inform themselves about their personal financial interests and
make a reasonable effort to inform themselves about the personal
financial interests of spouses and minor children. See MCJC
Canon 3E(2).

Inquiry: An Immigration Judge has an interest in a defined benefit
plan with his former law firm. Can the Immigration Judge hear
cases in which his former partners appear as legal
representatives?
Answer: No, he cannot hear such cases because he still has a
financial interest in the partnership. Even without the financial
interest, the Immigration Judge should disqualify himself from

» participating in cases brought by his former law firm to avoid the
appearance of impropriety and the rule on impartiality.

B. EOIR Judges are prohibited from receiving compensation for their work from
any private source.

V. IMPARTIALITY IN PERFORMING OFFICIAL DUTIES (5 CFR sections 2635.501 to
2635.503)

A. Generally, an EOIR Judge should seek advice from the Deputy Designated
Ethics Officer before participating in any matter in which her impartiality could
be questioned. An EOIR Judge may not participate, without authorization, ina
particular matter involving specific parties which the Judge knows is likely to
affect the financial interests of members of the Judge’s household or in which the
Judge knows a person with whom the Judge has a:covered relationship is or
represents a party. An EOIR Judge has a covered relationship with:

(1) A person with whom an EOIR Judge has or seeks a business,
contractual or other financial relationship that involves other than a

routine consumer transaction;

(2) A relative with whom an EOIR Judge has a close relationship;

(3) A present or prospective employer of a spouse, parent or child;
or

(4) An organization which an EOIR Judge now serves or has
served, as an employee or in another capacity, within the past year.

B. Ifa conflict of interest exists, in order for the EOIR Judge to participate in the

13


relationship outside work in this instance. Also, a private
celebration such as a wedding does not qualify under the widely
attended gathering exception in 5 CFR 2635.204(g). This is not an
AILA conference, but rather a private party to which the
Immigration Judge (and her spouse) should not attend, as it would
create the appearance of impropriety.

(2) Gifts of $20 or less per occasion, not to exceed $50 in a year
from one source.

Inquiry: An INS Trial Attorney is a season ticket holder for an
NFL team. He cannot attend one game, and offers the tickets to an
Immigration Judge who he knows is a long-time fan of the
opposing team. The face value of the tickets is considerably more
than $20, and the Trial Attorney and the Judge are not personal
Friends, but are instead workplace acquaintances. Can the
Immigration Judge accept the tickets?

Answer: The Immigration Judge may pay the Trial Attorney the
face value of the tickets. By paying face value, the tickets are no
longer considered a gift under the applicable regulations. The
judge should remember, however, that Trial Attorneys are
prohibited sources, so he should seek other ways of obtaining
football tickets in the future.

(3) Discounts and similar benefits offered to a broad class,
including a broad class of government employees.

Inquiry: The management company of a condominium complex
offers a discounted rate to residents who wish to join the in-house
fitness center. May an Immigration Judge take advantage of this
discount?

Answer: Yes. Since the discount is offered to all residents of the
complex, the Immigration Judge may accept the discounted offer.

(4) Most genuine awards and honorary degrees, although in some
cases an EOIR Judge will need a formal determination.

Inquiry: A Board Member is nominated for an award given every
year by a weil-known humanitarian organization. Can the Board
Member accept the award?

Answer: Since this is an established, bona fide award program,
and not an attempt to curry favor with the Board of Immigration
Appeals, the Board Member may accept the award and be honored

7


Inquiry: The neighbor of a legal technician has filed an
application for benefits before the Social Security Administration.
Months have transpired since the filing and she asks the legal
technician for help. Can the legal technician call the SSA on her
neighbor's behalf?

Answer: The legal technician should not use official time and
resources for her neighbor's gain. Moreover, she cannot use her
Official title when calling on her neighbor's behalf, in an attempt
to get special treatment from another federal agency.

Inquiry: A private attorney convicted of conspiracy to present
fraudulent documents to the INS writes to two Immigration Judges
asking them to write character letters on her behalf which would
be mailed directly to the sentencing judge in federal court in New
York. Can the Immigration Judges write such letters?

Answer: If the Immigration Judges know the attorney solely
through her appearances in Immigration Court, then the Attorney
General's memorandum of October 29, 1986, prohibits the judges
Jrom writing character letters on behalf of a convicted felon.
However, if the attorney is a personal friend of the Immigration
Judges, the prohibition would not be absolute. Notwithstanding,
the letters would have to be approved by the Deputy Designated
Ethics Officer and the Department. See also Attorney General
Memorandum on Personal Letters of Recommendation Written to
the Probation Office or to a Court on Behalf of Convicted Federal
Defendants.

Inquiry: The childhood friend of an Immigration Judge is
engaged in a civil suit (breach of contract). The Department is not
a party to, nor has an interest in, the litigation. The friend has
never appeared in Immigration Court before the Judge. Can the
Immigration Judge testify on behalf of his friend as a character
witness?

Answer: Although the federal government is neither a party nor
has an interest in the case, and the Immigration Judge would
testify as a character witness in his personal capacity, the
Immigration Judge re-examined the rules on misuse of position,
particularly the prohibition against giving the appearance of
government sanction to personal activities, and decided not to

testify.

MCIJC Note: The testimony of an EOIR Judge as a character
witness inappropriately lends the prestige of the office in support

17


Executive Order 12731), the Standards of Conduct for Executive
Branch Employees at 5 CFR Part 2635 that implement Executive
Order 12674, and the Department of Justice Supplemental Standards
of Conduct at 5 CFR Part 3801.

Part two of the Manual provides the complete text of all
Standards of Conduct and Supplemental Standards of Conduct
applicable to EOIR Judges. Certain rules are complex and require
some analysis in applying them to specific situations. You
should use this Manual as a means of keeping yourself apprised of
the general prohibitions, but you always should seek advice if
you are contemplating an action that you think might be covered
by the applicable laws and regulations. There are a number of
ethics officials throughout the Department who can advise you on
the application of the laws and regulations referenced above.

The Designated Agency Ethics Official (DAEO) for the
Department of Justice is the Assistant Attorney General for
Administration and the Alternate DAEO is the Deputy Assistant
Attorney General, Law and Policy.’ The Departmental Ethics Office
is responsible for the overall direction of the ethics program in
the Department . In addition, each Bureau, Office, Board, and
Division has a Deputy DAEO. The General Counsel of EOIR serves
as the Deputy DAEO and should be your first contact for ethics
advice.

EOIR Judges also should consult the orders and memoranda
compiled in Part three of the Manual for additional guidance on

ethical conduct. Finally, EOIR Judges are encouraged to review


campaign committee of an incumbent President. However, by
memorandum dated May 2, 1995, the White House issued an
opinion which states that based on the Hatch Act Reform
Amendments of 1993, 18 U.S.C. § 603 would no longer prohibit
employees from making contributions to the reelection campaign
of an incumbent President.

Inquiry: The husband of an Immigration Judge wishes to host a
political fundraising dinner at their residence. She is concerned
about the Hatch Act prohibitions. What should the Immigration
Judge do?
Answer: A federal employee is barred from hosting a fundraising
* activity at her home pursuant to 5 CFR 734.303. Such prohibition,
however, does not extend to non-federally employed spouses.
Therefore, if the Immigration Judge refrains from soliciting
contributions and does not include her name on the fundraiser’s
invitations (not even as a point of contact), her husband can host
the activity, and the Immigration Judge can comply with the
applicable federal rules. The Immigration Judge should keep a
low profile to avoid the appearance of impropriety.

