Executive Office For Immigration Review: Caseload Performance
Reporting Needs Improvement (11-AUG-06, GAO-06-771).
Within the Department of Justice's (DOJ) Executive Office for
Immigration Review (EOIR), the Office of the Chief Immigration
Judge (OCIJ) is responsible for managing the 53 immigration
courts located throughout the United States where over 200
immigration judges adjudicate individual cases involving alleged
immigration law violations. This report addresses: (1) in recent
years, what has been the trend in immigration courts' caseload;
(2) how does OCIJ assign and manage the immigration court
caseload; and (3) how does EOIR/OCIJ evaluate the immigration
courts' performance? To address these issues, GAO interviewed
EOIR officials; reviewed information on caseload trends, caseload
management, and court evaluations; and analyzed caseload data,
case completion goal data, and OCIJ court evaluation reports.
-------------------------Indexing Terms-------------------------
REPORTNUM: GAO-06-771
ACCNO: A58603
TITLE: Executive Office For Immigration Review: Caseload
Performance Reporting Needs Improvement
DATE: 08/11/2006
SUBJECT: Courtroom proceedings
Courts (law)
Immigration
Immigration and naturalization law
Performance measures
Program evaluation
Strategic planning
Case management
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GAO-06-771
United States Government Accountability Office
Report to the Chairman, Committee on
GAO
Finance, U. S. Senate
August 2006
EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
Caseload Performance Reporting Needs Improvement
GAO-06-771
EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
Caseload Performance Reporting Needs Improvement
What GAO Found
From fiscal years 2000 to 2005, despite an increase in the number of
immigration judges, the number of new cases filed in immigration courts
outpaced cases completed. During this period, while the number of on-board
judges increased about 3 percent, the courts' caseload climbed about 39
percent from about 381,000 cases to about 531,000 cases. The number of
completed cases increased about 37 percent while newly filed cases grew
about 44 percent. EOIR attributes this growth in part to enhanced border
enforcement activities. The courts reduced the number of proceedings
awaiting adjudication for more than 4 years, but did not meet their goal
to complete all proceedings more than 3 years old by December 31, 2005.
OCIJ relies primarily on an automated system to assign cases to
immigration judges within a court. To balance the judges' caseload, OCIJ
considers the number of newly filed cases and cases awaiting adjudication
from prior years, historical data, and the type and complexity of cases.
To manage its growing caseload, OCIJ, among other means, details judges
from their assigned court to a court in need of assistance and uses
available technology such as video conferencing. According to OCIJ, if it
recognizes a pattern of sustained need, it recommends that EOIR establish
a court in a new location.
EOIR evaluates the performance of the immigration courts based on the
immigration courts' success in meeting case completion goals. GAO's review
of EOIR's quarterly reports on these goals identified a recurring
inconsistency between reports as well as other inconsistencies. EOIR
explained that these inconsistencies were due to a variety of factors,
including the exemption of different categories of cases from the goals in
different quarters, delays in data entry, and programming errors in the
calculation of the data. Because EOIR has changed its criteria for cases
covered by these goals and only maintained the queries for its current
reporting process, GAO could not replicate past case completion reports to
determine their accuracy. The inconsistencies indicate that EOIR should
maintain appropriate documentation to demonstrate the reports' accuracy.
