Immigration Judges Revolt Against Trump Administration

by Jason Dzubow on December 19, 2017

In a little noted, but quite extraordinary move, the National Association of Immigration Judges (“NAIJ”) has asked Congress to protect its members (Immigration Judges) from the Trump Administration (their employer). The reason? The Trump Administration is seeking to “evaluate judges’ performance based on numerical measures or production quotas.” According to NAIJ, “If EOIR is successful in tying case completion quotas to judge performance evaluations, it could be the death knell for judicial independence in the Immigration Courts.” “Judges can face potential termination for good faith legal decisions of which their supervisors do not approve.”

EOIR is developing a more efficient way to adjudicate cases (and it comes with a free drink!).

Let’s start with a bit of background. NAIJ is a voluntary organization of United States Immigration Judges. It also is the recognized representative of Immigration Judges for collective bargaining purposes(in other words, the IJs’ union): “Our mission is to promote the independence of Immigration Judges and enhance the professionalism, dignity, and efficiency of the Immigration Courts, which are the trial-level tribunals where removal proceedings initiated by the Department of Homeland Security are conducted.”

According to NAIJ, the most important regulation governing IJ decision-making is 8 C.F.R. § 1003.10(b). This regulation requires that immigration judges exercise judicial independence. Specifically, “in deciding the individual cases before them, and subject to the applicable governing standards, immigration judges shall exercise their independent judgment and discretion and may take any action consistent with their authorities under the Act and regulations that is appropriate and necessary for the disposition of such cases.” 8 C.F.R. §1 003.10(b).

Up until now, IJs were exempted from quantitative performance evaluations. According to NAIJ, “The basis for this exemption was rooted in the notion that ratings created an inherent risk of actual or perceived influence by supervisors on the work of judges, with the potential of improperly affecting the outcome of cases.”

The Trump Administration is now moving to change the way it evaluates IJs. The main reason for the change is the Administration’s goal of reducing the very-large backlog of cases in Immigration Court (currently, there are about 640,000 pending cases). The Executive Office for Immigration Review (EOIR – the office that administers the nation’s Immigration Courts) recently announced a plan to “transform[] its institutional culture to emphasize the importance of completing cases.” In other words, EOIR will judge its judges based–at least in part–on the number of cases completed.

NAIJ has called this development “alarming” and a threat to judicial independence. Why? Because when judges are forced to complete a certain number of cases, they may be unable to devote the necessary time to each case. As a result, the ability to make proper, well-thought-out decisions will suffer.

This is already a problem in Immigration Court. One IJ famously quipped that his job involved adjudicating death penalty cases in a traffic court setting. And so pushing judges to do more cases in less time will potentially impact the alien’s due process rights, and the integrity of our Immigration Courts.

NAIJ has long believed that the system needs a “structural overhaul” and has advocated for converting the Immigration Courts into Article I courts. Article I refers to the first article in the U.S. Constitution, the section on legislative (i.e., Congressional) powers. The idea is that Congress would establish an independent immigration court, much like it created a tax court and a court of veterans appeal. Such a court would be independent of the Executive Branch–the branch of government tasked with enforcing immigration law (currently, IJs are employees of the Department of Justice, a part of the Executive Branch).

NAIJ recognizes that creating Article I immigration courts “may not be feasible right now,” but it nevertheless urges Congress to protect the nation’s IJs from the new Trump Administration policy:

Congress can… easily and swiftly resolve this problem through a simple amendment to the civil service statute on performance reviews. Recognizing that performance evaluations are antithetical to judicial independence, Congress exempted Administrative Law Judges (ALJs) from performance appraisals and ratings by including them in the list of occupations exempt from performance reviews in 5 U.S.C. § 4301(2)(D). This provision lists ALJs as one of eight categories (A through H) of employees who are excluded from the requirement of performance appraisals and ratings. To provide that same exemption to Immigration Judges, all that would be needed is an amendment to 5 U.S.C. § 4301(2), which would add a new paragraph (I) listing Immigration Judges in that list of exempt employees.

The fact that IJs themselves are concerned about the Administration’s move is worrying. The Immigration Judges I know are conscientious and take their jobs very seriously (in contrast to the Trump Administration, which seems utterly lacking in seriousness). If EOIR is making it more difficult for IJs to do their duty, as they understand it, then something is clearly wrong.