Inquiry: One of the judges is active in local politics. He goes to
vote on election day at lunch, and returns to work wearing a
political pin. Can he do this?

Answer: No. Judges are prohibited from wearing political pins or
insignia at the workplace.

28


matter, the Chief Immigration Judge, with the concurrence of the Deputy
Designated Ethics Officer, must make a determination that the interest of the
government in the judge’s participation outweighs the concern that a reasonable
person may question the integrity of the Department’s programs and operations.
The determination must be made in writing.

DOJ Note: In addition to the impartiality regulation, 28 C.F.R. §
45.2 prohibits an EOIR Judge (and other DOJ employees), without
written authorization, from participating in a criminal investigation
or prosecution if he has a personal or political relationship with:
(1) any person or organization substantially involved in the
conduct that is the subject of the investigation or prosecution, or
(2) any person or organization which he knows has a specific and
substantial interest that would be directly affected by the outcome
of the investigation or prosecution.

Inquiry: An Immigration Judge’s cousin has retained as counsel
an attorney who frequently brings cases before the Judge for the
purpose of handling the admission process of his Hong Kong

. fiancee. The Immigration Judge and his second cousin had not
seen each other in over ten years, and they do not live in the same
part of the country. The Immigration Judge works in a two-judge
court, so disqualification would have a significant impact on case
assignment. Can the Immigration Judge continue to preside over
the attorney's cases?
Answer: After examining the factual circumstances in this
particular case, it was determined that the Immigration Judge does
not have a "covered" (close personal or business) relationship with
his cousin under the applicable regulations, so he can continue to
Preside over the attorney's cases. Immigration Judges are
reminded to contact the Designated Deputy Ethics Officer if they
have questions about possible personal or financial conflicts of
interest.

DOJ Note: A lawyer in a government agency does not ordinarily
have an association with other lawyers employed by that agency
within the meaning of the above provision. However, an EOIR
Judge formerly employed by a government agency should
disqualify himself or herself in a proceeding if the EOIR Judge’s
impartiality might reasonably be questioned because of such
association. See also Legal Opinion on the Disqualification of
Former INS Trial Attorneys in Matters Connected with Former
Duties or Official Responsibilities (OGC, December 2, 1998).

14


and newsworthy asylum case, the Board Member would like to
share with her audience some of the arguments presented in the
briefs submitted to the BIA, and how fellow Board Members have
analyzed and discussed the issues. Can she include remarks about
this case in her speech?

Answer: No, she cannot provide these insights, particularly since
the Board has not yet issued a decision in the case. Although she
can make a disclaimer (to the effect that the views expressed are
her own, and not necessarily those of the Department of Justice
and the EOIR), she cannot discuss the arguments presented in an
asylum case (protected by regulation), nor how her fellow Board
Members have been analyzing the issues and deliberating.

C. Use of government property. Generally, an EOIR Judge should recognize
her responsibility to make an honest effort to use government property and official
time for official business only. An EOIR Judge may not use the official time of
another employee for anything other than official business.

DOJ Note: Department of Justice employees are generally
authorized to make personal use of most office equipment and
library facilities where the cost to the Government is negligible
and on an employee’s own time. 28 C.F.R. § 45.4. In addition to
the use of government property, DOJ employees are authorized by
memorandum dated January 13, 1997, to make personal use of the
Internet as described in the memorandum. Under the
Department's policy on the use of its electronic mail systems, an
employee may send a short, personal message to another
employee. However, personal messages sent to groups of, ‘people
and messages sent to disseminate information on
non-Governmental activities, such as charitable events, religious
observances and personal businesses, are prohibited. There are
security and other concerns that arise with any Internet use, so
employees also should familiarize themselves with DOJ
memoranda on use of the Internet dated March 11, 1998 and
December 9, 1998.

D. Use of official time. An EOIR Judge shall use official time in an honest
effort to perform official duties. Generally, personal activities should not be
conducted during duty hours.

Inquiry: An Immigration Judge wants to help his daughter sell

Girl Scout cookies. He brings the cookie order form to work and
makes copies for all of the Immigration Court staff. He asks a

20


government. The following are the primary restrictions:

(1) Lifetime Ban - An EOIR Judge is prohibited from representing
anyone else before the government on a particular matter
involving specific parties in which she participated personally and
substantially.

(2) Two-Year Ban - An EOIR Judge is prohibited for two years
from representing any other person on a particular matter involving
specific parties which was pending under her responsibility during
her last year of government service.

: (3) One-Year Ban - An Executive Level official or an ES 5 or 6 in
the Senior Executive Service (or comparable level of another pay
system) is subject to an additional restriction that generally
prohibits her from representing anyone before the Department or
her component for one year. See 18 U.S.C. § 207 and 5 C.F.R. §
2637.

Inquiry: A Judicial Law Clerk worked at an Immigration Court for
ayear. She joins one of the advocacy groups which brings cases
before the Court as an attorney. Nine months after leaving EOIR,
she returns to the Immigration Court to represent a client ata
master calendar hearing. A fellow attorney does not feel well, and
asks her to handle the merits hearing of a complex case in which
she worked while she was at the Immigration Court. Can the ex-
Judicial Law Clerk handle the case?

Answer: No. Former employees are barred from representing
parties in particular matters in which they participated personally
and substantially while working for the government.

VII. MISUSE OF POSITION (5 CER sections 2635.701 to 2635.705)

A. Use of public office for private gain. An EOIR Judge may not use his public
office for his own private gain or for that of persons or organizations with which
he is associated personally. An EOIR Judge’s position or title should not be used
to coerce; to endorse any product, service or enterprise; or to give the appearance
of governmental sanction. An EOIR Judge may use his official title and
stationery only in response to a request for a reference or recommendation for
someone he has dealt with in Federal employment or someone he is
recommending for Federal employment.

16


represents clients before the Immigration Court. The Immigration
Judge had a long-standing personal relationship with members of
the firm; she used to work at this firm, and has maintained contact
with the firm members -- financial interests are not an issue. The
Immigration Judge routinely disqualifies herself from cases in
which the firm provides legal representation to avoid the
appearance of partiality. Can the Immigration Judge attend this
activity?

Answer: Yes, given the circumstances.

C. On special, infrequent occasions, such as marriage, illness, or the birth of a
child, or an occasion that terminates the superior/subordinate relationship, an
EOIR Judge may give an official superior a gift that is appropriate to the occasion.
In addition, an EOIR Judge may solicit voluntary contributions of nominal
amounts from fellow EOIR Judges, but not subordinates, to contribute to the gift.

Inquiry: One of the supervisors at Headquarters receives a
Promotion which does not terminate the supervisor/subordinate
relationship. Some of his subordinates decide to celebrate the
promotion by planning an open house reception. Contributions
are sought from all subordinates for refreshments. Can the
subordinates give, and the supervisor accept, such gift?

Answer: Since the promotion has not terminated the
superior/subordinate relationship, the $10 rule applies for
individual gifts. Contributions for refreshments should be nominal
and voluntary.

Inquiry: An Immigration Judge in California is transferred to
Headquarters. Can he accept a gift worth $25 from the legal
technician who has assisted him in the courtroom for the past two
years?

