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Appleseed Fund for Justice Reimagining the Immigration Court Assembly Line 2012

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2012

Reimagining the Immigration
Court Assembly Line:
Transformative Change for the
Immigration Justice System

Betsy Cavendish, Appleseed Executive Director
Steven Schulman, Pro Bono Partner, Akin Gump Strauss Hauer & Feld LLP

Reimagining the Immigration
Court Assembly Line:
Transformative Change for the
Immigration Justice System

Betsy Cavendish, Appleseed Executive Director
Steven Schulman, Pro Bono Partner, Akin Gump Strauss Hauer & Feld LLP

© 2012 Appleseed. All rights are reserved, except as follows: Free copies of this report may be made for personal use. Reproduction of
more than five (5) copies for personal use and reproduction for commercial use are prohibited without the written permission of the
copyright owner. The work may be accessed for reproduction pursuant to these restrictions at www.appleseednetwork.org.

Fairness, Impartiality, Accuracy, Efficiency, Transparency, Wisdom,
Practicality, Courtesy, Modernization, Prioritization, Due Process.
The United States takes particular pride in our justice system. Acknowledging it’s not
perfect, we rely on this system to give people a day in court, a fair shot to explain their
cases before a judge who is genuinely open-minded. We expect both sides to have access
to the basic facts and an opportunity to develop additional evidence; we expect that the
judge will rule based on the facts and the law; and we expect the disappointed party to
have the right to appeal before another impartial tribunal, where errors can be undone. We
expect the government to seek justice for all and to use its prosecutorial resources wisely,
to address the cases of truly public import. We value courts so highly as an alternative to
cruder, more violent and far more unjust means of solving disputes that the United States
advocates around the world for countries to empower independent courts to function
legitimately as critical components of systems of justice.
Our 2009 report, Assembly Line Injustice, found that U.S. Immigration Courts all too
often, and in many, many categories, fell far short of being just, efficient places where
personal dramas and dreams of belonging in the United States could be resolved. The
Immigration Courts were often perceived as illegitimate, and people returned to home
countries with a sense of having been dealt an injustice under the name of United States
law. The losers in any case are bound to be disappointed, but it’s inexcusable to give them
reason to feel that they endured a sham process carried out in the name of the law. Too
often, we in the U.S. gave people reason to feel wronged.
Through this update report, Appleseed and Chicago Appleseed Fund for Justice, together
with our pro bono partners at Akin Gump Strauss Hauer & Feld, Latham & Watkins
and  the law schools at George Washington University and IIT Kent, are demonstrating
that we are staying on the case of ensuring that our immigration justice system is just that:
a system of justice. In updating our 2009 report, we note some significant improvements—
and certainly a desire on the part of many government officials—to ensure a fair process,
to promote prioritization of cases and modernization of recordings and systems. We also
note some areas, as for instance in the patently unfair use of videoconferencing, where
the government barely even nods in the direction of trying to ensure fair treatment for all.

Appleseed and our network of public interest justice centers in the U.S. and Mexico
address tough issues, with an aim to secure genuine opportunity and justice for all.
Through research and advocacy, we tackle problems at a systemic or structural level, and
we take on issues where success is possible in the short, medium or long term. Trying to
fix the immigration courts is one such project—in 2009, we identified issues that are
fixable, not intractable. Here, we note some improvements, but much more opportunity
to achieve accurate results—efficiently and legitimately—remains.
Appleseed calls upon officials of good will to make both the simple changes we seek, as
well as to take on the more transformational efforts that are necessary to ensure that our
process for resolving immigration cases is worthy of being called a system of justice. The
debates over immigration are pressing and divisive, but we seek to craft an achievable
agenda where leaders at the Department of Homeland Security, the Department of
Justice, and the White House should be able to find agreement, prioritize cases and
ensure fair treatment for those who seek a better life in the United States.

Betsy Cavendish
Executive Director
Appleseed

May, 2012

Malcolm Rich
Executive Director
Chicago Appleseed

Reimagining the Immigration Court
Assembly Line:
Transformative Change for the Immigration Justice System

TABLE OF CONTENTS
INTRODUCTION

1

How is the Immigration Justice System Doing and What Needs to be Done?
STOP THE ASSEMBLY LINE: A Call For Leadership At Every Level
Methodology
Acknowledgements

4
11
12
13

BASIC STRUCTURE OF THE IMMIGRATION COURT SYSTEM

15

REIMAGINING THE IMMIGRATION COURT ASSEMBLY LINE
1| Reforming the Selection Process for Immigration Judges and the Board of
Immigration Appeals to Promote Impartiality
2| Empowering Immigration Judges to Achieve Justice
3| Cultivating a Culture of Professionalism in the Immigration Courts
4| Empowering DHS Trial Attorneys to Handle Cases More Professionally
and More Efficiently
5| Enhancing the Accuracy of Proceedings Through Effective
Language Interpretation
6| Reducing the Unfairness of Videoconferencing
7| Improving the Reliability and Availability of Court Records
8| Helping the Unrepresented
9| Getting It Right On Appeal

17
19
27
33
39
49
55
63
67
77

APPENDIX
EXHIBIT 1:
Practitioner Survey
EXHIBIT 2:
BIA Decisions vs. Federal Court Reversals (2006 – 2011)

A-1
A-13

INTRODUCTION

In May 2009, Appleseed and Chicago Appleseed (together, “Appleseed”) issued Assembly
Line Injustice, a report documenting the failures of the U.S. Immigration Courts to
provide an accurate, legitimate, and efficient judicial process for immigrants trying to
remain in the United States. Three years later, several of that report’s recommendations
have come to fruition. The Department of Justice (DOJ) has hired more—and more
diverse—Immigration Judges, improved the training for judges, and increased its focus
on professionalism by accepting more complaints and disciplining judges who merit
punishment. In some areas, representation has improved, particularly for asylum seekers.
For its part, the Department of Homeland Security (DHS) recently took a major step
forward in the fair use of its power to prosecute the removal of immigrants by issuing a
far-reaching prosecutorial discretion policy, one of the steps recommended in Assembly
Line Injustice. Though it is too early to evaluate its success, this new policy instructs DHS
employees at all levels to focus removal resources on high-priority cases rather than to
try to deport any immigrant against whom a case can be made. The implementation of
these Appleseed recommendations is welcome, and shows that leaders at both DOJ and
DHS take seriously their obligations to provide an accurate, legitimate, and efficient
court system.
Nevertheless, all along the assembly line key actors continue to permit the Immigration
Court process to delay or deny justice for too many immigrants. Immigration Courts are
so backlogged that in some places half-day hearings are being scheduled for 2015. Many
hearings that do go forward are translated poorly, and even then only in part, denying
immigrants the ability to understand what is being said in court except when they
themselves are testifying. Immigration Judges allow their courtrooms to be turned over to
video monitors that broadcast immigrants (often in poor quality) from remote detention
centers, limiting immigrants’ ability to confer with their counsel and to appear in person
before their decision-maker. Additionally, far too many immigrants still appear in court
without an attorney of their own to counter a hostile DHS Trial Attorney, a mismatch
that inevitably tilts the outcome against the immigrant. The lack of representation in
these life-altering cases is still viewed as inevitable, if unfortunate.

1

Reimagining the
Immigration Court
Assembly Line:

Introduction
2

DHS Trial Attorneys too often continue to focus on removal as the only acceptable
outcome after a case is initiated, rather than try to reach the right outcome. Even with
DHS’s new prosecutorial discretion policy, too many DHS Trial Attorneys are stuck in
old habits, routinely refusing to engage in pre-hearing discussions that could resolve
or narrow the issues before the court. DHS Trial Attorneys are notorious for failing to
return phone calls from immigrants’ counsel, typically limiting their interactions with
immigrants’ counsel to the courtroom, an unproductive environment for compromise.
One fundamental and underlying problem is that the Immigration Court assembly line
cannot come close to handling the load placed upon it, due to the failure of the agencies
to balance DHS’s enforcement efforts with the Immigration Courts’ capacity. Both DHS
Trial Attorneys and Immigration Judges acknowledge that the system is overloaded,
but no one is taking responsibility for fixing this problem in a transformative way. One
substantial obstacle is structural: the split of responsibility across agencies (caused when
DHS was created in 2003, and took over immigration enforcement from DOJ) has
created serious dysfunction in the immigration adjudication system. DHS forces too
many cases into DOJ’s Immigration Courts, knowing that it is not accountable for
another agency’s resources. Nonetheless, the crushing caseload is a problem for DHS:
one Chief Counsel told us that the caseload is unsustainable, such that “it feels like we are
dodging bullets.” DOJ unsurprisingly also finds this situation untenable: Immigration
Judge Dana Marks, President of the National Association of Immigration Judges, told
Congress that “the stress on judges has reached unbearable levels, contributing greatly
to questionable conduct in court and arguably fostering ill-conceived decision making.”
When DHS admits that its attorneys are “dodging bullets” and a sitting judge testifies
before Congress that her court system is broken, it is time for a transformative fix.
Transformation of this broken system must be driven by leadership and accountability all
across the system, including at the White House and in Congress. The first step toward
an accurate, legitimate, and efficient system is to align Immigration Court resources with
enforcement efforts. Congress has given DHS the resources to initiate approximately
230,000 removal proceedings in Immigration Court each year, but has stopped providing
DOJ commensurate funding for the Immigration Courts. Accordingly, immigrants
facing removal are being shoved onto an assembly line that cannot possibly keep pace.
Two obvious fixes to this imbalance are to increase the resources for Immigration Courts
to match current enforcement demands, or to decrease enforcement to meet the current
capacity of the Immigration Courts. Comprehensive immigration reform is the most
transformative answer, but that is both beyond the scope of this report and apparently
unachievable in our current political environment.
Because the Immigration Court process is handled by co-equal agencies that sometimes
deadlock, the White House must take leadership of this issue. The White House should
task an individual in the Executive Branch to ensure that the immigration adjudication
system can fairly accommodate the cases brought by DHS, the power to demand solutions
from DOJ and DHS, and the authority to force solutions on the agencies in the absence
of consensus between them.
Both DOJ and DHS also need to make sure that every person at every level—from
DHS Attorneys to Chief Counsels, from Immigration Judges to BIA members—feels
responsible and accountable for making the system work. For far too long many actors in

this broken system have simply pushed the cases along the assembly line, hardly stopping
to make sure that it produces fair outcomes for the immigrants facing extraordinarily
serious consequences. The Executive Office for Immigration Review (EOIR), the agency
within DOJ responsible for the Immigration Courts, needs to empower Immigration
Judges, who too often refuse to exercise strict control over their dockets to force the
prioritization of the case load brought by DHS. A proactive, empowered and “judicial”
message must come from the top of the agency. Many judges have taken a hands-off
approach to the exercise of prosecutorial discretion by DHS, though EOIR has told us
that it is encouraging Immigration Judges to demand answers to why limited Immigration
Court resources are being used to pursue cases that do not meet the enforcement priorities
articulated by DHS management. Likewise, most Immigration Judges refuse to ask
tough questions of DHS Trial Attorneys who are unprepared for hearings or refuse to
concede even obvious issues. Accordingly, DHS Trial Attorneys have little incentive to
help manage the Immigration Court docket efficiently or fairly; neither the Immigration
Judges nor their own leadership hold them accountable for backlogged case loads.
DOJ and DHS, aided by the Executive Branch, must develop and implement
transformative solutions. Everyone in the system must step away from their spots on the
assembly line, assume leadership, and be held accountable for turning the Immigration
Courts into an accurate, legitimate, and efficient judicial system that provides justice
without compromising fair enforcement.

Reimagining the
Immigration Court
Assembly Line

Introduction
3

How is the Immigration Justice System Doing and What Needs
to be Done?

Reimagining the
Immigration Court
Assembly Line:

Introduction
4

In 2009, we developed a series of practical, achievable recommendations, several of
which have been followed by DHS and DOJ. As we drafted this report, we reviewed the
agencies’ performance against what we had found in 2009. This report provides detailed
findings, but we also found it useful to assign grades for performance in the nine broad
categories for both 2009, as a baseline, and for 2012. These grades take into account
effort, but are primarily based on achievement. Below we summarize the 2009 grade
in each of these nine categories, followed by our 2009 recommendation and the 2012
status. We believe that the recommendations of Assembly Line Injustice remain relevant
today, but this report does not simply repeat those recommendations. Instead, we found
it more useful to present action items for DOJ and DHS (and personnel within those
agencies), as well as for the private bar, to make those recommendations work in practice
and to bring the Immigration Courts in line with the United States’ concepts of fairness
and justice.

1| Reform the Selection Process for Immigration Judges and the Board of
Immigration Appeals to Promote Impartiality
z

2009 RECOMMENDATION: Ensure that the hiring process for
Immigration Judges and BIA members has been fully depoliticized.
2012 Status: EOIR has eliminated political influence
from the hiring process, focusing instead on candidates’
judicial temperament.

Report Card
2009 2012

D

B-

» Action Items:
‹ EOIR:
z

Continue to keep politics out of the Immigration Judge hiring process.

2009 RECOMMENDATION: Broaden the candidate pool for Immigration Judges and
BIA members.
2012 Status: EOIR is advertising vacancies more widely, and its hiring from
diverse backgrounds has improved, but overall the Immigration Judge corps and
BIA are no more diverse today than in 2009.

» Action Items:
‹ EOIR:

Focus not just on process, but on the results to diversify the bench.
Ensure that new Immigration Judges have sufficient knowledge of
immigration law.

‹ EOIR:

z

2009 RECOMMENDATION: Increase the transparency of the BIA candidate
nomination process.
2012 Status: EOIR has not improved the transparency of the BIA hiring process.

» Action Items:
‹ DOJ: Adopt a notice and comment period for BIA appointments.

2| Empower Immigration Judges to Achieve Justice
z

2009 RECOMMENDATION: Increase the number of
Immigration Judges.
2012 Status: The courts still have far fewer judges than
needed: the number of Immigration Judges has increased, but
new appointments have failed to keep up with rising case loads.

Report Card
2009 2012

D

» Action Items:

D+

‹ Congress:

Reimagining the
Immigration Court
Assembly Line

2009 RECOMMENDATION: Provide additional clerks to assist Immigration Judges in
writing opinions.
2012 Status: EOIR has paired a proposed new law clerk position with each new
proposed Immigration Judge position, but law clerks remain in short supply.

Introduction

Fund enough Immigration Judges to handle
the cases brought by DHS.

z

» Action Items:
‹ EOIR:

Determine whether more current funding should be directed to law
clerk positions.

z

2009 RECOMMENDATION: Expand Immigration Judges’ sanctioning authority to
include the ability to sanction DHS Trial Attorneys.
2012 Status: While DOJ has attempted to implement regulations to give
Immigration Judges sanctioning authority, DHS has blocked all efforts.

» Action Items:
‹ White

House: Step in and require DHS to accept the sanctioning authority
that Congress has authorized.
‹ EOIR: Instruct Immigration Judges to hold DHS Trial Attorneys to the same
standard of preparation, diligence and decorum as immigrants’ counsel.
3| Cultivate a Culture of Professionalism in the Immigration Courts
z

2009 RECOMMENDATION: Enhance and implement DOJ’s
proposed code of conduct for Immigration Judges.
2012 Status: EOIR has released the Ethics and
Professionalism Guide for Judges.

» Action Items:
‹ EOIR:

Report Card
2009 2012

D

B-

Continue to train judges on Ethics and
Professionalism Guide and enforce its mandates.

z

2009 RECOMMENDATION: Fashion appropriate mechanisms to discipline judges for
violations of the Code of Conduct.
2012 Status: EOIR has implemented a complaint tracking database and has
created a system for electronic filing of complaints. Nonetheless, practitioners are still
reporting violations of the Code of Conduct by Immigration Judges.

» Action Items:
‹ EOIR:

Publicize the complaint process and ensure anonymity of complainants.
‹ EOIR: Publish notices of Immigration Judge discipline.

5

z

2009 RECOMMENDATION: Supplement the training of Immigration Judges via
periodic and mandatory training sessions.
2012 Status: EOIR has enhanced its training programs and devised creative
solutions to continue Immigration Judge training programs, even with minimal
funding; more funding is needed to fully implement training programs.

» Action Items:
Reimagining the
Immigration Court
Assembly Line:

‹ EOIR:

Prioritize funding for training programs.

4| Empower DHS Trial Attorneys to Handle Cases More Professionally and
More Efficiently
z

Introduction
6

2009 RECOMMENDATION: Remind Trial Attorneys that their
mission is to enforce the law as written, not to deport every
immigrant.
2012 Status: Our field data and research show mixed
results. It remains to be seen if the Morton Memo can shift
ICE’s focus away from a “ deport at all costs” mentality.

Report Card
2009 2012

D

C+

» Action Items:
‹ DHS:
z

Re-define the mission of Trial Attorneys to seek justice.

2009 RECOMMENDATION: Enforce the DHS policy encouraging the use of
prosecutorial discretion.
2012 Status: Our field data show no real changes in the regional offices as of
the first quarter 2012. It is still too early to tell whether the Morton Memo and
subsequent DHS announcements will lead to a practical shift in the field.

» Action Items:
‹ DHS:

Hold Chief Counsel Offices accountable for implementation of
prosecutorial discretion in every context.
‹ DHS: Analyze the ramifications of administrative closure and other means of
exercising prosecutorial discretion.
‹ Chief Counsels: Ensure that Trial Attorneys understand how to use
prosecutorial discretion to manage their dockets.
‹ EOIR: Instruct Immigration Judges to push DHS Trial Attorneys to justify
deviations from the prosecutorial discretion policy.
z

2009 RECOMMENDATION: Assign a Trial Attorney to each case through the practice
of vertical prosecution.
2012 Status: Our field data show some progress, but vertical prosecution and other
mechanisms to improve docket management are still vastly underutilized.

» Action Items:
‹ Chief

Counsels: Assign each case to one Trial Attorney, or at least to a

small team.

z

2009 RECOMMENDATION: Mandate prehearing conferences at the request of either
party.
2012 Status: Our field data and research demonstrate no progress.

» Action Items:
‹ EOIR:

Require that counsel meet and confer before a hearing, and file a joint
pre-hearing statement demonstrating how they have narrowed the issues.
‹ Immigration Judges: Hold pre-hearing conferences when the pre-hearing
statement indicates that issues can still be narrowed with the court’s help.

5| Enhance the Accuracy of Proceedings Through Effective
Language Interpretation
z

2009 RECOMMENDATION: Mandate simultaneous
interpretation of everything said in Immigration Court.
2012 Status: EOIR has advised that it is working on a
language access plan, but to date most Immigration Courts do
not use simultaneous or full interpretation.

» Action Items:

Report Card

Introduction

2009 2012

7

D

D+

‹ EOIR:

Require translation of everything said in
Immigration Court, allowing immigrants to bring their own interpreters if
EOIR cannot otherwise provide simultaneous interpretation.

z

2009 RECOMMENDATION: Improve the certification system for interpreters.
2012 Status: Our investigation indicates that EOIR has made no effort to improve
the interpreters’ certification process and demonstrates that significant variances
remain in the quality of interpreters in immigration proceedings.

» Action Items:
‹ ACIJ Weil: Establish an interpreter review system that takes into account views

of Immigration Judges, DHS Trial Attorneys, and counsel for immigrants.
z

2009 RECOMMENDATION: Improve complaint-tracking procedure for interpreters.
2012 Status: EOIR has improved the complaint procedures by adding a link to its
website, but it appears that few practitioners are aware that this process exists and
many expressed reluctance to use it for fear of retaliation by the court.

» Action Items:
‹ EOIR:

Publicize the interpretation complaint process and guarantee
anonymity.

z

2009 RECOMMENDATION: Enforce the prohibition on paraphrasing or opining
and, if necessary, remove the interpreter when the interpretation appears to hinder
an immigrant’s ability to testify fully and openly.
2012 Status: Our field data and survey results indicate that practitioners still view
paraphrasing and opining as an ongoing problem.

» Action Items:
‹ Immigration

Reimagining the
Immigration Court
Assembly Line

Judges: Stop the hearing when the translator is causing
problems, and report the translator to ACIJ Weil.

6| Reduce the Unfairness of Videoconferencing
z

Reimagining the
Immigration Court
Assembly Line:

2009 RECOMMENDATION: Return to in-person merits hearings.
2012 Status: With one exception in the Chicago
Immigration Court, Appleseed found that EOIR is increasing
its reliance on videoconferencing, rather than trying to return
to in-person merits hearings.

» Action Items:

Report Card
2009 2012

F

F

‹ EOIR:

Stop all video hearings until you know that video
is not changing outcomes.
‹ EOIR: Adopt comprehensive regulations governing the use of video.
‹ EOIR: Require Immigration Judges to document and report all video or
audio problems.

Introduction
8

z

2009 RECOMMENDATION: Restore confidential attorney-client communications.
2012 Status: EOIR has made little progress toward guaranteeing confidential
attorney-client communications during video hearings.

» Action Items:
‹ EOIR:

Provide headsets for immigrants’ counsel to communicate with clients
appearing by video.
‹ Immigration Judges: Provide time for confidential communications between
counsel and clients appearing by video.
z

2009 RECOMMENDATION: Provide technical training to Immigration Court staff.
2012 Status: Videoconferencing still suffers from a lack of training and the absence
of full-time technical support staff at the Immigration Courts.

» Action Items:
‹ EOIR:

Immediately hire and train staff on the use of video technology.
‹ EOIR: Replace outdated video equipment.
z

2009 RECOMMENDATION: Provide the capability for real-time document
transmissions.
2012 Status: Even when Immigration Courts are equipped with technology that
allows for real-time document transmission, Immigration Judges rarely use the
technology available to them.

» Action Items:
‹ Immigration

Judges: Prohibit video hearings from commencing without
appropriate document transmission equipment and capabilities.

7| Improve the Reliability and Availability of Court Records
z

2009 RECOMMENDATION: Provide immediate access to
records, filings and dockets.
2012 Status: Our field data and research show halting
progress has been made.

» Action Items:
‹ DHS:

Report Card
2009 2012

F

C-

Give every immigrant his entire A-file (except
classified information) at or before the master calendar.
‹ Immigration Judges: Make sure that immigrants have immediate access to all
relevant documents, with no limitations on copying.
‹ DOJ and DHS: Eliminate all FOIA requirements for immigrants with cases
in Immigration Court.

Reimagining the
Immigration Court
Assembly Line

Introduction
z

2009 RECOMMENDATION: Create an electronic document filing system.
2012 Status: Our field data and research show no progress has yet been made, but
DOJ officials have indicated that the implementation of eWorld is a major priority
for 2012.

» Action Items:
‹ EOIR:
z

Prioritize the implementation of eWorld.

2009 RECOMMENDATION: Continue the installation of digital recording systems
and provide copies of recordings of Immigration Court hearings.
2012 Status: Our field data and research show significant achievements with some
room for improvement.

» Action Items:
‹ Immigration

Judges: Provide a copy of the digital recording to the immigrant
at the end of each hearing.

8| Help the Unrepresented
z

2009 RECOMMENDATION: Ensure that the 2008 Pro Bono
Guidelines are faithfully implemented.
2012 Status: Legal Orientation Programs have expanded,
but there are still not enough pro bono attorneys available.

» Action Items:
‹ EOIR:

Report Card
2009 2012

F

Expand pro bono referral programs in
Immigration Courts.
‹ BIA: Reward pro bono counsel with oral argument, if requested.
‹ Bar: Provide more pro bono representation, particularly to detained
immigrants, children and those with special vulnerabilities.