Perhaps the IJs’ concerns are overblown. Maybe EOIR will implement the new case completion standards in a way that does not damage judicial independence or due process. But given the Administration’s track record in general, and the inexperienced acting director appointed to head EOIR, it’s difficult to have much confidence in the new policy. Since Congress is unlikely to act on NAIJ’s request for protection, I suppose we will see soon enough how these changes affect the Immigration Courts.

Finally, in my opinion, EOIR has largely misdiagnosed the problem. While some delay may be caused by IJs kicking the can down the road, or by aliens “playing” the system, most delay is systematic–it is caused by reshuffling Administration priorities, which affect how DHS and DOJ schedule cases. I doubt that imposing numerical quotas on IJs will do much to improve the situation. Other solutions–facilitating pre-trial conferences, reforming the Master Calendar system, better use of technology, imposition of costs, premium processing for certain applicants–might be more effective. Everyone agrees that reducing the backlog is a worthy goal, but case completion requirements are probably not the best way to achieve that end.

{ 44 comments… read them below or add one }

Adewale Akinrinde January 13, 2018 at 5:17 pm

Thank you.

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Amir January 10, 2018 at 10:50 pm

Hey Jason, hope you are doing well.
I am about to start studying my PhD and very excited. I am waiting for immigration court. Just wanted to know what if my case get rejected? Can I still continue my PhD or I will be deported?

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Jason Dzubow January 11, 2018 at 7:25 am

You can appeal, which takes maybe 6 months to 2 years depending on the case. After that, you can take your case to federal court, though that can be expensive and often times is not worthwhile (and the work permit is no longer valid once the appeal is done, so you might not be able to attend school during a federal appeal, if the school checks this). You can try to prolong your case, if you want to finish the Ph.D. and you think you will lose the case. Some people use that strategy. Talk to a lawyer about that. Take care, Jason

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lulu January 9, 2018 at 12:19 am

Hey Jason, pretty short question here, is it a good signal if the officer told me there is a background check needs to be done and interview decision would be mailed to me after that? The officer told me that at the end of the interview. Really wanna know if the case got denied also subject to the background check procedure?? Thank you!

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Jason Dzubow January 9, 2018 at 7:20 am

I do not think it is a good or bad sign – everyone has a background check, and these can takes days or many months. Hopefully, you will get a good decision soon. Take care, Jason

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lulu January 9, 2018 at 2:02 pm

Thank you Jason, so currently there’s nothing better than being patient to me.

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Jason Dzubow January 9, 2018 at 6:41 pm

Like the old prayer says – Lord give me patience, and give it to me RIGHT NOW!

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Baby January 7, 2018 at 6:48 pm

Hello Jason,
I have question about Advance Parole, I was enter in USA using tourist visa and I applied asylum with in90 days my case is pending since feb. 2015 I haven’t receive any interview yet. I got married to US citizen and I receive a travel permit with i765 my question is can I travel to my home country since situation is change I am not in fear any more, should I withdraw my asylum case before I travel or should I put my case on hold. TIA.

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Jason Dzubow January 8, 2018 at 7:29 am

I think you take a risk if you travel to your home country. Even if you want to cancel the asylum case, USCIS may think that your asylum case was fake, which could potentially cause you to lose asylum and your marriage-based green card. I would be very careful about such travel, and I recommend you talk to a lawyer about how to approach that. Maybe once you have the GC, it would be safer, but even then, I would be careful. Take care, Jason

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Faith January 5, 2018 at 10:11 am

Hi Jason,
Hope you are doing great.
I don’t have anymore strength, since December 2015 nothing .everything is down.seem like nothing is moving here at Virginia office.going to 3years.please any hope that thingshe will be better.it’s like you are moving but without destination .please let me know .thanks

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Celia January 5, 2018 at 11:58 am

We applied in June, 2015. finally had an interview date last month just to tell us we are not entitled for an interview we have to see the judge directly. Now the court date is unknown, another 2 years I think for individual hearing.
My advice is try to stay strong and find some hobby, move to a new place (we’re planning to move out of state), find a new job, start a school, travel domestically.
I have PTSD and panic disorder so evey day is a struggle but here I am waiting patiently as long as I can.

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Jamie January 6, 2018 at 5:28 pm

Hello Faith,

I am very sorry to hear that you are losing hope/disappointed. I know exactly how you are feeling as I have been in the same situation as you. I applied in 2014 and got interviewed in August 2017. I waited for 3 whole years and have been in the country for 4 years! I had to muster all the strength and will there were as sometimes I felt like giving up. If you have a job, or employment authorization, focus on your job. Also, you can think about volunteering in your state or community.

