[Federal Register Volume 72, Number 124 (Thursday, June 28, 2007)]
[Notices]
[Pages 35510-35513]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 07-3174]


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DEPARTMENT OF JUSTICE

Executive Office for Immigration Review

[EOIR No. 162]


Codes of Conduct for the Immigration Judges and Board Members

AGENCY: Office of the Chief Immigration Judge; Board of Immigration 
Appeals,Executive Office for Immigration Review, Department of Justice.

ACTION: Notice.

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SUMMARY: The Executive Office for Immigration Review (EOIR) is 
proposing newly formulated Codes of Conduct for the immigration judges 
of the Office of the Chief Immigration Judge and for the Board members 
of the Board of Immigration Appeals. EOIR is seeking public comment on 
the codes before final publication.

DATES: Comment date: Comments may be submitted not later than July 30, 
2007.

ADDRESSES: You may submit comments by one of the following methods:
     Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments.
     Mail: Kevin Chapman, Acting General Counsel, Executive 
Office for Immigration Review, 5107 Leesburg Pike, Suite 2600, Falls 
Church, Virginia 22041. To ensure proper handling, please reference 
EOIR Docket No. 162 on your correspondence. This mailing address may 
also be used for paper, disk, or CD-ROM submissions.
     Hand Delivery/Courier: Kevin Chapman, Acting General 
Counsel, Executive Office for Immigration Review, 5107 Leesburg Pike, 
Suite 2600, Falls Church, Virginia 22041; telephone (703) 305-0470 (not 
a toll free call).

FOR FURTHER INFORMATION CONTACT: Kevin Chapman, Acting General Counsel, 
Executive Office for Immigration Review, 5107 Leesburg Pike, Suite 
2600, Falls Church, Virginia 22041; telephone (703) 305-0470 (not a 
toll free call).

SUPPLEMENTARY INFORMATION: On January 9, 2006, the Attorney General 
directed a comprehensive review of the Immigration Courts and the Board 
of Immigration Appeals. This review was undertaken in response to 
concerns about the quality of decisions being issued by the immigration 
judges and the Board and about reports of intemperate behavior by some 
immigration judges. The Deputy Attorney General and the Associate 
Attorney General assembled a review team that, over the course of 
several months, conducted hundreds of interviews, administered an 
online survey, and analyzed thousands of documents to assess the 
adjudicative process in the Executive Office for Immigration Review 
(EOIR).
    On August 9, 2006, the Attorney General announced that the review 
was complete, and he directed that a series of measures be taken to 
improve adjudications by the immigration judges and the Board. One of 
these measures required the EOIR Director to draft a Code of Judicial 
Conduct specifically applicable to immigration judges and the members 
of the Board of Immigration Appeals. The Director was then, after 
consultation with the Counsel for Professional Responsibility and the 
Director of the Office of Attorney Recruitment and Management, to 
submit that code to the Deputy Attorney General.
    That has been accomplished and what follow are the Code of Judicial 
Conduct for immigration judges and the Code of Judicial Conduct for 
members of the Board of Immigration Appeals. The Department is seeking 
comments from the public before final publication. Once published, 
these Codes will be available on-line to counsel and litigants who 
appear before the Immigration Courts and the Board of Immigration 
Appeals.

    Dated: June 20, 2007.
Kevin A. Ohlson,
Acting Director, EOIR

United States Department of Justice Code of Judicial Conduct for 
Immigration Judges

Preamble

    In Order to Preserve the Integrity and Professionalism of the 
Immigration Court System, an Immigration Judge Shall Observe High 
Standards of Ethical Conduct, Act in a Manner that Promotes Public 
Confidence in the Impartiality of the Immigration Judge Corps, and 
Avoid Impropriety and the Appearance of Impropriety in All Activities.

Canons

    Canon I. An immigration judge shall comply with the canons 
contained in this Code of Judicial Conduct for Immigration Judges.
    Canon II. An immigration judge shall comply with the standards of 
conduct applicable to all attorneys in the Department of Justice, 
including the Standards of Ethical Conduct for Employees of the 
Executive Branch, codified in Title 5 of the Code of Federal 
Regulations, and the Department's supplemental regulations codified at 
5 CFR part 3801 and 28 CFR part 45.

