Enhancing Quality and Timeliness in Immigration
Removal Adjudication
Lenni B. Benson & Russell R. Wheeler
This draft report was prepared for the consideration of the Administrative Conference of the United
States. The views expressed are those of the authors and do not necessarily reflect those of the members
of the Conference or its committees. 



Lenni Benson expresses appreciation to New York Law School for support enabling her to undertake this
assignment. Russell Wheeler expresses appreciation to the Jerome Levy Foundation for a grant to the Governance
Institute, and to Brookings Institution’s Governance Studies Program, both of which have enabled him to undertake
this assignment. Many individuals also generously contributed to the creation of this report, unless requesting
anonymity, we have named them in appendices.

Benson and Wheeler, Report for the Administrative Conference of the United States

June 7, 2012
Page 2

Table of Contents
ENHANCING QUALITY AND TIMELINESS IN IMMIGRATION REMOVAL ADJUDICATION .......................................... 1
I. PREAMBLE .......................................................................................................................................................... 1
II.

FRAMEWORK FOR ANALYSIS AND METHODS ............................................................................................... 1
A.
B.

FRAMEWORK .......................................................................................................................................................1
METHODS...........................................................................................................................................................2
1.
Literature and other information sources ...................................................................................................2
2.
Interviews ...................................................................................................................................................2
3.
Survey .........................................................................................................................................................3
4.
Consultation within the Administrative Conference and Related Groups ..................................................4
C.
OTHER GENERAL COMMENTS ON THIS REPORT ..........................................................................................................4
III.

IMMIGRATION REMOVAL ADJUDICATION: OVERVIEW OF ORGANIZATION AND PROCESSES ....................... 5
A.
B.

DEPARTMENT OF HOMELAND SECURITY....................................................................................................................5
THE EXECUTIVE OFFICE FOR IMMIGRATION REVIEW ....................................................................................................5
1.
Immigration Courts .....................................................................................................................................6
2.
Board of Immigration Appeals ....................................................................................................................8
C.
REMOVAL ADJUDICATION PROCESSES.......................................................................................................................8
1. Forms of Removal .............................................................................................................................................9
2.
Immigration Courts ...................................................................................................................................12
3.
Board of Immigration Appeals ..................................................................................................................21
4.
U.S. Courts of Appeal ................................................................................................................................22
IV.

FRAMEWORK AND FOCUS OF ANALYSIS ..................................................................................................... 22
A. THE BASIC PROBLEM ................................................................................................................................................24
1. Workload ........................................................................................................................................................24
2. Consequences .................................................................................................................................................27
3. Prospects for the Future .................................................................................................................................29
B.
PRINCIPAL POLICY EMPHASIS ................................................................................................................................30

V. PROPOSALS FOR CHANGE AND UNDERLYING ANALYSES ................................................................................. 31
A.

RESOURCE ENHANCEMENT ...................................................................................................................................31
1. Temporary Immigration Court Personnel .......................................................................................................32
2. Refined Data on Immigration Court Caseloads ..............................................................................................33
B.
DIRECT SOME EOIR WORK TO OTHER AGENCIES .....................................................................................................36
1.
DHS Review of NTAs .................................................................................................................................37
2.
Preliminary Administrative Adjudication of Asylum Applications.............................................................39
3.
Keeping DHS Appeals to the BIA within DHS ............................................................................................50
4.
Relieving Judges and Immigration Court Staff of Certain Case-Processing Related Tasks .......................53
C.
PROCESS MODIFICATION .....................................................................................................................................55
1.
Immigration Adjudication Case Management ..........................................................................................55
2.
BIA Case Management Procedures ........................................................................................................100
3.
Court Performance and Immigration Court Management .....................................................................104
4.
Restructuring ..........................................................................................................................................117
VI.

CONCLUSION ............................................................................................................................................ 118

Benson and Wheeler, Report for the Administrative Conference of the United States

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Enhancing Quality and Timeliness in Immigration Removal
Adjudication
I. PREAMBLE
This draft report responds to a September 2010 Administrative Conference of the United States
(ACUS) request for a study of immigration removal (formerly deportation) adjudication in the
Executive Office for Immigration Review (EOIR). EOIR is a unit of the Department of Justice
(DOJ) that contains the immigration courts and the Board of Immigration Appeals (BIA). This
draft report concerns EOIR’s removal adjudication of non-citizens charged by the Department of
Homeland Security (DHS) with removability from the United States.
Based on proposals that we submitted, independently of one another, and follow-up discussion
with Administrative Conference staff, we signed a joint research contract in March 2011
(modified slightly in August 2011). We agreed to formulate recommendations for the
Conference’s consideration about:
the origin of removal cases in the DHS (without assessing DHS prosecution policies per se);
legal representation for those in removal proceedings;
immigration court case management and court management practices, including the courts’
use of video hearings;
BIA decision-making; and
additional topics if possible.
We submitted recommendations to the ACUS Committee on Adjudication. We have inserted
those recommendations, reformatted and sometimes paraphrased, at the outset of Section V’s
subsections (followed in each instance by “Analysis”). The Adjudication Committee revised
some of those recommendations in preparing the recommendations for consideration by a June
14 and 15 ACUS plenary session. They are in a separate document available on the ACUS
Website.1

II.

Framework for Analysis and Methods

A.

Framework

Three broad approaches are available for a court system not fully meeting the three-pronged
standard of just, speedy, and economical determination of matters submitted to it. Those
approaches are to increase the system’s resources; to reduce demand for the system’s services;
and to change how it does its work, which may include changes in judicial selection and court
management, as well as structural reorganization. We operated on the assumption that Congress
would be extremely unlikely for the foreseeable future to increase significantly (if at all) the
resources for immigration removal adjudication agencies. Thus, this report reflects the principal
1

Available at http://www.acus.gov/research/the-conference-current-projects/immigration-adjudication/

Benson and Wheeler, Report for the Administrative Conference of the United States

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of “doing better with existing resources.” We also worked on the assumption that the current
statutory and regulatory framework governing removal adjudication is unlikely to change. Our
analysis and recommendations center on forum shifting and changes in some of the ways work is
managed in the removal adjudication process, and in the way the courts manage themselves.
Furthermore, given Administrative Conference staff preferences, we have not examined DHS
prosecution priorities or considered substantive changes in the nation’s immigration laws and
policies. We have recommended some seemingly technical changes to statutes and the Code of
Federal Regulations, but we have directed primary attention to practical changes that are within
the authority of EOIR or individual immigration courts and judges to implement, in some cases
with agreement of DHS. We have also identified some changes that are within DHS control. We
have referenced, and sometimes endorsed, others’ proposals for statutory changes.
The EOIR (and thus the immigration court system) is part of the executive branch, not the
federal judicial system authorized by Article III of the Constitution. Nevertheless, we have
sometimes looked to the nation’s state and federal courts for comparative analysis and
transferable methods, practices, and structures. The importance of the immigration courts’
mission and their size, geographic dispersion, and adversary procedures render them in some
ways more similar to judicial branch courts than executive branch adjudication agencies.

B.

Methods

1.

Literature and other information sources

Popular, academic, and government publications about immigrant removal adjudication have
informed our analyses, as has quantitative information about removal adjudication, namely
EOIR’s Statistical Year Books; reports of the Transactional Records Access Clearinghouse; and
data maintained by the Administrative Office of the U.S. Courts. In addition, EOIR’s Office of
Planning, Analysis, and Technology (OPAT) graciously produced two series of particularized
data runs—over twenty-three separate data sets—in response to our requests.
For most of the time this report was in production, the most recent EOIR data on removal
adjudication—in its Statistical Year Book and in the separate data runs—were for fiscal year
2010 (October 2009-September 2010). On February 21, 2012, EOIR released its FY 2011
Statistical Year Book. Wherever possible, given the June 7 deadline for this final report and
preparation for five Adjudication Committee meetings prior to that deadline, we have revised our
report to use 2011 Year Book data, and we asked OPAT to update three of the data sets it
provided earlier. Thus, this report contains an amalgam of data, mainly from 2011 and 2010.

2.

Interviews

We began our research in late April, 2011, with the first of a series of meetings with EOIR
Director Juan Osuna, complemented by interviews and discussions with other personnel at
EOIR’s headquarter. Later we spoke with judges and support personnel in ten immigration courts
around the country. The respective assistant chief immigration judge who supervised the
particular court arranged the interviews and participated in them. In addition to these principal
interviews, we also spoke informally with a few judges and others in EOIR.
Assistant Chief Immigration Judge Edward Kelly, an Adjudication Committee member, was our
liaison with the EOIR and the Office of the Chief Immigration Judge (OCIJ) in particular,

Benson and Wheeler, Report for the Administrative Conference of the United States

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including the assistant chief immigration judges with whom he cooperated in arranging our
interviews with judges in the several courts we visited. He was uniformly helpful and cheerful in
all aspects of our inquiry.
Early on, we also arranged to speak with officials in DHS agencies that initiate and prosecute
removal cases in the immigration courts and the BIA, and with DOJ officials who argue cases in
the courts of appeals. We also met with attorneys who represent respondents in removal
proceedings, both individual attorneys and members of groups providing representation pro bono
in various forms.
We spoke with officials of another high volume federal administrative adjudicative agency, the
Board of Veterans’ Appeals in the Department of Veterans Affairs and tried to meet with
officials of the Social Security Administration’s Office of Disability Adjudication and Review
but were unable to do so because of scheduling conflicts. Procedures in both agencies are quite
different from those in the immigration courts.
We promised those with whom we spoke that we would not quote them by name; we have
indicated position or affiliation when necessary to establish context.
Our research for this report hinged on the cooperation of EOIR and DHS’s immigration-related
components, and, subject to certain institutional constraints and the press of time and other
business, such cooperation was fully forthcoming.
Appendix 1 lists the agencies, offices, and immigration courts in which we conducted our
interviews, the number of interviewees, and the dates of our meetings.

3.

Survey

In January 2012, we distributed a twenty-nine item online survey to all immigration judges. OCIJ
officials alerted the judges to the survey and permitted them to respond to it if they wished.
EOIR officials insisted on vetting the questions in draft, which led to some questions’ deletion.
They also insisted that the survey be totally anonymous—precluding even data on the number of
judges on the responders’ courts or the length of their tenures as judges. As a result, we are
somewhat limited in the analysis we can derive from the responses. We acknowledge that the
survey responses in no way reflect any official position of the DOJ, EOIR, or any other agency
or organization.
The response rate was robust—181 judges–sixty-eight percent (68%) of the 265 judges listed on
the EOIR website as of early 2012. Not all of the judges who responded answered each of the
twenty-nine questions. Judges added 754 written comments. We of course don’t know how
representative if at all they are of the views of judges who did not add comments.
We were unable to ask questions that would have provided a detailed picture of how
representative those who completed the survey were of the entire population of judges. With a
sixty-eight percent (68%) percent response rate, though, we can assume a fairly high degree of
representativeness. Moreover, we were able to ask the judges to estimate whether their
respondent populations were “mostly detained”, “more detained than non-detained,” “roughly
half and half,” “more non-detained than detained,” and “mostly non-detained.” We collapsed the
responses into three groups, “more detained” “half and half” and “more non-detained.” The
responses closely track actual 2010 data that EOIR provided us; we grouped those data as “more

Benson and Wheeler, Report for the Administrative Conference of the United States

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Page 4

detained” (fifty-five percent (55%) and above) and “more non-detained” (forty-five percent
(45%) and below).

More detained
Roughly half and half
More non-detained

Survey estimate

EOIR data

25%
6%
68%

22%
7%
71%

EOIR and DHS officials declined out requests to survey immigration court administrators and
ICE trial attorneys.

4.

Consultation within the Administrative Conference and Related Groups

We consulted with ACUS staff and two related groups. One is the ACUS standing Committee on
Adjudication, under whose jurisdiction we conducted the study. We are grateful to committee
chairman Judge John Vittone and the committee members who met five times to consider our
analyses and proposed recommendations. ACUS also assembled a sixteen-member Removal
Adjudication Project Working Group of practitioners and scholars knowledgeable in
administrative and other forms of adjudication. We are grateful to those members who provided
comments. The members of both groups are in Appendix 2.
We submitted our first draft on December 19, revised it on January 12 for posting on the ACUS
Website and met with the Adjudication Committee on January 25. ACUS scheduled four
subsequent adjudication committee meetings in February through May to review portions of the
draft, which we revised and updated during the process. The various iterations of the report are
available on the ACUS Website.

5.

Comments on Interim Draft Reports

We received comments on our January 12 draft and some subsequent revised sections, and in
other contexts (Adjudication Committee meetings, for example) from various EOIR and DHS
officials (none of which represented official agency views); from the National Association of
Immigration Judges; from various groups and individuals involved in representing aliens in
removal adjudication; and from several law professors. Written comments submitted to ACUS in
response to its posting of revised report sections or meetings to review drafts are on the ACUS
website. We have tried to convey the gist of all these comments and respond as appropriate.

C.

Other General Comments on this Report

We note in various places that the time constraints of this project precluded analyses we would
have preferred to pursue and that are probably worthy of additional ACUS examinations.
Some of our recommendations come close to stating the obvious. Some echo ideas that others
have advanced; some echo current proposals on which EOIR, or others, are working. We include
them in our report to give weight and visibility to them.

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III. Immigration Removal Adjudication: Overview of
Organization and Processes
This report is almost entirely about removal adjudication in the EOIR. Removal adjudication is
initiated by agencies within the DHS, and is governed principally by the Immigration and
Nationality Act of 1952, as amended (INA, codified in Title 8 of the U.S. Code), and provisions
in Title 8 of the Code of Federal Regulations.

A.

Department of Homeland Security

Three principal DHS agencies are involved in immigration removal adjudication.


Customs and Border Protection (CBP), which is responsible for securing the borders from
illegal entry of non-citizens through border inspection and patrol;



Immigration and Customs Enforcement (ICE), which is responsible through its Enforcement
and Removal Operations for identifying, apprehending, detaining, and removing removable
non-citizens; and



United States Citizenship and Immigration Services (USCIS), which administers most
benefit programs, including visa petitions and naturalization applications. USCIS also
contains the Asylum Office

Prior to DHS’s 2003 creation, the government’s deportation prosecution and adjudication
functions were both housed in the DOJ, albeit in separate agencies—the Immigration and
Naturalization Service (INS) for benefits and enforcement and EOIR for removal adjudication.
When Congress created DHS, it abolished the INS and transferred its enforcement, benefits, and
prosecution functions to DHS. It left EOIR within the DOJ.

B.

The Executive Office for Immigration Review

The DOJ created EOIR through a 1983 reorganization. EOIR gained statutory recognition soon
thereafter.2
EOIR contains the Office of the Chief Immigration Judge (OCIJ), of which the fifty-nine
immigration courts are a part, and the BIA. It exercises authority delegated by the Attorney
General within a framework of statutes and administrative regulations. In EOIR’s words, it
“primarily decides whether foreign-born individuals[ ] who are charged by the Department of
Homeland Security . . . with violating immigration law[ ] should be ordered removed from the
United States or should be granted relief or protection from removal and be permitted to remain
in this country.”3
The Attorney General appoints the EOIR Director. EOIR’s Legal Orientation and Pro Bono
Program (LOP) are housed within the Office of Legal Access; these programs recruit non-profit
organizations to provide basic legal briefings to detained respondents and seek to attract pro
2

“There is in the Department of Justice the Executive Office of Immigration Review, which shall be subject to the
direction and regulation of the Attorney General under section 1103(g) of title 8.” 6 U.S.C. § 521(a)(1) (2006).
3
Executive Office for Immigration Review, EOIR at a Glance, U.S. DEP’T JUST. (Sept. 9, 2010),
http://www.justice.gov/eoir/press/2010/EOIRataGlance09092010.htm.

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bono legal providers to represent them. The BIA administers EOIR’s program to certify pro bono
organizations and accredit non-lawyers to assist respondents in removal proceedings.
We did not study EOIR’s Office of the Chief Administrative Hearing Officer (OCAHO), a small
group of Administrative Procedure Act judges who hear cases (ninety-one cases in 2011, eightyeight in 2010)4 involving employer verification of work authorization violations, immigrationrelated document fraud, and failure to comply with statutory international information
dissemination requirements.
EOIR’s appropriation for fiscal 2012 (as of June 2012) is slightly less than the full $305,000,000
provided for the Justice Department’s “Administrative Review and Appeals,” budget
subcategory, almost all of which funds EOIR (less than one percent funds the Office of the
Pardon Attorney).5 EOIR does not report, at least publically, the dollar allocations to its several
components. However, one of us, for a separate project, 6 estimated the allocations for the 2010
“Administrative Review and Appeals” appropriation of $300,685,000, based on DOJ-reported
object class allocations and personnel figures provided by EOIR’s Public Affairs Office. That
estimate suggested that the immigration courts in 2010 received approximately forty percent
(40%) of the appropriation, the BIA thirty-two percent (32%), EOIR’s central offices twenty-six
percent (26%), and OCAHO three percent (3%). (We provided this estimate to EOIR officials for
any comments they wished to offer but received none.) By that same estimate, in 2010, EOIR
had 1,561 full-time permanent positions, of which 500 were attorney positions. In late 2011 it
had 1,533 full-time permanent positions, 1,296 of which were filled. Of the total number of
positions, 508 were attorney positions, 464 of which were filled.7

1.

Immigration Courts

The “EOIR Immigration Court Listing” on the EOIR Website8 current as of May, 2012,
identifies sixty court locations, but EOIR officials explained that one location (“Chicago
Detained”) was on the list for technical reason and is not a court. The fifty-nine courts are
located in twenty-seven states and two territories. The Website listed 264 immigration judges.
The number of judges per court ranges from less than one (a judge splits time between two
courts) to thirty-one. The median size is 4.9 judges, and the common or modal size is two judges
(eighteen courts). Thirteen courts have three judges; and five have nine or more judges.
Appendix 3 lists, among other things, the immigration courts and the number of judges in each
court as reported on EOIR’s website in May 2012. (In this report, unless otherwise indicated,
“judge” means “immigration judge.”)
These fifty-nine courts are not the only locations where judges hold hearings. EOIR officials
estimate that within the last year, judges held hearings in at least 150 additional hearing locations
in county jails, state and federal prisons, as well as DHS-maintained facilities to detain aliens
awaiting hearings.

4

OFFICE OF PLANNING, ANALYSIS, & TECHNOLOGY, FY 2011STATISTICAL YEAR BOOK, Z1 (2011) available at
www.justice.gov/eoir/statspub/fy10syb.pdf. [Hereinafter Statistical Year Book, 2011].
5
Consolidated and Further Continuing Appropriations Act of 2012, Pub. L. No. 112-55, 125 Stat. 552.
6
See Russell R. Wheeler, Practical Impediments to Structural Reform and the Promise of Third Branch Analytic
Methods: A Reply to Professors Baum and Legomsky, 59 DUKE L.J. 1847, 1862, n.71 (2010).
7
EOIR PERSONNEL STATISTICS, provided by EOIR (on file with authors).
8
Available at http://www.justice.gov/eoir/sibpages/ICadr.htm (viewed April 11, 2012).

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Page 7

And, as explained below, EOIR and DHS have a robust program to hold hearings using video
conferencing technology, both from court to court, and court to other hearing locations. EOIR
officials told us that in determining where to open up a hearing location by video, they consider
available resources, the location’s current and projected caseload, its proximity to existing courts
whose judges may be able to cover the docket, technological issues, other court needs within the
immigration court system, and appropriate coordination among DHS, EOIR, the private bar and,
where applicable, any federal, state, county, or municipal authorities that may be involved. “If
we are called upon to hold hearings,” an official told us, “and if all these considerations are
satisfactory and within [the EOIR] mission, standards, technological capacity, etc., [EOIR] may
hold hearings there.”
In addition to the immigration courts, the OCIJ (Office of Chief Immigration Judge) includes a
deputy chief immigration judge, and, as per the Website page dated May 2012, thirteen assistant
chief immigration judges (ACIJs), all appointed by the Attorney General.9 According to EOIR’s
most recent list of ACIJ assignments, eleven ACIJs supervise from four to seven immigration
courts. One of the ACIJs who supervises four courts is also responsible for immigration judge
“training” and “vulnerable population issues.” Two other ACIJs have no court supervisory
responsibilities. One is responsible for “conduct and professionalism” and “labor management
issues” and one for “operations.” Those two ACIJs and three others are based in EOIR’s Falls
Church, Virginia, headquarters, rather than in one of the courts they supervise; eight others sit in
courts around the country. Within each court is a “liaison judge” to the ACIJ and “pro bono
liaison” judge to oversee the court’s pro bono efforts.10 In consultation with the judges in the
respective courts, the ACIJ designates both the liaison judge and pro bono liaison judge. Service
is sometimes on a rotational basis. Each court also has a court administrator, who is hired
through standard civil service appointment procedures.
Immigration judges are not “administrative law judges” under the Administrative Procedure
Act11 (APA). They are career attorneys in the excepted service,12 and as such are employed for
indefinite terms and not subject to many of the personnel regulations that govern employees in
the regular civil service. Congress defines an immigration judge as “an attorney whom the
Attorney General appoints as an administrative judge” and says they are “subject to such
supervision and shall perform such duties as the Attorney General shall prescribe.”13 The DOJ
itself refers to them “as the Attorney General’s delegates in the cases that come before them,”14
but adds that “[i]n deciding [those] cases . . ., and subject to applicable governing standards,
[they] shall exercise their independent judgment and discretion and may take any action
consistent with their authorities under the” INA.15 The Chief Immigration Judge selects
immigration judges through a competitive process in which the ACIJs participate.
9

For biographical information OCIJ officials, see Executive Office for Immigration Review, Office of the Chief
Immigration Judge, U.S. DEP’T JUST. March 2012, http://www.justice.gov/eoir/fs/ocijbio.htm.
10
David Neal, Operating Policies and Procedures Memorandum 08-01: Guidelines for Facilitating Pro Bono Legal
Services, EXECUTIVE OFFICE FOR IMMIGRATION REVIEW (2008), available at
http://www.justice.gov/eoir/efoia/ocij/oppm08/08-01.pdf [Hereinafter OPPM: Facilitating Pro Bono Legal
Services].
11
5 U.S.C. § 701 et seq.
12
See 5 C.F.R § 302; http://www.doi.gov/hrm/pmanager/st6b.html.
13
INA § 101(b)(4) (2006); 8 U.S.C. § 1101(b)(4) (2006).
14
8 C.F.R. § 1003.10(a) (2010).
15
8 C.F.R. § 1003.10(b) (2010).

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Page 8

EOIR has a collective bargaining agreement with the National Association of Immigration
Judges, which describes itself as “a professional association of immigration judges and also the
certified representative and recognized collective bargaining unit that represents the immigration
judges of the United States.”16 According to union leadership, a large majority of judges belong
to the Association.

2.

Board of Immigration Appeals

The BIA hears appeals mostly from the immigration courts as well as a smaller number of
appeals from some DHS agencies. BIA decisions are binding unless modified or overruled by the
Attorney General or a federal appellate court. The main work of the BIA is reviewing removal
decisions.
The INA does not define the BIA. Instead, implementing regulations create the BIA and specify
its size of fifteen members (including a chair), all appointed by the Attorney General.17
Regulations also authorize the EOIR Director to designate temporary BIA members from among
immigration judges, retired BIA members, retired immigration judges, and certain other EOIR
officials. As of May 2012, the BIA had a chairman, thirteen regular members and five temporary
members.18

C.

Removal Adjudication Processes

Although variations abound, immigration removal adjudication generally involves one or more
of four steps:





charging decisions and some dispositions within DHS;
immigration court adjudications;
administrative appeals of judges’ decisions to the BIA; and
judicial appeals of BIA decisions to the federal court of appeals for the circuit in which
the judge completed the immigration court proceeding.

U.S. district courts are not part of the removal adjudication process, unless the person is detained
and making a habeas corpus challenge to the terms of detention. District courts are involved in
litigation challenging agency procedures or providing APA review of denied visa petitions where
the petition is not a part of a removal case.
Removal adjudication is part of the civil enforcement of federal immigration laws. We do not
deal with federal criminal prosecution of immigration crimes such as smuggling or unlawful
reentry. In fact, though, those prosecutions constitute a major element of all criminal filings in
the U.S. district courts—27,292 filings in 2011, or thirty-five percent (35%) of all criminal
filings. Filings alleging immigration crimes have increased sixty-three percent (63%) since

16

Denise Noonan Slavin & Dana Leigh Marks, Conflicting Roles of Immigration Judges: Do You Want Your Case
Heard by a “Government Attorney” or by a “Judge”?, 16 BENDER’S IMMIGR. BULL. 1785 (2011).
17
8 C.F.R. § 1003.1(a)(1) (2010).
18
See Board of Immigration Appeals, List of members and biographies, U.S. DEP’T JUST. (May 2012) available at
http://www.justice.gov/eoir/fs/biabios.htm.

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June 7, 2012
Page 9

2007,19 largely as a result of vigorous enforcement efforts along the southwest border.
Immigration offenses in 2011 made up over half the criminal filings in each of the five border
districts (Texas Southern and Western, New Mexico, Arizona, and California Southern) ranging
from fifty-five percent (55%) in Arizona to seventy-one percent (71%) in New Mexico and
Texas Southern.20

1. Forms of Removal
Most estimates are that roughly 11,000,000 people in the United States are not citizens or in
valid immigrant status.21 That number dwarfs the number of non-citizens whom DHS can
realistically remove, given limits on resources such as field agents and detention space. As
described later, periodic policy directives from DHS agencies (and before it INS) set prosecution
priorities.
There are many reasons why an alien may be removable from the United States. Some entered
the country illegally and are residing in the U.S. without authorization. Many entered lawfully
but have remained beyond any authorized stay. Others have violated the terms of their
nonimmigrant status or have committed an offense that renders them subject to removal, such as
alien smuggling.22 Removal proceedings also include some who are seeking admission to the
U.S. and who the government believes are statutorily inadmissible; they are removable because
the statute bars their admission.23 As discussed below, some people can be denied admission at
the border under an expedited removal procedure that generally does not involve immigration
court review.24
In general, Customs and Border Protection (CBP), and Immigration and Customs Enforcement
(ICE), apprehend (some) non-citizens whom they suspect are removable—CBP at or between
ports of entry, ICE in the interior—including when state and local law enforcement agencies
inform ICE that they have custody of non-citizens who may be removable. In some situations,
officers may allow individuals to return voluntarily to their home countries.25 Alternatively,
officers may put individuals in immigration court removal proceedings, or in some situations,
formally remove them without immigration court intervention.26 In 2010, DHS made almost
517,000 apprehensions, ninety percent (90%) of them by CBP. In addition, CBP returned

19

ADMINISTRATIVE OFFICE OF THE U.S. COURTS, 2011 ANNUAL REPORT OF THE DIRECTOR: JUDICIAL BUSINESS OF
THE UNITED STATES COURTS JUDICIAL BUSINESS OF THE UNITED STATES COURTS at Tables D-2 (2011) available at
http://www.uscourts.gov/Statistics/JudicialBusiness.aspx.
20
See id. at Table D-3; see also Transactional Records Access Clearinghouse, Illegal Reentry Becomes Top
Criminal Charge, SYRACUSE UNIV., (June 10, 2011), http://trac.edu/immigration/reports/251/ (reporting that in the
first six months of fiscal year 2011, the major immigration criminal offense, illegal reentry, was the “most
commonly recorded lead charge brought by federal prosecutors”).
21
RUTH ELLEN WASEM, CONG. RESEARCH SERV. RL 33874, UNAUTHORIZED ALIENS RESIDING IN THE UNITED
STATES: ESTIMATES SINCE 1986 (2011) available at http://fpc.state.gov/documents/organization/174245.pdf.
22
See generally INA § 237(a) (2010); 8 U.S.C. § 1227(a) (2006) for grounds of removal.
23
See generally INA § 237(a)(1) 8 U.S.C. § 1227(a)(1) (2006) and the grounds of inadmissibility found in INA §
212; 8 U.S.C. § 1182 (2006).
24
See INA § 235(b); 8 U.S.C. § 1225(b) (2006).
25
The official regulations governing voluntary departure in lieu of being place in removal proceedings are found at
8 C.F.R. § 240.25 (2010).
26
See discussion infra at Section a, at 16.

Benson and Wheeler, Report for the Administrative Conference of the United States

June 7, 2012
Page 10

approximately 476,000 aliens to their home country without a removal order (the great majority
were from Mexico and Canada).27
At various times, CBP has coordinated enforcement with the U.S. Attorney in a border state. Part
of CBP’s enforcement policy in southern Arizona, for example, is to use criminal enforcement
for as many cases as the federal district court can accommodate and take the cases that could not
be criminally prosecuted to the immigration court under a policy known as the Consequence
Delivery System.28 So, at least in one part of the United States, there seems to be a direct
relationship between the immigration courts’ daily workload and a district court’s ability to
enforce illegal entry crimes.
ICE effected 396,906 removals in FY2011,29 up from 189,000 in 2001.30 Congress has greatly
expanded funding and resources for border enforcement. The Bush and Obama administrations
have posted members of the National Guard along the southern border.31
a.

Administrative Removal without Immigration Court Review

Congress has authorized DHS officers to issue removal orders in some cases without
immigration court review or participation. The American Bar Association Commission on
Immigration said these non-judicial removals implement Congress’s intention to reduce
immigration court workload through administrative removal of individuals whose lack of
authorization to be in the country is “‘indisputable.’” That word comes from the legislative
history of the 1996 Illegal Immigration Reform and Immigrant Responsibility Act, 32 but
establishing “indisputability” in the removal context is hardly a simple task.
DHS officers may order the “expedited removal” of aliens whom they apprehend at ports of
entry without valid documentation or who have committed fraud or misrepresentation, as well as
those apprehended within 100 miles of the border who were not admitted or paroled and have not
persuaded an immigration officer that they have been in the country for at least two weeks. As
explained later, people in expedited removal proceedings have no recourse to the immigration
27

U.S. Dep’t of Homeland Security, Office of Immigration Statistics, Immigration Enforcement Actions: 2010
(2011), at 3,4 available at http://www.dhs.gov/xlibrary/assets/statistics/publications/enforcement-ar-2010.pdf
[hereinafter DHS Immigration Enforcement Actions, 2010].
28
See also Does Administrative Amnesty Harm our Efforts to Gain and Maintain Operational Control of the
Border? Hearing Before the Subcomm. on Border and Maritime Security of the H. Comm. on Homeland Security,
112th Cong. (2011) (statement of Michael J. Fisher, Chief, U.S. Border Patrol, U.S. Customs and Border Protection)
and Aguilar’s Aff. at 7 United States v. Arizona, No. 2:10-CV-951 (D. Ariz. July 6, 2010) (available at
http://www.justice.gov/opa/documents/declaration-of-david-aguilar.pdf ) (describing the federal government’s
activity in this region).
29
FY 2011: ICE Announces Year-End Removal Numbers, Highlights Focus on Key Priorities Including Threats to
Public Safety and National Security, U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT (Oct. 18, 2011),
http://www.ice.gov/news/releases/1110/111018washingtondc.htm.
30
DHS Immigration Enforcement Actions, 2010, supra note 27, at 4.
31
See, e.g., National Guard Supports Border Security Efforts, CPB.GOV (Mar. 1, 2011),
http://www.cbp.gov/xp/cgov/newsroom/news_releases/national/03012011_7.xml .
32
AMERICAN BAR ASSOCIATION COMMISSION ON IMMIGRATION, REFORMING THE IMMIGRATION SYSTEM,
PROPOSALS TO PROMOTE INDEPENDENCE, FAIRNESS, EFFICIENCY, AND PROFESSIONALISM IN THE ADJUDICATION OF
REMOVAL CASES 1-49 (2010) available at
http://www.americanbar.org/content/dam/aba/migrated/Immigration/PublicDocuments/aba_complete_full_report.aut
hcheckdam.pdf, citing ALISON SISKIN, CONG. RESEARCH SERV., RL 32369, IMMIGRATION-RELATED DETENTION:
CURRENT LEGISLATIVE ISSUES (2004) [Hereinafter ABA Comm’n on Immigr. Rept., 2010].

Benson and Wheeler, Report for the Administrative Conference of the United States

June 7, 2012
Page 11

courts unless they claim U.S. citizenship, permanent resident status, or more commonly, state
that they want to seek asylum or that they fear persecution or torture if returned to their home
country. Thirty seven percent of the 189,000 removals in 2001 were expedited removals. By
2010, that percent was down slightly, to twenty-seven percent (27%) of 400,004 total removals.33
DHS officers may also remove aliens who left the country under a removal order and then
illegally reentered the United States. The prior order of removal is the basis for the subsequent
removal, and there is no immigration court role in these INA § 241(a)(5) reinstatement-of-finalremoval orders. One of the few exceptions to DHS’s authority to reinstate a prior order of
removal is if a non-citizen makes a claim of withholding of removal due to a fear of persecution
or torture. Almost 131,000 of 2010 removals (about thirty-three percent (33%)) were by
reinstatement of final removal orders.34
Similarly, ICE may use a form of “hearingless” or administrative removal by serving notice of
intent to remove a non-citizen who has been convicted of an “aggravated felony” as defined in
the INA and implementing regulations and does not have lawful permanent resident status.35 The
INA has a long list of possible convictions and types of crimes that may constitute aggravated
felonies. This is a very complex area of the law. A conviction for a misdemeanor, for example,
can qualify as an aggravated felony in immigration matters. Non-citizens may also be subject to
removal for criminal conduct that is not an aggravated felony. 36 Which crimes are included
within the statutory definition is a frequent subject of immigration court litigation. The individual
has a chance to rebut the allegations by written submission only and must do so within fourteen
days or may waive rebuttal. There is no immigration court role in these § 238 removals. People
subject to these removal orders can seek a limited petition for review in the courts of appeal.
In sum, DHS in 2010 effected over two thirds of removals without any adjudication within the
immigration courts, as seen in this chart.

33

DHS Immigration Enforcement Actions, 2010, supra note 27, at 4. ICE provided additional data on FY 2010
removals to the authors on June 5, 2012. Those data reflect slightly different definitions and fiscal year information.
The table and text as provided by ICE are reproduced as Appendix 9.
34
DHS Immigration Enforcement Actions, 2010, supra note 27, at 4.
35
See INA § 101(a)(43) (2010); 8 U.S.C. § 1101(a)(43) (2006).
36
See Maureen A. Sweeney, Fact or Fiction: The Legal Construction of Immigration Removal for Crimes, 27 YALE
J. ON REG. 47, 75-78 (2010) (describing INA § 238 removal procedures and the complexity of the aggravated felony
definition); Alina Das, The Immigration Penalties of Criminal Convictions: Resurrecting Categorical Analysis in
the Immigration Law, 86 N.Y.U. L. REV. 1669 (2011) (describing complex immigration issues and analysis
interpreting the consequences of criminal convictions).

Benson and Wheeler, Report for the Administrative Conference of the United States

June 7, 2012
Page 12

Chart 1: Forms of Removal, 2010*

FY 2010 total of all removals: 400,044
expedited removal(235(b))
reinstatement (241(b)(5))
145,286

111,000
131,000

12,758

administrative removal
(238(b))
immigration court ordered
removals

* 2010 data. ICE provided updated § 238(b) administrative removals data to the authors on June 5, 2012.
The earlier versions of this chart had used 2008 data.

b.

Agency Filings in the Immigration Courts

Jurisdiction vests with the immigration court when a DHS officer files a charging document with
the court, known as a “Notice to Appear” (NTA). Total NTAs rose from over 153,000 in 2004 to
over 221,000 in 2009.37 The latest available data indicate that in 2008, ICE issued about sixtytwo percent (62%) of all NTAs, CBP issued about twenty percent (20%), and USCIS about
eighteen percent (17%). CBP-issued NTAs dropped from about fifty-five percent (55%) in 2006,
and ICE’s NTAs rose from about thirty percent (30%) that year.38 When we asked for these data
in our interviews, EOIR, DHS and DOJ personnel told us that the NTA-originating agency is not
coded in statistical reports. Our interviewees’ estimates of the source of NTAs varied
considerably—some put USCIS’s share at fifty percent (50%), for example, others put it at
twenty percent (20%).

2.

Immigration Courts

The immigration courts handle “matters.” Most matters are “proceedings” to determine the
removability and eligibility for relief and/or protection from removal of someone about whom a
DHS officer has filed an NTA. Auxiliary to proceedings are two other types of matters: bond
redetermination hearings (for respondents in DHS detention); and motions (principally to reopen
or reconsider closed cases). One respondent may account for several matters in the same or
different fiscal years—for example, a request for bond redetermination and a proceeding to seek
relief from removal.
Immigration court “receipts” (filings) and completions have both been going steadily up, as
shown in Table A. Over the last five years proceedings received have risen twenty-one percent

37
38

ABA Comm’n on Immigr. Rept., 2010, supra note 32, at 1-13.
Id., at 1-12–1-15, based on data that DHS generated on request.

Benson and Wheeler, Report for the Administrative Conference of the United States

June 7, 2012
Page 13

(21%) and all matters by twenty-eight percent (28%), due to a heavy increase in bond
redeterminations. Proceedings received have increased four percent just over 2010.
Completed proceedings have increased more slowly over the most recent five years, by eleven
percent (11%), and five percent (5%) over 2010.
Table A—Immigration Court Receipts and Completions, 2007-2011
RECEIPTS Proceedings

Bonds

Motions

Total

FY07

279,403

42,652

13,868

335,923

FY08

291,982

45,905

14,232

352,119

FY09

327,918

51,603

13,624

393,145

FY10

326,573

52,647

15,018

394,328

FY11

338,114

76,856

15,604

430,574

21%
4%

80%
46%

13%
4%

28%
9%

Bonds

Motions

% over 07
% over10

COMPLETIONS

Proceedings

Total

FY07
FY08

273,480
281,244

42,399
45,240

13,866
14,267

329,745
340,751

FY09

290,465

50,524

13,393

354,382

FY10

287,878

51,449

14,922

354,249

FY11

303,287

75,258

15,762

394,307

% over 07

11%

77%

14%

20%

% over10

5%

46%

6%

11%

Benson and Wheeler, Report for the Administrative Conference of the United States

June 7, 2012
Page 14

Chart 2 shows the breakdown for 2011 completions:
Chart 2: Matters by Broad Category, 2011

Completed Matters in 2011 by Broad
Category (N=394,307)
motions (4%)

bond
redeterminations (19%)

proceedings
(77%)

a.

Proceedings

Proceedings are immigration court adjudications between DHS and an individual respondent. In
proceedings, judges principally exercise the authority granted or delegated to them in § 240 of
the INA, DOJ regulations, and decisions by the BIA and the U.S. courts of appeals.
Proceedings basically implicate two questions: is the respondent removable and, if so, is the
respondent nevertheless eligible for one of the limited forms of statutory or regulatory relief or
protection from removal, such as asylum? Immigration judges have no inherent or equitable
authority to grant relief; they may only grant forms of relief created by Congress.
Proceedings begin and may end with an initial “master calendar” hearing. If a case does not
conclude at the master calendar stage, it can extend to one or more “individual calendar”
hearings to adjudicate the merits of the case. In some matters, the judge may schedule some form
of pre-hearing or status conference (generally not referred to by those names).
[1]

Master Calendar Hearing

Although removal adjudications are civil proceedings, the master calendar hearing is frequently
analogized to a criminal arraignment. At a master calendar hearing, the respondent, or a group of
respondents, appear(s) before a judge, who seeks to ascertain if the respondents understand the
charges in the NTA and notifies them, among other things, of their right to be represented by
counsel (or a non-lawyer accredited representative), albeit at no cost to the government. The
judge also determines the need for translation services; directs the respondent or counsel to admit

Benson and Wheeler, Report for the Administrative Conference of the United States

June 7, 2012
Page 15

or deny the charges; and explains types of relief to which the respondent may be eligible and
asks whether the respondent will apply for relief.
[2]

Individual Calendar Hearing

In most cases, at the master calendar hearing or at some later date, the judge schedules a hearing
at which DHS and the respondent can present evidence about the merits of the case. At some
stage in the process, the vast majority of respondents concede the allegations; however, some go
on to seek relief.
[3]

Pre-hearing, or Status, Conferences

Commonplace in state and federal civil litigation (involving other than relatively simple matters) are
conferences in which the parties and the judge, or the parties on their own, confer (in person or
through document exchanges) to narrow issues and otherwise prepare for the trial (or see if a trial
can be avoided). Such events, although authorized by EOIR’s governing regulations and policy, are
not routine in immigration court, although it is difficult to determine their frequency and whether
their occurrence varies among courts or judges because the OPAT data base does not have a specific
entry for them, and thus most judges code them as master or individual calendar hearings.

b.

Types of Dispositions of Proceedings
[1]

Merits Decisions and Other Completions

In fiscal 2011 immigration judges completed 303,287 proceedings. They rendered merits
decisions in 220,048 (seventy-three percent (73%)) of them. The other 83,239 were closed
administratively or transferred to a different location or granted a change of venue. The seventythree percent (73%) figure for merits decisions was down slightly from 2010, when seventyseven percent (77%) of the completions were merit decisions. 39
The 220,048 merits decisions comprised four types of dispositions:


161,354 (seventy-three percent (73%)) were orders of removal;



31,763 (fourteen percent (14%)) were grants of “relief,” such as asylum;



25,562 (twelve percent (12%)) were “terminations,” in which the judge decided that the
government could not sustain the charges it filed, the respondent established eligibility for
naturalization, or the government agreed to dismissal of the proceedings; and



1,369 (0.6 percent) of the decisions were categorized as “other.”

39

Statistical Year Book, 2011, supra note 4, at D 1-2.

Benson and Wheeler, Report for the Administrative Conference of the United States

June 7, 2012
Page 16

Chart 3 shows the breakdown graphically:
Chart 3: 2011 Immigration Completions by Disposition

2011 Immigration Court Merits
Decisions, by Disposition
(n = 220,048)
Other
1%

Terminations
12%
Relief
14%

Removals
73%

As Table B and Chart 4 below show, there has been a decrease in merits decisions over the past
five years (from slightly over 223,000 in 2007 to slightly over 220,000 in 2011), and a
corresponding decline in removal orders (from about 170,000 to about 161,000). Orders granting
relief rose from over 30,000 to almost 32,000 and terminations increased from about 21,000 to
well over 25,500.40
Table B: Immigration Judge Merit Decisions 2007-2011 (Number and percent)*
2007

2008

2009

2010

2011

Total

223,085

229,463

232,385

222,909

220,048

Removal

170,291 76%

182,727 80%

185,421 80%

166,860 75%

161,354 73%

Relief

30,263 14%

28,386 12%

28,676 12%

30,947 14%

31,763 14%

Termination

21,146 10%

17,033 7%

17,038 7%

24,369 11%

25,562 12%

*A small number of “other” decisions are not shown.

40

Id.