C-

9

z

2009 RECOMMENDATION: Use videoconferencing, even though flawed, to expand
representation to immigrants in remote areas.
2012 Status: The overwhelming majority of our field data show no progress. The
court in Arlington, Virginia, is an exception that could serve as model for other
Immigration Courts.

» Action Items:
‹ EOIR:

Partner with the private bar to investigate ways to use
videoconferencing to expand pro bono representation.

Reimagining the
Immigration Court
Assembly Line:
z

Introduction
10

2009 RECOMMENDATION: Simplify the filing and pleading standards for
unrepresented immigrants.
2012 Status: Our field data primarily show no systemic progress, though the
Kansas City Immigration Court has simplified some filing and pleading standards
for unrepresented respondents.

» Action Items:
‹ EOIR:
z

Distribute the Kansas City Immigration Court’s materials nationally.

2009 RECOMMENDATION: Upgrade the Immigration Court hotline.
2012 Status: Our field data show no progress.

» Action Items:
‹ EOIR:

Ensure that the hotline is working at all times, and is a credible source
of useful information.

z

2009 RECOMMENDATION: Produce a pamphlet explaining essential immigration
law and Immigration Court procedure.
2012 Status: Our field data show some progress, with some self-help materials
distributed to Immigration Courts around April 2012.

» Action Items:
‹ Immigration

Courts: Provide space for self-help and other materials useful to
immigrants, including information on protecting assets and custodial rights
relating to their children.

9| Get It Right On Appeal
z

2009 RECOMMENDATION: Mandate the use of three-member
panels except for purely procedural issues or motions that do
not decide the outcome of a case.
2012 Status: While the BIA’s use of three-member panels
has inched higher, DOJ has made no progress in mandating
their use.

Report Card
2009 2012

D

C-

» Action Items:
‹ DOJ: Require three-member review of all decisions, except those that are

purely procedural or not outcome-determinative.

z

2009 RECOMMENDATION: Eliminate the use of affirmances without opinion and
require reasoned opinions.
2012 Status: The BIA’s reliance on affirmances without opinion continues to wane,
but the rules mandating affirmances without opinion remain on the books.

» Action Items:
‹ DOJ: Require the BIA to issue full written opinions in all cases, providing the

reasoning and addressing all relevant issues.
‹ DOJ: Increase the BIA to 25 members.
‹ Congress:

Approve funding for more staff attorneys to assist BIA members.

Reimagining the
Immigration Court
Assembly Line

STOP THE ASSEMBLY LINE:
A Call For Leadership At Ever y Level
The time has come for transformative solutions. The ideas below dramatize broader
sections in this report that present ideas of how to stop the assembly line. These are
intended to spur discussion, debate and creative thinking by all actors in the system, to
make sure that the Immigration Courts are accurate, legitimate and efficient.

Legitimate Leaders Aren’t Invisible: Make the Judge Corps More Visible
z Both Immigration Judges and BIA Members suffer from bad public relations. EOIR

should post the biographies of Immigration Judges on-line, and BIA Members
should occasionally “ride circuit” as Immigration Judges.

Find New Ways to Resolve Cases
z The

number of Immigration Judges is clearly insufficient to reduce the backlog of
cases. Retired judges or trained volunteers should mediate cases pre-hearing, and
Immigration Judges should set aside calendar time for prosecutorial discretion cases.

Start Acting Like Judges
z Many Immigration Judges are too passive in their courtrooms, and both immigrants

and due process suffer. Immigration Judges should take control of their courtrooms
and be more assertive, while maintaining proper judicial temperament.

Build Positive Relationships Between DHS Trial Attorneys and Immigrants’ Counsel
z DHS

Trial Attorneys typically interact with immigrants’ counsel only in the
courtroom, often failing to return phone calls before hearings. DHS Trial
Attorneys should devote efforts to relationship-building and hold office hours with
immigrants and their counsel.

Investigate and Reform the Interpretation System
z The Immigration Court interpretation system suffers from a substantial lack of quality

and consistency. EOIR needs to conduct a top-to-bottom review of the Immigration
Court interpretation system, with public findings and recommendations.

Introduction
11

Find Counsel for Unrepresented Immigrants
z More

Reimagining the
Immigration Court
Assembly Line:

than half of all respondents in Immigration Court proceedings are
unrepresented, an enduring crisis that threatens the legitimacy and fairness of the
system. Immigration Judges, Chief Counsels, non-governmental organizations,
and the private bar should work together to develop innovative pro bono models,
like “attorney for the day” programs. Immigration Judges should also be held
accountable for reducing the number of unrepresented immigrants on their dockets.

Make the BIA More Transparent
z The

Introduction
12

BIA is a hidden court, which infrequently issues precedential decisions, rarely
holds oral argument, and almost never interacts with practitioners. The BIA should
focus on publishing more precedential decisions; making public all non-precedential
“unpublished” decisions; holding more oral arguments; and occasionally moving
out of Falls Church, Virginia, and out into the nation’s Immigration Courts.

Methodology
As is Appleseed’s model, the publication of Assembly Line Injustice was just one step in our
Immigration Court reform efforts. Immediately after we issued that report, Appleseed
staff and volunteers met with officials at DOJ and DHS, and key stakeholders on Capitol
Hill and in the advocacy community, to push for the adoption of the recommendations.
Appleseed pro bono attorneys authored and submitted draft sections of the Immigration
Judge Benchbook on the use of videoconferencing, proposed a document disclosure rule
to DOJ and DHS, and engaged in other efforts to implement the recommendations of
Assembly Line Injustice.
In 2011, it became obvious that we would need to update the report to keep our research and
advocacy current and effective. We interviewed key stakeholders within the government,
including Immigration Judges, DHS Trial Attorneys, Chief Counsels, and officials at both
EOIR and DHS Headquarters. From EOIR, we participated in thoughtful, in-depth
conversations with Director Juan Osuna, Assistant Chief Immigration Judges Mary Beth
Keller and Jack Weil, and Office of Legal Access Programs Director Steven Lang. At DHS
Headquarters, we met with Jim Stolley, Director of Field Legal Operations in the Office
of the Principal Legal Advisor, and his colleagues, who were forthcoming and receptive to
our ideas. In all these conversations, we continued to advocate for the recommendations
outlined in Assembly Line Injustice.
We also interviewed more than two dozen practitioners from all parts of the country,
both in the private bar and with legal services organizations. While we were conducting
our interviews, teams of court watchers from Akin Gump and Latham & Watkins, as
well as students from the George Washington University School of Law and the IIT
Chicago-Kent College of Law, observed many hours of hearings in Immigration Courts
in Arlington, Baltimore, and Chicago. The court watchers reported their observations,
identifying issues related to hearing procedures and outcomes. These court-watching
sessions confirmed findings from our follow-up interviews. We continued to read the
work of other colleagues in the field and attended numerous conferences. Moreover, pro
bono attorneys authoring this report also litigated in the Immigration Courts themselves.

Based on findings collected from interviews with practitioners and court observers, we
designed a survey to elicit additional practitioners’ views on any substantive improvements
in the Immigration Courts that had occurred since our last publication. The survey
garnered 49 responses from advocates across the United States. We used the survey to
validate our results and to conduct additional interviews. The results of the survey are
reported in Appendix A. We then shared a draft of this report with several immigration
practitioners, who provided additional ideas and comments. This review team included
Dree Collopy of Maggio & Kattar in Washington, D.C.; Kate Lincoln-Goldfinch of
Hines Leigh in Austin, TX; Raed Gonzalez of Gonzalez Olivieri LLC in Houston, TX;
and Lisa Palumbo of the Legal Assistance Foundation of Metropolitan Chicago.
Based on all this work, this report reflects our findings on the Administration’s successes
and failures in improving the dire shortcomings of our Immigration Court system since
the publication of Assembly Line Injustice in May 2009.

Introduction
13

Acknowledgements
The pro bono contributions of many volunteers made this report possible. The final drafting
team was led by Appleseed Executive Director Betsy Cavendish and Steven  Schulman,
Pro Bono Partner at Akin Gump Strauss Hauer & Feld LLP, and included his Akin Gump
colleagues Emily Strunk, Sheila McCorkle and Diana Gillis, and Latham & Watkins LLP
associate Dennis Craythorn.
Attorneys in Washington, New York, Houston, and Chicago conducted research and
interviews. Akin Gump committed more than 10 attorneys and professional staff in
Washington and Texas, and Latham & Watkins committed more than 21 lawyers and
professional staff members in New York, Chicago, and Washington. Chicago Appleseed
Executive Director Malcolm Rich and his team participated in court watching and both
advocacy and investigative interviews with government officials. Christina Postolowski,
an intern at Appleseed while she was completing her studies at the Georgetown University
Law Center, contributed valuable research. Jaimie Beach, Harvey Duze and the team at
AG Design at Akin Gump designed the final report. Thank you to everyone else who
helped make this report possible (any omissions are inadvertence, not ingratitude):
Kevin Agnew
Heather Ashour
Sarah C. Chandrika
Ellen C. Craig
Mathew J. Cronin
Jonathon N. Fazzola
Raquel Frisardi
Jessalyn R. Garvey
Andrew T. Gehl
Thomas J. Giblin
John Giouroukakis

Reimagining the
Immigration Court
Assembly Line

Daniel Glad
Alex Harisiadis
Kathleen Huggins
Dean David M. Johnson
John G. Kimble
Katherine W. Knapp
Raymond Y. Lin
Domingo LLagostera
Dean Alan B. Morrison
Tanya C. Nair
Chelsea L. Osborne

Natalie Brouwer Potts
Anna M. Rathbun
Manasi P. Shanghavi
Megan A. Sindel
Lyndsay D. Speece
Kenneth Suh
Gary Thompson
Kyle L. Wallace
Phyllis Yong
Matthew Wendlandt

BASIC STRUCTURE OF THE IMMIGRATION
COURT SYSTEM
The Immigration Courts hear cases involving immigration status, the vast majority of
which determine whether the immigrant should be removed from the United States. As
we did in Assembly Line Injustice, we use the term “immigrant” throughout this report
to refer to those who are processed by the Immigration Courts, but who may be termed
“aliens” or “legal permanent residents” by statutes and “respondents” by regulations. We
do not use the term “immigrant” in the technical legal sense to distinguish between “nonimmigrant” visitors and “immigrants” who intend to stay in the United States.
Prior to the creation of the Department of Homeland Security, the Immigration and
Naturalization Service (INS) held nearly exclusive dominion over immigration benefits
and enforcement. INS was a part of the Department of Justice (DOJ) for the better part
of the 20th Century. In 2003, the Homeland Security Act split the immigration-related
functions that were traditionally associated with INS. DHS was given INS’s immigration
enforcement and benefit-conferring functions. DOJ retained most adjudicatory
functions, including the Immigration Courts within its agency the Executive Office for
Immigration Review (EOIR).
The immigration adjudication process begins when DHS files “charges” against an
immigrant by issuing a Notice to Appear (NTA). In many cases, DHS detains the
immigrant in a prison-like detention center to prevent flight pending adjudication.
The NTA initiates a removal proceeding in Immigration Court, where a government
lawyer called a “DHS Trial Attorney” (or alternately Assistant Chief Counsel) attempts
to convince an Immigration Judge that the immigrant should be “removed” (in other
words, deported). DNS Trial Attorneys are supervised by the Office of the Principal Legal
Advisor, which in turn is an arm of Immigration and Customs Enforcement (ICE).
EOIR houses the Board of Immigration Appeals (BIA), administers Immigration Courts,
and manages Immigration Judges. In Immigration Court, the immigrant may offer
reasons why he or she should not be deported, because, for example, he or she is eligible
for asylum. After each side presents its evidence and arguments, the Immigration Judge
decides whether the immigrant has a legal basis to remain in the United States. Either

15

party may appeal the Immigration Judge’s decision to the BIA. Those BIA decisions
unfavorable to immigrants may be reviewed by federal courts of appeals. The Attorney
General may, on his own initiative, review BIA decisions as well; the Attorney General
rarely exercises this authority.
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Reimagining the
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RE IMAGININ G TH E IMMIGR ATION
COURT AS SE MB LY LINE

the Selection Process for Immigration Judges and
1| Reforming
the Board of Immigration Appeals to Promote Impartiality
Impartiality is an essential ingredient of any legitimate judicial
system, yet Assembly Line Injustice found that biased judges littered
the Immigration Courts. As a result, each immigrant who came
before Immigration Court faced an unsavory game of chance in
which winning or losing largely depended on which Immigration
Judge the immigrant draws.

Report Card
2009 2012

D

B-

Some of these biased judges were deliberately placed on the Immigration Courts by the
prior Administration in an effort to pack the courts with “good Republicans” who were
“completely on the team,” to quote the DOJ Inspector General. Many more biased judges
simply have not kicked the habit of opposing immigrants, which is what most Immigration
Judges have done in their prior jobs. Immigration Judges with prior positions adversarial to
immigrants are 24 percent less likely to grant asylum than their counterparts with no such
history, according to the study Refugee Roulette: Disparities in Asylum Adjudication. Indeed,
the longer a judge held a position adversarial to immigrants, the more ingrained the habit
of opposing asylum claims tended to be. That same study also found that Immigration
Judges with prior non-military government
experience are 19 percent more likely to render
outcomes in favor of the government, and that
EOIR has
male Immigration Judges are 44  percent less
successfully
likely to grant asylum than female judges.

eliminated politics
from Immigration
Judge hiring.

This bias did not stop with the Immigration
Courts. The previous Administration similarly
tried to stack the BIA in the government’s favor
by removing five members who had come
from private immigration practice, advocacy or
academia as part of its “streamlining reforms.” Refugee Roulette found that the success
rate of asylum seekers at the BIA dropped precipitously by 70 percent in the wake of this
streamlining. Moreover, nearly two-thirds of the BIA members in 2008 had previous

19

positions that were adversarial to immigrants, while all but one had significant government
work experience, mostly at DOJ.

Reimagining the
Immigration Court
Assembly Line:

Reforming the
Selection Process
20

With an overwhelming number of Immigration Judges and BIA members falling into
these pro-government categories, we concluded in 2009 that the composition of the
Immigration Court system was stacked against immigrants. EOIR has made good strides
since 2009 to depoliticize the hiring process, to expand the pool of candidates, and to
put more women on the bench. But because of the size of the Immigration Judge corps,
these efforts have yet to effect a significant change in the system overall. Unfortunately,
today immigrants still face a system tilted against them. On the other hand, EOIR hears
criticism from DHS and some Republican lawmakers that Immigration Judges are too
“pro-alien.” It is unsurprising that immigration attorneys and DHS have different views
of the system, but the data shows that outcomes remain far too dependent on the identity
of the judge rather than the merits of the immigrant’s case. Regardless of whether the
outcome is “anti-immigrant” or “pro-alien,” the appearance of bias is a serious problem
for the legitimacy of any system of justice.

2009 Recommendation: Ensure that the hiring process for Immigration Judges and
BIA members has been fully de-politicized.
2012 Status: EOIR has eliminated political influence from the hiring process, focusing
instead on candidates’ judicial temperament.

» Action Items:
‹ EOIR:

Continue to keep politics out of the Immigration Judge hiring process.

Based on our discussions with EOIR and our review of the public biographies of
the 72  Immigration Judges appointed since 2009, we can conclude that EOIR has
successfully purged politics from its hiring process. EOIR has hired a number of
Immigration Judges who have prior judicial experience and, according to EOIR, have
exhibited the temperament necessary to be a successful Immigration Judge, even if they
do not have substantial immigration law backgrounds. We see no evidence that political
considerations influenced their hiring, and we applaud EOIR’s efforts to focus on the
temperament of Immigration Judge applicants.
EOIR should continue to ensure that politics do not influence the selection of judges for
the BIA or Immigration Courts.

2009 Recommendation: Broaden the candidate pool for Immigration Judges and
BIA members.
2012 Status: EOIR is advertising vacancies more widely, and its hiring from diverse
backgrounds has improved, but overall the Immigration Judge corps and BIA are no more
diverse today than in 2009.

» Action Items:
‹ EOIR:
‹ EOIR:

Focus not just on process, but on the results to diversify the bench.

Ensure that new Immigration Judges have sufficient knowledge of
immigration law.

EOIR has tried to reshape the Immigration Courts through its concerted and commendable
effort to increase the number of Immigration Judges since 2009. To broaden the pool of
candidates, EOIR has expanded its search by advertising vacancies not only on the DOJ
website and USAjobs.gov, but also by sending vacancy announcements to “more than 120
well-established legal organizations,” although EOIR has not made public the names of
these organizations. EOIR told us that its hiring process now makes a particular effort to
identify candidates who have an appropriate judicial temperament, rather than specific
immigration expertise. In EOIR’s view, with proper training these non-traditional
candidates can become effective Immigration Judges.
In interviews, the temperament issues deemed most critical by EOIR seemed to be grace
under pressure and an ability to make decisions on facts and law. We urge EOIR also to
include leadership, judgment and empathy among the qualifications for new Immigration
Judges.
Practitioners have given mixed reactions to these new “non-traditional” hires. One
experienced practitioner in Texas indicated that some new hires do not appear “to have
proper training or very much experience in immigration law.” On the other hand, an
attorney who practices in California and New York stated that “newer appointees seem
more well-informed about [procedural] issues, though shakier on how to incorporate
experts and other supporting witnesses.”

What Do We Mean by Legitimacy?
Appleseed believes that the Immigration Courts must not only reach
the right result under the law, and operate effectively, but that they
must be perceived as legitimately holding power and operating fairly
by those who come before the courts. This is an uphill burden, as the
courts are part of the Department of Justice, which in most other cases
is the prosecuting arm of government, and not part of an independent
judiciary—a distinction that may be lost on many of those who come
before the courts in any event. Still, it matters deeply to an American
vision of justice that people coming before any court—even one located
within the executive branch—know that their decision-maker will be openminded, incorruptible, and will make decisions based on the law and
evidence in that particular case. Passing the test of legitimacy will not be
done by reaching a threshold level of satisfaction on a poll; rather it will
turn on whether litigants and their counsel have every reason to believe
that their decision-makers are unbiased, incorruptible and truly judicial
in their mindset. We aren’t there yet—though we found no evidence of
outright corruption, and much to praise in EOIR’s efforts to identify and
reduce bias. The pipeline from DHS Trial Attorney to Immigration Judge is
still wide open, and in many jurisdictions, the friendly dynamic between
the Trial Attorney and the Immigration Judge is one of former colleagues,
rather than attorney and fair-minded, impartial judge.

Reimagining the
Immigration Court
Assembly Line

Reforming the
Selection Process
21

Reimagining the
Immigration Court
Assembly Line:

Reforming the
Selection Process
22

Nonetheless, the results do not show increased diversity, aside from a slightly better
proportion of female judges. As of 2009, 55  percent of the Immigration Judges had
previously held positions adversarial to immigrants, and an additional 24  percent
had held other government jobs. In contrast, only 14  percent had worked for a nongovernmental organization, and a mere two percent had significant academic experience.
The 72 new Immigration Judges hired since January 2009 have a similar profile to the
judges who preceded them. Approximately 63  percent of the judges hired since 2009
previously worked in positions adversarial to immigrants, with 41 of the 72 new judges
coming from the ranks of former DHS/INS Trial Attorneys. Despite its efforts, EOIR
continues to use the pool of DHS Trial Attorneys as the farm team for the Immigration
Judge corps, a trend that not only presents an appearance of anti-immigrant bias, but has
also proven to be a strong indicator of pro-government outcomes. Simply relying on the
traditional stream of DHS Trial Attorney applicants undermines the system’s legitimacy.
An additional 21 percent of these new judges held prior non-military government jobs,
which means that a total of 83 percent of the new hires have backgrounds that strongly
correlate with a bias in favor of the government in immigration cases. Only 17 percent of
these new hires have worked in a non-governmental organization at some point in their
careers, and three percent have been academics.

Comparison of Immigration Judges’ Professional Background
(2008 vs. 2011)



















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After factoring in the new judges and attrition, 56 percent of the 267 Immigration Judges
as of January 2012 have worked in positions adversarial to immigrants (133 of whom
were DHS/INS Trial Attorneys), an additional 23 percent have had prior non-military
government jobs, 16  percent have worked in a non-governmental organization, and
2 percent have had academic experience.
In terms of gender, EOIR’s recruiting efforts are more balanced than the bench as a whole,
though the relatively limited number of vacancies to be filled has left the Immigration
Courts still predominantly male. In 2008, only 32 percent of Immigration Judges were
female. Of the 72 new Immigration Judges, 43 percent are female and 57 percent are
male. The impact on the bench overall has been limited; male judges still constitute
62 percent of the Immigration Judge corps.

Comparison of Gender Demographics of Immigration Judges

Reimagining the
Immigration Court
Assembly Line

Reforming the
Selection Process
23

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EOIR has had even less of an opportunity to improve the composition of the BIA, and,
accordingly, that body still remains imbalanced. The three new members appointed since
2009 do not, demographically, represent much change to the status quo as of 2009. Two
of the new members are male, and two have served in positions adversarial to immigrants;
one new member has significant previous academic experience as an immigration law
professor and worked for a state disability rights organization.
In 2009, 11 of the 14 BIA members were male, 9 had previously worked in positions
adversarial to immigrants and all but one had worked for the government (mostly DOJ).
Only two members had any experience working at any non-governmental organization,
and none had significant academic experience.
The current BIA membership is not much different. Of the 14 currently sitting BIA
members, 10 are male, 10 have held positions adversarial to immigrants and all 14 have
at some time worked for the government (mostly DOJ). Three current members have
experience working in a non-governmental organization, and one has significant academic
experience. In addition, the BIA currently has five temporary members, who may serve
six-month terms and have all the powers of permanent BIA members except that they
may not vote on precedential cases or participate in en banc proceedings. Each of these
five current temporary members is female, bringing the total active BIA membership
near to gender parity. They all have very similar backgrounds, each having served in other
attorney positions at the BIA for at least a decade.

Reimagining the
Immigration Court
Assembly Line:

Reforming the
Selection Process
24

EOIR’s efforts cannot be limited to a depoliticized and open hiring process, but must be
focused on creating a diverse bench, one with the imagination, leadership and vision to
provide justice for all. With respect to the BIA in particular, EOIR still has an opportunity
to improve the composition of the BIA, as it is not fully staffed to its authorized 15
permanent members. EOIR should take the opportunity to fill open positions in a
way that improves the Board’s professional diversity. Finally, while its efforts to focus
on judicial temperament is welcome, EOIR needs to make sure that new Immigration
Judges have the requisite immigration law experience and/or training before taking the
bench. The importance of a judge’s decisions demands a thorough knowledge of the
relevant law.

2009 Recommendation: Increase the transparency of the BIA candidate
nomination process.
2012 Status: EOIR has not improved the transparency of the BIA hiring process.

» Action Items:
‹ DOJ: Adopt a notice and comment period for BIA appointments.

Although the Attorney General has appointed three new BIA members since 2009,
the public has been given no opportunity to comment on the finalists prior to their
appointments. While we understand EOIR’s reluctance to announce candidates before
their appointments are final, given the importance of the BIA in forming immigration
law, the limited number of judges appointed to the BIA, and the appearance that the
BIA is still politicized, any confidentiality concerns should be outweighed by the benefits
of transparency and wider input into the process. In any event, it is not unusual in
Washington for candidates for important posts to be vetted before their appointments are
confirmed, as with American Bar Association recommendations of judicial nominees. We
continue to believe that groups such as the American Immigration Lawyers Association
could provide EOIR with valuable insights into the suitability of a BIA candidate, which
would improve the odds of selecting well-qualified members and increase the public’s
confidence in the BIA. We urge EOIR to explore this reform for future appointments.
Because the BIA wields significant influence over U.S. immigration policy, EOIR should
provide for a public comment period for all finalists for BIA positions so that it can
consider a diversity of views about their qualifications. This process should be formalized
as a regulation, so that any future administration is bound to follow it, which should help
keep the selection process depoliticized. Any such regulation should specify a reasonable
time period in which EOIR will receive and consider any comments, both public and
confidential, before any BIA appointments become final.

