Immigration Judges Revolt Against Trump Administration

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.

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296 comments

  1. Hello Jason

    I applied my asylum case in July 2014 at SF. No interview yet
    Do you think they will interview me soon. Since, I heard they start interviewing 2014 cases.

    Also, I work for big IT company and my EAD expiring next year in 2019 may. I heard immigration taking longer time on EAD. If so i can continue working as it says on immi website if you didn’t receive your EAD card on time you can continue working for 6 months ( Automatic Extension )

    Thanks,
    Atinder

    Reply
    • I doubt you will get an interview soon, as they are not interviewing on a last-in, first-interviewed basis. I wrote about that on February 1, 2018. As for the EAD, it is taking longer but there is an automatic extension – I wrote about that on January 25, 2017. Take care, Jason

      Reply
  2. Hi Jason,

    Can we do H1B now that our case has been referred to immigration judge? I mean is it legally possible tp start the H1B process in this situation?

    Also, if we move tp San Francisco, how long is the wait for individual hearing there? I know it depends on the judge, but any record of shortest or longest wait times?

    Thanks!

    Reply
    • I can’t say this is impossible, but it is very unlikely to work. You probably would have to close the court case, leave the US, get the H1b overseas, and then return here. Talk to a lawyer about that, but I would not spend a lot of money on this unless you really trust the lawyer, as I do not think this will work. I do not know about wait times for SF, but each Judge’s wait time is different, even in the same court. Take care, Jason

      Reply
  3. According December 2017 statistics approval rate on interview in New York is 11%. 858 interview – 87 approved https://www.uscis.gov/sites/default/files/USCIS/Outreach/Upcoming%20National%20Engagements/PED_AffirmativeAsylumStatisticsDecember2017.pdf

    Reply
    • Thank you – We will have to see if there is some explanation for this, as the approval rates for all offices seem down. If I have more info, I will post it here. Take care, Jason

      Reply
  4. Hi Jason.
    Thank you so much for helping us!
    I just found out that my case has been referred to immigration judge. The case was processed by SF office. We plan to appeal.
    1. Our case was pending for 4 years, does this mean all these time now is credited to unlawful presence?
    2. Is it true that we can not apply for anything else now (employment based visA for example) because it has been referred?
    3. How long does it take to get the date for master calendar hearing? How long after that does it take to have an individual hearing? I am looking for approximate timeframe. How long has been the maximum wait for example?
    4. Is there a percentage of success
    5. How helpful would be to write letters to government officials?
    I say this because i have lived here legally for 15 years. I went through all my schooling here and now I have children. My resume is rich and i have paid taxes.. i wonder if any of that will ever matter.

    Thank you so much!

    Reply
    • 1 – No. Once you file for asylum, you do not accrue unlawful presence. 2 – That is not true. You can apply, but in most cases, you would need to leave the US to get the new status, and this may or may not be possible, depending on your case. 3 – It depends on the judge. Most MCHs are scheduled within a few months. The final hearing is usually 1 to 3 years, depending on the judge. 4 – Google “TRAC Immigration” and you can find your court and your judge, and see the approval rate. 5 – It depends on the case and the letter; it could help. All the positive factors you mention are helpful, but the judge should make a determination based on whether you meet the legal requirements for asylum. So get the letters, but that is not enough by itself to win. Take care, Jason

      Reply
      • Thank you very much!
        I have couple more questions, if that’s okay.

        My referral to immigration judge came with a broad letter, but I have heard that I can request the copy of the officer’s notes/report. Any idea how long that may take?

        Also, how would relocating to San Francisco area play out with the status of my case?

        Reply
        • If you relocate, you must inform the court, and normally, they would move your case to a court near where you live. You can request a copy of your file using form G-639, available at http://www.uscis.gov. It probably takes 4 to 6 months. Take care, Jason

          Reply
          • Thank you very much!

    • Hi sir , i came here with family ( wife and one child 2nd child born here) on bi b2 visa june 2014 and put asylum application and got interviewed by asylum office dec 2017 in San Francisco and referred to immigration court. I got a master hearing interview letter. It is on 27 feb 2019. In the mean time we got divorce and our divorce finalised on 16 april 2018. Now she lives with her boy friend. Her boy friend here parmanent resident but she still didnt marry him but mid of feb may be she will be marry him. So my question is this she should have to appear with me in the immigration court?? If she do not appear with me at time of master hearing then whats wrong with her.
      2nd now im also fall in love with someone whose lives in Pennsylvania and plan to move overthere and hopefully we get marry very soon so what can i do at time of master hearing and suggest me what can i do further
      Thanks

      Reply
      • You probably are both required to attend the MCH. If you or she does not attend, the judge will deport the absent person. If she marries a person with a GC, it will probably not help her remain in the US – if the husband was a US citizen, that probably would help. She should talk to a lawyer to review her options. Also, if it was your asylum case and she was a dependent, and she is now divorced, she no longer is a dependent her EAD is technically invalid. Also, she is no longer an asylum seeker. She can file for asylum on her own, but she needs to do that as soon as possible. As for you, if you marry, and she is a citizen, she can probably sponsor you (and your non-US citizen child). If you move, you have to tell the court, and maybe your case will be moved to PA. Regardless, you must attend the MCH or get the judge to move the case and excuse your attendance. I think you need to talk to a lawyer about all this to help you. Take care, Jason

        Reply
  5. Thank you.

    Reply
  6. 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?

    Reply
    • 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

      Reply
  7. 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!

    Reply
    • 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

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

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

          Reply
  8. 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.

    Reply
    • 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

      Reply
  9. 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

    Reply
    • 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.

      Reply
    • 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.

      Reply
    • 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

      Reply
  10. 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.

    Reply
    • 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

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

        Reply
        • 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

          Reply
          • 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!

          • 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

  11. 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

    Reply
    • 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

      Reply
      • Thank you Jason

        Reply
  12. 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.

    Reply
    • 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

      Reply
      • Thanks Jason for your reply.

        Reply
  13. 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.

    Reply
    • 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

      Reply
  14. 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!

    Reply
    • 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

      Reply
      • Sent you email

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

          Reply
    • Good luck with the decision and Happy New Year, Jason

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

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

        Reply
    • 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

      Reply
      • 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.

        Reply
        • 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.

          Reply
          • 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

  15. 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

    Reply
    • 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

      Reply
      • Thank you so much for your prompt reply.

        Reply
  16. 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 .

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

      Reply

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