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June 7, 2012
Page 17

Chart 4: Merits Decisions 2007-2011

Judges' Merits Decisions, 2007-2011
("other" excluded)
250,000
200,000
Total
Removal

150,000

Relief
100,000

Termination

50,000
0
2007

[2]
[a]

2008

2009

2010

2011

Special Categories of Removal

In absentia dispositions

Some of the final decisions rendered by judges involve respondents who fail to appear at a
hearing. In that situation, if the judge is satisfied that the respondent or counsel received notice of
the hearing and the government establishes by clear, unequivocal, and convincing evidence that
the respondent is removable, the judge must order the respondent removed in absentia. In
absentia removal orders constituted twenty-one percent (21%) of judges’ decision in 2011 for
respondents whom DHS detained at no time during the proceedings (down from thirty-one
percent in 2007) and twenty-six percent, for aliens who had been released from detention (down
from twenty-nine percent (29%) in 2006). (Obviously, respondents in detention rarely fail to
appear.)41 We do not know the reason for the decline in the total number of in absentia orders;
many factors may have contributed. In 2006, Congress amended the INA to include a ten-year
limitation on eligibility for discretionary relief if a person fails to appear.42

41
42

Id. at H2-3.
See INA § 240(B)(7), 8 U.S.C. § 1229a(B)(7).

Benson and Wheeler, Report for the Administrative Conference of the United States

[b]

June 7, 2012
Page 18

Stipulated removal orders

Judges also issue a form of removal called a “stipulated removal order.”43 These orders are not
scheduled as either master calendar or individual hearings. In fiscal year 2010, judges signed
27,943 stipulated removal orders.44 In these removals, the DHS counsels the respondent about
his or her ability to waive the removal hearing and the consequences of agreeing to the issuance
of an immediate removal order. Some judges waive the respondent’s appearance and sign the
removal order after they have reviewed the evidence of service and a signed waiver of hearing
from the respondent. Other judges interview the respondent to determine if the waiver of the
hearing was “knowing and voluntary.”
Critics of stipulated removal are concerned that unrepresented respondents may not understand
the rights they are waiving and may agree to stipulated removal solely to avoid lengthy DHS
detention.45 Others believe this procedure helps the respondent complete the removal process
quickly, most often where the respondent is ineligible for any relief from removal, and is more
efficient than requiring mass removal hearings where the judge may spend several hours to
confirm each respondent’s desire to accept an order of removal and depart. Not all immigration
courts have seen requests from DHS for stipulated removals orders. At least one court only saw
them used when the stipulation was part of a plea bargain in a criminal proceeding and criminal
defense counsel represented the respondents. Appendix 4 shows the aggregate decline in the
number of such orders issued by immigration courts in 2009, 2010, and 2011.
[c]

Voluntary departure

Judges may permit some respondents to depart the United States voluntarily rather than subject
to a removal order. EOIR categorizes a grant of “voluntary departure” as a form of removal
rather than a form of relief. While a person who receives voluntary departure cannot remain
indefinitely (the order can only grant a period of up to 120 days), the long-term consequences of
departing under this order as opposed to a removal order can be quite dramatic and much to the
respondent’s benefit. Not every respondent is eligible for voluntary departure and the ultimate
decision to grant the privilege is within the judge’s discretion. Of the 161,354 immigration court
removal orders in 2011, 30,385 (nineteen percent (19%)) were voluntary departures.46 DHS
officials can also grant voluntary departure to individuals who are apprehended in the field,
including those whom officers do not place in removal proceedings.47

43

See Brian M. O’Leary, Chief Judge, Operating Procedures and Policy Memorandum 10-01: Procedures for
Handling Requests for a Stipulated Removal Order, EXECUTIVE OFFICE FOR IMMIGRATION REVIEW (2010) available
at http://www.justice.gov/eoir/efoia/ocij/oppm10/10-01.pdf [Hereinafter OPPM: Stipulated Removals].
44
OFFICE OF PLANNING, ANALYSIS AND TECHNOLOGY DATA, provided by OPAT (on file with author) [Hereinafter
OPAT DATA].
45
SEE JENNIFER LEE KOH, JAYASHRI SRIKANTIAH & KAREN C. TUMLIN, DEPORTATION WITHOUT DUE PROCESS
(2011) available at https://nilc.org/document.html?id=6.
46
Statistical Year Book, 2011, supra note 4, at Q1.
47
These voluntary departures are not included in the immigration court statistics. See INA § 240B(d); 8 U.S.C. §
1229(c) (2006) for voluntary departure post 1996. See 5 STEPHEN YALE-LOEHR & STANLEY MAILMAN,
IMMIGRATION LAW AND PROCEDURE § 64.5 (Matthew Bender ed.).

Benson and Wheeler, Report for the Administrative Conference of the United States

c.

June 7, 2012
Page 19

Additional Aspects of Immigration Court Matters

[1]

Detained Cases

DHS officers who place people in removal proceedings may, and in some cases must, detain
them for all or part of the time until the case is resolved. DHS holds people in some DHSmanaged facilities, some Federal Bureau of Prisons-managed facilities, some that private
contracting corporations run, and in many spaces rented from state and local jails.48 Some
immigration court proceedings are held within or adjacent to detention centers. Statutory and
DHS detention policies have been a source of controversy. The ABA Commission on
Immigration criticized the rapid growth in the number of detainees, especially in facilities that
DHS may not be able to supervise adequately; what the Commission regarded as overly broad
mandatory detention pursuant either to the INA or DHS policies; and practical restrictions on
access to family and lawyers imposed on those by detention in remote facilities.49 Although we
visited a few immigration court detention sites, and met with advocates and leaders of non-profit
organizations that regularly represent detained individuals, we did not have time or resources to
thoroughly examine the impact detention conditions have on immigration court proceedings.
During our study, DHS also issued new detention guidelines.50
Of the over 303,000 completed proceedings in fiscal year 2011, forty-two percent (42%)
involved respondents who were detained during the adjudication, but the percentages varied by
court, as shown in Appendix 3 and in the abbreviated table below, showing the five courts with
highest and lowest percentage of detained respondents in 2011.51

Fishkill
Ulster
Stewart SPC (Georgia)
Tucson
El Centro SPC (Calif.)
New Orleans
Philadelphia
Memphis
New York City
Charlotte

Percent Detained
99%
99%
94%
92%
82%
4%
3%
1%
<1%
<1%

Even immigration courts not located within detention facilities may have a very high detained
docket, for example the Tucson court.

48

See generally Symposium, U.S. Immigration Detention: Policy and Procedure From A Human Rights
Perspective: Intercultural Human Rights Law Review Annual Symposium, 5 INTERCULTURAL HUM. RTS. L. REV. 1
(2010) (collection of articles addressing detention in immigration proceedings).
49
ABA Comm’n on Immigr., Rept. 2010, supra note 32, at I-50 ff.
50
See ICE Performance-Based National Detention Standards (2011) available at
http://www.ice.gov/news/library/factsheets/facilities-pbnds.htm.
51
Computed from data at B6 and O3, Statistical Year Book, 2011, supra note 4.

Benson and Wheeler, Report for the Administrative Conference of the United States

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Page 20

Congress has mandated detention for aliens in expedited removal; the statute provides limited
review of detention in this context. Congress has repeatedly expanded the category of noncitizens who must be detained during regular removal proceedings, primarily those with certain
categories of convictions. DHS has set priorities for the detention of aliens not subject to
mandatory detention, and those detained can seek immigration judge review of the custody
decisions as well as bond set by DHS.52 On any one day in 2009, about 32,000 individuals were
in detention;53 the number of respondents in detention at some point in 2001 was about 209,000;
it rose to over 378,000 in 2008;54 and declined to about 363,000 in 2010.55
ICE can and does transfer detainees from one site to another. According to one estimate, in the
first six months of 2008, over half the detainees were transferred at least once, and almost a
quarter were transferred multiple times. At least in 2008-09, ICE housed about seventy percent
(70%) of detainees in state and local jails, particularly in the south and southwest, many of which
were remote from population centers.56 Frequent transfer of detainees, especially to remote
detention centers, limits detainees’ access to representation. DHS is in the process of
consolidating its detention centers, and DHS officials told us that detainee transfers have
decreased recently.
EOIR often cannot control the environment within the detention facilities and has little space
within them to operate its courts. It appears that the rapid growth in detention has made it
difficult for EOIR to meet the increased need for hearing locations that can function within the
detained settings. EOIR has been flexible and at times operates in substandard conditions and
even converted storerooms to create more courtrooms. The rapid growth has also meant
corresponding expansion problems for the courts’ administrative operations due to the demand
for file space and support staff.
We did not explore in any depth the level of coordination between EOIR and DHS with respect
to the planning and construction of detention facilities in which judges might conduct
proceedings. It may be a matter worthy of further inquiry.

[2]

Representation By statute, respondents may be represented by counsel or other

representatives but only “at no expense to the government.”57 As discussed more fully below,
slightly over half the respondents in proceedings completed in 2011 had counsel (up from
slightly under half in previous years), but a much lower percentage of detained respondents were
represented. In some courts, the rate of representation is less than ten percent.58

52

ABA Comm’n on Immigr. Rept., 2010, supra note 32, at 1-12–15.
U.S. Immigration & Customs Enforcement, Fact Sheet: 2009 Immigration Detention Reforms,
http://www.ice.gov/news/library/factsheets/reform-2009reform.htm (last visited Dec. 30, 2011).
54
Donald Kerwin & Serena Yi-Ying Lin, Immigration Detention: Can ICE Meet Its Legal Imperatives and Case
Management Responsibilities? (Washington, D.C.: Migration Policy Institute 2009), 6, 7 available at
http://www.migrationpolicy.org/pubs/detentionreportSept1009.pdf.
55
DHS Immigration Enforcement Actions, 2010, supra note 27, at 4.
56
ABA Comm’n on Immigr. Rept., 2010, supra note 32, at 1-57 (citing, in part, Translational Records Clearinghouse
(TRAC) and ICE data).
57
INA § 292 (2010); 8 U.S.C. § 1362 (2006).
58
See Appendix 3 provided data on rates of representation by court location.
53

Benson and Wheeler, Report for the Administrative Conference of the United States

[3]

June 7, 2012
Page 21

Hearings by video technology

Some hearings, particularly for detained respondents, use video technology: at least one
participant is not co-located with the others. Roughly one in eight of the hearings held in
proceedings that were completed in 2010 were held by video (105,901 of 852,230). In 2010,
video technology was also used in roughly one in three bond redetermination hearings (22,933 of
78,187).59

3.

Board of Immigration Appeals

Both the government and the respondent may seek review of immigration judges’ decisions
before the BIA. In 2011, the BIA received 27,237 appeals from immigration judge decisions. Of
those, 15,565 were “case appeals;” the rest were appeals from other types of decisions, including
7,501 appeals from BIA decisions on motions to reopen BIA decisions or reconsider immigration
judge decisions;60 the 27,237 appeals involved 17,090 respondents.61 EOIR reports that ten
percent or less of judges’ decisions result in appeals to the BIA.62 However, the rate of appeal is
higher in those cases where relief is sought. In 2010, in cases where any relief was sought
(71,924 proceedings), the percentage rate of appeals was 15.3%. (The BIA has held that a
respondent may not appeal from an in absentia order although in some cases the individual may
seek a motion to reopen.)
We asked for data about who filed the appeals and learned that in fiscal year 2010, of the 15,556
appeals from immigration judge decisions, respondents filed 14,023 and DHS filed 1,312. In a
small number, both parties appealed. Of the 14,023 appeals filed by the respondents in 2010,
ninety-nine were appeals from in absentia orders and 2,924 appealed without any relief in the
case being sought (the respondent was likely challenging the grounds of removal).
In 2011, in addition to the appeals from immigration judge decisions, the BIA received 8,725
appeals from decisions of DHS agencies.63 These appeals mainly involve challenges to USCIS
denials of family-based immigrant visa petitions.
The Board hears the great majority of appeals exclusively on written submissions. It held no
more than three oral arguments per year since 2006.64 This has long been the BIA’s practice.65
To help the BIA adjudicate its cases, approximately 125 staff attorneys review files, draft
opinions for BIA member review, and sometimes sit as temporary BIA members. The vast
majority of the BIA decisions are “single member decisions;” only one BIA member signs them.
Some federal judges and other commentators criticize this practice and urge panel decisions.66

59

OPAT DATA, supra note 44.
Statistical Year Book, 2011, supra note 4, at T2.
61
Id. at X1.
62
Id. at X.
63
Id. at T2.
64
OPAT DATA, supra note 44.
65
8 C.F.R. § 1003.1(e)(27) (2010) the appellant must request oral argument.
66
See Stephen H. Legomsky, Learning to Live with Unequal Justice: Asylum and the Limits to Consistency, 60
STAN. L. REV. 413, 431 (2007) (evaluating the move from three-member to single-member decisions). See also
Shruti Rana, “Streamlining” the Rule of Law: How the Department of Justice is Undermining Judicial Review of
Agency Action, 2009 U. ILL. L. REV. 829 (discussing history of BIA regulations creating forms of streamlining and
the reactions of federal judges in subsequent appeals to the BIA structure).
60

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Others say that many of the appeals are easily disposed of and that, as a quality control measure,
what one EOIR official described as “the senior legal staff” review random samples of three
categories of BIA final decisions before they are mailed out to the parties.67 The three categories
are: single board member decisions from the screening panel; three-Board Member decisions
from any panel; and single Board Member decisions from any panel. In 2010, attorney managers
reviewed twenty-three percent (23%) of the BIA decisions.68 Rates of representation before the
BIA are much higher than in the immigration courts—in 2011, eighty percent (80%) of
respondents appealing immigration judge decisions.69 In detained cases (in 2010), fifty-one
percent (51%) of the respondent-appellants are represented. Eighty-seven percent of the nondetained respondents have counsel. In appeals from DHS denials of family based visa petitions,
thirty-one percent (31%) of the respondents were represented in 2010.70

4.

U.S. Courts of Appeal

Respondents, but not the government, may seek review of a BIA decision in the court of appeals
in the circuit in which the immigration court concluded the proceeding. The DOJ Office of
Immigration Litigation (OIL) represents the government before the court of appeals. A sharp
increase in appeals from BIA decisions began in 2002 and peaked in 2006. They are now about
sixty percent (60%) of what they were in 2006 but almost four times the 2011 number. The
volatility in appeals has been especially pronounced in the courts of appeals for the Second and
Ninth Circuits.

IV.

Framework and Focus of Analysis

Immigration removal adjudication agencies and processes have been the objects of reporting and
analysis, most of it critical and of decidedly uneven quality, in the popular press,71 from
organizations of various types, 72 scholars,73 advocates,74 U.S. courts of appeals judges,75
67

Interview, staff of the Board of Immigration Appeals (May 2011); E-mail from ACIJ Edward Kelly (Dec. 2011)
(on file with authors) (reconfirming information from interview with BIA staff).
68
Id.
69
Statistical Year Book, 2011, supra note 4, at V-1.
70
OPAT DATA, supra note 44.
71
E.g., Jacqueline Stevens, Lawless Courts, Immigration Judges Who Flagrantly Disregard the Law are Sheltered
by a Secretive System, THE NATION, Nov. 8, 2010, at 17; Julia Preston, Immigration Judges Found Under Strain,
N.Y. TIMES, July 11, 2009, at A11.
72
E.g., ABA Comm’n on Immigr. Rept., 2010, supra note 32, at parts 2, 3, 5, 6; Transactional Records Access
Clearinghouse, Comprehensive, independent and nonpartisan information about U.S. federal immigration
enforcement, SYRACUSE UNIV., www.trac.syr.edu/immigration (last visited Dec. 30, 2011); Donald M. Kerwin,
Doris Meissner, & Margie McHugh, Executive Action on Immigration; Six Ways to Make the System Work Better,
(Washington, D.C.: Migration Policy Institute 2011) available at
http://www.migrationpolicy.org/pubs/administrativefixes.pdf; APPLESEED, ASSEMBLY LINE JUSTICE—BLUEPRINT TO
REFORM AMERICA’S IMMIGRATION COURTS (2009) available at
www.appleseednetwork.org/Portals/0/Documents/Publications/Assembly%20Line%20Injustice.pdf; MARK H.
METCALF, BUILT TO FAIL, DECEPTION AND DISORDER IN AMERICA’S IMMIGRATION COURTS, (Center for
Immigration Studies 2011), available at www.cis.org/articles/2011/built-to-fail-full.pdf.
73
See Stephen Legomsky, Restructuring Immigration Adjudication, 59 DUKE L. J. 1635 (2010); Wheeler, supra note
6; JAYA RAMJI-NOGALES, ANDREW SCHOENHOLTZ, PHILIP SCHRAG & EDWARD KENNEDY, REFUGEE ROULETTE:
DISPARITIES IN ASYLUM ADJUDICATION AND PROPOSALS FOR REFORM (2009) (including the lead authors’ 2007
article of the same title and additional comments by others); Lenni B. Benson, You Can’t Get There from Here:

Benson and Wheeler, Report for the Administrative Conference of the United States

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immigration judges,76 BIA members,77 the DOJ,78 and the Government Accountability Office.79
(The footnotes cite only a small sample of the literature.)
Critics have:


called for more EOIR resources to hire more judges and support staff and thus ease the
backlog of matters;



criticized judge hiring standards and procedures, and recommended enhanced orientation,
continuing education, and performance monitoring (reflecting in part press and court of
appeals accounts of judges’ intemperate behavior and decisional disparities within and
between immigration courts); and



called for moving immigration adjudication agencies from the DOJ into one of several
alternative arrangements within the executive branch, arguing that, even though DHS, not
DOJ, prosecutes removal cases, law enforcement management of the immigration courts
threatens independent judicial decision-making.

Diagnoses underlying the many prescriptions offered over the last few years have been based
largely on impressions from direct observation and comments reported by secondary observers.
There has been some quantitative research, such as several analyses of decisional disparities in
asylum cases.80
Managing Judicial Review of Immigration Cases, 2007 U. CHI. LEGAL F. 405; John R.B. Palmer, The Nature and
Causes of the Immigration Surge in the Federal Courts of Appeals: A Preliminary Analysis, 51 N.Y.L. SCH. L. REV.
13 (2006-2007); Stephen H. Legomsky, Deportation and the War on Independence, 91 CORNELL L. REV. 369
(2006).
74
E.g., Noel Brennan, A View from the Immigration Bench, 78 FORDHAM L. REV. 623 (2009) (describing the reports
of the Katzmann Study Group to promote adequate representation for those in removal proceedings in the New York
City area).
75
E.g., Immigration Litigation Reduction Hearing Before the Subcomm. On the Judiciary, 109th Cong., at 5, 9,
182, (2006) (statement of Chief Judge John Walker (2d Cir) and Judges Carlos Bea (CA-9) and letter of Sidney
Thomas (CA-9)). See, e.g. Lynne Marek, Posner Blasts Immigration Courts As 'Inadequate' And Ill-Trained,
NAT’L L. J., April 22, 2008; J. Roemer, Ninth Circuit Judge Criticizes Rulings On Asylum Cases J. DAILY J.
(CA) Feb. 15, 2008. See also news account Pamela MacLean, Immigration Judges Still Under Fire, NAT’L L. J.,
Jan. 30, 2006.
76
Slavin & Marks, supra note 16; Brennan, supra note 74; Dana Leigh Marks, An Urgent Priority: Why Congress
Should Establish an Article I Immigration Court, 13 BENDER’S IMMIGR. BULL. 3 (2008); Stuart Lustig, Kevin
Delucchi, Lakshika Tennakoon, Brent Kaul, Dana Leigh Marks & Denise Slavin, Burnout and Stress Among United
States Immigration Judges, 13 BENDER’S IMMIGR. BULL. 22 (2008).
77
Edward R. Grant, Laws of Intended Consequences: IIRIRA and Other Unsung Contributors to the Current State of
Immigration Litigation, 55 CATH. U. L. REV. 923 (2006).
78
E.g., Measures to Improve the Immigration Courts and Board of Immigration Appeals, THE ATT’Y GEN. (2006)
available at http://www.justice.gov/ag/readingroom/ag-080906.pdf and follow up reports infra at text accompany
note 81 and note 82.
79
Executive Office of Immigration Review, U.S. GAO—Executive Office For Immigration Review: Caseload
Performance Reporting Needs Improvement, U.S. GOV’T ACCOUNTABILITY OFF. (Sept. 12, 2006), available at
http://www.gao.gov/products/GAO-06-771; U.S. GOV’T ACCOUNTABILITY OFFICE, GAO-08-935, U.S. ASYLUM
SYSTEM, AGENCIES HAVE TAKEN ACTIONS TO HELP ENSURE QUALITY IN THE ASYLUM ADJUDICATION PROCESS,
BUT CHALLENGES REMAIN (2008) available at http://www.gao.gov/new.items/d08935.pdf.
80
U.S. GOV’T ACCOUNTABILITY OFFICE, GAO-08-940, U.S. ASYLUM SYSTEM, SIGNIFICANT VARIATION EXISTED
IN ASYLUM OUTCOMES ACROSS IMMIGRATION COURTS AND JUDGES (2008) available at
http://www.gao.gov/new.items/d08940.pdf, U.S. GOV’T ACCOUNTABILITY OFFICE, GAO-08-935, supra note 79;
RAMJI-NOGALES ET AL, supra note 73; Transactional Records Access Clearinghouse, TRAC Immigration Report:

Benson and Wheeler, Report for the Administrative Conference of the United States

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The DOJ responded to some of this criticism in 2006 when Attorney General Alberto Gonzales
ordered a “comprehensive review” of the immigration courts and the BIA. Based on that review,
he directed implementation of twenty-two measures, most of which involved the immigration
courts and the single largest number of which, nine, involved selection training, supervision, and
performance evaluation of judges and BIA members.81 In June 2009, EOIR announced that it had
substantially completed implementation of the twenty-two measures82 and claimed completion of
other measures in subsequent press releases.83 We discuss these measures below, although we
have not built our analyses around them.

A. The Basic Problem
A constant in the recent literature about immigration removal adjudication is the gap between
resources—in particular the number of judges—and the workload facing the courts and to a
lesser degree, the BIA. The ABA Immigration Commission put it succinctly: “[n]umerous
stakeholders and commentators have recognized what IJs also know: the EOIR is underfunded
and this resource deficiency has resulted in too few judges and insufficient support staff to
competently handle the caseload of the immigration courts.”84 EOIR and DOJ have sought
vigorously and with some success to receive additional appropriations with which to hire more
judge “teams” (a judge, law clerk, and support staff), but we strongly doubt that substantial
additional resources are in the cards.

1. Workload
In 2011, the immigration courts received 430,574 total “matters,” up by nine percent from 2010.
They completed 394,307 matters, up by eleven percent (11%) from 2010. Per judge, they
completed 1,494 matters on average, up from up from 1,338 matters on average in 2010. The
“per judge” figure is a rough one, calculated principally for comparative purposes, because we
used the 264 judges on board in May 2012 as the base number.85
a. Completed Matters
Completed matters in 2011 included:


75,258 bond redetermination matters (roughly 283 on average for each of the 264 judges
reported in office in 2012);

Asylum Disparities Persist, Regardless of Court Location and Nationality, SYRACUSE Univ., (Sept. 24, 2007),
http://trac.syr.edu/immigration/reports/183/.
81
Executive Office of Immigration Review, Caseload Performance Reporting Needs Improvement, supra note 79.
82
Executive Office for Immigration Review, Office of the Director & Office of Legislative & Public Affairs,
EOIR’s Improvement Measures—Update, U.S. DEP’T JUST., (2009), available at
http://www.justice.gov/eoir/press/09/EOIRs22ImprovementsProgress060509FINAL.pdf.
83
E.g., Executive Office for Immigration Review, Office of the Director & Office of Legislative & Public Affairs,
The Executive Office for Immigration Review Announces New Process for Filing Immigration Judge Complaints,
U.S. DEP’T JUST., (2010), available at
http://www.justice.gov/eoir/press/2010/IJConductProfComplaints05192010.pdf, Executive Office for Immigration
Review, Office of the Director & Office of Legislative & Public Affairs, EOIR Completes Digital Audio Recording
Implementation, U.S. DEP’T JUST., (Sept. 2, 2010),
http://www.justice.gov/eoir/press/2010/EOIRCompletesDAR09022010.htm.
84
ABA Comm’n on Immigr. Rept., 2010, supra note 32, at 2-16.
85
Id. at B-4.

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


June 7, 2012
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15,762 motions to reopen or reconsider (roughly sixty per judge, on average); and
303,287 completed proceedings (roughly 1,149 per judge, on average).86

b. Hearings
For 2010’s 287,207 completed proceedings, judges held 852,230 hearings87 (not all of them in
2010), roughly 3,626 hearings per judge, on average. This figure is imprecise for several reasons.
For one thing, we used 235 judges as the denominator, based on a September 2010 EOIR report
that “more than 235” judges were then in office.88 For another, OPAT counts a master calendar
hearing for multiple respondents as multiple master calendar hearings.89 (We did not ask OPAT
to generate data on hearings conducted for the proceedings completed in fiscal 2011.)
Of 2010’s 287,207 completed proceedings:
•

slightly less than half—139,065—had master calendar hearings but no individual calendar
proceedings; 127,715 of those had more than one master calendar hearing. At some point,
though, the respondent either conceded removability or failed to appear for subsequently
scheduled hearings.

•

slightly more than half of the 287,207 completed proceedings—146,142—had at least one
individual calendar hearing, and 56,519 of the completed proceedings had more than one
individual calendar hearing. 90

There is no separate code in the OPAT data system for pre-hearing or similar conferences.91
Judges and court administrators typically code such conferences as master calendar or individual
calendar hearings. Thus the figures above don’t represent completely accurate counts of actual
master and individual calendar hearings.
c. Variations in Per Judge Workloads
The number and mix of matters varies greatly from court to court. Because EOIR has no system
of “weighting cases” according to the average time different case types require of judges, it is
difficult to compare the actual workload of judges in different courts around the country.
Nevertheless, in 2011, in nine courts (using the 2012 judge counts), the per judge completion
figure for all matters was 750 or less. For ten courts, it was over 3,200. Table C displays courts
with the lowest and highest matters per judge; Appendix 3 presents the figures for all courts.
These per judge figures are approximations. For one thing, judges sometimes serve temporarily
in other courts, either in person or by video.

86

Statistical Year Book, 2011, supra note 4.
OPAT DATA, supra note 44.
88
Executive Office for Immigration Review, Office of the Director & Office of Legislative & Public Affairs, EOIR
Swears in Omaha Immigration Judge, U.S. DEP’T JUST., (Dec. 5, 2008),
http://www.justice.gov/eoir/press/08/DCInvest1IJ120508.htm; EOIR at a Glance, supra note 3.
89
Id.
90
OPAT DATA, supra note 44.
91
Id.
87

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Table C: Matters Per Court and Per Judge

SAN DIEGO
FISHKILL
HONOLULU
SAN FRANCISCO
PORTLAND
GUAYNABO
NEW YORK CITY
PHILADELPHIA
MIAMI
LANCASTER
HARLINGEN
LOS FRESNOS
EL PASO
YORK
STEWART
HOUSTON SPC
TACOMA
PEARSALL
OAKDALE
TOTAL (all 59 courts)

Judges
(April
2012)
6
0.5
2
18
2
2
29
4
15
3
4
2
2
2
3
3
2
2
3
264

Comp.
Proc.
3,021
287
967
9,172
1,226
1,133
18,382
2,617
10,030
5,854
9,797
3,653
6,408
5,389
11,342
11,067
6,277
6,612
12,359
303,287

Comp.
Proc./
Judge
503
574
483
509
613
566
633
654
668
1,951
2,449
1,826
3,204
2,694
3,780
3,689
3,138
3,306
4,119
1,149

Bonds
132
0
269
1,833
43
119
0
0
2
3,736
2,625
3,035
820
2,515
1,716
3,299
3,672
3,451
5,595
75,258

Motions
239
17
47
583
80
128
1,919
244
1,212
38
525
52
164
66
26
43
57
21
54
15,762

All
Matters
3,392
304
1,283
11,588
1,349
1,380
20,301
2,861
11,244
9,628
12,947
6,740
7,392
7,970
13,064
14,409
10,006
10,064
18,008
394,307

Per
Judge
565
608
642
644
675
690
700
715
750
3,209
3,237
3,370
3,696
3,985
4,355
4,803
5,003
5,032
6,003
1,494

.
d. Contesting Removability and Seeking Relief
The general view among immigration judges is that almost all respondents concede removability
but seek to remain in the country by applying for some form of relief from removal, for example,
by making a claim for asylum, adjustment of status, or cancellation of removal. In fact, though,
the 2011 EOIR Statistical Year Book reports that only twenty-four percent (24%) of all
proceedings involved applications for relief, down by one percent from 2010 and five percent
from 2003.92 Appendix 3 shows the percentage of completed 2011 proceedings for each court
that involved an application for relief, and Table D shows the courts with highest and lowest
percentage of proceedings with applications for relief.
At first glance, that nationally only twenty-four percent (24%) of cases involved applications for
relief might indicate that immigration courts have little to do, but in addition to the cases with
applications for relief are cases with applications resulting in voluntary departure (seven and a
half percent) or in terminations of proceedings (six percent). These cases, especially
terminations, can involve significant judicial work. Adding these types of determinations to the
cases where relief is sought means that in approximately thirty-eight percent (38%) of the docket
involved some of the most complex and from the perspective of the respondent some of the most
important adjudications. There is, moreover, considerable variation in individual courts’ case
mix, including the proportion of cases involving requests for relief. As Table D shows, for the

92

Statistical Year Book, 2010, supra note 4, at N1.

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most part, courts with few applications for relief are those with large detained populations and
large proceedings-per-judge ratios.
Table D: Comparison of Detained Courts
STEWART
OAKDALE
TUCSON
HOUSTON SPC
IMPERIAL
PEARSALL
FLORENCE
EL PASO SPC
SEATTLE
BALTIMORE
HONOLULU
ORLANDO
GUAYNABO
NEW YORK CITY
TOTAL (all 59 courts)

Judges
3
3
2
3
1
2
3
3
3
5
2
6
2
29
264

Comp.
Per
Proc’s.
Judge
11,342
3,780
12,359
4,119
3,688
1,844.
11,067
3,689
943
943
6,612
3,306
5,619
1,873
4,082
1,360
3,080
1,026
4,732
946
967
483
4,562
760
1,133
566
18,382
633
303,287
1, 494.

% proc’s. w/
app. for relief
2%
3%
3%
6%
8%
8%
8%
8%
45%
45%
46%
47%
51%
66%
24%

e. Comparisons to Other High-Volume Administrative Courts
Comparisons of the immigration court per-judge 2011 completion rate (on average, 1,494
matters) to those in other high volume adjudication agencies are stark—an average of 544
dispositive hearings per year in 2007 for Social Security Administration ALJs,93 and 819
decisions per year in 2010 on average for Veterans Law Judges.94 The comparison with federal
district courts is even starker, even granting that cases in federal district court deal with a much
wider range of issues. In 2011, each federal district judge terminated an average 566 cases but
very few of those terminations involved trials or other evidentiary hearings. They held, on
average, nineteen proceedings at which evidence was taken.95 What that points to is a different
situs for the work of an immigration judge (principally in the courtroom) and the federal district
judge (principally in chambers).

2. Consequences
The increase in per judge workload to date has had two main consequences: growing backlogs
and overworked judges and staff.
The Transactional Records Clearinghouse (TRAC) at Syracuse University has been tracking
pending cases in the immigration courts for over ten years. EOIR began reporting pending cases
a few years ago (at pages Y 1 and 2 of the Year Book), and the EOIR and TRAC figures seem

93

ABA Comm’n on Immigr. Rept., 2010, supra note 32, at 2-37.
Briefing material from BVA officials (August 9, 2011) at 16 (on file with authors).
95
Calculated from data in Judicial Business of the U.S. Courts 2011, supra note 1, at Tables C and D (terminations
per judge) and Federal Court Management Statistics, 2011, All District Courts, available at
http://www.uscourts.gov/viewer.aspx?doc=/uscourts/Statistics/FederalCourtManagementStatistics/2011/District
FCMS Profiles September 2011.pdf&page=1.
94

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compatible. The latest data, report by TRAC through the end of March 2012, show 305,556
pending cases, and the figure below, taken from the TRAC Website, show the growth in pending
cases since 1998, and that the 305,556 figure for the end of March 2012 is up from 297,551 for
the 2011 fiscal year.96

Average days from filing to completion have also been growing, as shown by this TRAC
graphic, again current as of the end of March 2012. Average days of cases pending then were
519, up from 489 in fiscal year 2011.

96

Transactional Records Access Clearinghouse, Immigration Court Backlog Tool, Pending Cases and Length of
Wait in Immigration Courts, SYRACUSE UNIV., (2012), available at
http://trac.syr.edu/phptools/immigration/court_backlog/.

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In short, the slight increases in the number of immigration judges have not been sufficient to
reverse the trend of growing backlogs and increased time to disposition.
The mismatch of workload to judges means that judges must often defer some cases they are
scheduled to hear. Our survey asked the judges to identify in their own words—as to cases
scheduled for master calendar and individual calendar hearing sessions—“the four most common
reasons that all cases are not addressed.” The most frequently entered reason for both was some
variation of “more cases scheduled for the session than the judge was able to complete.” As to
master calendar sessions, thirty-three percent (33%) of the judges responding gave some
variation of that reason, and forty-six percent (46%) of those responding gave such a reason for
not being able to complete all individual calendar hearings scheduled.
The other consequence of the growing imbalance between workload and workforce is the time
pressure on judges to move cases, a pressure that crowds out other activities that are part of being
a judge—from issuing reasoned opinions in contested cases that explain the judge’s decision to
the parties and appellate bodies on the one hand, to continuing education (formal and otherwise)
on the other. An oft-cited 2008 survey of immigration judges, based on standard cross-vocational
measures, found higher levels of stress and burnout than in almost any other profession
surveyed.97 As of mid-2009, according to TRAC, judges on average had seventy minutes to deal
with each matter received, down from 102 minutes in 1999.98 Our interviews with judges
enforced this perception of time pressure, in particular many judges’ insistence that they had no
time to conduct status or issue-narrowing conferences prior to individual merits hearings.99

3. Prospects for the Future
EOIR may be looking, not at additional appropriations, but rather at flat line or reduced funding,
which would widen even more the gap between workload and workforce. Like most federal
agencies, it could face reductions due to the across-the-board spending cuts resulting from the
failure of the so-called “super committee” to produce a deficit reduction plan.
Absent unexpected caseload reductions, any funding cuts will mean even wider gaps
between EOIR’s workload and its workforce. EOIR’s director told the Senate Judiciary
Committee in May 2011 that he anticipates the loss of about ten judges per year due to “normal
attrition.”100 When we began our study, in April 2011, the EOIR website showed 270
immigration judges; as updated in May 2012, it showed 264. (A decline in the number of judges
is not unheard of: the number dropped from 218 in 2003 to 205 in 2007.)101 Furthermore,
although judges are the principal resource for processing the immigration courts caseload, they
need the assistance of legal and administrative staff. In 2009, the immigration courts employed

97

Lustig et al., supra note 76.
Transactional Records Access Clearinghouse, Maximum Average Minutes Available per Matter Received,
SYRACUSE UNIV., (June 2009), http://trac.syr.edu/immigration/reports/208/include/minutes.html.
99
See discussion, infra at V.c.1.b.[2] text accompanying note 189.
100
Improving Efficiency and Ensuring Justice in the Immigration Court System: Hearing Before the S. Comm. on
the Judiciary, 112th Cong. (2011) (statement of Juan P. Osuna, Director, Executive Office for Immigration Review),
at 3, available at http://www.justice.gov/eoir/press/2011/EOIRtestimony05182011.pdf .
101
Transactional Records Access Clearinghouse, Number of Immigration Judges, 1998-2008, SYRACUSE UNIV.,
(July 2, 2008) http://trac.syr.edu/immigration/reports/189/include/payroll.html.
98

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sixty-two law clerks, or one for every three and seven-tenths judges.102 As of May 2011, that
number had increased to eighty-six,103 lowering the ratio to three and one-tenth.
Spending cuts that would preclude additional EOIR resources could also preclude more DHS
apprehensions. Regardless, the growth in DHS’s controversial “Secure Communities” program
may produce more NTAs. Under “Secure Communities,” ICE—using information that local law
enforcement agencies provide the FBI about individuals booked into local jails—begins removal
actions against those whom ICE finds are here illegally or are removable based on criminal
convictions. ICE says it has expanded Secure Communities from fourteen jurisdictions in 2008
to more than 1,300 in 2011, and plans to expand to all law enforcement jurisdictions by 2013.104
EOIR officials told us they feared that expanded use of the program could “eat up the [detention]
system” by injecting into it increasing numbers of people with low-level criminal convictions or
traffic offenses. That in turn could add to the immigration courts’ caseload as individuals seek
adjudications to contest removability or to seek one of the limited forms of relief only available
once a person is in removal proceedings, such as cancellation of removal105 or withholding of
removal. There is no mechanism to affirmatively file for these kinds of relief. Thus some people
are better off in removal proceedings. Oddly, for some people the only path to lawful permanent
resident status is to seek relief in removal proceedings as opposed to affirmatively filing for
status with USCIS.
EOIR and DHS personnel provided different views of the extent to which Secure Communities
has generated additional respondents. If Secure Communities generates more cases, it will most
likely increase the immigration court workload, or at least change the mix of cases before the
judges. It is also unclear how Secure Communities enforcement will be affected by the apparent
heightened commitment within the executive branch to exercise its discretion to pursue removal
of aliens who are the strongest candidates for removal (discussed below).

B.

Principal Policy Emphasis

The pervading theme in our report is enhancing the immigration courts’ ability to dispose of their
caseloads fairly and as quickly and as economically as possible. (Economic operation in this
context refers to costs to the government and costs to the parties.) This broad goal implicates
almost all the specific areas of comment and criticism directed in recent years at immigration
removal adjudication and the agencies that conduct it, as well as some aspects of the removal
adjudication process that have received little attention.
As we see it, the need to do more work without commensurate or even any increase in resources
points to four principal policies that EOIR must emphasize:



102

strengthening its longstanding request that DHS filter more carefully the NTAs that it
files;
experimenting with efforts to reduce the need for immigration judge hearing time by use
of a range of case management methods, including but not limited to some that that are

ABA Comm’n on Immigr. Rept., 2010, supra note 32, at 2-17.
Id. at 3-4.
104
Secure Communities, U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT,
http://www.ice.gov/secure_communities/# (last visited Dec. 31, 2011).
105
See INA §§ 240A(a) and 240A(b) (2010); 8 U.S.C. §§ 1229b(A)(a), 1229b(b) (2006).
103

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already authorized by rule, endorsed by the OCIJ Practice Manual,106 and, in some cases,
have been effective in other high-volume courts;
shifting some matters to more appropriate forums outside EOIR where they can be
resolved as or more effectively than in the immigration courts and the BIA, and thus
freeing time to devote to matters that remain; and
expanding its efforts to enhance the availability of quality representation, and of legal
advice and information, to respondents as a means of easing the burden on the system
caused by non-citizens’ trying to negotiate on their own a complex adjudication process
that few of them understand.

We present analyses and recommendations beyond the scope of these four broad areas, but they
are our principal emphases.

V. PROPOSALS FOR CHANGE AND UNDERLYING ANALYSES
We turn now to assess possible changes in immigration removal adjudication, and the agencies
that conduct it, in terms of the three strategies of resource enhancement, demand reduction, and
process modification.

A. Resource Enhancement
EOIR should continue to seek appropriations beyond current services levels but plan for changes
that will not require new resources.
Analysis
EOIR is underfunded. The imbalance between demand and resources is reflected in the judges’
survey responses, reported earlier, on why not all cases scheduled for master and individual
calendar sessions can be heard as scheduled. We also asked the judges to “[c]onsider the concept
of a model immigration court” and to rank four of twelve listed items that they believed “would
most contribute to creating and sustaining such a court,” and, separately, to identify, from among
ten listed factors, the four that they believed “would most improve your court.” Of the 181
judges who responded to the survey, the same number, 158, answered both questions, and
resources were at the top of both lists. For the model court, sixty-three percent (63%) selected
“adequate time for the judge to review the file” and sixty-one percent (61%) selected “a
sufficient number of law clerks.” For the “improve your court” question, seventy-two percent
(72%) selected “additional law clerks” and sixty-one percent (61%) selected the mirror image of
“more judges,” i.e., “fewer cases.” (The other responses selected by substantial numbers on both
questions involved more counsel for respondents and better prepared counsel on both sides.)
Appendix 5 presents the complete responses to both questions.
Most reports about immigration adjudication recommend outright increase in resources—
especially more judges—as well as changes that hinge on additional resources. Budget realities
in 2012 and beyond make additional EOIR resources highly unlikely and justify skepticism
about proposed changes that, without more resources, would require EOIR to tolerate longer
106

The OFFICE OF THE CHIEF IMMIGRATION JUDGE, PRACTICE MANUAL (2008), available at
www.justice.gov/eoir/vll/OCIJPracManual/Practice%20Manual%20Final_compressedPDF.pdf (finalized in 2008 by
a team of immigration judges with input from DHS and the private bar) [Hereinafter OCIJ PRACTICE MANUAL].