STOP THE ASSEMBLY LINE:
Make the Judge Corps More Visible
Post Immigration Judge biographies on-line.
Require BIA Members to occasionally sit as Immigration Judges.
The Immigration Judge corps continues to suffer from a lack of respect among
practitioners. EOIR should investigate ways to improve the public relations of judges,
and can start with posting their biographies on line, as is done for members of the Board
of Immigration Appeals. Immigration Court websites are currently spartan, listing only
the names of the judges and containing no other relevant information. In stark contrast,
most federal court websites contain lengthy biographies of judges. Currently, the only
reliable source of information on Immigration Judges is via TRAC (Transactional Records
Access Clearinghouse, a data gathering, data research and data distribution organization
at Syracuse University), which contains data that is often unflattering for the judges, such
as low asylum grant rates. We certainly support TRAC’s reporting, and do not advocate
white-washed biographies of Immigration Judges, but personalizing judges on the court
websites can help generate legitimacy in the community.
The biographies of BIA members are available on the EOIR website, but this is the only
public persona of these cloistered judges, who are obscured from public view in an office
building in Falls Church, Virginia. As discussed more fully in Chapter 9, BIA members
would do well to build a more public persona. One way to do this would be by occasionally
sitting in Immigration Court by designation. Hearing cases in Immigration Court would
force BIA members to interact with Immigration Judges, DHS Trial Attorneys, the
private bar, and immigrants. The BIA could benefit from having a more public presence.

Reimagining the
Immigration Court
Assembly Line

Reforming the
Selection Process
25

2|Empowering Immigration Judges to Achieve Justice
Assembly Line Injustice identified three primary problems interfering
with Immigration Judges’ ability to provide fair outcomes in their
courtrooms: a crushing caseload; a dearth of clerks to help research
and write opinions; and an inability and unwillingness to sanction
DHS Trial Attorneys who come unprepared or otherwise obstruct
fair and efficient proceedings.

27

Report Card
2009 2012

D

D+

Sadly, the Immigration Courts have become even more backlogged in the last several
years as DHS has ramped up enforcement. While the number of Immigration Judges has
increased 22 percent since 2008, DHS has increased the caseload by 48 percent, leaving
the courts even further behind. As Immigration Judge Dana Marks told Congress, “With
every case a priority, the stress on judges has reached unbearable levels, contributing
greatly to questionable conduct in court and arguably fostering ill-conceived decision
making.” Adding to the pressure of a mounting case backlog, Immigration Judges still
have limited flexibility to manage their courtrooms effectively. Not enough new clerks
have been hired, and DHS has prevented any effort to allow Immigration Judges to
sanction DHS Trial Attorneys.

2009 Recommendation: Increase the number of Immigration Judges.
2012 Status: The courts still have far fewer judges than needed: the number of Immigration
Judges has increased, but new appointments have failed to keep up with rising case loads.

» Action Items:
‹ Congress: Fund enough Immigration Judges to handle the cases brought by DHS.

Appleseed continues to believe that the single most practical way to help Immigration
Judges achieve justice is to hire significantly more Immigration Judges. Based on 2008
figures, Appleseed estimated that 204 new judges would have to be hired, bringing the
judicial corps to 424, in order to reduce from four to two the number of cases each judge
considered each day.

Reimagining the
Immigration Court
Assembly Line:

Empowering
Immigration Judges
28

Assembly Line Injustice documented that Immigration Judges face extreme demands in the
courtroom, and that pressure has only increased in the past few years. In fiscal year 2008,
approximately 220 Immigration Judges received 292,013 new cases—more than 1,327
new cases per judge. Three years later, EOIR has hired approximately 72 Immigration
Judges, but has lost 24, yielding only 267 Immigration Judges on the bench. Congress
authorized but did not fully fund 284 positions. These 267 Immigration Judges need to
review more than 400,000 new cases annually—the equivalent of nearly 1,500 new cases
per judge per year. Predictably, the Immigration Court backlog has reached an all-time
high of 297,551 cases at the end of fiscal year 2011, an increase of 48 percent since the
end of fiscal year 2008.
Due to the pace of the assembly line, Immigration Judges sit on the bench hearing cases
for approximately 35 hours per week. This grueling schedule leaves little or no time for
reflection and research, surely impairing the likelihood of a fair result in court.
According to TRAC, the average Immigration Court case is now taking 489 days to
resolve. Some groups of immigrants (from Armenia, Indonesia, and Albania, for example)
are now waiting nearly two years or more for their case to be resolved.
The backlog is so bad in New York City that the Immigration Court is scheduling
individual hearings in asylum cases for 2015. These delays not only make immigrants
wait unbearably long for their status to be resolved—and perhaps for their families to join
them—but also reduces their chances of finding or keeping a lawyer. A New York public
interest attorney commented that these extended delays make “it virtually impossible for
us to place cases with pro bono lawyers who can’t reasonably guess whether they [will]
be in a position to do a pro
bono case in three or more
years.” Likewise, law school
Starting in late 2011, the
immigration clinics are less
Immigration Court in New
likely to take cases that will
York was scheduling half-day
not be resolved until after the
asylum hearings for 2015,
students’ graduation.

leaving refugees in limbo for
more than 3 years. This delay
separates families and reduces
the chance that a lawyer will
take the case pro bono.

This backlog is especially
acute for immigrants who
are not detained. EOIR has
understandably prioritized the
cases of detained immigrants,
by ordering Immigration
Judges to complete 85 percent
of all detained cases within 60 days. This not only puts significant time pressure on
Immigration Judges to decide these cases, but also substantially delays the cases of
undetained immigrants. These immigrants, particularly asylum-seekers, may be separated
from their families and be unable to work pending the outcome of their Immigration
Court cases.
Despite this clear need for more Immigration Judges, hiring has ground to a halt. In fiscal
year 2011, EOIR requested an additional 21 Immigration Judge positions, but Congress
froze funding at 2010 levels, allocating no money for new Immigration Judges. In light of

the tight funding, DOJ has imposed a department-wide hiring freeze, preventing EOIR
from filling authorized positions or even replacing judges who leave the bench. This
situation is not getting better. In fiscal year 2012, EOIR again requested 21 additional
Immigration Judges to help it keep up with the current caseload, a number woefully short
of what is needed to provide due process in the growing number of cases. We worry that
the hiring freeze may not only increase the backlog, but also reduce the willingness of
those involved in the thoughtful disciplinary process to counsel out those judges who lack
the temperament necessary to deal with the stresses and burdens of being an impartial
Immigration Judge.
Appleseed encourages DOJ to redouble its efforts with Congress to fund the number of
Immigration Judges needed to provide due process to the immigrants who appear before
these courts. In no event should the number of judges be used as an excuse to shortchange
an immigrant’s right to due process. The United States system of justice demands no less.

2009 Recommendation: Provide additional clerks to assist Immigration Judges in
writing opinions.
2012 Status: EOIR has paired a proposed new law clerk position with each new proposed
Immigration Judge position, but law clerks remain in short supply.

» Action Items:
‹ EOIR:

Determine whether more current funding should be directed to law
clerk positions.

Law clerks are one cost-effective way to make up for the shortage of Immigration
Judges. Clerks perform the behind-the-scenes work, a particularly acute need because
Immigration Judges spend about 35 hours per week in the courtroom, according to
estimates by EOIR officials. Clerks can research and draft opinions—many of which
follow a clear template that requires little or no new legal research—while judges
are conducting hearings, allowing judges the time to evaluate the issues in each case.
Accordingly, in 2009 Appleseed recommended that each Immigration Judge be provided
a dedicated clerk to help manage the crushing case loads.
EOIR followed this recommendation by pairing a request for a new clerk with each new
Immigration Judge position for fiscal years 2011 and 2012. As a result, each Immigration
Court judicial clerk now serves three judges, better than the ratio of one clerk per four
judges when Assembly Line Injustice was published in 2009.
This modest improvement has not translated into readily apparent change across
Immigration Courts. One practitioner we interviewed was unaware of any increased
hiring of clerks in the last two years. Immigration Judge Dana Marks recently testified
that Immigration Judges generally issue decisions without a clerk’s help because of the
scarcity of law clerks.
The shortage of law clerks is not due to low interest among potential candidates. EOIR’s
clerkship program is very popular with law students and is very competitive. Instead, the
low number of law clerks staffing the Immigration Courts results from low EOIR hiring
rates. EOIR has announced plans to hire an additional 21 law clerks by the beginning of
fiscal year 2012, but the department-wide hiring freeze may preclude this step.

Reimagining the
Immigration Court
Assembly Line

Empowering
Immigration Judges
29

In sum, EOIR has a long way to go to reach Appleseed’s recommendation of giving each
Immigration Judge a dedicated law clerk. Appleseed encourages EOIR to engage in a
cost-benefit analysis to determine whether current funding would better be utilized for
Immigration Court judicial clerks than other hiring needs.

Reimagining the
Immigration Court
Assembly Line:

Empowering
Immigration Judges

2009 Recommendation: Expand Immigration Judges’ sanctioning authority to
include the ability to sanction DHS Trial Attorneys.
2012 Status: While DOJ has attempted to implement regulations to give Immigration
Judges sanctioning authority, DHS has blocked all efforts.

» Action Items:
‹ White

House: Step in and require DHS to accept the sanctioning authority that

Congress has authorized.
‹ EOIR:

30

Instruct Immigration Judges to hold DHS Trial Attorneys to the same
standard of preparation, diligence, and decorum as immigrants’ counsel.

In Assembly Line Injustice, we noted that one of the most powerful tools given to judges
is the ability to sanction attorneys who appear before them. Even if used sparingly, this
sanctioning power allows judges to control their courtrooms by enforcing norms of fair
play and decorum. By statute, Immigration Judges have this power—but can use it only
to discipline immigrants’ attorneys because DHS has refused to consent to regulations
that would allow its attorneys to be subject to discipline by Immigration Judges, who are
employed by DOJ.
Today’s larger case loads and backlogs in Immigration Courts make it more important
than ever for Immigration Judges to be able to run their courtrooms efficiently, and
the power to impose sanctions evenhandedly is critical to advance the legitimacy of the
Immigration Courts. Accordingly, Immigration Judges must be empowered to discipline
attorneys on both sides if they come to court unprepared or under other circumstances
warranting discipline. Clearly understanding this, EOIR strengthened its power to sanction
immigrants’ attorneys in 2009, and is looking to strengthen that power even more. Yet all
its efforts to allow judges to discipline DHS Trial Attorneys have been stymied. According
to EOIR, DOJ has prepared draft regulations to implement the Congressional contempt
authority by giving Immigration Judges the power to sanction DHS Trial Attorneys.
Unfortunately, DHS has refused to provide its consent to any such regulations, which it is
able to do because these regulations require both agencies’ approval.
DOJ is unwilling to press the issue with a sister agency and DHS clearly balks at the
idea that a co-equal agency would have sanctioning power over its personnel. DHS
asserts that sanctioning authority is not necessary because in the worst-case scenarios
Immigration Judges can refer problems to local bar associations. We believe, however,
that implementing the previously-authorized rule would go a long way to improving
the dilatory and disrespectful conduct that so aggrieves immigration attorneys and their
clients in many jurisdictions.
Because the agencies are deadlocked, Appleseed calls on the White House to intervene.
The Office of Information and Regulatory Affairs, the Executive Branch body within the
Office of Management and Budget charged with mediating inter-agency disputes over
regulations, must bring an end to this stalemate. Congress has provided Immigration Judges

the power to sanction DHS Trial Attorneys, and this direction must be implemented. In
the meantime, EOIR should instruct Immigration Judges that DHS Trial Attorneys are
to be held to the same standard of preparation, diligence, and decorum as immigrants’
counsel. The legitimacy of the Immigration Courts is degraded when it appears that DHS
Trial Attorneys are accorded more favorable treatment.

STOP THE ASSEMBLY LINE:
Find New Ways to Resolve Cases

Reimagining the
Immigration Court
Assembly Line

Get retired judges or volunteers to mediate cases pre-hearing.
Make calendar time for prosecutorial discretion cases.
For the foreseeable future, there will not be enough judges or law clerks to alleviate the
backlog in Immigration Courts. When half-day asylum hearings are being scheduled
more than three years in the future, it is time to explore some creative ways to manage the
docket and resolve cases.
The federal courts often use magistrate judges to resolve pre-trial matters, and in some
cases to hold trials with the consent of both parties. The Immigration Courts could
follow this model, allowing retired judges or trained volunteer lawyers to help administer
cases. These “immigration magistrates” could help narrow issues and develop a set of
recommendations for the Immigration Judge to review prior to a Merits Hearing, making
these hearings more efficient or perhaps even unnecessary.
The Immigration Courts can also provide opportunities for DHS Trial Attorneys to
resolve or narrow cases. Judges can hold some calendar time open for case resolution,
calling DHS Trial Attorneys and immigrants’ counsel into court to articulate whether and
how cases on the docket should be resolved or narrowed.
These are only two ideas that arise out of Appleseed’s review. Immigration Judges,
immigrants’ counsel, and DHS Trial Attorneys are in the best position to collaborate
to develop mechanisms to alleviate the crushing burden of cases. The caseload crisis
demands creative solutions.

Empowering
Immigration Judges
31

a Culture of Professionalism in the
3|Cultivating
Immigration Courts
Assembly Line Injustice described a poisoned Immigration Court
culture that allowed judges to engage in shocking displays of
temper and inappropriate fraternization with DHS attorneys that
made immigrants feel as if the judge had already sided with the
government. A significant change in attitude and attention to
those judges displaying inappropriate conduct was sorely needed,
as professionalism and proper judicial comportment are vital
components of any legitimate court system.

33

Report Card
2009 2012

D

B-

Accordingly, Assembly Line Injustice made three recommendations to cultivate a culture of
professionalism in the Immigration Courts: (1) augment and implement DOJ’s proposed
Code of Conduct for Immigration Judges; (2) fashion appropriate mechanisms to
discipline judges for violations of the Code of Conduct; and (3) supplement the training
of Immigration Judges via periodic and mandatory training sessions.
Since 2009, EOIR has taken significant steps in each of these areas, by adopting a judicial
code of conduct, improving the disciplinary process and its enforcement, and enhancing
the training for new and sitting Immigration Judges. In particular, the Assistant Chief
Immigration Judges responsible for training and professionalism deserve credit for
their efforts to improve the Immigration Court culture. There is still, however, a strong
perception among immigration advocates that too many Immigration Judges are not
upholding the standards set by EOIR. This perception is based in part on the reality
that some judges continue to behave without proper judicial comportment, and in part
because the courts’ reputation has yet to recover from the damage done by misdeeds of
judges in the past.

2009 Recommendation: Enhance and implement DOJ’s proposed code of conduct
for Immigration Judges.
2012 Status: EOIR has released the Ethics and Professionalism Guide for Judges.

» Action Items:
‹ EOIR: Continue to train judges on Ethics and Professionalism Guide and enforce

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Immigration Court
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Cultivating Culture
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34

its mandates.
EOIR took a significant step toward increased professionalism with the April 2011 release
of the Ethics and Professionalism Guide for Immigration Judges, which came nearly four
years after EOIR proposed the initial Code of Conduct. The provisions in the Guide,
which are binding on all Immigration Judges, address proper judicial temperament and
demeanor to avoid impropriety and the appearance of impropriety, providing specific

You Can’t Go Here
An anti-immigrant culture in Immigration Courts is sometimes reinforced
by the facilities themselves. In both Boston and Arlington, Virginia,
the Immigration Courts provide no bathrooms for immigrants or their
attorneys appearing at multi-hour hearings. In Arlington, immigrants and
their attorneys must first leave the court, take the elevator 13 floors down
to the ground level, and then find a public bathroom in an adjoining mall.
In Boston, the bathroom in the hall outside a courtroom is locked and
available only for court personnel and DHS Trial Attorneys. Immigrants
and their lawyers must pass by this bathroom and take the elevator
down to the building’s lobby to use a bathroom. A small inconvenience?
Sure. But one that pointedly reinforces an “us vs. them” culture that
some practitioners sense in Immigration Courts.

examples of behavior that could indicate improper bias or prejudice. The Guide also focuses
on professional competence, urging Immigration Judges to “strive to be knowledgeable
about immigration law,” to be “skillful” in applying the law, and to prepare adequately
for hearings. The Guide limits ex parte communications, provides for disciplinary actions
for failure to follow the Guide, and creates a mechanism for continuing dialogue between
EOIR and judges. The Guide has not yet been incorporated into the Ethics Manual, but
is available online to judges and the public.
We encourage EOIR to continue to train judges on the requirements of the Ethics and
Professionalism Guide and to ensure that judges are complying with it. The Guide should
be amended when needed to ensure that Immigration Judges are abiding by the highest
standards of professionalism.

2009 Recommendation: Fashion appropriate mechanisms to discipline judges for
violations of the Code of Conduct.
2012 Status: EOIR has implemented a complaint tracking database and has created
a system for electronic filing of complaints. Nonetheless, practitioners are still reporting
violations of the Code of Conduct by Immigration Judges.

» Action Items:
‹ EOIR:

Publicize the complaint process and ensure anonymity of complainants.

‹ EOIR:

Publish notices of Immigration Judge discipline.

One of the most significant improvements since 2009 is EOIR’s effort to track complaints
in a database. Under the leadership of Assistant Chief Immigration Judge Mary Beth
Keller, who is responsible for conduct and professionalism, EOIR is publishing statistics
on the number of complaints received, the general basis of the complaint (e.g., court
conduct, bias), the number of judges implicated, and generally how the complaints
were resolved (e.g., dismissed and on what basis, disciplinary action, informal action).
The online complaints system adds a level of transparency and indicates that complaints
are being addressed. In an interview with Appleseed, ACIJ Keller cautioned that
the resolutions reflected in the statistics may under-report EOIR’s efforts to address
unprofessional conduct, as the data do not include the number of judges who do not
meet professionalism or other standards and are urged to retire or resign without any
formal disciplinary proceeding. Appleseed applauds EOIR’s efforts to use its evaluation
system to weed out those who may not be equipped with sufficient skills or sensitivity.
Additionally, EOIR has now made
it possible to file a complaint
through email at EOIR.IJconduct@
usdoj.gov, though some practitioners
are unaware of the new system,
while others mistakenly believe that
EOIR does not actually investigate
complaints. To EOIR’s credit,
however, “File a Complaint” is
featured prominently on the front

Complaints about the
conduct of an Immigration
Judge may now be made
anonymously via email to
EOIR.IJconduct@usdoj.gov.

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Reimagining the
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36

page of its website. Moreover, complaints may be filed anonymously, and they may be
filed by individuals or groups of persons, according to the summary of procedure on
the DOJ website, http://www.justice.gov/eoir/sibpages/IJConduct/IJComplaintProcess.
pdf. Regrettably, the ability to file anonymously is confused by the instructions for
filing a complaint, which states that the complainant should list “name, address, and
phone number and any other contact information you wish to provide.” Moreover,
many potential complainants may not wish to go through the trouble of establishing
an anonymous email address to mask their identity. A number of attorneys expressed
concerns about repercussions for making complaints, a fear confirmed by one practitioner
who reported that a judge confronted the complaining attorney off-the-record in a
retaliatory manner.
If a complaint is filed with EOIR, it will be addressed in some manner and the database/
tracking system contributes to the transparency of this process. EOIR could improve the
credibility of the Immigration Courts and its rapport with immigrants and practitioners
by better publicizing to immigration law practitioners that complaints may be filed
orally, in writing or by email; anonymously, individually, or from a group. Notices of the
complaint procedure should be placed in conspicuous places in the Immigration Courts
and on any document provided to an immigrant by the court as well.
Judge Keller, to her credit, appreciates that some judges simply may not be temperamentally
suited to the high-stakes, high-stress nature of the position, and she is working with those
judges who aren’t able to adapt to the rigors and emotional toll of the job to take an
honorable exit before more drastic and involuntary disciplinary action is warranted. To
the extent consistent with the Privacy Act, EOIR should also post on its website public
reports on the disciplinary actions taken against Immigration Judges, the same way it
reports sanctions against attorneys who represent immigrants.

2009 Recommendation: Supplement the training of Immigration Judges via
periodic and mandatory training sessions.
2012 Status: EOIR has enhanced its training programs and devised creative solutions to
continue Immigration Judge training programs, even with minimal funding; more funding
is needed to fully implement training programs.

» Action Items:
‹ EOIR:

Prioritize funding for training programs.

The most important change in the training of Immigration Judges since the publication
of Assembly Line Injustice has been the December 2009 appointment of Jack Weil as the
Assistant Chief Immigration Judge for training Immigration Judges, court administrators,
interpreters, legal technicians, and judicial law clerks. Under Judge Weil’s leadership,
EOIR has enhanced its training programs and established several new training initiatives,
including a six-week training period for new judges, an assigned mentor, an immigration
law exam, and formalized review process during the judge’s probationary period. Trainings
emphasize conscious and unconscious bias in the courtroom. Additionally, EOIR is
making training programs available remotely (via DVD programs) so that budget and
travel constraints do not prevent Immigration Judges from receiving regular training.

Practitioners continue to complain
about insufficient judicial legal
competency. One Los Angeles
immigrant advocate reported that
“the quality of judges varies widely.
Some are excellent and some are
ridiculous,” a comment that reflected
the sentiment of many other
immigrant advocates with whom
we spoke or surveyed. Practitioners
reported that the overall quality of
Immigration Judges is improving,
but the lack of immigrant advocacy
experience—or
even
general
immigration law experience—in
new judge hires may be hurting
the quality of decision-making.
Practitioners also cited the new online
Immigration Judge Benchbook and
annual training program as positive
developments that could promote
uniformity and accuracy of results.

The BIA Delivers a Tool to
Immigration Judges
In January 2012, the BIA issued
an  important decision that not
only set an important legal
precedent, but more vitally sent
a clear message to Immigration
Judges that they—not DHS—are
in control in the courtroom. In
Matter of Avetisyan, the BIA held
that Immigration Judges have the
power to close proceedings over
the objection of DHS when the
immigrant appears to have an
alternative path to immigration
status. DHS has reportedly
complained about this decision,
but the agency should instead
recognize the obvious: Immigration
Judges, not DHS Trial Attorneys,
must command the courtroom.

Based on the training materials and
schedule that EOIR shared with
Appleseed, EOIR has good programs in place. Nevertheless, the effectiveness of these
training programs is diluted by the lack of funding to implement them in full. Appleseed
recommends that EOIR prioritize funding for training programs as a way to proactively
address a host of other issues, such as professionalism and competency that arise when
Immigration Judges do not receive adequate training.