Immigration Court Caseload versus Completed Cases, All Courts, Fiscal Years 2000
through
United States Government Accountability Office
Contents
Letter Results in Brief BackgroundImmigration Court Caseload 1 3
Continues to Increase; Some Progress Has Been Made in 5 11
Completing Oldest Proceedings Awaiting Adjudication OCIJ 16
Monitors Caseload to Assign Cases to Judges Accordingly, 20
and Uses a Variety of Means to Address Growing Caseload 29
EOIR's Case Completion Goal Reports Contain Some 30
Inconsistencies; Peer Evaluations Used to Evaluate Court 30
Operations Conclusions Recommendations for Executive
Action Agency Comments and Our Evaluation
Appendix I Scope and Methodology 31
Appendix II Glossary 34
Appendix III GAO Contact and Staff Acknowledgments 41
Tables Table 1: OCIJ Goals to Eliminate Proceedings Awaiting
Adjudication over 3 Years Old Table 2: Number of
Proceedings Awaiting Adjudication 3 or More Years, by
Age, All Courts, End of Fiscal Years 2003 through 2005 15
and as of December 31, 2005 Table 3: Current Targeted 15
Case Completion Goals and Completion Rates 21
Figures
Figure 1: Steps in the Immigration Court Removal Proceedings
Process 10
Figure 2: Immigration Court Caseload versus Completed Cases,
All Courts, Fiscal Years 2000 through 2005 12
Figure 3: Immigration Court Caseload Compared to Average
Number of Cases per On-board Immigration Judge, Fiscal
Years 2000 through 2005 14
Figure 5: OCIJ Immigration Court Evaluation Process 27
Abbreviations
ACIJ Assistant Chief Immigration Judge
BIA Board of Immigration Appeals
CEU Court Evaluation Unit
DHS Department of Homeland Security
DOJ Department of Justice
EOIR Executive Office for Immigration Review
ICEP Immigration Court Evaluation Program
INS Immigration and Naturalization Service
OCIJ Office of the Chief Immigration Judge
This is a work of the U.S. government and is not subject to copyright
protection in the United States. It may be reproduced and distributed in
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copyright holder may be necessary if you wish to reproduce this material
separately.
United States Government Accountability Office Washington, DC 20548
August 11, 2006
The Honorable Charles E. Grassley Chairman Committee on Finance United
States Senate
Dear Mr. Chairman:
The former U.S. Immigration and Naturalization Service (INS) estimated
that about 7 million unauthorized immigrants resided in the United States
as of January 2000 and a recent study1 estimated that the unauthorized
immigrant population was about 11.5 to 12 million in 2006. These totals
include those who entered the United States illegally and those who
entered legally but overstayed their authorized period of stay.
Identifying this increased number of unauthorized immigrants and
adjudicating their cases has placed enormous demands on federal agencies
responsible for enforcing and administering immigration laws. This demand
continues to grow as an estimated 700,000 to 850,000 immigrants enter
illegally or overstay their authorized period in this country each year.
The Department of Homeland Security (DHS) is responsible for identifying
and removing unauthorized immigrants who are in the United States in
violation of immigration laws. Immigrants identified by DHS as subject to
removal from the United States are charged by DHS with immigration
violations and given notice that they are to appear before an immigration
judge to address the charges.2 The Department of Justice's (DOJ) Executive
Office for Immigration Review (EOIR) through its immigration
1
Jeffrey S. Passel, The Size and Characteristics of the Unauthorized
Migrant Population in the U.S.: Estimates Based on the March 2005 Current
Population Survey, Pew Hispanic Center (Washington, D.C.: March 2006).
2
Immigration judges are appointed by the Attorney General for the purpose
of conducting formal, quasi-judicial proceedings involving the rights of
immigrants to enter or remain in the United States.
Page 1 GAO-06-771 Executive Office for Immigration Review
courts is responsible for administering and interpreting immigration laws
and regulations in the cases that come before the courts.3
Within EOIR, the Office of the Chief Immigration Judge (OCIJ) is
responsible for managing the 53 immigration courts located throughout the
United States, where over 200 immigration judges adjudicated about 350,000
individual cases4 involving alleged immigration law violations in fiscal
year 2005. The immigration courts are faced with the challenge of
adjudicating their caseload (all cases awaiting adjudication) in a timely
manner while at the same time ensuring that the rights of the immigrants
appearing before them are protected.
In your request, you expressed interest about the management and
performance of the immigration courts. In this report, we address the
following questions:
1. In recent years, what has been the trend in immigration courts'
caseload?
2. How does OCIJ assign and manage immigration court caseload?
3. How does EOIR/OCIJ evaluate the immigration courts' performance?
To address these objectives, we met with officials from DOJ's EOIR
headquarters to obtain information and documentation on caseload trends,
caseload management, and evaluation of immigration courts. To gain a
better understanding of the operations and management of immigration
courts, we also visited four immigration courts-Arlington in Arlington,
Virginia; Newark in Newark, New Jersey; and two courts in New York City,
New York. We selected these four courts to include courts
3
Until March 1, 2003, there were two DOJ components with immigration
responsibilities: INS and EOIR. Under the Homeland Security Act of 2002,
signed into law on November 25, 2002, INS was transferred to the new DHS
as of March 2003. The Attorney General retained authority over EOIR,
within DOJ, with no immediate changes to EOIR's components or
jurisdiction. At DHS, the INS enforcement functions became part of the
U.S. Immigration and Customs Enforcement and the U.S. Customs and Border
Protection. The immigration services function of the former INS is housed
in the U.S. Citizenship and Immigration Services at DHS.
