Media outlets recently reported new requirements for immigration judges to meet case closing quotas as part of their performance review. When news of the potential quotas was leaked late last year, the National Association of Immigration Judges immediately condemned the idea.

“That is a huge, huge, huge encroachment on judicial independence…It’s trying to turn immigration judges into assembly-line workers,” Dana Leigh Marks, spokeswoman and former president of the association said to the Washington Post. She was also an immigration judge for more than 30 years.

The American Bar Association has decried evaluating individual judges based on case completion numbers, stating that “such quotas have serious implications for decisional independence.” Instead the ABA recommends establishing the immigration courts as Article 1 courts, independent of any executive agency and less susceptible to political currents. The New York City Bar Association has likewise proclaimed, “What the attorney general calls ‘efficiency’ can never be a substitute for fundamental rights.”

 

What do the performance review standards require?

Under the new standards, which are set to go into effect on Oct. 1, 2018, to receive a “satisfactory” review an immigration judge must:

• Complete 700 cases per year, and
• Maintain a remand rate (from the Board of Immigration Appeals and circuit courts) of fewer than 15 percent per year.

Additionally, for a “satisfactory” review an immigration judge must meet at least half of the following benchmarks:

• Issue decisions within three days of completing a merits hearing in 85 percent of non-status detained removal decisions
• Issue decisions within 10 days of completing a merits hearing in 85 percent of non-status non-detained removal decisions (unless completion is prohibited by statute, such as cancellation caps)
• Decide motions within 20 days of receipt in 85 percent of their cases
• Make bond decisions on the day of the hearing in 90 percent of cases
• Complete individual hearings on the initial scheduled hearing date in 95 percent of the cases (unless the Department of Homeland Security does not produce a detained respondent), and
• Issue decisions in 100 percent of cases on the day of the initial hearing in credible fear and reasonable fear reviews (unless DHS does not produce a detained respondent).

The memo includes further metrics, as expected, for judges who “need improvement” and whose work is “unsatisfactory” based on lower numbers and percentages of the above.

 

Why does the performance evaluation of judges matter to immigrants?

Immigration judges are part of the executive branch of government. Falling within the Department of Justice, all immigration judges ultimately report to Attorney General Jeff Sessions. Immigration is a hot-button political issue, and Sessions frequently gives speeches that are openly contemptuous of protections for asylum seekers and youthful border crossers. In one such speech, he recently referred to complex immigration laws as “loopholes” six times in a four-paragraph speech.

 

As anyone who has practiced in immigration court knows, each case is different and many cases require complex legal analysis and lengthy testimony. Case completion goals of 700 per year translates into completing – issuing a removal order or granting relief such as asylum, cancellation or adjustment – nearly three cases per day. (700 divided by 48, assuming four weeks’ vacation, divided by five = 2.92.); and that number does not account for the hours an immigration judge must spend conducting master calendar hearings, bond hearings, attending trainings and reviewing case files. It is hard to imagine how a judge could ever give fair consideration to three cases per day, while simultaneously preparing for upcoming hearings, writing decisions on complex cases and responding to motions (within newly proscribed time limits.) 

 

It seems clear that the only way to meet these quotas would be to greatly reduce the number of cases that are set for trial, and to increase removal orders. Sessions is currently considering two cases, in which he will issue precedential appellate decisions as to whether judges can control their own dockets through administrative closure of cases and under what circumstances judges can grant continuances for U.S. Citizenship and Immigration Services to adjudicate related applications for relief.

 

These attacks on the independence of the immigration courts, and the pressure being applied to judges to speed up deportations, make the work of attorneys and accredited representatives more important than ever. Earlier this week, in Sessions v. Dimaya, the Supreme Court reiterated “the grave nature of deportation, [which is] —a ‘drastic measure,’ often amounting to lifelong ‘banishment or exile.’” The attorney general should take these words to heart and ensure that whatever decision an immigration judge reaches in a particular case, he or she does so after careful consideration and judicious application of the law to the facts, and not because a timer has gone off in the courtroom.