Answer: Yes, if the transfer terminates the superior/subordinate
relationship, the Immigration Judge and the legal technician are
not bound by the $10 rule. Although Court Administrators, and
not Immigration Judges, supervise legal technicians and other
Immigration Court staff, the Immigration Judges can offer input to
the Court Administrators in the preparation of performance
appraisals. Therefore, Immigration Judges have been advised that
to avoid any appearance of impropriety, they should consider
themselves to be supervisors for purposes of the gift rules.

Inquiry: Two legal technicians attend a training session offered by
the Border Patrol. They want to express their gratitude to the

i


activities, including seeking or negotiating for employment, that conflict with official
Government duties and responsibilities.

(11) EOIR Judges shall disclose waste, fraud, abuse, and
corruption to appropriate authorities.

(12) EOIR Judges shall satisfy in good faith their obligations as
citizens, including all just financial obligations, especially those -
isuch as Federal, State, or local taxes — that are imposed by law.

(13) EOIR Judges shall adhere to all laws and regulations that
provide equal opportunity for all individuals regardless of race,

color, religion, sex, national origin, age, handicap, or sexual
orientation. See Executive Orders 11478, 12106, and 13087.

(14) EOIR Judges shall endeavor to avoid any actions creating the
appearance that they are violating the law or the ethical standards
set forth in this part. Whether particular circumstances create an
appearance that the law or these standards have been violated shall
be determined from the perspective of a reasonable person with
knowledge of the relevant facts.

DOJ Note: In addition to disclosing waste, fraud, abuse, and
corruption, an EOIR Judge shall report to an appropriate
supervisor, the Office of Professional Responsibility (OPR), or the
Office of the Inspector General (OIG) any evidence or non-
frivolous allegation of misconduct that may be in violation of any
Taw, rule, regulation, order, or applicable professional standard
committed by a Department employee, including another EOIR
Judge. See Attorney General Order 1931-94 and accompanying
memoranda.

MCIC Notes: EOIR Judges have a duty to hear all matters
delegated to them fairly and with patience. They also should
maintain order and decorum in proceedings. These duties are not
inconsistent with the obligation to dispose of matters promptly and
efficiently. EOIR Judges can be prompt and efficient while being
patient, deliberate, dignified, and courteous. Further, EOIR
Judges should encourage lawyers to be prompt, patient, courteous,
and dignified, consistent with their roles in the adversary process.
See MCJC Canon 3B and Commentary.

An EOIR Judge should accord to all persons who are

3


Inquiry: An Immigration Judge is asked to serve as a member of
the reception committee of an immigrant organization. As a
committee member, the name of the Immigration Judge (and her
official title) would appear on the invitation to a reception, which
is a fundraising activity. Can the Immigration Judge participate in
this activity?

Answer: The Immigration Judge is reminded about the
regulations on misuse of position and fundraising in 5 C.F_R.
2635.808. She agrees that there is a conflict between her official
duties and the activities of the immigrant organization. Moreover,
the Immigration Judge cannot allow the organization to use her
official title to promote its fundraising activity.

Inquiry: A Board Member serves as artistic director of an annual
fashion show to raise funds for sickle cell research. She knows
that she cannot use her official title in the pursuit of this activity,
and that she cannot solicit funds from subordinates or persons who
appear before her in Immigration Court. Can the Board Member
participate in this fundraising activity?
Answer: Yes, she may participate.
K. Just financial obligations. An EOIR Judge shall satisfy in good faith his
obligations as a citizen, including all just financial obligations imposed by law,
especially those such as Federal, state or local taxes or child support payments.
L. Purchase of forfeited property. Without written approval, an EOJR Judge
may not purchase or use property that has been forfeited to the Government and
offered for sale by the Department of Justice or its agents.
IX. POLITICAL ACTIVITIES (5 CFR sections 734.101 to 734.702)
A. EOIR Judges may:
(1) Register and vote as they choose.
(2) Assist in voter registration drives.
(3) Express opinions on candidates and issues.

(4) Be a candidate for public office in non-partisan elections.

(5) Contribute money to political organizations, in general.

26


Judge's educational background, work experience and outside
interests); (3) he should recuse himself from any cases in which a
person receiving funds from the organization or its members,
including fellow Board Members, appear before him in
Immigration Court; (4) he cannot give legal advise to program
participants, particularly pertaining to immigration issues; and (5)
he cannot use official time nor resources (including the assistance
of other EOIR employees) while pursuing this outside activity.

C. Practice of law. An EOIR Judge may not engage in the practice of law unless
it is uncompensated and in the nature of community service, or unless it is on
behalf of himself, his parents, spouse or minor children. The Department
interprets "uncompensated and in the nature of community service" to include
almost any uncompensated practice. For example, activities such as preparing a
will for a neighbor, representing a cousin in a divorce proceeding or writing a
letter for a friend with a grievance against a private employer would be excepted
from the ban. However, an EOIR Judge must obtain prior written approval from
the Chief Immigration Judge before engaging in any outside practice of law.

D. While most uncompensated activities are permissible, an EOIR Judge is
prohibited from engaging in any practice of law which involves a criminal matter,
be it Federal, state or local, or any matter in which the Department is or represents
aparty. The paid practice of law also is prohibited. These prohibitions may be
waived by the Deputy Attorney General if the restrictions will cause undue
personal or family hardship, unduly prohibit a DOJ employee from completing a
professional obligation entered into prior to Government service, or unduly
restrict the Department from securing necessary and uniquely specialized services.
All requests for a waiver of these prohibitions should be made through the
Departmental Ethics Office. 5 C.F.R. § 3801.106.

Inquiry: A Board Member wishes to represent an elderly friend in
a traffic accident case. He will not be paid, and will do this in the
nature of community service. Can he represent his friend?
Answer: Yes, the Board Member may represent his friend in state
court if the Director approves his request. The Board Member
must remember, however, that the Department does not provide for
malpractice insurance or offer legal representation in matters
arising from pro bono, non-official legal matters.

E. Service As An Expert Witness. An EOJR Judge may not serve as an expert
witness in her private capacity in any proceeding before the United States in
which the United States is a party or has an interest, unless specifically
authorized.

23


We hope this Manual will become a useful tool for all EOIR
Judges as you carry out your obligation to adjudicate the cases

which come before you in a fair and just manner.

Office of the Attorney General
January 2001


the ABA Model Code of Judicial Conduct which is reproduced as
Part four of the Manual. Although EOIR Judges are not required
to comply with the Model Code of Judicial Conduct, its canons and
commentary represent principles of ethical conduct EOIR Judges
should aspire to achieve.

Allegations of professional misconduct by EOIR Judges should
be referred to the Department's Office of Professional
Responsibility (OPR) for resolution. It is not anticipated that
every transgression of the applicable laws and regulations will
result in a finding of professional misconduct or disciplinary
action. Whether a finding of misconduct by an EOIR Judge for
violating an applicable law(s) or regulation(s) is appropriate
will be determined through a reasonable and reasoned application
of the relevant law or regulation and will include consideration
of such factors as the seriousness of the transgression, whether
there is a pattern of improper activity, and the effect of the
improper activity on others or the administration of justice.

