Dear Colleagues,
October 1st marked a new and dark era as Immigration Judges. The Agency is now subjecting us to quotas and deadlines as part of our individual performance evaluations, something that is inherently in conflict with our oath of office(which is the very reason why Congress explicitly excluded ANY individual performance measures for Administrative Law Judges). NAIJ has largely concluded the bargaining with the Agency on “impact and implementation” of these quotas and deadlines and continues to express (to the Agency and the public) our strenuous disagreement with the concept of quotas and deadlines as a matter of principle. However, to the extent that we remain a part of the Department of Justice and are treated as DOJ attorneys (in spite of being judges in our duties and responsibilities), our legal recourse of action is confined to labor laws, which are designed for traditional labor/management relationships and do not deal with issues of judicial independence. Thus, unless and until the Agency takes an adverse action against a particular judge (or Congress steps in with the durable solution of removing the Immigration Court from the Justice Department), we cannot file any grievance or complaints (including the suggestion of several of our judges to file for intentional infliction of emotional distress, which appears to be prohibited by the Federal Torts Claims Act). Thus, we have spent many hours in the past months in bargaining and informal discussions to minimize the impact of this ill-conceived program. We have been able to help craft more favorable interpretations of what will satisfy the metrics, improved the content and design of the Dashboard to make it more user friendly, and been able to point out shortcomings and flaws which we still seek to improve or eliminate. The MOU you will see shortly has been negotiated as an adjunct to Article 22 of the Collective Bargaining Agreement which provides protections for judges in the performance evaluation process. We entered into the MOU in the hopes of improving the position of judges by clarifying that the quotas and deadlines do not stand alone, but must be read in conjunction with specific consideration of each judge’s docket and consistent with Article 22.3.h. We expect the MOU will help provide judges with a measure of protection and help reconcile the quotas and deadlines with the individual demands of our individual dockets and courts. Additionally, the MOU provides for a continuing forum for the NAIJ to raise concerns with the Agency about the operation of the Dashboard or application of performance measures, both on a general level and on behalf of any individual judge. So your continued feedback to NAIJ is a critical part of this process.
Meanwhile I cannot emphasize enough that your oath of office should be your guiding principle throughout these challenging times. As I have said many times before, so long as you put in an honest day’s work and stay true to your oath of office, we will stand by you 100% of the time. “Due process” is the beginning and the end of the conversation. Period. Full Stop.
Thank you for those of you who have been sharing with us your experiences with the Dashboard and your ACIJs regarding the CBA Article 22.3.h. Please keep them coming as we want to make sure that any problematic patterns or practices of the Agency are noted and resolved early.
We also understand that many of you are seeking guidance on how to best navigate this new system. We do have some suggestions for you which we plan to share in our upcoming Q&A sessions on the implementation of the Quotas and Deadlines. I have included a couple of attachments that may also be of help to you in identifying the data entry error or track the 22.3.h factors that your ACIJs should be considering. So please mark your calendars, and plan on joining us for at least one of the sessions.
Wednesday, October 10th 8:00 a.m. PT, 9:00 a.m. MT, 10:00 a.m. CT, 11:00 a.m. ET
Wednesday, October 10th 9:00 a.m. PT, 10:00 a.m. MT, 11:00 a.m. CT, 12:00 p.m. ET
Wednesday, October 10th, 10:00 a.m. PT, 11:00 a.m. MT, noon CT, 1:00 p.m. ET
Thursday, October 11th, 11:00 a.m. PT, noon MT, 1:00 p.m. CT, 2:00 p.m. ET
Thursday, October 11th, noon PT, 1:00 p.m. MT, 2:00 p.m. CT, 3:00 p.m. ET
The call-in information for each of the scheduled sessions is as follows: (605) 475-4001 & passcode: 765103#
If you have any questions in advance that you would like for us to address during a meeting, feel free to forward it to my attention.
Thank you for all of your hard work.
Ashley
The Honorable A. Ashley Tabaddor, President
National Association of Immigration Judges
213-534-4491 (direct office line)
BEST E-MAIL: ashleytabaddor@gmail.com
DISCLAIMER: The author is the President of the National Association of Immigration Judges. The views expressed here do not necessarily represent the official position of the United States Department of Justice, the Attorney General, or the Executive Office for Immigration Review. The views represent the author’s personal opinions, which were formed after extensive consultation with the membership of NAIJ.
P.S. Please let your fellow NAIJ members know about these call-in session. Should you hear of any NAIJ member who may not have received this email, please let me knowasap and feel free to forward to them as well. Thank you.
From: Ortiz-Ang, Susana (EOIR)
Sent: Monday, October 01, 2018 3:07 PM
To: All of Judges (EOIR) <All_of_Judges@EOIR.USDOJ.GOV>
Cc: Keller, Mary Beth (EOIR) <MaryBeth.Keller@EOIR.USDOJ.GOV>; Wilson, Donna L. (EOIR) <Donna.Wilson@EOIR.USDOJ.GOV>
Subject: New Performance Measures (On Behalf of Mary Beth Keller, Chief Immigration Judge)
Judges,
Please see the below and attached.
