Nearly half of the nation’s Immigration Judges are eligible to retire this year.

Last week, I attended the retirement luncheon for one of them: Judge Wayne Iskra. For the past 10 years, I practiced before Judge Iskra at the Arlington, Virginia Immigration Court. I also clerked for him back in 1998-99. He is a wonderful person who was a great inspiration to me and many others. He was also a great judge–he was devoted to ensuring that justice was done, and he had little patience for attorneys (private attorneys or DHS attorneys) who failed to fulfill their duties.

The MC at the lunch, Judge Thomas Snow, noted that before his retirement, the Chief Judge repeatedly described Judge Iskra as “irreplaceable.” Finally, Judge Snow realized that when the Chief said that Judge Iskra was irreplaceable, it meant that he would not be replaced.

So the Arlington Immigration Court, which is already very busy and where cases are currently being scheduled into late 2016, will now go from five judges to four. The same thing happened in Baltimore last summer, when another excellent and long-serving IJ, Judge John Gossart, retired.

Although I have not heard news of any mass retirement, the Associated Press reports that almost 50% of the nation’s Immigration Judges are eligible for retirement this year. While I suppose this is good news for people selling condos in Ft. Lauderdale, it is bad news for the Immigration Court system.

And yes, as the immigration restrictionists love to remind us, certain immigrants prefer delay, so they can buy more time in the United States. But at least in my experience, this is a minority. Granted, my cases may not be typical. Most of my clients have good cases, and so the sooner they get to the merits hearing, the better. Also, many of my asylum clients have family members who they hope to bring to the U.S. if their cases are granted. The longer the delay, the longer they are separated from (and worried about) their family members. So for me, the increased delays are definitely a bad thing.

Also, I am quite certain that the remaining IJs won’t be happy about their depleted ranks. Immigration Judges are already overworked and overburdened. The title of a 2010 Mother Jones article sums it up well–Judges on the Verge of a Nervous Breakdown. From the article:

Caught in the middle [of the Obama Administration’s efforts to increase deportations] are the judges, for whom mind-numbing bureaucracy collides with thorny moral issues. Most of the time, they work without even basic staff like bailiffs and stenographers. Increased immigration enforcement means that their workload is the highest it has ever been—three to four times larger than caseloads in other federal courts.

And of course, mistakes can have dire consequences. As one IJ noted, “It makes me feel ill to grant asylum to someone who I believe is probably lying, but it also makes me sick to think that I have denied protection to someone who really needs it.”

The obvious solution is to hire more (lots more) judges and court staff. But given EOIR’s budget (or lack thereof), this seems unlikely. So here are a few other thoughts:

– Create an easy, secure on-line system to allow EOIR-registered attorneys to do their Master Calendar Hearings by email. Attorneys could enter their appearances, admit or deny allegations, plead to charges, and set dates for Merits Hearings. For complicated cases (and pro se cases), IJs would still require Master Calendar Hearings, but an on-line system would be a great time saver for everyone.

– Hire more DHS attorneys and staff, and encourage them to communicate with attorneys for immigrants. Many issues can be resolved before trial, which saves time. However, because DHS is also short staffed, they do not have the resources to review cases prior to trial and speak with opposing counsel. If they did, it would shorten hearings and make life easier for the IJs.

– Stop deporting so many people. It seems that President Obama is intent on setting deportation records year after year. As a result, hundreds of thousands of people are being placed into removal proceedings. If ICE were more selective about who it tried to deport, DHS attorneys and IJs could focus more on those cases. We don’t ticket everyone who drives over the speed limit. We don’t prosecute everyone who is caught with a joint. We don’t arrest everyone who illegally downloads music. Why? Because we don’t have the resources to do those things, and to do so would require intolerable levels of intrusion into our lives. In the same way, it seems to me, we could relax a bit concerning deportations. Resources–including judges’ time–is limited. We should use that limited resource more efficiently.

– Don’t allow any more IJs to retire. OK, maybe it is not technically legal to force IJs to keep working, but an immigration lawyer can dare to dream. Besides, I want Judges Iskra and Gossart back.