If, based on all the circumstances, OPR concludes that an EOIR
Judge violated an applicable law(s) or regulation(s) in the
course of the judge's official duties and engaged in professional
misconduct, OPR will recommend to EOIR that disciplinary action
be taken. Further, in some circumstances, violation of an
applicable law(s) may result in a criminal prosecution and

accompanying criminal penalties.


Assistant Chief Immigration Judge who chose them to participate
in this activity, and buy him a Mexican metal planter. The price
tag is still attached, and the value in U.S. dollars is approximately
$12. Can the Assistant Chief Immigration Judge keep this gift?
Answer: No, the two legal technicians who contributed toward the
purchase of the gift did not give it to commemorate a special and
infrequent training occasion, so the ACI may not keep the planter.

Inquiry: A Court Administrator has had a baby. The legal
technicians want to purchase a $50 flower arrangement for her.
Can the staff give, and Court Administrator accept, such a gift?
Answer: If the contributions are voluntary and nominal, and are

: not solicited by the supervisor, the Immigration Court staff may
purchase the flowers and a card for the Court Administrator and
her family. Likewise, the Court staff may hold a baby shower party
for the Court Administrator (without interfering with official court
business) and give gifts to her worth more than $10 since this is a
special and infrequent occasion.

IV. CONFLICTING FINANCIAL INTERESTS (5 CFR 2635.401 to 2635.403)

A. An EOIR Judge is prohibited from participating in any matter in which he has
a financial interest. In addition to an EOIR Judge’s own financial interest, certain
interests are considered his ("imputed" to him), such as those of his spouse, minor
children and business partners. However, an EOIR Judge may participate in such
a matter if he has a waiver.

DOJ Note: Immigration Judges (levels IJ-2 and above), Board
Members, and OCAHO ALJs are required to file public financial
disclosure reports pursuant to regulation every year. Financial
disclosure reports are used to identify potential or actual conflicts
of interest. If the ethics official charged with reviewing an EOIR
Judge’s report finds a conflict, she should, upon consultation with
the EOIR Judge's supervisor, decide on the remedy. Possible
remedies include disqualification, divestiture or a waiver of the
disqualification under 18 U.S.C. § 208 or 5 C.F.R. § 2635.502.
Before an EOIR Judge divests, he should find out if he is eligible
Sor a Certificate of Divestiture from the Office of Government
Ethics which will allow him to receive favorable tax treatment on

the sale of his asset. 5 C.F.R. § 2634.1001-1004.

MCIJC Note: In order to comply with the applicable regulation
and law regarding financial disqualification, EOIR Judges should

12


Judges should freely and willingly accept restrictions on their
conduct that might be viewed as burdensome by the ordinary
citizen, See Commentary under MCJC Canon 2A.

B. General principles. The following general principles apply to every
Executive Branch employee. Where a situation is not covered by the standards set
forth in 5 CFR part 2635, EOIR Judges shall apply the principles set forth below
in determining whether their conduct is proper.

(1) Public service is a public trust, requiring EOIR Judges to place
loyalty to the Constitution, the laws and ethical principles above
private gain.

(2) EOIR Judges shall not hold financial interests that conflict with
the conscientious performance of duty.

(3) EOIR Judges shall not engage in financial transactions using
nonpublic Government information or allow the improper use of
such information to further any private interest.

(4) EOIR Judges shall not, except as otherwise permitted by
regulation, solicit or accept any gift or other item of monetary
value from any person or entity seeking official action from, doing
business with, or conducting activities regulated by the Judge's
agency, or whose interests may be substantially affected by the
performance or nonperformance of the Judge's duties.

(5) EOIR Judges shall put forth honest effort in the performance of
their duties. .

(6) EOIR Judges shall not knowingly make unauthorized
commitments or promises of any kind purporting to bind the
Government.

(7) EOIR Judges shall not use public office for private gain.

(8) EOIR Judges shall act impartially and not give preferential
treatment to any private organization or individual.

(9) EOIR Judges shall protect and conserve Federal property and
shall not use it for other than authorized activities.

(10) EOIR Judges shall not engage in outside employment or

2


of the party for whom the EOIR Judge testifies. Accordingly, an
EOIR Judge should not offer to appear at a proceeding to testify as
a character witness. See Commentary under MCJC Canon 2B.

Inquiry: An INS Special Agent and personal friend of an
Immigration Judge is being sued civilly (under Bivens) by a lawful
permanent resident who allegedly was roughed up by another INS
agent. The plaintiff claims that the Special Agent was present
when this happened. The Special Agent denies this allegation; he
is not accused of participating in any malfeasance. The U.S.
Attorney's Office is representing the Special Agent in the suit. The
Immigration Judge has been asked to testify as a character
‘witness. Can the Immigration Judge testify on behalf of his friend?
Answer: The Immigration Judge may testify on behalf of his
Friend, the Special Agent, in his personal capacity. His position as
Immigration Judge is irrelevant to the content of his potential
testimony. An Immigration Judge should not use his official title
for private gain (or that of his family, friends or associates), so the
Sederal attorney must determine if the Immigration Judge is the
best suited character witness for the Special Agent, or if his official
title - which will have to be used if only identification purposes
when taking the stand - will have an adverse effect on the case, as
it would give the appearance of an unfair or heavy-handed
advantage to the government.

Inquiry: Two Immigration Judges are served with subpoenas to
testify as character witnesses on behalf of a co-defendant ina
Sederal criminal fraud case. The Judges know the defendant, in the
most part, in the context of their official duties. Can the
Immigration Judges testify?

Answer: The U.S. Attorney’s Office can move to quash the
subpoenas based on the Departmental policy memorandum, and
because the co-defendant failed to comply with the Touhy
regulations (regulations on production or disclosure of documents
or testimonial evidence in federal and state proceedings at 28
C.F.R. Part 16). The Immigration Judges’ testimony could be
given more credence by the jury because of their official position.
[Note: In this particular case, the District Court Judge denied the
motion to quash, but instructed the jurors not to give more weight
to the Immigration Judges’ testimony than to that of other
witnesses. ]

18


Ethics Manual

For Members of the Board of Immigration Appeals,
Immigration Judges, and Administrative Law Judges
Employed by the Executive Office for Immigration Review



immigration proceedings.

An EOIR Judge should determine whether an organization
of which the judge is a member practices invidious discrimination.
When an EOIR Judge determines that an organization to which the

judge belongs engages in invidious discrimination that would
preclude membership under the Standards of Conduct, the EOIR
Judge is permitted, in lieu of resigning, to make immediate and
continuous efforts to have the organization discontinue its
invidiously discriminatory practices. If the organization fails to
discontinue its invidiously discriminatory practices as promptly as
possible (and in all events within one year of the judge's first
earning of the practices), the EOIR Judge should resign from the
organization. See Commentary under MCJC Canon 2C.

Il. GIFTS FROM OUTSIDE SOURCES (5 CFR sections 2635.201 to 2635.205)

A. An EOIR Judge may not solicit or accept a gift given because of his official
position or from a prohibited source to include anyone who:

(1) Has or seeks official action or business with EOIR;
(2) Is regulated by EOIR;

(3) Has interests that may be substantially affected by the
performance of an EOIR Judge’s official duties; or

(4) Is an organization composed mainly of persons described
above. .

