House Immigration Subcommittee Hearing on EOIR

Please note: This blog post was originally posted on Wednesday, June 16, 2010.

On June 17, the House Immigration Subcommittee will hold an oversight hearing on the Executive Office for Immigration Review (EOIR), the agency which includes the Immigration Courts and the Board of Immigration Appeals (BIA).

Back in 2006, former Attorney General Alberto Gonzalez issued a memorandum outlining a series of reforms for the Immigration Courts and the Board of Immigration Appeals. There was a lot of controversy about whether new Immigration Judges were being selected because of their knowledge of complex immigration laws and regulations, or for reasons which have nothing to do with their qualifications. 

The Gonzalez memo made a lot of promises, and the issue quickly disappeared from the national media’s attention. The question now is whether the EOIR and the Justice Department have made good on the reforms that were promised in the memo.

For example, the memo promised such things as:

• Performance examinations for all Immigration Judges;
• Immigration law examinations for Judges hired after 2006;
• Increased resources for the Immigration Courts.

The oversight hearing presents a golden opportunity for members of the Subcommittee to question witnesses about whether, and to what extent, these promised reforms have been implemented.

With regard to the performance examinations, there are a number of Immigration Judges who have been repeatedly criticized by the U.S. Courts of Appeals for reasons which cast doubt on their ability to act as impartial adjudicators. Also, the EOIR has a procedure whereby the immigration bar and the public can lodge complaints against individual Immigration Judges. What actions have the EOIR and the Justice Department taken to evaluate the performance of these judges? How many of these judges have been removed because they lack the temperament or knowledge of immigration law needed to perform their jobs?

It is well-known that very few members of the private immigration bar have been hired by the EOIR since 2006. Why is this? On the other hand, a number of the newly-hired Immigration Judges formerly were employed by other non-immigration-related government agencies and lacked familiarity with immigration laws, regulations, and procedures. What is the pass rate on the immigration law exam? If a newly-appointed Judge fails to pass the examination, is s/he given another chance to do so?

The Transactional Records Access Clearinghouse (TRAC) reports reveal that in the same city, some Immigration Judges granted 80% to 90% of the asylum applications which come before them, while some of their colleagues grant less than 10-20% of these applications. Should the outcome of an application for asylum, or for some other benefit, be based on which Judge happens to hear a particular case? What is the EOIR doing to make sure all Judges adhere to the same standards in deciding cases?

There is little doubt that the Immigration Courts nationwide are starved for resources. A recent report by the TRAC reveals that the number of pending cases before the Immigration Courts is nearing 250,000, over a 30% increase from just 18 months ago!

Have the number of Immigration Judges hired increased 30% during the last 18 months? If not, what has been the rate of increase? How many new Judges has the EOIR asked Congress to fund since 2006? If all EOIR’s budget requests had been approved, how many more Immigration Judges would now be on the EOIR payroll? Would that be enough to make the Courts run efficiently?

The average pending time for a case in the Immigration Courts is nearing 450 days. Back in the 1980s, when I was an INS Trial Attorney, when one side needed a continuance on a case, it was rescheduled within a couple of weeks. Now, the waiting time to reschedule a case can be a year or more.

How can indivdual Judges be expected to issue thoughtful, intelligent decisions on complex cases when their Master Calendar courtrooms are filled with over 30 persons, when they have to share a single law clerk with three other Judges, and when they have to postpone cases every time ICE misplaces a file or fails to perform a biometrics check?

The system is clearly broken, and Members of the Subcommittee should find out what steps the Justice Department and the EOIR have taken to repair it. This is the BP oil spill of the immigration world.