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times to disposition. In 2010, the ABA Immigration Commission called, for example,107 for more
judges; for “[r]equir[ing judges to issue] more written, reasoned decisions” which would require
“additional resources” including not only more judges, but other changes, such as increasing
judges’ administrative time, additional training (requiring “sufficient funding”) and related
support. It also called for full installation of digital recording of proceedings and reduction of
video hearings (with corresponding increases in travel costs); and “greater use of pre-hearing
conferences.”108 If implemented without additional judges or reduced caseloads most of these
changes would probably lengthen completion times. More continuing education might make the
existing corps of judges so much more efficient as to shorten case completion times, but that’s
speculative at best. We discuss later the potential value of more pre-hearing conferences.
Congress should support the mission that it has assigned EOIR by providing larger
appropriations, but our focus is on recommendations to use resources more effectively. Here we
offer suggestions about temporary resource allocation and better estimating resource needs. (We
note but do not comment on a recent National Research Council report on immigration
enforcement that recommended significant changes in DHS and DOJ budgeting approaches,
including a suggestion that the two agencies work more closely to develop budget models to
assess the agencies’ needs more accurately. The report praised the agencies for their flexibility
and ability to “make due” with resource allocations but warned that failing to coordinate the
agency budgets and priorities may make achieving enforcement goals more difficult.109)

1. Temporary Immigration Court Personnel
EOIR, as it prepares regulations authorizing temporary immigration judges, should, consider
whether short-term temporary judges can bring the skill set required of an immigration judge. In
any event, it should include transparent selection procedures and rigorous procedures for
monitoring temporary judge performance. We think it should consider the National Association
of Immigration Judges’ proposal for recalling senior judges for temporary assignment.
And, in light of our survey findings, EOIR should consider, in addition to or in lieu of temporary
judges, selecting available employees (from the same or a broader pool from which it would
recruit temporary judges) as temporary immigration court law clerks.
Analysis
a. Judges
Regulations allow for the appointment of temporary BIA members from within EOIR and
DOJ.110 OCIJ officials told us that EOIR is working on a parallel regulation to allow the
appointment of temporary immigration judges but would provide no further information (other
than they would be drawn from mid-career GS-15 employees) because the regulations are in
development. Recent controversies over the since-corrected politicized hiring of immigration

107

ABA Comm’n on Immigr. Rept., 2010, supra note 32, at 2-2, 2-3, 3-2 (summarizing the recommendations).
Id. at 2-382-42.
109
See BUDGETING FOR IMMIGRATION ENFORCEMENT, A PATH TO PERFORMANCE (NATIONAL ACADEMIES PRESS
2011) available at http://www.nap.edu/openbook.php?record_id=13271&page=5
110
8 C.F.R. § 1003(a)(4), The EOIR website describes the authority and its use at
http://www.justice.gov/eoir/fs/biabios.htm#Temporary_Board_Memberst
108

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judges make it essential that EOIR’s processes for hiring the temporary judges and monitoring
their work be transparent; we assume they will be.
Some commentators on our earlier drafts doubted that temporary judges—if drawn from the
same DOJ and EOIR employee pools as the temporary BIA members—would have the
knowledge of immigration law and procedures (including circuit variations) that permanent
judges are presumed to have. Perhaps more important, said the commentators, they would be
unlikely to have skills of judicial deportment, docket management, and courtroom control that
OCIJ seeks to develop in permanent judges through initial and continuing education and that
judges acquire through experience. We cannot say more because EOIR did not provide us with
the draft regulations.
NAIJ has proposed using retired immigration judges as senior judges, citing recent statutory
authority for agencies to hire retired federal employees on a part-time basis, during which time
they would receive both their annuity and a salary.111 We do not know what that would cost.
b. Law clerks
EOIR might consider temporary immigration court law clerks, in lieu of or in addition to
temporary judges. We presume that DOJ and EOIR personnel who could be spared for
temporary judicial service—or even a wider pool that includes employees at lower GS levels—
could also be spared to serve as temporary law clerks and might be better suited for those
positions than for trial judge positions. Law clerks emerged as a pressing need in two questions
in our survey. As we reported above, sixty-one percent (61%) of the judges selected a “sufficient
number of law clerks” as an item that would “most contribute to creating a ‘model immigration
court,’” almost the same as the sixty-three percent (63%) who selected “adequate time for judge
to review the file.” As to items that “would most improve your court,” seventy-two percent
(72%) selected “additional law clerks,” ten percent more than the sixty-one percent (61%) who
selected “fewer cases.”
A response to our survey reported a rumor that, immigration courts may see fewer law clerks
next year. If true, that would bolster the case for temporary law clerks.

2. Refined Data on Immigration Court Caseloads
a. Case Weighting
EOIR should explore case weighting systems in use in other high volume court systems to
determine their utility in assessing the relative need for additional immigration judges and more
accurate monitoring and reporting of immigration court workload, and consider a pilot project to
test one or more methods.
Analysis
In any judicial system, different types of cases require different amounts of judicial time. An
immigration judge responding to our survey claimed that “[o]ne mental disability case on a 20111

Improving Efficiency and Ensuring Justice in the Immigration Court System: Hearing Before the S. Comm. on
the Judiciary, 112th Cong. (2011) (statement of National Association of Immigration Judges), available at
http://dl.dropbox.com/u/27924754/NAIJ%20Written%20Statement%20for%20Senate%20Judiciary%20Cmte%20518-11%20FINAL.pdf (citing the National Defense Authorization Act (“Act”) for FY 2010, Public Law 111-84).

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case detained docket is equivalent to 30/40 cases.” Looked at from a different angle, of the
judges responding to our survey query as to the number of merits hearings they conduct in a
typical week, thirty-nine percent (39%) selected “6 to 10” while twenty-nine percent (29%)
selected “11 to 15.” We don’t know whether, on average, those who conduct six to ten hearings a
week were less efficient than those who conduct eleven to fifteen, or had more demanding
caseloads.
To assist in analyzing and justifying the need for additional judgeships and support staff and for
allocating or reassigning those resources, courts have developed methods for determining
relative “weights” for different case types—measures of the work required to dispose of different
types of cases that are more accurate than raw filing data. A case type with a relative weight of
2.00 for example, typically requires twice as much time as a case type with a relative weight of
1.00. At least since the mid-1990s, the National Center for State Courts has provided guidance
on weighting caseloads.112 The federal judiciary has assigned weights to district court cases since
1946 and publishes each court’s annual weighted filings.113 For some specifics: the case
weighting system used by the federal courts assigns weights to sixty-one different case types—a
weight of 12.89 to “Death Penalty Habeas Corpus” cases, for example, 1.12 to “Drug Offense—
Manufacture” cases and 0.57 to “Alien Smuggling” cases.114 Not all cases of a certain type
present the same time demands. To use the examples above, not every actual ”Drug Offense—
Manufacture” case will require twice as much time as every actual ”Alien Smuggling” case.
However, in the aggregate, the patterns that emerge from large numbers of cases of each type
present an accurate relative indicator of the time required to dispose of those cases.
The cases filed with a court or courts, when weighted, can be aggregated for comparative
purposes. In the year ending June 2011, nationally, raw filings per federal district judge
nationally were 549 but weighted filings were only 490. In some courts, however, the balance
was strikingly different. In the Eastern District of Texas, raw filings were 451 (thirty-fourth in
the nation) but weighted filings were 683 (third in the nation).115 See Appendix 5
Case weights serve two primary purposes. First, they provide a more accurate, and thus more
credible, description of the number of judges needed to handle a caseload. An EOIR
appropriations request for X additional judges to deal with Y anticipated raw filings tells
Congress less than a requested based on weighted filings. A raw-filings-based request provokes
the implicit question “How much additional work will the anticipated caseload require? Will it
demand enough additional work to justify additional judges?” Or consider the fact we reported
earlier: despite the conventional wisdom that almost all respondents seek some form relief from
112

See, e.g., Brian J. Ostrom & Neal B. Kauder, Examining the Work of State Courts, 1997: A National Perspective
from the Court Statistics Project Judicial Workload Assessment, NAT’L CENTER FOR STATE COURTS (1998)
available at http://contentdm.ncsconline.org/cgi-bin/showfile.exe?CISOROOT=/ctadmin&CISOPTR=24 and Victor
E. Flango & Brian J. Ostrom, Assessing the Need for Judges and Court Support Staff, NAT’L CENTER FOR STATE
COURTS (1996) available at http://contentdm.ncsconline.org/cgibin/showfile.exe?CISOROOT=/ctadmin&CISOPTR=407.
113
Administrative Office of the U.S. Courts, 2010 Federal Court Management Statistics (2010) at vii-viii and
passim.
114
See Figure 4: Final Case-Weight Values Presented to the Subcommittee for Approval, in PATRICIA LOMBARD &
CAROL KRAFKA, 2003-2004 DISTRICT COURT CASE—WEIGHING STUDY, REP.TO THE SUBCOMM. ON JUDICIAL
STATISTICS OF THE COMM. ON JUDICIAL RESOURCES OF THE JUDICIAL CONFERENCE OF THE U.S. (2005) at 60-62,
available at www.fjc.gov/public/pdf.nsf/lookup/CaseWts0.pdf/$file/CaseWts0.pdf
115
Supra note 19, at 83, 167.

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removal, in fact only twenty-four percent (24%) of 2011’s completed proceedings involved an
application for relief. The first conclusion from that fact might be that immigration courts see a
lot of proceedings, but most of them are relatively simple. A weighted caseload index would
allow a more precise analysis.
One response to our earlier draft was that EOIR’s need for more judges is apparent without
weighted caseload measures. That is true but weighted caseloads serve a purpose in addition to
documenting the need for additional judges, namely facilitating more sophisticated management
analysis. Later in our report, we note that the two largest courts in the system—New York City
and Los Angeles—account for a disproportionate number of the adjournments (continuances)
granted in all courts for all fiscal 2010 completed proceedings. Those two courts, however,
ranked relatively low, nationally, in proceedings per judge. These facts might indicate poor case
management but might also or instead reflect the comparative difficulty or complexity of the
proceedings themselves. Those courts include a disproportionately large number of more
difficult cases—proportionately more cases seeking relief, for example, which may require more
adjournments—but accurate weighted caseload figures would allow more sophisticated analysis.
There are a variety of methods for weighting cases. In “diary studies” judges record the time they
spend on their cases over a period of several weeks. “Delphi” techniques use an iterative process
through which judges reach consensus agreement on the judicial time , on average, that different
case types consume—or the time they require, which may not be the same thing. Some courts
use “event-based weighting,” which assesses the various events that occur typically in different
case types and build weights based on the number of events that typically occur in different types
of cases and the time required to complete them. Determining case weights takes judge time—
especially diary studies—but they reap benefits.
Policy-makers in assessing resource needs consider research-derived weights but do not apply
them blindly to current caseload data. Rather they consider views of judges and administrators in
individual courts who may claim that the weights derived nationally may need adjustment due to
local idiosyncrasies. They assess the likelihood that current allocations of case type will change
in the foreseeable future. And, of course, they balance the resource needs indicated by the case
weights with the realities of what requests funding authorities will find reasonable (even if they
cannot grant them).
Immigration court case weights have received little attention in the popular and academic
literature. The ABA Immigration Commission made a passing reference to one weighting
approach,116 and the NAIJ, in 2011 Senate Judiciary Committee testimony,117 advocated EOIR’s
adopting the case-weighting method that the federal courts used in 2003-04 (a method using both
events analysis and Delphi-like techniques). 118
116

See also ABA Comm’n on Immigr. Rept., 2010, supra note 32, at 308.
Supra note 111.
118
See Lombard and Krafka, supra note (describing various approaches to case weighting); Federal Judgeships:
General Accuracy of District and Appellate Judgeship Case-Related Workload Measures Hearing Before the S.
Comm. on the Judiciary, 109th Cong. (2008) (statement of William O. Jenkins, Director of Homeland Security and
Justice) available at www.gao.gov/assets/130/120386.pdf (critiquing the Lombard & Krafka Study); Chad C.
Schmucker, How We Determine the Number of Judges We Need, MICH. B. J., July 2011, at 18, available at
http://www.michbar.org/journal/pdf/pdf4article1877.pdf; Letter from William A. VanNortwick, Chair, Supreme
Court of Florida Committee on District Court of Appeals Performance & Accountability, to Peggy A. Quince, Chief
Justice, Supreme Court of, Florida (October 13, 2009) available at
117

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OCIJ officials told us informally they thought the weighted caseload concept may merit further
exploration, especially if it appears likely that it could result in cost savings and efficiencies, but
that EOIR did not have funds at present to undertake the effort.
b. Documenting NTA Origination
DHS should revise the NTA form to allow the completing officer to indicate clearly and easily
the officer’s agency affiliation, being as specific as possible about the entity preparing the NTA.
Likewise we think EOIR should expand its data collection field, using the NTA agency
identification, to maintain aggregate data on which DHS agencies file NTAs.
Analysis
There is no single repository of readily available information on the proportion of NTAs filed by
each DHS agency and no data that track the NTAs prepared by state and local governments
pursuant to INA § 287(g) joint enforcement agreements. In May 2009, the ABA Commission
sought information from DHS on its NTAs and in November, 2009, received six years of data
organized according to which DHS component issued the NTA.119
It is hard to see how EOIR would not benefit from having timely comparative information on
where its work comes from, both nationally and within the various courts. Such data might
provide insight on whether NTAs from the different elements of DHS require different levels of
judicial time “to sort out discrepancies and ambiguities,” as several judges put it. NTA source
data could also be an element in any case weighting scheme, if the different agencies produce
cases that tend to vary in complexity. DHS officials told us informally that they believed it
would be inappropriate for EOIR to assess the relative quality of DHS components’ NTAs. That
task, they believe, is DHS’s responsibility. We think, however, that EOIR would be well within
its authority to look for possible systemic links between different agencies’ NTAs and the extent
of judicial work they engender. We do not see how EOIR’s doing so would infringe on any
evaluation DHS may wish to undertake, which we presume might be for different reasons than
EOIR’s.
The NTA includes the name and title of the DHS officer who filed it, but that information will
not necessarily tell a court administrative staff which agency filed the NTA. To implement this
suggestion, DHS may have to amend the NTA form, preferably with fields to allow the
completing officer to check the relevant agency identifiers. EOIR would have to expand its data
collection to capture the information. EOIR officials told us they are amenable to including this
new field once their electronic docketing system is operational.

B.

Direct Some EOIR Work to Other Agencies

We propose directing some categories of disputes now adjudicated by the immigration courts or
the BIA to other decision-makers with the opportunity in some cases for further EOIR review.
We also propose shifting certain case-processing related tasks currently that judges and staff
currently perform to other agencies. The purpose of these recommendations is to direct the tasks

www.flcourts.org/gen_public/pubs/bin/2009ReviewOfRelativeCaseWeights.pdf. See also ABA Comm’n on Immigr.
Rept., 2010, supra note 32, at 308.
119
See ABA Comm’n on Immigr. Rept., 2010, supra note 32, at 1-1025.

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in question to DHS forums that can perform them as well or better than the EOIR agencies and in
turn to enable those agencies to attend more quickly to DHS prosecutions.

1.

DHS Review of NTAs

We endorse the ABA Immigration Commission recommendation that DHS pilot test in offices
with sufficient resources a requirement for lawyer approval for the issuance of any NTA. The
best practice would be ICE-attorney NTA review and approval rather than by attorneys in other
DHS components because ICE is the agency that must commit the resources to prosecute and
execute removal orders.
Analysis
DHS is able, given its resources, to issue NTAs for only a small fraction of the roughly 11
million individuals who are in the country unlawfully. Thus, ICE, like its predecessor agencies,
has issued advisories to field personnel setting out prosecutorial priorities to guide ICE officers
and attorneys.120
A June 2011 memorandum from ICE director John Morton identified ICE’s enforcement
priorities as promoting national security, border security, public safety, and the integrity of the
immigration system. It provided a non-exclusive list of nineteen (mainly humanitarian) factors to
consider.121 The memo said that a legitimate exercise of prosecutorial discretion also includes
deciding whether to issue, file, serve, or cancel an NTA. Also, USCIS recently initiated a
significant number of removal proceedings and in November, issued a memorandum that appears
to direct USCIS officers to seek supervisory review before placing persons in removal and
parallels some of the prosecutorial priorities in recent ICE memoranda.122
In August, the administration created an interagency task force to identify those awaiting
removal proceedings who are most appropriate for the exercise of prosecutorial discretion.123 It
issued further instructions and initiated case-by-case reviews of pending cases in November124

120

See John Morton, Director, U.S. Immigration & Customs Enforcement, Exercising Prosecutorial Discretion
Consistent with the Civil Immigration Enforcement Priorities of the Agency for the Apprehension, Detention, and
Removal of Aliens, U.S. DEP’T HOMELAND SECURITY, (June 17, 2011) available at
http://www.ice.gov/doclib/secure-communities/pdf/prosecutorial-discretion-memo.pdf and earlier documents cited
therein. See also, CIS Policy Memorandum on when to issue a Notice to Appear, infra note 122.
121
Id.
122
See U.S. CITIZENSHIP & IMMIGRATION SERVICES, U.S. DEP’T HOMELAND SECURITY, PM-602-0050, REVISED
GUIDANCE FOR THE REFERRAL OF CASES AND ISSUANCE OF NOTICES TO APPEAR (NTAS) IN CASES INVOLVING
INADMISSIBLE AND REMOVABLE ALIENS (2011) available at
http://www.uscis.gov/USCIS/Laws/Memoranda/Static_Files_Memoranda/NTA%20PM%20(Approved%20as%20fi
nal%2011-7-11).pdf.
123
See Cecilia Munoz, Immigration Update: Maximizing Public Safety and Better Focusing Resources, THE WHILE
HOUSE (Aug. 18, 2011, 2:00PM), http://www.whitehouse.gov/blog/2011/08/18/immigration-update-maximizingpublic-safety-and-better-focusing-resources; Letter from Janet Napolitano, Secretary of Homeland Security, to
Harry Reid, Senator Majority Leader (Aug. 18, 2011) available at
http://democrats.senate.gov/uploads/2011/08/11_8949_Reid_Dream_Act_response_08.18.11.pdf.
124
See Julia Preston, U.S. to Review Cases Seeking Deportations, N.Y. TIMES, Nov. 17, 2011, at A1; Peter Vincent,
Principal Legal Advisor, U.S. Immigration & Customs Enforcement, Case—by—Case Review of Incoming and
Certain Pending Cases, U.S. DEP’T HOMELAND SECURITY, (Nov. 17, 2011) available at
http://www.immigrationpolicy.org/sites/default/files/docs/DHS%20PD%20Case%20Review%20Memo%20111711.
pdf.

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and March, 2012. As of June, 2012, public reporting indicated that less than 21,000 pending
cases were closed pursuant to these reviews.125 EOIR has suspended or will suspend immigration
court dockets in nine cities while DHS officials review case files to determine whether to defer
prosecution of some detained respondents.126
We endorse the ABA Immigration Commission recommendation127 for two reasons. First, such a
process could identify legally insufficient NTAs and either correct or reject them. Some judges
commented in interviews on what they perceive as the failure of ICE attorneys to evaluate and
reject NTAs for legal insufficiency. We could not include a question about the extent of legally
insufficient NTAs in our survey, but the matter appeared rarely in open-ended survey comments
and the judges we interviewed who said they were frustrated by legally insufficient NTAs,
acknowledged nevertheless that they confront them rarely. DHS officials told us informally that
implementing this proposal would require what they called substantial resources; that DHS
policies, to use the officials’ word, “ensure” the efficient use of agency resources; and that if
legally insufficient NTAs still get filed, ICE attorneys can amend them or seek their dismissal in
the removal proceeding itself.
We endorse the ABA recommendation, however, because, whether frequent or not, where
possible it is best to keep the insufficient NTAs from getting into court in the first place.
We also support the ABA recommendation because it will help ensure that, before an NTA is
lodged with the court, one of the prosecuting attorneys has evaluated the case and made a
determination that the case fits current agency priorities. Some judges in our interviews
expressed frustration about NTAs that seem inconsistent with those priorities, but we were
unable to include in our survey a question to determine judges’ perceptions of changes, if any, in
DHS implementation of its recent policy guidance.
Another benefit of the ABA proposal is that the reviewing ICE attorney, at least ideally, would
also try to complete backgrounds checks to identify criminal convictions that might need to be
raised in the case during this pre-filing stage. ICE counsel often does not review a file until after
the case has commenced in the court system. In our interviews ICE officials said several times
that NTA review before the commencement of the case could be of great benefit to the system’s
operations, a comment echoed by Justice Department Office of Immigration Litigation lawyers,
who represent the government at the final stage of the process, federal court review of removal
orders.
ICE officials told us that ICE trial attorneys have the authority to reject insufficient NTAs and
ICE encourages them to do so; that ICE attorneys continue to review cases before EOIR pursuant
to agency guidance; that attorneys do review NTAs in certain circumstances; and that ICE
125

DHS expanding deportation case reviews to four more cities, will temporarily suspend court docket (Associated
Press), Washington Post, Mar. 29, 2012, available at http://www.washingtonpost.com/politics/dhs-expandingdeportation-case-reviews-to-4-more-cities-will-temporarily-suspend-courtdocket/2012/03/29/gIQArp5YjS_story.html. But cf. Julia Preston, Deportations Go On Despitre U.S. Review of
Backlog, The New York Times (June 7, 2012) at A13 available at
http://www.nytimes.com/2012/06/07/us/politics/deportations-continue-despite-us-review-of-backlog.html?smid=plshare.
126
EOIR Statement Regarding Second Stage of Case-by-Case Review Pursuant to DHS's Prosecutorial Discretion
Initiative (April 3, 2012), available at
http://www.justice.gov/eoir/press/2012/EOIRProsecutorialDiscretion04032012.htm.
127
ABA Comm’n on Immigr. Rept., 2010, supra note 32, at 1-61.

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attorneys have the opportunity to amend or seek dismissal of in the removal proceedings. Both
judges and DHS officials suggested in interviews several reasons for ICE attorneys’ possible
reluctance to reject questionable NTAs: a willingness to “let the court sort it out;” a preference
not to antagonize employees of sister agencies; the lack of time and resources to consult with
agents located elsewhere; and a reluctance to terminate any effort underway to remove a noncitizen because of the possibility, however slight, that the person might later commit a brutal
crime that the press and others would attribute to ICE’s failure to remove the individual.

2.

Preliminary Administrative Adjudication of Asylum Applications

People seek asylum by several means: they can request it when they are subject to expedited
removal, and they can apply for it outside the expedited removal context. We endorse
recommendations by the ABA Commission on Immigration and others for greater participation
by the USCIS Refugee, Asylum, and International Operations Directorate (Asylum Office) in
adjudicating asylum applications,128 and suggest additional changes.
Proposals in this and the following subsection are of a piece with “alternative dispute resolution”
(more recently “appropriate dispute resolution”) efforts in other courts. ADR proponents seek to
identify alternative, appropriate forums for some judicial work, not simply to relieve courts of
workload but also to channel work to forums best equipped to perform it.
a.

Expedited Removal

USCIS should seek to amend 8 C.F.R. § 235.6 and related regulatory provisions to authorize the
asylum officer to approve qualified asylum applications in the expedited removal context. If
necessary, USCIS should allocate additional resources to complete the asylum adjudication in
this context as there are significant cost savings for other components of DHS and for EOIR.
Furthermore, USCIS should seek to amend regulations to clarify that an individual who meets
the credible fear standard could be allowed to complete a non-adversarial asylum application
with the asylum officer. Further, once that officer is satisfied that the individual has a wellfounded fear of persecution or fear of torture, the officer should have the authority to grant
parole into the U.S. and recommend that DHS allow the individual to be released from detention
on parole pending completion of the asylum process, including required security and identity
checks. (Existing procedures would remain in place for those cases where the asylum officer
does not find the applicant met the “credible fear” standard.)129
Finally, USCIS should clarify that in two cases the officer may prepare the NTA and refer the
case to the immigration court as is done now: (a) where the non-citizen meets the credible fear
standard but the officer believes that the case cannot be adequately resolved based on the initial
interview and the asylum application prepared in conjunction with that interview and (b) where
the officer believes there are statutory bars to full asylum eligibility. The fact that some cases
could not be adequately resolved at this stage should not preclude the possibility of granting
asylum as soon and as efficiently as possible in other cases.

128

Id. at 1-61–64.
See U.S. IMMIGRATION & CUSTOMS ENFORCEMENT, NO.11002.1, PAROLE OF ARRIVING ALIENS FOUND TO HAVE
CREDIBLE FEAR OF PERSECUTION OR TORTURE (2009) available at http://www.ice.gov/doclib/dro/pdf/11002.1-hdparole_of_arriving_aliens_found_credible_fear.pdf.
129

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Analysis
This subsection concerns people seeking asylum within the expedited removal process.
Congress created the expedited removal system to allow the government to remove, immediately
and without court involvement, people apprehended at the border who lack documents or used
fraud to seek entry.130 If a DHS officer determines that a non-citizen is subject to expedited
removal and the individual expresses a fear of return, the officer will delay removal until an
asylum officer can conduct a “credible fear” interview. DHS usually must detain the person until
an asylum officer determines whether the person has a “credible fear of persecution or torture if
returned to the home country. (A “credible fear” determination involves a less demanding
standard than an asylum determination, which requires a “well-founded fear” of persecution on
account of one of five protected grounds: political opinion, religion, nationality, race or
membership in a particular social group.) An asylum officer who concludes that the individual
has met the credible fear standard prepares an NTA, thus starting removal proceedings so that a
judge can decide the asylum claim. If the asylum officer does not find a credible fear, the person
could be subject to expedited removed unless he or she initiates review by an immigration judge.
If the judge rejects the asylum claim in these expedited cases, there is no appeal to the BIA.
The ABA Immigration Commission in 2010 and the U.S. Commission on International Religious
Freedom in 2005 recommended expanding the asylum officer’s authority from only determining
credible fear to include also the authority to grant asylum. Those whose asylum claims were not
granted could still seek immigration court consideration of the claim. DHS in 2008
recommended against implementation of the International Religious Freedom Commission
recommendation.131 Pointing to the “accelerated timeframe and nature of the credible fear
process,” DHS said that having asylum officers conduct a credible fear review and the more
demanding review of an asylum claim could deprive applicants of the time and resources to
develop a well-documented asylum claim or obtain legal counsel to assist them. DHS also said it
would need additional asylum officers to conduct the asylum adjudication and that the applicants
would need additional time to meet identity and security check requirements, thus lengthening
the time in detention. DHS also expressed a concern that the asylum interview might have to be
conducted using video technology and asylum officers were not confident that the in-depth
interview could be conducted using only video.132
Despite these objections, the ABA Commission said “if the goal is to streamline the adjudication
of asylum claims in the immigration system as a whole, then the proposal deserves serious
consideration.”133 We agree, but we do not favor automatically diverting every case that passes
the “credible fear” standard to the Asylum Office for full adjudication. According to the ABA

130

As previously discussed there are other situations. Supra at III.C. 1. Forms of Removal.
Letter from Stewart Baker, Assistant Secretary for Policy, DHS, to Felice Gaer, Chair, U.S. Commission on
International Religious Freedom (Nov. 28, 2008) (on file with author); USCIRF Disappointed that DHS Action on
Expedited Removal Process Falls Short, U.S. COMM’N ON INT’L FREEDOM, (Jan. 9, 2009),
http://www.uscirf.gov/index.php?option=com_content&task=view&id=2340&Itemid=126 (Gaer’s response to letter
from Baker).
132
Id.
133
Id.
131

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Commission, the change proposed regarding expedited removal asylum claims would require
regulatory but not statutory change.134
Several reasons undergird our proposal.
First, asylum officers are qualified to make assessments about asylum claims. They do it already
in the case of non-citizens who are not in removal proceedings and who apply for asylum
directly—referred to earlier as “affirmative” applications.
Second, the adjudication by the Asylum Office reduces immigration court and DHS
prosecutorial workload. According to data reported by the ABA Commission, from 2000 to2004,
asylum officers made positive credible fear determinations in 5,000 cases, and immigration
courts granted relief (mainly asylum but also withholding or deferral of removal) in twenty-eight
percent (28%) of them. If asylum officers had had authority to grant asylum where the applicant
met the statutory standard of well-founded fear, and if they had granted asylum at rates similar to
those of the immigration courts, the courts would have seen about 1,400 fewer receipts and DHS
1,400 fewer cases to litigate.
Third, this additional authority provides an expedited process for at least some subset of those
individual who arrive at the border sufficiently prepared to establish eligibility for asylum; aiding
this vulnerable population is humane and appropriate. Authorizing the Asylum Office to grant
asylum may avoid delays in asylum grants caused by immigration court backlogs. By statute, if
an asylum seeker does not file an application within one year of entry, the application can be
timed barred. A 2010 HRF study135 and a separate study by several scholars136 said that
immigration courts rejected a growing number of applications due to the time bars. The scholars
report that in 2010, 53,400 people (in expedited removal and otherwise) were subject to the time
bars and that if the adjudication could have been heard first before the asylum office, more than
15,000 applicants and their derivative family members could have completed their cases within
the deadline and without need for immigration court review. We also heard some anecdotal
reports that in Texas and several other courts, individuals who are subject to expedited removal
seek protection at the border, are paroled (released from detention) into the U.S. and pass a
credible fear interview yet missed the one year filing deadline because the busy immigration
courts could not hear their cases within the time deadline. These pro se applicants did not know
they needed to press the court for an earlier hearing date due to the court’s rule requiring both a
hearing to allow the in-person filing of an application for asylum. This procedure is also one we
recommend changing to allow more flexibility.
We acknowledge some potential implementation problems but believe they are resolvable. For
one thing, Human Rights First (HRF), a national non-profit organization that is very experienced
in assisting asylum applicants, did not oppose this proposal in commenting on our draft report
but noted that the credible fear interviews are often conducted under very challenging
circumstances. They pointed to “communication significantly impeded by high levels of
134

ABA Comm’n on Immigr. Rept., 2010, supra note 32; INA § 235(b)(1)(A)(ii)(2010); regulations implementing
the review are found at 8 C.F.R. § 1235.6 (2009).
135
See The Asylum Filing Deadline: Denying Protection to the Persecuted and Undermining Governmental
Efficiency, HUMAN RIGHTS FIRST, available at http://www.humanrightsfirst.org/wp-content/uploads/pdf/afd.pdf.
136
Philip G. Schrag, Andrew I. Schoenholtz, Jaya Ramji-Nogales, & James P. Dombach, Rejecting Refugees:
Homeland Security’s Administration of the One-Year Bar to Asylum, 52 WILLIAM AND MARY L. REV. 651 (2010),
available at http://wmlawreview.org/files/Schrag.pdf.

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background noise in the detention centers . . ., poor sound quality on the telephones made
available to the Asylum Office to call contract interpreters, and, in many cases, poor quality
interpretation.” Because some applicants would need more time to prepare and develop their
application for protection, once an individual has met the credible fear standard, HRF said the
application process should move to the usual “affirmative” asylum interview process. That
should be possible if DHS releases individuals from detention once the Asylum Officer
determines the individual has met the credible fear standard.
Some commentators on our draft report also questioned the adequacy of Asylum Office
resources and whether our proposal if implemented might extend detention for some individuals.
While the DHS might choose to implement this concept by paroling all individuals who meet the
credible fear standard, if they do not, our proposal to allow a grant of asylum may not fit those
situations where the Asylum Officer has insufficient information and knows that to determine
eligibility, the applicant will need more time and process to complete the application. This
proposal would only authorize the Asylum Office to grant cases if the application begins in the
expedited removal context. Further, we assume that in this subset of cases, the individual
applicant would also be eligible for parole and the asylum application process could be
completed in the manner used in affirmative applications as we recommend for all asylum
adjudications within the immigration courts.
Finally, DHS commentators informally questioned whether this procedure would duplicate
resources and decrease efficiency. In cases where DHS determined that detention was warranted,
the recommendation might expand the length of detention. They also noted that it is not clear
what would happen if the parole applicant does not appear at the Asylum Office or fails to
complete the asylum application. Under the expedited removal statutes and regulations the
individual is usually detained but if she is granted parole and fails to successfully complete the
asylum process, DHS could revoke the parole and resume the expedited removal process. The
burden would fall to the applicant to seek review of a denied asylum application before the
immigration court – as now, where the court may, upon the individual’s request, review an
Asylum Office finding that the person lacks credible fear. This happens in a very small number
of cases. It is possible this review would increase under the new procedure but that would be
similar to the right to de novo review of the asylum adjudication before the immigration court if
the Office does not grant an affirmative asylum application. These commentators are correct that
using this procedure in all cases would create an additional layer of adjudication to the asylum
applicant at the border (once before the asylum office and review before the IJ) but these cases
would still be barred from further BIA review by statute. And, as noted, we propose granting the
Asylum Office the discretion to consider the asylum claim in these expedited removal cases, not
mandating they do it every time they establish the less rigorous standard of credible fear.
Discretion is appropriate in the expedited removal context because Congress designed a
streamlined procedure for expedited removal in INA § 235; 8 U.S.C. § 1225.
b.

Affirmative and Defensive Asylum Applications

EOIR should amend its regulations to provide, where the respondent seeks asylum or
withholding of removal as a defense to removal, that the judge should administratively close the
case to allow the respondent to file an application for asylum and/or withholding of removal in
the Asylum Office. If the Asylum Office does not grant the application for asylum or
withholding, or if the respondent does not comply with Asylum Office procedures, the Asylum

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Office would refer the case to ICE counsel to prepare a motion to re-calendar the case. Further,
EOIR should amend current procedures whereby judges “adjourn” asylum cases involving
unaccompanied juveniles while the case is adjudicated within the Asylum Office and instead
have the judge administratively close the case. If the Asylum Office cannot grant the asylum or
other relief to the juvenile, the Asylum Office can refer the case to ICE counsel to initiate a
motion to re-calendar the removal proceeding before the judge.
Finally, to help implement these changes, USCIS should evaluate whether a fee is appropriate for
the defensive filing of an asylum application, with the possibility of fee waivers and in
consideration of fees required for other forms of relief sought as a defense to removal. If USCIS
does not believe a fee is appropriate, the agency should seek appropriations to expand its
resources to allow it to accomplish this critical adjudication.
Analysis
Affirmative applications for asylum are those that non-citizens who are not in removal
proceedings file with the Asylum Office. If the Asylum Office cannot grant asylum and the
person cannot document valid immigration status, the Asylum Office refers the matter to the
immigration courts by filing an NTA. In contrast, a person who is already in removal
proceedings may initiate a claim for asylum with the court (a defensive application). In these
cases, there is no referral to the Asylum Office unless the asylum-seeker is an unaccompanied
minor.137 The ABA Commission recommended that Congress authorize judges to divert
defensive applications to the Asylum Office for adjudication. If the Asylum Office did not grant
asylum, it would refer the case back to the immigration court to consider the claim.
We agree. (It is possible that a statutory amendment is unnecessary for this change. The
immigration court adjourns cases to allow other USCIS components to adjudicate visa petitions,
and it may be that a similar procedure could be adopted here without any statutory change.)
Immigration court and DHS prosecution workload reductions. How much of an adjudication and
prosecution workload reduction might this change accomplish? Total asylum cases received in
the immigration courts declined from over 58,000 in 2007 to 41,000 in 2011.138 Table E shows
the smaller number of immigration court asylum cases disposed on the merits over the last five
years. Overall, both affirmative and defensive completions have declined. Grants have hovered
in the fifty-one to sixty-five percent (51%-65%) range for affirmative applications and in the
thirty-four to thirty-nine percent (34-39%) range for defensive applications.

137

See William Wilberforce Trafficking Victims Protection Reauthorization Act (TVPRA), Pub. L. N.110-457
(2008).
138
Statistical Year Book, 2010, supra note 4, at I1.

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Table E: Immigration Court Asylum Cases Decided On the Merits139
Asylum Applications Completions on the Merits
All
FY

Affirmative

Defensive

Total

Denial

Grants

Total

Denials

Grants

07

27,727

16,380

7,953

8,427 51%

11,347

6,921

4,426 39%

08

24,043

14,407

7,051

7,356 51%

9,636

6,116

3,520 37%

09

21,626

13,202

5,940

7,262 55%

8,424

5,394

3,030 36%

10

19,413

11,596

4,508

7,088 61%

7,817

5,046

2,771 35%

11

22,075

12,333

4,155

8,178 66%

9,742

6,416

3,326 34%

The ABA Commission reported that in 2008, seventy-seven percent (77%) of defensive asylum
applications in the immigration courts were initiated after the NTA’s filing (i.e., did not come
after an expedited removal/credible fear review). Had the proposal been in effect in 2011, and
assuming for the sake of analysis that seventy-seven percent (77%) of 2011’s defensive claims
were generated due to the initiation of removal proceedings, the judges would have referred to
the Asylum Office about 7,500 claims (seventy-seven percent (77%) of 9,742). If the Asylum
Office grant rate was the same as the judges’ (thirty-five percent (35%)), about 2,625 cases
referred to the Asylum Office would not have been prosecuted by ICE attorneys and adjudicated
by immigration judges. The Congressional Research Service reported similar data on asylum and
withholding of removal applications.140
Overall, as Table E (above) shows, the total number of immigration court asylum grants where
cases are filed defensively are not large. But defensive asylum cases are concentrated in a
relatively few courts. In 2011, the eight courts shown below accounted for sixty-two percent
(62%) of asylum completions. 141

NEW YORK CITY
LOS ANGELES
SAN FRANCISCO
MIAMI
ARLINGTON
ORLANDO
BOSTON
BALTIMORE
TOTAL(all courts)

139

Total
Completions
18,382
21,190
9,172
10,030
7,719
4,562
6,366
4,732
303,287

Asylum Completions (number
and percent of total)
9,127 (50%)
6,728 (32%)
2,449 (27%)
1,802 (18%)
1,451 (19%)
1,379 (30%)
1,155 (18%)
1,098 (23%)
40,524 (13%)

Id. at K.
See RUTH ELLEN WASEM, CONG. RESEARCH SERV. R41753, ASYLUM AND “CREDIBLE FEAR” ISSUES IN U.S.
IMMIGRATION POLICY (2011), available at http://www.fas.org/sgp/crs/homesec/R41753.pdf.
141
Id. at I3, B4. Statistical Year Book, 2011, supra note 4, at I2, B3.
140

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We asked in our survey about the judges’ agreement with this statement: “Judges should have
the authority to allow the asylum office to adjudicate all defensive asylum claims, reserving for
unsuccessful applicants the right to seek the judge’s de novo consideration of the application.”
Of the 157 judges who responded, ninety-three (fifty-nine percent (59%)) agreed (thirty-eight
percent (38%) strongly); eighteen percent (18%) chose the “neutral” option and twenty-two
percent (22%) disagreed. We do not know how much of the agreement was motivated much by a
desire to reduce workload; a few commented along the lines of “[t]his could alleviate the court of
some of its burden due to an ever-increasing case load,” but that was not a pervasive theme in the
comments. Agreement with the statement was strongest (seventy-three percent (73%)) among
judges who said they average one to five merits hearings per week; of those who said they
averaged sixteen or more such hearings a week, fifty-three percent (53%) agreed with the asylum
statement, but that difference may reflect the fact that courts with lower per judge caseloads see
more asylum cases. Cross tabulations with other responses similarly did not suggest that judges
who are most concerned about too many cases were more inclined than others to favor shifting
the defensive asylum claims initially to the Asylum Office.
The ABA Commission points out a possible auxiliary benefit of having asylum officers first
consider defensive claims, related to the fact that a significant portion of asylum claims never
reach a merits determination, but rather are withdrawn or abandoned (in absentia), or the
respondent may receive another form of relief or a change of venue. In 2011, as noted, there
were 41,000 asylum receipts, but as seen in Table E immigration courts completed only 22,075
claims on the merits, a significant difference even recognizing that receipts in one year are not all
disposed of in the same year. The ABA Commission points out that the percentage of affirmative
asylum applicants who withdraw or abandon the asylum claim is greater than the comparable
figure for defensive claims; it reasons that involvement of the asylum officer may explain some
of the difference and if so, involving them in defensive claims might increase withdrawals and
abandonments.
The high rate of abandoned asylum claims may be because increasingly people file claims for
asylum affirmatively knowing they are likely to be referred to the immigration court because the
Asylum Office cannot grant the case. Once within the immigration court the individual abandons
the asylum application and seeks relief known as cancellation of removal – a special limited
form of relief for people who have lived at least ten years within the U.S., have good moral
character, and whose removal would result in exceptional and extremely unusual hardship to a
U.S. Citizen or LPR spouse, parent, or child.142 There is no affirmative process of seeking
cancellation benefits without being in removal proceedings but there appears to be some interest
in authorizing USCIS to do so. We did not explore this idea or the related question of whether
implementation would require statutory change. (The current benefit within the courts is capped
at 4,000 grants per year.)
Other benefits. The benefit to the defensive asylum seeker might include an initial assessment in
a less formal setting by an asylum officer trained to conduct interviews involving sensitive
issues, and access to a resource center for researching country conditions not usually available to
busy immigration judges. HRF noted that non-adversarial interviews are the model used to
evaluate asylum claims in most of the countries of the world.

142

See INA § 240A(b); 8 U.S.C. § 1229b(b).

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USCIS officials told us that, although the Asylum Office workload had been falling in recent
years, it has ticked up recently and even if the increase is temporary, the Asylum Office would
need additional resources were it to assume the initial responsibility for adjudicating defensive
asylum claims. (The office was able to handle juvenile cases without additional hiring, but the
numbers were relatively small: 778 in 2010 and 577 in 2011, and the Office returned a third of
the 2010 cases and over half of the 2011 cases because it did not have jurisdiction over the
asylum claim).143 Although the Asylum Office is fee-supported, the fees come, not from asylum
applicants, but from surcharges imposed on other benefit applicants, creating an unpredictable
source of financing. (In 2006, the USCIS rejected a USCIS Ombudsman recommendation that
the agency begin to charge a fee with asylum applications.)144 USCIS officials also questioned
whether the reduction in immigration court asylum cases would be sufficient to justify the
administrative and possible legislative changes it might require.
Administrative closure. We propose administrative closure for all cases referred to the Asylum
Office. In our interviews and in comments on survey responses, judges noted that they refer
juveniles’ defensive asylum claims and that under current procedure the matter is “adjourned” or
continued rather than administratively closed; the cases may appear for years on their dockets.
Further, these judges were not confident that the Asylum Office notified the court when an
asylum application was approved. The judges and several court administrators thought a better
procedure would be for the cases to be administratively closed. Administrative closure would
also allow the court administrators to relocate files and give a more accurate picture of the long
range docket of the court. Furthermore, requiring children and/or their guardians to return to the
immigration court to check on the status of an adjudication before the Asylum Office is
burdensome and a drain on the resources of the court as well as the many pro bono and nonprofit organizations that represent these children. There seems little reason to maintain that
inefficiency or to exacerbate it if all defensive claims are referred to the Asylum Office
Fees. Our earlier draft report suggested the possibility of a waivable fee for Asylum Office
adjudication. All commentators on that draft who referenced fees for asylum applications,
including DHS officials who commented informally, opposed the idea, saying it was wrong to
charge for adjudicating an international obligation and noting that many asylum seekers have
fled their home countries with few if any resources. We agree that fees are difficult for many
people, and even if a fee waiver is available, the adjudication of that waiver requires time and
resources. However, we only suggest exploring the possibility. Most immigration petitions for
status, including some that offer protection to victims of crime or to unaccompanied juveniles, do
have a fee for adjudication and for those who cannot afford the fee, the agency adjudicates a
needs based waiver.

