIR.
MYTH: VTC is unreliable, and its use violates due process.
FACT: VTC has been used by EOIR since the 1990s, and its use was expressly authorized by statute in 1996. It is used widely throughout many federal agencies, and federal courts have consistently rejected general challenges to its use as a violation of due process. There is no indication of a statistically significant difference in outcomes between VTC cases and in-person cases. Less than one-tenth of one percent (.0052%) of EOIR VTC hearings, 310 out of nearly 60,000, are continued due to a VTC malfunction.
As the immigration judge, I used VTC regularly, and it had no impact whatsoever on my ability to decide the cases that I heard. That said, on March 5, 2019, Lawfare reported:36
In the latest salvo in a long debate over the use of [VTC] technology in immigration courts, several legal aid organizations filed a class-action lawsuit on Feb. 12 in New York challenging the [ICE] practice of denying in-person hearings to immigrants. The government and other proponents of remote adjudication by video argue that it improves efficiency, while skeptics worry about how it affects judges' ability to evaluate credibility and immigrants' ability to present their cases. There have been several legal challenges to the practice since it was introduced in 1996, though this most recent one is the largest and most sophisticated.
VTC was an invaluable tool in my court, as I had jurisdiction over remote federal and state prisons, as well as remote immigration detention facilities. The costs, both in time and travel, for me to have heard cases in person in those facilities (even assuming that those facilities had sufficient space) would have been overwhelming. EOIR was well within its authority to point out the fact that VTC is reliable, does not deprive respondents of due process rights, and that limiting VTC would have ramifications well beyond immigration.
The last fact that EOIR presents has to do with the Legal Orientation Program (LOP), which I wrote about in an April 2018 post captioned: "Is EOIR's Legal Orientation Program Necessary?"37 Specifically, the fact sheet states:
MYTH: Participation in the Legal Orientation Program (LOP) reduces the length of an alien's proceedings, reduces the time an alien spends in detention, and reduces costs to the Department of Homeland Security (DHS).
FACT: Aliens who participate in LOP spend an average of 30 additional days in detention, have longer case lengths, and add over $100 million in detention costs to DHS.
It is no secret that EOIR questions the effectiveness of LOP: the Washington Post reported the fact in an April 10, 2018 article captioned "Justice Dept. to halt legal-advice program for immigrants in detention."38 The Post stated:
The U.S. immigration courts will temporarily halt a program that offers legal assistance to detained foreign nationals facing deportation while it audits the program's cost-effectiveness, a federal official said Tuesday.
Officials informed the Vera Institute of Justice that starting this month it will pause the nonprofit's Legal Orientation Program, which last year held information sessions for 53,000 immigrants in more than a dozen states, including California and Texas.
The federal government will also evaluate Vera's "help desk," which offers tips to non-detained immigrants facing deportation proceedings in the Chicago, Miami, New York, Los Angeles and San Antonio courts.
The Executive Office for Immigration Review, which runs the Justice Department's immigration courts, said the government wants to "conduct efficiency reviews which have not taken place in six years." An immigration court official, who spoke on the condition of anonymity because the audit has not been formally announced, said the review will examine the cost-effectiveness of the federally funded programs and whether they duplicate efforts within the court system. He noted, for example, that immigration judges are already required to inform immigrants of their rights before a hearing, including their right to find a lawyer at their own expense.
Director McHenry was questioned extensively about the decision to pause this program at an April 18, 2018 hearing before the Senate Judiciary Committee's Subcommittee on Border Security and Immigration39, and he responded to questions for the record40 related to that hearing from Senators Durbin, Feinstein, and Hirono.
In response to congressional inquiries, on April 25, 2018, then-Attorney General Jeff Sessions41 announced that he was rescinding the decision to pause the LOP while the aforementioned review was conducted.
There was widespread criticism of EOIR's pause in the LOP. Notably, in her written testimony at the April 18, 2018, hearing42, Immigration Judge Ashley Tabaddor, the President of NAIJ, referred to EOIR's "decision to halt the Legal Orientation Program (LOP)" as "mismanagement." The Daily Beast reported: "Advocates decried the move. ‘This is a blatant attempt by the administration to strip detained immigrants of even the pretense of due-process rights,' Mary Meg McCarthy, executive director of the National Immigrant Justice Center, said."43
In light of that very public criticism (including from the immigration judges' union), it is appropriate for EOIR to release information relating to its review of the LOP. This is hardly the "propaganda" that the Round Table contends that it is. EOIR has to pay for the LOP, which means that the American people do. If there are issues with that program, it is incumbent upon that office to bring them to the fore. Whether it did so in a 100-page report or a six-page fact sheet does not change this conclusion. Put another way, if the statements of the immigration judges' union in favor of the LOP are not indicative of bias (which the Round Table does not even mention), why would EOIR's reporting of issues with the LOP be indicative of bias, as the Round Table asserts?
EOIR headquarters is located at 5107 Leesburg Pike in Falls Church, Va., also known as "One Skyline Tower."44 It is a massive glass edifice that sits on a ridge overlooking Washington. The former immigration judges of the Round Table have begun their figurative assault on the tower. Perhaps they should have marshaled their facts more completely before this initial foray.
