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March 11, 2022 Ethics Column

Ethics and the Immigration Judge

By Marla N. Greenstein

As articles in this issue have highlighted, a fundamental concept underpinning Codes of Judicial Ethics is “the integrity and independence of the judiciary.” All administrative law judges have some limitations to their independence that judicial branch officers do not. However, the lack of any meaningful independence for immigration judges creates a uniquely challenging environment.

The Executive Office for Immigration Review has published an Ethics and Professionalism Guide for Immigration Judges (Jan. 2011). While acknowledging their status as employees of the Executive Office for Immigration Review, the ethics guide sets out standards that are familiar to all judges.

The ethics guide provides:

  • Professional Competence—“An Immigration Judge should be faithful to the law and maintain professional competence in it.”
  • Impartiality—“An Immigration Judge shall act impartially and shall not give preferential treatment to any organization or individual. . . .”
  • Appearance of Impropriety—“An Immigration Judge shall endeavor to avoid any actions that, in the judgment of a reasonable person with knowledge of the relevant facts, would create the appearance that he or she is violating the law or applicable ethical standards.”

Other provisions that parallel those in the American Bar Association (ABA) Model Code of Judicial Conduct include provisions that an immigration judge “should not be swayed by partisan interests or public clamor”; that the judge “should be patient, dignified, and courteous . . .”; and that the judge needs to avoid conflicts of interest in all judicial activities. And, at the end, the ethics guide includes an express prohibition on ex parte communications that parallels the Code of Judicial Conduct provisions.

Distinct differences from the ABA Model Code in the guidelines include an express permission for immigration judges to express opinions on political candidates and issues as well as the ability to be a candidate for public office in nonpartisan elections. Immigration judges are also permitted to contribute to political organizations and be active members of political parties.

The Churchill and Cole articles in this issue highlight the underlying tension between an immigration judiciary that complies with these standards of impartiality that we expect from all judges and the limitations of being employees of, essentially, a prosecutor’s office. This has been a challenge for administrative law judges in many different executive departments at the state level as well. Judges who are employed by the agency that they must, at times, rule against are also charged with maintaining impartiality and avoiding conflicts in every other way. At the state level, this challenge has led to a preference for a “central panel” system that avoids the direct basic conflict of being employed by one of the parties.

The role of the immigration judge is complicated by the political primacy of immigration issues throughout our nation’s history. Coupled with their role as employees of the Department of Justice, immigration judges are forced into a tension between their ethical duties as independent adjudicators and the efforts to control case outcomes by their employer. While all judges at times deal with cases of high community interest or controversy, the provisions of the Codes of Judicial Conduct support the independence of a judicial branch, protecting both the impartiality of the judge’s decision in the case and the integrity of the institution as a whole. Judges rely on the Code when declining to speak to a news reporter covering a case and when speaking to community groups about the work of the court. Judicial branch officers have the backing of an institution that is committed to the “independence, integrity and impartiality of the judiciary” (Canon 1, ABA Model Code of Judicial Conduct). A case can be made that immigration judges deserve the same foundational assurances.

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By Marla N. Greenstein

Marla N. Greenstein is the executive director of the Alaska Commission on Judicial Conduct. She is also a former chair of the ABA Judicial Division’s Lawyers Conference. She can be reached at [email protected].