[[Page 35511]]

    Canon III. An immigration judge shall comply with the provisions of 
the rules or code(s) of professional responsibility of the state(s) 
where the immigration judge is a member of the bar and the state(s) 
where the immigration judge performs his or her duties.
    Canon IV. If an immigration judge requests ethical guidance from 
the Executive Office for Immigration Review, Office of General Counsel, 
the Professional Responsibility Advisory Office, or the Office of 
Government Ethics, the immigration judge shall comply with the 
resulting ethics opinion.
    Canon V. An immigration judge shall be faithful to the law and 
maintain professional competence in it.
    Canon VI. An immigration judge shall act impartially and shall not 
give preferential treatment to any organization or individual when 
adjudicating the merits of a particular case.
    Canon VII. An immigration judge shall avoid any actions that, in 
the judgment of a reasonable person, would create the appearance that 
he or she is violating the law or applicable ethical standards.
    Canon VIII. An immigration judge shall not be swayed by partisan 
interests, public clamor, or fear of criticism.
    Canon IX. An immigration judge shall be patient, dignified and 
courteous to litigants, witnesses, lawyers and others with whom the 
judge deals in his or her official capacity and shall not, in the 
performance of official duties, by words or conduct, manifest bias or 
prejudice.
    Canon X. An immigration judge shall act in a professional manner 
toward the parties and their representatives before the court, and 
toward others with whom the immigration judge deals in an official 
capacity.
    Canon XI. An immigration judge shall refrain from any conduct, 
including but not limited to financial and business dealings, that 
tends to reflect adversely on impartiality, demeans the judicial 
office, interferes with the proper performance of judicial duties, or 
exploits the immigration judge's official position.
    Canon XII. An immigration judge shall not hold membership in any 
organization that practices invidious discrimination on the basis of 
race, sex, religion, national origin, or disability.
    Canon XIII. An immigration judge shall not publicly disclose or use 
for any purpose unrelated to adjudicatory duties nonpublic information 
acquired in a judicial capacity.
    Canon XIV. An immigration judge shall not, while a proceeding is 
pending or impending, make any public comment that might reasonably be 
expected to affect its outcome or impair its fairness, or make any 
nonpublic comment that might substantially interfere with a fair 
hearing.
    Canon XV. An immigration judge shall not initiate, consider, or 
permit ex parte communications about the substance of a pending or 
impending case unless authorized by precedent, statute, or regulation. 
Communications about purely ministerial matters, such as a request for 
an extension of time, shall not be regarded as ex parte communications, 
provided the judge makes provision promptly to notify all other parties 
of the substance of the communication and allows an opportunity to 
respond. An immigration judge's communications with other employees of 
the Department of Justice shall not be considered ex parte 
communications unless those employees are witnesses in a pending or 
impending proceeding before the immigration judge and the communication 
involves that proceeding.
    Canon XVI. An immigration judge shall follow judicial precedent and 
agency policy regarding recusal when deciding whether to remove himself 
or herself from a particular case.

Commentary

    This Code of Judicial Conduct for Immigration Judges (the ``Code'') 
is being promulgated in order to maintain and promote the highest 
ethical standards of the Immigration Judge Corps. The canons contained 
in this Code are binding on all immigration judges and are effective 
immediately upon the approval of the Deputy Attorney General or his or 
her designee. Violations of these canons may serve as the basis for 
disciplinary action, but may not be used in any other proceeding, and 
may not be used to challenge the rulings of an Immigration Judge. This 
Code does not create any rights or interests for any party outside of 
the Department of Justice, nor may violations furnish the basis for 
civil liability, injunctive relief or criminal prosecution.
    This Code supplements, and does not supersede, the personnel 
disciplinary rules, ethics rules, and management policies of the 
Executive Office for Immigration Review, the Department of Justice, 
and/or the United States government. Similarly, this Code does not 
affect the applicability or scope of the provisions of the Standards of 
Ethical Conduct for Executive Branch Employees, or the rules or code(s) 
of professional responsibility applicable to the immigration judge. An 
immigration judge is subject to the rules or code(s) of professional 
responsibility in the state(s) where he or she is a member of the bar 
and the rules or code(s) of the state(s) where he or she performs his 
or her duties. See 28 U.S.C. 530B. Immigration judges are encouraged to 
seek ethics opinions when confronted with the complex questions that 
may arise when professional responsibility rules conflict.
    The canons contained in this Code are authoritative. The commentary 
portions of the Code are not intended as a statement of additional 
rules. Commentary is made to provide, by explanation and example, more 
detailed guidance about the applicability of specific sections and to 
further facilitate an understanding and use of the Code.
    An immigration judge who manifests bias or engages in 
unprofessional conduct in any manner during a proceeding may impair the 
fairness of the proceeding and may bring into question the impartiality 
of the immigration court system. An immigration judge must be alert to 
avoid behavior, to include inappropriate demeanor, that may be 
perceived as prejudicial. The test for appearance of impropriety is 
whether the conduct would create in the mind of a reasonable person 
with knowledge of the relevant facts the belief that the immigration 
judge's ability to carry out adjudicatory responsibilities with 
integrity, impartiality, and competence is impaired.
    Prohibitions against behaving with impropriety or the appearance of 
impropriety apply to both the professional and personal conduct of an 
immigration judge. An immigration judge must be mindful that even 
private conduct and associations can reflect upon the immigration 
judge's office and affect the public's confidence in the immigration 
court system. Accordingly, an immigration judge should not, for 
example, be a member of an organization that practices invidious 
discrimination on the basis of race, sex, religion or national origin. 
Membership of an immigration judge in such an organization may give 
rise to perceptions that the judge's impartiality is impaired. Whether 
an organization practices invidious discrimination is often a complex 
question to which immigration judges should be sensitive.
    The requirement that immigration judges abstain from public comment 
regarding a pending or impending proceeding continues during any 
appellate process and until final disposition of the matter. The 
requirement does not prohibit

