NEW EOIR Procedures (with Annotations)

August 9, 2006

According to a press relase issued today, the Department of Justice will implement new measures to enhance the performance of the Immigration Courts and the Board of Immigration Appeals, Attorney General Alberto R. Gonzales announced today in remarks at the Immigration Judges’ Training Conference. The announcement comes after the completion of a comprehensive review of the Immigration Courts and the Board that was initiated by the Attorney General in January 2006, following reports of judges failing to display temperament and produce work that meets the Department’s standards.

Based on the results of the review, the Attorney General directed the implementation of 22 new measures. The new measures include the following key reforms needed to improve the performance and quality of work of the nation’s immigration court system, based on the findings of the review.

Performance Evaluations:

The first of the reforms is the establishment of performance evaluations to enable EOIR leadership to review periodically the work and performance of each immigration judge and member of the Board of Immigration Appeals.

[ABOUT TIME BUT, OF COURSE, THE PROOF IS IN THE IMPLEMENTATION. — KJ]

Immigration Law Exam: To ensure that all immigration judges are proficient in the key principles of immigration law, the Attorney General has instructed EOIR to develop an examination testing for familiarity with these principles. Each newly appointed immigration judge and Board member appointed after December 31, 2006, will be required to pass the exam before he or she begins to adjudicate matters. Additional measures directed to improve judges’ performance include improved training for immigration judges, Board members, and EOIR staff.

[AGAIN, ABOUT TIME. WHY NO EXAMINATION ABOUT THE BASICS PREVIOUSLY?–KJ]

Sanctions Power: To ensure that immigration judges have the tools they need to control their courtrooms and to protect the adjudicatory system from fraud and abuse, EOIR will consider and, where appropriate, draft proposed revisions to the existing rules that provide sanction authority for false statements, frivolous behavior, and other gross misconduct. EOIR will also draft a new proposed rule that creates a strictly defined and clearly delineated authority to sanction by civil money penalty an action (or inaction) in contempt of an immigration judge’s proper exercise of authority. Likewise the Board of Immigration Appeals should have the ability to sanction effectively litigants and counsel for strictly defined categories of gross misconduct. EOIR therefore will consider and, where appropriate, draft proposed revisions to the existing rules that provide sanction authority to the Board of Immigration Appeals.

[HOW WILL THIS IMPROVE THE QUALITY OF THE IJ AND BIA DECISIONS? MORE SANCTIONS POWER IN THE HANDS OF THE JUDGES LIKELY WILL RESULT IN MORE SANCTIOPN ORDERS BY IJS WHOSE QUALITY HAS YET TO BE PROVEN.–KJ]

Increased Resources: To give the immigration courts the resources needed to execute their duties appropriately, the Department will seek budget increases, starting in FY 2008, which will be aimed at hiring more immigration judges and judicial law clerks, focusing on those Immigration Courts where the need is greatest; and hiring more staff attorneys to support the Board. In addition, the Board will be increased by the addition of four permanent members and the continued use of temporary Board members to fulfill the Board’s needs is encouraged.

[THIS MAY HELP, UNLESS LAW CLERKS DO MORE RESEARCH ON THE IMPOSITION OF SANCTIONS. 🙂 — KJ]

Technological and Support Improvements: Several improvements will also be made to the Immigration Courts’ ability to record, transcribe, and interpret court proceedings.

[THIS MAY HELP.–KJ]

Improvements to the Streamlining Reforms: Furthermore, the new reforms will make adjustments to the Board’s “streamlining” practices to, among other things, encourage the increased use of one-member written opinions to address poor or intemperate immigration judge decisions that reach the correct result but would benefit from discussion or clarification, and to allow the limited use of three-member written opinions (as opposed to one-member written opinions) to provide greater analysis in a small class of particularly complex cases. Streamlining, which the Department originally instituted in 1999 and expanded in 2002, brought much-needed efficiency to the Board’s administrative review process, enabling the Board to eliminate a large backlog and to provide respondents with a final, reviewable administrative action in a reasonable amount of time. The adjustments to streamlining included in the new reforms balance the Board’s need to explain its reasoning more fully in certain types of cases, with its existing and predicted caseload, its existing resources and the need to provide respondents with a final decision in a timely fashion. [WHY NOT ELIMINATE THE STREAMLINING REFORMS?–KJ]

Also included in the new reforms are measures for drafting a new code of conduct specifically applicable to immigration judges and Board members; improved mechanisms to detect poor conduct and quality by immigration judges and Board members; a pilot program to assign one or more Assistant Chief Immigration Judges to serve regionally, near the Immigration Courts they oversee; improved complaint procedures for inappropriate conduct by adjudicators; and new procedures by which immigration judges and Board members may refer cases of immigration fraud and abuse for investigation. As part of the comprehensive review conducted over the past several months, the Deputy Attorney General and the Associate Attorney General assembled a review team that traveled to nearly 20 Immigration Courts and the Board of Immigration Appeals, conducted more than 200 interviews of stakeholders, administered an online survey to hundreds of participants, and analyzed thousands of pages of material in an effort to assess the strengths and weaknesses of the immigration court system.

FOR THE FULL PRESS RELEASE, CLICK HERE.

“Wednesday’s report got a tepid reception from immigration lawyers around the nation who welcomed greater scrutiny of judges but felt the review failed to fix the problems at the Board of Immigration Appeals.”

http://bibdaily.com/pdfs/DAILY%20JOURNAL%20NEWSWIRE%20ARTICLE%208-10-06.pdf