Immigration Judge Performance Quotas FOIA Request

The American Immigration Council and the American Immigration Lawyers Association filed a Freedom of Information Act (FOIA) request with the Executive Office for Immigration Review (EOIR)—the Department of Justice agency that houses the immigration courts—on December 13, 2017. The FOIA requests seek information about performance measures imposed on immigration judges, including any requirements that immigration judges complete a certain number of cases within designated time periods.

The FOIA requests seeks copies of final and draft collective bargaining agreements (CBA) between the National Association of Immigration Judges (NAIJ) and EOIR as well as documents that relate to the criteria for evaluating the performance standards of immigration judges. The FOIA request also asks for studies and reports related to immigration court operations.

In response to the request, EOIR produced several documents including a comprehensive report from Booz Allen Hamilton that investigated inefficient and ineffective court processes and practices. To ensure streamlined proceedings and due process, the report recommended that EOIR take the following steps:

• Develop a judicial performance review model that emphasizes fair process and judicial independence - not performance metrics. Performance reviews should be in line with a judicial performance review model that “emphasizes process over outcomes and places high priority on judicial integrity and independence.” (page 21).

• Provide better access to attorneys to help alleviate delays and inefficiencies in court processing, including expanding the Legal Orientation Program. “[P]ro se respondents often face difficulty representing themselves and may contribute to delays in court processing.” To overcome delays in court processing, DOJ should “consider expanding know your rights and legal representation programs, such as the Legal Orientation Program.” (page 24).

• Permit immigration judge's the time needed to “fully deliberate complicated issues that arise in a case” and to issue oral decisions. (page 25).

• Explore helpful procedures such as administrative closure to streamline caseloads. (page 26).

• Implement nation-wide standing operating procedures for interpretation in the courtroom with consideration of recommendations from interpreters (Pg. 25).

• Improve diversity in immigration judge hiring pools and outreach programs. Of current immigration judges, 41% previously worked for DHS and nearly 20% previously worked at other DOJ branches. (Pgs. 20-21).

• Use video conference (VTC) only for procedural matters. Poor video and sound quality with VTC can creates due process concerns. It also is difficult for judges to analyze eye contact, nonverbal forms of communication, and body language over VTC. (page 23).

EOIR also produced provisions of collective bargaining agreements, including those currently in effect. Article 22, for example, outlines the performance appraisals process for immigration judges. It was updated by EOIR and NAIJ on November 21, 2017, with an effective date of December 6, 2017.

On December 19, 2018, EOIR produced the October 2017 “EOIR’s Strategic Caseload Reduction Plan.” The 5-part plan provides a blueprint for overhauling the immigration court system under the auspices of resolving the immigration case backlog.  As noted by the American Immigration Lawyers Association, the effect of one of the suggestions - a quota system for completing immigration cases - is already widely felt. In addition to a 700 case requirement for immigration judges, judges are now subject to case tracking software. In addition, decisions from the Attorney General and EOIR policies have limited immigration judges’ independence to effectively to control their own dockets and address the backlog. These changes include limitations on judges’ ability to continue cases and the availability of administrative closure - an important docket management tool that allows a judge to temporarily take a case off the court docket. The changes outlined in the case management plan appear to reflect a desire to fast track deportation, not a desire to improve efficiencies in the courtroom.  

The Council and AILA continue to pursue documents responsive to the FOIA request and will update this page if additional documents are produced.