143

See email from Ted Kim infra note 147.
See Emilio T. Go, Director, U.S. Citizenship & Immigration Services, Response to Recommendation to Limit
USCIS Adjudication of Asylum Applications to Those Submitted by Individuals in Valid Non-Immigrant Status, U.S.
DEP’T HOMELAND SECURITY (June 20, 2006), available at
http://www.dhs.gov/xlibrary/assets/CISOmbudsman_RR_24_Asylum_Status_USCIS_Response-06-20-06.pdf.
144

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c.
Asylum Office Adjudication of Eligibility for the Closely Related Claims of
Withholding of Removal or Eligibility for Withholding Due to the Convention Against
Torture (CAT)
To facilitate Asylum Office adjudication of certain closely related claims, DHS should seek to
amend 8 C.F.R. § 208.16 to authorize the Asylum Office to adjudicate eligibility for withholding
of and restriction on removal. The revised regulation should provide that, if the Asylum Office
grants withholding or restriction, there would be no automatic referral to the immigration court.
Implementation of this recommendation would contravene DHS’s current reading of its organic
statute as restricting withholding decisions to the Attorney General and the immigration
courts.145
Alternatively, it should amend the regulations to authorize the Asylum Office to grant
“supervisory release,” identity documents and work authorization to individuals who meet the
legal standards for withholding or restriction on removal and develop a procedure—in cases
where withholding or supervisory release are offered–by which the Asylum Office would issue a
Notice of Decision explaining the impediments to asylum and informing the applicant of his or
her right to seek de novo review of the asylum eligibility before the immigration court. This
Notice must explain the significant benefit differences between asylum and withholding
protections.
Finally, DHS should develop a procedure to allow applicant to seek immigration court review;
upon receipt of the request, the Asylum Office would initiate a referral to the immigration court.
Analysis
When individuals affirmatively file for asylum, asylum officers interview them about whether
they meet the statutory criteria of a well-founded fear of persecution on account of membership
in a protected group. Some are statutorily ineligible for asylum but qualify for a more limited
type of protection known as withholding of removal.146 There are basically two ways to qualify
for withholding of removal. One is to establish that if returned to the country of origin the
individual will more likely than not be subjected to persecution and harm. The second is to
establish eligibility for protection under the U.N. Convention Against Torture by establishing a
likelihood of torture if returned. This second form of withholding is also called “restriction on
removal.” Withholding prohibits the government from removing the individual to a specific
country. People who are granted withholding may not sponsor relatives or travel internationally,
but are eligible for work authorization.
Just as we recommend that the Asylum Office be the first entity to adjudicate asylum claims, we
recommend a change to prevent the piecemeal adjudication of some cases where the individual
has established a likelihood of persecution or torture but is ineligible for asylum due to a
statutory bar. These individuals may be eligible for withholding and their adjudication should
also begin with the Asylum Office.
Specifically, we propose that the Asylum Office make the necessary factual and legal findings to
determine eligibility for withholding or restriction on removal at this stage. It is difficult to know

145

See Homeland Security Act of 2002, Pub. L. No. 107-296, 116 Stat. 2135 and supra note 154(describing and
explaining the delegations of authority to the various components of DHS in the Homeland Security Act).
146
INA § 241(b)(3) (2010); 8 U.S.C. § 1231(b)(3) (2006).

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how this change might reduce the number of cases referred to the immigration court. Even if
granted withholding, applicants might be motivated to seek de novo review of eligibility for
asylum. Several commentators said the opposite impact would occur, that individuals granted
withholding protection would never pursue the more expansive relief of asylum because they
would not fully understand the limited protection offered in withholding and the inability of the
individual to secure permanent resident status or to sponsor immediate family for reunification –
rights that do exist if the individual is granted asylum.
We make this recommendation to create a unified adjudication of eligibility for asylum and the
related humanitarian protections. It may reduce the number of cases in the courts because in
2010, the courts approved withholding in 1,874 ( sixteen percent (16%)) of the cases where
asylum was not granted (or may not have been sought). An important distinction between asylum
and withholding is that asylum relief includes a path to permanent residence and derivative
benefits for immediate family.147 An individual granted withholding of removal cannot travel
internationally because a person who departs voluntarily has no right to return to the U.S.
(withholding alone confers no formal status to the individual.)
Chart 5: Withholding Decisions in the Immigration Courts

Withholding Decisions in the Immigration
Courts
case did not involve grant of asylum
16778

approved
15434

denied

14013
11680

2571

2554

FY 06 (13%) FY 07 (14%)

9894

11197

2055

1984

1874

2040

FY 08 (13%)

FY 09 (15%)

FY 10 (16%)

FY 11 (15%)

Source: Year Book 2010 K-4, Year Book 2011 K-4. The Year Book explains that these cases do not include cases
where asylum was also granted.

Currently, the Asylum Office is not authorized to grant withholding of removal or grant
restriction on removal under CAT. This was not always the case. The authority of the Asylum

147

E-mail from Ted Kim, Deputy Chief, Refugee, Asylum, & Int’l Operations Directorate, U.S. CIS, to author (Jan
2, 2012) (on file with authors) (suggesting that most people would be incentivized to seek immigration judge review
of a denied asylum application, even if granted withholding, thus negating the potential for increased efficiency in
the immigration court).

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Office to adjudicate withholding in most cases was eliminated in 1995.148 Congress has
delegated the authority to formally withhold removal to the Attorney General and therefore the
immigration courts. However, it might be possible for this authority to be delegated by regulation
to the Asylum Office. Alternatively, DHS currently has the authority to place individuals under
supervised release and to grant work authorization and identity documents. Regulations could
make clear that this form of supervised release would have the same protections as a grant of
withholding of removal and that no individual would be subject to removal under this procedure
without an opportunity for a hearing before the immigration court.
Several commentators pointed out that a grant of withholding is made after the judge has found
that the individual is removable. The BIA explains the significance in Matter of I-S- & C-S-:
“Although entering an order of removal prior to granting withholding may appear to be a
technicality, it is not an insignificant one. It is axiomatic that in order to withhold removal there
must first be an order of removal that can be withheld. Indeed, the statute providing for
withholding of removal is entitled ‘Detention and Removal of Aliens Ordered Removed.’
Section 241 of the Act. . . . clearly suggests that a removal order must precede any grant of
withholding of removal.”149 A grant of withholding of removal relates only to a specific country
(i.e., withholding of removal to Nigeria). DHS is not precluded from removing an alien granted
withholding of removal to a third country.
There is little evidence, however, of DHS’s affirmatively seeking to remove individuals after a
grant of withholding based on changed country conditions or of seeing third countries. If DHS
believes that the issuance of the order removal must, in all cases, precede the grant of protection
equivalent to the withholding of removal, then this proposal is unlikely to move forward.
However, DHS may have the flexibility to create categories of supervisory release and to
exercise its prosecutorial discretion in these cases where the applicant demonstrates significant
threats of harm or torture. The goal is to offer protection to those who establish eligibility as
quickly as possible and to minimize the use of the resources of the immigration court to
readjudicate issues that have been or could be developed in the Asylum Office.
Under current procedure, if the asylum officer finds the individual is subject to one of the bars to
asylum eligibility,150 e.g., applied later than one year without a qualifying justifying exception 151
or has a conviction for a particularly serious crime, or one of the other statutory bars, the asylum
officer tells the applicant that the USCIS cannot grant the relief sought and files an NTA. This is
not called a denial of asylum but a “referral” to the immigration court.
If the Asylum Office could grant withholding of removal or the equivalent protection of
supervisory release and work authorization, some people would not seek further review of their
pretermitted claim for asylum in the immigration courts. In our interviews some judges also
thought the Asylum Office should have this authority because the inquiry about eligibility for
withholding protections is very similar to the inquiry of eligibility for asylum and the asylum
officer is capable of adjudicating the legal qualifications. Some of the people we interviewed
argued that the asylum applicant should continue to have the right to litigate his or her claim for
asylum in the immigration courts. The Asylum Office interview is non-adversarial and the
148

59 Fed. Reg. 62284, 62301 (Dec. 5, 1994).
24 I&N Dec. 432, 433 (BIA 2008) (emphasis added).
150
INA § 208(b)(2) (2010); 8 U.S.C. § 1158(b)(2) (2006).
151
See INA § 208(a)(2) (2010); 8 U.S.C. § 1158(a)(2) (2006).
149

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applicant is frequently unrepresented or the role of the representative is less robust in the
adjudication process. The opportunity to present the claim de novo in the immigration court is
seen a serious protection of the individual’s rights.
Commentators on our earlier draft said the asylum office might be inclined to offer applicants
withholding in lieu of full asylum even in cases where there was no statutory bar to asylum
eligibility and that many pro se applicants would not realize what they would give up if they did
not seek asylum before the immigration court. Some proposed hybrid approaches that would
allow the applicant to accept a grant of withholding protection but then the Asylum Officer
findings that the individual met the higher qualifications of a more likely than not persecution
would be binding upon DHS if the applicant pursued a de novo review of asylum eligibility (a
lesser standard of fear of persecution) within the immigration courts. Under current procedure,
no finding of the Asylum Officer in cases referred to the Immigration Court is binding on DHS
and the entire case is subject to de novo review.
We propose only that USCIS and DHS consider a reform of the adjudication process to allow
preservation of the positive findings of “well-founded fear of persecution” or “probable
persecution” and thus narrow the open issues such as statutory bars for immigration court
review. While it is one-side, we are uncomfortable recommending that if the findings of the
Asylum Officer are binding on DHS they should also be binding on the applicant because so
many people are self-represented in the asylum office and many of the traditional hall marks of
due process protections in administrative proceedings are not available in the informal asylum
interview process. Some examples of differences in the informal process as opposed to the
process before the immigration court are a lack of a record, lack of formal translation, limited
role of advocates, limited ability of witnesses to testify in support, etc.

3.

Keeping DHS Appeals to the BIA within DHS

DHS should seek statutory and regulatory change that would direct to the USCIS’s
Administrative Appeals Office (AAO) appeals of denied I-130 petitions and all appeals from
CBP airline fines and penalties to AAO. Alternatively, CBP could eliminate any form of
administrative appeal and have airlines and other carriers seek review in federal courts.
Further, the AAO, to ensure quality and timely adjudication of family-based petitions should
create a special unit for their adjudication, formally segregating the unit from its other visa
petition adjudications; issue precedent decisions more often and increase their visibility; and
publicize clear processing time frames so that potential appellants can anticipate the time that the
appeal will be in adjudication.
Analysis
In addition to appeals from immigration courts, the BIA reviews three types of appeals from
DHS agency decisions: waivers of inadmissibility for non-immigrants under certain provisions
of the INA; fines and penalties that CBP imposes on air carriers, principally for allowing aliens
without proper documentation onto flights to the U.S.; and, most significantly, appeals from
USCIS denials of family-based visa petitions (I-130 forms). Table F shows all BIA receipts for
2007 through 2011 and then those from immigration court decisions and those from DHS
decisions. In 2011, for example, the BIA received 35,962 appeals. Of those, seventy-six percent
(76%) challenged immigration judge decisions, twenty-four percent (24%) challenged DHS visa
petition decisions, and less than one percent (1%) each challenged other DHS decisions. Visa

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petition appeals as a percentage of all BIA receipts varied from in the eight to twelve percent
(8%-12%) range from 2007 to 2009, but reached twenty-four percent (24%) in 2010.
Table F: BIA Appeals from Immigration Courts and DHS152
TOTAL APPEALS
Appeals from IJ decisions
Appeals from DHS Decisions
Visa Petitions Decisions
212 Waiver Decisions
Airline Fines and Penalties*

2007

2008

2009

2010

2011

36,633
32,324 88%

33,513
30,492 91%

32,952
28,638 87%

35,833
27,277 76%

35,962
27,237 76%

3,980 11%
139 <1%
190 <1%

2,851 8%
117 <1%
53 <1%

3,986 12%
27 <1%
301 <1%

8,606 24%
21 <1%
1 <1%

8,705 24%
19 <1%
1 <1%)

*Airline fine and penalty appeals have never been a large component of DHS workload, and they have
declined since complex litigation on the matter ended in 2009.153

Although the BIA has developed expertise in these DHS appeals, there is no particular reason
why it, rather than a DHS administrative adjudication body, should continue to hear the appeals.
A change in procedure would probably require an amendment to the provision of DHS’s organic
statute that directs the principal legal adviser to the USCIS director to, among other things,
“represent[ USCIS] in visa petition proceedings before the Executive Office for Immigration
Review.”154
The actual workload savings (as opposed to caseload savings) from moving these cases out of
the BIA would not be great, at least by one measure of case difficulty, namely, whether the
appeal gets a single member or panel decision. The BIA disposes of most of its cases by singlemember decisions, but the percentage of immigration court appeals so disposed is lower than the
percentage of DHS appeals so disposed, as seen in Table G.155 From 2006 to 2010, immigration
court appeals produced from eighty-seven percent (87%) to Ninety-two percent (92%) single
member decisions, but ninety-nine percent (99%) or more DHS appeals got single member
decisions.
Table G: BIA Single Member Decisions (SMDs) in All Appeals, Immigration Judge Appeals, and
DHS Appeals
FY 06
FY 07
FY 08
FY 09
FY 10

152

All Apps
41,475
35,394
38,369
33,102
33,305

ALL SMDs
38,649 (93.2%)
32,325 (91.3%)
35,656 (92.9%)
30,124 (91.0%)
29,685 (89.1%)

IJ Apps
36348
30751
34812
29395
27428

IJ SMDs
33,565 (92.3%)
27,717 (90.1%)
32,129 (92.3%)
26,431 (89.9%)
23,864 (87.0%)

DHS Apps
5127
4643
3557
3707
5877

DHS SMDs
5,084 (99.2%)
4,608 (99.2%)
3,527 (99.2%)
3,693 (99.6%)
5,821 (99.0%)

Adapted from Table 16, Statistical Year Book, 2011, supra note 4, at T2.
United Airlines, Inc. v. Brien, 588 F.3d 158 (2d Cir. 2009).
154
Homeland Security Act of 2002, Pub. L. No. 107-296, 116 Stat. 2135 § 451(d)(2)(B); 8 C.F.R. § 1003.1(b)(5)
(2010) (setting out the BIA’s appellate jurisdiction and gives the BIA jurisdiction over these petitions).
155
Table 17, Statistical Year Book, 2011, supra note 4, at T2; OPAT DATA, supra note 44.
153

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USCIS’s Administrative Appeals Office (AAO) hears other appeals from USCIS adjudication
officer decisions and is the logical place to hear I-130 appeals. Both BIA and AAO officials to
whom we spoke endorse the concept.
Some who commented on a previous draft of this report were skeptical of the proposal, for
several reasons. First, because the AAO is a fee-supported rather than appropriations-supported
operation, the cost to citizens and non-citizens for filing visa petition appeals for family members
would rise from the current $110156 to file with the BIA to about $630, according to estimates
provided by AAO personnel. This is the fee currently charged for other forms of AAO appeals.
While a significant increase, the EOIR fee is probably artificially low—it has not changed in
many years and the agency is funded by appropriations. The AAO is a fee based agency and will
need to cover the expense of the adjudication.
Second, the AAO has been the subject of some criticism for its lack of transparency in the
adjudication of appeals, and several organizations representing the private bar and individual
attorneys expressed concern about the quality of the AAO procedures, referencing AAO website
posts of processing times for various types of appeals of the denials of visa petitions. Some
waiting times exceed two years.157 There is no direct link from the AAO webpage to its
published decisions. Instead selected cases are posted on the USUSCIS electronic library
webpage and organized by subject matter.158 In October, 2010, USCIS issued a press release
heralding the issuance of two AAO precedent decisions—the first in over twelve years.159
Several DHS officials reminded us that the AAO does have a process for identifying and vetting
precedent decisions, as outlined in a document on the AAO website.160
We grant these considerations but note that the new AAO leadership has expressed an awareness
of the problems and a determination to refine the office’s adjudication functions.
We received no comments from CBP officials, but one person voiced a concern that CBP might
eliminate an appellate procedure for the transportation fines, which could increase overall
litigation costs for the public and the government.

156

OCIJ PRACTICE MANUAL, supra note 106, at 118.
Processing times are listed by visa petition category. See AAO Processing Times, USCIS (Apr. 10, 2012)
available at
http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=8ff31eeaf28e62
10VgnVCM100000082ca60aRCRD&vgnextchannel=dfe316685e1e6210VgnVCM100000082ca60aRCRD.
158
See Administrative Decisions, USCIS (2012), available at
http://www.uscis.gov/portal/site/uscis/menuitem.2540a6fdd667d1d1c2e21e10569391a0/?vgnextoid=0609b8a04e81
2210VgnVCM1000006539190aRCRD&vgnextchannel=0609b8a04e812210VgnVCM1000006539190aRCRD.
159
See USCIS Issues Two Precedent Appeals Decisions, USCIS (Apr. 10, 2010), available at
http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=f8925403f0bcb2
10VgnVCM100000082ca60aRCRD&vgnextchannel=68439c7755cb9010VgnVCM10000045f3d6a1RCRD. A
search of the Lexis database on February 14, 2012 did not locate any new precedent cases. The rarity of precedent
decisions is one of the strong criticisms of the AAO operations.
160
See ADMINISTRATIVE APPEALS OFFICE: PRECEDENT DECISIONS, DHS, available at
http://www.uscis.gov/USCIS/Laws/AAO/AAO%20DHS%20Precedent%20Decision%20Process%20Print%20Versi
on.pdf.
157

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4.
Relieving Judges and Immigration Court Staff of Certain Case-Processing
Related Tasks
a. Electronic Filing and Docket System
To reduce EOIR’s administrative burdens and possible perceptions of lack of neutrality, EOIR
should explore interim steps to provide limited electronic access to court dockets to registered
private attorneys, accredited representatives, and ICE trial attorneys.
Analysis
Several court administrators whom we interviewed generate paper dockets for the ICE trial
attorneys, and the practice is evidently widespread. While generating these materials may not
seem particularly burdensome, it takes away time from other court administration operations and
may be interfering with the court’s administrative goals. Moreover, providing this information to
the ICE trial attorneys, whether by hard copy or electronically provides greater access for the
government counsel than for respondents and thus impairs the appearance of neutrality and
independence. (In some courts, the administrators have developed an electronic “workaround”
where the court can build a bridge between the EOIR database and the ICE trial attorney case
management system. The electronic access is limited and does not provide access to the full
EOIR case management system, but does allow the ICE Attorney to see all cases docketed and
some case status information.) The lack of electronic access creates another problem in situations
where the NTA filings have to be faxed to the court administrator for docketing removal
hearings later that day at an “off site” location.
The electronic docket and filing system that EOIR is developing will reduce these burdens on the
court administrative staff. Ability to access the full docket electronically will also help attorneys
who have multiple hearings on the same date, perhaps before different judges and may allow
greater efficiency and coordination of appearances in courts with a large number of judges. The
new system, though, will not be in place for several years.
One court administrator reported that the agency might soon be able to allow private attorneys to
register with the court system and have access to the public docket electronically. Another
administrator surmised that the system might take ten more years before it could be fully
integrated.
Several DHS officials, commenting one of our earlier drafts, said that providing greater public
access to the dockets might raise privacy concerns, a legitimate point if members of the public
were to gain access to all information within the docket. Our proposal, though, concerns
electronic production of the same types of information now posted publically on the immigration
courts’ bulletin boards on the day of the hearing. Many court systems also deal with privacy
concerns through their electronic registration systems.
b. Eliminating EOIR’s Role in Asylum Work Authorization Clock
EOIR should stop using adjournment codes to track the delays in asylum adjudication and inform
DHS that it will no longer code adjournments or record the reasons for adjournment in the
recording of proceeding for the purpose of tracking the number of days an asylum application is
pending.

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Correspondingly, DHS should revise its regulations and procedures to allow asylum and
withholding applicants to apply for work authorization once at least 150 days have passed since
the filing of an asylum application. The regulations should provide an additional thirty days for
DHS to consider the application for work authorization. ICE counsel who believe that the
applicant unreasonably delayed the filing of the application would make a formal written motion
to the immigration judge and serve it on the respondent or respondent’s counsel articulating the
factual and legal basis for the ICE objection to the work authorization issuance. Respondent
would have fifteen days to respond to the motion. The judge could then grant or deny the motion.
Analysis
In 1995, Congress overhauled the asylum application process, putting into place a number of
constraints and incentives to try to deter weak or frivolous asylum applications. In particular, the
changes decoupled the grant of work authorization with the filing of an application for asylum or
similar protective relief and required DHS to withhold work authorization for asylum applicants
until the government has had at least 150 days to adjudicate the asylum application. If a case is
approved prior to that time, DHS grants work authorization. If DHS cannot approve an
application for asylum or the application is presented for the first time as a defense to removal,
the work authorization “clock” continues to run while the court adjudicates the asylum case.
(The regulations authorize DHS to grant work authorization to individuals who seek cancellation
of removal and to those who have a final order of removal but are under an order of
supervision.161 Asylum is the only category with an employment authorization “waiting period.”
The regulations require a wait of 150 days to apply for work authorization and an additional
thirty days for government objection.)162
The current regulations, however, stop the clock that counts days toward work authorization
eligibility where judges attribute the adjudication delay to the respondent. While the grant of
work authorization is solely within DHS’s authority, since the inception of these rules, the EOIR
has used its record of proceedings to keep track of the reasons for adjournments and, as clarified
recently,163 the judge makes a specific finding about whether the respondent is responsible for
the delay in adjudication, such as rejecting an available earlier date for a hearing or failing to
produce required biometric data. This is a controversial area. A lawsuit was recently filed against
DHS and EOIR for their role in managing the asylum work authorization clock.164
In our interviews, court administrators consistently reported that staff (often senior staff) devotes
at least twenty percent of their time to investigating queries about the “asylum clock.”
Respondents or their attorneys contact court personnel, who direct them to file a written request
for information about the adjournment code used to continue the hearing. In some situations, the
respondent or counsel objected that the judge did not intend the work authorization clock to stop
and ask for an investigation of the code lodged in the record, which requires the court
administrator to listen to the recording of the hearing and determine if the entered coding is

161

See 8 C.F.R. § 1274a.12(c)(10) (2010).
8 C.F.R. § 1274a.12(c)(8)(i) (2010) and 8 C.F. R. § 208.7 (2010).
163
See Brian O’Leary, Chief Judge, Operating Policies and Procedures Memorandum 11-02: The Asylum Clock,
EXECUTIVE OFFICE FOR IMMIGRATION REVIEW (2011), available at
http://www.justice.gov/eoir/efoia/ocij/oppm11/11-02.pdf.
164
A.B.T. et al. v. U.S. Citizenship and Immigration Services, No. 11-02108 (D. Wash. filed Dec. 15, 2011).
162

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consistent with the judge’s findings. Even after this investigation, some objections continue,
requiring a reference to the respective ACIJ.
The work authorization clock is important in deterring frivolous asylum claims, but the lengthy
delays in many of the immigration courts have extended the adjudication process far beyond 180
days. In short, diligent asylum applicants can face long delays to obtain work authorization
eligibility simply because the court cannot docket another proceeding in the interim. Further,
total applications for asylum have fallen, as noted above and largely stayed well below the high
rates in the mid and late 1980s.
The change we propose would allow the judges to focus on the adjournment codes for purposes
of managing their dockets and reminding the judge and the parties of the next steps in the case.
This change would also regain a substantial amount of senior administrator time. The vast
majority of comments we received on the proposal that EOIR stop using adjournment codes as a
basis to stop or start the work authorization clock were supportive. Many advocates believe that
the bars to work authorization are frequently the result of crowded immigration dockets and the
complexity of completing an asylum application and all the accompanying biometric and
security data. There was also a concern about the inability to secure work authorization pending
an appeal to the BIA of an immigration judge’s denial of asylum, an appeal that can require
many months or even years to complete. Work authorization by itself is an important issue for
the applicants but the work authorization card is also a form of government-issued identification
that can be very important to people who are without documentation or fleeing a country of
persecution where they are unable or unwilling to seek passports or other forms of identification.

C.

Process Modification

Another way to enable immigration courts and the BIA to function more effectively is to modify
how they do their work.

1.

Immigration Adjudication Case Management

Immigration court efforts to deal with the volume of cases they carry now, and in the future, can
be affected by:




the extent, type, and quality of legal representation and advice that respondents receive;
immigration court case management procedures, including the use of status, conferences and
of video technology; and
the management structure and administration of the immigration courts.

We have given limited attention to some aspects of process-modification because the asserted
problem is unlikely to be resolved (e.g., due to lack of resources), or has been largely resolved
(e.g., improved judge recruitment), or because the attention that others have given the topic and
the limited time and resources available to us counseled against our extensive involvement. We
believe that have not excluded totally any important topic.
a.

Representation

Respondents in removal proceedings may be represented by lawyers who are admitted to a state
bar. They can also be represented by non-lawyer “accredited representatives” whom EOIR has

Benson and Wheeler, Report for the Administrative Conference of the United States

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Page 56

certified as competent to provide such representation. The INA specifies that any such
representation—by lawyers or non-lawyers—be “at no expense to the government.”165
We offer our suggestions for enhancing the availability of representation, or at least of legal
advice, to unrepresented respondents within this framework, not on the assumption that
government-funded counsel is in the offing. (We recognize the possibility that in some
situations, due process would require the appointment of government-funded counsel. The
American Immigration Council’s Legal Action Center pointed out that while “a right to counsel
‘at no expense to the Government’— …does not provide the right to paid counsel—it does not
preclude the government from providing paid counsel when it chooses to do so or when
otherwise required.” We agree but assume that at least for time being, additional appropriations,
including those that might provide lawyers, are highly unlikely.)
There are two basic reasons to expand the availability of non-government funded representation
and legal advice. One is basic fairness to the respondent. The other is the likelihood of costsavings and efficiencies. Our survey asked judges about their agreement with this statement:
“When the respondent has a competent lawyer, I can conduct the adjudication more efficiently
and quickly.” Of the 166 judges who responded, ninety-two percent (92%) agreed (sixty-nine
percent (69%) “strongly”); five percent (5%) selected “neutral.” Responding to our survey
questions about factors contributing to a “model court,” fifty-six percent (56%) selected “high
percentage of respondents represented by quality lawyers.” As to factors that would “most
improve your court,” fifty percent (50%) selected “more quality counsel for respondents.”
Overall, slightly over two percent (2%) of judges responding to the “competent lawyer”
statement disagreed with it, although almost seven percent (7%) of the judges with
predominantly detained dockets disagreed. A few judges complained in our interviews or in their
survey responses that lawyers often slow down the process to get their clients more time in
country or encourage evasive answers by respondents.
Table H shows that the percentage of represented respondents in completed immigration court
proceedings has been generally in the forty-fifty percent (40-50%) range for the most recent five
years, and in the seventy-eighty percent (70-80%) range for completed BIA appeals from
immigration judge decisions.166 (Fifty-one percent (51%) of detained respondents in BIA appeals
from immigration judge decisions had representation.)167
Table H: Percentage of Represented Respondents in Completed Proceedings
FY07
FY08
FY09
FY10
FY11
165

Immigration courts
48%
45%
45%
49%
51%

BIA appeals from IJ decisions
75%
78%
78%
79%
80%

INA § 240A(b)(4)(A) (2010); 8 U.S.C. § 1229b(b)(4)(A) (2006); see also § 292; 8 U.S.C. § 1362 (2006). “In any
removal proceedings before an immigration judge and in any appeal proceedings before the Attorney General from
any such removal proceedings, the person concerned shall have the privilege of being represented (at no expense to
the Government) by such counsel, authorized to practice in such proceedings, as he shall choose.” Id.
166
Statistical Year Book, 2011, supra note 4, at G, V.
167
OPAT DATA, supra note 44.

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EOIR officials told us that a proceeding is coded as “represented” if the respondent is
represented at the time the case is completed. Thus, the representation figures probably overstate
the actual level of representation because respondents in some proceedings coded as
“represented” were not represented for the entire proceeding.
As seen in Table I below, the percentage of immigration court completions in which respondents
had representation ranges considerably. Nationally, fifty-one percent (51%) of all completions
had represented respondents and twenty-two percent (22%) of completions with detained
respondents were represented.
Table I: 2011—Percent Represented in all Completions and in Completions in Detained Cases
All completions
Percent
represented
TUCSON
STEWART
ULSTER
OAKDALE
FISHKILL
EL PASO
YORK
ELOY
TACOMA
HOUSTON SPC
NEW ORLEANS
HOUSTON
VARICK
MIAMI
BOSTON
HONOLULU
SAN DIEGO
SEATTLE
PHILADELPHIA
NEW YORK CITY
TOTAL (all 59 courts)

7%
11%
21%
26%
27%
30%
33%
33%
34%
34%
68%
69%
69%
69%
70%
70%
72%
73%
78%
88%
51%

Completions in detained cases
Percent of all
Percent
completions
represented
92.3%
94.3%
98.7%
78.7%
99.3%
69.4%
79.6%
65.3%
64.3%
80.3%
3.9%
6.6%
56.1%
5.7%
31.7%
30.6%
32.1%
4.1%
2.6%
0.8%
42.4%

1%
7%
20%
13%
27%
15%
23%
15%
12%
19%
69%
63%
50%
12%
49%
33%
54%
38%
71%
78%
22%

In the ten courts in the table with heavily detained dockets, representation rates are well below
the national level of fifty-one percent (51%). In those courts with smaller proportions of detained
respondents—all but one of the second ten courts, completions with represented respondents
were well above the national level. (The rate at the Varick court in New York no doubt
represents the vigorous pro bono efforts in that city.) Appendix 3, from which this table is drawn,
lists all the immigration courts and the percentage of 2011 completions coded as “represented.”

Benson and Wheeler, Report for the Administrative Conference of the United States

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Having a lawyer does not ensure “adequate representation.” Studies have documented levels of
inadequate representation. In 2010-2011, according to research by the Vera Institute of Justice
undertaken for and with the Katzmann Study Group (described later in this section), New York
immigration judges said respondents received “inadequate” legal assistance in thirty-three
percent (33%) of the cases in their courtrooms and “grossly inadequate” assistance in fourteen
percent (14%) of them. Generally, the judges said pro bono attorneys and those from nonprofit
organizations and law school clinics performed better than private lawyers.168
1]

Costs to the government and current efforts to compensate for lack of representation

EOIR should continue to make the case to Congress, regardless of the likelihood of statutory
change, that funding representation for those, especially those in detention, who are unable to
pay the cost of hiring individual counsel will work efficiencies and cost savings.
Analysis
We articulate the types of savings below and discuss some of the published data.169 The lack of
competent counsel means:
 some respondents’ remaining in tax-supported detention based on unrealistic hopes they will
receive relief, hopes a competent and responsible attorney would explain are groundless. (We
know of no published data documenting the number of detainees who, by some objective
measure, have no realistic hope for relief. Pro bono counsel repeatedly told us that such
detainees are a drain on detention resources, but they may have only limited access to the
population and thus limited ability to evaluate the matter. ICE officials, in informal
comments, disputed the statement that respondents remain in detention based on unrealistic
hopes for relief; the officials said that ICE attorneys will notify a judge when a detained alien
is not eligible for relief and the judge will issue a removal order.)
 lengthened removal proceedings, and thus increased detention costs in some cases, because
of continuances that judges grant to allow respondents to seek representation. Almost
fourteen percent (14%) of continuances granted in 2010 were to allow the respondent to try
to find representation according to judges’ assigned adjournment codes;170
 judges’ needing additional time to honor their obligation to inform the respondent,
affirmatively, of opportunities for relief and taking court time to build a record of adequate
notice and advisals. Several DHS officials who commented informally on an earlier draft said
we provided “no empirical data to support this conclusion.” They were, however,
commenting on an earlier draft, prepared before we had our survey results, including the

168

See Kirk Semple, In a Study, Lawyers Present a Bleak View of Lawyers Representing Immigrants, N.Y. TIMES,
Dec. 19, 2011, at A24; New York Immigrant Representation Study, Accessing Justice: The Availability and
Adequacy of Counsel in Immigration Proceedings, (2011) available at
http://www.cardozolawreview.com/content/denovo/NYIRS_Report.pdf and in Steering Committee of the New York
Immigrant Representation Study Project, Accessing Justice, 33 CARD. L. REV. 357, 364, 388-94 (2011).
169
In a recently published law review article Professor Linda Kelly articulates similar savings if counsel were
provided to children in removal proceedings. Her article cites several of the Vera studies we mention above. See,
e.g., Linda H. Kelly, The right To be Hear: Voicing the Due Process Right to Counsel for Unaccompanied Alien
Children, 31 B.C. THIRD WORLD L.J. (2011) at n. 150.
170
See Table M, infra. at 85.

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judges’ overwhelming agreement with our survey statement—“When the respondent has a
competent lawyer, I can conduct the adjudication more efficiently and quickly”;
 poor administrative records that do not preserve important issues for further agency or
judicial review;
 the inability of ICE trial attorneys, when the respondent is not represented, to handle higher
volumes of cases or focus on the complex or difficult cases; and
 the lack of judicial education that the adversary process can provide.
The INA is a complex statute, about which the courts of appeals are often in conflict. Judicial
education programs are essential components of any well-administered court system, but the
adversary system itself can be a valuable form of judicial education. Two competent, opposing
lawyers arguing a point provides a judge assurance that she has the best information she’s likely
to have.
[a] “Know-Your-Rights” presentations

EOIR should continue to give high priority for any available funds for the Legal Orientation
Program. While recognizing DHS requirements for KYR providers, and acknowledging that the
presentations are inadequate substitutes for representation by competent counsel, EOIR should
continue to promote providers’ access to detainees and to help ensure that presentations are made
sufficiently in advance of the initial master calendar hearings to ensure adequate time of the
detainees to consider and evaluate the presentation information.
EOIR should consider giving LOP providers electronic access to the court dockets in the same
manner as is provided to DHS counsel and negotiate with the detention officers to provide lists
of new detainees, their country of origin and language requirements at the earliest possible stage
to both the court and the LOP providers.
Analysis
Non-profit organizations visit detention centers to provide “Know-Your-Rights” (KYR)
presentations and sometimes screen cases for later referral for full representation. Many of these
presentations fall within EOIR’s Legal Orientation Program (LOP), which Attorney General
Holder has described as a “critical tool for saving precious taxpayer dollars.”171 EOIR
administers some programs through contracts with the Vera Institute of Justice, which in turn
arranges for presentations by local groups. The House and Senate Appropriations Committees, in
commenting on their recommendations for 2012 DOJ funding, singled out the LOP as especially
valuable and urged EOIR to direct whatever funds it could toward it.172 We endorse that
recommendation.
DHS officials reminded us that DHS detention standards set forth requirements for such
presentations; they told us that detention standards now in development would regulate how to

171

Attorney General Eric Holder Addresses the Pro Bono Institute, U.S. DEP’T JUSTICE, (Mar. 19, 2010),
http://www.justice.gov/ag/speeches/2010/ag-speech-100319.html.
172
See H.R. REP. NO. 112-169 (2011) available at www.gpo.gov/fdsys/pkg/CRPT-112hrpt169/pdf/CRPT112hrpt169.pdf; S. REP. NO. 112-78 (2011) available at www.gpo.gov/fdsys/pkg/CRPT-112srpt78/pdf/CRPT112srpt78.pdf.

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schedule presentations so that they could, at least in some circumstances, be conducted more
often.
Value of Know-Your-Rights Programs. The Vera Institute evaluated the LOP in 2008 and found
that participants moved through the courts faster, received fewer in absentia orders, and helped
prepare respondents to proceed pro se. Detention facilities managers said they observe fewer
behavioral problems by participants, and judges said participants were better able to articulate
relief to which they might be entitled and to understand the proceedings.173
Our survey asked judges about their agreement with this statement: “’Know-your-rights’
presentations conducted under the aegis of EOIR’s Legal Orientation Program contribute to fair
and effective proceedings.” Of the 134 judges who responded to this item, ninety (sixty-seven
percent (67 %)) agreed, with twenty-five percent (25%) agreeing “strongly.” A comparatively
large number of judges (twenty-eight percent (28%)) took the “neutral” option, probably because
they were not familiar with the programs. Not all judges who agreed that KYR presentations
contribute to fair proceedings are from courts with such programs. One judge who said there
were no presentations in or near his court said, “[t]hey occur in the location where I am
occasionally detailed and they are INCREDIBLY helpful.” Another who checked “Agree
strongly” commented “I know nothing about this program but it sounds like a great idea.”
Several others commented similarly.
Timing of the presentations. Timing can be problematic. Several LOP providers told us that
when the presentation is made the same day as an initial master calendar hearing, a significant
number of detainees request continuances to assess the information the presentation provided
about their potential eligibility for relief from removal.
Our survey asked how often the presentations occur. Of the judges who said their courts or
nearby detention centers had programs, over half (sixty percent (60%)) said they didn’t know
their frequency. Of the thirty-six judges who provided an answer, the most common response
was “several times a week” (forty-two percent (42%)) followed by “once a week” (twenty-two
percent (22%)). Almost none selected “once a day.” It is difficult to read much into these small
numbers.
A separate survey question asked whether the presentations occur “frequently enough to benefit
most respondents.” Seventy-four judges responded and about half (forty-nine percent (49 %))
agreed that they did, with thirty-two percent (32%) taking the “neutral” option. We found a high
association between those saying the programs made a contribution to fair and effective
proceedings and those who said they occurred frequently enough to benefit the respondents. This
result is not surprising, and even at that is based on low numbers.
LOP provider access to electronic dockets. An EOIR long-term goal is to allow all registered
representatives to access the courts’ dockets electronically. LOP providers suggested, pending
implementation of that goal, that it would enhance the presentations if registered providers had
electronic access the court dockets (in the same manner as is provided to DHS counsel) to help
them prepare for the presentations, potentially recruiting additional assistance or notifying
needed translators. DHS officials, though, told us that such access may implicate privacy
173

NINA SIULC, ZHIFEN CHENG, ARNOLD SON & OLGA BYRNE, VERA INSTITUTE OF JUSTICE, LEGAL ORIENTATION
PROGRAM, EVALUATION AND PERFORMANCE AND OUTCOME MEASUREMENT REPORT, PHASE II (2008), available at
http://www.vera.org/download?file=1778/LOP%2Bevalution_updated%2B5-20-08.pdf.

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considerations, but the providers we spoke with were not suggesting that they have electronic
access to anything more than information to which they would later have paper access.
[b] “Accredited representatives”

EOIR should consider a more intensive assessment of the paraprofessional programs that provide
legal representation and the accreditation process and continue its assessment of the accuracy
and usefulness of the pro bono lists provided at the courts and on the agency website
Analysis
EOIR allows “accredited representatives” to appear in court to represent non-citizens. Accredited
representatives are non-attorney employees of nonprofit organizations that apply to EOIR for
accreditation based on their experience and training. We did not have time to assess the extent or
value of these services or whether their expansion can realistically enhance the availability of
representation. We did hear concerns that EOIR’s list of pro bono providers often continued to
list non-profit organizations even though the particular “accredited representative” had left the
organization.
Although several public interest lawyers expressed concerns about the qualitative assessment of
the accredited representative’s skills and what they said was the lack of parallel disciplinary
procedures for accredited representatives and attorneys, EOIR officials told us that as a factual
matter, the disciplinary procedures for attorneys are exactly the same as those for accredited
representatives
[c] Advertising deficient providers

EOIR should conduct further evaluation of the procedures for adjudicating claims of ineffective
assistance of counsel.
Analysis
EOIR recognizes the need to increase immigrants’ awareness of unscrupulous lawyers and others
who offer representation. In 2011, courts and EOIR posted consumer warnings. These efforts are
important, but there may be a need for more qualitative assessments of the accredited
representatives and a more in depth monitoring of the pro bono and low cost providers list
available at each immigration court. EOIR officials have told us informally that, based on their
assessment of the list of free legal service providers on the EOIR website, they are drafting
regulations they believe will improve its accuracy and utility.
The American Immigration Council’s Legal Action Center suggested we evaluate the availability
of substantive and procedural remedies for victims of unscrupulous practitioners, citing Attorney
General Holder’s decision174 directing EOIR to initiate rulemaking to evaluate the current
framework for adjudicating claims of ineffective assistance of counsel and determining possible
modifications that could be proposed for public consideration.175

174

See Matter of Compean, 25 I.& N. Dec. 1 (AG 2009).
More information is available at the American Immigration Council, Legal Action Center letter on ineffective
assistance of counsel. See http://www.legalactioncenter.org/sites/default/files/docs/lac/IAC-EOIRletter-2009-1112.pdf.
175

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[d] Assisting pro bono, clinics, and other non-government lawyers

EOIR should develop—in consultation with groups that are encouraging pro bono representation
and seeking to improve the quality of representation in general—a national pro bono training
curriculum, tailored to detained and non-detained settings and offer a systematic cycle of training
in partnership with CLE and non-profit providers. The successful mock hearings and training
materials developed in one location should be shared with the other courts and where possible,
trainings should be recorded and those video or audio recordings made widely available to the
public. With appropriate disclaimers and updates, these trainings may help to increase
representation, pro bono participation, and even raise the sophistication of the respondents and
their families about what to expect of their representatives.
Analysis
Pro bono representation provided by such organizations such as Catholic Charities, the American
Immigration Lawyers Association, and Human Rights First is a growing part of the
representation picture. Some other examples (which we present for illustration albeit at the risk
of slighting others’ contributions):
● The ABA has projects in several cities. The Immigration Justice Project in San Diego, for
example, tries to ensure that every person appearing in the court has access to pro bono
counsel and hosts trainings for pro bono counsel.
● Judge Robert Katzmann of the U.S. Court of Appeals for the Second Circuit has organized a
multi-pronged effort to encourage the private bar, law schools, and pro bono organizations to
provide increased (and better) representation to those in removal proceedings in the New
York City area.176
● More than 17 New York City immigration judges have volunteered to work on pro bono
initiatives. In 2011 and 2012, with CLE partners in the bar associations and private firms,
they planned a series of CLE programs that included mock trials held at the court involving
ICE trial attorneys, the private bar, and the judges.177 The sessions have been fully subscribed
and the court is looking to expand. Working with the State Bar Association, the New York
court is helping to raise awareness of the need for pro bono or low cost immigration
representation outside of New York City. The NY State Bar held a summit on these issues at
its January 2012 annual “presidential summit.” A New York State Bar Committee on
Immigration goal is to increase representation for detained individuals throughout New York
and developing KYR presentations.

176

See, e.g., Sam Dolnick, As Barriers to Lawyers Persist, Immigrant Advocates Ponder Solutions, N.Y. TIMES,
May 4, 2011, at A24; 78 FORDHAM L. REV. 2 (Nov. 2009) (describing of the groups’ activities and articles
addressing the needs of the unrepresented).
177
See, e.g., Editorial, Deportation without Representation, N.Y. TIMES, Dec. 24, 2011, at SR14 (urging greater pro
bono and training to improve inadequate representation) and responses by Eleanor Acer (describing how Human
Rights First has tried to expand pro bono representation in New York) and Michael Rooney (describing pro bono
work with the Heartland Alliance National Immigrant Justice Center and discussing the difficulty of providing
representation in detention centers) N.Y. TIMES, Dec. 27, 2011, at A18. See also Lori Adams and Alida Y. Lasker,
Symposium: Innovative Approaches to Immigrant Representation: Exploring New Partnerships: The Asylum
Representation Project and the Leon Levy Fellowship at Human Rights First: An innovative Partnership to Increase
Pro Bono Representation for Indigent Asylum-Seekers, 33 CARDOZO L. REV. 417 (Dec. 2011).

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● The Phoenix immigration court has a Memorandum of Understanding with the Phoenix
College of Law, where a part-time clinical instructor supervises students who attend weekly
master calendar sessions. The judges call cases with represented respondents first, allowing
the students and supervisor to consult with unrepresented individual about eligibility for
relief. The Arizona courts want to have similar programs in Tucson and arrange for law
students to appear in one of the detention centers to help with bond applications. Bar
organizations in other cities staff similar screenings and opportunities to consult with the pro
bono counsel. These groups uniformly report an inability to represent all who desire pro bono
representation, especially for those in detention.178
The courts we visited that were not located within a detention facility all had pro bono rooms for
private consultations outside of the main public lobby. We did not see reading materials or
videos providing any information, other than the list of pro bono providers.
CLE programs. Continuing legal education programs can enhance the work of pro bono lawyers,
as well as paid counsel. Our survey asked judges about their participation in CLE programs as
panel members, moderators, presenters, or other capacities. Of the 154 judges responding, fiftyone (thirty-three percent (33%)) said they participated in such programs at least once a year;
fifty-eight (thirty-eight percent (37%)) said they never or almost never did and forty-five
(twenty-nine percent (29%)) said they did so less than once a year. Participation rates did not
vary greatly according to whether the judges’ caseloads were mainly detained or not.
Seven of the fifty-eight judges who said they never participated and two of the fifty-one who said
they did so at least annually added comments such as “the approval process through the Ethics
Office at the EOIR General Counsel’s office is so rigorous, and there are so many embarrassing
qualifications to the statements one would make [during a CLE presentation] that it is not worth
it.”
Regardless of their participation level, a substantial majority of 147 judges agreed that “CLE
programs improve attorney performance” (eighty-four percent (84%), with forty-one percent
(41%) agreeing strongly). Only six percent (6%) disagreed. The percent agreeing was highest
among those who said they participated at least once a year (ninety-two percent (92%)) but was
seventy-five percent (75%) even among those who said they never or almost never participated.
Seven of those who checked “Agree” qualified their response with comments along the lines of
“Depends on the topic and the presenter. The attorneys who could benefit the most from CLE are
those that are least likely to attend.”