4
For this report, the term "cases" refers to proceedings, bond
redeterminations, and motions to reopen or reconsider (for definitions of
these terms see the glossary in app. II).
varying in size,5 based on the number of immigration judges. At these
locations, we observed court proceedings and met with immigration judges,
court administrators, and attorneys that litigate cases before the
immigration courts-attorneys from the Office of Chief Counsel of DHS's
Immigration and Customs Enforcement and private bar attorneys. We also
interviewed representatives of the National Association of Immigration
Judges, the American Immigration Lawyers Association, and the American Bar
Association, Commission on Immigration. For the first objective, we
obtained and analyzed caseload data contained in EOIR's case management
system. To assess the reliability of those data needed to answer this
objective, we (1) performed electronic testing for obvious errors in
accuracy and completeness, (2) reviewed related documentation about the
data and the systems that produced them, including a contractor's report
on data verification of the case management system, and (3) interviewed
agency officials knowledgeable about the data. We determined that the data
were sufficiently reliable for the purposes of our report. For the second
objective, we obtained and reviewed policies, procedures, and other
documents about caseload management, as well as staffing data for fiscal
years 2000 through 2005. For the third objective, we obtained and reviewed
policies, procedures, and other documents about the evaluation of
immigration courts' performance. We also obtained and analyzed EOIR's case
completion goal reports for fiscal years 2001 through 2005 (as discussed
later in this report, our review raised questions about these reports) and
reviewed the relevant internal control standards for such reports. We also
reviewed OCIJ's reports for court evaluations conducted in fiscal years
2000 and 2004 and EOIR's data on complaints against immigration judges for
fiscal years 2001 through 2005.
We conducted our work from March 2005 through August 2006 in accordance
with generally accepted government auditing standards. (See app. I for
more details on our scope and methodology.)
Results in Brief
From fiscal year 2000 to fiscal year 2005, despite an increase in the
number of immigration judges and the number of cases completed by the immigration
courts, the number of newly filed cases outpaced cases completed. During
the same time period when the number of on-board
5
EOIR categorizes courts according to the number of judges. While some
courts only have a single judge, small courts have 2 to 4 judges; medium
courts, 5 to 14 judges; and large courts, 15 or more judges.
Page 3 GAO-06-771 Executive Office for Immigration Review
judges increased about 3 percent, the courts' caseload increased 39
percent from about 381,000 cases at the end of fiscal year 2000 to about
531,000 cases at the end of fiscal year 2005. The average number of cases
per on-board immigration judge increased about 35 percent, from 1,852 in
fiscal year 2000 to 2,505 in fiscal year 2005. The number of completed
cases increased by about 37 percent, from about 253,000 cases in fiscal
year 2000 to about 347,000 cases in fiscal year 2005. During the same
period, the number of newly filed cases grew about 44 percent from about
252,000 to about 363,000. According to EOIR, the increase in the number of
newly filed cases may be attributed to several factors, including enhanced
border and interior enforcement actions and changes in immigration laws
and regulations. Starting in fiscal year 2003, the immigration courts set
a series of goals aimed at completing all proceedings older than 3 years
by December 31, 2005. At the end of fiscal year 2003, the courts had
13,031 proceedings awaiting adjudication 3 or more years. The courts
reduced the number of proceedings awaiting adjudication for more than 4
years, but did not meet their goal to complete all proceedings more than 3
years old by December 31, 2005. On December 31, 2005, 9,412 proceedings
were 3 or more years old.