STOP THE ASSEMBLY LINE:
Start Acting Like Judges
Take Control of the Courtroom.
Providing more judges and clerks, allowing judges to have sanctioning power, and
improving discipline and training will not provide the transformational cultural changes
needed in the Immigration Courts. Immigration Judges must be empowered to take more
control over their courtrooms and to break out of the assembly line mentality. Our call
for an Article I Immigration Court in Assembly Line Injustice was in this vein, but did not
quite articulate the most critical issue: regardless of where they are housed, Immigration
Judges must act like judges. They should follow the model of their judicial colleagues in
other venues, who would hardly sit idly by as their courtrooms became unmanageable.
The failure by Immigration Court judges to control their own courtrooms underlies nearly
all the problems we have identified both in Assembly Line Injustice and in these pages. An

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Assembly Line

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of Professionalism
37

Reimagining the
Immigration Court
Assembly Line:

Cultivating Culture
of Professionalism
38

assertive judge—the kind of judge lawyers often encounter in Federal District Court—
would not allow the government to refuse to turn over documents needed by the defense.
She would not allow her courtroom to be turned over to a poor-quality videoconference.
She would not chat idly with prosecutors, particularly not when the defendant is in the
courtroom. She would force litigants to compromise on issues that wasted her court time,
and would aggressively question the government’s decision to pursue cases that should
be resolved by plea or stipulation. She would find a way to make sure that unrepresented
litigants found a lawyer, or otherwise were empowered to represent themselves.
Some fine, assertive Immigration Court judges run their courtrooms efficiently and fairly.
EOIR leadership wants Immigration Judges to put pressure on DHS to justify the use of
scarce court resources, but not enough judges do so and they face a system that often tells
them they cannot challenge the status quo. It needs to be clear to every Immigration Judge
that they do not sit on the bench simply to hear the facts and apply the law, but that they
can and should push for a just outcome. Every Immigration Judge must ensure that the
courtroom is a place for equal justice under law, and do so assertively but respectfully and
with appropriate judicial decorum. EOIR must make sure that its judges are empowered
to force just resolutions, to challenge unfair practices, and to make clear to all parties that
the courtroom is in the judge’s control. DHS Trial Attorneys must recognize that they
are simply litigants before a neutral arbiter, that they must show deference to judicial
authority, and that judges have the power to end practices that interfere with due process.
Judges should be true neutral arbiters and run their courtrooms accordingly. Ultimately,
everyone’s goal should be reaching a just outcome, not removing as many immigrants
as possible.
No reform or recommendation can be entirely effective until all Immigration Judges are
put in charge of their courtrooms, and are given the power to stop practices that denigrate
the due process they are charged to protect. The time has come for Immigration Judges
to be thought of—and to think of themselves—as every bit as important and powerful
as federal Article III judges.

DHS Trial Attorneys to Handle Cases More
4|Empowering
Professionally and More Efficiently
In 2009, Assembly Line Injustice highlighted the overly aggressive
and inefficient ways that DHS Trial Attorneys handle cases in Report Card
Immigration Courts. Appleseed found that DHS Trial Attorneys
had fallen prey to a “deport-in-all-cases culture.” This attitude was 2 0 0 9 2 0 1 2
exacerbated by the workload they are expected to carry, which
D
C+
allowed Trial Attorneys only 20 minutes to prepare for each case;
and the lack of “vertical prosecution,” which meant that Trial
Attorneys typically were not responsible for a case from inception to judgment. The
agency’s failure to enforce its  prosecutorial discretion policies and to encourage the use
of pre-hearing conferences only magnified the problems, in combination providing Trial
Attorneys neither the incentive nor the opportunity to manage their dockets and resolve
cases without full evidentiary hearings.
The most significant change since 2009 in this area
is the June 2011 memo issued by ICE Director
One Chief
John Morton detailing enforcement priorities
Counsel remarked
and strongly encouraging the affirmative use of
prosecutorial discretion to dismiss cases not in
that he often
line with those priorities. This “Morton Memo”
“ feels like we are
amended no fewer than six prosecutorial discretion
directives from prior immigration officials, dating
dodging bullets.”
back to 1976, none of which had much impact
on the exercise of prosecutorial discretion. This
effort is too new to have yielded significant results in the field, but initial results show that
its implementation has not been consistent across Chief Counsel’s offices.
Aside from this latest prosecutorial discretion policy, DHS has not undertaken a broader
re-thinking of how to manage the Immigration Court’s docket. This reluctance to address
a key problem is unfortunate. In the past decade, the case burden on individual Trial
Attorneys has become even heavier, with some Trial Attorneys required to litigate more

39

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Empowering DHS
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40

than 350 cases in a year. One Chief Counsel in charge of an ICE regional office remarked
that the burden of an ever-increasing docket combined with insufficient resources is
unsustainable; he often “feels like we are dodging bullets.” Unfortunately, only a few
Offices of Chief Counsel have tested vertical prosecution or other approaches that would
require a single attorney to be responsible for the duration of a case. Even though the
regulations and the Immigration Court Practice Manual authorize the use of pre-hearing
conferences as an efficient means to narrow or resolve cases, DHS and EOIR both resist
using this mechanism in any systemic fashion.

2009 Recommendation: Remind Trial Attorneys that their mission is to enforce the
law as written, not to deport every immigrant.
2012 Status: Our field data and research show mixed results. It remains to be seen if the
Morton Memo can shift ICE’s focus away from a “deport at all costs” mentality.

» Action Items:
‹ DHS:

re-define the mission of Trial Attorneys to seek justice, not only removal.

As documented in Assembly Line Injustice, the focus on national security in the wake
of 9/11 has led DHS Trial Attorneys to adopt a “deport at all costs” mentality, despite
the fact that only approximately one one-hundredth of one  percent of immigration
cases involve any national security concerns. Many Trial Attorneys still view their job
through the lens of national security; indeed, ICE touts that its “primary mission is to
promote homeland security and public
safety.” One Chief Counsel in charge
of a regional office described himself
Approximately one
as “a child of 9/11” and stated that the
one-hundredth
terrorist attack motivated him to become
of one percent of
a government immigration attorney.

immigration cases
involve national
security concerns.

Increasing the emphasis on prosecutorial
discretion cannot alone ensure that
Trial Attorneys focus on reaching a fair
result in Immigration Court rather than
on “winning” removal of a non-citizen.
Despite the very few removal cases that involve national security issues, DHS still defines
the role of its lawyers as “protect[ing] the homeland by diligently litigating cases.” Appleseed
recommends that, consistent with the Morton Memo, DHS re-define the mission of its
lawyers to direct them to determine the appropriate outcome in each immigration case,
consistent with the agency’s stated removal priorities. Changing mission is not just a
matter of changing words on a website, of course. Every Chief Counsel should be held
accountable for making sure that trial attorneys are honoring that mission through every
part of their work.

2009 Recommendation: Enforce the DHS policy encouraging the use of
prosecutorial discretion.
2012 Status: Our field data show no real changes in the regional offices as of the first
quarter 2012. It is still too early to tell whether the Morton Memo and subsequent DHS
announcements will lead to a practical shift in the field.

» Action Items:
‹ DHS:

Hold Chief Counsel Offices accountable for implementation of
prosecutorial discretion in every context.

‹ DHS:

Analyze the ramifications of administrative closure and other means of
exercising prosecutorial discretion.

‹ Chief Counsels: Ensure that Trial Attorneys understand how to use prosecutorial

discretion to manage their dockets.
‹ EOIR:

Instruct Immigration Judges to push Trial Attorneys to justify deviations
from the DHS prosecutorial discretion policy.

The Morton Memo is a first step to rethinking what many practitioners view as an unduly
hard line approach to deportation. ICE has candidly admitted that deportation will not
resolve the status of the approximately 11 million undocumented immigrants living in
the United States, as the agency has the resources to remove less than 4 percent of that
estimated population. In light of this reality, the Morton Memo sets the top priorities
for removal as individuals who (1) pose
a public safety risk or danger to society,
defined in part by a history of terrorist or
DHS “must prioritize the use
criminal activity; (2) recently entered the
of its enforcement personnel,
United States through means other than
detention space, and removal
a valid point of entry; and (3) have been
assets to ensure that aliens it
identified by ICE with an outstanding
removes represent, as much
order of removal or “otherwise obstruct
as reasonably possible, the
immigration controls.”
agency’s enforcement priorities,
The directives of the Morton Memo
namely the promotion of national
were supplemented by an August 2011
security, border security, public
announcement by Secretary Napolitano
safety and the integrity of the
that a joint DHS-DOJ committee would
immigration system.”
review nearly 300,000 cases currently
– Morton Memo,
in removal proceedings and determine
June 17, 2011
which cases are low priority and can be
subject to the exercise of prosecutorial
discretion. The announcement also
explained that agency-wide guidance will be issued to ICE, USCIS, and CBP officers
to ensure that they appropriately exercise discretion when determining whether a low
priority case should be referred to Immigration Court.
In November 2011, DHS Principal Legal Advisor Peter Vincent issued a directive
expanding on the August 2011 announcement. That memo ordered Offices of Chief
Counsel to review by January 13, 2012, for purposes of the exercise of prosecutorial
discretion, all cases in which (1) the Notice to Appear had yet to be filed in Immigration

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Court; (2) all cases on the “master docket”—in other words, not yet scheduled for a
full merits hearing; and (3) all cases of non-detained respondents with merits hearings
scheduled before June 17, 2012. This “Vincent Memo” also required all Offices of
Chief  Counsel to draft and implement a standard operating procedure to establish a
process for reviewing cases to determine whether the exercise of prosecutorial discretion
is appropriate.
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Two sets of guidelines accompanied the Vincent Memo. One is titled “Next Steps in
the Implementation of the Prosecutorial Discretion Memorandum and the August
18th Announcement on Immigration Enforcement Priorities,” which announced a
“comprehensive training program” for Trial Attorneys using “scenario-based training” on
the use of prosecutorial discretion in accordance with the Morton Memo. The other
guideline is called “Guidance to ICE Attorneys Reviewing the CBP, USCIS and ICE
Cases Before the Executive Office of Immigration Review.” This document summarized
the key components of the Morton Memo, including the criteria for the review of cases
coming before the Immigration Courts, to focus on national security risks, persons with
serious criminal records or otherwise pose a threat to safety, and individuals who entered
the U.S. within the last three years.
Although these initiatives are encouraging, the initial response to the Morton Memo
by DHS personnel in the field has been disappointing. News stories during the months
following the Morton Memo suggested that this top-level change in tenor had not altered
the mindset at the local level. One example is the DHS effort to remove a 55-year-old
teacher who has no criminal history, is married to a U.S. citizen, and is undergoing
treatment for prostate cancer. The teacher’s sole offense was that he had overstayed his
visa 15 years ago; nonetheless, he had continually received work authorizations by the
government. Valuable Immigration Court resources should not be squandered on cases like
this, which fall squarely within the Morton Memo’s criteria for prosecutorial discretion.

A court observer
witnessed a hearing
where a female
immigrant was a victim
of domestic violence by
her fiancé. The woman,
though battered, was still
brought into court for
deportation proceedings,
even though she merited
administrative relief
under the Violence
Against Women Act.

In November 2011, the American
Immigration Lawyers Association
(AILA) issued a report that reached
the “overwhelming conclusion … that
most ICE offices have not changed
their practices” since the issuance of the
Morton Memo. This report is filled with
examples from across the country of
Trial Attorneys intending to ignore this
latest prosecutorial discretion effort.
For instance, it was reported that “ICE
attorneys and officers [in Atlanta] have
both stated informally that they do not
intend to comply” with the Morton
Memo. In Dallas, the Office of Chief
Counsel told an attorney that the office
“does not need to change anything”
in light of the Morton Memo. These

statements were made prior to the Vincent Memo, so perhaps the policy was only slow to
take hold, but in light of the dismal record of DHS and subsequent developments, these
indications were not promising. In January 2012, it was reported that approximately
1,300 of 7,900 cases reviewed in the Denver Immigration Court would be recommended
for administrative closure under the new policy. Similarly, ICE Director Morton told
Congress in March 2012 that after 150,000 cases had been reviewed, only 1,500 had
been closed. Likewise, in April 2012 TRA reported reveals the closure of only 2609 cases,
a backlog reduction of less than one percent of cases pending in Immigration Courts.
Even after training procedures are established by the Offices of Chief Counsel, the Morton
Memo and the subsequent announcements still have significant shortcomings. Within
DHS, there does not appear to be any system of accountability for the failure to exercise
prosecutorial discretion and to prioritize cases. Indeed, these memos all take pains to
make clear that no individual immigrant has the right to an exercise of prosecutorial
discretion, therefore leaving no recourse for an individual treated unfairly.
Moreover, in many Chief Counsel’s offices, the exercise of prosecutorial discretion appears
to be strictly binary: either a case is prosecuted in full, or administratively closed, though
the Morton Memo and the later guidance do not limit the exercise of prosecutorial
discretion to case closure. Nonetheless, these guidelines do not adequately instruct
Trial Attorneys on narrowing issues in cases, consenting to relief where warranted, or
otherwise ensuring that a just result is achieved in Immigration Court. The current
vision of prosecutorial discretion appears to be limited to deciding who to try to remove
from the country, not how to adjudicate cases, particularly where the immigrant may be
entitled to a form of immigration benefit. Unfortunately, the consequences of limiting
prosecutorial discretion to case closure undermine the Morton Memo’s efficacy. In many
cases where an immigrant is subject to removal, he or she may have a legitimate claim to
relief (for instance, battered women may have relief under the Violence Against Women
Act, children may qualify for Special Immigrant Juvenile Status, and refugees may merit
asylum). Closure will not help these individuals, and they therefore must litigate in the
same highly adversarial system to secure relief.
Even in cases where case closure makes sense, DHS has not provided any mechanism
for work authorization for immigrants who are allowed to remain in the United States
after the exercise of prosecutorial discretion. One Washington State practitioner reported
that the Office of the Chief Counsel disclaimed any responsibility for the impact of case
closure on work authorization, and suggested that immigrants and their lawyers try to
convince another DHS branch, USCIS, which has no involvement in the exercise of
prosecutorial discretion, to change its work authorization policy.
DHS needs both to provide guidance and to require accountability to ensure that Chief
Counsel’s offices think more carefully about how prosecutorial discretion can be used
in every context. The fair use of prosecutorial discretion should include not only for
case closure, but also stipulations to relief or narrowing of issues. Some DHS attorneys
do stipulate to asylum either immediately before or at hearings; this practice should be
encouraged at earlier junctures. Even in cases in which it is not appropriate to stipulate to
relief without a hearing, DHS attorneys can and should stipulate in advance to obvious
issues, such as the human rights conditions in the applicant’s country of origin. DHS
also needs to analyze the ramifications of case closure and other mechanisms for case

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43

resolution so that immigrants are not forced to choose between accepting a fair outcome
and litigating solely so they can obtain permission to work in the United States. The
current practice limits the effectiveness of the Morton Memo and encourages a new class
of unauthorized workers as delays in Immigration Courts grow longer.

Reimagining the
Immigration Court
Assembly Line:

Empowering DHS
Trial Attorneys
44

Chief Counsels can and should let their staff know that not every contention needs to
be contested, not every adverse decision merits an appeal, and that a DHS Trial Attorney’s
time is best spent on doing justice under the law—working on removal of those who
are dangerous to our society, and on securing relief for those entitled to it, so that they
may be welcomed and integrated into the United States. DHS Trial Attorneys have the
professionalism and leadership to analyze and prioritize their cases, and not just process
them like an assembly line worker. By analogy, many U.S. Attorneys and litigating
units of DOJ refuse some potential cases. They demand more evidence from agents or
agencies, resolve cases on terms favorable to the opposing party, or simply drop matters
falling outside priorities. This is the only way a system of prosecution can work efficiently
and effectively.
Within Immigration Courts, the response to the Morton Memo has been far too passive,
though EOIR reports that it wants Immigration Judges to question DHS Attorneys
on the merits of cases it brings. Many Immigration Judges have disavowed any interest
in questioning Trial Attorneys’ refusal to exercise prosecutorial discretion and clear the
Immigration Court dockets. Rather than push Trial Attorneys to use this power to make
the system run better, Immigration Judges view themselves as simple observers of the
prosecutorial discretion process. On the other hand, at least one federal court has not
been shy about pushing DHS to explain whether it intends to follow the Morton Memo.
In February 2012, the Ninth Circuit Court of Appeals asked the government to advise
the court whether, in light of the Morton Memo, it planned to exercise prosecutorial
discretion in five pending cases, four of which involved immigrants with long-term
presence in the United States and U.S. citizen children.
EOIR should follow the lead of the Ninth Circuit and clearly instruct Immigration
Judges to push DHS Trial Attorneys to justify deviations from the Morton Memo.
Immigration Judges have the right to insist that limited court resources be used for the
most meritorious cases that are consistent with DHS prosecutorial priorities.

2009 Recommendation: Assign a Trial Attorney to each case through the practice
of vertical prosecution.
2012 Status: Our field data show some progress, but vertical prosecution and other
mechanisms to improve docket management are still vastly underutilized.

» Action Items:
‹ Chief

Counsels: Assign each case to one Trial Attorney, or to a small team.

Prosecutorial discretion should not be the only tool that DHS uses to manage the
Immigration Court docket. Assembly Line Injustice reported that the typical DHS
practice of assigning cases to Trial Attorneys shortly before merits hearings bogs down
the Immigration Courts. As is typical for federal and state prosecutors, Trial Attorneys
should be assigned to a case from the moment it appears in Immigration Court. The
use of this practice, known as vertical prosecution, does not appear to have developed

significantly since 2009, though
DHS is moving toward a better
In Los Angeles, unit
model. Jim Stolley, who recently left
prosecution was part of
the post of Chief Counsel for Los
an effort to transform a
Angeles to the become the DHS
Director of Field Legal Operations
flagship office notorious
in the Office of the Principal
for lost files and failure
Legal Advisor, implemented “unit
to return calls from
prosecution” in Los Angeles—a
immigrants’ counsel.
version of vertical prosecution that
assigns each case not to one attorney
but to a team. Unit prosecution was
part of Stolley’s efforts to transform one of the largest Chief Counsel’s offices, which
had become notorious for lost files and failure to return phone calls from counsel for
immigrants. According to Stolley, Chief Counsel Offices in Chicago, San Antonio, and
San Francisco have already implemented unit prosecution, and he is aiming to have New
York implement a similar process in 2012.
Still, the majority of Chief Counsel Offices instead assign an attorney or team of attorneys
to an Immigration Judge’s court, rotating among judges over the course of a year. In these
offices, a Trial Attorney is assigned to a particular case only when it gets close to the final
merits hearing, limiting opportunities for immigrants’ counsel to discuss and possibly
resolve or narrow the case with the responsible attorney. Throughout our interviews,
Chief Counsels consistently stated that vertical prosecution is too cumbersome for the
fast-paced Immigration Courts and would require far more manpower than their offices
currently have available.
The need for vertical prosecution is made even more pressing with the agency’s new focus
on prosecutorial discretion, which is not limited to any particular stage of a case. If one
Trial Attorney, or a small team, is assigned to each case, each will be handled with more
sophistication and care, and resolution will become the sole responsibility of that attorney,
adding accountability to the prosecutorial discretion policy. The current “non-vertical”
prosecution system creates an unproductive distance between the Trial Attorney and the
case, posing a risk that the Trial Attorney will be less prepared for the particularities of the
case and more disengaged from its outcome. Reassigning cases between Trial Attorneys
also leads to increased delays as new attorneys struggle to get up to speed.
One Trial Attorney, or a small team of attorneys, should be responsible for each case from
the issuance of the Notice To Appear until the case is resolved in Immigration Court.
Most prosecutors’ offices outside the immigration context find that this system allows
opposing counsel to establish a relationship with the attorney who will be handling the
case throughout, to the benefit of both parties and the system as a whole. The new DHS
prosecutorial discretion policy will be effective only when local DHS Trial Attorneys
are given ownership and responsibility for resolving each case. Absent such a system,
the assembly line will simply keep moving toward contested merits hearings, the most
inefficient, and often unnecessary, means for resolving a case.

Reimagining the
Immigration Court
Assembly Line

Empowering DHS
Trial Attorneys
45

2009 Recommendation: Mandate prehearing conferences at the request of
either party.
2012 Status: Our field data and research demonstrate no progress.

» Action Items:
‹ EOIR:

Reimagining the
Immigration Court
Assembly Line:

Empowering DHS
Trial Attorneys
46

Require that counsel meet and confer before a hearing, and file a joint
pre-hearing statement demonstrating how they have narrowed the issues.

‹ Immigration

Judges: Hold pre-hearing conferences when the pre-hearing
statement indicates that issues can still be narrowed with the court’s help.

Assembly Line Injustice recommended that pre-hearing conferences, which are authorized
by regulation, be utilized at the request of either party as another way to resolve cases
in lieu of full evidentiary hearings. Prehearing conferences are a critical tool used nearly
universally by government attorneys
outside the context of immigration,
but are almost entirely absent from
Prehearing conferences
immigration proceedings. Indeed,
are a critical tool used
since 2008, the Immigration Court
nearly universally by
Practice Manual has provided for
government attorneys
pre-hearing conferences “to narrow
issues between the parties, to
outside the context of
exchange information voluntarily,
immigration, but are
and otherwise simplify and organize
almost entirely absent from
the proceeding.” The Practice
immigration proceedings.
Manual provides that any party
may request a pre-trial conference
or the Immigration Judge can call
for a conference himself. Unfortunately, the Practice Manual does not mandate such
conferences, even at a party’s request, and this mechanism is underutilized—if not
outright discouraged—by Immigration Judges.
The Immigration Court Practice Manual also “strongly encourage[s]” the parties to
confer prior to the merits hearing, and to file a joint pre-hearing statement to “to narrow
and reduce the factual and legal issues in advance” of the hearing. This encouragement
is in most cases be limited to the text of the Practice Manual. Few if any Immigration
Judges require such statements or otherwise mandate that the parties confer prior
to a hearing. Likewise, many Chief Counsel Offices do not have a policy or practice
on pre-hearing conferences with
defense counsel, or even informal
communications in advance of a
“[I]n twelve years of practice in this
hearing. The Los  Angeles Chief
area, I have, one time, had a call
Counsel instructed trial attorneys
returned from a [DHS Trial Attorney]
to return calls within 48 hours,
before the hearing. One time.”
but this approach appears to be
the exception. One Chief Counsel
–Practitioner from
said that she did not know whether
New York area
she could even describe the level of
communications between her office

and immigrants’ attorneys. Another Chief Counsel told us that she had an “unwritten”
policy that attorneys should try to respond to phone calls. Lack of communication
with immigrants’ counsel appears to be endemic, with a clear majority of practitioners
responding to our survey saying that they had frequent problems contacting trial
attorneys. One veteran practitioner from the New York area said that “in twelve years of
practice in this area, I have one time had a call returned from a [DHS Trial Attorney]
before the hearing. One  time.”
DHS has not seriously considered the opportunities presented by pretrial conferences or
other mechanisms to encourage narrowing a case, even in the context of prosecutorial
discretion. Indeed, a practitioner in Los Angeles told us that “in two recent cases our
attempt to have a pre-hearing conference was flatly refused.” Moreover, the Immigration
Courts have expressed no apparent
willingness to embrace pre-trial
conferences as a way to clear dockets
“It is next to impossible to discuss
or narrow issues. One judge stated
a case in advance of a hearing
that time allotted for merits hearings
with a [DHS Trial Attorney].”
is “sacrosanct,” therefore no time
–Practitioner in
could be made for pre-trial hearings.
San Antonio
That judge also said that judges are
encouraged to use the master calendar
hearings to urge the parties to resolve
issues, a statement echoed by a senior EOIR official. This view of the crowded master
calendar docket—typically a “cattle call” of status hearings—is unrealistic. These short
hearings typically happen at the very outset of a case when the parties have had little time
to explore the merits. Master calendar is rarely a time to resolve serious issues, particularly
since the DHS Trial Attorney appearing at the master calendar is unlikely to continue on
the case absent a vertical prosecution system.
The failure to use pre-trial hearings also limits the interaction between DHS Trial
Attorneys and immigrants and their counsel to the most adversarial of settings—at the
full merits hearing, in front of the Immigration Judge, when both parties are prepared
for an evidentiary hearing and compromise is most difficult. A policy encouraging the
use of pre-trial hearings, or other methods of forcing counsel to discuss and potentially
narrow a case, could create a more civil and productive discourse between the parties in
Immigration Court cases. These kinds of inter-counsel interactions, and the professional
relationship that could develop as a result, are essential elements in making a determination
of whether to exercise prosecutorial discretion. Without pre-hearing conferences, DHS
Trial Attorneys have nothing to work with but the scant amount of information given to
them in a pre-hearing file—files that are known for raising more questions than answers.
Appleseed encourages DHS and EOIR to explore ways to facilitate the resolution of cases
or the narrowing of issues, particularly in cases where prosecutorial discretion will not
be used to close the case in its entirety. If pre-trial hearings are too difficult to schedule,
EOIR should require that DHS Trial Attorneys and counsel for immigrants (or the
immigrants themselves, if unrepresented) have made a good-faith effort to discuss, at least
a week in advance of a merits hearing, which issues can be resolved without the court,
and which need to be subjected to a contested hearing. In short, Immigration Judges
should strictly enforce the pre-hearing statement mandates of the Practice Manual, and

Reimagining the
Immigration Court
Assembly Line

Empowering DHS
Trial Attorneys
47

add any other requirements that will make hearings more efficient. This type of “meet and
confer” obligation, which is widely used in federal court litigation, would not only force
a conversation between DHS Trial Attorneys and lawyers for immigrants, but also would
help the court determine whether a pre-trial hearing would be an efficient use of time.