178

Margaret Taylor, Promoting Legal Representation for Detained Aliens: Litigation and Administrative Reform, 29
CONN. L. REV.1647 (1997). See also NAT’L IMMIGRATION JUST. CNTR., ISOLATED IN DETENTION: LIMITED ACCESS
TO LEGAL COUNSEL IN IMMIGRATION DETENTION FACILITIES JEOPARDIZES A FAIR DAY IN COURT 4-5 (2010),
available at
www.immigrantjustice.org/sites/immigrantjustice.org/files/Detention%20Isolation%20Report%20FULL%20REPO
RT%202010%2009%2023_0.pdf. and LEGAL ACTION CENTER AND PENN STATE LAW CENTER FOR IMMIGRANTS
RIGHTS, BEHIND CLOSED DOORS: AN OVERVIEW OF DHS’ RESTRICTIONS ON ACCESS TO COUNSEL (2012)(
documenting many obstacles to representation particularly in immigration related detention) available at
http://law.psu.edu/_file/Immigrants/LAC_Right_to_Counsel.pdf.

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[2]
[a]

June 7, 2012
Page 64

Technology to Enhance Consultation and Representation

Audio or video links for consultation

DHS, to improve the availability of legal consultation for detained respondents and help reduce
continuances granted to allow attorney preparation, should provide video technology in all
detention facilities allowing private consultation and preparation visits between detainees and
counsel; it should continue to use its leverage to try to require such access in all leased or
privately controlled detention facilities. In those facilities where video technology is not
available, it should designate duty officers whom attorneys and accredited representatives can
contact to schedule collect calls from the detainee.
Analysis
As explained more fully below, video conferencing equipment is available in all but one very
small immigration court, and in many detention facilities. In general, both EOIR and DHS
officials seemed receptive to the idea of making those links available to pro bono legal service
providers and law school clinics and perhaps others who would be willing to answer questions
from detained respondents
Audio links are another way to facilitate consultation. DHS officials, in informal comments on
an earlier draft of this report, said that current ICE detention standards “allow [ ] detainees to
make direct or free calls to their legal representatives.” They added that “future, proposed
detention standards will provide that full telephone access shall be granted in order for a detainee
to contact legal representatives to obtain legal representation, when subject to expedited removal,
and to legal service providers or organizations listed on the ICE free legal service provider list.”
Providing even this simple technology in some detention centers, however, faces considerable
hurdles. For one thing, some state and local jails in which DHS rents space may refuse to permit
such links in their facilities. A 2010 National Immigrant Justice Center study reported that 78
percent of the over 25,000 detainees it surveyed were in facilities that prohibited attorneys from
scheduling private calls with their clients.179 Yet, some state and local jails are introducing video
technology to allow family members to visit with incarcerated relatives. In New York, the State
Bar is exploring whether immigration counsel could use the video conferencing equipment in a
secure, confidential manner, to allow attorney consultation and preparation.
[b]

Using video technology to enhance advisory presentations

Further, DHS and/or EOIR, to improve the availability of legal reference materials for detained
respondents, should provide video versions of the “Know-Your-Rights” presentations in every
detention facilities available to be played in the dorms throughout the day and on demand in the
law libraries; both should assist in the transcription of the text of the recently released ABA
Immigration Commission video into additional languages or provide audio translations in the
major languages of the detained populations.
Finally, we think EOIR should encourage judges to permit pro bono attorneys to use the court’s
video facilities to transmit KYR presentations into detention centers.

179

NAT’L IMMIGRATION JUST. CNTR., supra note 155.

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Analysis
Know-Your-Rights presentations sponsored under the aegis of EOIR’s LOP cannot reach all
respondents who might benefit from them, when they might benefit from them. Many of the
detention centers are in locations that are not easily accessible by attorneys or non-profit
representatives. Moreover, detainees may miss a presentation because they are moved from a
facility before they can attend the relevant program or meet with any potential representative.
Language accessibility can also be a problem. Many presentations are only in English or
Spanish, yet the detained population may have dozens of other languages.
Video technology can broaden access to legal orientation information, and ICE detention
standards “encourage [ ] qualified individuals and organizations to submit electronically formatted
presentations (i.e., videotape, DVD, etc.) on legal rights,” the content of which ICE must approve.
They also direct facilities to “provide regularly scheduled and announced opportunities for detainees
in the general population to view or listen to the electronic presentation(s).”180 Some of this
information is available through prerecorded video with foreign language captioning. The
technology to facilitate this is widely used on such websites as You Tube. To the degree the
detained population has access to these recordings, subsequent in-person visits or telephone
consultation by non-profit organizations could spend more time on case-by-case assessment and
counseling.
In April 2012, the ABA Commission on Immigration released a new know-your-rights video (in
English, Spanish, and French), which is described and available for viewing on the
Commission’s website.181 According to DHS officials at the release event, DHS is making a
concerted effort to have it available in all detention centers. Personnel at the Vera Institute told
us LOP presentations are available as audio recordings on CD or MP3 for LOP participants in
Arabic, Mandarin, Vietnamese, and French. They reported that, as part of a recent pilot effort,
Vera is putting a small amount of LOP funds towards phone-based interpreter services, to help
LOP providers work with non-English and non-Spanish speakers. In many of the detention
facilities, televisions and DVD players are available in the dormitories, recreational rooms, and
law libraries. Access to the law library may be too limited for short-term detainees and to the
degree facilities limit visit to the libraries, these KYR videos should also be available in other
areas of detained facilities.
Although the ICE standards speak in terms of prerecorded electronic presentations, it appears
that some groups make KYR presentations by video. One judge, in supplementary comments on
our survey, said that his court “is proactive with AILA and other groups in promoting these KYR
presentations. The use of the Court’s facilities (when available) and VTC system has greatly
increased the number of detained aliens offered the KYR presentations and has made it much
easier for the pro bono attorneys to volunteer to make these KYRs.”
Several non-profit commentators, while agreeing that video technology could help expand KYR
and even limited representation in detention facilities, urged caution in relying solely on such
technology, arguing “that in-person presentations and meetings are preferable to video, and that
180

Standard 37, “Legal Rights Group Presentations,” section M (“Electronic Presentations”) available at
http://www.ice.gov/detention-standards/2008/
181 New ABA Video Helps Immigrant Detainees Understand Their Rights, ABA NOW (Apr. 19, 2012),
available at http://www.abanow.org/2012/04/new-aba-video-helps-immigrant-detainees-understand-their-rights/.

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video should only be used if necessary.” A few commentators argued that KYR presentations
through VTC are inappropriate for vulnerable populations such as juveniles or people with
mental illness, victims of trafficking and some categories of asylum seekers because attorneys
cannot build sufficient rapport and trust with the clients and more importantly, might miss
evidence due to poor communication or lack of a physical meeting where scars and other
evidence of violence might be readily apparent to the attorney.
[3] “Limited Appearances” by Counsel
EOIR should encourage use of limited appearance in appropriate circumstances by modifying
underlying regulations as necessary and consider issuing an OPPM or other guidance to explain
to judges circumstances in which judges may wish to permit limited appearances and necessary
warnings and conditions they should establish. Finally, it should amend the Practice Manual to
reflect this modified policy.
Analysis
In a “limited appearance,” an attorney might, for example, provide representation at the master
calendar hearing but not at a merits hearing held in a distant detention facility where video
conferencing technology (VCT) facilities are unavailable. The OCIJ’s Practice Manual disfavors
limited appearances. It tells attorneys that, once they appear in court to represent a respondent,
they are obligated to continue representation unless the respondent terminates the representation
or the judge grants a motion to withdraw or substitute counsel, or the judge “specifically allows a
limited appearance.”182 Limited appearances are obviously subject to abuse; an attorney might
collect a fee for a master calendar appearance but leave the respondent in the lurch to navigate
the rest of process alone.
Despite these downsides, we suggest that EOIR encourage a more flexible approach to limited
appearances. Pro bono counsel and some judges to whom we spoke said that limited appearances
within the representation-deprived removal adjudication system may be better than no
representation, if the respondent understands the limits it entails. EOIR officials told us
informally that the expanded use of limited appearances was worth further consideration but that
changes to the advice to parties in the practice manual would require changes to the underlying
regulations as well, citing BIA precedent. As explained in the footnote, however, we believe the
precedent cited stands for a different proposition than that limited appearances are disallowed.183
[4]

Pro Se Law Clerks

EOIR should consider a limited multi-year pilot program in a large immigration court or a
detention center with a large immigration docket to assess whether a pro se law clerk office
182

OCIJ PRACTICE MANUAL, supra note 106, at Ch. 2, § 2.3(d).
Citing Matter of Velazquez, 19 I&N Dec. 377 (BIA 1986) (“there is no ‘limited’ appearance of counsel in
immigration proceedings”, as quoted in Immigration Judges Benchbook and Matter of N-K- & V-S-, 21 I&N Dec.
879 (BIA 1997) However, this case arose in the context where an individual tried to disclaim the admissions and
statements of his prior counsel because the individual thought first attorney would only be making a motion to
change venue and a request for bond. The statement “there are no limited appearances” means that respondents may
be bound by the actions of any counsel who appear in their case. We are discussing allowing limited in scope
representation so that attorneys will be encouraged to take on representation in situations where they may not be
willing to commit to representing an individual for the full scope of the removal hearing. Understood in this context,
no regulation change may be required.
183

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could provide benefits that outweigh its costs, such as saving court time in explaining procedures
and filing requirements and reduced need for continuances because a greater number of
applications were complete upon submission.
Analysis
Some state and federal courts employ attorneys in the clerk’s or court administrator’s office to
assist both pro se litigants and the judges who deal with them. We provided our interviewees a
job description for such a position posted by a federal district court:184


screen complaints, petitions, and motions, including state habeas corpus petitions,
motions to vacate sentence, and civil rights complaints, that have been filed by pro se
litigants to determine their legal merit, the issues involved, and the basis for relief;



screen other pro se litigation such as social security and equal opportunity complaints;



track the progress of and works with the judges to manage all pro se cases; advising the
judges on the relative status and priority needs of assigned cases;



draft orders, reports and recommendations for the disposition of pro se cases;



maintain contact with pro se litigants who visit and appear in court; responding orally and
in writing to questions relating to legal procedure and other processes posed by pro se
litigants;



answer correspondence and telephone inquiries from pro se litigants;



prepare and update pro se litigant forms and instructional packets designed to assist
unrepresented parties in drafting complaints and avoiding time-consuming procedural
errors so cases can be processed efficiently.

Interviewees were intrigued by the concept but noted that implementation would require a court
to adjust its staffing internally; additional funds would be unavailable to add new hires. Some
EOIR officials were skeptical that pro se law clerks could provide as much assistance as welldesigned “know-your-rights” presentations.
b.

Case Management Procedures
[1]

Advice and Assistance Regarding Case Management Practices

EOIR should develop, perhaps through the LOP in cooperation with a non-profit legal services
providing, a pro se version of the OCIJ Practice Manual that explains terms and concepts that lay
persons, especially from other countries, are unlikely to understand. EOIR should share best
practices developed by individual courts or judges by collecting and disseminating supplement
instructions that individual judges have developed to aid the parties in preparing submissions to
the court. If EOIR could develop video kiosks in the waiting rooms or similar spaces within the
courts, the long term benefits might help respondents access the court website, find instructional
materials and perhaps reduce delays in proceedings because respondents would be more
prepared.

184

Law Clerk Job Descriptions, NATIONAL CENTER FOR STATE COURTS (May 26, 2010) (providing the job
description, as prepared the U.S. District Court, District of Utah), available at
http://www.ncsconline.org/d_kis/jobdeda/jobs_lawclerks(16).htm.

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Analysis
In 2008, the Chief Immigration Judge released the “Immigration Court Practice Manual”185 as a
response to one of the Attorney General’s 2006 directives for court improvement. The chief
judge said the manual responded to the “public’s desire for greater uniformity in Immigration
Court procedures and a call for the Immigration Courts to implement their ‘best practices’
nationwide.” He described it as “a comprehensive guide that sets forth uniform procedures,
recommendations, and requirements for practice” in the courts and that are “binding on the
parties who appear before the Immigration Courts, unless the Immigration Judge directs
otherwise in a particular case.”186 The Manual cites some CFR provisions that authorize steps
that the Manual either authorizes or encourages.
Our interviews provided conflicting evidence of the Manual’s use. Some judges praised it for
establishing a common procedural baseline, and most said they use it, at least as a general guide.
ICE officials were mixed in their evaluation; some criticized judges for demanding compliance
when such compliance was inappropriate, or for using it insufficiently. Likewise, private lawyers
and advocates for pro se respondents charged that some courts insist on “mechanical application”
of the Manual’s rules, citing court administrative staff’s refusal to accept materials due to
technical errors such as failing to sequentially number the pages in an application. We note these
concerns but have been unable to establish how widespread or meritorious they are.
Even judges who praise the Manual acknowledged that it is difficult for some unrepresented
respondents to use, even if they can read English, because its prose is directed principally at
attorneys. EOIR officials told us informally that they thought seeking a way to develop a pro se
version of the manual was worth further consideration.
Some judges told us that they prepare supplemental instructions to assist parties, especially those
proceeding pro se, in preparing documents in a manner consistent with the court’s or judge’s
expectations. We suggest that OCIJ consider creating a central repository of such instructions
that judges can consult and consider adapting and adopting to their needs.
We realize that developing kiosks is unlikely given the resource requirements but offer it as a
suggestion. Several commentators noted the value of kiosks located in the court waiting area
where respondents can log onto the court’s website to seek instructional material. We agree they
have been valuable in other courts and believe they could be for EOIR. However, we realize the
resource implications mean that EOIR will not be able to develop them in the near term.
[2]

Pre-hearing, or Status, Conferences or Exchanges

EOIR should revise its coding scheme to allow judges or court administrators to identify “prehearing conferences” or “status conferences.”
Further, EOIR should test the utility of status conferences by assembling a working group or
some other forum to probe more deeply about judges’ perceptions of the costs and benefits of
such conferences and when and how they are or are not useful. Depending on the results of that
inquiry, it might consider a pilot project in one or more courts to test the effectiveness of
mandatory pre-hearing conferences in specified categories of cases and to evaluate situations in

185
186

OCIJ PRACTICE MANUAL, supra note 106.
Id. at 1.

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which the judge should order the trial attorney to produce essential records from the A File.
EOIR should also evaluate the use of EOIR Form-55 and/or create a new form and
recommended procedure for stipulations by the represented parties. Finally, it should create a
separate code for “status” or “prehearing” conferences, so that judges needn’t code them,
misleadingly, as master or individual hearings.
Analysis
In most criminal and civil court systems, procedural rules and court practice encourage the
parties to narrow issues and dispose of some disputes through conference, stipulation, and
negotiation. Rules and practice also recognize that not all cases need or can benefit from
prehearing conferences. Pre-hearing or status conferences in immigration courts have not
received a great deal of attention in the extensive commentary on the immigration courts. The
ABA Commission on Immigration referenced them but only briefly in a recommendation for
“greater use of prehearing conferences.”187 A 2009 Appleseed report claimed (without citing any
evidence) that “[m]andating pre-hearing conferences at the request of either party would shorten
hearings and make them more efficient by increasing trial attorney’s preparedness and by
narrowing the issues before hearings.”188
[a] EOIR Goals and Policies

In 1986, the late William Robie, who became the first chief immigration judge upon EOIR’s
1983 creation, said that the
primary distinction that we have made in our system between how immigration judges operated
when they were part of the [Immigration and Naturalization] Service and how they operate
today is in philosophy. Not only have we emphasized the independence of the Judges from the
Service, but we have pressed them to be the managers of their caseload. Traditionally, the
attorneys have managed the caseload in immigration judge proceedings. Our feeling is very
strong that if the judge does not manage the caseload it is not going to move the system. This
philosophy has been shared by a number of judicial systems. Most of the progressive judicial
systems in the country today have had to move to this philosophy, again, because of a growing
caseload and an effort to reduce backlog and delays in getting individuals an opportunity to
189
have a hearing.

One of the instruments to serve this goal were “pre-hearing conferences,” at the
discretion of the judge, in order, in Robie’s words:
to narrow issues, to obtain stipulations, to exchange information voluntarily, and to otherwise
simplify and organize the proceedings, particularly in cases which are complex or are likely to
require a significant amount of time. We have found that this works considerably better. Again,
nothing really new or innovative. We are merely taking some existing practices out of systems
that work fairly well and trying to put them into place in this system.190

187

ABA Comm’n on Immigr. Rept., 2011 supra note 32, at 2-41.
APPLESEED, ASSEMBLY LINE JUSTICE, supra note 72, at 18. See also Improving Efficiency and Ensuring Justice
in the Immigration Court System: Hearing Before the S. Comm. on the Judiciary, 112th Cong. (2011) (written
statement on Behalf of Appleseed, Texas Appleseed and Chicago Appleseed) available at
http://appleseednetwork.org/LinkClick.aspx?fileticket=K2R6rcJciJI%3d&tabid=596.
189
William Robie, The Purpose and Effect of Proposed Rules of Procedure for Proceedings Before Immigration
Judges, 1 GEO. IMM. L.J. 269, 272-73 (1986).
190
Id. at 279.
188

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That goal has persisted. The Practice Manual tells the parties that “[p] re-hearing conferences are
held between the parties and the Immigration Judge to narrow issues, obtain stipulations between
the parties, exchange information voluntarily, and otherwise simplify and organize the
proceeding.” The Manual “strongly encourage[s]” the parties “to confer prior to a hearing in
order to narrow issues for litigation.”191 The Manual also encourages parties to file pre-hearing
statements “even if not ordered to do so by the Immigration Judge.”192
A March 2008 OCIJ Operating Policy and Procedures Memorandum (“Guidelines for
Facilitating Pro Bono Legal Services”) told judges that “pre-hearing statements can be especially
valuable in pro bono cases, where the representative’s time and resources might be limited.”193
Similar incentives would seem to operate for retained counsel. OCIJ’s five-day September 2011
“advanced training” for forty-five new immigration judges included an hour on “Rulings on
Motions: Issues, Tips & Techniques” (taught by an immigration judge) and two hours on
“Docket Management: Reports and Techniques to Improve Efficiency,” taught by a chief clerk
and deputy chief.194
[b] Judges’ Practices

There are at least two ways in which judges try to get issues narrowed or otherwise prepare for
merits hearings so as to limit those hearings to issues that are clearly in dispute: (a) encouraging
the parties to consult at some point in the proceeding, including immediately before the hearing
begins, and (b) convening one or more status or prehearing conference in which the judge
participates
1. Instructing the parties to confer
Our survey asked judges to indicate which one or more of several listed practices they typically
use “to have the parties narrow the issues that need to be adjudicated.” The responses are below,
from the 154 judges who answered the question, and total more than 100 percent because we
asked them to select as many as apply.
Percent and number
Right before I commence the merits hearing, I give the parties ten to
fifteen minutes to discuss the case and narrow the issues.
I tell the parties—at some point prior to the merits hearing that will
resolve the disputed factual or legal issues—that I want them to confer
to try to narrow issues in dispute
I never or almost never tell the parties that I expect them to confer.
I require the attorneys, prior to the merits hearing, to stipulate on the
record to at least some of the issues in the case.
None of these statements reflect my typical practice.

191

45%

69

43%
16%

66
24

14%
26%

22
40

OCIJ PRACTICE MANUAL, supra note 106, at Ch. 4, §4.18.
Id. at Ch. 4, §4.19.
193
OPPM: Facilitating Pro Bono Legal Services, supra note 10, at 4.
194
EXECUTIVE OFFICE FOR IMMIGRATION REVIEW, Session Agenda, provided by EOIR (on file with authors).
192

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We also asked about agreement with this statement: “At the master calendar stage the parties
usually refine and narrow the issues, if I direct them to do so” and got these responses from 160
judges:
Agree strongly
Agree
Neutral
Disagree
Disagree strongly

Percent

Number

22%
43%
13%
17%
6%

35
68
21
27
9

There was little variation based on predominately detained or nondetained caseloads.
Most of the judges who expressed disagreement said issues could not get narrowed at the master
calendar because the parties are insufficiently familiar with the files. Several also said the DHS
attorneys were unwilling or unable to narrow issues, at least at this stage.
On a related topic, our interviews suggested an apparent paucity of informal document sharing
between the government and the respondent. The government’s “A File” may contain documents
relating to the respondent’s entry and status in the U.S. Typically, trial attorneys require
respondents to file FOIA requests to obtain the non-classified or confidential documents within
their official A File.195 A few people told us that when asked, some trial attorneys will share
portions of the A File with respondent’s counsel. Developing a practice that encourages earlier
and easier access to the A File may facilitate issue narrowing, settlement discussions, and fewer
delays for preparation. In some cases, the failure to produce records from the A File may
frustrate the constitutional guarantee of a fundamentally fair removal hearing. (Recently, the
Ninth Circuit Court of Appeals vacated a removal order where many of the documents sought by
the respondent who claimed he had acquired citizenship through adoption and subsequent
naturalization were present in the trial attorney A File throughout the removal proceeding. 196)
The better practice would be for the proactive DHS disclosure of unrestricted documents as part
of the adjudication process.
2. Status or prehearing conferences—extent of judicial involvement
What about direct judicial involvement in efforts to narrow issues—judge-attended status
conferences with the parties?
The governing regulations make clear that “[p] re-hearing conferences may be scheduled at the
discretion of the Immigration Judge. The conference may be held to narrow issues, to obtain
stipulations between the parties, to exchange information voluntarily, and otherwise simplify and

195

8 C.F.R.§§ 103.8, 103.9, 103.10 (2011).
See Dent v. Holder, 627 F.3d 365 (9th Cir. 2010). The court noted that the INA states that the respondent “shall
have access to his entry document” and other [non-confidential] records and documents related to his entry or
presence in the United States.” Id. at 374 citing INA § 240(a)(c)(2)(B); 8 U.S.C. § 1229a(c)(2)(B)(2006). Further,
the court found that to force the respondent to rely solely on FOIA requests “would indeed be unconstitutional if the
law entitled an alien in removal proceedings to his A-file, but denied him access to it until it was too late to use it.”
Id. See also Anne R. Traum, Constitutionalizing Immigration Law on its Own Path, 33 CARDOZO L. REV. 431, 539542 (2011) (discussing among other constitutional concerns the Dent opinion and the need to increase access to
government records under the 5th Amendment).
196

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organize the proceeding.”197 Our survey provided helpful information on immigration judges’
use of such conferences, but in many ways, we have only scratched the surface of this topic.
One of our survey questions referred to “‘status conferences’ with the parties (either as a master
or individual hearing) to exchange information, narrow issues, obtain stipulations, and/or take
other steps to simplify and organize the proceedings.” We presented a range of practices and
asked the judges to identify as many of them that “describe your practice/experience with such
conferences (even if you don’t refer to it as a ‘status conference’)” The responses from the 165
judges who answered the question:
For the most part, I simply don’t have time to hold such conferences,
even if they might be helpful.
I try to hold a status conference in every case in which I think it would
be effective.
I don’t hold a formal status conference but have used a “call up” date
procedure to check quickly that the case is progressing, e.g., filings
have been made, biometrics are complete, etc.
I hold status conferences by telephone (but on the record), waving the
physical appearance of the parties and counsel.
I tried to hold such conferences but the parties were uncooperative.
I don’t believe I have the authority to order the parties to participate in
such conferences.

Percent

N

42%

69

38%

62

25%

41

12%
7%

20
12

3%

5

The norm in immigration court is to use hearing time to move cases forward but the norm is
hardly universal. As the table above shows, over a third of the judges responding said they hold
status conferences in at least some cases. To the degree any of the twenty judges who said they
hold telephone conferences did not also check the “try to hold status conferences when they can
be effective” option, it increases the number who told the survey they hold some kind of status
conference, potentially to half the responding judges. Also, some of the judges who selected the
“don’t have time” for such conferences told us in comments that they nevertheless make time for
them. One such judge said “I hold such conferences at 8:15am, before my normal bench time
starts, and usually I have 2 or 3 such hearings a week.” Finally, the “call up date” procedure can
be considered a kind of status conference, particularly for cases that do not present complex legal
or factual questions.
We heard in our interviews of different practices in different courts, reflecting different local
cultures. We could not probe different cultures in our survey, due to the anonymity requirement.
One of us visited the San Diego court, however, and learned that the court developed a
standardized form (see Appendix 6, “Record of Master Calendar Pre-Trial Appearance and
Order,” identified as “Form EOIR-55, May 2009) to help the judge elicit specific commitments
from the attorneys about the next steps in the case and what, if any, factual and legal issues can
be agreed upon and stipulated to at that point in the proceeding. The judge completes the form by
hand and places it in the record of proceedings file and gives copies to the parties.
In other court systems, Form 55 might be called a scheduling order. The San Diego judges firmly
believe the form works because the culture there is one in which attorneys know that they must
197

8 C.F.R. § 1003.21(a) (2011).

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be prepared to stipulate and narrow issues at an early stage in the adjudication. The form is
available in the Immigration Judge Benchbook,198 but we encountered few judges outside of San
Diego who knew about it.
In our interviews, judges told us that they had few tools to incentivize the attorneys to cooperate.
It is hard to say how widespread this problem is. But only a handful of survey respondents (seven
and two-tenths percent (7.2%)) checked the “I tried but the parties were uncooperative.” What
might more status or prehearing conferences accomplish? We asked in our survey for judges to
identify in their own words “what in your experience are the four most common reasons that all
cases [scheduled for a merits hearing] are not addressed during a merits hearing.” With the help
of two New York Law School students with familiarity with immigration adjudication, we sorted
the 538 answers into twenty reasons and present them below, organized into broad categories.
(Only five of the 161 judges who responded disputed the question’s premise–e.g., “[o]ur court
doesn't overbook individual hearings, and I am able to address all cases.”)
INSUFFICIENT TIME
Too many cases scheduled
Too much testimony for time allotted
ATTORNEYS NOT PREPARED
Respondent attorney not prepared
DHS attorney not prepared
Attorney (unspecified) not prepared
MATERIAL MISSING, UNAVAILABLE
Biometrics missing
Forms/documents missing
DHS file missing
UNFORESEEN OR COMPLEX ISSUES
(viz., testimony)
PARTICIANTS MISSING
Attorney absence
Respondent absence
Witness absence
Unspecified absence
OTHER
Interpreter problems
Pro se to seek attorney
Pending DHS application
Pending criminal matter

Judges

Percent

74
30

45%
19%

32
17
52
58
50
22

20%
11%
32%
81%
36%
31%
14%

37

23%

23
16
12
7

14%
10%
7%
4%

22
16
11
2

14%
10%
7%
>1%

A prehearing or status conference could not avoid entirely any of these delay-causing factors but
they could anticipate some of them. It is not for us to lecture to overworked judges, especially
based on their responses to our survey. We only note that responses suggest that judges must
198

See Tools for the IJ, Record of Master Calendar Form available at
www.justice.gov/eoir/vll/benchbook/tools/Record%20of%20Master%20Calendar%20PreTrial%20Appearance%20and%20Order%20(Form%20EOIR-55).pdf. .

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continue merits hearings for reasons that status conferences are designed to keep under control:
testimony that turns out to be longer than expected, for example, or issues emerge that judges or
the parties had not anticipated, or attorneys appeared at the merits hearing unprepared to
participate. (We do not know how many of the judges who offered these reasons for delay try to
control them with status conferences.)
Tracking Status Conferences
Although over a third to perhaps a half of the judges who responded to this question said they try
told status conferences in cases where they think it would be effective, we don’t know their
perceptions of how many cases fit that description, or, in fact, the number of status conferences
that occur in any given year. There is no separate code in the EOIR data base for “status
conference.” There should be.
We asked the judges in our survey how they code status conferences and got these responses, we
presume mainly from the judges who selected one or both of the “hold a conference when it can
be effective” and “hold conferences by telephone”. Forty-seven said they code status conferences
as master calendars; forty-four said they code them as individual hearings. In addition, sixty-six
judges (slightly more than the sixty-two who told us they hold conferences when they think they
can be effective) selected the option “I would like there to be a code for status conferences in the
docket and a set time for conferences on the weekly calendar.” These responses suggest that
judges who use status conferences believe they should be a recognized part of proceedings.
Several judges who selected the “code status conferences” option commented “I really DO think
the system should be revamped to make status conferences a useful tool, to encourage narrowing
of issues and to develop a discovery system for removal cases.” Another said, “[u]nfortunately,
we do not have this concept recognized officially in immigration court. I believe it should be
taught as part of effective docket management for every IJ.”
[3]

Amendments to the NTA and the Authority to Administratively Close a Case

EOIR should propose a change to 8 C.F.R. § 1003.30, which currently allows the government to
amend the charges and allegations in the NTA at any time in the proceeding. The new rule would
liberally allow amendment at the first master calendar but once the respondent formally admitted
or responded to the charges and allegations, amendment would only be considered based on
motion to the court and good cause shown for why the government could not have presented the
charges or allegations earlier.
As to administrative closure, EOIR should seek to clarify the proper use of administrative
closure by amending the OCIJ Practice Manual to define specifically “Motions for
Administrative Closure.” Further, it should issue OPPMs or amending regulations to authorize
the judge to initiate this motion sua sponte; indicate that a specific basis for administrative
closure should be the failure of the parties to meet and confer as previously directed by the
judge; and authorize government and private counsel under the procedural rules to object to the
administrative closure orally or in writing. If the caseload of the court grows so large that the
court cannot possibly address the backlog of cases, administrative closures of cases that ICE
policy and directives would characterize as a low priority may be an appropriate mechanism to

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manage the workload of the courts.199 This guidance for judges should specifically reference
when administrative closure is appropriate over the objection of the respondent.
Finally, EOIR should authorize a special docket for cases awaiting biometric results
with a special coding for these cases to allow later measurement of the degree to which
the security checks are solely responsible for the delays. When the check is complete, if
the trial attorney found the results of the security check warranted a resumption of the
hearing, the trial attorney would move to calendar a resumed individual hearing to
address the biometric results. If no further hearing is necessary, the trial attorney could
file a notice with the court and respondent stating that no new evidence was presented in
the results of the security check and upon receipt of this notice, the judgment would
convert to a final order.
Analysis
Judges told us in our interviews that regulations allowing trial attorneys to amend the charges
and allegations at any time during the proceeding can make it difficult to anticipate the scope and
content of a case even after the first master calendar. Government attorneys told us amendments
may be necessary because of the need to correct or augment charges initially prepared by agency
personnel who draft and file the NTA, largely without ICE trial attorney review. DHS officials
also noted the government sometimes needs to amend the charges to reflect criminal convictions
(which might affect removability and eligibility for relief). Advocates and members of the
private bar asserted that trial attorneys sometimes wait to amend charges because they did not
devote sufficient time to the matter until immediately prior to the merits hearing and that the
resulting amendment can cause substantial delays.
It is possible, as some DHS officials note, that a rule to limit amending the pleadings could have
a res judicata or claim preclusion effect. If DHS failed to allege a charge or make a factual
allegation necessary to the case in the initial pleadings, the government may have lost the
opportunity to present that claim. The exact state of claim and issue preclusion in immigration
proceedings is an unsettled area of law. Few federal cases have presented the issues.200 However,
the policy behind the common law’s creation of the res judicata doctrine motivates our
proposal—attorneys know that if they fail to present any and all claims arising from the same
transaction or related to the litigation—they may be barring future litigation of those claims.
Courts balance the desire for full litigation against the competing interest in efficiency and
certainty in litigation. Were this proposal adopted, and if, over time, patterns emerge where
parties are litigating amendments of pleadings, it may help refine the practices and resources
needed for the ICE trial attorneys to avoid the problem. The state of the current practice creates
an unequal process in which judges have little or no control over the development of their cases.
199

This closure of these cases might be seen as analogous to the procedures the BIA used to expedite adjudication of
newer cases while working to reduce the backlog of old cases.
200
The scope of claim and issue preclusion in immigration proceedings is complex. The BIA has recognized
preclusion effects within immigration matters. See Matter of Fedorenko, 19 I.& N. Dec. 57 (BIA 1984). The Ninth
Circuit appears to recognize a form of claim preclusion where the government tried to recharge an individual based
on a conviction that existed at the time of the first removal hearing. See Bravo-Predroza v. Gonzalez, 475 F.3d 1358
(9th Cir. 2007). However, the second and third circuits have questioned this position or distinguished the scope of the
preclusive effect. See, e.g., Channer v. DHS, 527 F.3d 275, 280 n.4 (2d Cir. 2008) (acknowledging possibility of
preclusion but limiting scope); Duhaney v. AG of the United States, 621 F.3d 340 (3d Cir. 2010) (rejecting the
application of preclusion).

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We asked judges we interviewed if they had the authority to close a case administratively when
they thought the parties were not ready, or where essential related immigration adjudications are
pending before another agency. Technically no statute or regulation addresses the authority of
the judge to order administrative closure. The court can order termination of a removal
proceeding where respondents establish they are citizens or the government is unable to establish
the allegations in the NTA. There is also a regulatory provision authorizing termination where
the respondent demonstrates prima facie eligibility for naturalization and proves that a
naturalization application is pending before the USCIS.201 Unlike termination, an administrative
closure is not a final decision and does not prevent the government or the respondent from
moving to re-calendar the proceedings. EOIR has instructed judges to use administrative closure
systematically when there have been significant alterations in the substantive immigration law or
after litigation settlements ordering these closures; e.g., new eligibility for adjustment of
status.202 Barring one of these situations, agency precedents appeared to require the consent of
both parties—government and respondent—before a judge may administratively close a
matter.203 In late January 2012, though, the BIA issued a new precedent decision that expressly
disavowed this position and set forth a new general set of criteria guiding a judge’s evaluation of
administrative closure. The BIA said in Matter of Avetisyan that the judge must:
weigh all relevant factors presented in the case, including but not limited to: (1) the reason
administrative closure is sought; (2) the basis for any opposition to administrative closure; (3)
the likelihood the respondent will succeed on any petition, application, or other action he or
she is pursuing outside of removal proceedings; (4) the anticipated duration of the closure; (5)
the responsibility of either party, if any, in contributing to any current or anticipated delay;
and (6) the ultimate outcome of removal proceedings (for example, termination of the
proceedings or entry of a removal order) when the case is recalendared before the
Immigration Judge or the appeal is reinstated before the Board.204

The Practice Manual references administrative closure; it also discusses how to prepare a Motion
to Recalendar a case that has been administratively closed, but the Manual does not provide
guidance for initiating or preparing a Motion for Administrative Closure.205 Several BIA and
federal court cases explain that case completion goals alone are not a reason for a judge’s
granting a motion for continuance, a motion closely related to administrative closure. Now that
the BIA has adopted this tool in Avetisyan, EOIR should specify the procedures to prepare such a
motion.
The EOIR guidance is important because the recent precedent decision in Avetisyan does not
address some important concerns. For example we received informal comments by DHS officials
that it was inappropriate for the court to use administrative closure to move “low priority” cases
because the priorities are determined by ICE. Our recommendation reflects those comments.
Further, some advocates’ commented that allowing administrative closure over the respondent’s
201

8 C.F.R. § 1239.2(f) (2010).
E.g., ABC Settlement administratively closing removal cases involving certain asylum applicants to allow them
an opportunity to have the asylum application reconsidered; or administrative closure to allow the adjudication of a
legalization application under INA §§ 245A, 210 (2010); 8 U.S.C. §§ 1255a, 1160 (2006).
203
See In re Alba Luz Gutierrez-Lopez, 21 I. & N. Dec. 479 (B.I.A. 1996) reversed by Matter of Avetisvan, 25 I.&
N. Dec. 688 (BIA 2012).
204
Matter of Avetisyan, 25 I. & N. Dec. 688 (BIA 2012)(Part B of the opinion). The BIA opinion states that
administrative closure may also be an appropriate tool for appellate cases in some situations as well.
205
See OCIJ PRACTICE MANUAL, supra note 106, at 99.
202

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objection might be inappropriate where the respondent is affirmatively seeking relief. We
recommend that EOIR issue guidance for the judges on that point.
[4]

Vertical or Unit Prosecution Cooperation and Conditional Decisions on Relief

We think government attorneys’ efforts to focus responsibility for litigation through “vertical” or
“unit prosecution” arrangements can promote efficient case processing. In any event, EOIR
should consider providing judges clear guidance on what they may do to require that government
counsel are fully prepared and are responsible for actions they must take prior to the next
hearing. This guidance can include establishing that the judge may rely on a prosecution team
member to follow up on such matters as forensic examinations, that they may hold all ICE trial
attorneys on any particular case as responsible for the actions and omission of others on the same
case, including accountability for commitments made in prior hearings (holding them to the same
standard that courts hold private counsel in the same law firm on non-profit). EOIR should
amend the Practice Manual to define trial attorney responsibilities. Finally, EOIR should clarify
the judge’s authority to make conditional decisions on applications for relief where trial
attorneys did not secure completed agency action, and their authority to continue the case for
some specific period (e.g., 60 days) that does not create undue hardship for respondents who
have been granted relief while allowing DHS adequate time to complete biometric or security
checks.
Analysis
The background for this proposal are the efforts, some since abandoned, of some ICE Chief
Counsel to organize the ICE trial attorneys into teams assigned to cover the dockets of specific
judges. We use the term vertical prosecution to describe this practice. A variation is “unit
prosecution,” in which trial attorneys function as a unit but are not assigned to a specific judge.
In one vertical prosecution city, teams of six to seven trial attorneys were assigned to three
judges. In another city, teams of two to four attorneys were assigned to two judges. Three
attorneys from the Office of the Principal Legal Advisor (OPLA) and approximately twelve
judges we interviewed who worked with these teams told us that the goal was to ensure that the
same attorney or a prepared team member would follow a case from master calendar through
completion. If the government attorney who appeared at the first master calendar would not be
available at subsequent hearings, the team would take responsibility for knowing what, if any,
actions DHS needed to pursue or would be conversant with legal position previously taken in the
case.
Our interviews, comments on our survey, and comments on earlier reports yielded mixed views
of the process. We were not able to include a question on vertical or unit prosecution
arrangements in our survey, but two judges volunteered comments. A judge who disagreed with
the survey proposition that the parties would narrow the issues at the master calendar if the judge
directed them to do so, volunteered that “[s]ince DHS is not on a vertical system, no agreements
are binding on the merits attorney.” Another said “[m]ost often there is a different government
attorney at the next hearing, and often a different respondent’s attorney, and they will often not
be aware of what was said at the last hearing.”
In a few interviews, judges with experience in vertical prosecution expressed concern over a
“strict” form used in large courts where DHS assigned only one or two trial attorneys to appear
before the judge in all proceedings. They cited delays because frequently the court had to work

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around the prosecutors’ calendar restrictions and the difficulty of scheduling cases to ensure that
the same trial attorney was assigned throughout the length of a case. One judge also expressed a
concern that the judge appeared “inappropriately” familiar with the DHS trial attorneys because
anyone visiting that court—or regularly appearing respondent counsel—would always see the
same prosecutor appearing in that judge’s court, giving the impression that respondent’s counsel
were “outsiders.” These same judges had fewer concerns if the organization was structured as
“unit” prosecution teams.
We spoke to six members of the private bar and non-profit organizations about these
arrangements. Most said that the ICE trial attorneys should have specific prosecution
assignments so that the private counsel could know which trial attorney to contact as soon as a
case was assigned to a judge. Even more important, the private lawyers we interviewed generally
wanted the ability to negotiate with the trial attorney to narrow issues, to discuss the order of
witnesses, to prepare stipulations, or to have conversations about pending actions within the case.
When the case file is not assigned to a specific attorney, these lawyers reported great difficulty in
getting ICE trial attorneys to discuss cases with them outside of regular hearing time and even
more difficulty in getting them to commit to stipulations. The judges also liked the idea that
respondent’s counsel would know they could communicate with any member of a unit and
perhaps achieve stipulations or agreements outside of the court in advance of hearings.
Senior OPLA personnel told us that the office favors teams of trial attorneys in a form of
modified vertical prosecution but that some immigration courts had resisted the full integration
of vertical prosecution teams.
Another technique that might improve the preparation and behavior of attorneys who appear in
court would be allowing the judge to prepare a provisional or conditional order pending the final
results of security checks. Some judges believe they may not “conditionally” grant relief and
continue a case awaiting the results of security checks. Similarly they believe they cannot deny a
case while DHS conducts a required security check. 8 C.F.R. § 1003.47 makes clear that relief
cannot be granted without the necessary security checks, but the regulation does not prohibit a
“conditional grant.” A conditional grant would allow the judge to prepare his or her decision
soon after the testimony and review of the application for relief. If the judge is going to deny the
relief, the security check is technically not essential to the judge issuing a decision on the
application.
Some DHS officials said a special docket permitting judges to issue conditional grants was
unnecessary and might delay adjudication. It is possible that a security check turns up
information that requires further factual development in the case. EOIR could develop a
procedure that protected the ability of the government to “reactivate” the case if material
information came forward in a security check that was not previously known to the government
but in general, a rule that allowed the judge to deal with the record before him or her and to
decide the case when the testimony is current was a better practice for the vast majority of cases.
Perhaps this practice would also create greater incentives within DHS to conduct necessary
security checks at an early stage of the proceeding so that the government would be less
concerned about the possibility of detrimental information in the individual’s past. Conditional
grants might, in appropriate cases, enable people in detention to secure release and to reduce
detention time. This change would go a long way to freeing judge’s dockets from repeat hearings
to update the status of necessary paperwork steps. The separate docket would allow the judge

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and management to have a clearer view of the weight and complexity of cases yet to come before
the court and would remove those matters where the judge has made the essential
determinations.
[5]

Streamlining the Immigration Court Asylum Application Process

EOIR can promote efficiency and reduce delay in asylum cases by eliminating the presumption
that respondents in removal proceedings who wish to apply defensively for asylum must do so in
person, in open court. EOIR should amend the Practice Manual to allow for a different
procedure, or issue an OPPM that provides application procedures that do not require the judge’s
participation, that authorizes court personnel to schedule a telephonic status conference with the
judge and ICE attorney where the respondent or representative says they do not understand the
process, that permits court personnel, at the merits hearing, to renew the advisal concerning
frivolous asylum applications and permit their withdrawal, and that makes clear that filing with
court personnel qualifies as a filing triggering the 180 day work-authorization period.
Analysis
Under current procedures, when a respondent indicates an intention to seek asylum, the judge
sets a deadline for the submission of the application and in most instances requires an in-person
application and the court appearance of the respondent and any representative so that the court
can confirm receipt of the application and the judge can deliver specific advisals. (Those
advisals, however, are already part of the written asylum application warning of the
consequences for filing fraudulent or frivolous asylum applications.) After this brief proceeding
to accept the application and provide the advisals, the judge sets the date for the individual
hearing on the application. In busy immigration courts, scheduling a hearing to receive the
asylum application adds to the burden on all of the parties and can significantly delay the final
adjudication because of the lack of hearing time. Moreover, a hearing date on the merits can be
months or even a year from the date of the submission of the application. These delays
frequently mean the application must be updated or supplemented before the individual hearing
and that new biometric background checks may be needed.
Our proposal reflects the American Immigration Council’s Legal Action Center concern that a
change in the procedure would also require a corresponding change in the “work authorization
clock”. The Center was generally supportive of the proposal and agreed that the in-person filing
requirement created delays.
EOIR officials expressed concerns, informally, about eliminating the in-person filings because
an “out of court room” advisal would not be part of the record of proceedings. Further, they said,
having court personnel provide the advisals could create both in staffing problems and threaten
consistency. We believe those concerns can be allayed if the oral advisals and confirmation of
the applicant’s understanding took place during the merits hearing.
Adoption of our suggestion for referral of the asylum application to the USCIS Asylum Office
would eliminate need for this hearing because adjudication would not be immediately before the
court. Only in cases where the Asylum Office could not grant the application and referred the
case back to court would the advisals be issued by the judge.