Today, the new performance measures, as incorporated in Element 3 of your Performance Work Plan, become effective. The new Element 3 is attached to this e-mail and will be appended to each of your PWPs. The implementation of these new performance measures is part of a larger effort to make changes across the Agency to better enable us to meet our mission, to fairly and expeditiously adjudicate immigration cases. You are and always have been a dedicated and professional corps, with the competence and integrity to render decisions that are both “timely and impartial,” as required by the regulations. Historically, IJs have been held accountable in performance Element 3 to make timely rulings and decisions as well as to manage calendars efficiently. These measures simply define these goals more specifically in the present day.
I wanted to emphasize a few important points that you also may have heard from your ACIJ during your court meetings:
-Decisions should not be made on individual matters based solely on the performance measures. We remain committed to ensuring due process in each case.
– I hope that each of you has taken an opportunity to review the IJ Performance Data Dashboard (“Dashboard”), which is linked to the OCIJ intranet page under “Quick Links.” Please keep in mind that the Dashboard is not your performance rating. It displays data from CASE as it relates to your progress towards meeting the established goals and benchmarks in Element 3 of the PWP. The new measures apply to your performance for the second year of this cycle, from Oct. 1, 2018 to September 30, 2019. Your overall performance rating will be determined at the end of the two-year rating cycle (ending September 30, 2019), considering your performance in all three elements of the PWP.
– The Dashboard is one day behind. Therefore today it shows data as of September 30, 2018. Tomorrow, it will “zero out,” and show data as of October 1. As of tomorrow, only actions you take from October 1 forward should appear on the Dashboard.
– In addition to the Definitions document that I circulated on September 10 (and attached again here), with the input of NAIJ, we have developed a Frequently Asked Questions (“FAQ”) document, which I have attached here as well. We continue to tweak the data captured in the Dashboard to ensure that it accurately reflects the Definitions document and the FAQ document. We encourage you to bring data issues to the attention of your ACIJ.
– Please carefully review not only the new PWP Element 3, but also Article 22 of the Collective Bargaining Agreement between the Agency and NAIJ. In particular, in Article 22.3.h., the Agency has agreed to take into account a number of factors that may affect an IJ’s ability to meet the performance standards, including factors not in control of the IJ.
– We have concluded our discussions with NAIJ, and in the near future, we will publish on the intranet the Memorandum of Understanding that both parties agreed to at the conclusion of bargaining. Please review this document carefully when it becomes available.
– We welcome your input throughout the year. We want to hear about the circumstances you feel are hindering your efforts to reach the goals and benchmarks. We also want to hear your suggestions for making the courts and our processes more efficient, and more generally how the courts can better meet our mission.
– If there is something systemic or frequently recurring that you believe is interfering with your ability to meet the measures, please raise your concern with your ACIJ.
– Please be patient, especially during the rollout and at the end of the first quarter, when numbers are likely to be low due to holidays and leave.
Thank you.
**********************************
So, Chief Immigration Judge Marybeth Keller says decisions shouldn’t be made based “solely on the performance measures.” In other words, performance measures can be a basis for decisions so long as the IJ doesn’t identify them as the “sole” basis.
There would be no need for “performance measures” at all unless those imposing them intended that they influence or control results. What kind of “performance measure” isn’t geared at influencing or shaping the “end product” of the “performance.” Or, perhaps the theory of DOJ/EOIR management is that IJs as a group are a bunch of lazy work shirkers who won’t put in a full day’s effort unless watched and threatened at all times with sophomoric “big brother type performance dashboards.”
Maybe that is the purpose of the “IJ Performance Data Dashboard.” This “Dashboard” is a remarkable achievement for an agency that still hasn’t been able to roll out a finalized version of an e-filing system. Clearly it’s a matter of “priorities;” fair adjudication and service to the public obviously aren’t among them!
The purpose of the Dashboard is appparently to insure that the stress levels build and that “judges” remain focused on achieving their “performance goals” (and hence keeping their jobs) rather than on the merits or justice in a particular case. Indeed, in a “real” court system judges would be encouraged to focus solely on providing fair and impartial adjudications in accordance with Due Process and the technology would be devoted exclusively to that end. “Production data,” while perhaps interesting from an intellectual or self-evaluation standpoint, actually has little or nothing to do with justice in a particular case.
Everyone who loses a case in this amazingly depressing “kangaroo court” system should file a petition for review citing the inherent Due Process flaw in having a “judge” who can’t possibly function as an “impartial” adjudicator as required both by the Constitution and by DOJ regulations. Maybe at some point the Article IIIs will fully understand the judicial farce in which they are complicit and act accordingly.
PWS
10-03-18