Reimagining the
Immigration Court
Assembly Line:

STOP THE ASSEMBLY LINE:
Build Positive Relationships Between DHS
Trial Attorneys and Immigrants’ Counsel
DHS Trial Attorneys should hold office hours.

Empowering DHS
Trial Attorneys
48

It is unsurprising that DHS Trial Attorneys and immigrants’ counsel have strained
relationships. They do, after all, represent opposing sides in Immigration Court. But the
sense among practitioners is that the relationships between the two sides is much worse
than between opposing parties in other venues, like prosecutors and criminal defense
attorneys, or plaintiffs’ and defense counsel. One cause is structural: the typical DHS
Trial Attorney interacts with immigrants’ counsel and immigrants only at the Master
Calendar, which is a frenzy of cases to be set for hearing, or at the Merits Hearing, when
both sides have already prepared their cases to present to the judge. Any litigator will tell
you that the courtroom is not a venue where lawyers are at their most relaxed and friendly.
Unfortunately, the courtroom is typically the only place where DHS Trial Attorneys meet
immigrants’ counsel.
Chief Counsels need to think of creative ways to develop better relationships between
their corps of DHS Trial Attorneys and the private bar, including pro bono and legal
services lawyers. Several of our recommendations above encourage DHS Trial Attorneys
to break this mold by handling one case from beginning to end, returning phone calls,
and engaging in pre-hearing meetings with immigrants’ counsel. Many Chief Counsels
have regular “liaison” meetings with the American Immigration Lawyers Association and
other groups, which is a good start.
Although they already have crushing case loads, all DHS Trial Attorneys should make
time to meet with immigrants’ counsel outside of the courtroom. Holding regular office
hours, where immigrants’ counsel could stop by and discuss active cases informally,
would help build positive relationships between the two sides. When DHS Trial
Attorneys know immigrants’ counsel, and vice versa, trust will develop, which can only
help DHS Trial Attorneys decide which cases to pursue, and which merit an exercise of
prosecutorial discretion.

Enhancing the Accuracy of Proceedings Through Effective
5|Language
Interpretation
Assembly Line Injustice addressed the critical role that interpreters
play in the Immigration Courts to ensure an accurate result and Report Card
lend legitimacy to proceedings. More than eighty-five  percent of
the immigrants who come before the Immigration Courts rely 2 0 0 9 2 0 1 2
on interpreters to tell their stories, but we found that this basic
D
D+
necessity for due process often fails to deliver accurate testimony
from the immigrant to the court. Just as critically, the vast majority
of Immigration Courts do not allow translation of all the proceedings, and instead use
translation solely for instances when a non-English speaking immigrant or witness is
testifying. Accordingly, immigrants are often left to guess what is being said in their own
removal proceedings.
Assembly Line Injustice accordingly offered five recommendations to address ineffective and
inadequate language interpretation in the Immigration Courts: (1) Mandate simultaneous
interpretation of everything said in Immigration Court; (2)  Improve the certification
system for interpreters to ensure that only qualified interpreters are permitted to assist
litigants in the Immigration Courts; (3)  Enhance the complaint tracking procedure
for interpreters; (4)  Enforce the existing prohibition on paraphrasing and opining by
interpreters; and (5) Ensure that Immigration Judges question and, if necessary, remove
interpreters when the interpretation appears to hinder an immigrant’s ability to testify
fully and openly.
Any accurate and legitimate judicial system must allow those appearing before it to
understand the proceedings and to provide information to the decision maker—this is
a fundamental tenet of justice in the United States. Yet our field data and survey results
indicated that, apart from a few isolated exceptions, little progress has been made in
the overall quality of interpreters in the Immigration Courts, leaving many immigrants
unable to understand their proceedings and fully participate. EOIR cannot allow its
Immigration Courts to hold hearings where the immigrant cannot provide accurate
testimony or understand the entirety of the proceedings.

49

2009 Recommendation: Mandate simultaneous interpretation of everything said
in Immigration Court.
2012 Status: EOIR has advised that it is working on a language access plan, but to date
most Immigration Courts do not use simultaneous or full interpretation.

» Action Items:
Reimagining the
Immigration Court
Assembly Line:

Effective Language
Interpretation
50

‹ EOIR:

Require translation of everything said in Immigration Court, allowing
immigrants to bring their own interpreters if EOIR cannot otherwise provide
simultaneous interpretation.

The majority of practitioners we interviewed or surveyed indicated that most Immigration
Courts do not typically provide full or simultaneous interpretation of the entire
proceeding. Rather, most interpreters continue to interpret only immigrants’ testimony
and any conversations directly between the judge and the immigrant. An overwhelming
number of survey participants indicated that translation has not improved since we
released Assembly Line Injustice in 2009. One attorney in Arkansas stated that in twentyone years he had never seen a single full translation of Immigration Court proceedings. A
survey participant commented that she was unable to secure an interpreter for her client
despite filing several motions and calling the clerk to remind her about the need. Several
others commented that interpreters are almost never present during Master Calendar
Hearings. During Merits Hearings, communications among the attorneys and the judge,
communications from opposing counsel to the judge, and decisions from the judge are
typically not translated for non-English speaking respondents. In one case in Boston,
the Immigration Judge refused to allow the interpreter to translate argument and expert
testimony critical to the immigrant’s case. Instead, the interpreter sat idle for several hours
while proceedings were conducted in English, leaving the immigrant with no way of
understanding what was happening in his case. Because the immigrant did not testify
that day, the interpreter was never used.
At least some Immigration Judges recognize the need for full or simultaneous translation.
A Minnesota practitioner reported that she has had a client receive full interpretation
on at least one occasion, but only after she requested it. A practitioner experienced in
the Chicago, Baltimore, and Arlington Immigration Courts indicated that he knows of
only one Immigration Judge who consistently orders simultaneous interpretations, while
other judges use it less consistently. However, another practitioner also experienced in the
Arlington and Baltimore Immigration Courts expressed his belief that all Immigration
Courts provided full interpretations of proceedings. Likewise, two of our court room
observers witnessed simultaneous interpretations in the Arlington Immigration Court,
though a third observer in that court on a different matter witnessed the interpretation
of a respondent’s name and the colloquy portion of the proceeding only, leaving the
respondent in the dark as to all other communications in the court that day.
We recognize that simultaneous or full interpretation can lengthen proceedings if the
respondent is not getting the translation via headphone, but fundamental fairness
dictates that an immigrant be able to participate fully in his or her removal proceeding.
Simultaneous interpretation services are used efficiently by other institutions, such as
health care groups, school systems, and international aid organizations, and are a best
practice for facilitating communication from one language into another.

EOIR should mandate that all proceedings other than confidential bench conferences
with counsel be translated for non-English speaking respondents. The fairness of a
hearing should not turn on the immigrant’s country of origin: A French-speaking
immigrant from Niger should be able to understand his hearing just as well as an Englishspeaking immigrant from Nigeria. There is no excuse for refusing to allow an immigrant
to understand all that is being said in these critical hearings. An immigrant who cannot
understand all the testimony and argument cannot be expected to be able to assist counsel
or otherwise participate fully in a hearing. Due process requires no less.

2009 Recommendation: Improve the certification system for interpreters.
2012 Status: Our investigation indicates that EOIR has made no effort to improve the
interpreters’ certification process and demonstrates that significant variances remain in the
quality of interpreters in immigration proceedings.

» Action Items:
‹ ACIJ

Weil: Establish an interpreter review system that takes into account views

of Immigration Judges, DHS Trial Attorneys, and counsel for immigrants.
Our investigation revealed no effort to improve the certification process for interpreters
by EOIR or the private companies contracted to provide interpretation services. The
need for a tighter certification process remains. Several practitioners indicated that the
quality of interpreters in the Immigration courts has either stayed the same or declined
since the publication of Assembly Line Injustice. In the words of one Chicago attorney,
the quality of interpreters is wildly inconsistent, and some are “just plain atrocious.”
Another practitioner noted that interpreters assigned to her cases have been intrusive
and inaccurate.
Another recurring problem is the lack of access to interpretation in particular dialects.
Throughout our interviews we heard stories where the courts were unable to find
interpreters who spoke an immigrant’s specific language or dialect. One court could not
find an interpreter for a Burmese dialect. Another could not find an interpreter for a
Mongolian dialect and the respondent was forced to have his hearing without an interpreter.
A third court could not find an interpreter who spoke Mandarin, so the respondent’s
Mandarin-speaking attorney acted as his client’s interpreter. One practitioner responding
to our survey stated that some judges have refused to believe that respondents from Latin
America are not fluent in Spanish and thus have denied requests for interpreters in the
immigrants’ native dialects.
In one particularly disturbing story, a Somali immigrant who spoke only broken English
and his native language was forced by the Immigration Judge to choose among several bad
options: using a Kenyan interpreter, seeking a continuance to find his own interpreter, or
proceeding in broken English. Under the final option, the court would have barred the
Somali immigrant from raising issues concerning his inability to communicate properly.
One practitioner reported that many Immigration Judges will agree to continue a case
where the differences in dialect are detrimental to a respondent’s case. However, many
times these problems will go unnoticed by the judge or the respondent’s attorney. Where
the respondent is unrepresented, the likelihood of remedying an interpreter issue is
highly unlikely.

Reimagining the
Immigration Court
Assembly Line

Effective Language
Interpretation
51

Reimagining the
Immigration Court
Assembly Line:

Effective Language
Interpretation
52

Sometimes the system works. Three Chicago practitioners indicated that interpreters
were generally good in the Chicago Immigration Courts, and two indicated that they
had fewer complaints recently. Several survey participants stated that the quality of
translation is much stronger for the more common foreign languages, such as Spanish,
and is particularly good in jurisdictions with large Spanish speaking populations, such as
Texas and California. Conversely, cases involving less common foreign languages must
often be rescheduled in search of an interpreter, or more troubling, these cases proceed
with incomplete or inadequate interpretations. An individual interpreter’s quality may
also vary depending on the situation in the courtroom. For example, one practitioner
indicated that he believes interpreters are more careful with their interpretations when
they know that the attorney also speaks the foreign language.
EOIR must ensure that interpreters are qualified and that certification is not simply a
rubber-stamp. Interpreters should be subject to review by Immigration Courts, DHS
Trial Attorneys and counsel for immigrants, through periodic surveys. Assistant Chief
Immigration Judge Jack Weil, who has the responsibility for training interpreters,
should institute a comprehensive review system that guarantees quality interpreters for
Immigration Courts.

2009 Recommendation: Improve complaint-tracking procedure for interpreters.
2012 Status: EOIR has improved the complaint procedures by adding a link to its website,
but it appears that few practitioners are aware that this process exists and many expressed
reluctance to use it for fear of retaliation by the court.

» Action Items:
‹ EOIR:

Publicize the interpretation complaint process and guarantee anonymity.

Assembly Line Injustice found that the complaint procedures for interpreters was
underutilized and poorly advertised to practitioners and immigrants. The situation has
not changed markedly in the years since, though a link to the complaint procedure was
added to the EOIR website. A majority of the practitioners surveyed stated that they
were unaware of EOIR’s process for lodging a complaint against an interpreter (email:
complaints.interpreter@usdoj.gov).
More disturbingly, many of the attorneys surveyed stated that even if they were aware
of the process, they would be reluctant to file a complaint. These attorneys expressed
concern regarding retaliatory measures taken by the court, with one practitioner going
so far as to call it “professional suicide” to make
a formal complaint regarding any part of the
proceedings. We applaud EOIR’s actions in
One practitioner
creating an online form for filing complaints,
went so far as to
and encourage EOIR to take greater steps to
call it “professional
publicize the online complaint process, to
guarantee that contributors’ comments will be
suicide” to make a
kept anonymous to the extent possible, and
formal complaint
to ensure that any reports of retaliation are
regarding any part
investigated diligently. This complaint system is
of the proceedings.
less valuable if practitioners are unaware of the
service or fear retaliation for using it.

2009 Recommendation: Enforce the prohibition on paraphrasing or opining and,
if necessary, remove the interpreter when the interpretation appears to hinder an
immigrant’s ability to testify fully and openly.
2012 Status: Our field data and survey results indicate that practitioners still view
paraphrasing and opining as an ongoing problem.

» Action Items:
‹ Immigration

Judges: Stop the hearing when the translator is causing problems,

and report the translator to ACIJ Weil.
A significant percentage of survey participants indicated that paraphrasing or opining by
interpreters was still a problem. Because of language barriers between many practitioners
and their non-English speaking clients, survey participants indicated that they are usually
unable to monitor the performance of the interpreters. Moreover, survey participants
stated that while faulty or incomplete interpretations concern them, they do not believe
the court can do much to monitor the practices of the interpreters given that often
the Immigration Judges also do not speak the translated language. In the words of one
practitioner, “paraphrasing is a big problem. But I’m not sure how the judge is supposed
to ensure quality of translation if the judge is not fluent in both languages.”
We recognize that monitoring the quality of interpreters imposes a great challenge
for the court. However, it is for this reason in particular that we recommend that the
EOIR maintain a robust certification and training process in order to ensure top quality
interpreters for every immigration proceeding. In addition, Immigration Judges should
be required to stop a hearing when an interpreter is causing any problems, and report the
translator to Assistant Chief Immigration Judge Weil.

STOP THE ASSEMBLY LINE:
Investigate and Reform the Interpretation System
Conduct a top-to-bottom review of the Immigration Court interpretation
system, with public findings and recommendations.
The Immigration Court interpretation system is so rife with problems that it needs to
be examined from top to bottom. Our investigation uncovered some serious flaws, and
following the recommendations above will improve interpretation, but these problems
demand a more comprehensive examination. ACIJ Jack Weil, who is responsible for
Immigration Court interpreters, or the DOJ Office of the Inspector General should
initiate a broad investigation of the interpretation system. Such a study should include
interviews with all stakeholders, including interpreters, interpretation certification
companies, Immigration Judges, DHS Trial Attorneys, the private bar, legal services
attorneys, and immigrant advocacy groups. This effort should result in the development
of strong set of qualifications, and a system of evaluating, disciplining, and disqualifying
interpreters. EOIR should also implement a system to provide interpretation for more
unusual languages—even if the interpreter appears by phone or video (while the
immigrant is in the courtroom)—so that an immigrant can tell his or her story most
comfortably. EOIR should also explore whether phone or video can be used to ensure
that the best interpreters are used.

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Immigration Court
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53

6|Reducing the Unfairness of Videoconferencing
Trying immigrants by video remains the single largest procedural
stain on the Immigration Court system, denying justice to Report Card
immigrants and corrupting the Immigration Courts. As the Chief
Judge of the U.S. Court of Appeals for the Fourth Circuit wrote, 2 0 0 9 2 0 1 2
“virtual reality is rarely a substitute for actual presence ... even in
F
F
an age of advancing technology, watching an event on the screen
remains less than the complete equivalent of actually attending it.”
Another panel in the Fourth Circuit criticized the use of video in Immigration Court
proceedings because of the difficulty in evaluating the immigrant’s credibility, noting that
an Immigration Judge’s “ability to judge a petitioner’s credibility and demeanor plays a
pivotal role in an asylum determination; an unfavorable credibility determination is likely
to be fatal to such a claim.”

View of an Immigration Court video hearing monitor and camera from the bench.

55

Reimagining the
Immigration Court
Assembly Line:
Reducing
Videoconferencing
Unfairness
56

Conducting a hearing remotely, where the lawyers and the judge are in the courtroom
but the immigrant is miles away in detention, interferes with an immigrant’s right to
confer with counsel, to cross-examine witnesses, and to appear in one’s own case. This
is particularly true when the video and/or audio is of poor quality or is interrupted.
One longtime practitioner was blunt about the impact of video. When asked whether
videoconference hearings are of sufficient quality to ensure a fair proceeding, this attorney
from Houston responded: “Is this question a joke? Of course not.”
Unfortunately, there is nothing funny about videoconference hearings, during which
the subtle but critical cues of eye contact, body language and demeanor are lost,
perhaps along with the truth. Rather than looking the immigrant directly in the eye,
an Immigration Judge using videoconferencing sees a tiny, blurred image on television.
Perhaps, too, judges find it easier to order the deportation of someone who appears only
on screen, rather than in the flesh before them. This low-tech virtual reality dehumanizes
immigrants, who usually have no alternative but to submit to trial by videoconference.
To make matters worse, repeated technological glitches with the video and audio feeds
interrupt hearings, and sometimes make it impossible for immigrants to participate fully
in their own hearings. Our interviewees unanimously agreed that the problems associated
with trials by video are either not improved or even worse than in 2009.
Appleseed witnessed firsthand how trial by video denies even basic due process after visiting
the Arlington, Virginia Immigration Court. In one hearing, an officer at the detention
center hundreds of miles from the court positioned a Russian male in front of the video
camera—but the immigrant scheduled to appear was Latino. So poor was the television
image and sound that not even the immigrant’s family could tell that the wrong person
appeared before the Immigration
Judge until the very end of the
ten-minute proceeding. When
“The [immigrant] often looks awful
someone finally discovered the
via televideo. My detained clients
mistake, the detention officer
wear bright orange jumpsuits [and]
ushered the correct immigrant
are unable to make eye contact with
before the camera, only for the
myself or the Immigration Judge
Immigration Judge to summarize
… Clients who have scars or other
for the confused respondent what
injuries can not accurately show
had been determined in the man’s
them to the court. There is a few
“absence,” and the hearing ended.
seconds delay in the audio …if you
Even when the right immigrant
ask a client … about the death of
was in front of the camera, the
a loved one, they many not show
camera was positioned so far away
emotion until several seconds after
that it was difficult for courtroom
… and it comes across as insincere
observers to see and hear the
because it is not in real time.’”
immigrants clearly during multiple
–Practitioner in Florida
hearings
conducted
during
one Appleseed visit. After the
Immigration Judge finally asked a
detention officer to move the immigrants closer to the camera so that they would be easier
to hear, the officer re-positioned the immigrants in such a way that their heads were cut

out of the screen and the hearings continued
with the testimony of “headless” immigrants.
These problems are by no means new. A
2005 study by Chicago Appleseed and the
Legal Assistance Foundation of Metropolitan
Chicago of 110 master calendar hearings
conducted by video “observed deficiencies
related to access to counsel, presentation of
evidence, and interpretation.” Nearly half
the hearings observed had some problem
with the video. The study concluded that
“videoconferencing is a poor substitute for
in-person hearings.”

EOIR has never
investigated whether
video compromises
the fairness of a
hearing, though
studies have found
significant problems in
video hearings.

The increasing use of video hearings by EOIR and other federal agencies prompted the
Administrative Conference of the United States (ACUS), an independent federal agency
charged with improving federal agency procedures, to adopt recommendations and best
practices regarding the use of videoconferencing for administrative hearings in 2011.
In its Recommendation 2011-4, “Agency Use Of Video Hearings: Best Practices And
Possibilities For Expansion,” ACUS urged federal agencies to use videoconferencing where
efficient, but it cautioned that agencies should use video hearings only on a voluntary basis
and should evaluate the use of video “to make sure that the use is outcome-neutral (i.e.,
does not affect the decision rendered).” ACUS also recommended that agencies solicit
feedback and comments from users of videoconference hearings, including witnesses and
attorneys, perhaps through notice and comment rulemaking.
Despite its increasing reliance on video hearings, EOIR has never determined whether
it is outcome-neutral for the immigrants who appear by video. Even the most basic data
is lacking: EOIR does not track case results by mode of hearing, rendering the agency
incapable of assessing how video compromises the fairness of its hearings.
Our contention is principally that videoconferencing impairs the accuracy and fairness
of decisionmaking, but the expanded use of videoconferencing certainly also impairs
the legitimacy of the Immigration Courts. We urge below that videoconference
hearings should end unless and until EOIR determines how they can be used fairly.
As long as EOIR continues to rely on video hearings, it should immediately follow the
recommendations of ACUS. EOIR should conduct a comprehensive evaluation of its use
of videoconferencing to determine whether such hearings are indeed outcome-neutral,
using data and soliciting feedback from everyone involved in the system, including court
personnel, attorneys, and, most critically, immigrants and their families.

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2009 Recommendation: Return to in-person merits hearings.
2012 Status: With one exception in the Chicago Immigration Court, Appleseed found
that EOIR is increasing its reliance on videoconferencing, rather than trying to return to
in-person merits hearings.

» Action Items:
Reimagining the
Immigration Court
Assembly Line:

‹ EOIR:

Stop all video hearings until you know that video is not changing
outcomes.

‹ EOIR:

Adopt comprehensive regulations governing the use of video.

‹ EOIR:

Reducing
Videoconferencing
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Require Immigration Judges to document and report all video and audio
problems.