In any event, three points bear notice. The first is Immigration Marks's assertion that creation of an Article I immigration court "would allow a reliable funding stream from Congress to assure we have the resources needed to address our burgeoning caseload in a timely manner." It is not clear how she reaches that conclusion, but it is almost definitely in error. It is easy enough for Congress to starve agencies in areas in which it disagrees of funding, as Democrats in the House of Representatives recently did with ICE.45 Does Marks, NAIJ, or the Round Table believe that funding would not be used to infringe on the independence of an "independent" Article I court if it starts issuing decisions with which Congress disagrees? No funding stream in Washington is truly reliable. At least under the protection of DOJ, the immigration courts can deflect some ill-informed criticism (including through fact sheets) and fight for funding. What would happen if that aegis were removed?
The second point has to do with the disproportionate grant rates for asylum in certain immigration courts. If anything, that suggests that immigration judges have too much independence, rather than too little. There may be explanations for these discrepancies, but under the current EOIR system, no one can even ask the question, or at least no one in a position to address the issue substantively, without being seen to infringe on that independence. How much support would there really be for an independent immigration court with even less oversight?
The third point has to do with the significant amount of public criticism of EOIR from the immigration judges and their union. Under the current immigration-court structure, that is more than permissible. There is a union, and they have opinions. One might question whether those opinions themselves suggest bias on the part of the judges who are making them, but the ability of the judges as DOJ employees with a union to express those opinions is, again, permissible and not unethical. What would happen, however, if the immigration judges were to become an Article I court? Logically, such statements, which currently inform the public debate, would be targeted as proof of such bias, meaning that the informed opinions of those charged with applying the law would largely be lost.
Any information that adds to the current debate over the effectiveness of our current immigration system should be applauded. The EOIR fact sheet and the statements of NAIJ are no different. And, if there are facts that contradict the facts in the fact sheet, I am hopeful that document will cause them to be brought forward. Thomas Jefferson purportedly asserted that if the American people knew all of the facts, they will never make a mistake. Whether he said it or not, I believe it in my heart to be true. On this subject as much as any other.
3 "Credible Fear and Asylum Process: Fiscal Year (FY) 2008 – FY 2019 First Quarter", Executive Office for Immigration Review
4 Andrew R. Arthur, "One Chart that Adds Context to the Border Meltdown", Center for Immigration Studies, April 5, 2019
5 "Credible Fear and Asylum Process: Fiscal Year (FY) 2018", Executive Office for Immigration Review
7 Dara Lind, "House Democrats want to stop Trump from returning asylum seekers to Mexico to wait", Vox, May 10, 2019
10 Lindsey McPherson, "Why Democrats aren't rushing to change immigration laws", Roll Call, April 17, 2019
11 Andrew R. Arthur, "A Bipartisan Panel Reports Alarming Findings on the Border Crisis", Center for Immigration Studies, April 25, 2019
12 "President's Commission on the Assassination of President Kennedy", September 24, 1964
13 Mark Metcalf, "Skipping Court: U.S. Immigration Courts & Aliens Who Disappear Before Trial", Center for Immigration Studies Backgrounder, January 24, 2019
15 Molly O'Tool, "Trump plan fails to cut immigration court backlog, as caseload soars more than 26%", L.A. Times, February 21, 2019
18 Mark Metcalf, "Skipping Court: U.S. Immigration Courts & Aliens Who Disappear Before Trial", Center for Immigration Studies Backgrounder, January 24, 2019
19 Andrew R. Arthur, "Administration's Border Funding Request Becomes Clear", Center for Immigration Studies, May 3, 2019
28 Dana Leigh Marks, "I'm an immigration judge. Here's how we can fix our courts.", Washington Post, April 12, 2019
30 Andrew R. Arthur, "Jeff Sessions's Impact on Immigration as Attorney General", Center for Immigration Studies, November 15, 2018
31 Andrew R. Arthur, "Strengthening and Reforming America's Immigration Court System", Testimony to the Subcommittee on Border and Immigration, United States Senate Committee on the Judiciary, April 18, 2018
33 "Immigration Courts: Actions Needed to Reduce Case Backlog and Address Long-Standing Management and Operational Challenges", U.S. Government Accountability Office, June 2017
34 "EOIR Issues Guidance Implementing Immigration Judge Performance Metrics", American Immigration Lawyers Association, March 30, 2018
35 "EOIR Issues Guidance Implementing Immigration Judge Performance Metrics", American Immigration Lawyers Association, March 30, 2018
36 Jessica Zhang, Andrew Patterson, "New York Lawsuit Challenges Replacement of Immigration Court Hearings with Video Technology", Lawfare, March 5, 2019
38 Maria Sacchetti, "Justice Dept. to halt legal-advice program for immigrants in detention", Washington Post, April 10, 2018
39 "Strengthening and Reforming America's Immigration Court System", Subcommittee on Border Security and Immigration, April 18, 2018
40 Director McHenry, "Strengthening and Reforming America's Immigration Court System", Questions for the Record Executive Office for Immigration Review, Senate Committee on the Judiciary Subcommittee on Border Security and Immigration, April 18, 2018
41 Attorney General Jeff Sessions, "Opening Statement of Attorney General Jeff Sessions Before the Senate Appropriations Subcommittee on Commerce, Justice, Science, and Related Agencies", April 25, 2018
42 Judge A. Ashley Tabaddor, "Strengthening and Reforming America's Immigration Court System", Senate Judiciary Committee, Border Security and Immigration Subcommittee, April 18, 2018
43 "Justice Department to Halt Program That Gives Legal Advice to Detained Immigrants", Daily Beast, 2018