The U.S. Department of Justice has failed to implement most of 22 reforms of the immigration judge system promised two years ago, including establishing a discipline system, more oversight of judges and improving the appeals process, according to a study released last week.
Former U.S. Attorney General Alberto Gonzales announced the 22-point plan in August 2006, in the wake of mounting complaints by federal appellate judges about the lack of quality in immigration judging and media accounts of abusive judges who faced little or no discipline.
The department, and its agency charged with implementing the plan, has "failed to complete key improvement measures that go to the heart of ensuring that the immigration courts are staffed by capable, skilled judges that have sufficient time and resources to accurately do their job," the report concluded.
It was produced by the Transactional Records Access Clearinghouse as part of a two-year project supported by Syracuse University and a number of foundations.
Justice Department spokeswoman Carolyn M. Nelson disputed the findings in a prepared statement. "We disagree with TRAC's characterization of the department's progress on accomplishing the improvement measures. The Department of Justice has made significant progress in implementing the 22 measures, as nearly all of them are completed or near completion," she said.
The TRAC report found that the Executive Office for Immigration Review, which has authority over the nation's 215 immigration judges and is responsible for implementing the changes, has failed to conduct any performance evaluations of immigration judges or appeals board members and has not implemented a code of judicial conduct.
The report also claims the department has not issued a final rule that would reduce the use of single-judge appellate decisions known as "affirmances without an opinion" and increase more rigorous appellate review by three-member panels.
Traditionally, the Board of Immigration Appeals decides immigration appeals in panels of three judges. But that was severely curtailed by former Attorney General John Ashcroft in a move to eliminate a backlog of immigration appeals.
A single appeals judge was allowed to issue one-line opinions affirming cases without explanation of the legal basis. This pushed the mountain of appeals up to the federal circuit courts of appeals, which were unable to do legal analysis of the holdings. In addition, the TRAC report found that the Justice Department has not proposed rules that would return wrongly decided cases to the BIA for reconsideration.
The EOIR declined to comment on the report and referred calls to Justice Department superiors. However, in a formal response to TRAC, the EOIR indicated it has abandoned efforts to create a code of judicial ethics through the rulemaking process, which requires public notice and comment.
"After review by the Office of Government Ethics and the Department's Ethics Office, the code was revised and incorporated into the existing ethics manual," according to EOIR. The EOIR added that it is still making revisions to the ethics manual, and no firm date has been set for completing the revision of the new manual, TRAC reported.
DOJ Falls Short on Promised Immigration Judge Reform, Report Says
A Department of Justice spokesperson disputes the study's findings
The National Law Journal
September 17, 2008