If you are able to go to school, go to school and focus on improving yourself. Find a group in your state that caters to people in the category of asylum applicants as you. I did this and it helped at bit. You would be able to share stories and hopefully find comfort in the fact that you are not alone in this. Finally, if you can, seek counselling as obviously the process is taking a toll on your mental well-being. I realized through counseling that while psychotherapy, in and of itself, doesn’t get rid of the problem, it helps you cope.

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Jason Dzubow January 7, 2018 at 11:41 am

Very helpful comment – Thank you, Jason

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Jason Dzubow January 7, 2018 at 11:08 am

I am actually working now on a blog post about waiting. I am not sure that it will help much, but I will post it this week or next week. I will say that things are moving in VA – we have two interviews there this coming week. It is slow, but there is movement. Also, you might thinking about trying to expedite. I wrote about that on March 30, 2017. Take care, Jason

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Celia January 5, 2018 at 9:26 am

What happens if someone gets assigned to a judge and gets an individual hearing date and moves? Should we still notify them (uscis)? Will the court date/time/location change?
We’re thinking about moving to a different state.

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Jason Dzubow January 5, 2018 at 6:20 pm

Yes – You have to notify the court using form EOIR-33, and that may or may not result in your case being transferred. That usually depends on the judge. Take care, Jason

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Celia January 5, 2018 at 10:28 pm

We just got the EOIR NTA today.
It says date to be determined. What does that usually mean?

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Jason Dzubow January 7, 2018 at 11:26 am

It means they will send you a notice with your court date. So make sure you update the court if your address changes (use form EOIR-33 – you can Google it). Also, you can call 800-898-7180 and type in your Alien number. Once your name is in the system, it will tell you when your next court date is. I recommend you call that number every week, just in case you do not get the notice in the mail. Take care, Jason

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Celia January 8, 2018 at 8:03 pm

You know usually how long does that take? Weeks/months? I mean the date given to MCH. Is the judge same for MCH and Individual hearing?

Thank you for the answer!

Sola January 4, 2018 at 9:13 am

Hi Jason,

Please we need your advise. My friend filed for asylum since 11/20/2017 and she is yet to receive confirmation of receipt from USCIS. She has tried to call the Arlington Asylum office and has written to confirm if her application was received but no response from USCIS yet. My question is, can she put in another application? Her status expires before the end of this month and she is very agitated! Your response will be appreciated. Thank you

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Jason Dzubow January 5, 2018 at 7:16 am

If possible, maybe she can go to the Arlington Asylum Office in-person and ask. You can find their contact info and office hours if you follow the link at right called Asylum Office Locator (I think the only time to go is Wednesday morning, but check the website to be sure). If they cannot confirm that the case was filed, she will have to re-file, and give a cover letter explaining that the first filing was lost. Also, make sure it is sent to the correct address, send it by certified mail, and keep a copy of everything that is sent. Finally, she can file a Freedom of Information Act request (form G-639, available at http://www.uscis.gov) to get a copy of the first case she filed and any receipts (assuming it was received). This takes several months, so she should do it, but she will have to decide about re-filing sooner than that. Take care, Jason

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Sola January 5, 2018 at 8:22 am

Thank you Jason

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Anne January 3, 2018 at 12:27 pm

Hi Jason,

Happy New Year.

Could you please tell me what questions does embassy can ask at the interview from spouse for Derivative Asylum I -730.

Thanks.

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Jason Dzubow January 3, 2018 at 10:34 pm

I do not know – but interviews were generally very short. That my be changing under the Trump Administration, but I have not heard about our client’s I-730s running into any trouble, at least not yet, and so I still think there are not many questions for I-730 beneficiaries. Maybe someone else has been through the process and can comment. Take care, Jason

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Anne January 4, 2018 at 9:01 am

Thanks Jason for your reply.

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mo January 3, 2018 at 4:36 am

Hi Jason
I sent my family I-730 last week and I received today I-797, notice type: receipt received fee waiver. in the petitioner name is my last name no name given as I forget my first name in the I730 form. What shall I do? is ok because they send the fee waiver and they dd not ask for a correction or I have to resubmit updated I730.
I appreciate your reply.

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Jason Dzubow January 3, 2018 at 6:43 pm

There is no fee for an I-730. If you made a mistake about a name, I think you need to correct it. You can send the correction with a copy of the receipt (so they know your receipt number) and an explanation. If you are unsure about this, find a lawyer to help you. Alternatively, you could wait for USCIS to send you a request for evidence, but this error might be better corrected now. Take care, Jason

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Jezz January 2, 2018 at 8:19 pm

Hi everyone! Happy New Year!

