Judge Burman appeared at a panel discussion at the Center for Immigration Studies (“CIS”). CIS Executive Director Mark Krikorian; Hon. Andrew Arthur, former U.S. Immigration Judge and CIS Resident Fellow; and former DOJ Civil Rights Division Official Hans von Spakovsky, currently Senior Legal Fellow at the Heritage Foundation were also on the panel entitled “Immigration Court Backlog Causes and Solutions” held at the National Press Club on Aug. 24, 2017.  Here’s a complete transcript furnished by CIS (with thanks to Nolan Rappaport who forwarded it to me).

Here’s the “meat” of Judge Burman’s remarks:

“First, the disclaimer, which is important so I don’t get fired. I’m speaking for the National Association of Immigration Judges, of which I am an elected officer. My opinions expressed will be my own opinions, informed by many discussions with our members in all parts of the country. I am not speaking on behalf of the Department of Justice, the Executive Office for Immigration Review, the chief judge, or anybody else in the government. That’s important.

What is the NAIJ, the National Association of Immigration Judges? We’re a strictly nonpartisan organization whose focus is fairness, due process, transparency for the public, and judicial independence. We’re opposed to interference by parties of both administrations with the proper and efficient administration of justice. We’ve had just as much trouble with Republican administrations as Democratic administrations.

It’s been my experience that the people at the top really don’t understand what we do, and consequently the decisions they make are not helpful. For example, the – well, let me backtrack a little bit and talk about our organization.

Immigration judges are the – are the basic trial judges that hear the cases. Above us is the Board of Immigration Appeals, who function as if they were an appellate court. We, since 1996, have been clearly designated as judges by Congress. We are in the statute. We have prescribed jurisdiction and powers. Congress even gave us contempt authority to be able to enforce our decisions. Unfortunately, no administration has seen fit to actually give us the contempt authority. They’ve never done the regulations. But it’s in the statute.

The Board of Immigration Appeals is not in the statute. It has no legal existence, really. It’s essentially an emanation of the attorney general’s limitless discretion over immigration law. The members of the Board of – Board of Immigration Appeals are – in some cases they’ve got some experience. Generally, they don’t have very much. They’re a combination of people who are well-respected in other parts of the Department of Justice and deserve a well-paid position. Very often they’re staff attorneys who have basically moved up to become board members, skipping the immigration judge process. Very few immigration judges have ever been made board members, and none of them were made board members because they had been immigration judges. If they were, it was largely a coincidence.

The administration of the Executive Office for Immigration Review in which we and the BIA are housed is basically an administrative agency. We are judges, but we don’t have a court. We operate in an administrative agency that’s a lot closer to the Department of Motor Vehicles than it is to a district court or even a bankruptcy court, an Article I type court.

Our supervisors – I’m not sure why judges need supervisors, but our supervisors are called assistant chief immigration judges. Some of them have some experience. Some of them have no experience not only as judges, but really as attorneys. They were staff attorneys working in the bowels of EOIR, and gradually became temporary board members, and then permanent board members.

Interestingly, when a Court of Appeals panel is short a judge, they bring up a district judge. EOIR used to do that, by bringing up an immigration judge to fill out a panel at the board. They don’t do that anymore. They appoint their staff attorneys as temporary board members, a fact that is very shocking when we tell it to federal judges. They can’t imagine that a panel would be one member short and they’d put their law clerk on the panel, but that’s what goes on.

The top three judges until recently – the chief judge and the two primary deputies – had no courtroom experience that I’m aware of. Two of them have gone on. Unfortunately, one of them has gone on to be a BIA member. The other retired.

Our direct supervisors are the assistant chief immigration judges. Some are in headquarters, and they generally have very little experience. Others are in the field, and they do have some experience – although, for example, the last two ACIJs – assistant chief immigration judges – who were appointed became judges in 2016. So they don’t have vast experience. Well, they may be fine people with other forms of experience, but this agency is not run by experienced judges, and I think it’s important to understand that.

There’s a severe misallocation of resources within EOIR. I think Congress probably has given us plenty of money, but we misuse it. In the past administration, the number of senior executive service – SES – officials has doubled. Maybe they needed some more administrative depth, although I doubt it. The assistant chief immigration judges are proliferating. I think there’s 22 of them now. These are people who may do some cases. Some of them do no cases. They generally don’t really move the ball when it comes to adjudicating cases. Somehow, the federal courts are able to function without all of these intermediaries and supervisory judges, and I think that we would function better without them as well.