MCIC Note: A gift to an EOIR Judge or an EOIR Judge's spouse
or minor child may lead a reasonable person to question the EOIR
Judge’s impartiality and the integrity of the office and might
require disqualification of the EOIR Judge where disqualification
would not otherwise be required. See Commentary under MCJC
Canon 4D (5)(b)-().

Inquiry: After years of working together, a contract interpreter
gives an Immigration Judge an intricate metal ornament. ‘from
Lebanon as a holiday gift, in celebration of their shared ethnic
origin. Can the Immigration Judge accept the ornament?
Answer: If the value of the ornament is less than $20, the
Immigration Judge may keep it. He also should remind the

5


legally interested in a proceeding, or their lawyer, a full right to be -
heard according to law. However, an EOIR Judge should not
engage in ex parte communications prohibited by law. See MCJC
Canon 3B(7).

Membership of an EOIR Judge in an organization that
practices invidious discrimination, at a minimum, may give rise to
perceptions that the judge’s impartiality is impaired. Whether an
organization practices invidious discrimination is often a complex
question to which EOIR Judges should be sensitive. The answer
cannot be determined from a mere examination of an
organization’s current membership rolls but rather depends on the

* history of the organization’s selection of members and other
relevant factors, such as that the organization is dedicated to the
preservation of religious, ethnic or cultural values of legitimate
common interest to its members, or that it is in fact and effect an
intimate, purely private organization whose membership
limitations could not be constitutionally prohibited. See New York
State Club Ass’n. Inc. v. City of New York, 487 U.S. 1 (1988);
Board of Directors of Rotary International v. Rotary Club of
Duarte, 481 U.S. 537 (1987); Roberts v. United States Jaycees,

468 U.S. 609 (1984). Other relevant factors include the size and
nature of the organization and the diversity of persons in the locale
who might reasonably be considered potential members. Thus, the
mere absence of diverse membership does not by itself demonstrate
invidious discrimination unless reasonable persons with
knowledge of all the relevant circumstances would expect that the
membership would be diverse in the absence of invidious
discrimination. Absent such factors, an organization is generally
said to discriminate invidiously if it arbitrarily excludes from
membership on the basis of race, color, religion, sex, sexual
orientation, national origin, age, or handicaps, persons who would
otherwise be admitted to membership.

An EOIR Judge’s membership in an organization that
practices invidious discrimination gives the appearance of
impropriety. In addition, it would be a violation of an EOIR
Judge's obligation to avoid impropriety and the appearance of
impropriety and comply with the law by arranging a meeting at a
club that the EOIR Judge knows practices invidious
discrimination. Moreover, public manifestation by an EOIR Judge
of the judge’s knowing approval of invidious discrimination on any
basis gives the appearance of impropriety and diminishes public
confidence in the integrity and impartiality of the EOIR Judges and

4


The professors who invited her do not have interests which may be
affected substantially by the performance of her official duties.

The Immigration Judge would be compensated (same salary
offered to all part-time professors). The class would not conflict
with regular working hours. Can the Immigration Judge teach the
course?

Answer: Yes, the Immigration Judge may teach the course since it
is offered by an accredited law school, the only time her official
title would be used would be in a brief biographical profile (which
would include other relevant professional experience and would be
similar to the information provided on other professors), she
would not be using official time or resources (including the
assistance of clerical staff) in the pursuit of this activity, and she
would not disclose nonpublic information. The Immigration Judge
must make a disclaimer at the first lecture to the effect that the
views expressed are her own, and do not necessarily reflect those
of the Department of Justice.

I. Fundraising activities. An EOIR Judge may engage in fundraising in her
personal capacity as long as she does not solicit from subordinates or persons
having business with the Department, and she does not use her official title or
position. In addition, soliciting should not be done on government property.

J. An EOIR Judge may not engage in fundraising, including active participation
in a fundraiser, in her official capacity unless authorized by statute, executive
order, regulation or agency determination. The only authorized fundraising in the
Department is on behalf of the Combined Federal Campaign. However, an EOIR
Judge may be authorized to give an official speech at a fundraising event, if the
circumstances are appropriate, even though-this constitutes participating in a
fundraiser.

Inquiry: One of the legal technicians is active in AIDS
fundraising. She has signed up for a walk-a-thon, and is seeking
contributions from the Immigration Court staff. Can she do this?
Answer: Fundraising should be done after working hours, and
employees should not solicit from subordinates. Although there
are regulatory prohibitions against fundraising in Government
Services Administration-leased space (with the sole exception of
the Combined Federal Campaign), employees could post
information on their fundraising efforts on an internal bulletin
hoard (located in the lunchroom, for example), so that
participation in the fundraising would be voluntary.

25


F. Participation in professional associations. (Reserved in the regulation).

DOJ Note: See Deputy Attorney General Memorandum on
Participation in Bar Activities by Justice Department Attorneys.

G. Teaching, speaking and writing. Generally, an EOIR Judge may not be
compensated for speaking or writing that relates to his official duties. A subject
matter relates to an EOIR Judge’s official duties if it deals in significant part with
a matter to which the Judge is presently assigned or has been assigned in the last
year; any ongoing or announced policy, program or operation of the Department;
or in the case of a non-career employee, the general subject matter area primarily
affected by the programs and operations of the Department. 5 C.F.R.§ 2635.807.
Under 5 C.F.R. § 3801.103, most components in the Department are designated as
separate. This means that an EOIR Judge would only be prohibited from
speaking or writing on a subject matter related to the policies, programs or
operations of his component, not the entire Department.

H. There is an exception for teaching certain courses, even if the course relates to
an EOIR Judge’s official duties, provided the course requires multiple
presentations and:

(1) is offered as part of a regularly established curriculum of an
institution of higher education; an elementary or secondary school;
or a program sponsored and funded by the Federal Government or
by a state or local government which is not offered by an entity
described above. An EOIR Judge may accept compensation for
teaching a course provided it meets these requirements. An
employee in a non-career position above GS-15 must have advance
authorization before engaging in teaching for compensation. 5
C.F.R. § 2636.307

(2) When engaging in speaking or writing in a private capacity, an
EOIR Judge may not use nonpublic information, nor should there
be any use of his official title except as part of other biographical
information or for an article in a scientific or professional journal
where there is a disclaimer. An EOIR Judge may not use official
time or that of another employee to prepare materials. Some
components require advance review and clearance for certain
written work and speeches.

Inquiry: An Immigration Judge is asked to teach a course on

immigration law at a local university. She is invited because of
her expertise in the field, and not because of her official position.

24


ETHICS HANDBOOK FOR IMMIGRATION JUDGES, MEMBERS OF THE BOARD
OF IMMIGRATION APPEALS, AND ADMINISTRATIVE LAW JUDGES EMPLOYED
BY THE EXECUTIVE OFFICE FOR IMMIGRATION REVIEW

I. BASIC OBLIGATION OF PUBLIC SERVICE (5 CFR sections 2635.101 to 2635.107)

A. Public service is a public trust. Each EOIR Judge has a responsibility to the
United States Government and its citizens to place loyalty to the Constitution,
laws and ethical principles above private gain. To ensure that every citizen can
have complete confidence in the integrity of the Federal Government, each judge
shall respect and adhere to the principles of ethical conduct set forth in this
section, as well as the implementing standards contained in this part and in
supplemental agency regulations.