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[6]

June 7, 2012
Page 80

Evaluating the Use of Stipulated Orders of Removal

EOIR should consider a pilot project to test, systematically, stipulated removals’ utility as a
mechanism to reduce detention time, allow judges to focus on contested cases, and assess the
contexts, if any in which, the use of stipulated removals might diminish due process protections.
During the pilot, most appropriately conducted in a detention center, the judges would direct
attorneys for respondents and ICE counsel to confer and discuss the entry of a stipulated order of
removal in cases where the NTA alleges removal on serious criminal grounds (we suggest this
subset because in most criminal cases the conviction bars eligibility for relief, thus making a
subset that is compatible with DHS priorities and a group likely to have limited defenses).
EOIR would encourage judges to permit attorneys to make limited appearances to meet and
advise detained respondents about the possibility of relief and the availability of a stipulated
order of removal. In a randomly selected subset of cases, judges would hold an in person hearing
and review of the advisals and assess the understanding of the respondent about the nature of the
stipulated removal order and the voluntariness of the waivers.
In the pilot, “know-your-rights” presenters should have sufficient access to the respondents to
allow them to make personal inquiries about their ability to contest removal or to establish prima
facie eligibility for relief prior to the master calendar hearing. Respondents could be informed
about the ability to request a stipulated order of removal after the presentation.
We further suggest that EOIR consider designing, in jurisdictions where DHS routinely seeks
stipulated removal orders and asks for a waiver of the respondent’s appearance, a random
selection procedure that does not include the waiver and brings the and the respondent to the
immigration court to ensure adequate warnings and the waivers were knowing and voluntary.
EOIR, if it undertakes such a project, should encourage one or more advocacy organizations to
prepare a video presentation (with subtitles or dubbing in a number of languages) focusing
specifically on removal proceedings, general eligibility for relief, and the possibility of
requesting a stipulated order of removal should the respondent wish to waive the hearing and any
application for relief including the privilege of voluntary departure.
Analysis
Proceedings in most civil and criminal courts are expedited by the parties’ agreeing to
stipulations that reduce the number of contested matters. In the immigration courts, the practice
is rare, including stipulations by respondents who agree to be released from detention and
removed from the country. We thus propose testing whether stipulated orders--with appropriate
safeguards of the rights of the parties--could be an effective tool for both reducing hearing time
and significantly reducing the length of detention for some respondents, while protecting their
rights.
In INA § 240(d), Congress authorized the Attorney General to develop regulations about the
issuance of stipulated removal orders. EOIR has implemented this authority through a regulation
and an OPPM.206 Appendix 4 displays the percentage that stipulated removal orders comprised
of all completed proceedings in the forty-two courts that were recorded as entering any such
orders in 2009, 2010, and/or 2011. The percentages varied considerably, from less than one
percent for some courts to about half of all completed proceedings for another court. Nationally,
206

8 C.F.R. § 1003.25(b) (2010); OPPM: Stipulated Removals, supra note 43.

Benson and Wheeler, Report for the Administrative Conference of the United States

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as a percent of completed proceedings, they have declined from fourteen percent (14%) in 2009
to seven percent (7%) in 2011.
The table below shows the courts where such orders constituted at least ten percent (10%) of
completed proceedings in 2011, along with those courts’ detained cases as a percent of
completed proceedings. Although there are some clear exceptions, higher than average use of the
orders is concentrated in courts with high proportions of detained respondents. The court with
the highest proportion of completed proceedings with detained respondents had only the third
highest proportion of stipulated removals. Cleveland and Los Fresnos both had fifty-four percent
(54%) of completed proceedings with detained respondents. Cleveland had the highest
proportion of stipulated removal completions and the Los Fresnos had the lowest of those courts
included in the table.
Court
Cleveland
Salt Lake City
Steward Detention
Dallas
Bloomington
El Paso SPC
Las Vegas
Kansas City
Omaha
Los Fresnos
Chicago
TOTAL (all courts)

Comp’d Proc’gs,
% SROs
32%
29%
23%
21%
18%
18%
18%
17%
15%
12%
12%
7%

Comp’d Proc’gs,
% Detained
54%
71%
94%
61%
53%
77%
46%
29%
41%
54%
34%
42%

We suggest pilot testing controlled use of stipulated removal for courts with large caseloads of
detainees with serious criminal convictions, because the criminal conviction is often also a bar to
relief or limits defenses. Further, this is a subset of cases that DHS has identified as a priority.
The American Immigration Council’s Legal Action Center urged us to oppose stipulated removal
orders’ use in any pro se case. We agree that using stipulated removals is very problematic
where the respondent has had no opportunity to consult counsel and are not recommending
stipulated orders where the respondent is not counseled/and or represented by an attorney or
accredited representative. DHS officials also told us that if an individual requests a stipulated
order of removal, the ICE counsel obtain one if they can.
EOIR’s implementing OPPM appears to focus on using the stipulated order before the first
master calendar hearing is scheduled. However, nothing in the OPPM or regulation precludes
using this method to complete the proceeding at a later point. As noted earlier, some critics are
concerned about the way that stipulated orders may be obtained during apprehensions or in
detention centers. Many doubt that the current system adequately protects due process rights.
Where respondents are represented by counsel, judges may want to ask the attorneys to confer
and consider whether a stipulated order of removal might be appropriate in a particular matter. In
cases where the respondent is detained, if “know-your-rights” presentations could be combined
with one-on-one consultations with the presenters—assuming the availability of adequate

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Page 82

language translation for both—there may be a number of pro se detained respondents who would
wish to shorten their detention by asking for a stipulated order of removal.
We suggest that judges consider asking attorneys to discuss a stipulated order of removal in
cases where it appears the individual may not be eligible for any relief. In a represented case, the
ICE attorney may be able to offer a stipulated order of removal and an agreement of a specific
period of deferred departure (non-execution of the order). We do not specify the types of
negotiations that might occur but believe some cases could be resolved in this manner rather than
the advocates’ seeking delay by asking the judges for continuances for preparation time. In some
cases, the respondent may prefer the deferred departure period (because of the certainty of the
outcome) over the indeterminate result in a removal proceeding. And the respondent may be able
to save legal fees.
[7]
Greater Use of EOIR Continuance (Adjournment) Data for Case Management
Analysis
EOIR should continue its evaluation of adjournment code data, as an aid to system-wide analysis
of case management practices, reduce the number of codes available, and reevaluate its onereason-only principle for the codes or devise codes that reflect all the reasons a judge might
assign to an adjournment.
Analysis
As in all court systems, immigration judges continue proceedings to a future date to permit
parties to prepare for the next event, obtain evidence, seek legal representation, identify experts,
and many other reasons. There is debate over how freely judges should grant continuances
(“adjournments” in immigration court parlance). Some judges are fairly liberal in granting
continuances, preferring to err (if at all) on the side of permitting the parties to pursue the
litigation as they think best. Other judges believe that a liberal continuance policy encourages
lawyers to be dilatory, and, conversely, that lawyers will be prepared for the next hearing when
they know judges are unlikely to grant continuances, thus shortening the time to disposition and
reducing the costs to the parties and to the court system.
Adjournment Code Data. Judges assign one of over seventy adjournment and call-up codes to
every adjournment they grant. We wanted to know what if anything the adjournment data might
say about the behavior of respondents and their lawyers, of ICE attorneys, and the judges. (EOIR
officials have told us informally that EOIR has underway an examination of the utility of all the
data it collects, including the adjournment codes).
In response to our request, OPAT provided us data on adjournments in proceedings that were
completed in 2005, 2008, and 2010. (Obviously, not all the adjournments occurred in those
respective years, because a proceeding might take several years to reach completion.) OPAT and
other EOIR personnel warned us to be cautious in analyzing these data because a judge might
adjourn a hearing for several reasons but must assign only one code to it. (For example, a judge
may grant an adjournment because both attorneys request time to prepare, but the judge must
attribute the adjournment to one or the other.) ACIJs told us they do not use adjournment data in
assessing the performance of the judges they supervise, because they can get information from
their own observation and from the court administrators about problems.

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Page 83

In our analysis, we eliminated from the data set adjournments that were not related to the
behavior of lawyers, ICE attorneys, and judges as well as “case completion” adjournments,
which are assigned to the hearing at which the proceeding is completed.
Table J: Adjournment Factors Eliminated
Total hearings in proceedings
Less
(a) Case completions*
(b) Operational adjournments
(c) No adjournment entered*
* We presume a change in coding instructions

2005
684,337

2008
737,948

2010
852,230

10,001
19,316
288,981
366,039 (53%)

269,569
48,497
4,925
414,957 (56%)

280,780
56,274
4,864
510,312 (60%)

explains why the 2005 “No adjournment”
figure is similar to the 2008 and 2010 case
completion figures.

The number of adjournments per completed proceeding has increased over these three years, as
shown below:
Table K: Number of Adjournments per Completed Proceeding
Completed proceedings
Adjournments (subset)
Ratio of proceedings to adjournments

2005
331,672
366,039
1.10

2008
291,781
414,957
1.42

2010
287,207
510,312
1.77

We grouped the adjournments using the OPPM’s classification of adjournments as “alienrelated,” “DHS-related” and “IJ-related.” In all three years, judges attributed about two-thirds of
the adjournments to the alien and/or his or her attorney.
Table L: EOIR Assignment of Codes as Alien/DHS/Judge Related
Aliens
DHS
Judge

2005

2008

2010

69%
7%
25%

70%
15%
15%

68%
19%
13%

Frequently used adjournment codes. We next rank ordered the 2010 adjournments, sometimes
grouping closely-related adjournments together, by percentage of the subtotal, and then
identified the percentages for the same items in 2005 and 2008. So, for example, adjournments
coded as those granted to allow the respondent and/or the respondent’s lawyer or accredited
representative to prepare for a next event, constituted twenty percent (20%) of the total subset of
2010 adjournments.

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Page 84

Table M: Major Reasons for Adjournments as Assigned by Judges
Percent of all adjournments
Alien attorney prep/other requests
Alien to seek rep
Alien application pending with DHS
Alien to provided updated forensic
DHS to provide updated forensics
Alien filing other application in immigration court
Adjournment to the merits hearing
Judge absence (sickness, other assignment, etc.)
DHS-detainee related adjournments
Adjourned because alien wanted a different date or forum
DHS preparation
Alien/attorney no show (illness, etc.)
Alien contesting charges citizenship
Alien family related adjournments
DHS file unavailable
Insufficient time to complete hearing
TOTAL

2005

2008

2010

26
16
4
1
1
12
12
4
1
8
3
2
0
0
1
1
92%

21
15
9
9
6
8
8
4
4
4
3
2
1
1
1
1
97%

20
14
10
9
9
7
6
5
5
4
3
2
1
1
1
1
98%

2005--7.5% adjournments were attributed to "Case Conversion" (Code 98) which the OPPM does not define. In
2008 and 2010, code 98 was 2% and <1%

Perhaps the most interesting aspect of this table is the high level of consistency in reasons
assigned for continuances, especially in 2008 and 2010. The judges’ code assigning practices
may or may not be defective (in part because of the one-reason-only requirement) but their
practices appear fairly consistent, at least for the few years we examined. The data in the table
are at odds with some of the survey findings. Judges assigned the code “DHS file unavailable” to
only one percent of the adjournments. However, we asked in our survey the most common
reasons why judges could not complete all of the master and individual calendar hearings in a
scheduled calendar setting, thus requiring a continuance; fourteen percent (14%) of the judges, as
to both, entered some variation of “DHS file missing.”
Geographic variation. We also wanted to learn how evenly the various types of adjournments are
distributed across the courts. As a preliminary matter, we analyzed the proportion of the most
frequent adjournments in 2010 (10,000 or more) attributable to the two largest courts, New York
City and Los Angeles. Those courts accounted, together, for twelve percent (12%) of 2010’s
287,207 completed proceedings, but, as seen below, they accounted for twenty-seven percent
(27%) of the adjournments in those proceedings. That figure is due largely; it would seem, to the
nature of their caseloads. They are comparatively low in terms of completed proceedings per
judge (634 in New York, 684 in Los Angeles, compared to the national average of 1,148). But
those two courts are high in the proportion of cases in which the respondent seeks relief from
removal (sixty-six percent (66%) and forty-four percent (44%) respectively) and in which the
respondent has a lawyer (eight-eight percent (88%) and sixty-eight percent (68%)). (These are

Benson and Wheeler, Report for the Administrative Conference of the United States

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Page 85

2011 data; see Appendix 3). (As we noted earlier, some kind of weighted caseload index would
be helpful in assessing this particular point.)
Table N: Adjournments for New York City and Los Angeles
Adjournment for
All
DHS forensics 24
Alien forensics 36
I-130 pending 7C
DHS prep
Other alien, attorney request 12
IJ absence 34, 35, 19
Attorney preparation (2)
Alien seeking attorney 1
Adjourn to merits hrg 17
Alien released from detention

NYC and LA
27%
82%
46%
29%
22%
20%
19%
15%
13%
13%
<1%

Those two courts accounted for eighty-two percent (82%) of the continuances that judges
ascribed to the need to permit the Trial Attorney to provide updated biometric data and almost
half the continuances attributed to the need to permit the respondent to do so. If we remove those
two courts’ continuances ascribed to those two reasons, the proportion of such continuances
nationally as shown in Table N would drop from nine percent to four percent, and from eight
percent to three percent respectively.
As noted, we think EOIR should reduce the number of codes and allow judges to assign more
than one reason to an adjournment and/or revise the codes to accommodate more than one reason
for some common adjournments. Many of the over seventy codes were scarcely used; by our
count, fifty-nine of the adjournment and call-up codes used less than one percent (1%) of the
total assignments. (Codes 7D, E, F, G, for example accounted collectively for three-fourths of
one percent (0.76%) of the codes entered.) The precision these codes provide may not be worth
the proliferation in the code book. An overhaul might produce fewer codes but codes that more
accurately reflect the multiple reasons for an adjournment.
[8]
Enhancing Immigration Judge Authority by Enhancing Attorney
Accountability
Some of the unnecessary delay in immigration removal adjudication is created by counsel, either
as a tactic (e.g., to provide more time for the respondent to remain in the country), because of
individual incompetence, or because of organizational inefficiencies (e.g., government attorneys
not meeting deadlines because they did receive files in time).
In this section we discuss expanding attorney discipline and increasing options available to
judges to ensure attorney preparation and adequate performance. In other portions of the report
we recommend giving judges the power to administratively close cases or to encourage the
parties to enter into stipulations as a method of obtaining more control over the case docket. See
Section V.C.1.B. [2] and [3].

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[a]

June 7, 2012
Page 86

Incentivizing private, non-government, attorneys

EOIR should supplement existing disciplinary procedures by allowing judges to issue orders to
show cause why an attorney should not be publically reprimanded for lack of preparation,
obstructive behavior, or other behavior that impedes the court’s operation. Ideally, these
procedures would be available to judges to sanction both the private bar and ICE trial attorneys
(discussed next). Sanctions would not include monetary or formal disciplinary rulings.
EOIR should consider developing mandatory CLE materials that judges could order attorneys to
complete (including passing a qualifying examination) based on a finding that an attorney’s
behavior is substandard due to lack of substantive or procedural knowledge. If EOIR’s resources
are insufficient to develop such materials, it should explore pro bono partnerships with reputable
CLE providers or consider seeing regulatory authority to impose fines to subsidize the cost of
developing such materials.
Analysis
Regulations allow EOIR to discipline private attorneys.207 The EOIR website lists disciplined
attorneys and includes the related orders. In May 2012, 483 attorneys were on the list.208 While
we did not review all of these orders, the vast majority appear to be the result of DHS or EOIR
disciplinary counsel requests for reciprocal discipline based on the disciplinary actions of a
federal court or state bar. While the EOIR has increased its attention to attorney discipline, some
observers suggest spending more resources to investigate and prosecute attorneys who are
repeatedly ill-prepared and harm the interests of their clients.
The most recent amendments to the disciplinary regulations state that a judge may not initiate
discipline of an attorney but must instead submit a complaint to EOIR disciplinary counsel. 209
This two-stage process seems appropriate for serious discipline such as suspension or expulsion
from the immigration courts. In less serious cases, it may be preferable to allow judges to act
directly, in a manner analogous to a federal judge’s imposing sanctions such as written and oral
reprimands under Federal Rule of Civil Procedure 11.
Our survey asked immigration judges whether their informing “a Justice Department official
about a [lawyer] or accredited representative whom the judge believes should be investigated for
possible sanctions” was “sufficient for dealing with possibly improper behavior.” The 155 judges
who responded said the process was:

207

See 8 C.F.R. § 1003.101 (2011) et seq.
Executive Office for Immigration Review, Office of the Director & Office of Legislative & Public Affairs, List of
Currently Disciplined Practitioners, U.S. DEP’T JUST., (May 11, 2012),
http://www.justice.gov/eoir/discipline.htm#top (last visited May 24,, 2012).
209
8 C.F.R. § 1003.104 adopted in 73 Fed. Reg. 76914 (2008). See also, Peter L. Markovitz, The Robert L. Levine
Distinguished Lecture Overcoming Barriers to Immigrant Representation: Exploring Solutions: Report of
Subcommittee 2: Barriers to Representation for Detained Immigrants Facing Deportation: Varick Street Detention
Facility, A Case Study, 73 FORDHAM L. REV. 541, 574-75 (2009) (calling for expanding the role of judge oversight).
208

Benson and Wheeler, Report for the Administrative Conference of the United States

Very sufficient
Sufficient
No opinion
Insufficient
Very insufficient

Percent
5%
35%
12%
29%
19%

June 7, 2012
Page 87

Number
7
55
19
45
29

Overall, forty percent (40%) of the judges said the process was sufficient, while forty-eight
percent (48%) said it was not. Among the forty-two additional comments on this item, eight
judges said EOIR disciplinary counsel lawyers, due perhaps to overwork, do not process judges’
references promptly enough to make sanctions effective.
In our interviews, some judges said the main problem with respondent’s lawyers was lack of
sophistication, training, and adequate preparation; they encourage new attorneys to become more
familiar with immigration law, refer them to reading materials, or suggest they find experienced
mentor attorneys. As reported earlier, some courts partner with bar associations and other CLE
providers to offer more training and programming for the private bar. Substantial majorities of
judges, whether or not they participate in CLE programs, believe they improve attorney
performance.
Several commentators on earlier drafts favored giving judges authority to have “order to show
cause” hearings about reprimand or sanction but others questioned using CLE as a form of
reprimand and doubted EOIR had the resources to develop such programs. Still, identifying,
motivating and educating the weakest performing lawyers in immigration courts may be a longterm investment in improving the courts’ operating and protecting the parties’ interests.
[b]

ICE Trial Attorneys

We encourage EOIR to continue its efforts to implement the statutory grant of immigration judge
contempt authority.
Analysis
EOIR has no disciplinary procedures for ICE trial attorneys’ failure to meet deadlines or other
problematic behavior. Some of these matters may be referred to ICE’s Office of Professional
Responsibility. The Practice Manual tells practitioners that they, as well as judges, may raise
“[c]oncern or complaints about the conduct of DHS attorneys . . . in writing with the DHS Office
of the Chief Counsel where the Immigration Court is located.”210 The American Immigration
Lawyers Association website refers people with complaints about ICE counsel to the Office of
Bar Counsel in Washington. We do not know if judges ever make such referrals.
The INA says that immigration judges “shall have authority (under regulations prescribed by the
Attorney General) to sanction by civil money penalty any action (or inaction) in contempt of the
judge's proper exercise of authority under this chapter.”211 The twenty-two “Improvement
Measures” that the Attorney General announced in 2006 included “Updated and WellSupervised Sanction Authorities for Immigration Judges for Frivolous or False Submissions and
210
211

OCIJ PRACTICE MANUAL, supra note 106, at 10.3(a), (c).
INA § 240(b)(1) (2010); 8 U.S.C. § 1229a(b)(1) (2006).

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Egregious Misconduct” and “Updated Sanction Powers for the” BIA. The memorandum noted,
however, that the statutory authorization to impose a civil monetary penalty “exists only for
conduct ‘in contempt of an immigration judge’s proper exercise of authority’” and thus “its use
will require substantial oversight.”212
Our survey did not ask judges if they should have sanction authority for DHS attorneys but rather
whether they agreed with the statement that “Judges should have authority to recommend
investigation of DHS attorneys for possible sanction.” A substantial majority (eighty percent
(80%)) agreed (thirty-five percent (35%) “strongly”).Twenty-seven judges offered additional
comments, which ranged from “I've never had a problem with a DHS attorney that might require
sanctions” to “Immigration Judges should be able to exercise contempt power applicable to both
DHS attorneys and private bar attorneys as provided in section 240(b)(1) of the Act.”
EOIR officials report consistent efforts to issue regulations to give effect to the statutory
provision, but that DHS has just as consistently objected to the regulations’ during OMB
negotiations. In our interviews, DHS officials made clear that they will continue to oppose
implementation of contempt regulations because, as they see it, one set of government lawyers
should not be able to sanction another set of government lawyers. DHS officials reiterated that
there are appropriate methods of filing complaints against the ICE attorneys.
c. Video Hearings
EOIR and DHS, in light of the judges’ negative evaluations of VTC—especially evaluations
from judges who serve primarily detained dockets—must provide and maintain first rate VTC
equipment.
To facilitate more effective representation, including self-representation in removal proceedings
conducted with VTC, the Practice Manual (and other materials that EOIR prepares for attorneys
and for pro se respondents) should provide more guidance about how to prepare for and conduct
proceedings using VTC. EOIR should encourage judges to permit counsel and respondents to use
the courts’ VTC technology to prepare for the hearing so that their first experience is not the high
stakes hearing.
EOIR should consider more systematic assessments of VTC, beyond the informal monitoring
that it conducts today, in order to provide more systematic information on how to make its use
more effective and to ensure against undue prejudice. Periodic publication of the results of these
assessments would promote transparency about a practice about which many advocates and
judges have serious doubts.
Assessments might include consultation with the Asylum Office and review of their VTC best
practices for possible adoption and integration into EOIR procedures; randomly selecting VTC
hearings for observation by ACIJs and/or other highly trained personnel such as BIA staff
attorneys or visits by senior members of the Asylum Office, to prepare formal evaluations of the
VTC hearings, especially those involving claims for asylum or other humanitarian relief. Ideally
these special observers would also review a random selection of in-person hearings to offer a
comparative assessment. EOIR should also consider providing surveys or questionnaires to the
parties and their witnesses to gather information about how the VTC may have impaired hearing

212

ATT’Y GEN MEMORANDUM, supra note 78.

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during the proceeding and evaluating the data collected periodically to determine if corrections
to procedures or technology are warranted.
This assessment should include a realistic accounting of the net monetary savings attributable to
EOIR’s use of VTC.
As to procedures, EOIR, as it works toward implementing electronic docketing and electric case
files (which will permit ready access to documents in video proceedings), consider the interim
use of document cameras in video proceedings to avoid the need to fax documents between
locations. Parties in VTC hearings may request an in person hearing, and such requests appear to
be on the rise, as discussed below. We suggest EOIR instruct judges to make this clear to
respondents who request in-person hearings that the judge’s granting the request may delay the
hearing date substantially.
We also endorse two recommendations that the Adjudication Committee added during its review
of our report, namely that EOIR (a) encourage judges, in writing and by best practices training,
to be alert to the possible privacy implications of off-screen third parties who may be able to see
or hear proceedings conducted by VTC, and take appropriate corrective action where procedural,
statutory or regulatory rights may otherwise be compromised and (b) consider amending the
Practice Manual’s §4.9 (“Public Access”) to remind respondents and their representatives that
they may alert the judge if they believe unauthorized third parties are able to see or hear the
proceedings. (This second provision is not restricted to VTC proceedings.)
Analysis
Video conferencing (VC) (or video teleconferencing, VTC) allows judges to conduct hearings
even though the judge, respondent and government attorney—and respondent’s counsel and
witnesses, if any— are in two or more different locations. In this section of the report, we
describe the use of VTC in removal adjudication, summarize competing claims as to its strengths
and weaknesses, present and analyze responses to the two VTC question on our survey of judges,
and consider preliminarily the effect, if any, of VTC on the outcomes of asylum cases in
immigration court.
[1] Immigration court use of VTC
In the mid-1990s, EOIR introduced VTC in removal adjudication on a pilot basis. Congress in
1996 authorized its use at the discretion of the judge, without requiring the parties’ consent.
(Telephone proceedings on the merits do require the respondent’s consent.)213
According to an EOIR “directory” of immigration court VTC equipment,214 as of October 2011,
fifty-eight of the fifty-nine immigration courts had at least one VTC unit (the exception was the
very small Fishkill, NY court)—159 units in all. (The fifty-nine courts include the Falls Church
“Headquarters Court,” where four judges conduct only video hearings in cases that other courts
sent to them for resolution.) Of the 159, 150 were for removal hearings; nine were in pro bono
rooms or conference rooms or other office settings. The number of VTC units for hearings
ranged from seven (Los Angeles) to one, in over ten courts. The average number of units per
court was two and a half; the modal number was two. An additional nine units were in EOIR

213
214

INA §§ 240(b)(A)(iii)-(iv), 240(b)(B) (2010); 8 U.S.C. §§ 1129a(b)(2)(A)(iii)-(iv), 1129a(B) (2006).
EOIR, Immigration Court Video Conferencing Directory, Updated 10/17/2011 (in possession of authors)

Benson and Wheeler, Report for the Administrative Conference of the United States

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hearing locations, such as the Huntsville, Texas, detention center. Almost all of the 168 units
were owned by EOIR; DHS owned a handful. These 168 units, however, are in addition to VTC
units in other DHS detention facilities as well as local, state, and federal jails and prisons where
judges may hold hearings.
Table O shows the in-person, video, and telephone hearings held in proceedings and bond
redeterminations that were completed in 2010. Not all the hearings occurred in 2010; some cases
that were completed in 2010 originated and held hearings in prior years. VTC was used in over
twelve percent (12%) of the over 850,000 hearings conducted in removal proceedings and in
almost thirty percent (30%) of the roughly 78,000 bond redetermination hearings—overall usage
of almost fourteen percent (14%) of the hearings.215
O: VTC Use in Hearings in Proceedings and Bond Redeterminations Completed in 2010
Removal Proceedings

Bond Redeterminations

Both

All hearings

852,230

78,187

930,417

In person

737,385 (87%)

53,390 (68%)

790,775 (85%)

Video

105,901 (12%)

22,933 (29%)

128,834 (14%)

8,944 ( 1%)

1,864 ( 2%)

10,808 ( 1%)

Telephone

Because VTC obviates the need for respondents to go to a hearing site, it is used more for
hearings involving detained respondents (including those seeking bond redeterminations) than
for hearings for non-detained respondents. But VTC is not used only in detained cases. In
addition to the “headquarters courts,” judges in other courts conduct VTC hearings for
respondents in courthouses in other cities.
VTC arrangements can vary considerably. The judge, for example, may be in a courtroom with
the government attorney and any witnesses. The respondent may be in a detention center. A
respondent’s lawyer has to choose whether to be with the client or the court. A few detention
facilities bar respondents’ lawyers from participating in the hearing from the detention facility; in
those situations—and in situations when the attorney does not for other reasons appear in the
detention facility— the respondent and his counsel communicate solely through the video
medium during the hearing.

215

Table based on OPAT DATA, supra note 44.

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Requests for in-person hearings. The government or the respondent in a VTC hearing may
request an in-person hearing. We do not know how often they request them, or whether
respondents are even aware that they may do so, but we have the number of adjournments that
judges attributed to the respondent’s or government’s “request for an in person hearing” (and we
assume that an adjournment so described means an adjournment to an in-person hearing). The
number of such grants is small but may be on the rise:
Adjournments for request for an in-person hearing by:

Alien

2005
408

2008
333

2010
1,296

DHS

54

69

84

Total

462

402

1,380

From 2005 to 2010, the total number of hearings increased by twenty-four percent (24%), but the
number of adjournments to in-person hearings increased from 462 to 1,380 (198%). We don’t
know whether adjournments to in-person hearings in 2010 grew at a much greater rate than all
hearings because of the increase in VTC hearings generally or judges’ growing willingness to
grant request for in-person hearings or some combination. Nor do we know whether the increase
in 2010 is an aberration and/or whether the numbers reflect the inadequacies of the adjournment
codes. Commentators on an earlier draft speculated that the increase in requests for in-person
hearings could reflect the increase, however, slight in respondents with lawyers, who may be
more aware than pro se respondents that they may request in-person hearings.
A judge’s granting a request for an in-person hearing, especially for a detained respondent, may
cause a delay in the hearing as ICE and EOIR seek a place and time to hold the hearing.
[2] Competing claims about VTC in Removal Proceedings
The “In-House Research Report” (for ACUS’s 2011 project on VTC’s use in high-volume
administrative adjudication agencies216) summarizes the results of ACUS staff interviews with,
and other information provided by, EOIR officials.217 Its summary of the arguments for and
against current and expanded use of VTC tracks those that we heard in our interviews with
judges, and with government and respondent counsel, and arguments found in the literature.218
(The report used VTC in social security and veterans’ benefits adjudication as case studies but
not in removal adjudication, citing the complications involved and the lack of data within EOIR
on VTC’s use. Although the report said, in an apparent reference to our project, that ACUS
“plans to study the use of video hearings by EOIR in-depth as part of its forthcoming
Immigration Adjudication project,”219 we did not have the time or resources to go deeply into the
matter, certainly not to design and execute empirical research to answer the dispositive question,
viz., whether VTC is associated with significant differences in outcomes of removal adjudication
proceedings.)
216

AGENCY USE OF VIDEO HEARINGS: BEST PRACTICES AND POSSIBILITIES FOR EXPANSION, REC. NO. 2011-4,
ADMIN. CONFERENCE OF THE U.S. (2011) (adopted on June 17, 2011) available at www.acus.gov/wpcontent/uploads/2011/10/Recommendation%202011-4%20(Video%20Hearings).pdf [Hereinafter ACUS VIDEO
HEARINGS REPORT].
217
Materials cited in report but not published. On file with ACUS staff.
218
See ACUS VIDEO HEARINGS REPORT, supra note 1; Frank M. Walsh & Edward M. Walsh, Effective Processing
or Assembly-Line Justice? The Use of Teleconferencing in Asylum Removal Hearings, 22 GEO. IMMIGR. L.J. 259
(2008) (both citing the literature). See also ABA Comm’n on Immigr. Rept., 2010, supra note 32, at 2-26–27.
219
ACUS VIDEO HEARINGS REPORT, supra note 216, at 2 n.7.

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EOIR officials look favorably on VTC, as summarized in the ACUS draft report:220
In line with the agency’s goal, an EOIR official noted that the use of VTC technology to hold
hearings is a force multiplier that is a tool of efficient caseload management used by the agency
as a way to respond flexibly and efficiently to the demands of its high caseload. When asked,
one EOIR official noted that VTC technology has significant advantages over in-person hearings
such as convenience, safety, flexibility in scheduling hearings and increasing efficiency in
administration by, in effect, projecting Immigration Judges into various DHS detention facilities
where respondents scheduled to appear before an IJ on immigration related charges are being
held.

On the other hand, the four non-governmental entities that commented on the VTC portions of
our earlier draft were unabashedly opposed to its use in any but the most limited circumstances,
if at all. They said video hearings threaten respondents’ due process rights to be heard, to consult
meaningfully with counsel, to have proceedings adequately translated, and to fully see, and be
seen by, the other participants. Human Rights First said it welcomed “short-term efforts “ to
improve VTC’s use but objected to our description of VTC as “here to stay,” and said the short
term efforts should not “serve to institutionalize or normalize the use of VTC in the system.” The
American Immigration Council’s Legal Action Center “reject[ed] the premise that the use of
video hearings should continue pending the execution of empirical research to assess the impact
of this practice on the outcome of removal proceedings.” The American Bar Association said
that it “opposes using …VTC… in immigration hearings, except in procedural matters in which
the noncitizen has given consent.” The Harvard Immigration and Refugee Clinical Program
“recommend[ed] that [VTC] be eliminated in immigration court.”
We understand the advocates’ concerns, and our assessment of competing claims about VTC that
follows, as well as our summary of the judges’ survey responses, provide bases for the concerns.
Nevertheless, it seems clear that VTC is in fact here to stay, due partly to Congressional
insistence, and thus we cannot endorse the recommendations that it be abandoned, even as we
agree that it needs systematic assessments.
[a]

Quality of transmissions, due process protections

Proponents claim that the integrity and quality of the visual images that VTC provides is more
than adequate and does not require the compromises that might have been necessary in earlier
versions of the technology. In 2004, EOIR asserted that “VC does not change the adjudication
quality or decisional outcomes.”221 Subsequent EOIR press advisories have been less definitive;
a 2009 release asserted “VTC technology allows court proceedings, as well as meetings and
training, to be conducted efficiently and effectively, even though participants are not together at
one site.”222
As explained in more detail in the next section, only thirteen percent (13%) of judges responding
to our survey agreed that VTC hearings, “all things considered, are basically no different than
220

Id. at 32.
See Executive Office for Immigration Review, Office of the Chief Immigration Judge, Fact Sheet: Headquarters
Immigration Court, U.S. DEP’T JUST., (July 21, 2004) available at
www.justice.gov/eoir/press/04/HQICFactSheet.pdf.
222
Executive Office for Immigration Review, Office of the Chief Immigration Judge, Fact Sheet: EOIR’s Video
Teleconferencing Initiative, U.S. DEP’T JUST., (Mar. 13, 2009) available at
www.justice.gov/eoir/press/VTCFactSheet031309.pdf.
221

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‘in-person’ hearings” and slightly less than a third said the VTC equipment “allows me to hear
and see clearly all participants in remote locations.” Nevertheless sixty-six percent (66%) said
VTC was “effective for most master calendar hearings;” a smaller number, thirty-seven percent
(37%), said it was effective for most merits hearings.
Critics say the quality of the VTC transmissions vary greatly, including as between EOIR
equipment and that maintained by DHS in some detention facilities. They also say that no screen
image can duplicate an in-person hearing, where the fact finder can observe “nonverbal cues and
a sense of the applicant’s demeanor.”223 Critics argue that in cases where credibility assessments
are key to an immigration judge’s ruling, especially in asylum and related cases, the video format
may not provide adequate visuals of body language. (As we previously noted, the Asylum Office
uses VTC to conduct some limited interviews but does not use it for full asylum interviews.224
USCIS officials told us that all VTC interviews that result in a negative finding—lack of credible
fear—are subject to supervisory view.225)
Proponents of VTC use in immigration court respond, as paraphrased by the ACUS staff report,
that EOIR tells judges that assessing demeanor (whether at a video hearing or an in-person one)
is the agency’s least preferred method of determining credibility and that judges should not use it
when other methods of judging credibility are available.226
Finally, critics, while acknowledging VTC’s growing use in administrative and civil adjudication
in other court systems, note that it has been resisted in criminal proceedings, partly because of
the confrontation clause. Removal proceedings, of course, are civil and thus the confrontation
clause does not apply as it would in criminal proceedings. Still, many observers point to the
functional similarities between removal adjudication and criminal procedures.227
One commentator on an earlier draft pointed out that, depending on the hearing location in the
detention facility and the type of VTC equipment, the judge may be unable to see whether others
who are not authorized to be in the proceeding may be doing so anyway—including, for
example, other detainees or guards on break who may find the testimony interesting. The
detained respondent’s right to a closed hearing may thus be compromised, creating a risk to the
detainee if gang members, for example, learn of the specifics of the statements or testimony.
[b]

Effect on representation and translation

VTC can increase the availability of representation during hearings by enabling an attorney who
is unable or unwilling to travel to the site of a hearing to participate in the hearing from a remote
location. Furthermore, OCIJ has encouraged judges to allow attorneys appearing pro bono to use
the VTC equipment to confer briefly with their clients in remote locations228 (a request that
would seem equally justified for most paid counsel). We received a summary of an informal
survey that the assistant chief immigration judges undertook to learn their respective courts’

223

Walsh & Walsh, supra note 218, at 265.
Letter from Baker to Baer, supra note 131.
225
Email from Ted Kim, supra note 147.
226
ACUS VIDEO HEARINGS REPORT, supra note 216, at 35.
227
See, e.g., Jennifer Chacón, “A Diversion of Attention? Immigration Courts and the Adjudication of Fourth and
Fifth Amendment Rights,” 59 DUKE L. J. 1503 (2010), Stephen Legomsky, “The New Path Immigration Litigation:
Asymmetric Incorporation of Criminal Justice Norms,” 64 WASH. & LEE L. REV. 469 (2007)
228
OPPM: Facilitating Pro Bono Legal Services, supra note 10.
224

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practices as to such requests.229 It indicates that judges usually grant such requests, if the time
involved is brief, partly on the view that doing so may speed the hearing. When judges grant
such request, they often clear the courtroom except for a security guard and translator.
The equipment has the auxiliary benefit, subject to EOIR or DHS policies, of allowing lawyers
to consult with detained clients, apart from hearings themselves, and possibly permitting family
members to observe proceedings to which they might otherwise not have access.
Critics say VTC hearings present respondent’s with two bad options. A lawyer with the judge
during the hearing cannot confer freely with the respondent in a remote location. A lawyer who
is with the respondent cannot, as the ABA Report put it, “establish credibility and connect
emotionally with the judge.” 230 VTC arrangements may also impede communication with the
ICE Trial Attorney by the judge and respondent’s attorney Critics say translation may be
hampered depending on the translator’s location vis-à-vis the non-English speaking respondent.
[c]

Effective case management

VTC hearings enhance case management by allowing judges to be available in numerous sites,
when needed, within short time spans. On the other hand, there can be delays in delivery of
documents that parties submit during the hearing. In an in-person hearing, documents can be
exchanged hand-to-hand, but during a VTC hearing, they must be faxed to the judge or other
participants (EOIR does not yet authorize email transmission of hearing-related documents).
We heard anecdotal evidence that some judges refuse to accept faxed materials for admission
into the record even though the Practice Manual section on VTC hearings says that judges “often
allow documents to be faxed between the parties and the” judge.231 Parties either will have to
have mailed all documents prior to the hearing or the judge will have to adjourn the proceedings
to await receipt of the documents. One judge explained that he refused to accept faxed
transmissions in VTC hearings in order to enforce the Manual’s filing deadlines because
allowing faxes would encourage late or last-minute filings.)
In response to our survey, as explained in more detail in the next section, twenty-seven percent
(27%) of the judges agreed that the need to fax documents sometimes creates “non-trivial”
problems in conducting the proceedings.
[d]

Cost

Proponents say VTC hearings save EOIR the cost of transporting judges and staff to hearing sites
and saves DHS costs of transporting detained respondents. Although this point is obvious,
assuming that equipment costs do not exceed replaced travel costs—and using only those
variables as cost elements—the amount of savings is not obvious.
EOIR officials provided ACUS researchers a one-page, undated document, evidently prepared
by the EOIR Controller’s office in order to identify savings resulting from the “AG Savings
Initiative: Increase the use of video conferencing for the Department.” The document states that
$2,374,451 in “Actual FY 2010 Annual Savings” were attributable to EOIR use of video
229

QUERY RE: VTC and current practice: Summary of Comments Received, (Exec. Off. for Immigr. Rev. informal
manuscript (Oct. 2011) (provided by EOIR officials) (on file with authors).
230
ABA Comm’n on Immigr. Rept., 2010, supra note 32, at 2-27.
231
OCIJ Practice Manual at Ch. 4.7 (d), supra note 106.

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conferencing. “This is a savings offset, calculated by estimating the amount it would have cost in
detail travel, had the Judges and Court Staff not been able to handle the hearings via
videoconference.”232 The document provides no further details.
The cost savings figure is somewhat puzzling, based on an estimate of EOIR’s 2010 budget
allocations that one of us undertook (for a separate project) using published Justice Department
object class figures and additional data provided EOIR’s Public Affairs Office.233 By that
estimate, in 2010 EOIR allocated $2,044,500 to travel for the immigration courts. We assume the
bulk of that estimated figure was for hearings, although some was probably for expenses such as
orientation and continuing education.
One way to assess the savings that EOIR attributes to VTC is to combine estimated actual 2010
travel expenses and travel expenses that EOIR says would have been allocated had VTC not
been available.
Estimate of 2010 actual travel expenditures

$2,044,500 (46%)

Travel savings in 2010 that EOIR attributes to VTC
Total funds needed for travel if no VTC

+ $2,374,451 (54%)
$4,418,951

By this calculation, 2010 travel costs that the Controller said were rendered unnecessary by VTC
were greater than funds actually spent for all immigration court travel, including funds spent on
hearing travel alone.
But, according to Table O (supra) VTC accounted for slightly less than fourteen percent (14%)
of the 930,417 hearings involved in proceedings and bond determinations concluded in 2010. To
be sure, this does not mean that fourteen percent (14%) of hearings convened in 2010 involved
VTC, because the hearings, especially for removal proceedings may have occurred in 2009 or
earlier. EOIR’s expansion of VTC equipment and use may have meant a higher percentage of
video hearings during the twelve months of fiscal year 2010, than in earlier years, but we doubt
that VTC hearings increased to fifty-four percent (54%) of all hearings that year. (Of course, this
analysis assumes a one-to-one relationship between travel dollars and number of hearings, which
is not likely, but even with liberal allowances for differences, the numbers still seem hard to
square.)
Given the opposition to any VTC by sizable portions of advocates representing aliens, and tepid
enthusiasm for it among judges, as explained in the next section, claims of cost savings
attributable to VTC must be credible.
[3]

Survey responses

Two of our survey questions dealt directly with VTC. One asked judges to select one of the five
options shown below. Of the 159 judges who responded, forty-one said they had “[in] sufficient
experience with VTC to permit me to consider the statements.” The remaining 118 judges
responded as follows:

232

Document in possession of authors. It is identified as being at Tab E of the ACUS report.
See text at page 6, and supra note 7. (We provided this estimate to EOIR officials at the outset of the project and
asked for comments or actual EOIR budget figures but received no response.)
233

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Video teleconference hearings (VTC) are (select one):

June 7, 2012
Page 96

Percent and Number

Effective for most master calendar hearings, but not for most
merits hearings.