EOIR officials have repeatedly told us that the increasing use of videoconferencing in
immigration proceedings is “inevitable.” One experienced interviewee in New Jersey
noted that EOIR’s expansion of trial by video “is going to be one of the biggest problems
[immigrants], particularly detained [immigrants], face in the future.”
EOIR’s scheduling makes the use of videoconferencing coercive for detained immigrants.
Many immigrants in detention must choose between liberty and due process—they
can receive a trial by video far quicker than a live hearing. Even if that video hearing
is unfair, quicker resolution ensures that the immigrant will get out of detention one
way or the other rather than remain in immigration jail for months or even years while
waiting for an in-person merits hearing. Given the option of continued detention—often
tantamount to prison despite the nominally “civil” nature of immigration detention—it
is unsurprising that, according to one interviewee, trial by video now “is standard for
detained cases.” Another practitioner agreed, observing that even in those Immigration
Courts that tried to reduce the use of videoconferencing by sending Immigration Judges
to more remote detention centers previously served only by video, “rapidly increasing case
loads have forced the courts to go back to video hearings for many [immigrants].”
The Chicago Immigration Court serves as a notable exception to this trend. Interviewees
who have practiced in that court told us that the use of videoconferencing decreased
after the Chicago Immigration Court hired a new Immigration Judge to preside over
the detained docket on a part-time basis. The Chicago Immigration Court also began
rotating other Chicago Immigration Judges onto the detained docket for short-term
shifts. According to one interviewee, these rotating Immigration Judges are favorably
inclined to grant detained immigrants’ motions for in-person hearings at that court.
Unfortunately, the Chicago Immigration Court serves as a stark exception to EOIR’s
nationwide-wide expansion of trials by video. Disturbingly, even the new “model” civil
detention center in Kearnes County, Texas, which DHS touts as an immigrant-friendly
non-punitive setting, does not contain a courtroom. Thus, an immigrant in Kearnes
County may be treated to better conditions of confinement while in the United States,
but whether he remains in this country will depend on his ability to testify credibly by
video in a courtroom miles away to an Immigration Judge the immigrant will never seen
in person. This system of justice is an embarrassment, not a model.
The Chicago Immigration Court’s experience shows that reducing reliance on trial by
video is possible with modest administrative changes if leadership has the desire to force

a change. As an initial step, we urge EOIR to mandate an extension of the Chicago
Immigration Court reforms to all of its Immigration Courts. EOIR should ensure that
scheduling discrepancies between in-person hearings and trials by video do not coerce
immigrants into submitting to videoconferencing.
EOIR has justified its increasing use of videoconference hearings by pointing to its
resource constraints. This excuse is beside the point: no funding limitation can justify
the denial of basic due process. In some limited circumstances, videoconferencing can
save significant government resources and be used as a smart case management tool.
For instance, EOIR could use video for Master Calendar hearings where no substantive
testimony is likely to be taken.
EOIR has simply failed to reconcile its increased reliance on videoconferencing with basic
norms of due process, a damning lapse for any system of justice. EOIR has provided
Immigration Judges with only rudimentary guidance on videoconferencing, mostly limited
to technical advice on the operation of the equipment and the process of the hearing.
EOIR should adopt comprehensive regulations governing the use of videoconferencing
that protect due process, including binding restrictions barring its use in circumstances
such as asylum cases where credibility is the central determination. Appleseed also urges
EOIR to reverse its embrace of videoconferencing and to publicly disclose statistics
concerning the use of videoconferencing in its annual statistical yearbook. In addition to
the basic hearing information already collected, including the outcome of the hearing,
information should also be recorded on technical difficulties with equipment or other
problems encountered during videoconferencing, both in each case record—available
on appeal—as well as in the statistical yearbook. The burden is on EOIR to show that
videoconferencing is being used fairly. EOIR has not even tried to meet that burden, and
thus should end the use of video hearings until it does.

2009 Recommendation: Restore confidential attorney-client communications.
2012 Status: EOIR has made little progress toward guaranteeing confidential attorneyclient communications during video hearings.

» Action Items:
‹ EOIR:

Provide headsets for immigrants’ counsel to communicate with clients
appearing by video.

‹ Immigration

Judges: Provide time for confidential communications between

counsel and clients appearing by video.
Immigrants have a right to be represented by counsel in their proceedings (as long as they
can afford to pay or can find a pro bono lawyer). Videoconferencing interferes with this
basic (if limited) right by obstructing an immigrant’s ability to confer privately with his
or her lawyer, who is typically miles away in the courtroom during the video hearing.
Even more basically, the attorney can be hampered in her ability to help the client. As one
Chicago attorney put it mildly, “too many things get lost when you don’t have contact
with your client.” Given the limitations of video, an experienced immigration lawyer
on the East Coast said that she cautions her clients not to confer with her at all during
video hearings: “I advise clients not to talk to me at any time during the hearing [by
videoconference] and to assume everything that is said will be heard even if the camera

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Reimagining the
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breaks.” There are ways to allow confidential communication by video, but even these
methods have their limitations. One interviewee noted that currently “[c]onfidential
communication is only achieved by clearing the courtroom.” A New Jersey immigration
lawyer told us that clearing the courtroom is “impossible during master hearings.” In the
Chicago Immigration Court, where judges are often amenable to leaving the courtroom
to allow attorneys to confer in private with their clients, one practitioner told us that even
this is not an ideal solution: “as a practical matter, the videoconferencing machines are
really loud, so these ‘private conferences’ are clearly not confidential” because they can be
overheard.
Direct, confidential attorney-client communication is an essential element of due process,
no less so when the client and lawyer are separated by miles during videoconference
proceedings. EOIR must ensure that clients appearing by video are able to confer with
counsel, just as they could in a live proceeding. One way to achieve this is to introduce
headsets in all of its Immigration Courts for hearings conducted via videoconferencing,
which would allow lawyers to talk in the same low tones they would use when conferring
confidentially to a client in the courtroom. Absent such technology, EOIR should
amend the Immigration Court Practice Manual to require Immigration Judges and DHS
attorneys to provide appropriate time for confidential communications by video, and to
clear the courtroom during hearings at the reasonable request of an immigrant or counsel
so that they can confer in private.

2009 Recommendation: Provide technical training to Immigration Court staff.
2012 Status: Videoconferencing still suffers from a lack of training and the absence of fulltime technical support staff at the Immigration Courts.

» Action Items:
‹ EOIR:

Immediately hire and train staff on the use of video technology.

‹ EOIR:

Replace outdated video equipment.

Forcing an immigrant to testify remotely via quality videoconferencing equipment is
unfair, but this inequity is too often exacerbated by untrained users of the technology
in Immigration Courts and detention centers alike. Our interviewees broadly agree
that equipment problems plague videoconferencing, that technical training is deficient
at best, and that the absence of full-time technical support at the Immigration Courts
compounds these problems. “You’re lucky if the staff even knows how to operate the
equipment,” commented one Kansas City lawyer.
Appleseed’s observations of hearings in the Arlington, Virginia Immigration Court
brought home these shocking technological and training shortcomings, including the
cavalcade of “headless” immigrant hearings discussed above. During a separate visit
to the same Immigration Court, audio from three different detention facilities was
simultaneously broadcast into one courtroom throughout the morning’s proceedings,
filling the room with seemingly random, cacophonic voices. Another hearing was
delayed for ten minutes while a courtroom official worked with detention officers at
three detention facilities to address a problem with the sound equipment. Despite this
effort, the audio problems persisted throughout the remainder of the morning’s hearings.
Similarly, during a proceeding in the same courtroom a few weeks later, audio feedback

from the videoconferencing equipment made it difficult for everyone in the courtroom to
understand what the immigrants were saying. The problem became so pronounced that
a DHS Trial Attorney stopped in the middle of a hearing to attempt (unsuccessfully) to
address the problem. The presiding Immigration Judge later remarked that conducting a
hearing via videoconference “shouldn’t be this challenging.”
The Immigration Court staff also appeared wholly unequipped to address these technical
issues. Sometimes the problems were so bad that immigrants were unable to participate
fully and fairly in their own hearings. In one proceeding, for example, the video feed from
one of the detention facilities stopped working completely, and the immigrant’s counsel
was forced to waive the immigrant’s appearance during the remainder of the proceeding.
These technical difficulties were often exacerbated by human error. For example, detention
officers frequently brought the wrong immigrants into the videoconferencing cell, and in
at least one case the error went unnoticed until the end of the proceeding.
This sorry state of affairs diminishes the fairness of the proceedings, in some cases rising to a
Constitutional violation. EOIR should immediately train all relevant Immigration Court
and detention center staff in the use of the videoconference equipment. EOIR should
also increase the number of technical support staff available to address problems with
the equipment. Over time, EOIR should replace its existing outdated videoconference
equipment with high-quality, modern equipment.

2009 Recommendation: Provide the capability for real-time document
transmissions.
2012 Status: Even when Immigration Courts are equipped with technology that allows for
real-time document transmission, Immigration Judges rarely use the technology available
to them.

» Action Items:
‹ Immigration

Judges: Prohibit video hearings from commencing without
appropriate document transmission equipment and capabilities.

Immigrants appearing by videoconference often have no way during the hearing to
review courtroom documents or to provide documents to their attorneys. Our interviews
indicate that this capability still is not available in every courtroom, and, even when it
is, often sits unused because the court staff do not know how to operate it properly. The
lack of a capability for real-time document transmission—or the ability to use it—is
inexcusable when EOIR is racing to expand its reliance on videoconferencing.
We urge EOIR to equip all of its courtrooms with scanners or fax machines that allow
immigrants to review documents with their attorneys during hearings, and to train
Immigration Court and detention center staff in the proper use of these machines. No
video hearing should go forward without such capabilities.

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7| Improving the Reliability and Availability of Court Records
Immigration Court document and records processes and
procedures have improved since 2009, but are still unacceptably Report Card
archaic. In Assembly Line Injustice, we characterized these processes
as “more fitting for 1909 than 2009.” Although there have been 2 0 0 9 2 0 1 2
some improvements since we published Assembly Line Injustice—
F
Cmost notably in digital audio recording of hearings—Immigration
Court technology is only inching toward the latter part of the 20th
century. Moreover, the agencies have not addressed some problems that have low-tech
solutions—such as producing critical immigration files without requiring immigrants to
file a burdensome Freedom of Information Act (FOIA) request—creating unacceptable,
inexplicable, and inefficient hurdles for immigrants and their attorneys.

2009 Recommendation: Provide immediate access to records, filings and dockets
2012 Status: Our field data and research show halting progress has been made.

» Action Items:
‹ DHS: Give every immigrant his entire A-file (except classified information) at or

before the master calendar.
‹ Immigration

Judges: Make sure that immigrants have immediate access to all
relevant documents, with no limitations on copying.

‹ DOJ

and DHS: Eliminate all FOIA requirements for immigrants with cases in

Immigration Court.
Although an immigrant facing removal proceedings is unquestionably entitled to
unclassified records and documents pertaining to her admission or presence in the United
States, she may not access those records unless she submits a written FOIA request. In
Assembly Line Injustice, we noted that the government rejected less than one percent of
FOIA requests by immigrants to get their own case files, indicating that this laborious
formality is simply a waste of time. Despite the inefficiency and unfairness caused by the

63

FOIA requirement, DOJ and DHS continue to force immigrants seeking their case files
to jump through this unnecessary hoop.

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In 2009, Attorney General Holder issued new FOIA guidelines strongly encouraging all
federal agencies to make discretionary disclosures of information. As a result of this new
policy and other efforts, FOIA requests through the DOJ are fulfilled in relatively short
periods. Access to these files allows respondents to review records of past proceedings.
Still, our research shows that unnecessary obstacles continue to hinder access to court
records. One attorney from Chicago told us that it is easy to set up appointments with
the Immigration Court clerk to view court records, but another attorney who practices
in Chicago pointed out that the Court allows immigrants to copy only 5 pages per
appointment, a limitation found in other courts as well. Another attorney reported that
lack of access to files precluded his firm from screening potential clients’ cases to decide
whether to take a matter on a pro bono basis. These unnecessary restrictions are a waste
of time for immigrants and their attorneys and unacceptably increase the likelihood that
an immigrant will not receive a fair hearing.
DHS apparently has not gotten Attorney General Holder’s message: filing a FOIA request
through DHS continues to be an unacceptably arduous and long process. DHS delays are
particularly troublesome because DHS files are typically more critical to an immigrant’s
defense of removal: these files usually reflect every interaction the immigrant has had with
the immigration enforcement system, as well as any indication of the immigrant’s legal
status. Amazingly, unlike long-established practices in civil and criminal courts across
the United States, the rules in Immigration Court do not require that DHS produce the
documents in its files to an immigrant against whom it is prosecuting removal. The failure
to implement even the most basic document production requirements that underlie our
adversarial justice system indicates just how stacked the process is against immigrants,
and contributes to the perception of the Immigration Courts as illegitimate.
A recent U.S. Court of Appeals decision “opens a lot of doors,” according to one Chicago
practitioner, and raises the possibility that a subsequent suit could bring about an
injunction enjoining DHS from denying immigrants access to their own records. In Dent
v. Holder, the Ninth Circuit held that an immigrant who asks the government for help in
getting his A-file for use in a removal hearing should be given access to the file without
having to submit a FOIA request. The court noted, “It 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. That would unreasonably impute to Congress and [DOJ]
a Kafkaesque sense of humor about aliens’ rights.” The writing is on the wall: the FOIA
requirement needs to end.
Appleseed encourages DHS and DOJ to take initiative and eliminate the FOIA requirement
for all immigration documents requested by an immigrant in removal proceedings before
it is forced to do so by court order. Appleseed has provided draft language to DOJ and
DHS to help it revise its policies and procedures. We repeat our recommendation in
Assembly Line Injustice that the government give immigrants summoned to appear in
Immigration Court immediate access to their full case files, excluding only sensitive
government documents that would otherwise be properly withheld under FOIA rules.
Basic fairness requires no less.

2009 Recommendation: Create an electronic document filing system
2012 Status: Our field data and research show no progress has yet been made, but DOJ
officials have indicated that the implementation of eWorld is a major priority for 2012.

» Action Items:
‹ EOIR:

Prioritize the implementation of eWorld.

Since the publication of Assembly Line Injustice, EOIR has made no progress implementing
eWorld, its planned electronic document filing system, which would bring the courts in
line with other courts around the country. EOIR has indicated that the implementation
of eWorld is a top priority for 2012. This is a promising development, as a filing system
is desperately needed. Immigrants who are represented tend to change lawyers frequently,
and an electronic system would assist lawyers in obtaining information about their
clients. As one practitioner told us, “EOIR is in the Dark Ages when it comes to resources
online.”
The difficulty of obtaining important court documents causes individuals to miss court
dates, forces lawyers to represent clients without adequate preparation, and can even
result in deportation orders being issued simply because immigrants are not properly
informed about their court proceedings. Immigration Court databases are often not
updated with new information provided by immigrants’ counsel, resulting in notices
being sent to wrong addresses. We also heard reports that the court’s phone notification
system sometimes provides parties with the incorrect dates and times for hearings.
This planned transition from paper to electronic records should improve the efficiency of
Immigration Court proceedings by, among other things, allowing data from electronically
filed documents to be automatically uploaded to EOIR’s database and making Records of
Proceedings immediately accessible to its staff. Appleseed encourages EOIR to continue
to push for funding and rapid implementation of electronic filing. The efficiency and
credibility of the Immigration Courts will only be enhanced by this development.

2009 Recommendation: Continue the installation of digital recording systems and
provide copies of recordings of Immigration Court hearings.
2012 Status: Our field data and research show significant achievements with some room
for improvement.

» Action Items:
‹ Immigration

Judges: Provide a copy of the digital recording to the immigrant at

the end of each hearing.
Appleseed congratulates EOIR for completing
the installation of its Digital Audio Recording
(DAR) system in August 2010. DAR is now
available in every Immigration Courtroom
nationwide. In addition, in 2009 EOIR
announced it had eliminated the backlog of
hearing tapes and maintained a five-day turnaround for transcriptions.

EOIR has
substantially
upgraded the
Immigration Court
recording System.

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Reimagining the
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Despite these wonderful achievements, many interviewees have never listened to a digital
recording of a proceeding. Amazingly, some of our interviewees were not aware that
transcripts are available or that DAR has been implemented. In Assembly Line Injustice, we
suggested that EOIR should automatically provide a digital copy of the recording to each
immigrant at the conclusion of his or her hearing. Implementing this recommendation
would not only increase immigrants’ access to hearing recordings and eliminate the use of
court resources to search for and produce these records at a later time, but it would also
serve to publicize DAR and its benefits. Alternatively, EOIR should publicize the DAR
system and its availability in the Immigration Courts, at detention centers, on its website,
and in its literature and notices.

8|Helping the Unrepresented
Unrepresented immigrants continue to fill the Immigration
Court system, delaying proceedings and resulting in unfair Report Card
outcomes and foregone claims for relief. In fiscal year 2011,
49  percent of respondents—more than 148,000 people—were 2 0 0 9 2 0 1 2
unrepresented and forced to litigate life-altering issues without
F
Ccounsel. EOIR acknowledges that unrepresented respondents are
“of great concern” and our interviewees consistently told us that
unrepresented respondents face an all-but-impossible task. Attorneys in the field told
us that immigration law is so complicated that non-immigration lawyers would find it
difficult to defend themselves, leaving little hope for an unsophisticated immigrant with
a limited grasp of English. At the same time, we heard that attorneys are less able to
represent immigrants housed in remote detention centers due to the constraints of time
and distance, a problem exacerbated by the difficulties in gaining access to the clients and
obtaining documents.
One interviewee characterized the problem of unrepresented respondents—and the dearth
of attorneys willing or able to represent them pro bono—as the largest problem facing
the Immigration Courts today. Other interviewees offered hair-raising stories of injustice,
including at least one case in which an unrepresented individual was deported under the
wrong name simply because the judge did not have the time or patience to listen and
understand what the respondent was trying to explain. While sympathetic Immigration
Judges often allow respondents extra time to find a lawyer, these continuances only slow
down the system, increase time in detention, and by themselves do little to end the crisis
of unrepresented litigants in Immigration Court.
Our court observers witnessed unrepresented respondents suffering quick hearings
consisting of terse colloquies and minimal translations. The majority of respondents were
unrepresented and the disparity between their cases and those with counsel was clear.
Unlike those who had lawyers, unrepresented immigrants had no arguments made on
their behalf, requested bond but never had it granted, and did not request (and thus

67

Fighting Immigration Fraud

Reimagining the
Immigration Court
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Helping the
Unrepresented

For many immigrants, even legal representation isn’t what it seems to
be. Unfortunately, the immigration bar is not only plagued by too many
incompetent lawyers, but also by “notarios,” who pose as immigration
lawyers or accredited representatives. In 2011, DOJ announced a new
multi-agency effort to combat immigration scams involving notarios and
other unauthorized immigration practitioners. With DHS and the Federal
Trade Commission, this important DOJ initiative focuses on enforcement,
education and collaboration to protect vulnerable immigrants from
these scammers. EOIR now requires Immigration Courts to distribute to
all respondents a helpful flyer that explains who is qualified to represent
individuals in Immigration Court.

68
did not obtain) asylum. Apart from those atypical but exemplary Immigration Judges in
some cities who made a strong effort to assist unrepresented immigrants, our interviewees
have seen little or no progress with respect to how unrepresented respondents are treated
by the Immigration Court system.
EOIR needs to treat the fact that so many immigrants are unrepresented in Immigration
Court like the crisis that it is. In Assembly Line Injustice, we published a number of
recommendations designed to help the unrepresented: those that maximize pro bono
representation and those that make it easier for the unrepresented to represent themselves.
EOIR has indeed made some progress on these recommendations, and reports that
additional efforts to improve access to counsel are ongoing, but needs to undertake these
efforts with more urgency. The legitimacy of the Immigration Court system hangs in the
balance when so many litigants face important consequences without a lawyer or even a
basic understanding of the process they face.

2009 Recommendation: Ensure that the 2008 Pro Bono Guidelines are faithfully
implemented.
2012 Status: Legal Orientation Programs have expanded, but there are still not enough
pro bono attorneys available.

» Action Items:
‹ EOIR:

Expand pro bono referral programs in Immigration Courts.

‹ BIA: Reward pro bono counsel with oral argument, if requested.
‹ Private

Bar: provide more pro bono representation, particularly to detained
immigrants, children, and those with special vulnerabilities.

In Assembly Line Injustice, we identified the 2008 Chief Immigration Judge guidelines for
facilitating pro bono legal services as a useful list of steps that would improve the Immigration
Courts. Specifically, the guidelines sought to reduce the administrative burden on pro bono
counsel with a series of recommendations, including designating at least one judge in each
Immigration Court to work with local practitioners to facilitate pro bono representation;

increasing the flexibility of courtroom practices and scheduling for pro bono practitioners;
making greater use of pre-hearing statements and conferences to increase the efficiency of
pro bono representation; and providing training to pro bono lawyers. We noted, however,
that the status of the recommendations’ adoption was unclear, and suggested that EOIR
provide a timeline to Immigration Courts for full implementation.
Under the leadership of Steven Lang, the Program Director for Office of Legal Access
Programs (a position created in July 2011), EOIR has made some significant strides
in improving representation in Immigration Court, though much work remains to be
done. EOIR reports that representation in asylum cases has increased substantially, with
some courts reporting up to 90 percent of asylum applicants represented in contested
proceedings. This improvement, according to EOIR, is not due just to its own efforts, but
an increased focus on immigration representation by federal bench and the bar, including,
for example, Second Circuit Judge Robert A. Katzmann, who has for several years made a
strong push for pro bono immigration representation. EOIR has also reported increasing
rates of representation in the later stages of proceedings, though it acknowledges that the
proportion of detained immigrants with counsel remains unacceptably low.
EOIR’s “Legal Orientation and Pro Bono Program,” or “L-O-P-,” has had growing success
in reaching the unrepresented, and EOIR continues to expand the program, now located
in 27 sites across seven states. The LOP initiative uses representatives from nonprofit
organizations to provide detailed explanations to immigrants about court procedures and
other basic legal information. The program is typically comprised of three components:
(1) large, interactive, group orientations, which are open to questions, (2) individual
orientations, and (3) referral/self-help, where those with potential relief or who wish to
voluntarily depart or request removal are either referred to pro bono counsel or given
self-help materials and training. LOPs tend to focus on detained immigrants—25 of the
27 programs are based in detention centers—and EOIR reports that around 50 percent
of detained respondents in removal proceedings were served in some way by the program
in 2011. EOIR’s goal is to reach respondents prior to their first hearing and make them
aware of every legal option available.
In the past three years EOIR has also launched pilot programs in San Diego and Miami
to help refer non-detained immigrants to pro bono attorneys and provide information on
the legal process. In San Diego, if an immigrant appears in court without representation,
he or she is referred to LOP for a weekly orientation program that includes helpful
materials. In Miami, if an Immigration Judge sees an unrepresented individual who does
not appear to understand the proceedings due to mental competency, the judge directly
refers the individual to LOP and provides information on the local Catholic Charities
branch, which provides attorney referrals and follows-up with these individuals. AILA
has worked with at least one Immigration Court to establish a pro bono case placement
program, though one practitioner reports that this court has not publicized its efforts
because it is afraid that EOIR would think the Court is “biased” in favor of immigrants.
We encourage EOIR to encourage other courts to establish similar programs, and to
reassure judges that helping immigrants find counsel is not favoritism, but rather the fair
administration of justice.
Additionally, in the past two years EOIR has expanded the LOP initiative to serve children
in removal proceedings. The program is now in 13 locations to assist the custodians of

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children so they may better advise the children in their care. In 2012, EOIR also started the
process of reviewing its accreditation of non-lawyer Immigration Court representatives in
order to expand participation in the program and ensure that accredited representatives
are providing competent service to immigrants.