OCIJ relies primarily on an automated system to assign cases to
immigration judges within a court. To balance the caseload among judges,
OCIJ considers the number of newly filed cases and cases awaiting
adjudication from prior years, historical data, and the nature of the
caseload, such as the type of cases prevalent in the court and their
complexity. To manage its growing caseload, OCIJ, among other means,
details judges from their assigned court to a court in need of assistance
and uses available technology such as videoconferencing. According to
OCIJ, if it recognizes a pattern of sustained need, it recommends that
EOIR establish a court in a new location. During fiscal years 2000 through
2005, EOIR established three new immigration courts.
EOIR/OCIJ evaluates the performance of the immigration courts based on the
immigration courts' success in meeting case completion goals and through
peer evaluations. EOIR documents the case completion goal data for the
courts' 11 case types in internal quarterly reports; the courts' success
in meeting 4 of the 11 case types that have been identified as
adjudication priorities is published in DOJ's annual budget report and
"Performance and Accountability Report," which tracks DOJ's performance as
required by the Government Performance and Results Act of 1993. Our review
of EOIR's internal quarterly reports identified a recurring inconsistency
between reports as well as other inconsistencies. EOIR cited several
factors to explain the inconsistencies: the "live,"
Background
constantly changing nature of the EOIR data base; the exemption of
different categories of cases from the case completion goals in different
quarters; deletions of cases double entered by DHS in the automated
scheduling system; reconciliations due to changes to date fields to update
cases in the data base; delays in data entry; and programming errors in
the calculation of the data. Over time EOIR has changed the criteria for
cases covered by case completion goals and only maintained the queries for
its current reporting process. Consequently, we could not replicate EOIR's
past reports to determine the accuracy of the case completion goal data.
The inconsistencies indicate that EOIR should maintain appropriate
documentation to demonstrate the accuracy of data reported by EOIR. A
second means EOIR uses to evaluate the courts' performance is peer
evaluation--its Immigration Court Evaluation Program (ICEP). The ICEP team
conducts an onsite visit where it evaluates court operations including the
court's organizational structure and workflow processes and prepares a
report of its findings and recommendations.
To more accurately and consistently reflect immigration courts' progress
in the timely adjudication of immigration cases, we recommend that the
Director of EOIR (1) maintain appropriate documentation to demonstrate the
accuracy of case completion goal reports and (2) clearly state what cases
are being counted in the reports.
After reviewing a draft of this report, EOIR responded in an e-mail that
it concurred with GAO's recommendations. EOIR also provided technical
comments, which we have included as appropriate.
Under the authority of the Attorney General, EOIR interprets and
administers federal immigration laws by conducting formal quasi-judicial
proceedings, appellate reviews, and administrative hearings. EOIR consists
of three primary components: OCIJ, which is responsible for managing the
immigration courts located throughout the United States where immigration
judges6 adjudicate individual cases; the Board of Immigration Appeals
(BIA), which primarily conducts appellate reviews of
6
As attorneys, immigration judges are appointed under Schedule A in the
excepted service. To be minimally qualified, an applicant must have a
Bachelor of Laws or a Juris Doctor degree and be duly licensed and
authorized to practice law as an attorney under the laws of a state,
territory, or the District of Columbia; be a U.S. citizen; and have a
minimum of 7 years relevant post-bar admission legal experience at the
time the application is submitted, with one year experience equivalent to
the GS-15 level in the federal service.
Page 5 GAO-06-771 Executive Office for Immigration Review
immigration judge decisions;7 and the Office of the Chief Administrative
Hearing Officer, which adjudicates immigration-related employment cases
such as employer sanctions for employment of unauthorized immigrants. EOIR
was established on January 9, 1983, as a result of an internal DOJ
reorganization. This reorganization combined the BIA with the immigration
judge function previously performed by the former INS. The Office of the
Chief Administrative Hearing Officer was added in 1987. A Director who
reports directly to the Deputy Attorney General heads EOIR.
EOIR's mission is to provide for the fair, expeditious, and uniform
interpretation and application of immigration law. In support of this
mission, one of EOIR's strategic goals is to adjudicate all cases in a
timely manner while assuring due process and fair treatment for all
parties. According to its strategic plan for fiscal years 2005 through
2010, EOIR plans to accomplish this goal by, among other things, (1)
eliminating case backlog by the end of fiscal year 2008,8 (2) implementing
improved caseload management practices, and (3) adjudicating cases within
specified time frames.
