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More than a year after Attorney General Alberto Gonzales chided immigration judges for “intemperate and abusive” behavior toward aliens, there is no sign of the new code of conduct, performance evaluations or judge proficiency testing that he ordered in August. Now Congress has also gotten involved, sending Government Accountability Office (GAO) investigators around the country poking into the immigration judging process, with a report expected perhaps as early as June. And in the midst of the overhaul of the immigration judging system, Kevin Rooney, director of the Executive Office of Immigration Review (EOIR), which oversees the judges, announced on Feb. 21 that he would retire next month after seven years in office. Following nearly two years of criticism by federal appellate judges and practitioners and critical media accounts of rude or incompetent immigration judges, Gonzales issued memos in January 2006 ordering judges to be nicer and began an investigation into conditions. By August, he announced a 22-point reform plan to correct an impotent judicial-discipline system, create performance standards and bolster resources. He also reassigned the chief immigration judge, then left EOIR to work out the details of the overhaul. EOIR officials refused to discuss the status of reform and referred calls to Justice Department spokesman Charles Miller. He said that the work continues but there is no estimate of when it will wrap up. The EOIR did consult with private immigration lawyers through the American Immigration Lawyers Association in a number of sessions in New York, Chicago and California, according to AILA President Carlina Tapia-Ruano of Tapia-Ruano & Gunn in Chicago. As a practitioner, Tapia-Ruano said the artificial deadlines imposed on judges to decide cases should be removed. “It is a travesty of justice to impose artificial time deadlines,” she said. Immigration judges work for the Justice Department and are not part of the independent judiciary. ‘Things getting worse’ Gonzales’ marching orders called for more resources, including additional law clerks, improved tape recording systems for hearings and better translation services. So far none of the promised resources has arrived, according to Denise Slavin, an immigration judge in Miami and president of the judges’ union, the National Association of Immigration Judges (NAIJ). “If anything, things are getting worse,” she said. “We’re losing judges faster than they are being replaced,” said Slavin of the corps of 215 judges who heard about 531,000 cases in 2005. That was up 39% from 2000, when there were 381,000 cases, according to the GAO. “The biggest problem is lack of resources,” she said. Gonzales called for the creation of a code of conduct for judges, performance reviews and competency testing, all of which would create potential tension between judges seeking the freedom to rule against department lawyers, while at the same time having their performance reviewed by the same agency. “It is hard to see how such a system could be implemented for immigration judges,” said Slavin, whose union opposes job performance reviews. Some optimism Dana Marks, vice president of the NAIJ and an immigration judge in San Francisco, said the union was consulted on some issues early but is still “marginalized” about the direction the efforts will ultimately take. “We’re optimistic. It appears to be a better climate,” Marks added. The proposed $227 million budget represents a $16 million increase for Fiscal Year 2007 and would include funding for 120 new positions, including 20 immigration judges, 10 Board of Immigration Appeals lawyers and 90 support staff, according to Elaine Komis, EOIR spokeswoman. An AILA liaison committee that meets with the EOIR hopes to get some hint about reform plans when it submits formal questions at an April meeting. Marks said that moving regional managers out of Washington and into regional field offices to keep closer oversight of local judges has been an improvement. The EOIR has been notoriously tight-lipped about the disciplining of immigration judges, initially denying it tallied complaints or discipline when questioned by The National Law Journal in 2006. But the EOIR turned over logs to GAO in 2006 that recorded complaints against judges to GAO. A final GAO report months later showed 129 formal complaints against judges between 2001 and 2005. One quarter resulted in some discipline, the report states. Whatever shape the final reforms take, not everyone is confident it will fix the agency’s problems because Gonzales did not alter the controversial streamlining of appeals instituted by his predecessor, John Ashcroft. Under the streamlining system, Ashcroft cut the number of Board of Immigration Appeals judges hearing appeals. He also said appeals of immigration judge rulings could be resolved by a single appeals judge, without a written opinion, rather than by a panel of three.

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