39 (33%)

Effective for most merits hearings but not for most master
calendar hearings.

5 (4%)

Are usually effective for both.

39 (33%)

Are usually effective for neither
None of these statements describes my view.

16 (14%)
19 (16%)

Adding the respondents who said VTC was effective for both types of hearings to those who said
it was only effective for one or the other produces this breakdown:
Effective for most master calendar hearings: 66%
Effective for most merits hearings: 37%
The only control we have for assessing these responses is whether the judges identified their
caseloads as primarily detained, primarily non-detained, or roughly evenly split. On that measure
we saw little difference in the responses, except that nineteen percent (19%) of those with
primarily detained dockets said VTC was “usually effective for neither” master nor merits
hearings, while only eleven percent (11%) of judges with mostly non-detained dockets selected
that option. These might reflect better VTC equipment used in hearings involving judges with
mainly non-detained dockets, but the numbers are small and thus the percentages volatile.
These forced-choice responses, moreover, may be somewhat misleading. Eight of the thirty-nine
judges who selected “usually effective for both” added comments, mostly negative, such as “But
the equipment is so crappy it takes twice as long as an in person hearing”; “Definitely not the
ideal way to conduct hearings”; “Documents must be served in advance for this to work well”;
“Our agency needs greater technical support;” “The VTC system often has problems ensuring
that the interpreter by phone and the respondent by VTC can communicate effectively”; and
“VTC is effective assuming the equipment is compatible by DHS’s equipment at the detention
facility and the VTC has been tested for sound quality”.
Furthermore, of the 19 judges who selected the “none-of-the-statements-describes-my-views”
option, eight added written comments, seven of which were negative. One judge said:
I have not done master calendar hearings by VTC, but I consider VTC to be an inadequate medium
for merits hearings, even though I have been forced to use them that way on occasion. I think it is
extremely difficult to judge credibility even in the best of circumstances. When the witness is a tiny
little head on a TV screen, it is even more difficult. Where attorney and client are [in] two different
places, their communication is also extremely difficult. I understand the reasons for using VTC, but I
think it raises important due process issues which have not been sufficiently addressed.

A second survey item asked the judges to select as many of the six statements listed below that
applied. Again, 159 judges responded, but forty said that they had insufficient experience with
VTC to consider the statements. The remaining 119 responded as follows (percentages exceed
100 percent because judges could select more than one statement).

Benson and Wheeler, Report for the Administrative Conference of the United States

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Percent and Number
The equipment allows me to hear and see clearly all participants in
remote locations.

32%

38

VTC hearings, all things considered, are basically no different than “inperson” hearings

13%

16

Equipment failures that require delay or adjustment occur often enough
to be a non-trivial problem in conducting proceedings.
VTC hearings, all things considered, are basically no different than “inperson” hearings—except that the need to transmit documents by fax
sometimes creates a non-trivial problem in conducting proceedings

47%

56

27%

31

VTC hearings, all things considered, are basically no different than “inperson” hearings—except that other aspects of VTC sometimes create a
non-trivial problem in conducting proceedings.
None of these statements describes my view.

21%

25

25%

30

Of the 119 judges, almost half (forty seven percent (47%)) said that “equipment failures” occur
often enough to be a non-trivial problem in conducting proceedings, and some of those judges
likely selected at least one of the additional options, as to problems caused by document
transmission or other things. If so, that would likely raise the (forty seven percent (47%)) percent
figure to over half. (Note that 119 judges selected 166 options, in addition to the thirty who said
that none of the statements reflected their views.)
As displayed below, there are differences in responses based on the judges’ docket (mostly
detained and mostly non-detained) but they are not easy to interpret.

(Factors paraphrased.)

Mostly detained

50-50

Mostly non det

Total

Equip. lets me see/hear clearly

11

29%

1

26

68%

38

VTC no different than “in person”

5

31%

0

11

69%

16

Equip. failures occur too often

23

41%

4

29

52%

56

VTC no different except for doc.
transmission

12

40%

1

17

57%

30

VTC no different except other

7

29%

1

16

67%

24

None describes my views

7

23%

2

21

70%

30

Percentages are of the row totals; those shown do not total 100 because percentages aren’t shown for the small
number of responses from judges with dockets roughly half-and-half detained and not.

Judges with mostly non-detained docket were much more likely than those with mostly detained
dockets to say:
--

the equipment allowed them to see and hear participants in remote locations,

--

VTC is basically no different from in-person hearings (although the numbers are small).

But they were also more likely to say:
--

equipment failures occurred often enough to be a non-trivial problem

Benson and Wheeler, Report for the Administrative Conference of the United States

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Page 98

--

faxing documents sometimes caused non-trivial problems in conducting proceedings, and

--

“other aspects of VTC” sometimes created problems.

These responses may suggest, again, that equipment used in VTC hearings of judges with mostly
non-detained dockets is superior to that in hearings of judges with mostly detained dockets. It
may also suggest that the cases before judges with mostly non-detained problems are more
complex than those of judges with mostly detained populations, with more documents and other
moving parts in the hearings that can cause problems.
Thirty-eight of those who responded to this item added written comments:
--

ten were essentially neutral (“effective for people who want a speedy hearing and to go
home”);

--

six were favorable (even though “observing the witness is not as good on VTC as it is
live, I think the benefits of VTC far outweigh the negatives”); and

--

twenty-two were critical (including from seven judges who selected the “none-of-thesestatements-describes-my-views” option. Five of the twenty-two commented on the
inability to assess demeanor.

(One other item in our survey dealt with VTC: We asked that judges select, from a list of ten
factors, four “that you believe would most improve your court.” One of the ten factors was
“Increased reliance on video teleconferencing.” Of the 153 judges who responded, four selected
that factor.)
[4]

Effect on outcomes

What is missing in these arguments is reliable evidence of whether VTC has an effect on
outcomes—put differently, whether differences that may be observed in the outcomes of VTC
versus in-person hearings can reliably be attributed to the use of VTC.
EOIR officials told the ACUS staff, and more recently us, that they monitor the use of VC
equipment, consider comments received from attorneys and others, and emphasize to judges the
need to try to accommodate needs of participants in VTC proceedings. But they also
acknowledged, quoting the ACUS report, that “the agency does not keep or analyze evaluative
data regarding outcomes of video hearings versus in-person hearings.”234 EOIR officials said
that, given the many variables at play in removal adjudication, a reliable evaluation might be
impossible.
The best way to answer the question of effects, if any, on outcomes would be a classic controlgroup experiment that randomly assigned cases that are similar in all major characteristics either
to VTC or in person hearings. The challenges of such an effort in the overworked immigration
courts are obvious.
We are aware of only one effort to identify outcome differences attributable to VTC in
immigration court proceedings, a 2008 article that mainly summarized popular, academic, and
judicial commentary on the hard-to-discount differences in how fact-finders perceive individuals
who are physically present in a courtroom versus those observed through the VTC medium.235
234
235

ACUS VIDEO HEARINGS REPORT, supra note 216, at 37.
Walsh & Walsh, supra note 218.

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The article also presented OPAT-provided data on the disposition of asylum claims in 2005 and
2006,236 as summarized in Table P below, to which we have added 2010 data that OPAT
provided us. (We eliminated the small number of telephonic hearings; hearings involving
withdrawn or abandoned claims, and larger numbers of hearings coded as “Other”, typically a
case in which the judge did not decide on the asylum claim because the respondent, for example
may have received another type of relief.)
For all three years, grants for all VTC asylum applicants were in the twenty-three percent (23%)
to twenty-nine percent (29 %) range, while in-person grant rates rose from thirty-eight percent
(38%) to fifty percent (50%).
Table P: Asylum Grants and Denials for Seekers in VTC and In-Person Hearings*
Disposition and forum

2005

2006

2010

VTC grant

109 (23%)

101 (24%)

216 (29%)

In-person grant

11,473 (38%)

13028 (45%)

8,338 (50%)

*2005 2006 data as reported by OPAT to 2008 article authors; 2010 data as reported by OPAT to Benson/Wheeler

The authors’ conclusion from the 2005-06 data: “the use of VTC actually makes asylum half as
likely for those who are forced to use the system.”237
The authors also analyzed outcome differences for asylum seekers not represented by attorneys
and observed only minor differences with the rates for all seekers. They furthermore reported
that the results were statistically significant as to the general population and the unrepresented
population.
The authors did not report, however, the effect of detained status on the relationships. Detained
asylum claimants may be more likely to be ineligible for asylum for the same reasons they were
detained, such as statutory bars due to criminal conduct, or were less likely to have approvable
asylum claims. We asked OPAT for data on 2010 asylum grants by type of hearing (VTC or in
person), representation status, and detained status. Table Q presents the results for those in
detention, those who had been detained but were released when the case was completed, and
those who were never detained.

236
237

Id. at 271-72.
Id. at 271.

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Table Q: 2010 Asylum Application Grants and Denials, By Detention Status and
Representation Status
DETAINED
VTC grant
IP grant
RELEASED
VTC grant
IP grant
NEVER DETAINED
VTC grant
IP grant

Total
136 (24%)
212 (11%)

Represented
127 (42%)
153 (18%)

Not represented
9 (4%)
59 (6%)

43 (39%)
1,153 (46%)

35 (43%)
1,048 (48%)

8 (28%)
105 (33%)

37 (42%)
6,973 (57%)

34 (48%)
6,699 (59%)

3 (18%)
274 (38%)

Table P shows a fifty percent (50%) grant rate for all asylum seekers with in-person hearings. In
Table Q, that grant rate for 2010 asylum seekers with in-person hearings drops to eleven percent
(11%) for those in detention. In fact, detained asylum seekers in 2010 did better overall if they
had a VTC hearing (twenty-four percent (24%)) than an in-person hearing (eleven percent
(11%)). Detained seekers in VTC hearings who were represented got asylum forty-two percent
(42%) of the time. (We have no explanation for this observation; one commentator suggested
that asylum seekers in remote detention facilities may have an easier time securing supporting
witness testimony if the witnesses can appear by video rather than having to travel to the remote
location.)
For 2010 asylum seekers with VTC hearings, those who had been released from detention, and
those who had never been detained fared better than detained respondents (thirty-nine percent
(39%) and forty-two percent (42%) respectively), but, unlike detained respondents, fared worse
than respondents in in-person hearings (thirty-nine percent (39%) to forty-six percent (46%) for
released applicants and forty-two percent (42%) to fifty-seven percent (57%) for never detained
applicants). The number of released and never-detained asylum seekers who had VTC hearings
was quite low (in double or single digits, making the percentages volatile). The differences in
success for represented and non-represented respondents are noticeable in all categories—for
example, forty-two percent (42%) of detained respondents in VTC hearings got relief versus four
percent (4%, N=9) for non-represented VTC detainees.
These data are not at all dispositive—one way or the other—as to the effect of VTC on the grant
of asylum claims in removal proceedings or outcomes in removal proceedings generally. We
offer them mainly as a caution against drawing conclusions from research that does not assess all
relevant variables. A more reliable assessment of VTC’s impact would come from an experiment
that controlled for such factors such as the nationality of the asylum applicant, the reason for the
denial (statutory bar vs. credibility determination), whether interpreters were used, and the
availability of alternative forms of relief.

2.

BIA Case Management Procedures

We provide here a relatively brief analysis of BIA procedures, as requested in our arrangements
with ACUS. Later in this subjection, we make a single proposal about grounds for assigning
appeals to three-member panels.

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Appeals to the BIA in 2011 were 35,962, down slightly from 36,633 in 2001; appeals from
immigration judge decisions only were down by a greater margin, from 30,772 in 2007 to 27,237
in 2011. Completions were also down slightly from 36,416 in 2007 to 36,284 in 2011,
completions in immigration judge appeals were down from 30,772 to 28,984. There has also
been a change in the mix of cases. In 2007, eighty-eight percent (88%) of the appeals filed came
from the immigration courts, the rest from DHS offices (almost all appeals from denials of
family visa petitions); in 2011, seventy-six percent (76%) came from immigration courts.238
The BIA has been extensively analyzed. Our interviews with BIA members and others suggest
that earlier problems with BIA performance have abated to the point that our research time and
resources would be better spent on other subjects. We did not evaluate and therefore take no
position on aspects of BIA performance that continue to prompt criticism, such as whether the
proportion of BIA completions by single member affirmances (over ninety percent (90%)) is too
high. Before describing the regulation referenced above, we analyze the adequacy of BIA
remands and the changing relationships between the BIA and U.S. Courts of Appeals caseloads.
a.

Adequacy of BIA Remands

Our survey asked: “When the BIA remands a case to you, does the remand adequately inform
you of the basis for the remand?” Of the 160 judges who responded, twelve said they had
insufficient experience to evaluate. The remaining 148 responded as follows:
Almost or almost always (roughly 90-100 % of the time)
Usually (roughly 75 to 89%)
Sometimes (roughly 50 to 74%)
Not often (roughly 25 to 49%)
Rarely or never (less than 25%)

%

N

74%
37%
14%
5%
5%

58
55
20
8
7

Seventeen judges offered additional comments. Eight said the BIA should be more specific about
the action the BIA desired upon remand rather than a “remanded for actions consistent with this
decision.” A few commented that the regulatory change that removed de novo fact finding from
the BIA made the remands overly cautious in the language of the remand and could create
confusion about what matters needed to be ‘reheard” in the immigration court. One comment
queried the proportion of staff resources, over 100 staff attorneys assigned to the fifteen-member
BIA and a like number to the 260 immigration judges.
b.

The BIA and U.S. Courts of Appeals

In 2002, Attorney General Ashcroft reduced the BIA from twenty-three members to eleven and
revised the regulations governing the procedures and standards used on review.)239 Soon
thereafter, petitions for review in the U.S. courts of appeals (“BIA Appeals”) shot upward,
reaching a peak in mid-decade, especially in the courts of appeals for the Second and Ninth

238

Statistical Year Book, 2011 supra note 4, at T2.
See Press Release, U.S. Dep’t of Just. Attorney General Issues Final Rule Reforming Board of Immigration
Review Procedures (Aug. 23, 2002) available at http://www.justice.gov/eoir/press/02/BIARestruct.pdf (describing
changes in regulations). The regulations were published in 67 Fed. Reg. 54878 (Aug. 26, 2002).
239

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circuits. BIA appeals as a percentage of all filings have receded but not to the levels seen before
the Attorney General’s changes.240
Table R: BIA Appeals as a Percent of All Appeals
(12 month period ending Dec. 30)

Total appeals filed
BIA appeals

2001

2006

2011

56,687
1,642 (3 %)

63,676
10,750 (17%)

55,817
6,511 (12%)

The BIA, over all, is contributing almost half as many cases to the courts of appeals dockets as it
did in the peak year, 2006, but still considerably more than in 2001.
The rate of appeal, however, has not declined so sharply.
Table S: Rate of Appeal from BIA Decisions
(12 month period ending Dec. 30)

BIA decisions
BIA appeals

2001

2006

2011

28,106
1,640 (6%)

33,506
10,750 (32%)

24,422
6,511 (24%)

The rate of appeal, again, peaked in 2006 and has dropped in 2011 but to nowhere near the rate
in 2001.
Finally, the spurt in BIA appeals has affected some courts of appeals much more than others—in
particular those in the Second and Ninth Circuits.

240

Drawn from data reported by the Statistics Division of the Administrative Office of the United States Courts (on
file with authors). Some data are also reported in Administrative Office of the U.S. Courts, Judicial Business of the
United States Courts, 2011.

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Table T: Total Appeals, BIA Appeals, Rate of Appeal (CAs 2 & 9)
(12 month period ending Dec. 30)

Total appeals filed CA-2
BIA appeals
Rate of appeal*
Total appeals filed CA-9
BIA appeals
Rate of appeal*

2001

2006

2008

2011

4,460
166 (4%)
3%
10,054
913 (9%)
10%

6,643
2,486 (37%)
43%
13,828
5,166 (37%)
43%

6,708
2,606 (39%)
42%
13,577
4,625 (34%)
43%

5,661
1,420 (25%)
31%
12,306
3,132(25%)
35%

*--Underlying figures not shown

Did respondents appeal a much greater percentage of the BIA decisions in 2011 than they did
they in 2001 because 2011 BIA decisions were more vulnerable, or for some other reason? Did
they appeal a lower percentage of decisions in 2011 than in 2006 because the decisions were less
vulnerable or because the economic downturn put legal fees beyond reach of many respondents?
To the degree that the level of appeals from its decisions is a measure of adequate BIA
performance, the rather sharp decline in appeals and the less dramatic drop in the rate of appeals
could suggest that serious performance difficulties have abated.241 The rate of appeal, in short,, is
affected by factors other than BIA performance, such as the state of the economy and costs of
pursuing appeals; discipline of abusive attorneys who filed frivolous cases; developments in the
doctrinal law that have refined issues frequently litigated in the court; and perhaps an increase in
pre-appeal opportunities to remain in the U.S. ranging from granting of motions to reopen to the
use of deferred departure.
c.

BIA Regulations on Referring Cases to Three-Member Panels

EOIR should assign a priority to getting approval of 2008 draft regulations allowing creation of a
three-member panel whenever the BIA member to which the appeal has been assigned believes
the case merits such review. Such a change will restore greater flexibility in the use of threemember panels. We take no position on other proposals or concepts within the draft regulations.
Analysis
The variation in the rate of appeal does not appear to be associated with any change in the ratio
of single member to panel decisions. See Table U below:242

241

Lenni B. Benson, You Can’t Get There From Here: Managing Judicial Review of Immigration Cases, 2007 U.
CHI. LEGAL F. 405 (2007) (suggesting an interplay of factors that motivate respondents to see judicial review of BIA
decisions).
242
Data from Statistical Year Book, 2011, supra note 4 and special O.P.A.T data run.

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Table U: Completions of Appeals from IJ and DHS Decisions and Procedural Characteristics
Completions
2006
2007
2008
2009
2010

41,475
35,394
38,369
33,102
33,358

Single Member Affirmances
38,649 (93.2%)
32,325 (91.3%)
35,656 (92.9%)
30,124 (91.0%)
29,695 (89.0%)

Oral Argument
3
2
0
1
3

The BIA in 2008 proposed amending its regulations governing when a single member could refer
the case to a three-member panel. Existing regulations provide criteria that limit three-member
panels to specific situations: (1) the need to settle inconsistencies among the rulings of different
immigration judges, (2) the need to establish a precedent construing the meaning of laws,
regulations, or procedures, (3) the need to review a decision by a judge or DHS that is not in
conformity with the law, (4) the need to resolve a case or controversy of major national import,
(5) the need to review a judge’s clearly erroneous factual determination, or (6) the need to
reverse a judge or DHS decision.243
EOIR proposed a regulation that would have allowed the creation of a three-member panel
whenever the BIA member believed the case presented “[t]he need to resolve a complex, novel,
or unusual issue of law or fact.” These regulations, though proposed in 2008, have not been
finalized.”244 EOIR officials told us that although the proposed regulation was not controversial
when proposed, it was withdrawn along with all pending regulations when the presidential
administrations changed in 2009. They added that the regulation is still actively under review but
is not a priority. We believe it should be.

3.

Court Performance and Immigration Court Management

A court system’s performance can be affected by how it balances, structurally and operationally,
judges’ independence and accountability within an organizational framework that can lean
toward centralized authority or to local autonomy.
We said at the outset of this report that although EOIR is part of the executive branch, we
assessed immigrant removal adjudication with a comparative eye on the nations’ state and
federal judicial branches. Like those courts, and unlike all but a few of the executive agencies
that conduct adjudication, immigration courts and the BIA use an adversary process to decide
cases of major national importance, involving some individuals for whom the case approaches
life or death importance. Unlike all but a few of the administrative adjudication agencies, the
immigration courts constitute a large judicial system of over 260 judges dispersed across the
country. EOIR’s Office of Chief Immigration Judge (like the Chief Administrative Law Judge in
the Social Security Administration) is analogous to other court system’s centralized management
as vested its supreme courts or chief justices or in a few cases a judicial council.

243

8 C.F.R. § 1003.1(e)(6)(i)-(vi) (2010).
See Board of Immigration Appeals: Affirmance Without Opinion, Referral for Panel Review, and Publication of
Decisions as Precedents, 73 Fed. Reg. 34,654 (proposed June 18, 2008).
244

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1.

June 7, 2012
Page 105

Immigration Judge Selection and Evaluation
a.

Selection

To promote transparency about hiring practices within EOIR, we think EOIR should publish
annually, as do some courts, or post periodically, summary and comparative data on the gender
and race/ethnicity composition of categories of EOIR personnel (e.g., judges, BIA members,
staff by occupational category), as well as summary information on judges’ prior employment,
with due attention to any statutory restrictions to protect privacy.
If EOIR is disinclined to post such information, or forbidden to do so, we encourage other groups
to do so, based on judges’ names on the EOIR website and Internet-available biographical
information.
Analysis
Immigration judge selection has been a staple of recent commentary since reports surfaced in
2007 of inappropriate partisan hiring of judges by DOJ political appointees, practices
documented in a 2008 report by the DOJ Inspector General/Office of Professional
Responsibility.245 There is little evidence that the officials who meddled in the hiring process
knew or cared what the judges do; they only cared that party loyalists got the jobs.
The Attorney General instituted new hiring practices that re-vested authority in EOIR.246 OCIJ
officials insist that the process is non-partisan and merit-based; we have no evidence that it is
not. A 2010 press release asserted that the “requirements for becoming an immigration judge set
high standards for the applicants and the screening process ensures that only the best candidates
are selected.” In addition to having at least seven years of “post-bar legal experience,” the release
said, applicants are evaluated on criteria of temperament; knowledge of immigration law and
procedures; litigation experience, preferably in high volume litigation arenas; experience in
conducting administrative hearings; and knowledge of judicial practices and procedures.”247
ACIJs told us they participate in the hiring process and believe it is working well. Other EOIR
press releases reporting on implementation of the twenty-two improvement measures describe
orientation and continuing education for judges and staff, as well as performance evaluations
(described later in this paper).248
We did not have the opportunity to assess the quality of newly hired judges, much less compare
them systematically to judges who have been serving longer in the immigration courts. We
certainly were in no position to operationalize and test EOIR’s empirical assertion that the
“screening process ensures that only the best candidates are selected.”
Despite these changes, some have called for more precise standards and greater participation by
interested stakeholder groups in the process in order to promote diversity and proper judicial

245

U.S. DEP’T OF JUST. OFFICE OF RESPONSIBILITY & OFFICE OF INSPECTOR GEN., AN INVESTIGATION OF
ALLEGATIONS OF POLITICIZED HIRING BY MONICA GOODLING AND OTHER STAFF IN THE OFFICE OF THE ATTORNEY
GENERAL (2008) available at http://www.justice.gov/oig/special/s0807/final.pdf.
246
Id. at 114-15.
247
Executive Office for Immigration Review, Office of the Chief Immigration Judge, Fact Sheet: Immigration
Judge Hiring Initiative, U.S. DEP’T JUST., (Mar. 2010) available at
http://www.justice.gov/eoir/press/2010/EOIR_IJHiring_FactSheet.pdf.
248
EOIR’s Improvement Measures, supra note 82.

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temperament.249 The NAIJ, by contrast, has referred to “a cumbersome hiring and clearance
process.”250 We have not had the time to weigh these objections or assess the likely feasibility of
the proposals.
Likewise, we did not have time to assess any changes in recent years in the demographic makeup
of the judicial corps or in the mix of pre-judicial vocations. As early as 1983,251 the first Chief
Immigration Judge worried that “[h]istorically, individuals selected to become immigration
judges were individuals who had come through the” prosecutorial ranks of the since abolished
Immigration and Naturalization Service. In 2010, the ABA Immigration Commission cited more
recent complaints of homogeneity in backgrounds and charges that irascible judge behavior and
disparities in the proportion of asylum grants may be an outcome of those hiring patterns.252
Some court systems publish annual reports of the demographic composition of their workforce,
including judges (the selection of whom for the most part the courts do not control) and
supporting staff. The Administrative Office of the U.S. Courts, for example, publishes “The
Judiciary Fair Employment Practices Annual Report,” 253 although it is not available on-line.
b.

Performance Monitoring and Evaluation

The press has reported instances of abusive immigration judge behavior toward parties, a matter
amplified by criticism in court of appeals opinions.254 We have no grounds to doubt the accuracy
of specific reports but have no way of knowing how representative they are of overall
immigration judge conduct (and, frankly, nor do circuit judges, who see records in only a small
fraction of immigration court proceedings).
These reports and criticisms helped make conduct and professionalism a leading component of
the Attorney General’s 2006 changes. Five dealt directly with monitoring and evaluating
performance and dealing with complaints of misconduct.
[1]

Individual Judge Performance Evaluation

EOIR should consider incorporating some elements of “Judicial Performance Evaluation”
models used in some state judicial systems into its performance evaluation process, including use
of a separate body to conduct reviews, agency-wide.
Analysis
The first of the Attorney General’s 2006 EOIR “Improvement Measures” was “Performance
Evaluations for Immigration Judges and BIA Members.” This subject is a moving target within
EOIR, and we were unable to give it the time and attention that we did to other topics.
According to EOIR officials, ACIJs conducted the first performance evaluations under the new
system starting in July 2011. The DOJ/EOIR “Performance Appraisal Record” for “Adjudicative

249

ABA Comm’n on Immigr. Rept., 2010, supra note 32, at 2-18–2-19, 2-29.
,Supra note 111.
251
See, e.g., William Robie, The Purpose and Effect of Proposed Rules of Procedure for Proceedings Before
Immigration Judges, 1 GEO. IMM. L.J. 269, 271-72 (1986).
252
ABA Comm’n on Immigr. Rept., 2010, supra note 32, at 2-19.
253
E.g., The [Federal] Judiciary Fair Employment Practices Annual Report, (2011, published by the Administrative
Office of the U.S. Courts).
254
See ABA Comm’n on Immigr. Rept., 2010, supra note 32, at 2-19 (citing commonly referenced judicial opinions).
250

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Employees”255 provides for a rating on three job elements—“Legal Ability,” “Professionalism,”
and “Accountability for Organizational Results,” leading to an “Overall Rating” of
“Satisfactory,” “Needs Improvement,” and “Unsatisfactory.” The ACIJ may provide written
comments (and must in the case of an unsatisfactory rating). The form defines the evaluation
standards for each job element and instructions for calculating the overall rating.
We asked in our survey: “How useful did you find the ACIJ’s assessment of your performance.”
The responses are below, based on responses from 149 judges who responded to the question.
(Only two judges checked “I did not have a review.” Thirty checked “Decline to respond” or
skipped the question. We don’t know whether any of them did not have a review.)
Very useful
Useful
No opinion
No more than marginally useful
Not at all useful

Percent

Number

13%
28%
16%
19%
24%

19
41
24
29
36

Perhaps surprisingly, given the general unpopularity of performance reviews, judges were fairly
evenly divided in their perception of the evaluations. Overall, forty percent (40%) selected one of
the “useful” options, and forty-three percent (43%) selected of one of the “not useful” options.
Seventeen of the nineteen judges who offered additional comments were judges who checked
one of the “not useful” options or “no opinion.” The bulk of the seventeen comments were that
the review was uninformative. “I was simply told I was doing a satisfactory job.” There was little
variation in these overall responses based on whether the judges had a primarily detained or nondetained docket. Other data, unavailable to us, might shed additional light on these responses—
such as the length of the responders’ tenure as judges and, of course, the nature of the
evaluations they received.
Some judges have objected to the use of quantitative measures in evaluating their performance.
EOIR’s “Agreement” with the NAIJ notes EOIR’s determination that subpart 3.1 of the
“Accountability for Organizational Results” job element (“Acts consistently with the goals and
priorities established by the Chief Immigration Judge”) “does “not encompass any specific
numerical or time-based production standards, such as the OCIJ case completion goals” except
for statutory or regulatory based deadlines.256
OCIJ has regularly promulgated case completion goals, most recently in July 2010, when it
added such goals as completing 100 percent of credible fear review determinations within seven
days.257 The goals respond to the 1993 Government Performance and Results Act, which seeks to
“improve Federal program effectiveness and public accountability by promoting a new focus on
results, service quality, and customer satisfaction.”258 The case completion goals are similar to
the ABA’s “Standards of Timely Disposition” for state trial courts—for example, that “90
percent of all civil cases should be settled, tried, or otherwise concluded within 12 months of the
255

Provided by EOIR officials and on file with the authors.
Executive Office for Immigration Review Performance Plan, provided by EOIR (on file with the authors).
257
Memorandum from Brian O’Leary, Chief Judge, New Case Completion Goals FY2010, to all Immigration
Judges (and others) (July 14, 2010) (on file with the authors).
258
Government Performance and Results Act of 1993, Pub. L. No. 103-62, 107 Stat. 285 (1993) at § 2(b)(3).
256

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date of case filing . . ..”259 Of course, the ABA standards are not mandatory unless a court adopts
them. OCIJ regards the case completion goals as aspirational, but the president and vicepresident of the NAIJ wrote recently that “judges perceive these goals to be mandatory and
frequently in conflict with ideal conditions for adjudicating cases fairly and independently,”
citing judges’ narrative responses to a survey on judicial stress.260
As far as we could tell from our interviews, ACIJs do not get centrally generated quantitative
reports of judicial performance but rather in their supervision of the courts, rely on their own
observation and those of the respective court administrators to alert them to judges who may be
having problems in completing cases.
The use of quantitative measures as part of judicial performance evaluations is a generally
accepted practice within state courts. The 2010 ABA Immigration Commission report
recommended that EOIR use an evaluation method based on the “Judicial Performance
Evaluation” models (JPE for short) developed by the ABA and the Institute for the Advancement
of the American Legal System.261 JPE denotes a process by which independent commissions,
created typically by state law and consisting of judges, lawyers, and other stakeholders, evaluate
judges periodically in such areas as legal knowledge, integrity and impartiality, communication
and administrative skills, and judicial temperament, using surveys and interviews of court users,
case management data, and reviews of the judge’s work product. JPE results have been put to
various purposes: providing voters objective data on which to determine whether to retain judges
in office; providing feedback to judges about their performance; and helping to shape judicial
education programs.262
EOIR would do well to consider importing some elements of standard JPE models, including the
use of some separate body to receive evaluation data and conduct the reviews. We realize as well
that cost is a major barrier to implementing these JPE models full blown, but full-blown
implementation is not essential. One of the judges commented on the survey form: “I believe that
a system of judicial ratings similar to those used in many state courts would be far more
revealing. The parties who appear before me, including respondents, private attorneys and DHS
should have the opportunity to comment as they are far more equipped to assess my performance
than a supervisor who is acting on after-the-fact hearsay at best. I would even welcome the input
of interpreters into the process as it is the people who are in the courtroom day to day who know
my work best.”
[2]

Immigration Court Performance Monitoring

EOIR should monitor immigration court performance by continuing its assessment of the
adaptability of performance measures used in other court systems, and publicizing the results of
259

AMERICAN BAR ASSOCIATION, STANDARDS RELATING TO TRIAL COURTS 86, at 2.52(a) (1992).
Slavin & Marks, supra note 16, at 1787 citing Stuart L. Lustig et al., Inside the Judges’ Chambers: Narrative
Responses from the National Association of Immigration Judges Stress and Burnout Survey, 23 GEO. IMMIGR. L.J.
57, 64-65 (2008).
261
See ABA Comm’n on Immigr. Rept., 2010, supra note 32, at 2-32 to 2-34.
262
See Institute for the Advancement of the American Legal System, Quality Judges Initiative, U. DENV.
http://www.du.edu/legalinstitute/jpe.html (last visited Jan. 6, 2012) (providing JPE resources) (disclosure: Wheeler
serves on the Institute’s Board of Advisors); American Bar Association, Black Letter Guidelines for the Evaluation
of Judicial Performance (2005), available at http://www.abanet.org/jd/lawyersconf/pdf/jpec_final.pdf.; ABA
Comm’n on Immigr. Rept., 2010, supra note 32, at 2-33.
260

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its assessment. It should include rank-and-file immigration judges in the assessment, as well as
stakeholder DHS agencies. We also think assessing the feasibility research on the links between
immigration court performance and individual court culture may be a worthwhile endeavor for
the Administrative Conference in conjunction with EOIR.
Analysis
Measuring an individual judge’s performance evaluation is different from monitoring a court’s
performance. Probably the best example of court performance standards are the Trial Court
Performance Standards developed by the National Center for State Courts as part of the national
emphasis over the last two decades in measuring organizational performance–the same emphasis
that produced the Government Performance and Results Act, to which the immigration court
case completion goals are a response. The Trial Court Performance Standards have five
elements: access to justice; expedition and timeliness; equality, fairness, and integrity;
independence and accountability; and public trust and confidence.263
To help courts implement them, the National Center has developed a generic performance
monitoring device—“CourTools”—which provides guidance to courts that want to measure their
performance in ten specific areas, such as “access and fairness,” “trial date certainty,” and “court
employee satisfaction.”264 EOIR officials told us there were aware of CourTools and were
exploring its applicability to the immigration courts.
Some state court systems, such as Utah’s, have modified CourTools’ measurement devices and
post the results of their application on their websites, with the aim (in Utah) of “help[ing] courts
identify and monitor important performance measures and make improvements to better serve
the needs of the public.”265 The Utah performance areas include quantitative measures of case
disposition—clearance rate (see Appendix 7 for an excerpt) and age of active pending cases, for
example—but other areas as well, such as access and fairness in the courts and court employee
satisfaction. The performance rankings reflected in the federal courts Court Management
Statistics are another example of publically available indices of court performance (see Appendix
6).
Although the measured unit in these schemes is the court, not individual judges, courts that are
serious in performing consistently with the standards they have established, need ways to
encourage individual judges to perform adequately. According to current research about
successfully performing trial courts, successful court performance is not simply a matter of
getting outlier judges to toe the mark but it also requires the creation of a culture within the court
that are conducive to high performance. National Center for State Court researchers, adapting
tools for examining corporate culture, identified several cultural types among state criminal
courts and established links between different cultures and court performance.266
263

NCSC: Research: Trail Court Performance Standards, NAT’L CENTER FOR STATE COURTS,
http://www.ncsconline.org/d_research/TCPS/index.html (last visited Jan. 6, 2012).
264
CourTools Performance Measurement Tools for Trial and Appellate Courts, NAT’L CENTER FOR STATE COURTS
(2011) http://www.ncsconline.org/D_Research/CourTools/index.html. See also The Executive Office for
Immigration Review, Hearing before the Subcommittee on Immigration, Citizenship, Refugees, Border Security,
and International Law, of the H. Comm. on the Judiciary, 110 th Cong. (2010) (statement of Russell R. Wheeler)
(discussing the possible application of CourTools and other performance measures to immigration courts), available
at http://judiciary.house.gov/hearings/pdf/Wheeler100617.pdf.
265
Utah Courts Performance Measures, UTAH STATE COURTS (Oct. 20, 2011) http://www.utcourts.gov/courtools/.
266
Ostrom et al., supra note 112.

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Obviously, measuring the culture of individual immigration courts and assessing any links
between different court cultures and court performance is a task well beyond this project. Indeed,
the workload strains within immigration courts may make inapposite the type of organizational
analysis that the National Center researchers were able to conduct in state criminal courts.
[3]

Handling Complaints Against Immigration Judges

EOIR, consistent with its commitment to transparency in the judicial discipline process, should
state on its “Immigration Judge Conduct and Professionalism” webpage that it is barred by
statute from identifying judges upon whom it has imposed formal disciplinary action.
Analysis
The Attorney General’s 2006 “Improvement Measures” (included, separate from the call for
judge performance evaluations) the development of “Mechanisms to Detect Poor Conduct and
Quality” and “Procedures to Assess Complaints Against EOIR Adjudicators.”
At least since 2010 EOIR has had an “Immigration Judge Conduct and Professionalism” page on
its website,267 which includes information about how to file complaints against judges, a
description of the complaint procedure, and summary quarterly statistics on complaints filed and
their disposition. In January, EOIR and the NAIJ agreed to an “Ethics and Professionalism Guide
for Immigration Judges,” which is also posted on the conduct and professionalism page. As
noted earlier, EOIR has assigned one of the ACIJs responsibility for “conduct and
professionalism.”
According to information on the conduct and professionalism page, complaints may arise from
filings by individuals or groups, or if the OCIJ initiates (“identifies,” in the argot of judicial
discipline) a complaint sua sponte when it becomes aware of possible problematic conduct from
any number of sources, including press accounts and judicial opinions. Responses to verified
allegations that are not the responsibility of DOJ’s Offices of Professional Responsibility or
Inspector General generally rest with the respective ACIJ with supervisory authority over the
subject judge’s court, as well as the ACIJs for conduct and professionalism and for training and
education. In fiscal 2011, EOIR received 159 complaints involving eighty-nine judges. It
dismissed fifty-three complaints, imposed formal disciplinary action as to two complaints, and
undertook informal non-disciplinary action as to seventy-three complaints. Sixteen were
concluded when the subject judges resigned or retired and the rest of the complaints were carried
over. The data for fiscal 2010 were very similar.
We did not have the time or resources to delve deeply into the complaint process’s design or
implementation, especially given the web of executive branch rules and regulations within which
the disciplinary process sits. The EOIR complaint processing system, although probably similar
to those in most executive agencies, differs from those of almost all state court systems, which
have established investigating bodies of judges, lawyers, and laypersons, which receive and
research complaints and submit those they regard as meritorious to adjudicating bodies for

267

Executive Office for Immigration Review, Immigration Judge Conduct and Professionalism, U.S. DEP’T JUST.,
(Oct. 2011) http://www.justice.gov/eoir/sibpages/IJConduct/IJConduct.htm.

Benson and Wheeler, Report for the Administrative Conference of the United States

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disposition or further appeal.268 (The federal judicial disciplinary process rests principally within
the all-judge circuit judicial councils.)269
Both the state and federal judicial disciplinary processes make public, with some exceptions, the
names of judges whom the adjudicating body publically reprimands. Such publication provides
needed transparency to an often obscure process. The EOIR summary statistics do not identify
judges who have been formally disciplined. EOIR officials explained that they are barred by
statute and executive branch policies from doing so, although some officials volunteered that
doing so might increase transparency. (EOIR’s “Summary” of its complaint handling procedure
notes that the OCIJ publishes the summary statistics referenced above “to increase the
transparency of the process” “[c]onsistent with the Privacy Act.”)
2.

Locus of Management Responsibility

We suggest that EOIR assemble a working group of immigration judges and perhaps outside
observers familiar with court management structures to evaluate alternatives to the current ACIJ
structure.
Analysis
a. The OCIJ Management Structure and Rationale
One aspect that distinguishes immigration courts from most state and federal judicial systems is
the absence of almost any management authority vested in the judges of each court. An EOIR
official told us informally that “OCIJ is one immigration court, in fifty-nine locations. The
locations are not autonomous but are an arm of the agency, and that is as it should be.” The idea
of a “unified court”—one single system-wide court with branches—was first articulated in
Progressive Era proposals that “the whole power of each state, at least for civil causes, should be
vested in one great court, of which all tribunals should be branches, department, or divisions.”270
The idea never got implemented because individual courts demanded some flexibility to deal
with local problems even within the context of centrally allocated funds and system-wide
procedural and administrative regulations.
The OCIJ management model is eleven assistant chief immigration judges with supervisory
responsibility over from four to seven immigration courts, as seen in Table V (which draws on
May 2012 information posted on the EOIR website, and reflects a modest April or May 2012
reorganization of the ACIJ ranks that appeared unannounced on the EOIR Website). The duty
station of four of these ACIJs is EOIR’s Falls Church headquarters; they supervise courts located
around the country (and the four-judge video court in the headquarters building and the nearby
Arlington court). Eight of the ACIJs have duty stations in the metropolitan areas of courts they
supervise, and they supervise other courts in other cities as well. Three of the Falls Church-based
ACIJs supervise only courts in other cities (and one of those ACIJs has responsibilities for
education and “vulnerable populations.” Two other ACIJs, who had court supervisory authority
before the reorganization, now have no specific-court responsibilities and are charged,

268

See BUREAU OF JUST. STATISTICS, U.S. DEP’T JUST., STATE COURT ORGANIZATION 56 (2004) available at
http://www.bjs.gov/content/pub/pdf/sco04.pdf.
269
See 28 U.S.C. ch. 16 (2006).
270
The State-Wide Judicature Act, 1 J. Am. Judicature Soc’y, Dec. 1917 at 101.

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respectively, with “labor management issues” and “conduct and professionalism,” and with
“operations.”) Three new court-supervising ACIJs are in place.
The courts that have a resident ACIJ account for 124 judges, forty-seven percent (47%) of the
264 judges on board in May 2012. This is a slight increase from forty-five percent (45%) before
the reorganization; 140 judges are in courts without a resident ACIJ.
Table V: Assistant Chief Immigration Judge Assignments271

ACIJ and Duty Station

Cts at/near duty
station (# of judges) Other courts (# of judges)

Rico Bartolomei, San Diego

San Diego (6)

East Mesa, El Centro, Imperial (3)

John Davis, Denver

Denver (6)

Bloomington, Cleveland, Las Vegas, Kansas
City (10)

Larry Dean, San Antonio

San Antonio (7)

El Paso, El Paso SPC, Harlingen, Pearsall, Port
Isabel (13)

Thomas Fong, Los Angeles

Los Angeles (31)

Honolulu, Lancaster, Saipan, Salt Lake City (7)

Print Maggard, San Francisco

San Francisco (18)

Portland, Seattle, Tacoma (7)

Christopher Santoro, Falls Church

HQIC (4)

Arlington, Baltimore, Philadelphia, York (16)

Elisa Sukkar, Miami

Miami, Krone (20)

Atlanta, Stewart, Orlando, San Juan (16)

Robert Weisel, New York City

NYC, Varick (32)

Elizabeth, Newark, Fishkill, Ulster (9)

Jill Dufrene, Falls Church

Batavia, Boston, Buffalo, Chicago, Detroit,
Hartford, Omaha (25)

Despali Nadkarni, Falls Church

Charlotte, Dallas, Houston, Houston SPC,
Memphis, New Orleans, Oakdale (22)

Jack Weil, Falls Church, (Trg.,
Vulnerable Populations

Eloy, Florence, Phoenix, Tucson (12)
124 JUDGES

140 JUDGES

The in-court placement of most ACIJs responds in part to one of the measures the Attorney
General ordered in 2006: that “the Acting Chief Immigration Judge . . . consider assigning one or
more of the Assistant Chief Immigration Judges to serve regionally, near the Immigration Courts
that he or she oversees, on a pilot basis” to evaluate whether the arrangement improved
“managerial contact and oversight in those courts.”272 EOIR asserted in June 2009 that the effort
has been “well received by immigration judges, EOIR staff, the private bar, and the government
bar.”273
271

Drawn from Executive Office for Immigration Review, EOIR IMMIGRATION COURT LISTING, U.S. DEP’T
JUST.(May 2012) available at http://www.justice.gov/eoir/sibpages/ICadr.htm and subsequent communications from
the Office of the Chief Immigration Judge.
272
ATT’Y GEN MEMORANDUM, supra note 78.
273
EOIR’s Improvement Measures, supra note 82.