As of October 1, 2005, EOIR had 1,182 authorized full-time permanent
positions. OCIJ was the largest of the three primary components with 789
positions. The majority of these 789 positions (745) were in the
immigration courts located throughout the nation. Of these 745 positions,9
225 were immigration judges.10 The remaining court staff included 45
7
BIA also hears appeals of certain decisions made by DHS district directors
or other immigration officials.
8
According to EOIR, it plans to systematically reduce the number of cases
pending longer than 1 year in the immigration courts.
9
In fiscal year 2005, the immigration courts also had 31 judicial law
clerks who assisted immigration judges by researching case law and
providing other legal support as required.
10
As of May 1, 2006, there were 230 authorized immigration judges.
court/deputy court administrators, 367 assistants/clerks,11 and 108 court
interpreters.12
OCIJ provides overall program direction, articulates policies and
procedures, and establishes priorities for the immigration courts. OCIJ is
headed by a Chief Immigration Judge who carries out these responsibilities
with the assistance and support of two Deputy Chief Immigration Judges and
nine Assistant Chief Immigration Judges (ACIJ).13 The ACIJs serve as the
principal liaison between OCIJ headquarters and the immigration courts and
have supervisory authority over the immigration judges, the court
administrators, and judicial law clerks.14 At the court level, court
administrators manage the daily court operations as well as the
administrative staff. Currently there are 53 immigration courts including
17 courts that are co-located with a detention center, correctional
facility, or service processing center and a court located at EOIR
headquarters in Falls Church, Virginia,15 and numerous other hearing
locations.16 The sizes of the immigration courts vary. In fiscal year
2005, the smallest of the 53 immigration courts (Fishkill in New York)
consisted of 2 authorized legal assistants.17 In contrast, the largest
court (New York
11
The following staff is included: clerks, legal technicians, supervisory
legal technicians, and administrative assistants.
12
The primary function of the interpreters is to interpret in a manner that
allows the immigrant, immigration judge, and attorneys to understand the
proceedings as if no language barrier existed. However, according to EOIR,
most interpreters perform clerical tasks when they are not interpreting.
In addition to the authorized interpreters, the immigration courts use
contract interpreters to provide language translation. EOIR estimates that
about 85 percent of the courts' cases require the use of an interpreter.
13
As of May 1, 2006, three of the nine ACIJ positions were vacant.
14
While the ACIJs have supervisory authority for the immigration judges, the
judges are not subject to a performance appraisal system (excluded by the
Office of Personnel Management pursuant to 5 C.F.R. S: 430.202(c)). The
ACIJs also do not review the immigration judges' decisions, which are
reviewed only on appeal before the BIA.
15
Unlike the other immigration courts, the headquarters immigration court
does not accept the filing of charging documents. Charging documents are
filed at the other immigration courts. The headquarters court assists the
other courts by adjudicating some of their cases.
16
In addition to the immigration courts, EOIR has designated other locations
where hearings can take place. EOIR refers to these locations as hearing
locations.
17
The Fishkill immigration court does not have an immigration judge
authorized. Rather, the judge in the Ulster immigration court in New York
normally hears cases from that court. However, the Ulster judge position
is currently vacant; therefore, cases from both the Fishkill and Ulster
courts are heard by judges from the New York City immigration court. In
addition, the Fishkill court shares a court administrator with two other
courts.
City in New York) consisted of the following authorized staff: 27
immigration judges, 1 court administrator, 1 deputy court administrator,
46 assistants/clerks, and 8 court interpreters.
The immigration judges are responsible for hearing all cases that come
before them, and act independently in deciding the cases. They hear a wide
range of immigration related cases that consist primarily of removal
proceedings18 conducted to determine whether certain immigrants are
subject to removal from the country.19 If DHS alleges a violation of
immigration law(s) that is subject to adjudication by the immigration
courts, it serves the immigrant with a charging document, ordering the
individual to appear before an immigration judge. The charging document is
also filed with the immigration court having jurisdiction over the
immigrant,20 and advises the immigrant of, among other things, the nature
of the proceeding; the alleged act(s) that violated the law; the right to
an attorney at no expense to the government; and the consequences of
failing to appear at scheduled hearings.21 Removal proceedings generally
require an immigration judge to make: (1) a determination of the
immigrant's removability from the United States and (2), thereafter, if
the immigrant applies, a decision whether the immigrant is eligible for a
form(s) of relief from removal such as asylum, adjustment of status,
cancellation of removal, or other remedies, or voluntary departure, which
is an alternative
18
In fiscal year 2005, proceedings accounted for about 93 percent of all
cases, with bond redeterminations and motions accounting for about 5 and 2
percent, respectively. About 99 percent of the proceedings were removal
proceedings. See the glossary in app. II for definitions of proceedings,
bond redeterminations, and motions to reopen or reconsider.
