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October 01, 2014

ABA emphasizes need for more immigration judges

The ABA reiterated its concerns last month about the critical need for more immigration judges and support staff so the immigration courts are able to provide full, fair and timely adjudications.

In a Sept. 9 letter to the Executive Office for Immigration Review (EOIR), the ABA responded to a request for comments on an interim rule that went into effect July 11 for designating one or more temporary immigration judges for renewable six-month terms.

The goal of the interim rule is to help EOIR manage the largest caseload the system has ever seen, which has grown over the past few months with a recent surge of unaccompanied children coming across the southwest border of the United States.

EOIR attributes the large caseload to “attrition in the immigration judge corps and continuing budgetary restrictions” and stated in its request that “allowing designation of temporary judges will provide flexibility in responding to the increased challenges facing the immigration courts.”

Currently, 250 immigration judges, who have been appointed by the attorney general, conduct administrative court proceedings in 59 immigration courts nationwide.

The interim rule authorizes the EOIR director to designate the following individuals as immigration judges with approval of the attorney general: former Board of Immigration Appeals members, former immigration judges, administrative law judges (ALJs) employed within or retired from EOIR, and ALJs from other executive branch agencies with the consent of their agencies. The director may also designate, with the attorney general’s approval, attorneys with at least 10 years of legal experience in the field of immigration law who are employed by the Department of Justice.

The ABA, which has no policy on the interim rule, offered assistance in expanding the number of adjudicators who may be eligible and willing to participate in the initiative and transmitted comments to EOIR that were developed by the National Conference of the Administrative Law Judiciary (NCALJ), one of six conferences of judges comprising the ABA’s Judicial Division.

The NCALJ comments included recommendations that: EOIR work through the Office of Personnel Management’s ALJ Program Office; federal Administrative Judges (AJs) and state ALJs be eligible as temporary judges; temporary judges be offered flexibility in their schedule to undertake the immigration cases; and the reimbursement process be clarified.

In addition, the comments recommended that inconsistencies between a statutory provision prohibiting an agency from rating the performance of an ALJ and the rule’s requirement of such a review be recognized and resolved.

In the ABA letter, Governmental Affairs Director Thomas M. Susman emphasized that the proposal for interim judges “does not alleviate the critical need to increase the number of permanent immigration judges and support staff to address the record caseload the courts have been experiencing prior to the current surge.” 

“We strongly urge EOIR expeditiously to fill immigration judge vacancies created by attrition and to request an appropriate number of additional permanent immigration judge teams required to alleviate the current case backlog,” Susman wrote.

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