DOJ Note: Most of the individuals who appear before EOIR in
proceedings are non-citizens. EOIR Judges should respect and
adhere to the principles of ethical conduct to ensure that both
citizens and noncitizens can have complete confidence in the
integrity of the Federal Government.

MCJC Note !: Public confidence in EOIR Judges is enhanced
when EOIR Judges act in a responsible and proper manner. Thus,
an EOIR Judge should strive to avoid all impropriety and the
appearance of impropriety. The admonition against behaving with
impropriety or the appearance of impropriety applies to both the
professional and personal conduct of an EOIR Judge. Because it
is not practicable to list all possible improprieties, the admonition
is necessarily cast in general terms that extend to conduct by EOIR
Judges that damages public confidence in the integrity and
impartiality of immigration proceedings and EOIR Judges. Actual
improprieties include violations of law or specific provisions of the
Standards of Conduct. Whether particular circumstances create
an appearance that the law or the Standards of Conduct have been
violated shall be determined from the perspective of a reasonable
person with knowledge of the relevant facts. An EOIR Judge holds
a position of public trust and authority. Accordingly, EOIR Judges
can expect to be the subject of public scrutiny. Therefore, EOIR

1 The Model Code of Judicial Conduct is not binding on EOIR Judges, but its canons and
commentary present aspirational goals.

The MCIJC Notes have been edited for clarity. The MCJC Notes also have been
modified to refer to EOIR Judges and the Standards of Conduct in place of language relating to
judges generally and the MCJC. The entire, unedited text of the MCJC may be found at Tab 5.


MCIC Note: When an EOIR Judge is aware of a potential
question with respect to the judge's impartiality, the judge should
inform the parties to the proceeding of the issue so that they can
make an informed decision prior to going forward before the
particular EOIR Judge. See Commentary under MCJC Canon
3E(1).

VI. SEEKING OTHER EMPLOYMENT (5 CFR sections 2635.601 to 2635.606)

A. An EOIR Judge may not take official action on a matter which can affect the
financial interests of an organization with which she is negotiating or has an
arrangement for future employment. The remedy is disqualification. See 18
US.C."§ 208.

B. An EOIR Judge may have to disqualify herself from working on a matter
when she is merely seeking employment, but before actually negotiating for a job.
An EOIR Judge would be considered to be seeking employment if she sends her
resume to firms or if she is approached by someone about a position with a firm
and she responds that she is interested.

Inquiry: An Immigration Judge is approached by several local
law firms about possible employment -- he has expressed his plans
to leave the bench. He turned down all offers outright, save for
one, which he is considering. He has three cases pending before
him involving attorneys from the law firm. Should the Immigration
Judge recuse himself even though he was not the one who
approached the law firm seeking employment?

Answer: Yes. Pursuant to the regulations on seeking future
employment, an EOIR Judge is considered to be seeking
employment if he engages in negotiations with another firm or
person. Negotiations mean a discussion or communication
conducted with a view toward reaching an agreement regarding
possible employment, even if specific terms and conditions of
employment are not discussed. It does not matter who initiates the
negotiations, the firm or the EOIR Judge. The determining factor
is that the judge is considering the employment overture, and has
not rejected it. The Immigration Judge must recuse himself from
all cases brought by the law firm while pondering the employment
offer. Once he accepts the offer, he clearly can no longer work on
any of the cases.

C. Post-employment restrictions. There are statutory prohibitions on former
EOIR Judges that generally prevent them from "switching sides” after leaving the

15


legal technician to distribute the order form copies and collect the
orders a week later. When the cookies arrive, he stores them in the
copier room and asks the legal technician to help him distribute
the cookie boxes and collect the money. Can the Immigration
Judge do this?

Answer: No. The Immigration Judge cannot use official time and
resources to perform activities other than those required in the
performance of official duties. Also, he cannot use a subordinate’s
time in pursuing an outside activity. He cannot ask his secretary
to sell the cookies either.

Inquiry: One of the supervisory legal technicians is an oldies
* music trivia expert. He asks the Immigration Court staff to tune to
a radio station which is holding a trivia contest, and dial the
telephone number of the station whenever a trivia question is
posed (he would provide the answer). Can the Immigration Court
staff participate in this contest during working hours?
Answer: No. Court staff should use official time to perform their
duties, not to participate in radio contests. The supervisory legal
technician could be subject to disciplinary action for asking other
staff to neglect their duties.

VIII. OUTSIDE ACTIVITIES (5 CFR sections 2635.801 to 2635.809)

A. An EOIR Judge should not engage in any outside employment or other outside
activity that conflicts with her official duties. Department of Justice employees
are prohibited from engaging in outside employment that involves criminal
matters, the paid practice of law and matters in which the Department is or
represents a party. The Deputy Attorney General may waive these prohibitions.
An EOIR Judge must obtain written approval to engage in the unpaid practice of
law and outside employment that relates to her component’s area of
responsibility. 5 C.F.R. 3801.106.

MCIJC Note: An EOIR Judge should regularly reexamine the
avocational activities and organizations with which the judge is
affiliated to ensure that these activities do not lead to the
perception of partiality on the part of the EOIR Judge. See
Commentary under MCJC Canon 4C(3)(a).

Inquiry: In order to pay her son’s tuition costs, a Language
Specialist decides to take a part-time job at a department store.
Can she undertake this outside activity?

Answer: Yes. EOIR employees may hold part-time jobs or

21


This Manual is divided into four parts. Part one consists

of the Ethics Handbook for Immigration Judges, Members of the

Board of Immigration Appeals, and Administrative Law Judges

Employed by the Executive Office for Immigration Review. Part

two contains the Standards of Conduct for Executive Branch
Employees and the Supplemental Standards of Conduct for
Department of Justice Employees. Part three provides various
Departmental memoranda and orders which bear on ethical
considerations EOIR Judges may encounter. Part four is a
reproduction of the American Bar Association (ABA) Model Code of
Judicial Conduct.

The Handbook summarizes the various laws and regulations
that govern the conduct of all Department of Justice employees as
they apply to the specific conduct and activities of EOIR Judges.
Citations have been included after each provision in the Handbook
to enable you to consult the full text of the law or regulation
when you have a specific question.’ The Handbook also contains
commentary and examples of ethical dilemmas actually presented to
EOIR that provide additional guidance.

The ethics laws and regulations condensed in the Handbook
include the conflict of interest statutes found at 18 U.S.C. §§
202 to 209, Executive Order 12674 on Principles of Ethical

Conduct for Government Officers and Employees (as amended by

2 You also may consult the Ethics Handbook for Department
of Justice employees which summarizes the various laws and
regulations governing the conduct of all Department of Justice
employees for additional guidance on specific questions.

2


at the organization’s annual banquet. The Board Member must
consult the component before accepting such an award.

(5) Free attendance, food, refreshments and materials provided at a
conference or widely attended gathering or certain other social
events which an EOIR Judge attends in his official capacity, with
approval.

a. Conferences and Other Events. When an EOIR Judge is
participating in his official capacity as a speaker or panel member
at a conference or other event, he may accept an offer of free
attendance, including a meal or refreshments, on the day of his

+ presentation. The EOIR Judge’s participation in the event on that
day is viewed as a customary and necessary part of his duties and
is not considered a gift to him or the Department. 5 C.F.R. §
2635.204(g)(1).

b. Widely Attended Gatherings. When it is determined that an
EOIR Judge’s attendance at al] or an appropriate part of an event is
in the interest of the Department because it will further agency
programs and operations, the Judge may accept an unsolicited gift
of free attendance from the sponsor of the event if the event is
found to be a widely attended gathering. A gathering is widely
attended if a large number of people with mutual interests are
expected to attend and the event is open to members from
throughout a given industry or profession.

