Thursday, August 10, 2006

Effort To Improve Immigration Judge's Performance Announced

On August 9, 2006, Attorney General Alberto Gonzales announced that an ongoing review of the performance of immigration judges and BIA members has led him to start implementing 22 measures.

According to Mr. Gonzales, the changes include: performance evaluations of judges, increased resources, improvements to recording and transcribing proceedings, and increased power to impose sanctions.

The outline by Mr. Gonzales is just the first step to seeing whether there will be changes and whether those changes will increase the level by which fair decisions are being made by immigration judges and BIA members. When any well-known group takes a large public relations hit because of poor performance, that group can make a public announcement about how it will attempt to improve its performance and make up for its mistakes. (Here, there is no announcement of fixing its past mistakes, just to start trying to lessen the errors in the future.) As with other groups, the public usually waits to see whether the ambition of improving service actually happens.

This is not the first time that the Attorney General heralded changes as improvements. For example, the AG changed the structure of the BIA and fired several BIA judges in a controversial change that the AG at the time hailed as streamlining. However, many critics immediately and continually since then criticized the change as hurting the quality of the decisions by the BIA, even though the AG hailed the changes as improvements.

So, based on experience, when the AG hails changes as improvements, people may be very cynical for good reason about whether things will actually improve.

A few interesting points are that Mr. Gonzales wants to increase the power of courts to issue sanctions for bad conduct in court. Today, the BIA has power to issue sanctions against bad conduct by immigration attorneys but for some reason has no power to issue sanctions of any kind against government attorneys, even for the same conduct. Time will tell about whether immigration judges will also have the power to issue sanctions against government attorneys for improper conduct.

People will also examine the new rule for sanctions very carefully to make sure that nobody can be penalized for raising well-founded, creative legal theories. This is very important for two big reasons: (1) there are many times when a diligent lawyer should raise arguments that an immigration judge would believe have no merit, such as when there is a question whether the immigration regulations violate Congress's laws, the Constitution, or international law and (2) it is unclear to what degree lawyers must raise futile arguments knowing that there is no chance the immigration judge would agree, because in appeals made months later, the government might argue that failure to raise it to the immigration judge means it cannot be raised in later appeals. (This is called the doctrine of exhausting administrative remedies.)

The issue of what questions must be raised to the immigration judge in order to be able to appeal is something that often changes slightly over time. Many lawyers prefer to play it safe and raise every issue rather than risk seeing the law change slightly and years later realize too late that some issues should have been raised to the immigration judge.


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