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At the BIA level, pro bono representation continues to be strong, as EOIR continues to
expand its effective program to obtain counsel in meritorious appellate cases. Those cases
would be even more attractive if the BIA expanded the opportunity for oral argument,
when requested by pro bono counsel. As discussed below, we encourage the BIA to
consider additional ways to expand pro bono representation.
Many of our interviewees agree that some of the 2008 Pro Bono Guidelines are being
partially implemented. Some courts seem more engaged in pro bono programs and
supportive of pro bono work, including allowing pro bono attorneys to appear first, before
paid counsel, at master calendar hearings calls. The perception among practitioners is that
most Immigration Judges respect pro bono attorneys and may give them the benefit of
the doubt, perhaps more so than paid counsel. In Chicago, for example, the Immigration
Court appointed an Immigration Judge to serve as that court’s pro bono liaison,
responsible for facilitating cooperation among DHS, public interest organizations, and
pro bono attorneys. Specifically, the pro bono liaison has worked with AILA and ICE to
(1) establish a “Know Your Rights” education initiative that is transmitted live to detained
immigrants using the Immigration Court’s videoconferencing technology equipment,
and (2) lay the groundwork for a pro bono program in which pro bono attorneys can
file limited appearances to represent detainees at bond hearings without obligating them
to represent the immigrant for the entirety of the Immigration Court proceeding. EOIR
reported that every court has a designated pro bono liaison, and EOIR conducts periodic
updates with the liaisons to discuss their role and best practices.
Unfortunately, in many areas implementation of pro bono reform is either underdeveloped
or unknown. We heard reports that many Immigration Courts lack a pro bono liaison
judge, despite the fact that a liaison has been assigned for each court, and that some
courts lack pro bono training. The vast majority of responders to our survey could not
identify their local pro bono liaison judges—they either believe there is no pro bono
liaison (32.5  percent) or they do not know whether there is a liaison (55  percent).
One interviewee from the Midwest went so far as to say that he had seen no effort by
EOIR or by the private bar to make pro bono resources available. Another respondent
thought that while the 2008 Pro Bono Guidelines are aspirational and represent the true
attitude of EOIR leadership, he noted that the guidelines lack specifics on procedural
accommodations and enforcement mechanisms.

2009 Recommendation: Use videoconferencing, even though flawed, to expand
representation to immigrants in remote areas.
2012 Status: The overwhelming majority of our field data show no progress. The court in
Arlington, Virginia, is an exception that could serve as model for other Immigration Courts.

» Action Items:
‹ EOIR:

Partner with the private bar to investigate ways to use videoconferencing
to expand pro bono representation.

In Assembly Line Injustice, we acknowledged that videoconferencing was here for the near
term anyway, no matter how flawed it may be. We recommended that videoconferencing
be harnessed to expand representation to unrepresented immigrants in remote areas. We
suggested that EOIR and DHS leverage their already-existing technology—and plan
future expansions of it—to connect unrepresented respondents in remote areas or in
far-flung detention facilities with willing and available pro bono attorneys, who are often
located in major cities. This recommendation is not being implemented to any significant
degree. We spoke to practitioners in large cities in the Midwest and on the East Coast, and
attorneys who work in smaller cities and remote areas across the U.S. All of them told us
the same thing: videoconferencing is not being used to help unrepresented respondents,
with one exception.
Two models in the Washington, D.C., area prove that video can be used to expand pro
bono representation. ICE recently provided video equipment to a local legal services
organization so that its staff and pro bono attorneys can talk directly with their clients in
a distant detention center. The Arlington, Virginia Immigration Court provides a “pro
bono room” where attorneys can talk with clients via videoconference, a facility that
allows attorneys to talk with their clients confidentially before, during and after hearings.
This facility is somewhat limited, however, as it does not allow for transmission of
documents and is not available outside of hearings. Our interviewees praised these efforts
and the impact they have had on pro bono representation in the area. EOIR reports that a
number of other courts are trying to initiate a similar program. We urge EOIR and DHS
to replicate and expand these successful programs across the country.

2009 Recommendation: Simplify the filing and pleading standards for
unrepresented immigrants.
2012 Status: Our field data primarily show no systemic progress, though the Kansas City
Immigration Court has simplified some filing and pleading standards for unrepresented
respondents.

» Action Items:
‹ EOIR:

Distribute the Kansas City Immigration Court’s materials nationally.

Our interviewees overwhelmingly told us that that burdensome, highly technical,
and arcane pleading and filing standards imposed by Immigration Courts around the
country have not been simplified or relaxed for unrepresented immigrants, and that
those unrepresented parties are being held to the same standards as members of the bar.
Our interviewees also overwhelmingly supported simplified standards, and one noted
that simplified pleading requirements would be especially helpful for unaccompanied
minors and respondents in detention centers, who are often forced to rely on each
other for information about immigration procedure. The practice seems to vary among
the Immigration Courts, but in many cases the courts are rejecting filings for minor
nonconformance. One Immigration Court in Texas is notorious for rejecting paperwork
from unrepresented respondents, and has sent filings back for offenses such as the
respondent’s putting the certificate of service on the second-to-last page instead of the
last page, as required under the rules. The problems are particularly acute if the litigant is
not filing in person.

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The Kansas City Immigration Court, though, has commendably embraced relaxed
standards for those respondents without attorneys. We urge EOIR to follow the successful
model and track record of the Kansas City Immigration Court and relax standards for
pleadings and filings by unrepresented immigrants nationwide. EOIR is not currently
working on standard forms, but notes that LOP providers do make such materials
available, including sample motions that are generic, brief, and easily understandable.
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2009 Recommendation: Upgrade the Immigration Court hotline.
2012 Status: Our field data show no progress.

» Action Items:
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‹ EOIR:

Ensure that the hotline is working at all times, and is a credible source of
useful information.

In Assembly Line Injustice, we recommended that EOIR upgrade the Immigration Court
hotline to provide basic “Know Your Rights” information and refer callers to immigration
legal services across the country. We also recommended that EOIR staff the hotline with
agents who provide friendly and competent customer service in multiple languages, make
the hotline accessible through detention center telephones, and publicize the hotline in
Immigration Courts and detention centers.
Some of our interviewees reported success with the existing hotline, but others reported it
has gotten worse or, in some cities, simply does not work. In at least one Midwestern city
and two California cities, attorneys and respondents cannot get through by phone unless
they are lucky enough to catch the receptionist when he/she is at his/her desk and not on
the phone. EOIR should make sure that the Immigration Court hotline is working at all
times, and is providing immigrants with sufficient information. Every immigrant should
easily be able to determine his status, the time and location of the next hearing date, and
sources for pro bono representation through the hotline. The hotline should be a credible
source of useful information to help unrepresented immigrants as much as possible.

2009 Recommendation: Produce a pamphlet explaining essential immigration law
and Immigration Court procedure
2012 Status: Our field data show some progress, with some self-help materials distributed
to Immigration Courts around April 2012.

» Action Items:
‹ Immigration

Courts: Provide space for self-help and other materials useful to
immigrants, including information on protecting assets and custodial rights
relating to their children.

In Assembly Line Injustice, we urged EOIR to create a simple pamphlet that would be
given to all unrepresented respondents and introduce them to the Immigration Court
and its hearing, legal structure, deadlines, and acronyms. The pamphlet would also
describe the roles of the Immigration Judges, Trial Attorneys, and private counsel. The
pamphlet should be available in every Immigration Court in multiple languages and
should describe available unrepresented resources. Our field data demonstrates that no
such pamphlet has been created, but that EOIR is close to finalizing helpful materials.

LOP providers are required to distribute self-help materials, and several providers make
materials available on their websites, including The Florence Project and The Lutheran
Immigration and Refugee Service. The Vera Institute maintains all self-help materials
and makes them available online to LOP providers. Additionally, the group orientation
sites also typically distribute educational materials. However, it seems that these materials
are either not available or not sufficiently publicized because many respondents reported
either not knowing whether materials are available (22 percent) or believing they were not
(24.4 percent). One respondent practicing in Pennsylvania reported the LOP program
provides education and materials to all detainees on the court docket, but that such
programs are not at each Immigration Court site.
Over the course of the past year, EOIR has been working with LOP providers to identify
the most requested self-help materials. EOIR reviewed and updated these materials in
conjunction with Immigration and Customs Enforcement (“ICE”), and sent them to
Immigration Courts in April 2012. Using the example of the Denver courts, EOIR is
encouraging all Immigration Courts to display a notice with the materials available upon
request. These materials should available on line.
EOIR should not stop with the distribution of these materials. Space should be provided
in every Immigration Court for materials distributed by non-governmental organizations
who assist immigrants. Appleseed, for example, has produced materials advising
immigrants on how to protect their assets and custodial rights if detained or deported. In
short, the Immigration Court should be a place where an immigrant feels he can get the
best and most useful information about the court process and other immigration issues.
In addition, many immigrants need information about how to protect their relationships
with their children. They need to know how to avoid being charged with neglect when
they are picked up and detained, and what their options are for keeping children—some
of whom may be US citizens—in the States if they leave, or bringing children to parents’
countries of origin if the parent is removed.
Moreover, many immigrants are not only concerned about the legal proceedings they
face, but they need legal advice as to how to protect assets they have acquired in the U.S.
Even if they have no right to stay in the U.S., they are entitled to keep their cars, money,
and other assets. The LOP program should provide information about protecting these
assets and the extent of the proceedings against them.

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STOP THE ASSEMBLY LINE:
Find Counsel for Unrepresented Immigrants
Immigration Judges, Chief Counsels, and the private bar need to develop
additional innovative pro bono models, like “attorney for the day” programs.
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Hold Immigration Judges accountable for reducing the number
of unrepresented immigrants on their dockets.
Ultimately, the problem of unrepresented immigrants in complex Immigration Court
hearings will not be eliminated until Congress sets up a program akin to the federal
public defenders in the criminal justice system. All observers agree that, perhaps with the
exception of certain vulnerable populations such as children, the chances for governmentfunded immigration counsel are slim, if not non-existent.
The lack of counsel in Immigration Court for so many immigrants is a crisis, and a
substantial threat to the legitimacy of the system. In the absence of a government-funded
defender program, Immigration Judges need to look for ways to reduce the number of
unrepresented immigrants on their dockets. Judges have a variety of tools at their disposal,
and every judge should be challenged to develop solutions to the crisis of unrepresented
immigrants. Only when each judge understands that it is his or her responsibility to
implement the various pro bono reforms will those reforms come to fruition. Too few
judges seem to think that they are allowed to persuade law firms to undertake cases pro
bono, much less establish immigration law clinics. Even fewer think it is within their role
to call a local counsel and ask the attorney to take on an immigrant’s case.
Some Immigration Courts have allowed creative programs to provide counsel in limited
yet important ways. For example, under the leadership of the law firm O’Melveny &
Myers and with the strong support of EOIR, at least six Immigration Courts across the
country have allowed pro bono attorneys to appear for immigrants only for purposes
of their bond hearings, which determine whether the immigrant must remain detained
while their case proceeds. This program not only gives the immigrant counsel at this one
critical juncture, but statistics show that immigrants who are not detained have a much
easier time finding counsel to represent them. While the general rule in Immigration
Court is that an appearance by an attorney is considered to be an appearance for all
matters, the Immigration Court Practice Manual gives Immigration Judges the authority
to allow this kind of limited scope representation.
Immigration Judges can build on this bond hearing model, looking to “attorney for a
day” models used in courts across the United States. Pro bono attorneys and accredited
representatives could be given space at the Immigration Court to meet with immigrants
immediately before their Master Calendar hearings and appear with them for this
hearing only. Immigrants would then get advice on how to plead to the charges in the
Notice to Appear and what remedies might be available to them, making these hearings
more efficient, and avoiding continuation of these hearings while the immigrant seeks
permanent counsel.
The ultimate goal should be universal access to counsel or accredited representatives for
immigrants, but the fact that this cannot be achieved in the foreseeable future should not

deter EOIR from forcing Immigration Judges to show movement toward that goal. Each
Immigration Judge should be held accountable for the unrepresented immigrants on that
judge’s docket. Working with private law firms, many of which take significant numbers
of asylum cases pro bono, Immigration Judges and Chief Counsel’s Offices need to find
creative ways to solve this crisis in representation.
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9|Getting It Right On Appeal

77

When an Immigration Judge gets it wrong, immigrants and the
government alike rely on the BIA to get it right. In Assembly Line Report Card
Injustice we reported that the BIA had received withering criticism
from federal circuit courts and our interviewees for failing in this 2 0 0 9 2 0 1 2
essential function. Most of our interviewees pointed to the havoc
D
Cwreaked by the 2002 “streamlining reforms”—which slashed the
size of the BIA, mandated review by only a single member with
minimal exceptions, and emphasized affirming the decisions of Immigration Judges
without explaining why (so called “affirmances without opinion” or “AWOs”)—as the
main reason for the BIA’s fall into disrepute. By replacing careful review with expediency,
the “streamlining reforms” severely affected the quality of BIA decisions, which in turn
led to an avalanche of appeals to the federal courts, from just 6 percent of BIA decisions
in fiscal year 2001, to 19 percent of BIA decisions just two years later in fiscal year 2003,
and to a high water mark of 33 percent in fiscal year 2006.
The BIA has made some progress in improving the quality of its decisions. Since 2006,
it has significantly reduced the percentage of its opinions that are appealed to the federal
circuit courts, as well as the percentage of its opinions that those courts reverse or remand:

Year

BIA Decisions Appealed
(percent)

BIA Decisions Reversed
(percent)

2006

33%

17.5%

2007

30%

15.3%

2008

30%

12.6%

2009

26%

11.2%

2010

25%

11.5%

2011

23%

12.8%

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Some interviewees confirmed the improvement in the BIA’s decisions. Practitioners
commented that in its more recent decisions the BIA provides some basis for formulating
appeals, more frequently overturns decisions by Immigration Judges, and gives more
direction to Immigration Judges. Accordingly, our interviewees believe that the BIA has
received less criticism from the appellate courts. On the other hand, other interviewees
cited continuing problems with the lack of precedential decisions, the brevity of
written opinions, and the BIA’s avoidance of difficult issues when deciding cases. Some
interviewees still believe that the BIA continues to simply “rubber stamp” Immigration
Judges decisions, rather than function as an effective appellate body.
We applaud the BIA’s progress, though the BIA still can make significant improvements.
EOIR should revoke the “streamlining” rules, which remain in force even if not strictly
followed. Revocation will prevent any backsliding by the BIA in future administrations,
and will enhance the legitimacy of the BIA.

2009 Recommendation: Mandate the use of three-member panels except for
purely procedural issues or motions that do not decide the outcome of a case.
2012 Status: While the BIA’s use of three-member panels has inched higher, DOJ has
made no progress in mandating their use.

» Action Items:
‹ DOJ:

Require three-member review of all decisions, except those that are purely
procedural or not outcome-determinative.

The BIA has made marginal improvements in using three-member panels to decide cases.
According to EOIR, in FY 2008 only 6 percent of the BIA’s decisions were issued by
three-member panels. The use of three-member panels has improved to 8 percent in FY
2009, 10 percent in FY 2010 and 11 percent during the first nine months of FY 2011.
One interviewee observed that three-member panels are used only when the BIA views
the case as involving major decisions, explaining that his most recent three-member panel
decision occurred about a year ago in a case with a long decision and “a very complicated
legal issue.” Our interviewees universally believe that in order to improve the quality and
accuracy of decisions, three-member panels must be the rule rather than the exception.
In June 2008, DOJ proposed a rule to expand “the [BIA’s] authority to refer cases for threemember panel review for a small class of particularly complex cases involving complex
or unusual issues of law or fact.” This proposal, by its terms limited to a “small class” of
vaguely-defined cases, is insufficient to solve the problem of single member decisions.
Appleseed urges DOJ to propose and finalize a clear rule mandating three-member panel
review of all appeals, except those appeals regarding purely procedural issues or motions
that do not decide the outcome of a case.

2009 Recommendation: Eliminate the use of affirmances without opinion and
require reasoned opinions.
2012 Status: The BIA’s reliance on affirmances without opinion continues to wane, but
the rules mandating affirmances without opinion remain on the books.

» Action Items:
‹ DOJ:

Require the BIA to issue full written opinions in all cases, providing the
reasoning and addressing all relevant issues.

‹ DOJ: Increase the BIA to 25 members.
‹ Congress:

Reimagining the
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Approve funding for more staff attorneys to assist BIA members.

The BIA has nearly weaned itself off of AWOs, which may explain the decrease in appeals
and reversals of its decisions. In FY 2003, AWOs comprised 36  percent of the BIA’s
decisions, dropping to 5 percent in FY 2009, 3 percent in FY 2010 and 2 percent during
the first nine months of FY 2011. Appleseed applauds this reduction, and urges the BIA
to eliminate its use of AWOs entirely in the future. Nonetheless, this progress has been
made by disregarding the rules still in place that require the BIA to issue AWOs in most
instances. Accordingly, there is nothing to prevent a future administration from turning
the BIA back into an AWO factory. Appleseed urges DOJ to repeal this rule and amend
its regulations to prohibit the use of AWOs.
Simply eliminating AWOs is not enough. The BIA in some cases uses boilerplate or
perfunctory opinions written by single BIA members, which are little better than AWOs.
DOJ should also enact new regulations requiring that the BIA issue full written opinions
in all matters. While these opinions need not be lengthy in many cases, they should fully
discuss the relevant issues.
EOIR Director Juan Osuna has testified that the BIA should ideally contain 25 members
in order to handle its case load most efficiently. Accordingly, DOJ should promulgate a
new regulation to increase the size of the Board to 25, and the Attorney General should
appoint new members to fill all vacancies as soon as possible.
We urge EOIR to continue to seek funding for additional staff attorneys to help
BIA  members write full written opinions in all cases, and urge Congress to approve
these positions.

STOP THE ASSEMBLY LINE:
Make the BIA More Transparent
Publish more precedential decisions.
Make public all non-precedential “unpublished” decisions.
Hold more oral arguments.
Get out of Falls Church.
If the BIA suffers from a lack of legitimacy and respect, it is largely because of the way
this court has chosen to cloister itself in an office building in Falls Church, Virginia,
where it rarely sees practitioners, never encounters immigrants, and from which it only
sporadically issues public decisions. The BIA holds a position of trust, forming law that has

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79

profound implications for this country and its immigrants. The BIA can easily improve
its transparency and legitimacy by issuing more precedential decisions, posting its nonprecedential decisions, holding more oral arguments, and appearing in Immigration
Courts around the country.

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Precedential decisions are the way the BIA informs the law, yet it publishes them at
a shockingly low rate. EOIR Director Juan Osuna testified to the U.S. Senate that
precedential decisions are important to “provide guidance to immigration judges and
the parties in removal proceedings on the many complex legal issues that arise in these
proceedings.” Nonetheless, since 2007, the BIA has published fewer than 40 precedential
decisions each year among the more than 30,000 cases it decides annually. In other words,
fewer than one out of every 750 cases, or 0.13 percent, results in the publication of a
precedential decision. Aside from these limited number of precedential decisions, the BIA
does not publicly disclose any of its other 29,950-plus “unpublished” decisions it issues
each year. Accordingly, practitioners who want to know what the BIA is deciding resort to
emailing around redacted, unpublished opinions. The BIA Practice Manual specifically
states that these unpublished decisions are not to be considered as precedent, though they
may be referenced and attached to briefs.
Appleseed urges the BIA to increase its use of precedential decisions. Binding decisions
would settle the law, provide additional guidance to practitioners, and could therefore
reduce the number of appeals to the BIA. Of course, thousands of opinions will still
be non-precedential, but that does not mean that they should be hidden from public
view. The BIA should issue redacted versions of all its decisions, and publish them on
its website. If these decisions are made available to the public, no doubt an enterprising
company or practitioner will develop a database to make them searchable.
The other major problem with the BIA’s image is that it is entirely too hidden. It is true
that most appellate courts interact relatively infrequently with the public, but the BIA
brings judicial seclusion to an entirely new level. The Board has an extreme aversion
to oral argument, going to far to write in its Practice Manual that oral argument is
“rarely granted.” It has kept that promise: since the beginning of 2009, the BIA has
scheduled oral argument only 17 times, and actually held argument on just 9 occasions.
The BIA could improve its reputation and its legitimacy by offering more opportunities
for oral argument, where members would interact with practitioners and give them the
opportunity to determine first-hand what issues are meaningful to BIA members. The
BIA members might learn something, too.
In order to increase its visibility and its experience with a variety of practitioners, the BIA
should occasionally hold oral argument in Immigration Courts around the country. For
oral arguments held in Falls Church, the BIA should make sure that private attorneys
whose clients cannot afford the travel expense are given the option of declining oral
argument (without penalty) or appearing by video. In this context, the use of video is
appropriate, as appellate argument does not depend on credibility determinations or on
an appearance by the immigrant.
The BIA needs to recognize that it has an important leadership role in the immigration
justice system. A more visible and active BIA will bring more legitimacy and transparency
to the entire immigration system.

APPE N DIX

EXHIBIT 1:
Practitioner Survey
Summary
After we conducted interviews and research, we put our preliminary conclusions through
several tests. We met with government officials to discuss our findings and hear their
responses. We also reached out to the community of practitioners who advocate on behalf
of immigrants in Immigration Courts to ask their opinions on whether the problems
Appleseed identified in Assembly Line Injustice had improved or worsened.
We designed a survey with 20 questions and sent it to members of Detention Watch
Network; well-known legal services lawyers; immigration-law related non-governmental
organizations; law firm pro bono partners, counsel and coordinators, and friends of
Appleseed at more than 35 major law firms. Forty-nine practitioners from 15 states and
the District of Columbia, representing every region of the country, gave us opinions
on how EOIR and DHS had progressed in addressing the most significant problems
Appleseed identified in the Immigration Courts and collectively provided a wealth of
comments expounding on those opinions. This survey was not intended to be scientific—
for instance, we had no access to DHS Trial Attorneys and to practitioners who are not
part of the communities we identified above. Rather, we wanted to determine whether the
facts and opinions presented during our interviews were shared by others. The statistical
results therefore are not intended to be taken as precise measurements of opinion, but
rather they are meant to indicate those practitioners’ sense of how the Immigration Court
system is handling some of the most significant problems we have identified.
The survey respondents represent a range of immigration law experience: approximately
20  percent of the respondents had been practicing immigration law for more than
10 years; about 25  percent had been practicing between five and ten years; another
25 percent between two and five years; and the remaining 30 percent had been practicing
immigration law for less than two years. About half described their familiarity with
the Immigration Courts as “good” or “deep,” 27 percent described their familiarity as
“intermittent,” and the remaining 23 percent as “minimal.”

A-1

Reimagining the
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appendix
Exhibit 1

For each of the following questions, we first asked respondents to rate the accuracy of
the statement to indicate whether they (1) agreed, (2) disagreed, (3) neither agreed nor
disagreed, or (4) if their answer was more complicated. We also requested comments. We
varied the phrasing of the questions, sometimes stating a problem we had identified (i.e.,
asking whether the respondent agreed or disagreed with the statement of the problem),
sometimes phrasing it in the normative (e.g., asking people to agree or disagree that the
particular matter is being handled competently, fairly, efficiently, accurately, justly). We
then asked respondents to rate the relative improvement on the issue since 2009, when
Appleseed released Assembly Line Injustice: is the situation (1) worse, (2) same, (3) better,
or (4) better but still a problem.
We found the results offered an interesting insight to what some practitioners are
experiencing in the field, below are the results by question. The states in which a
respondent has practiced and the years in practice are listed next to the comments.

