Trump Administration Creates Quota System for Immigration Judges

The Trump Administration recently announced that a quota system will be incorporated into the individual performance evaluations for all immigration judges to require them to process cases more quickly. Immigration judges are responsible for presiding over cases such as removal (i.e. deportation) and asylum proceedings.

This decision is expected to have an immediate negative impact on the already limited due process rights of those appearing before immigration courts. The new policy has been denounced strongly by a number of organizations, including the National Association of Immigration Judges (NAIJ) and the American Immigration Lawyers Association (AILA).

Individual Performance Evaluations

Until relatively recently, immigration judges were not subject to performance evaluations due to concerns that any type of evaluation could be used by supervisors to influence decisions improperly, thereby eroding judicial independence. In 2009, after assurances from the U.S. Department of Justice (DOJ) that quotas would not be part of the evaluation system, a new collective bargaining agreement (CBA) was accepted, allowing for a new evaluation system for immigration judges. This system was placed under the oversight of the Executive Office for Immigration Review (EOIR), a division of the DOJ.

In 2017, the EOIR unilaterally reopened the CBA with the NAIJ, the organization responsible for bargaining on behalf of the judges. The EOIR eliminated the provision of the CBA preventing numerical quotas from being used in evaluations, a move strongly opposed by the NAIJ. This opened the door for the recent announcement detailing the new quotas that have been imposed.

Stated Purpose of Quotas

Immigration courts have been widely considered the most underfunded and overstrained administrative courts in the United States for years, leaving a large backlog of cases. The sharp increase in deportation arrests under the Trump Administration already increased this backlog nearly 30 percent, by August of 2017. The implementation of the strict quota system is meant as a means of reducing the backlog without having to fund the systemic changes needed to address the underlying problems creating the backlog in the first place.

Quotas Threaten Judicial Independence

The primary concern over instituting a quota system is that immigration judges will invariably feel pressured to rush through cases, potentially impeding their ability to give careful consideration to the law and facts in each case.

The issue of impartiality will likely become highly apparent in judges deciding requests for continuances. Continuances are a primary tool used by immigration judges to help protect due process during removal proceedings. Most commonly, a continuance is requested in order to find counsel. Data shows detained immigrants who have legal counsel are ten times more likely to be granted asylum or other relief from the court. Forcing people to move forward without legal representation severely decreases their chances of receiving a fair day in court.

Continuances also are requested frequently to allow respondents the time to properly prepare their cases and secure evidence. Continuances are particularly important to recent arrivals, vulnerable populations (such as children), and non-English speakers, all of whom have significant difficulties navigating an incredibly complex immigration system.

How Quotas will be Used to Grade Immigration Judges

In order to earn a satisfactory grade, judges will be required to complete 700 cases or more per year. Judges who complete between 560 and 700 cases per year will be rated as “need improvement” and those reviewing fewer than 560 cases per year will be rated “unsatisfactory.” Currently, the average immigration judge completes 678 cases per year, meaning that the average judge would not meet the newly established standards.

Additional Benchmarks

These quotas are not the only quantitative requirements being implemented under the new standards. The new evaluation process requires that judges must rule the same day on nearly every plea by asylum seekers to pass an initial threshold of establishing “credible” or “reasonable” fear to earn a satisfactory mark. Judges will receive a “need improvement” rating for ruling the same day decisions in 80 to 99 percent of cases and will be graded as “unsatisfactory” for anything below 80 percent.

Conclusion

The imposition of quotas will have a negative impact on the judicial independence of immigration courts. By focusing on processing times and efficiency, the new system will favor the promotion and retention of judges who are less concerned with the due process protections of respondents than their peers. In the opinion of the immigration community, this will further degrade the administration of justice within the immigration court system.

Copyright © 2018, MURTHY LAW FIRM. All Rights Reserved