Thank you Jason for your very informative forum/website.

I filed for asylum last August 2015. I already had renewed my working permit.

I applied here in Los Angeles, CA.

Just today, January 2, 2018. I had my asylum interview. My attorney told me that i did great on my interview, but it’s still up to the asylum officer to decide. I am praying for a good result. I will comeback in two weeks to pick up the decision.

Thank you everyone for sharing your story here!!! It was helpful!

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Dana January 3, 2018 at 6:14 am

Hi jezz
It was nice that you have completed your interview
All the best to you!
Would you mind to share your story a little more?
My email address is manch_p@hotmail.com
I have some questions to ask you
Can you email if possible pls

Thank you

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Jezz January 3, 2018 at 10:07 pm

Sent you email

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Dana January 7, 2018 at 7:57 pm

Thank you Jezz
Please can you check your email.
Many thanks

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Jason Dzubow January 3, 2018 at 6:35 pm

Good luck with the decision and Happy New Year, Jason

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Na January 3, 2018 at 7:41 pm

Hello
Hello applied in July 2015 LA not not interviewed yet !
Did u apply for short list ?

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Jezz January 3, 2018 at 10:05 pm

No I didn’t! I was surprised since i am expecting that my interview will be in two or more years.

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Mak January 8, 2018 at 6:35 pm

please could you express further that how did you manage to get an interview on 2nd Jan, 2018 whereas they are still processing cases from July- Oct 2014 cases. was your case on an expedited or standby list? many thanks

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Jezz January 9, 2018 at 12:34 am

No, my case is not in the short list. I was surprised, since i am always checking the schedule here in Los Angeles. I am aware that my interview will be after 4 or more years after i filed on August 2015. I don’t know why i had my interview that early.

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Mak January 9, 2018 at 1:04 am

you are extremely lucky, as i requested several times for the last 8 months to be added onto the “standby list” to which they very politely declined with a reason its closed at the moment. thank you for replying back!

Jason, will you be having information that how come LA office is moving faster than other asylum offices, and with this pace has there been any change in acceptance rate??
they completed 2 years within 10 months.

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Jason Dzubow January 9, 2018 at 7:23 am

It may have to do with how cases entered the backlog. Many cases from 2013 and 2014 are already interviewed (almost no cases from 2015-2018 are interviewed), so it may be that there were not many cases between November 2013 and October 2014 remaining, and so it was easy to get through the cases. Also, LA was receiving help from other offices, so maybe that affected things. Finally, LA dealt with many people entering on the US/Mexico border, and the number of people entering has slowed down a lot, so maybe that allowed them to move more quickly. This is a long way of saying that I don’t really know, but these are all possibilities. Take care, Jason

A Khan January 2, 2018 at 11:49 am

Hi Jason,

Hope you are doing well .

I have pending asylum at Chicago asylum office and waiting for decision since July 2016 . My husband , he is back home . One of my friend , he has American Nationality and ready to sponsor me and my husband . Can you please advise me regarding this? if he can sponsor both of us or he can only sponsor my husband.

If yes , please help me , which Form he has to Fill up for us.

Thanks,

A Khan

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Jason Dzubow January 3, 2018 at 7:42 am

A person in the US cannot “sponsor” someone else to get status here. Maybe he can hire you and sponsor you for a job, or be a financial sponsor if a family member is petitioning for you, but that is about it. Talk to a lawyer to see about job sponsorship, but my guess is, this friend is well meaning, but cannot do much to help. Take care, Jason

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A khan January 3, 2018 at 8:43 pm

Thank you so much for your prompt reply.

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FS January 2, 2018 at 9:50 am

Hello everyone ,

I would like to wish you a very happy new year . I am writing to you to ask if there is anyone here from any of the banned counties was granted asylum recently in the US or it is a waste of time to wait more and more for nothing . Please I really would like to know it has been a long time waiting for the unknow .

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Jason Dzubow January 3, 2018 at 7:40 am

We have had some recent grants from Iran, Syria, and maybe some other banned countries, so it is still possible. Happy New Year, Jason

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Jason Dzubow January 8, 2018 at 8:32 pm

The wait until the MCH is usually a few months, but it depends on the court and the judge. The time until the individual hearing can be several months or several years, depending on the judge. Usually, it is the same judge at the MCH and the individual. Take care, Jason

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