[[Page 35512]]

immigration judges from making appropriate comments in open court or in 
written filings in the course of their official duties. Comments made 
to other Department of Justice employees in the course of official 
business do not constitute ``public'' comments.

United States Department of Justice Code of Judicial Conduct for 
Members of the Board of Immigration Appeals

Preamble

    In Order to Preserve the Integrity and Professionalism of the Board 
of Immigration Appeals (the ``Board''), a Member of the Board of 
Immigration Appeals (``Board Member'') Shall Observe High Standards of 
Ethical Conduct, Act in a Manner that Promotes Public Confidence in the 
Impartiality of the Board, and Avoid Impropriety and the Appearance of 
Impropriety in All Activities.

Canons

    Canon I. A Board Member shall comply with the canons contained in 
this Code of Judicial Conduct for Members of the Board of Immigration 
Appeals.
    Canon II. A Board Member shall comply with the standards of conduct 
applicable to all attorneys in the Department of Justice, including the 
Standards of Ethical Conduct for Employees of the Executive Branch 
codified in Title 5 of the Code of Federal Regulations, and the 
Department's supplemental regulations codified at 5 CFR part 3801 and 
28 CFR part 45.
    Canon III. A Board Member shall comply with the provisions of the 
rules or code(s) of professional responsibility of the state(s) where 
the Board Member is a member of the bar and the state(s) where the 
Board Member performs his or her duties.
    Canon IV. If a Board Member requests ethical guidance from the 
Executive Office for Immigration Review, Office of General Counsel, the 
Professional Responsibility Advisory Office, or the Office of 
Government Ethics, the Board Member shall comply with the resulting 
ethics opinion.
    Canon V. A Board Member shall be faithful to the law and maintain 
professional competence in it.
    Canon VI. A Board Member shall act impartially and shall not give 
preferential treatment to any organization or individual when 
adjudicating the merits of a particular case.
    Canon VII. A Board Member shall avoid any actions that, in the 
judgment of a reasonable person, would create the appearance that he or 
she is violating the law or applicable ethical standards.
    Canon VIII. A Board Member shall not be swayed by partisan 
interests, public clamor, or fear of criticism.
    Canon IX. A Board Member shall not, in the performance of official 
duties, by words or conduct, manifest bias or prejudice.
    Canon X. A Board Member shall act in a professional manner toward 
the parties and their representatives before the Board, and toward 
others with whom the Board Member deals in an official capacity.
    Canon XI. A Board Member shall refrain from any conduct, including 
but not limited to financial and business dealings, that tends to 
reflect adversely on impartiality, demeans the judicial office, 
interferes with the proper performance of judicial duties, or exploits 
the Board Member's official position.
    Canon XII. A Board Member shall not hold membership in any 
organization that practices invidious discrimination on the basis of 
race, sex, religion, national origin, or disability.
    Canon XIII. A Board Member shall not publicly disclose or use for 
any purpose unrelated to adjudicatory duties nonpublic information 
acquired in a judicial capacity.
    Canon XIV. A Board Member shall not, while a proceeding is pending 
or impending, make any public comment that might reasonably be expected 
to affect its outcome or impair its fairness, or make any nonpublic 
comment that might substantially interfere with a fair hearing.
    Canon XV. A Board Member shall not initiate, consider, or permit ex 
parte communications about the substance of a pending or impending case 
unless authorized by precedent, statute, or regulation. Communications 
about purely ministerial matters, such as a request for an extension of 
time, shall not be regarded as ex parte communications, provided the 
Board Member makes provision promptly to notify all other parties of 
the substance of the ex parte communication and allows an opportunity 
to respond. A Board Member's communications with other employees of the 
Department of Justice shall not be considered ex parte communications 
unless those employees are witnesses or counsel involved in a pending 
or impending proceeding before the Board Member, and the communication 
involves that proceeding.
    Canon XVI. A Board Member shall follow judicial precedent and 
agency policy regarding recusal when deciding whether to remove himself 
or herself from a particular case.

