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Another Perspective on the Boston Immigration Court

by Dana Marks Keener

A recent editorial in a national newspaper advocates dismissing a Boston immigration judge accused of making an insensitive comment to a woman waiting for her asylum hearing. Several of the statements in it about immigration judges are misinformed. The National Association of Immigration Judges (NAIJ) offers the following comments. We have not discussed this with the judge in question and, like him, we cannot comment on a matter which is under investigation.

Every person who appears before any court deserves to be treated with respect and compassion. Those who appear in Immigration Court, as in other courts, are entitled to due process and to have their cases heard by neutral arbiters. Likewise, Immigration Judges, who are subject to the oversight of the United States Department of Justice's Office of Professional Responsibility and the ethics rules applicable to all attorneys employed by the Department, are entitled to due process in disciplinary proceedings. We voluntarily comply with the A.B.A.'s Model Code of Judicial Conduct. We can be disciplined or removed for good cause by our supervisors. Over the years, a few of the 225-plus immigration judges have been suspended without pay or removed permanently for proven misconduct. There is no question that immigration judges can and have been held accountable.

Immigration judges are civil servants appointed by the Attorney General. We do not have constitutional lifetime appointments. Because many of us do serve until retirement, we accumulate valuable experience and knowledge. If we were political appointees, each new administration could appoint many new judges, and shift interpretation of immigration laws from strict to lenient according to the political winds, and thereby lose the wisdom of experienced veterans.

We are deeply concerned by any perspective that reduces judicial performance to a numbers game, implying that a comparatively low asylum grant rate should be cause for firing a judge. In addition to the inherently misleading nature of computer-generated statistics, NAIJ believes that the independence of the Immigration Court depends on its being free from result-oriented oversight. Some judges have dockets which include many strong asylum cases, but others have more cases with old claims from countries where conditions have greatly improved; other reasons vary from city to city, depending on case assignments. If a judge wrongly denies asylum, the applicant can appeal to higher courts. Some judges grant a higher percentage of asylum claims than the supposed national average. Should they be fired also? What would we do if all judges had to match the "national average?" The correct standard is whether a judge renders decisions which are well-reasoned and in accord with controlling legal precedent, on a case-by-case basis.

Immigration judges are under intense and increasing scrutiny from within the Justice Department. We are expected to complete more cases more quickly with the same or fewer resources. We handle heavy caseloads and work long hours without overtime. In Boston, for example, a judge who retired two years ago has not been replaced. Instead, that judge's cases were eventually assigned to the remaining judges, who have been told to complete cases on increasingly strict deadlines. Many immigration judges do their own typing, copying and other office chores. We share very limited resources for law clerks to help research the law and changing country conditions abroad. Our annual conference, which provides legal training and education on cultural sensitivity in the courtroom, was canceled this year due to lack of funds.

If the media wants to improve the quality of asylum hearings, it should investigate and address these issues, rather than racing to judgment on an isolated incident. Immigration court cases involve true life and death issues; the applicants, their relatives and friends, and the public at large, all have an intense stake in the outcome. We ask you treat Immigration Judges with the same respect and compassion that you ask us to show the public, as we try to do under often difficult conditions. We urge that all involved be treated with due process and respect, and that the public and the press withhold judgment until the investigation is completed.

About The Author

Dana Marks Keener is President of the National Association of Immigration Judges.

The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.