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Well, I’ve dissed immigration lawyers, asylum-seeker clients, and the BIA, so I might as well offer my criticism of Immigration Judges. Of course, this comes with the usual disclaimer: None of the IJs that I appear before have any of these annoying habits. But I have heard speak of such problems from other lawyers (terrible, terrible people), so please blame them for this list. If you need names and addresses, email me offline. With the shifting-of-the-blame thing out of the way, here is the list:

7 – Changing Court Dates: I suspect that most immigration attorneys have a schedule best explained by Chaos Theory – Make a small change to the delicate balance in our calendars and things fall apart. Obviously, IJs sometimes need to postpone (or advance) hearings. The problem comes when hearing dates are changed without checking with the attorney first. This potentially creates scheduling conflicts for the lawyer, who must then file a motion to change the court date. This can be stressful and time consuming (and it might add to the client’s expenses). The better approach is for the clerk to contact the attorney prior to changing the court date. In my experience, when this happens (rarely), it is done by phone. Perhaps it would be easier for the clerk to contact the attorney using a new technology called email. This would be more efficient for all involved, as attorneys could avoid motions to re-schedule and IJs would not have to deal with such motions. 

6 – Double Booking: This issue is less of a problem these days, at least in my home courts. But there was a time when my Individual Hearings were commonly double booked. This meant that we prepared for the hearing, went to court, waited (sometimes for hours), and were then told to go home. Given client stress and attorney time wasted, I am glad that double bookings have become more rare.

5 – Denying Cases: OK, I really shouldn’t complain about this, as it is part of an IJ’s job. But it is kind of annoying.

4 – Failing to Rule on Motions: I understand that IJs are busy people. But if IJs could rule on motions in a timely manner, it might increase overall efficiency. Pleadings can be done by motion, thus reducing crowds at Master Calendar Hearings. Issues for trial can be narrowed, making trials less time consuming. Some cases can be resolved completely by motion. You get the idea. The problem, however, is that since IJs cannot be relied upon to rule on motions in advance of the hearing, it is not really worth the attorney’s time to write the motion (and then spend more time repeatedly calling the court to ask whether the motion has been granted). If IJs consistently responded to motions in a more timely way, lawyers would file more motions, and cases might be resolved in a more efficient manner.

3 – Stopping the Asylum Clock: As I have written previously, the rules governing the Asylum Clock are–to put it diplomatically–ridiculous. Different IJs interpret the rules differently. Some IJs interpret the rules restrictively and some even appear to make an effort to prevent the respondent from obtaining a work permit. Given the long waiting periods for these cases, aliens suffer great hardship when they do not receive a work permit. Unless the alien is engaged in egregious and purposeful delay, IJs should err on the side of keeping the Clock moving and of allowing asylum seekers to obtain their work permits.

2 – “Egalitarian” Master Calendar Hearings: Most IJs give priority to aliens who appear with an attorney at the Master Calendar Hearing. Of course, I am an attorney, and a somewhat impatient one at that, and so I do not like waiting around during a MCH. But there are more legitimate reasons for prioritizing represented respondents. First, respondents who are represented usually take less time during the MCH than unrepresented respondents. So more people will get done more quickly if represented aliens go first. Second, while most immigration lawyers do not charge by the hour, some do. Therefore, it is more expensive for some respondents to have their attorneys wait around for their turn at the MCH. Third, even those lawyers (like me) who do not charge by the hour might charge an extra fee for MCHs before IJs who are known to be slow (I have not done this, but I have considered it). If lawyers are more expensive, it is more difficult for aliens to retain us. Thus, when IJs do not have efficient MCHs, it potentially creates an access to justice issue for aliens.

1 – Showing the Proper Level of Respect: Notice, I did not say, “Showing Respect.” Sometimes IJs are not respectful enough to immigration lawyers; other times, they are too respectful to us lawyers. While I certainly believe that IJs should err on the side of being respectful to everyone in the courtroom, they do sometimes allow lawyers to get away with a bit too much. Oft times, alien respondents are not aware that their lawyers are unprepared or incompetent. When such behavior is egregious, IJs should point out the problem to the alien (and potentially to the bar association). Further, unprepared attorneys waste time at Master Calendar Hearings and cause delay for everyone else. There is no need for IJs to respect such behavior. On the other hand, some IJs run their courtrooms by bullying and demeaning attorneys (DHS attorneys and respondents’ attorneys). Obviously, this is inappropriate and, for the most part, ineffective. Good attorneys are sometimes unprepared, and sometimes make mistakes. It is harder for lawyers to do our best work when we face disrespectful comments at the slightest misstep. That said, while disrespectful IJ behavior can be a problem, it seems to me that such behavior is (fortunately) pretty rare.

Well, there you have it. While some IJs have bad habits (or so those nasty lawyers tell me), most IJs that I have encountered are hardworking, diligent, and fair. As we (hopefully) prepare for a major immigration reform, it is important to appreciate the positives about our immigration system and the legal protections we offer non-citizens. It is also important to appreciate the Judges and others who make that system work.

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