AILA member Stacy Caplow wrote an article for the Spring 2022 edition of the AILA Law Journal entitled “The Sinking Immigration Court: Change Course, Save the Ship.” In this blog post she reflects on the topic and why readers should take heart given the recent shift in EOIR hiring. AILA members, don’t forget you have digital access to all Law Journal editions on aila.org!
For decades, the call for reform to the immigration court system has been loud and frequent. Whether the critique is based on experience from the inside or simply observations from the outside, no one thinks it’s working. Is there anything new to add to this chorus? I have always been convinced that the success of top-down improvements to existing systems, assuming there is any resolve to do that, depends on the ability to carry out those new policies effectively on the ground level. Believing this, I have tried to focus my wish list for adjudication reform on the day-to-day changes that could improve the fairness and efficiency of the process.
My AILA Law Journal essay points out a well-known fact: Individuals with a background in government, particularly from the ranks of immigration enforcement, the military, and prosecution, dominate appointments to the Immigration Court bench; oversight of that bench rests with the Department of Justice, which also manages the prosecutors. The opaqueness of the selection process makes it impossible to know why, leading to speculation that the selection scales are tilted against applicants whose experience is grounded in immigrant advocacy. Perhaps there is a hidden agenda that disfavors such candidates, or qualified immigration advocates simply see no point in applying only to be rejected.
While it’s provident to be cautious about overgeneralizing, the immigration court bench frequently has been a next step for career immigration enforcement-side attorneys, or, as many strongly feel, a payoff to ideological supporters. It is indisputable that immigrant advocates who strive to zealously represent their clients have a very different perspective on such important aspects of adjudication as corroboration, measures of credibility, and the challenges of presenting a legally persuasive claim. Their experience as respondents’ lawyers informs their judicial demeanor and approach to the difficult responsibilities of the job.
Maybe the Executive Office for Immigration Review (EOIR) has started to see the light. In the short time period between writing my essay and its publication, there have been some encouraging developments. A quiet, hopeful announcement appeared in the October 27, 2021 notice of newly appointed IJs: “EOIR recognizes that a diverse and inclusive bench reflects the public we serve, and the agency encourages qualified candidates from all backgrounds to join our corps of dedicated adjudicators.”
Most jaded advocates reading this probably had little faith that meaningful change would actually occur. But the most recently appointed group of immigration judges belies our cynicism and gives reason to be optimistic that significant, long-term change is in the air. Of the twenty-five Immigration Judges appointed on March 25, 2022, almost 50% (12) have extensive private immigration practice backgrounds or public interest immigration practice careers in organizations such as CAIR (DC), Sanctuary for Families (NYC), HIAS (PA), Immigrant Defenders Law Center (CA), Catholic Legal Services (Miami), Human Rights Institute at St. Thomas University College of Law (Miami), and International Refugee Assistance Project (NY). Only two new IJs worked as ICE Trial Attorneys and one at OIL. The balance had a range of experiences at administrative tribunals, as prosecutors, in other private practice settings, and in public defender services. Truly a sign the EOIR ship may be changing course.
In another positive development, in March 2022, the Office of the Inspector General of the Department of Justice issued a management advisory memo to the EOIR making recommendations regarding the hiring of IJs and BIA Board Members. These recommendations addressed necessary changes in the criteria for selection, how applications are evaluated, and how records are maintained about all stages of the process. EOIR responded promptly that the hiring process for Immigration Judges and Board Members is being redesigned. Stay tuned.
But there is reason to take heart that EOIR is making genuine promises to improve diversity, transparency and equity in its selection process. If they deliver—and the recent appointments have raised expectations—then the immigration adjudication process will be heading in a better direction. But the work is only beginning.
Both members and non-members can submit articles for publication in the AILA Law Journal. We have a call for papers out, due June 1, 2022.
AILA members interested in applying to become an immigration judge may find our webpage of interest here and, don’t forget the AILA Career Center is a great place to check out when considering a career change!