A determination that an EOIR Judge’s attendance at a
widely attended gathering is in the interest of the Department shall
be made orally or in writing. If the person extending the invitation
has interests that may be substantially affected by the performance
or nonperformance of the Judge’s official duties, or is an
association or organization the majority of whose members have
such interests, the determination must be made in writing.

Inquiry: A Board Member is invited to the Annual AILA
Conference, and it is determined that it is in the component's
interest that she attend the event. Can she partake of dinner and
refreshments?

Answer: Yes, the Board Member may attend the conference and
enjoy the same benefits (dinner and refreshments, materials,
attendance fee) as other speakers or attendees. She.cannot,
however, accept meals or gifts not offered to the rest of the

8


301-10.121-124. Ifan EOIR Judge volunteers to take a later flight where the
flight is over booked, he may keep any bonus as long as the delay does not
interfere with the conduct of his duties and he does not charge the Government
for additional costs. 41 C.F.R. § 301-10.116-117. Frequent flyer points awarded
because of official travel may be used only for future official travel. An EOIR
Judge should not co-mingle points accrued from official travel with those from

personal travel. 41 C.F.R. § 301-53.
Ill. GIFTS BETWEEN EMPLOYEES (5 CFR sections 2635.301 to 2635.304)

A. An EOIR Judge may not give, or solicit a contribution for, a gift to an official
superior, and she may not accept a gift from an employee receiving less pay than
her.

B. On annual occasions where gifts are traditionally given, such as birthdays,
Christmas, and Boss’s Day, an EOIR Judge may give the following to an official
superior:

(1) Items, other than cash, valued at $10 or less;

Inquiry: Motivated by the holiday spirit, a legal technician gives a
Board Member a poinsettia plant purchased for $15. Can the
Board Member accept it?

Answer: No, the Board Member may not accept the poinsettia
since it exceeds the $10 limit for gifts from a subordinate to a
supervisor.

(2) Items such as food and refreshments to be shared in the office;
and ~

(3) Personal hospitality provided at a residence which is of a type
and value customarily provided by the employee to personal
friends.

Inquiry: A Board staff attorney is hosting a holiday party in his
home. May he invite one of the Board Members to attend this
social function and may the Board Member attend?

Answer: The Board staff attorney may invite the Board Member to
a holiday party in his home, and the Board Member may attend.

Inquiry: An Immigration Judge and her husband are invited to
attend a law firm's holiday party (cocktail hour and buffet dinner).
The firm’s practice is primarily business immigration, so it seldom

10


FOREWORD

Immigration Judges, Members of the Board of Immigration
Appeals, and Administrative Law Judges employed by the Executive
Office for Immigration Review (EOIR) play an essential role in
ensuring that matters delegated to them are conducted honorably,
fairly and in accordance with the law.’ Deference to the
judgments and rulings of EOIR Judges depends upon public
confidence in their integrity and impartiality. Public
confidence in the integrity and impartiality of the EOIR Judges
is, in turn, maintained by the adherence of each EOIR Judge to
the law and to applicable ethics regulations. Conversely,
violation of the law or applicable ethics regulations diminishes
public confidence in EOIR Judges and the proceedings which they
are authorized to conduct. Accordingly, EOIR Judges should
participate in establishing, maintaining, and enforcing, and
should observe, high standards of -conduct in order to preserve
the integrity of their offices. Toward that end, we have

developed this first edition of the Ethics Manual for Immigration

Judges, Members of the Board of Immigration Appeals, and

Administrative Law Judges Employed by the Executive Office for

Immigration Review.

+ Hereinafter, the term "EOIR Judge" will be used to
refer collectively to an Immigration Judge, a Member of the Board
of Immigration Appeals, and an Administrative Law Judge within
EOIR.


Inquiry: Several Immigration Judges are asked if they can help to
rate Trial Attorneys - an INS District Counsel is doing the annual
performance evaluations and wants input from the Judges on the
Job performance of the Trial Attorneys. Can the Immigration
Judges assist the INS District Counsel in evaluating Trial
Attorneys?

Answer: In response to the query about the Trial Attorneys,
Immigration Judges may, if they so wish, informally provide
information to the District Counsel on the job performance of the
Trial Attorneys. They are not, however, under any obligation to
offer rating information to the INS. It is the Service's
responsibility to rate its attorneys. The District Counsel can come
into the courtrooms and observe the Trial Attorneys in action.

Inquiry: An Immigration Judge is asked if he can rate a private
practitioner by submitting a letter of reference to Martindale-
Hubbell. May the Immigration Judge write such a letter?
Answer: Although the regulations in 5 C.F.R. allow an
Immigration Judge to write a letter on behalf of someone who
practices before him -- something which the Model Rules of
Judicial Conduct advise against -- and use official stationery and
his job title, filling out a rating form or writing a letter to
Martindale-Hubbell would be an endorsement contrary to
regulation. The regulations on misuse of position are very much
against endorsements, particularly those of a commercial nature.
Letters of reference are a narrow, circumscribed exception to the
general prohibition. Martindale-Hubbell is a commercial
enterprise which assists practitioners in advertising their talents
and expertise, so a letter rating the private practitioner would be
an endorsement by a federal employee. Such letter would give the
appearance of government sanction to a private, commercial
activity.

B. Use of non-public information. An EOIR Judge may not engage ina
financial transaction using nonpublic information nor allow the use of such
information to further his private interests or those of another. Nonpublic
information is information an EOIR Judge gains on the job which has not been
made available to the general public and is not authorized to be made available
upon request.

Inquiry: A Board Member is preparing a speech for an
immigration practitioners group. She is not giving this speech as
part of her official duties. After months of working on a complex

19


U. S. Department of Justice

Executive Office for Immigration Review

Office of the Director

Director 5107 Leesburg Pike, Suite 2400
Falls @hurch, Virginia 22041

April 2001

MEMORANDUM TO: All Board Members, Immigration Judges, and
Administrative Law Judges

FROM: Kevin D. Rooney
Director
SUBJECT: Ethics Manual

In December 1999, the Department’s Office of Professional
Responsibility (OPR) notified the Executive Office for
Immigration Review (EOIR) of its intention to draft an ethics
manual for EOIR adjudicators (including Board Members,
Immigration Judges, and Administrative Law Judges). During the
ensuing months, representatives from OPR, EOIR (including several
Immigration Judges and Board Members, as well as representatives
from the Office of the Chief Administrative Hearing Officer), and
the Department’s Ethics Office worked together to refine OPR’s
initial draft. This Ethics Manual is the end product of those
efforts, which involved many hours of work in the past year.

On January 17, 2001, Attorney General Janet Reno approved
the Ethics Manual for distribution. This Manual now more
accurately reflects EOIR’s concerns with regard to a standard of
conduct for EOIR adjudicators. The Manual is best described as
an annotated version of the Standards of Conduct for Executive
Branch Employees (found at 5 CFR Part 2635 et seqg.), summarizing
the various laws and regulations that govern the conduct of
Department of Justice employees as they apply to the specific
activities of EOIR. Each section of the Manual includes case
examples for easy reference. In addition, the Manual contains
references to the American Bar Association’s Model Code of
Judicial Conduct intended to serve as aspirational guidance on
certain issues.