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We asked why EOIR has adopted the approach of vesting authority for administering the courts
in a small number of ACIJs, rather than vesting that authority—subject to national administrative
policies—in the judges of each court and creating the position of chief judge in each multi-judge
court, with appropriate caseload reductions for those in large courts. The response, in a phrase
we heard often, was that “hearing time is the court’s most precious commodity,” and the judges
should have no responsibilities other than preparing for and conducting hearings.
An exchange we had with an EOIR official was illuminating. We asked, hypothetically, whether
a court’s judges could, on their own, invite a local law professor to come to the court to make a
presentation about an area of his or her immigration expertise—and to do so gratis—either in a
class room setting or in an informal brown bag lunch. We learned that the judges could not issue
such an invitation without the supervising ACIJ’s approval—whether the ACIJ served in the
court in question or was based elsewhere. The ACIJ’s prior knowledge and approval was
necessary because, as described to us, the ACIJ is responsible for the court’s administration,
including how judges allocate their time.
Moreover, because the “training” involved in the professor’s visit might be useful to other courts,
the ACIJ need to know about all such events. Furthermore, the ACIJ principally responsible for
education and training would need to know, in advance, about the proposed unpaid presentation
or brown bag lunch, inasmuch as that judge needs to know about any and all training or requests
for training so as to be in a position to oversee and document it.
This approach—freeing line judges from any administrative decisions— might trace back to the
first chief immigration judge, the late William Robie, cited earlier in our report concerning status
conferences. As to court administration, according to a 1993 post-mortem tribute,274 Judge
Robie:
established a management officer position in each of the larger Offices of the Immigration
Judges. . . By handling the daily administrative requirements of an immigration judge office,
management officers afforded the immigration judges the ability to concentrate upon the
judicial aspects of their position and focus on the just resolution of the cases that came before
them.

We of course cannot say how Judge Robie would have regarded the current centralized approach
to immigration court management and, more important, whether it is the best approach. Nor do
we know the degree to which, if any, the current approach is a product of DOJ rules governing
the behavior of department attorneys, and if so, whether any change in those rules to recognize
the special role of the judges might be possible.

274

Jere Armstrong & Richard J. Bartolomei, A Tribute to the Honorable William R. Robie, 7 GEO. IMMIGR. L.J. 265,
268 (1993).

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b. Judges’ Views of their ACIJs
Our January 2012 survey posed several questions about the ACIJ arrangement (obviously, the
one in place then, not the slightly reorganized arrangement described above). First, we asked
about agreement with dual statements—“My ACIJ is aware of the conditions, needs, and
problems in my court that need his/her attention,” and “I am aware of my ACIJ’s preferences and
policies as to how I should perform my duties.”
We display the responses side by side; 153 judges responded to the first question, and 150 to the
second.

Strongly agree
Agree
Neutral
Disagree
Strongly disagree

ACIJ aware of court needs, etc.
Number
Percent
55
36%
65
426%
11
76%
11
7%
11
7%

IJ aware of ACIJ pref’s
Number
Percent
41
27%
72
48%
26
17%
8
5%
3
2%

Substantial majorities of judges believed their ACIJ’s were aware of conditions, needs, and
problems in their respective courts (seventy-eight percent (78%)) agreed or strongly agreed) and
believed they knew what their respective ACIJ’s expect of them (seventy-five percent (75%))
agreed or strongly agreed). Although we don’t know in which specific courts the responding
judges work, we observed almost no differences in the breakdowns based on whether the judges
had predominantly detained or non-detained caseloads. We also know that forty-seven percent
(47%) of the judges are in courts with a resident ACIJ, but the percentages of those agreeing as
to both statements are over seventy-five percent (75%), suggesting that a fair proportion of
judges without a resident ACIJ nevertheless believe they understand their ACIJ’s preferences
and their ACIJ understands the respective courts’ needs.
The judges’ responses to these questions appear are related in part to their perceptions of the
utility of the recently completed performance evaluations. Almost all (ninety-five percent (95%))
of those judges who found the performance reviews useful agreed or strongly agreed that their
ACIJ was aware of their courts’ needs and conditions. Of those who didn’t find the review
useful, a majority still agreed that their ACIJ’s were aware of their courts’ conditions, but the
figure was only sixty-five percent (65%)). Likewise, ninety percent (90%) of the judges who said
they were aware of their ACIJ’s preferences found the reviews useful, but only sixty percent
(60%) of those who disputed the reviews’ utility said they knew what their ACIJ’s expected of
them.
We did not have these data during our interviews and were somewhat limited in any event in
those interviews in what we could ask about perceptions of the ACIJs. There are several possible
explanations for the observed, weak, relationship between judges’ views of their performance
reviews’ utility and their perceptions of their ACIJs. Those explanations could include attitudes
toward the OCIJ management structure generally and in its various elements (including the
ACIJ-administered performance reviews); seeing the quality of the review as a reflection on the
ACIJ’s abilities; or satisfaction or with the specific review received.

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c. Judges’ Receptivity to an Alternative Approach to OCIJ Management
Despite these results, we remained curious, based on part on our interviews and written
comments on our survey that suggest different cultures in different courts, whether alternative
approaches to immigration court management are worth exploring. That a high proportion of
judges believe the ACIJs understand their courts needs and that they, the judges, understand the
ACIJ’s preferences does not necessarily mean that the judges believe the arrangement is superior
to others or that it produces effective court management. In fact, a small number of judges who
agreed that their ACIJs were aware of conditions in the court added comments such as “while
ACIJs are aware of problems there is little they can or will do to alleviate them.” Similarly,
several judges who agreed that they knew their ACIJs’ preferences said “the ACIJ’s preferences
and policies should have no bearing on how an Immigration Judge performs his or her duties.”
Standards and evaluative tools developed for judicial branch courts275 embrace a less centralized
approach than that used by OCIJ. The ABA’s judicial administration standards, for example,
while recognizing the need for overall centralized management of a judicial system, stress that
each trial court should have its own administration “so that it can manage its business.”276 The
most thorough effort to link management approaches with trial court performance emphasizes
the role of local chief judges in promoting cultures conducive to high performance, a
phenomenon we discussed earlier. The principal research on trial court culture describes the
chief judge’s role as “fostering agreement among members and staff of the court in a collegial
manner” and “encourage[ing] other judges and staff to embrace one set of cultural orientations in
case management style and change management and another set in judge-staff relations and
internal organization.”277 An international consortium of several U.S. and foreign court
administration and research organizations sums up the conventional wisdom: “To become an
excellent court, proactive management and leadership are needed at all levels, not only at the top,
and performance targets have to be determined and attained. Well informed decision-making
[about achieving high performance] requires sound measurement of key performance areas and
reliable data.”278
As stated above, we were not able, within the confines of this project, to assess various cultures
in different immigration courts. Nor were we able to inquire about the degree to which the
observations above regarding the locus of management authority are applicable to the
immigration courts, whether the ACIJs are performing the chief judge roles found effective in
other courts and whether the immigration courts would function better if more management
authority were vested in the courts themselves. (A few judges told us that their time on duty is so
consumed by conducting hearings to leave little time for the kind of chief-judge-led collegial
problem solving described above.) We point to our earlier suggestion of a possible ACUS-EOIR
project on assessing immigration court cultures.

275

E.g., ABA Judicial Administration Division, supra note 259; Trial Court Performance Standards, supra note 264;
Ostrom et al., supra note 112; INTERNATIONAL CONSORTIUM FOR COURT EXCELLENCE, INTERNATIONAL
FRAMEWORK FOR COURT EXCELLENCE (2008) available at www.courtexcellence.com/pdf/IFCE-Frameworkv12.pdf.
276
ABA Judicial Administration Division, supra note 259, at 29.
277
Ostrom et al., supra note 112, at 127.
278
INTERNATIONAL CONSORTIUM FOR COURT EXCELLENCE, supra note 275, at 2, 4, 26.

Benson and Wheeler, Report for the Administrative Conference of the United States

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We were able, however, to use our survey to ask the judges their views of an alternative
approach to court management by asking whether they agreed or disagreed with this statement:
Immigration courts would operate more effectively if, instead of the current [ACIJ] system, in
each court with two or more judges, one of the judges served as chief judge to perform the duties
currently assigned to the ACIJs, with appropriate caseload reductions for the chief judge where
necessary.

The responses are summarized below; 152 judges responded.
Strongly agree
Agree
Neutral
Disagree
Strongly disagree

Percent

Number

23%
20%
22%
22%
13%

35
31
34
33
19

Neither agreement nor disagreement received a majority of the responses. Those who agreed
with the idea of individual court chief judges were forty-three percent (43%) of the 152 who
responded to this question; those who disagreed were thirty-five percent (35%), almost a ten
point difference. The second most frequent response of the five available was “neutral” (no
opinion).
We compared responses to the local chief judge concept and judges’ perceptions of their ACIJs.
Of those judges who agreed that their ACIJ was aware of their courts’ needs and conditions,
thirty-nine percent (39%) agreed with the concept of local chief judges and an almost identical
percentage (thirty-eight percent (38%)) disagreed. Likewise, of those who believed they knew
their ACIJ’s preferences for their performance, 41 percent favored the concept of local chief
judges and thirty-four percent (34%) disfavored that concept. (The numbers who disagreed that
their ACIJs knew local conditions or that they knew their ACIJ’s preferences were too small to
draw much of any conclusions.)
There was some association between judges’ preference for local chief judges and the judges’
view of the performance reviews’ utility. Of the judges who agreed with the concept of local
chief judges, a small majority (fifty-two percent (52%)) said the reviews were not useful, and
thirty percent (30%) said they were useful. Of the judges who disagreed with the concept of local
chief judges, forty-three percent (43%) found the reviews useful and thirty percent (30%) did
not.
The thirty additional comments judges offered on this item came roughly equally from those
agreeing and those disagreeing, with a few comments from those who selected the neutral option.
Those agreeing with the local chief judge concept generally said that “ACIJs tend to be a onesize fits all manner of supervision. Courts have different characteristics (as well as personalities).
More local autonomy would fit the flexibility of the agency better.” By contrast, a judge who
disagreed with the local chief judge idea said, in a manner similar to the EOIR official quoted
earlier, that “[h]aving many local ‘chief judges’ would likely mean a return to the past where
‘local rules” meant practices that varied greatly from court to court. We are a nationwide court
system and should operate as such.” Other judges disagreed with the concept of local chief
judges because they disagreed with concept of any chief judges, or because current caseloads
would make it difficult for one of the court’s judges to assume the role.

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Some judges commented that it would strain relations in small courts for one judge to conduct
reviews of one or two other colleagues. However, if EOIR were to move toward more of a
standard JPE performance evaluation, the task could be vested in a separate, agency-wide entity.
The bottom line seems to be that although the judges by large majorities found their ACIJ’s
aware of their courts’ needs and believed they know what their ACIJ’s expect of them, they were
split on the idea of a different management arrangement, with over four in ten favoring it, over
three in ten disfavoring it, and two in ten expressing no opinion. (These results are consistent
with what we were told in our limited exchanges on the topic during our interviews. Judges by
and large praised their ACIJ but when asked if there should be more local management authority
responded along the lines of “probably so.”)
It is perhaps striking how high a percentage of judges favored the local chief judge arrangement
even though many of them, probably, have little idea how local chief judge systems work in
federal and state courts. They survey instrument did not explain the concept.
OCIJ officials have told us informally that they regularly reevaluate the immigration courts
management structure. We encourage that process and believe our survey and related
information reported above can enhance it.

4.

Restructuring

A pervasive theme of critics of immigrant removal adjudication has been the independence of
immigration judges. They, as noted earlier, are not Administrative Law Judges with the
processes and protections provided by the APA, and are described both by statute and DOJ
regulations as attorneys who perform tasks delegated by the attorney general, albeit with
admonitions as well that they should exercise independent judgment within the structure of the
delegation. Some immigration judges and commentators see an inherent conflict.
Those who charge that the judges lack, or appear to lack, independence have usually called for
removing the immigration adjudication agencies from the DOJ into some sort of independent
status within the executive branch of government—either as a standalone administrative agency
or a so-called Article I court with presidentially appointed judges. The ABA Immigration
Commission Report describes the alternative approaches.279 Commentators and judges have
argued that, even though DHS, not DOJ, attorneys litigate cases in the courts and appeals in the
BIA, it is inconsistent with independent judicial decision making to place judges under the
administrative control of the nation’s chief law enforcement officer.
This matter is not going way, but we have not devoted much attention to proposed changes,
whatever their merits. (We did not include a question about it in our survey, but of the forty-five
responses to a final, open-ended invitation to offer additional comments, eight in one way or the
other expressed displeasure with EOIR’s placement within DOJ.)
There are several reasons why we devoted little attention to this matter. One is that it has been
extensively studied by others, and in the limited time we had for our study, it seemed best to deal
with other, less studied topics. Another is that, although there is an obvious potential for DOJ
management’s manipulation of immigration judge decision-making, through performance
reviews, sanctions, threats of removal for office and similar steps, we have encountered little
279

ABA Comm’n on Immigr. Rept., 2010, supra note 32, at Part 6.

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evidence of such manipulation. Third, although independent agency status would be a barrier
against DOJ decisional manipulation, the prospects of creating a new agency are dim, even
though EOIR is administratively sufficient within DOJ and might be relocated with little
additional long-term cost. Moreover, an autonomous immigration adjudication agency risks poor
sailing in the appropriations process compared to one served by the DOJ’s advocacy, both with
the Office of Management and Budget and Congressional appropriators. Aliens, especially aliens
accused or convicted of crimes, who DHS says should not be in the country, are hardly an
attractive constituency to appropriators.
Having said all that, we believe the case for independent immigration removal adjudication and
appeals agency has considerable merit.

VI.

Conclusion

We appreciate the cooperation of the many people who met with us and look forward to working
with the Administrative Conference as it evaluates the recommendations before it.

Benson and Wheeler, Report for the Administrative Conference of the United States

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Page 119

Acknowledgements

We also reiterate the support of our home institutions, including the support of our research
assistants and interns.
New York Law School research assistants: Eberle Schultz, JD Class of 2013, primary assistant,
and Aisha Elston-Wesley, JD Class of 2013.
Brookings Institution interns: Markus Brazill, Eric Glickman, and Carolyn Harbus
We also thank:
JoAnn Tuohy of the Statistics Division, Administrative Office of the U.S. Courts.
Bethany Ow, Esq., formerly an EOIR judicial law clerk in Houston, Texas. Stephanie Gibbs, JD
Class of 2012, who assisted with survey tabulation.
Thomas Wellington, statistician, New Haven, CT, who contributed to Lenni Benson’s
understanding of the survey results.

Benson and Wheeler, Report for the Administrative Conference of the United States

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Page 120

APPENDIX 1

INTERVIEWS
DEPARTMENT OF JUSTICE
EXCUTIVE OFFICE FOR IMMIGRATION REVIEW
Director’s Office Juan Osuna (Director), April 27 (Falls Church, 4 hours); May 3 (New York, 2
hours); August 8 (Falls Church, 2 hours), brief conversation Nov. 17 (30 minutes).
General Counsel Robin Stutman (General Counsel), May 19 (Falls Church, 1 hour)
Office of Legislative and Public Affairs, Office of Planning, Analysis and Technology Amy
Dale (Assistant Director) and Deborah Blacksten, May 19 (Falls Church, 1 hour) and several
follow up telephone conferences including Brett Endres.
Board of Immigration Appeals David Neal (Vice Chairman), Jean King (Acting Director of
Operations) May 19 (Falls Church, 1 hour); and David Neal again via telephone Dec 19 (Benson
only).
Legal Orientation and Pro Bono Program Steven Lang (Coordinator), May 19 (Falls Church, 1
hour) August 8 (Falls Church, 2 hours)
Michael Porter, Chief Deputy Clerk (and other staff), April 27 (Falls Church, 45 minutes)
Office of Chief Immigration Judge, Group interview May 19 with Brian O’Leary (Chief
Immigration Judge), Michael McGoings (Dep. CIJ), Assistant Chief Immigration Judges Ed
Kelly, Mary Beth Keller (ACIJ for Conduct and Professionalism), Jack Weil (ACIJ for
Education and Training (Falls Church, 3 hours), plus additional interviews in various
immigration courts (see below).
Immigration Courts (by state),
Arizona (Benson only)
Phoenix, July 11, Florence, July 12, Eloy, July 13, Tucson, July 14: Interviews of several hours
with 13 judges and several administrators, and LOP personnel.
California (Benson only)
Los Angeles, October 17, San Diego, October 19. Several hour interviews with nine judges and
several administrators.
Illinois Chicago, October 24 [About 5 hours with most of the members of the court and with
administrative personnel].
Maryland July 1 About 4 hours with most of the judges and some administrative personnel.
New York, Interviews on June 1 and June 20 with 11 judges and some administrative personnel,
November 30 telephone interview with two judges (Benson only).
Virginia Several hour interviews with a subset of Headquarters Court judges and observation of
proceeding, October 24.
Civil Division, Office of Immigration Litigation, David McConnell (Director), April 28
(Washington, 2 hours).

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DEPARTMENT OF HOMELAND SECURITY
Office of General Counsel, Group Interview April 28 Seth Grossman (Chief of Staff), Nader
Baroukh (Associate General Counsel for Immigration), Nicholas Perry (Assistant General
Counsel for Immigration Enforcement), Adam V. Loiacono, Attorney Adviser, Immigration
(Washington, D.C., 2.5 hours (Grossman 30 minutes only)).
Immigration and Customs Enforcement
Office of the Principal Legal Adviser, Peter S. Vincent (Principal Legal Adviser) May 18
(Washington, 1.5 hours) (joined by Gary Mead, Executive Associate Director, Enforcement and
Removal Operations, ICE).
Riah Ramlogan, (Deputy Principal Legal Adviser), April 28 (Washington, 1 hour), November
17 30 minutes; November 18 2 hours).
Geraldine Richardson, (Special Assistant to the Office of the Principle Legal Adviser)
(Washington 2 hours) and email correspondence in November.
Detention Compliance Officers (2 people names unclear) July 13, Eloy Detention facility, 1
hour.
Ruben Mayes (Detention Officer) Florence Detention facility, July 12, 1 hour.
Customs and Border Protection
Office of General Counsel, Jorge Luis Gonzalez, (Attorney), May 18 (Washington, 1 hour)
Director of the Tucson Border Patrol Sector and Officer in charge of public relations (names to
be confirmed) July 14, Tucson, Arizona (2 hours).
Julie A.G. Koller, Attorney (Enforcement) Office of Chief Counsel, via telephone, (Benson
only) November 29, 2011 (1 hour).
Citizenship and Immigration Services
Office of General Counsel, Dea Carpenter (Deputy General Counsel), May 18 (Washington, 2
hours).
Administrative Appeals Office, Perry Rhew (Chief of the AAO) June 21 10 to 11:30 (by phone,
1.5 hours).
Asylum Division, Refugee, Asylum & Int’l. Operations, Joseph E. Langlois (Director), Ted
Kim (Deputy Chief), August 9 (Washington, 1 hour 40 minutes) and subsequent email
correspondence.
IMMIGRATION LAWYERS (non-government)
Interviews in Arizona, New York, and Washington, D.C. with 6 attorneys associated with the
American Bar Association, American Immigration Council Legal Action Center, Catholic
Charities, Katzmann Study Group on Immigration Representation, and members of the private
bar, approximately 30 attorneys in all. (Interviewees made clear they were not speaking for
organizations with which they might be affiliated.)

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OTHER INTERVIEWS
We interviewed Donnie Hachey, Chief Counsel for Operations, and several other personnel of
Board of Veterans’ Appeals August 9 (Washington, DC, 1 ½ hours).
We interviewed David Martin (Univ. of Virginia, former General Counsel, DHS, by phone,
May 10, 2 hours).
We spoke during the project with several judges on the U.S. Courts of Appeals.

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APPENDIX 2

ADMINISTRATIVE CONFERENCE OF THE UNITED STATES
COMMITTEE ON ADJUDICATION
John Vittone

Committee Chair, Public Member

Fred W. Alvarez

Public Member

Judge Charles

Center Liaison Representative

Mariano-Florentino Cuéllar Council Member
Ivan K. Fong

Government Member

Susan Tsui Grundmann

Government Member

Christopher Hughey

Government Member

Mary Lucille Jordan

Liaison Representative

Elaine Kaplan

Government Member

Edward Kelly

Liaison Representative

Richard J. Leighton

Senior Fellow

Robert Lesnick

Government Member

Nadine Mancini

Government Member

Malcolm S. Mason

Senior Fellow

Doris Meissner

Public Member

Bob Schiff

Government Member

Glenn E. Sklar

Government Member

Thomas W. Snook

Liaison Representative

Daniel Solomon

Liaison Representative

Alan Swendiman

Liaison Representative

IMMIGRATION PROJECT WORKING GROUP
Kevin Burke

Judge, Hennepin County District Court (Minnesota)

Dea Carpenter

Deputy General Counsel, USCIS

Bill Ong Hing,

Professor of Law and Asian American Studies, Univ. of Cal.,
Davis

Edward Kelly,

Assistant Chief Immigration Law Judge, EOIR

Mark Krikorian,

Executive Director, Center for Immigration Studies

Stephen Yale Loehr,

Adjunct Professor, Cornell University Law

Benson and Wheeler, Report for the Administrative Conference of the United States

June 7, 2012
Page 124

Adam Loiacono,

Attorney Advisor, Office of General Counsel, DHS

David McConnell,

Director at Office of Immigration Litigation, US DOJ

David A. Martin,

Professor, UVA Law, former Deputy General Counsel, DHS

Doris Meissner,

Senior Fellow, Migration Policy Institute

Juan Osuna,

Director, EOIR

Riah Ramlogan,

Deputy Principal Legal Advisor, US ICE

Rebecca Sharpless,

Assist. Prof. Clinical Legal Ed., University of Miami Law School

Margaret Stock,

Adjunct Instructor, University of Alaska

Crystal Williams,

Executive Director, American Immigration Lawyers Association

Benson and Wheeler, Report for the Administrative Conference of the United States

June 7, 2012
Page 125

APPENDIX 3
Completed Proceedings

Detained Proceedings

IJs

Total

Per judge

w/ app
relief

w/ asy
app

rep’d

ARLINGTON

5

7,719

1,543.8

29%

19%

60%

32.2%

12%

ATLANTA

5

5,760

1,152.0

22%

11%

59%

30.8%

BALTIMORE

5

4,732

946.4

45%

23%

67%

BATAVIA SPC

2

1,857

928.5

10%

5%

BLOOMINGTON

3

3,716

1,238.7

18%

BOSTON

6

6,366

1,061.0

BUFFALO

1

2,380

CHARLOTTE

3

CHICAGO

w/ app
relief

rep’d

All Matters

Bonds

Motions

Total

Per judge

43%

1,105

541

9.365

1,873

9%

31%

1,520

524

7,804

1,561

19.1%

11%

22%

833

368

5,933

1,187

35%

64.6%

14%

23%

1,323

11

3,191

1,596

9%

57%

53.2%

9%

41%

1,163

117

4,996

1,665

40%

18%

70%

31.7%

18%

49%

1,778

726

8,870

1,478

2,380.0

13%

5%

68%

4.7%

15%

49%

107

145

2,632

2,632

3,273

1,091.0

36%

17%

67%

0.7%

33%

75%

1,133

222

4,628

1,543

9

11,468

1,274.2

16%

7%

42%

34.4%

6%

19%

2,233

496

14,197

1,577

CLEVELAND

3

4,733

1,577.7

19%

13%

45%

54.0%

7%

21%

1,073

204

6,010

2,003

DALLAS

5

8,462

1,692.4

12%

3%

37%

60.7%

6%

17%

748

343

9,553

1,911

DENVER

6

6,865

1,144.2

20%

6%

47%

40.1%

10%

19%

2,772

288

9,925

1,654

DETROIT

3

3,812

1,270.7

19%

7%

49%

49.7%

9%

21%

1,727

174

5,713

1,904

EAST MESA

2

1,198

599.0

18%

10%

39%

77.4%

19%

27%

636

12

1,846

923

20%

10%

35%

81.6%

20%

24%

639

24

2,311

EL CENTRO SPC

1,648

% of all

Other Matters

EL PASO

2

6,408

3,204.0

11%

2%

30%

69.4%

7%

15%

820

164

7,392

3,696

EL PASO SPC

3

4,082

1,360.7

8%

2%

44%

76.3%

9%

33%

1,470

37

5,589

1,863

ELIZABETH

2

1,633

816.5

17%

10%

49%

50.6%

9%

15%

1,103

63

2,799

1,400

ELOY

4

8,050

2,012.5

11%

3%

33%

65.3%

14%

15%

3,892

38

11,980

2,995

FISHKILL

0.5

287

574.0

18%

1%

27%

99.3%

18%

27%

0

17

304

608

FLORENCE

3

5,619

1,873.0

8%

3%

35%

69.7%

11%

18%

2,515

40

8,174

2,725

GUAYNABO

2

1,133

566.5

51%

13%

68%

10.7%

9%

49%

119

128

1,380

690

HARLINGEN

4

9,797

2,449.3

12%

6%

59%

17.8%

15%

42%

2,625

525

12,947

3,237

Benson and Wheeler, Report for the Administrative Conference of the United States
Completed Proceedings

June 7, 2012
Page 126
Detained Proceedings

IJs

Total

Per judge

w/ app
relief

w/ asy
app

rep’d

HARTFORD

2

1,592

796.0

38%

11%

67%

22.7%

13%

HONOLULU

2

967

483.5

46%

26%

70%

30.6%

HOUSTON

5

4,135

827.0

36%

8%

69%

HOUSTON SPC

3

11,067

3,689.0

6%

2%

IMPERIAL

1

943

943.0

8%

KANSAS CITY

2

4,059

2,029.5

KROME

5

7,345

LANCASTER

3

LAS VEGAS

w/ app
relief

rep’d

All Matters

Bonds

Motions

Total

Per judge

24%

1

127

1,720

860

11%

33%

269

47

1,283

642

6.6%

12%

63%

0

364

4,499

900

34%

80.3%

7%

19%

3,299

43

14,409

4,803

2%

36%

62.5%

1%

12%

5

14

962

962

17%

7%

46%

29.1%

6%

40%

1,129

145

5,333

2,667

1,469.0

22%

8%

44%

74.1%

24%

32%

4,432

159

11,936

2,387

5,854

1,951.3

10%

5%

36%

66.2%

13%

20%

3,736

38

9,628

3,209

2

2,800

1,400.0

25%

12%

50%

46.1%

9%

20%

360

151

3,311

1,656

LOS ANGELES

31

21,190

683.5

44%

32%

68%

25.8%

18%

33%

3,061

2,180

26,431

853

LOS FRESNOS (Pr. Ia’l)

2

3,653

1,826.5

22%

14%

50%

54.4%

25%

27%

3,035

52

6,740

3,370

MEMPHIS

2

2,907

1,453.5

26%

16%

60%

1.1%

3%

55%

36

169

3,112

1,556

MIAMI

15

10,030

668.7

38%

18%

69%

5.7%

11%

12%

2

1,212

11,244

750

NEW ORLEANS

1

893

893.0

31%

12%

68%

3.9%

6%

69%

0

63

966

966

NEW YORK CITY

29

18,382

633.9

66%

50%

88%

0.8%

15%

78%

0

1,919

20,301

700

NEWARK

6

5,557

926.2

31%

16%

62%

33.2%

19%

25%

1,643

760

7,960

1,327

OAKDALE

3

12,359

4,119.7

3%

1%

26%

78.7%

3%

13%

5,595

54

18,008

6,003

OMAHA

2

4,151

2,075.5

19%

14%

61%

41.1%

13%

31%

1,399

200

5,750

2,875

ORLANDO

6

4,562

760.3

47%

30%

66%

10.5%

14%

20%

277

452

5,291

882

PEARSALL

2

6,612

3,306.0

8%

3%

40%

64.8%

9%

18%

3,451

21

10,064

5,032

PHILADELPHIA

4

2,617

654.3

41%

23%

78%

2.6%

21%

71%

0

244

2,861

715

PHOENIX

3

3,340

1,113.3

28%

9%

54%

16.4%

5%

15%

0

207

3,547

1,182

PORTLAND

2

1,226

613.0

35%

20%

55%

10.8%

14%

26%

43

80

1,349

675

16%

0%

33%

9.6%

15%

46%

10

14

160

14%

6%

34%

71.1%

5%

18%

237

47

2,852

SAIPAN
SALT LAKE CITY

136
2

2,568

1,284.0

% of all

Other Matters

1,426

Benson and Wheeler, Report for the Administrative Conference of the United States
Completed Proceedings

June 7, 2012
Page 127
Detained Proceedings

IJs

Total

Per judge

w/ app
relief

w/ asy
app

rep’d

SAN ANTONIO

7

8,529

1,218.4

10%

4%

49%

16.0%

10%

SAN DIEGO

6

3,021

503.5

34%

15%

72%

32.1%

SAN FRANCISCO

18

9,172

509.6

42%

27%

65%

SEATTLE

3

3,080

1,026.7

45%

29%

STEWART

3

11,342

3,780.7

2%

TACOMA

2

6,277

3,138.5

TUCSON

2

3,688

ULSTER

0.5

VARICK
YORK
TOTAL

% of all

w/ app
relief

Other Matters

rep’d

All Matters

Bonds

Motions

Total

Per judge

34%

639

579

9,747

1,392

35%

54%

132

239

3,392

565

23.8%

20%

34%

1,833

583

11,588

644

73%

4.1%

23%

38%

0

173

3,253

1,084

0%

11%

94.3%

1%

7%

1,716

26

13,064

4,355

12%

6%

34%

64.3%

15%

12%

3,672

57

10,006

5,003

1,844.0

3%

1%

7%

92.3%

0%

1%

0

19

3,707

1,854

527

1,054.0

17%

2%

21%

98.7%

17%

20%

0

13

540

1,080

3

2,319

773.0

42%

11%

69%

56.1%

29%

50%

1,397

38

3,754

1,251

2

5,389

2,694.5

11%

5%

33%

79.6%

12%

23%

2,515

66

7,970

3,985

265

303,287

1,148.8

24%

13%

51%

42.4%

11%

22%

75,258

15,762

394,307

1,494

* Number of judges counted from listing on EOIR website, list dated April 2012. Total includes four judges in the headquarters video court.
Caseload numbers/percentages drawn from, or computed from data drawn from, EOIR Statistical Year Book, Fiscal Year 2011 and data provided by
EOIR’s Office of Planning, Analysis, and Technology (completions with representation and detained completions with applications for relief).

Benson and Wheeler, Report for the Administrative Conference of the United States

June 7, 2012
Page 128

APPENDIX 4

STIPULATED REMOVAL ORDERS (SRO) AS % OF COMPLETED PROCEEDINGS—
FY 2009-2011
2009
COURT

SROs

ARLINGTON
ATLANTA
BALTIMORE
BATAVIA SPC
BLOOMINGTON
BOSTON
CHARLOTTE,
CHICAGO
CLEVELAND
DALLAS
DENVER
DETROIT
EL CENTRO SPC
EL PASO SPC
EL PASO
ELIZABETH
ELOY
HARLINGEN
HARTFORD
HONOLULU
HOUSTON SPC
IMPERIAL
KANSAS CITY
KROME
LANCASTER
LAS VEGAS,
LOS ANGELES
LOS FRESNOS
MIAMI, FLORIDA
NEWARK
NEW ORLEANS
OMAHA,
ORLANDO
PEARSALL
SALT LAKE CITY
SAN ANTONIO

2010

2011

SROs

904
327
1
16
1,127
13
268
2,583
3,005
2,316
1,387
694
16
1,153
118
692
5,092
2,381

% of all
compl’ns
14%
5%
0%
1%
24%
<1%
9%
25%
40%
30%
12%
12%
1%
19%
2%
30%
39%
18%

582
373
57
58
737
18
51
2,199
1,824
2,743
878
577
13
840
479
527
2,547
1,210

% of all
compl’ns
8%
6%
1%
3%
15%
<1%
1%
21%
34%
31%
8%
10%
1%
18%
6%
20%
26%
11%

14
3
36
1,126
4,262
1,376
239

1%
<1%
3%
32%
35%
17%
6%

11
7
43
772
2,185
844
1,516

1%
<1%
4%
15%
18%
11%
38%

256
2

8%
<1%

652
1

20%
<1%

1
121
51

<1%
2%
1%

114
976
26

11%
20%
<1%

1,724
21

52%
<1%

1,401
52

46%
<1%

SROs
499
68
146
62
684

% of all
compl’ns
7%
1%
3%
3%
18%

3
1,349
1,506
1,788
200
232

<1%
12%
32%
21%
3%
6%

295
400
123
3
213
4
4
256

18%
6%
8%
<1%
2%
<1%
<1%
2%

683
643
449
494
28
432
6
1
3
640
61
13
735
1

17%
9%
8%
18%
<1%
12%
<1%
<1%
<1%
15%
1%
<1%
29%
<1%

Benson and Wheeler, Report for the Administrative Conference of the United States
SAN DIEGO
SAN FRANCISCO
STEWART
TACOMA
VARICK
YORK
TOTAL

1,161
759
518
2,441
1
328
36,533

24%
8%
7%
25%
<1%
4%
14%

67
1,750
244
1,186
12
125
27,706

2%
16%
3%
13%
1%
2%
11%

June 7, 2012
Page 129
157
2,630
6
23
6
14,846

2%
23%
<1%
1%
<1%
7%

Based on data in EOIR Statistical Year Books for respective years and data provided by OPAT. Data are
for 42 courts. Some courts reported no SROs for all three years or only for selected years.
For 2009, the range is <1% to 52% (Salt Lake City)
For 2010, the range is <1% to 46% (Salt Lake City)
For 2011, the range is <1% to 32% (Cleveland)

Benson and Wheeler, Report for the Administrative Conference of the United States

June 7, 2012
Page 130

APPENDIX 5

RESPONSES TO “MODEL COURT” AND “IMPROVE YOUR COURT” SURVEY
QUESTIONS
“Consider the concept of a ‘model immigration court,’ i.e., a court that adjudicates
cases fairly, timely, and as inexpensively as possible, with courteous treatment of all
participants. From the various items below, please rank the four that you believe
would most contribute to creating and sustaining such a court.”
Responding to survey: 181
Responding to this question: 158
Item
Adequate time for judge to review the file
A sufficient number of law clerks
A high percentage of respondents represented by quality
lawyers
Prepared respondent’s counsel
Prepared DHS counsel
DHS counsel who narrow the issues for adjudication
Use of detention to ensure removal and reduce delay
Outstanding interpreters
Outstanding legal assistants
Outstanding court administrator
Excellent courtroom equipment
Excellent office equipment

Responses
99
97
88

% of responders
62.7%
61.4%
55.7%

78
68
39
35
24
23
17
13
2

49.4%
43.0%
24.7%
22.2%
15.2%
14.6%
10.8%
8.2%
1.3%

Twenty-two judges selected “Another factor, not included above.” In the individual
comments, the most common factors were variations of those most frequently selected.
Appendix 5 con’t. next page

Benson and Wheeler, Report for the Administrative Conference of the United States

June 7, 2012
Page 131

“Various factors can contribute to better immigration courts. Please rank the four
factors that you believe would most improve your court.”
Responding to survey: 181
Responding to this question: 158
RESPONSES TO “IMPROVE YOUR COURT” QUESTION
Item
Additional law clerks
Fewer cases
More quality counsel for respondents
Better prepared respondent counsel
Better prepared DHS counsel
Additional staff (excluding judicial law clerks)
More initial and continuing judicial education
More forms of legal relief available to respondents
More timely submission of biometric data
Increased reliance of video teleconferencing

Responses
113
97
79
77
74
68
22
19
13
4

% of responders
71.5%
61.4%
50.0%
48.7%
46.8%
43.0%
13.9%
12.0%
8.2%
2.5%

Twenty-one judges selected “Another factor, not included above.” In the individual
comments, the most common factors were variations on those already selected.

Benson and Wheeler, Report for the Administrative Conference of the United States

June 7, 2012
Page 132

APPENDIX 6

This is a page from the 2010 Federal Court Management Statistics, available at
http://www.uscourts.gov/viewer.aspx?doc=/cgi-bin/cmsd2011Jun.pl
U.S. DISTRICT COURT - JUDICIAL CASELOAD PROFILE
12-MONTH PERIOD ENDING
JUNE 30 [2011]
2011 2010 2009 2008 2007 2006

TEXAS EASTERN
Filings*
Terminations
OVERALL
CASELOAD Pending
STATISTICS
% Change in Total
Filings

Numerical
Standing

3,981 3,578 3,500 3,641 3,889 3,571 U.S. Circuit
3,480 3,298 3,535 3,671 3,536 3,560
4,070 3,553 3,280 3,321 3,391 3,043
Over Last Year

11.3

Over Earlier Years

1
3

13.7 9.3

2.4

11.5 34

8

8

8

8

Number of Judgeships

8

Vacant Judgeship Months**

12.0 5.9

.0

.0

.0

.0

Total

497

448

437

455

486

447

34

3

Civil

424

376

369

376

403

368

23

1

Criminal Felony

73

71

68

79

83

79

39

3

Supervised Release
Hearings**

0

1

0

0

0

0

-

-

509

444

410

415

424

380

20

3

Weighted Filings**

896

613

568

650

662

528

3

1

Terminations

435

412

442

459

442

445

48

6

Trials Completed

17

21

23

23

17

21

65

8

Criminal Felony

11.4 9.7

9.9

9.4

8.8

9.2

73

8

Civil**

8.1

10.0 10.4 9.5

9.7

9.2

33

4

23.2 22.5 26.6 17.8 18.0 15.0 33

6

FILINGS
ACTIONS
PER
JUDGESHIP Pending Cases

MEDIAN
TIMES
(months)

From Filing to
Disposition

From Filing to Trial** (Civil Only)
Civil Cases Over 3
Years Old**

OTHER

8

19

Number

190

161

146

82

114

93

Percentage

5.6

5.4

5.3

3.0

4.0

3.8

1.9

2.1

1.9

2.0

1.7

1.6

Average Number of Felony Defendants
Filed Per Case

49

5

Benson and Wheeler, Report for the Administrative Conference of the United States

June 7, 2012
Page 133

12-MONTH PERIOD ENDING
JUNE 30 [2011]
TEXAS EASTERN

2011 2010 2009 2008 2007 2006
Avg. Present for Jury
37.39 43.68 38.68 36.14 39.00 36.58
Selection

Jurors
Percent Not Selected
31.5 40.6 35.1 38.3 34.4 29.5
or Challenged

Numerical
Standing

Benson and Wheeler, Report for the Administrative Conference of the United States

APPENDIX 7

June 7, 2012
Page 134

Benson and Wheeler, Report for the Administrative Conference of the United States

June 7, 2012
Page 135

APPENDIX 8

The Utah state court performance measures page available at http://www.utcourts.gov/courtools/ presents aggregate and in some cases comparative
performance measures for the states courts. One of the nine performance measures is “Clearance Rate,” defined as “The number of court cases being
completed or disposed of as a percentage of court cases being filed.” Below is a recreated excerpt from the clearance rates report for courts in two of
the states eight districts, and the statewide figures.
Criminal Misd
DUI

Misd

Other

State
Felony

Domestic General
Civil

Probate

Prop
Torts
Rights

Traffic/
Parking

District 1

95%

100%

105%

87%

110%

93%

105%

86%

96%

67%

105%

Brigham City

126%

---

---

100%

162%

103%

117%

130%

83%

88%

250%

Logan

91%

100%

110%

86%

100%

88%

100%

75%

104%

61%

105%

Randolph

70%

---

0%

76%

60%

33%

86%

0%

200%

0%

78%

District 2

94%

214%

106%

101%

91%

92%

102%

89%

85%

84%

96%

Bountiful

128%

233%

133%

123%

---

---

---

---

---

---

130%

Farmington

87% --

167%

81%

86%

96%

98%

88%

96%

86%

200%

Layton

101%

0%

69%

105%

---

---

---

---

---

---

86%

Morgan

93%

---

---

63%

160%

39%

33%

13%

100%

---

100%

Ogden

89%

---

109%

89%

94%

91%

101%

93%

75%

80%

275%

Statewide

106%

122%

109%

112%

104%

93%

119%

91%

94%

102
%

109%

1

Benson and Wheeler, Report for the Administrative Conference of the United States

June 7, 2012
Page 136

APPENDIX 9

Below are a table and explanatory text exactly as provided by ICE to the authors on June 5, 2012.

ERO LESA Statistical Tracking Unit
ACUS Study of Immigration Removals - FY11 and FY10 Removals

Case Category

FY2011
Removals

FY2010
Removals

[8F] Expedited Removal

55,464

34,998

[11] Administrative Deportation / Removal

11,721

12,758

[16] Reinstated Final Order

119,806

121,008

All Others

209,915

224,098

Total Removals

396,906

392,862

FY2011 and FY2010 data is historical and remains static.
Removals include Returns. Returns include Voluntary Returns, Voluntary Departures and Withdrawals under Docket Control.
Starting in FY2009, ICE began to “lock” removal statistics on October 5th at the end of each fiscal year and counted only the aliens
whose removal or return was already confirmed. Aliens removed or returned in that fiscal year but not confirmed until after
October 5th were excluded from the locked data and thus from ICE statistics. To ensure an accurate and complete representation of
all removals and returns, ICE will include the removals and returns confirmed after October 5th into the next fiscal year. The
number of removals in FY2009, excluding the "lag" from FY2008, was 387,790. The number of removals in FY2010, excluding the
"lag" from FY2009, was 373,440. This number does not include 76,732 expedited removal cases which ICE closed on behalf of
CBP in FY2010. Of those 76,732, 33,900 cases resulted from a joint CBP/ICE operation in Arizona. ICE spent $1,155,260 on
those 33,900 cases. The number of removals in FY2011, excluding the "lag" from FY2010, was 385,145.

Benson and Wheeler, Report for the Administrative Conference of the United States

June 7, 2012
Page 137

FY Data Lag/Case Closure Lag is defined as the physical removal of an alien occurring in a given month; however, the case is not
closed in EARM until a subsequent FY after the data is locked. Since the data from the previous FY is locked, the removal is
recorded in the month the case was closed and reported in the next FY Removals. This will result in a higher number of recorded
removals in an FY than actual departures.