Commentary

    This Code of Judicial Conduct for Members of the Board of 
Immigration Appeals (the ``Code'') is being promulgated in order to 
maintain and promote the highest ethical standards of the Board of 
Immigration Appeals. The canons contained in this Code are binding on 
all Board Members and are effective immediately upon the approval of 
the Deputy Attorney General or his or her designee. Violations of these 
canons may serve as the basis for disciplinary action, but may not be 
used in any other proceeding, and may not be used to challenge the 
rulings of a Board Member. This Code does not create any rights or 
interests for any party outside of the Department of Justice, nor may 
violations furnish the basis for civil liability, injunctive relief or 
criminal prosecution.
    This Code supplements, and does not supersede, the personnel 
disciplinary rules, ethics rules, and management policies of the 
Executive Office for Immigration Review, the Department of Justice, 
and/or the United States government. Similarly, this Code does not 
affect the applicability or scope of the provisions of the Standards of 
Ethical Conduct for Executive Branch Employees, or the rules or code(s) 
of professional responsibility applicable to the Board Member. A Board 
Member is subject to the rules or code(s) of professional 
responsibility in the state(s) where he or she is a member of the bar 
and the rules or code(s) of the state(s) where he or she performs his 
or her duties. See 28 U.S.C. 530B. Board Members are encouraged to seek 
ethics opinions when confronted with the complex questions that may 
arise when professional responsibility rules conflict.
    The canons contained in this Code are authoritative. The commentary 
portions of the Code are not intended as a statement of additional 
rules. Commentary is made to provide, by explanation and example, more 
detailed guidance about the applicability of specific sections and to 
further facilitate an understanding and use of the Code.
    A Board Member who manifests bias or engages in unprofessional 
conduct in any manner during a proceeding may impair the fairness of 
the proceeding and may bring into question the impartiality of the 
immigration court system and the Board of Immigration Appeals. A Board 
Member must be alert to avoid behavior, to include inappropriate 
demeanor, that may be perceived as prejudicial. The test for appearance 
of impropriety is whether the conduct would create in the mind of

[[Page 35513]]

a reasonable person with knowledge of the relevant facts the belief 
that the Board Member's ability to carry out adjudicatory 
responsibilities with integrity, impartiality, and competence is 
impaired.
    Prohibitions against behaving with impropriety or the appearance of 
impropriety apply to both the professional and personal conduct of a 
Board Member. A Board Member must be mindful that even private conduct 
and associations can reflect upon the Board Member's office and affect 
the public's confidence in the immigration court system and the Board 
of Immigration Appeals. Accordingly, a Board Member should not, for 
example, be a member of an organization that practices invidious 
discrimination on the basis of race, sex, religion or national origin. 
Membership of a Board Member in such an organization may give rise to 
perceptions that the Board Member's impartiality is impaired. Whether 
an organization practices invidious discrimination is often a complex 
question to which Board Members should be sensitive.
    The requirement that Board Members abstain from public comment 
regarding a pending or impending proceeding continues during any 
appellate process and until final disposition of the matter. The 
requirement does not prohibit Board Members from making appropriate 
comments in open court or in written filings in the course of their 
official duties. Comments made to other Department of Justice employees 
in the course of official business do not constitute ``public'' 
comments.

[FR Doc. 07-3174 Filed 6-27-07; 8:45 am]
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