The Manual does not impose any additional standards or
requirements upon EOIR adjudicators but may serve as a useful
guide for anyone seeking guidance on particular ethical issues.
As always, if you have specific ethics questions you would like
answered, you should contact EOIR’s Office of the General
Counsel.


(6) Attend and be active at political rallies and meetings.

(7) Attend political fundraisers.

(8) Join and be an active member of a political party or club.
(9) Sign nominating petitions.

(10) Campaign for or against referendum questions, constitutional
amendments and municipal ordinances.

(11) Distribute campaign literature in partisan elections.
(12) Make campaign speeches for candidates in partisan elections.
(13) Campaign for or against candidates in partisan elections.
(14) Hold office in political clubs and parties.

B. EOIR Judges may not:
(1) Be a candidate in a partisan election.
(2) Engage in political activity while on duty, in a government
office, while wearing an official uniform or using a government
vehicle.
(3) Solicit political contributions from the general public or collect
contributions except from a fellow member of a federal labor or

employee organization who is not a subordinate.

(4) Solicit or discourage the political activity of anyone who has
business with the Department.

(5) Use official authority or influence to interfere with an election.
(6) Wear political buttons while on duty.

DOJ Note: In 1993, Congress amended 18 U.S.C. § 603 which
governs political contributions by Federal employees to their
employer or employing authority. The original statute had been

interpreted as potentially prohibiting all executive branch
employees from making political contributions to the reelection

27


participate in outside activities as long as this does not conflict
with their official duties. Since this job is not related to
immigration, the Language Specialist does not need to seek agency
approval.

Inquiry: The same Language Specialist is offered a part-time
Position (translating documents) by an attorney who has cases
before the Immigration Court. Can she accept this job offer?
Answer: Probably not. As a general rule, employees who are
interested in paid or voluntary activities related to immigration (or
their official duties, such as computer programing, interpreting,
etc.) must seek EOIR approval. Since this job is related to

* immigration (and to her official duties at the Court), she would
have to seek authorization from EOIR. The documents she would
have been translating might end up before the Immigration Court.
Even if the Language Specialist is authorized to work at the
attorney's law office, she could not help aliens fill out their asylum
applications, nor make suggestions based on her Immigration
Court experience (she would truly be in the middle of a conflict of
interests situation, and could even be disclosing nonpublic
information).

B. Representation before federal agencies. An EOIR Judge may not represent
anyone before an agency or court of the Federal Government, with or without
compensation, on a matter in which the United States is a party or has a
substantial interest. This prohibition applies whether the EOIR Judge renders the
Tepresentation personally or shares in compensation from someone else’s
representation. See 18 U.S.C. §§ 203 and 205.

Inquiry: An Immigration Judge is invited to join the Board of
Directors of a religious/social organization. This organization
receives substantial funding from HUD. Can the Immigration
Judge join the Board?

Answer: After examining the mission statement, by-laws, financial
records and Board of Directors minutes, the Immigration Judge
may be allowed to join the Board subject to the following
restrictions: (1) he cannot sign letters addressed to HUD (or other
Jederal agencies), nor act as the organization's representative
when seeking federal grants; (2) he cannot use his official title in
matters related to his membership on the Board but unrelated to
his federal employment (the exception to this rule would be if the
job title is mentioned in a biographical profile of all Board
Members together with other information about the Immigration

22


contract interpreter about the regulatory prohibitions on the
acceptance of gifts. Immigration Judges and other EOIR Judges
should not accept gifts from individuals in proceedings, INS Trial
Attorneys, or contract interpreters.

Inquiry: A Court Administrator is leaving EOIR to become a FBI
agent. One of the attorneys who practices before the Immigration
Court offers to bring a mariachi band to play during the farewell
lunch (to which all court staff and other members of the Court
community are expected to attend). Can EOIR accept the gift of
the band?
Answer: No. Although the Court Administrator is leaving the
‘ component, a band is not a nominal gift from an outside,
prohibited source, so to accept it would create the appearance of

impropriety.

B. A gift does not include items such as publicly available discounts and prizes,
commercial loans, food not part of a meal such as coffee and donuts, and items of
little value such as plaques and greeting cards.

Inquiry: A Board Member attends a symposium sponsored by an
immigration advocacy group. One of the speakers announces that
there will be a ten-minute break after his presentation, and that
coffee and pastries will be served. Can the Board Member have
coffee and a pastry?

Answer: Yes, she may partake of the refreshments offered to all
symposium participants.

C. Unless the frequency of the acceptance of gifts would appear to be improper,
an EOIR Judge may accept:

(1) Gifts based on a personal relationship when it is clear that the
motivation is not his official position.

Inquiry: A private attorney invites an Immigration Judge to attend
his wedding. They do not have a personal relationship; the judge
only knows the attorney from performing her official duties as an
Immigration Judge. The Judge would be interested in attending
since this is a traditional wedding in Chinatown. Can she attend
the wedding and secure an invitation for her husband as well?
Answer: One of the exceptions to the “no gifts from prohibited
sources” rule is when the gifts are based on a personal
relationship. 5 CFR 2635.204(b). There is no personal

6


conference's attendees or speakers.

(6) Gifts based on an outside business relationship, such as travel
expenses related to a job interview.

(7) An EOIR Judge should return gifts not meeting the exceptions
or contact the Deputy Designated Ethics Officer on how to dispose
of them. Perishable items may be given to charity or shared by the
office, with approval.

Inquiry: The chairperson of the Immigration Section of the
Arizona State Bar used to work at the INS with several
Immigration Judges. When these judges visit Arizona, she presents
them with individual “Welcome to Phoenix” gift bags. The bags
contain edible products, such as chips and salsa, and their
estimated value is $26.50. Can the Immigration Judges accept
these gifts?

Answer: Under the gift rules, an EOIR Judge may accept a gift
worth more than $20 if it is from a personal friend. In this case,
however, the gift bags come from a prohibited source -- the
Immigration Section of the Bar — and are worth more than $20. If
refusing or returning the gift bags is not feasible, the Immigration
Judges may bring -- if approval is granted -- the gift bags to work
and share their contents with the staff — this is the “perishable
gift” exception. The Immigration Judges can write to the
chairperson to thank her for the gifts, but remind her about the
general “no gifts” rule and its $20 maximum value exception.

Inquiry: A family who is granted asylum relief (and whose case
the INS is not appealing) sends a floral arrangement to the
Immigration Court where their case was heard. Can the
Immigration Court accept such gift?

Answer: The Court Administrator may accept the flowers on
behalf of the Court, and place them in one of the Immigration
Court’s work areas for the enjoyment of all of the staff.

D. Some airlines encourage those purchasing tickets to join programs that award
free flights and other benefits to frequent fliers. Any such benefit earned on the
basis of Government-financed travel belongs to the agency rather than to the
EOIR Judge and may be accepted only insofar as provided under 41 CFR part
301-53. An EOIR Judge may not retain benefits from commercial sources,
including bonus flights, if they result from his official travel. In most cases, an
EOIR Judge may not fly first class when on official business. 41 C.F.R. §

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