To give you a few examples – I could give you thousands of examples, and if you want to stick around I’ll be happy to talk about it. Art was talking about the juvenile surge. I think it was approximately 50,000 juveniles came across the border. To appear to be tough, I guess, they were prioritized. The official line is, you know, we’re going to give them their asylum hearings immediately. I’m not sure what kind of asylum case that a 6-year-old might have, but we would hear the case and do it quickly, and then discourage people from coming to our country. But, in fact, what’s actually happened is the juvenile docket is basically a meet-and-greet. The judges are not – first of all, I’m not allowed to be a juvenile judge. The juvenile judges are carefully selected for people who get along well with children, I guess. (Laughter.) Really, what they do is they just – they see the kids periodically, and in the meantime the children are filing their asylum cases with the asylum office, where they’re applying for special immigrant juvenile status, various things. But judge time is being wasted on that.

Another example is the current surge. I have a really busy docket. Art was talking about cases being scheduled in 2021. The backlog for me is infinite. I cannot give you a merits hearing on my docket unless I take another case off. My docket is full through 2020, and I was instructed by my assistant chief immigration judge not to set any cases past 2020. So they’re just piling up in the ether somewhere.

As busy as I am, they send me to the border, but these border details are politically oriented. First of all, we probably could be doing them by tele-video. But assuming that they want to do them in person, you would think that they would only send the number of judges that are really needed. But, in fact, on my last detail of 10 business days, two-week detail, two days I had no cases scheduled at all. And back home having two cases off the docket, which almost never happens – or two days off the docket, which almost never happens, would be useful because I could work on motions and decisions. But when I’m in Jena, Louisiana, I can’t really work on my regular stuff. So I’m just reading email and hanging out there.

The reason for that is because there’s been no attempt to comply with the attorney general’s request that we rush judges to the border with, at the same time, making sure that there’s enough work or not to send more judges than is really necessary to do the work. I assume the people that run our agency just want to make the attorney general happy, and they send as many judges to the border as possible.

One particularly bizarre example was in San Antonio. The San Antonio judges were doing a detail to one of the outlying detention facilities by tele-video. But they wanted to rush judges to the border, so they assigned a bunch of judges in the country that had their own dockets to take over that docket by tele-video on one week’s notice. Well, one week’s notice meant that the judges in San Antonio couldn’t reset cases. You’ve got to give at least 10 days’ notice of a hearing by regulation. So we had judges taken away from their regular dockets to do that; judges who normally would have done that who already were on the border – San Antonio is pretty closer to the border – didn’t have anything to do.

Now, those may be extreme cases, but this happens all too much, and it’s because of political interference. And like I say, it’s got nothing to do with party. We’ve had the same problem with Democratic and Republican administrations. It comes from political decisions animating the process and people who don’t really understand what they’re managing, just attempting to placate the guy on the top. So that’s basically what’s been happening.

Am I over my 10 minutes here?

MR. KRIKORIAN: Yeah. Well, I mean, you’re right at it. If you’ve got a couple more minutes, that’s fine.

JUDGE BURMAN: Well, let me just go over some possible suggestions.

Let judges be judges – immigration judges that control their own courts and their own dockets. We should be able to supervise our own law clerks and our own legal assistants, which currently we don’t. And the contempt authority we were given in 1996 should eventually – should finally get some regulations to implement it.

EOIR’s overhead needs to be reduced. There’s too many positions at headquarters and too few positions in the field. When EOIR was originally set up, the idea was that each judge would need three legal assistants to docket the cases and find the files and make copies and all that. At one point last year we were down to less than one legal assistant per judge in Arlington, where I am, and in Los Angeles it was even worse. When you do that, the judge is looking for files, the judge is making copies, the judge doesn’t have the evidence that’s been filed. There’s nothing more annoying than to start a hearing and to find that evidence was filed that I don’t have. The case has to be continued. I have to have a chance to find the evidence and review it.

It would be nice if our management were more experienced than they are, or at least have some more courtroom experience.

We need an electronic filing system like all the other courts have. Fortunately, that’s one thing that Acting Director McHenry has said is his top priority, and I think that he will take care of that.

The BIA is a problem. The BIA doesn’t have the kind of expertise that the federal courts would defer to. Consequently, I think a lot of the bad appellate law that Art was referring to is caused by the fact that the BIA really doesn’t have any respect in the federal court system. They’re not immigration experts. They want their Chevron deference, but they are not getting it. They’re not getting it from the Court of Appeals. They’re not getting it from the Supreme Court, either.

The BIA also remands way too many cases. When we make a decision, we send it up to the BIA. We don’t really care what they do. They could affirm us. They could reverse us. We don’t want to see it back. We’ve got too much stuff to see them back. And this happens all the time. If they remand the case, they don’t ever have to take credit for the decision that they make. I assume that’s why they’re doing it, to try to make us do it.

