A new Inspector General report criticizes EOIR for the quantity of cases completed, but totally ignores the quality of EOIR’s work. The 74-page report by DOJ Inspector General Michael Horowitz finds that data from Immigration Courts overstates case completion rates and that the Courts are too slow. The report also makes recommendations, such as developing guidelines for when Immigration Judges should grant continuances.
I’ve reviewed the report, and I can safely say that it was a complete waste of time (both my time and the time of the poor sod who prepared it) and tax payer money (both mine and yours). For that reason, I won’t waste additional time discussing what’s in the report (and if you want to see a substantive critique of the report, check out TRAC Immigration). However, I want to discuss what’s not in the report.
Actually, before I get to that, I want to further trash this report. It is frankly offensive that the Office of Inspector General (“OIG”) would issue a report about quantity without discussing quality. If the OIG’s only concern is completing cases quickly, why not just deny all the cases now and be done with it? Why bother with due process or equal protection? Why bother to have a Department of Justice at all? We can simply rename it the Department of “Just ICE” and then deport everyone. Done and done.
And now, for what’s not in the report.
First, you would think that anyone preparing a report about IJs or BIA Board Members would have sought input from people who practice before the Immigration Courts and the BIA. Bar associations regularly survey their members about the quality of judges, so why can’t the OIG (or EOIR) survey private attorneys, non-profit organizations, and DHS attorneys about their experience with IJs and the BIA? Such information would be very helpful in assessing both the quality and the quantity of EOIR’s work product.
Second, the report does not tell us whether IJs or the BIA are doing a good job deciding cases. This seems to me the single most important part of the Judges’ and Board Members’ jobs. One way to measure the quality of IJ and BIA decisions is to look at the reversal rates for those decisions. To me–and this is an issue I’ve harped on before–one relatively easy way to reduce reversal rates is to provide more guidance to decision-makers. The BIA can do this by publishing more decisions.
Finally, the report fails to acknowledge the connection between quantity and quality. Immigration cases are often complex. Aliens (and DHS attorneys) seek continuances for valid reasons. In order to reach a just result in many cases, continuances are needed. In the asylum context, for example, continuances are sometimes necessary to allow the alien more time to find a lawyer (the success rate for unrepresented aliens is much lower than for represented aliens). Thus, in Immigration Court, justice delayed is not always justice denied. Sometimes, it is simply justice.
Perhaps I am being a bit too hard on the OIG. It is certainly possible to help improve EOIR by examining the quantity of its decisions and the accuracy of its reporting. But when the OIG has failed to address the quality of EOIR’s work and instead issues a comprehensive report basically telling EOIR to hurry up, it seems to me that the OIG’s priorities are not where they should be.
Originally posted on the Asylumist: www.Asylumist.com.
Jason Dzubow's practice focuses on immigration law, asylum, and appellate litigation. Mr. Dzubow is admitted to practice law in the federal and state courts of Washington, DC and Maryland, the United States Courts of Appeals for the Third, Fourth, Eleventh, and DC Circuits, all Immigration Courts in the United States, and the Board of Immigration Appeals. He is a member of the American Immigration Lawyers Association (AILA) and the Capital Area Immigrant Rights (CAIR) Coalition. In June 2009, CAIR Coalition honored Mr. Dzubow for his Outstanding Commitment to Defending the Rights and Dignity of Detained Immigrants.In December 2011, Washingtonian magazine recognized Dr. Dzubow as one of the best immigration lawyers in the Washington, DC area; in March 2011, he was listed as one of the top 25 legal minds in the country in the area of immigration law. Mr. Dzubow is also an adjunct professor of law at George Mason University in Virginia.