A-2

Survey Results
1| Immigration Judges (IJs) seem well-trained and knowledgeable about the
relevant law.
Accuracy of
Statement

Improvement
since 2009

Agree

Disagree

Don’t Know

More
Complicated

54.8%

11.9%

7.1%

26.2%

Worse

Same

Better

Better, But Still
A Problem

9.1%

63.6%

12.1%

15.2%

Notable Comments
z

It varies so much from IJ to IJ. Some are great and some are terrible.
(TX; practicing 2-5 years)

z

I agree that they seem knowledgeable overall. Some are appallingly bad. These, however,
are the minority. Others, while knowledgeable still demonstrate a political bias rather than
engaging in a dispassionate examination of a case.
(PA, MD, NJ, NY, MA; practicing 10+ years)

z

The quality of judges varies wildly. Some are excellent and some are ridiculous.
(Los Angeles; practicing 2-5 years)

z

Newer appointees seem more well informed about process/procedure issues, though shakier
on how to incorporate experts and other supporting witnesses. A fair number of longer serving
IJs still preface many rulings with statements like “that may be what the manual says, but
that’s not how we do it in my courtroom.”
(NY, Los Angeles, San Francisco; practicing 5-10 years)

2| IJs fraternize with DHS trial attorneys in a way that leaves an impression of
bias in the courtroom.
Accuracy of
Statement

Improvement
since 2009

Agree

Disagree

Don’t Know

More
Complicated

41.9%

23.3%

18.6%

16.3%

Worse

Same

Better

Better, But Still
A Problem

7.1%

85.7

7.1%

0%

Notable Comments

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z

I have not seen such fraternization, but I have mainly appeared before an impartial,
committed, and kind immigration judge. (NJ; practicing less than 2 years)

appendix

z

It typically seems apparent to the client and to me that there are two teams in the courtroom
(1) the applicant, and (2) the judge and the TA. (Los Angeles; practicing 2-5 years)

Exhibit 1

z

This depends on the individual judge. It is not a problem with the majority of judges in South
Texas. (TX; practicing 10+ years)

A-3

z

This has been the situation in ~1/3 of our cases for as long as I can remember. It’s not
“every” (or even “most”) judges, but it’s still disturbingly prevalent.
(NY, Los Angeles, San Francisco; practicing 5-10 years)

3| In spite of the Morton Memo calling for prosecutorial discretion, DHS field
offices are not yet exercising prosecutorial discretion in any coherent fashion.
Accuracy of
Statement

Improvement
since 2009

Agree

Disagree

Don’t Know

More
Complicated

60.5%

7%

23.3%

9.3%

Worse

Same

Better

Better, But Still
A Problem

13.6%

36.4%

13.6

36.4%

Notable Comments
z

It’s a bit early to know. NY has just completed a review of some pending cases. One of the
biggest problems seems to be the one-time-take-it-or-leave-it approach which puts many
asylum seekers who may have difficult claims (for example because of a one year filing
deadline issue) in a really tight spot where they have to choose to pursue permanent relief
(but get deported if they lose) or choose the sure thing of admin closure, but likely with no
work authorization or assurances about the future. (NY, NJ; practicing 10+ years)

z

The implementation of this program is just beginning, but so far things do not look good
based on comments from the Office of Chief Counsel in court and anecdotal stories I’ve
heard from other lawyers. (TX; practicing 2-5 years)

z

We have explicitly asked for prosecutorial discretion in a number if matters and have not
received responses or acknowledgments from the court to that issue. From my end, hard
to see that there is any movement in the direction to increase the administrative closure of
matters. I feel like we have very little information about this, despite the Morton memos.
(NY; practicing 2-5 years)

4| Individual DHS trial attorneys (TAs) are not being assigned to specific cases
at the master calendar, but instead one case is still handled by several
different TAs at different hearings.
Accuracy of
Statement

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Improvement
since 2009

Agree

Disagree

Don’t Know

More
Complicated

66.7%

4.8%

21.4%

7.1%

Worse

Same

Better

Better, But Still
A Problem

7.7%

73.1%

0%

19.2%

Notable Comments

appendix
z

“Vertical prosecution” only happens between the last master hearing and the individual
hearing. Many different TAs appear at master calendar resets. (TX; practicing 2-5 years)

z

This assignment “system” is one of the more frustrating aspects of Immigration Court
cases. It effectively makes it impossible to work out a resolution on any issue before the
case goes to an individual hearing, because the individual attorneys see the case as “not
their problem.” The result is that in the vast majority of cases, respondent’s counsel has
to prepare to put on every issue at hearing, where an ability to conference the case in a
meaningful manner with a lawyer who has had the file for more than a day would simplify
many of the hearings. (NY, NJ, TX; practicing 10+ years)

z

The TA seems to constantly change, even at the very last minute in complicated cases. This
prevents counsel from going over important issues before hearings that could significantly
reduce the time in front of the judge. (Los Angeles, San Francisco; practicing 2-5 years)

Exhibit 1
A-4

5| I have difficulty getting in touch with a TA to discuss a client’s case before
the merits hearing.
Accuracy of
Statement

Improvement
since 2009

Agree

Disagree

Don’t Know

More
Complicated

71.4%

11.9%

9.5%

7.1%

Worse

Same

Better

Better, But Still
A Problem

3.3%

80%

6.7%

10%

Notable Comments
z

Some TAs are good, but most are not responsive. (NJ; practicing 2-5 years)

z

Because a specific trial attorney is usually not assigned until the matter is scheduled for a
merits hearing, it is difficult to discuss the case with anyone familiar with the file prior to the
week leading up to the merits hearing. (NY, PA, MD; practicing 2-5 years)

z

It is difficult to determine who is assigned, first. After the assignment, TA’s are often unwilling
to discuss the case because they do not have the file in front of them until just before the
hearing, they claim not to have received my documents served on the office because of mail
room issues, or they are unsure that they will even be covering the case.
(LA; practicing 2-5 years)

6| Pre-hearing conferences are not being used as a tool to expedite cases.
Accuracy of
Statement

Improvement
since 2009

Agree

Disagree

Don’t Know

More
Complicated

59.5%

7.1%

31%

2.4%

Worse

Same

Better

Better, But Still
A Problem

11.5%

84.6%

0%

3.8%

Notable Comments
z
z
z

Reimagining the
Immigration Court
Assembly Line

I have never heard of a pre-hearing conference in the immigration court context.
(TX; practicing 2-5 years)

appendix

Pre-hearing conferences are used, but only because we expend the extra effort to contact
the TAs on their terms and at their convenience. (NJ; practicing less than 2 years)

Exhibit 1

In two recent cases our attempt to have a pre-hearing conference was flatly refused.
(Los Angeles; practicing 2-5 years)

A-5

7| The DOJ Executive Office for Immigration Review (EOIR) does not provide
for full or simultaneous translation during proceedings so that non-English
speaking respondents can understand the entire proceeding.
Accuracy of
Statement

Improvement
since 2009

Agree

Disagree

Don’t Know

More
Complicated

51.2%

24.4%

14.6%

9.8%

Worse

Same

Better

Better, But Still
A Problem

7.4%

81.5%

7.4%

3.7%

Notable Comments
z

At a merits hearing I have always had translators provided. At masters where an interpreter
was needed, they put one on the phone. (PA, MD; practicing 10+ years)

z

There are translators in the courts, but they are often not very good. Their translation can be
intrusive and inaccurate. (NJ; practicing less than 2 years)

z

Cases involving Spanish speakers in LA, SF, and NY generally get well staffed by translators,
though ~25% of the time their translations are not entirely full/accurate. Cases for more
“exotic” languages, particularly African and Middle Eastern dialects are often re-calendared
due to lack of translators although frequently a fair amount of “business” transpires even
without aid of certified interpreters, leaving clients confused and distraught.
(Los Angeles, San Francisco, NY; practicing 5-10 years)

8| Immigration courts do not provide quality interpreters for proceedings.
Accuracy of
Statement

Improvement
since 2009

Reimagining the
Immigration Court
Assembly Line:

Disagree

Don’t Know

More
Complicated

22.5%

42.5%

12.5%

22.5%

Worse

Same

Better

Better, But Still
A Problem

0%

96.3%

0%

3.7%

Notable Comments
z

In my experience, sometimes the interpreters provided by the court are completely
inadequate and I have seen the cases where the interpreter was from a different dialect and
[as a result] the quality of the proceedings was compromised.
(NY, San Francisco; practicing 5-10 years)

z

Some interpreters do a poor job or speak the wrong dialect. (PA, VA; practicing 5-10 years)

z

Some interpreters are better than others--I would say for the most part that the quality of
Spanish interpretation is good but not excellent. (TX; practicing 2-5 years)

z

Most of the EOIR staff interpreters are good but there is a variance with the contract
interpreters that fly in from other parts of the country. (TX; practicing more than 10 years)

appendix
Exhibit 1
A-6

Agree

9| IJs are not ensuring that translators are being accurate or otherwise
appropriate (i.e. enforcing the prohibition on interpreters paraphrasing or
opining during translation or removing an interpreter who appears to be
hindering the respondent’s ability to testify fully and openly).
Accuracy of
Statement

Improvement
since 2009

Agree

Disagree

Don’t Know

More
Complicated

37.5%

17.5%

40%

5%

Worse

Same

Better

Better, But Still
A Problem

0%

95%

0%

5%

Notable Comments
z

I don’t know if the IJs are really paying attention to the translator in court. They are ignoring
them and move forward despite how hard it is for the translator to keep up.
(DC, MD, VA; practicing 2-5 years)

z

When clients have pointed out concerns during proceedings, IJ have instructed/allowed
correction. (PA, VA; practicing 5-10 years)

z

This month I witnessed a judge chastise an interpreter for doing a poor job, but the judge
did nothing to resolve the situation when the problem continued to occur. The applicant’s
testimony suffered significantly for it. (Los Angeles; practicing 2-5 years)

z

Paraphrasing is a big problem. But I’m not sure how the judge is supposed to ensure quality
of translation if the judge is not fluent in both languages. (TX; practicing 2-5 years)

10| I am aware of EOIR’s process and where to find the form to make complaints
about IJs, attorneys, or interpreters and feel comfortable making complaints
without jeopardizing my client’s interests.
Accuracy of
Statement

Improvement
since 2009

Agree

Disagree

Don’t Know

More
Complicated

12.2%

63.4%

19.5%

4.9%

Worse

Same

Better

Better, But Still
A Problem

4.3%

95.7%

0%

0%

Notable Comments
z
z

appendix

I didn’t know this was even an option, and definitely would be hesitant to use it, in any
case. (Chicago; practicing 2-5 years)
I do not feel comfortable making a complaint about IJs. I fear it will come back and haunt
my other clients. I have witnessed things that I do not feel were appropriate but did not
know what to do about it. (PA; practicing 10+ years)

z

I think it is always a concern that a complaint may jeopardize a case.
(NY; practicing less than 2 years)

z

A complaint against an IJ would likely be professional suicide in our immigration court, and
would almost certainly disadvantage our clients.
(Mid-South Region (New Orleans Field Office), Memphis, San Francisco; practicing less
than 2 years)

11| The FOIA process limits my ability to gain access to my client’s A-File and
other documents in a timely manner.
Accuracy of
Statement

Improvement
since 2009

Reimagining the
Immigration Court
Assembly Line

Agree

Disagree

Don’t Know

More
Complicated

76.2%

11.9%

9.5%

2.4%

Worse

Same

Better

Better, But Still
A Problem

28.6%

57.1%

0%

14.3%

Notable Comments
z

It would be much easier to request documents directly from trial counsel, but they refuse to
give any documents other than the Notice to Appear. (TX; practicing 2-5 years)

z

In my experience it has taken 2-3 months to get FOIA requests back. For some cases this is
timely, but for some it is not. (NY; practicing 2-5 years)

z

The FOIA expedited process is a joke. FOIA CD(s) still take several months, and that proves
extremely difficult when you are representing a detained client.
(San Francisco; practicing 10+ years)

z

The delay in receiving responses to FOIA requests often defeats the purpose of the request.
(Los Angeles; practicing 2-5 years)

Exhibit 1
A-7

12| Videoconference hearings are of sufficient quality to ensure a fair proceeding.
Accuracy of
Statement

Improvement
since 2009

Reimagining the
Immigration Court
Assembly Line:

A-8

Disagree

Don’t Know

More
Complicated

2.4%

48.8%

46.3%

2.4%

Worse

Same

Better

Better, But Still
A Problem

26.1%

73.9%

0%

0%

Notable Comments
z

Videoconferencing is used with increasing frequency in NJ, and it undermines confidential
lawyer-client communication and otherwise fails to meet basic due process standards.
(NJ; practicing less than 2 years)

z

Is this question a joke? Of course not. (TX; practicing 10+ years)

z

Video hinders the IJ’s ability to assess meaningfully the client. It also gives the client the
impression that he is not being heard. Where the client is far away from both counsel and
the court, and counsel is not in the room with the client to confer, there is a deficiency in
counsel’s ability to effectively represent the client. (NY, NJ, TX; practicing 10+ years)

appendix
Exhibit 1

Agree

13| I cannot confidentially confer with my clients during videoconference hearings.
Accuracy of
Statement

Improvement
since 2009

Agree

Disagree

Don’t Know

More
Complicated

43.6%

2.6%

51.3%

2.6%

Worse

Same

Better

Better, But Still
A Problem

22.2%

77.8%

0%

0%

Notable Comments
z

I advise clients not to talk to me at any time during the hearing and to assume everything
that is said will be heard even if the camera breaks. This is because it is so.
(PA, MD, NJ, NY, MA; practicing 10+ years)

z

I’ve always gone to the same location as the client--to avoid this problem.
(PA, VA; practicing 5-10 years)

z

Of course not. (TX; practicing 10+ years)

14| Real-time document transmission is rarely used during
videoconference hearings.
Accuracy of
Statement

Improvement
since 2009

Agree

Disagree

Don’t Know

More
Complicated

2%

7.9%

65.8%

2.6%

Worse

Same

Better

Better, But Still
A Problem

8.3%

91.7%

0%

0%

Notable Comments
z

Never used in any proceeding I have been involved with.
(PA, MD, NJ, NY, MA; practicing 10+ years)

z

Never. (TX; practicing 10+ years)

15| The Immigration Courts in which I practice lack an EOIR pro bono liaison.
(If so, please name court(s) in comments section.)
Accuracy of
Statement

Improvement
since 2009

Agree

Disagree

Don’t Know

More
Complicated

7.5%

32.5%

55%

5%

Worse

Same

Better

Better, But Still
A Problem

21.4%

64.3%

14.3%

0%

Notable Comments

Reimagining the
Immigration Court
Assembly Line

z

There is one but they have ceased the meetings or any initiative on the part of the court.
(TX; practicing 10+ years)

appendix

z

If there is one, I would like to meet them. I’m not aware of any such person. There are also
attorneys on the EOIR pro bono list that shouldn’t be there because they have horrible
reputations and/or charge regular fees. (FL; practicing less than 2 years)

Exhibit 1

z

If there is one, I do not know who it is. (Los Angeles; practicing 2-5 years)

z

Arlington and Baltimore both have a liaison.
(San Francisco, VA, MD; practicing less than 2 years)

16| The immigration court hotline often doesn’t work.
Accuracy of
Statement

Improvement
since 2009

Agree

Disagree

Don’t Know

More
Complicated

19.5%

34.1%

36.6%

9.8%

Worse

Same

Better

Better, But Still
A Problem

15.8%

73.7%

10.5%

0%

Notable Comments
z

I have had success with the hotline. (Los Angeles; practicing 2-5 years)

z

I think it works pretty well most of the time. One strange thing is that there does not seem
to be consistency about how withholding or deferral of removal is recorded. Sometimes for
clients with withholding it says “was granted relief” and sometimes “was ordered removed”
(both of which are true) but this inconsistency makes it hard to know what happened when
meeting with a prospective client. (NY, NJ; practicing 10+ years)

z

The court date is listed but the hotline has stopped listing the Judge, for the most part.
Because our assessment of a case depends on who the IJ is (another whole problem!), this
means we have to call the court and ask who the Judge is. This is a waste of both our time
and the court clerk’s time. They should start listing the judges again.
(NJ; practicing 2-5 years)

A-9

17| There are no EOIR-approved materials (i.e. brochures or pamphlets)
for respondents to learn about essential immigration law and
courtroom procedure.
Accuracy of
Statement

Reimagining the
Immigration Court
Assembly Line:

Improvement
since 2009

Agree

Disagree

Don’t Know

More
Complicated

41.9%

23.3%

18.6%

16.3%

Worse

Same

Better

Better, But Still
A Problem

4.5%

86.4%

0%

9.1%

Notable Comments

appendix
z

The Manual is useful, but doesn’t have a lot of information about courtroom procedures. Plus
all of the judges are so different so it’s a little difficult. (Los Angeles; practicing 2-5 years)

z

EOIR funds an LOP (Legal Orientation Program) program at the York Immigration Court.
This provides education and materials to all immigration detainees who appear on the
Immigration Court Docket. This program helps increase the detainees’ understanding of the
immigration court process. However, there are not LOP programs at each immigration court
site, and without this program, the rights of people in removal proceedings are not being
met. (PA, MD; practicing 2-5 years)

Exhibit 1
A-10

18| The BIA too frequently issues single-member opinions.
Accuracy of
Statement

Improvement
since 2009

Agree

Disagree

Don’t Know

More
Complicated

62.5%

5%

32.5%

0%

Worse

Same

Better

Better, But Still
A Problem

17.4%

73.9%

4.3%

4.3%

19| The infrequency of oral argument at the BIA is a problem.
Accuracy of
Statement

Improvement
since 2009

Agree

Disagree

Don’t Know

More
Complicated

56.1%

9.8%

31.7%

2.4%

Worse

Same

Better

Better, But Still
A Problem

9.5%

90.5%

0%

0%

20| The BIA does not issue enough precedential decisions (the recent average is
about 35 per year).
Accuracy of
Statement

Improvement
since 2009

Agree

Disagree

Don’t Know

More
Complicated

75%

5%

15%

5%

Worse

Same

Better

Better, But Still
A Problem

13%

78.3%

4.3%

4.3%

Notable Comments
z

z

It seems like they should issue more precedential decisions as the primary interpretive body
of a complex area of law, though I’m somewhat afraid to have them do so since so many of
their decisions are so terrible. Also it seems odd to me that so many of their precedential
decisions are on such esoteric state criminal law issues. By way of contrast, I’m aware of
only one precedential case dealing with the one year filing deadline for asylum, and, to a
large extent, federal courts are precluded from ruling on this issue, which leaves virtually no
guidance on exceptions. (NY, NJ; practicing 10+ years)
The way the BIA cherry-picks which opinions will become precedent fundamentally
undermines any appearance of fairness or adherence to precedent within EOIR. It is also
inefficient, as respondents frequently have to litigate issues fully at the [Immigration Court]
level which, but for the BIA’s refusal to publish, would resolve the issue definitively. However,
given the frequency of arbitrary, incoherent, and legally erroneous BIA decisions, greater
publication would likely be a bad thing for respondents.
(Mid-South Region (New Orleans Field Office), Memphis, San Francisco; practicing less
than 2 years)

Additional Comments
z “The

immigration court backlog is a HUGE problem for us. In NYC we’re
having individual hearings calendared for 2015. This backlog makes it virtually
impossible for us to place cases with pro bono lawyers who can’t reasonably guess
whether they’d be in a position to do a pro bono hearing in three or more years.”
(NY; practicing 10+ years)

z “As

I mentioned the list of free legal service providers needs to be regulated.
While there are several quality attorneys and non-profits currently on our
list, there are also several private attorneys that are incompetent and charge.
Detained immigrants are particularly vulnerable to these types because that are so
desperate for an attorney and often have no way to vet the attorneys on the list.”
(FL; practicing less than 2 years)

z “The wait for appeals at the BIA is a bit ridiculous. Also, the procedure for getting a

work permit is way too slow with inadequate customer service/support. Finally, the
agency’s failure to submit guidelines for waivers of the material support bar is very
frustrating.” (Chicago; practicing 2-5 years)
z “Judges and TAs need to be better informed about issues regarding unaccompanied

minors. This is particularly true for judges in adult detention facilities dealing
with minors who filed applications for asylum or SIJS while they were still

Reimagining the
Immigration Court
Assembly Line
appendix
Exhibit 1
A-11

minors, and need to be treated as minors with regard to these applications.”
(TX; practicing 2-5 years)
z “Mentally

incompetent respondents need appointed lawyers at York.” [The BIA’s
recent opinion in] Matter of M-A-M- is useless. (PA, VA; practicing 5-10 years)

z “These

Reimagining the
Immigration Court
Assembly Line:
appendix
Exhibit 1
A-12

issues are generally superficial and even if all corrected will do little to
rectify the systemic injustice and due process violations that EOIR perpetuates.”
(PA, NY; practicing 5-10 years)

z “Board members have written articles in EOIR publications that espouse and even

advocate a particular result in the law of cases that they themselves decide. If any
sitting federal judge did this (other, perhaps, than Posner), it would be grounds
for recusal. IJs and Board members should get out of the business of ruling from
the EOIR advisor if they wish to maintain any appearance of impartiality.”
(Mid-South Region (New Orleans Field Office), Memphis, San Francisco; practicing
less than 2 years)

EXHIBIT 2:

A-13

BIA Decisions vs. Federal Court Reversals (2006 – 2011)

Date

Number of
Decisions

Number of
Reversals

Reversal Rate
(percent)

BIA Precedent
Decisions

2006

5398

944

17.5%

2007

4932

753

15.3%

2008

4510

568

12.6%

Jan

375

28

6.9%

4

Feb

280

30

10.7%

4

Mar

521

47

9.0%

4

Apr

433

51

11.8%

3

May

311

67

21.5%

2

June

395

44

11.1%

5

July

590

60

10.2%

5

Aug

420

34

8.1%

0

Sep

325

48

14.8%

2

Oct

320

36

11.3%

5

Nov

282

20

7.1%

5

Dec

538

60

11.2%

2

TOTAL

4829

540

11.2%

33/36

2009

Number of
Decisions

Number of
Reversals

Reversal Rate
(percent)

BIA Precedent
Decisions

Jan

403

28

6.9%

4

Feb

417

39

9.4%

4

Mar

273

33

10.8%

1

Date
2010

Reimagining the
Immigration Court
Assembly Line:

Apr

309

48

15.5%

3

May

231

38

16.5%

3

appendix

June

447

58

13.0%

4

July

466

56

12.0%

5 (July/Aug)

Exhibit 2

Aug

299

41

13.7%

–

A-14

Sep

382

33

8.6%

6

Oct

390

33

8.5%

1

Nov

234

34

14.5%

2 (Nov/Dec)

Dec

166

25

15.1%

–

TOTAL

4050

466

11.5%

33/35

Jan

310

40

12.9%

0/not reported

Feb

228

28

12.3%

3

Mar

460

48

10.4%

2

Apr

337

39

11.6%

2

May

257

43

16.7%

10 (May/June)

June

378

66

16.7%

–

July

260

28

10.8%

3

Aug

232

29

12.5%

2

Sep

149

21

14.1%

2

Oct

184

26

14.1%

3

Nov

206

18

8.7%

4

Dec

122

13

10.7%

4

TOTAL

3123

399

12.8%

35

2011

Reimagining the
Immigration Court
Assembly Line
appendix

A-15

This report does not constitute legal advice and creates no attorney-client relationships.
Persons appearing before the Immigration Court are urged to find counsel and not rely on
this report as a substitute for representation. Moreover, while we have made every effort
to be clear about the timing and limits of our research, persons trying to understand the
immigration courts are reminded that the law, regulations and policies we discuss in this
report are continuously being updated and may vary in different jurisdictions.
Also, for those downloading this report via the web, be aware that any downloads may
contain viruses, though we know of none embedded in the report. We accept no responsibility
if your computer is affected by downloading this document.

Photo on cover and inside title page is from iStockphoto and is used for illustrative
purposes only.

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