We need a proper judicial disciplinary system. Starting in 2006, which is where the backlog problem began, the attorney general first of all subjected us to annual appraisals, evaluations, which previously OPM had waived due to our judicial function. So that’s a waste of time. Judges were punished for the – for things that are not punishment. Judges were punished because a Court of Appeals would say that you made a mistake or he was rude or – it’s just crazy. Judges were punished or could be punished for granting – for not granting continuances. No judge was ever punished for granting a continuance. So it’s no surprise that, as I pointed out, continuances have been granted at a much greater level – in fact, too great a level. But when in doubt, we continue now because if we don’t do that we’re subject to punishment, and nobody really wants that.

And finally, the ultimate solution, I think, is an Article I court like the bankruptcy court – a specialized court, could be in the judicial branch, could be in the executive branch – to give us independence, to ensure that we have judges and appellate judges who are appointed in a transparent way, being vetted by the private bar, the government, and anybody else.

And I’m way over my 10 minutes, so I’ll be – I’ll be sure to babble on later if you want me to. Thank you.”

****************************

Judge Arthur’s kind opening words about the late Juan Osuna were a nice touch. One of Juan’s great strengths as person, executive, judge, and teacher was his ability to maintain good friendships with and respect from folks with an assortment of ideas on immigration.

Judge Burman’s “no BS” insights are as timely as they are unusual. That’s because U.S. Immigration Judges are not encouraged to speak publicly and forthrightly about their jobs.

The Supervisory Judge and the EOIR Ethics Office must approve all public appearances by U.S. Immigration Judges including teaching and pro bono training. A precondition for receiving permission is that the judge adhere to the DOJ/EOIR “party line” and not say anything critical about the agency or colleagues. In other words, telling the truth is discouraged.

As a result, most Immigration Judges don’t bother to interact with the public except in their courtrooms. A small percentage of sitting judges do almost all of the outreach and public education for the Immigration Courts.

While EOIR Senior Executives and Supervisors often appear at “high profile events” or will agree to limited press interviews, they all too often have little if any grasp of what happens at the “retail level” in the Immigration Courts. Even when they do, they often appear to feel that their job security depends on making things sound much better than they really are or that progress is being made where actually regression is taking place.

In reality, the system functioned better in the 1990s than it does two decades later. Due Process protection for individuals — the sole mission of EOIR — has actually regressed in recent years as quality and fairness have taken a back seat to churning numbers, carrying out political priorities, not rocking the boat, and going along to get along. Such things are typical within government agency bureaucracies, but atypical among well-functioning court systems.

I once appeared on a panel with a U.S. District Judge. After hearing my elaborate, global disclaimer, he chuckled. Then he pointedly told the audience words to the effect of  “I’m here as a judge because you asked me, and I wanted to come. I didn’t tell the Chief Judge I was coming, and I wouldn’t dream of asking his or anyone else’s permission to speak my mind.”

I hope that everyone picked up Judge Burman’s point that “Aimless Docket Reshuffling” or “ADR” is still in full swing at EOIR. Cases are shuffled, moved around, taken off docket, and then restored to the docket to conceal that the backlog in Arlington goes out beyond the artificial “2020 limit” that Judge Burman has been instructed to use for “public consumption.” But there are other cases out there aimlessly “floating around the ether.” And, based on my experience, I’m relatively certain that many courts are worse than Arlington.

Judge Burman also makes another great  “inside baseball” point — too many unnecessary remands from the BIA. Up until the very ill-advised “Ashcroft Reforms” the BIA exercised de novo factfinding authority. This meant that when the BIA disagreed with the Immigration Judge’s disposition, on any ground, they could simply decide the case and enter a final administrative order for the winning party.

After Ashcroft stripped the BIA of factfinding  authority, nearly every case where the BIA disagrees with the lower court decision must be returned to the Immigration Court for further proceedings. Given the overloaded docket and lack of e-filing capability within EOIR, such routine remands can often take many months or even years. Sometimes, the file gets lost in the shuffle until one or both parties inquire about it.

The Immigration Courts are also burdened with useless administrative remands to check fingerprints in open court following BIA review. This function should be performed solely by DHS, whose Counsel can notify the Immigration Court in rare cases where the prints disclose previously unknown facts. In 13 years as an Immigration Judge, I had about 3 or 4 cases (out of thousands) where such “post hoc” prints checks revealed previously unknown material information. I would would have reopened any such case. So, the existing procedures are unnecessary and incredibly wasteful of limited judicial docket time.

I agree completely with Judge Burman that the deterioration of the Immigration Courts spans Administrations of both parties. Not surprisingly, I also agree with him that the only real solution to the Courts’ woes is an independent Article I Court. Sooner, rather than later!

PWS

09-03-17