When President Trump issued his first management agenda last month, one of the three pillars was to improve the government’s use of data. The White House said federal agencies would accomplish this by “providing high quality and timely information to inform evidence-based decision making.”
In at least one case, the administration does not appear to be adhering to that standard.
Earlier this month, the Justice Department confirmed it would institute a performance evaluation system for immigration judges working under its Executive Office for Immigration Review that would require employees to meet certain quotas and deadlines for handling cases. The decision sparked outrage among the executive branch judges, as well immigration and legal experts, who said tying performance reviews to an expedited schedule of rulings would undermine judicial independence. Justice has defended the quotas, noting the growing backlog of nearly 700,000 outstanding cases.
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The new evaluations, however, appear to contradict a report that the Immigration Review office commissioned from Booz Allen Hamilton and received last year, but never released publicly. The report, obtained this week by the American Immigration Lawyers Association via a Freedom of Information Act request, advised the office to “make organizational changes” in order to “address the large volume of pending cases.” Those changes focused on boosting resources and increasing staffing levels, improving the courts’ use of technology and implementing a performance review system that “emphasizes process over outcomes and places high priority on judicial integrity and independence.” The report made no reference to quotas.
Ashley Tabaddor, president of the National Association of Immigration Judges, said her group had been trying unsuccessfully for months to obtain the report. She now laments not having the report to bolster the case she made against the quotas and deadlines when testifying before the Senate Judiciary Committee last week. Tabaddor told Government Executive that rather than relying on data and evidence, Justice invented an arbitrary quota of 700 cases per year without regard for an employee’s actual workload.
The annual figure is slightly more than the average number of cases immigration judges process per year, Tabaddor said, but that does not account for the disparity in the types of cases around the country. Some immigration courts are attached to a high-volume detention facility with cases easy to resolve, allowing judges to process as many as 1,200 per year. In other facilities in the middle of cities that more commonly deal with non-criminal immigrants with deep ties in the United States, judges have trouble cracking 300-400 cases per year.
“These numbers don’t make sense, they’re not connected to reality,” Tabaddor said. “You’re just making stuff up.”
She called the quota system, which is set to go in place on Oct. 1, a “crisis point.”
“Once you connect it to the judge’s livelihood,” she said, “you can no longer be an impartial judge in the case. Whether it’s in perception or in reality, it just ruins it.” She added Justice was making judges have a financial stake in every case: “You’re no longer a judge. You’re an interested party.”
NAIJ’s position has support not just from the Booz Allen Hamilton report, but the American Immigration Lawyers Association and the American Bar Association. Hilarie Bass, ABA’s president, told the Senate the system could actually exacerbate the backlog as quotas could lead to rushed decisions, which in turn could lead to more appeals and remands from higher courts back to the Executive Office for Immigration Review. Bass suggested the office adopt ABA’s own framework for judicial performance evaluation that focuses on integrity and independence, and cannot be used for judicial discipline.
“We encourage EOIR to abandon its myopic focus on numerical metrics and instead institute a judicial performance evaluation based on these models,” Bass said.
The specifics of the new system are unprecedented.
“We are not aware of any judge in the country having a quota going into performance evaluations,” Tabaddor said.
In his testimony before the Senate, James McHenry, director of the Immigration Review office, called the objections to the new system “uninformed and misplaced,” and said the measures will “help us identify and address poor-performing courts and ultimately reverse the recent downward trajectory of immigration judge productivity.” He cited the Merit Systems Protection Board and Social Security Administration as having similar systems in place.
MSPB and SSA employ administrative law judges, however, rather than the administrative judges at the Immigration Review office. While SSA judges, for example, do face quotas in the form of annual “expectations,” federal statute prohibits ALJs from receiving performance evaluations so their ability to meet those figures cannot directly impact any job review. Marilyn Zahm, president of the Association of Administrative Law Judges, said SSA has begun disciplining judges who fail to process at least 50 cases per month. AALJ has also challenged the legality of those quotas and said the agency has no basis upon which to enforce them.
Prior to taking over as head of the Executive Office of Immigration Review, McHenry served as an administrative law judge at SSA.
NAIJ is currently working to educate the public and lawmakers on the quotas issue in hopes Congress will intervene on the judges’ behalf. The group would like to see increased hiring, which Congress has authorized, more judicial autonomy in handling dockets, a migration to an electronic filing system and, as an ultimate goal, a relocation out of the Justice Department entirely. In the meantime, said Tabaddor, who has served as an immigration judge for more than 12 years, the new pressures are “killing morale” and judges are retiring at a higher rate.
If the quota system goes forward, she said, “I think you basically would destroy the immigration courts as you know them.”