19
Beginning April 1, 1997, the distinction between exclusion and deportation
proceedings was eliminated, and immigrants subject to removal from the
United States were all placed in removal proceedings. Thus, according to
EOIR, the removal proceeding is generally the sole procedure for
determining whether an immigrant is inadmissible, deportable, or eligible
for relief from removal. Certain cases are subject to pre-April 1, 1997,
legal standards and are therefore still referred to as exclusion or
deportation proceedings.
20
The immigration court that receives the case has jurisdiction over the
case unless a change of venue has been requested by the immigrant or DHS.
Once a case has been assigned to an immigration judge, only the assigned
judge may rule on a motion for a change of venue, unless the judge is
unavailable to complete his or her duties.
21
EOIR does not have jurisdiction over an immigrant's case unless DHS files
a charging document with EOIR.
to removal.22 Once an immigration judge orders the removal of an
immigrant, DHS is responsible for carrying out the removal.
According to EOIR, in most removal proceedings, immigrants concede that
they are removable, but then apply for one or more forms of relief from
removal. Immigration law provides relief from removal to immigrants who
meet specific eligibility criteria. The immigrant has the burden of
proving that he or she is eligible for relief under the law, and usually
that he or she deserves such relief as an exercise of discretion. For
definitions of asylum, adjustment of status, cancellation of removal, and
voluntary departure, see the glossary in app. II.
Figure 1: Steps in the Immigration Court Removal Proceedings Process
GAO analysis of EOIR data.
As shown in figure 1, immigration court removal proceedings generally
involve an initial master calendar hearing and, subsequently, an
individual merits hearing. During the master calendar hearing, the
immigration judge is to ensure that the immigrant understands the
immigration violation charges and provide the immigrant information on
available free of charge or low-cost legal representation in the area.
During the individual merits hearing, the merits of the case are presented
before the immigration judge by the immigrant, or the immigrant's legal
representative, and the DHS attorney who is prosecuting the case. DHS must
prove that an immigrant is in the United States unlawfully and should be
removed. In most cases, the immigration judge issues an oral decision at
the conclusion of the individual merits hearing. The immigration judge may
order the alien removed or may grant relief. If the immigration judge
decides that removability has not been established by DHS, he or she may
terminate the proceedings. Once a case is completed, if the immigrant or
DHS disagrees with the immigration judge's decision, either party or both
parties may appeal the decision to the BIA. If the BIA ruling is adverse
to the immigrant, the immigrant generally may file an appeal in the
federal court system. According to EOIR, if DHS disagrees with the BIA's
ruling, in rare instances, the case may be referred to the Attorney
General for review.
Immigration Court Caseload Continues to Increase; Some Progress Has Been Made
in Completing Oldest Proceedings Awaiting Adjudication
Immigration Courts' Caseload Increases as More Newly Filed Cases Are
Received than Cases Completed
From fiscal year 2000 through fiscal year 2005, the number of newly filed
cases outpaced cases completed. Consequently, the immigration courts'
caseload increased about 39 percent, from about 381,000 cases at the end
of fiscal year 2000 to about 531,000 cases at the end of fiscal year 2005.
During the same period, in 4 of 6 years, the number of newly filed cases
received was greater than the number of cases completed. The number of
newly filed cases grew about 44 percent, from about 252,000 in fiscal year
2000, to about 363,000 in fiscal year 2005. On the other hand, the number
of completed cases increased about 37 percent, from about 253,000 cases in
fiscal year 2000, to about 347,000 cases in fiscal year 2005. (See fig.
2.)
Figure 2: Immigration Court Caseload versus Completed Cases, All Courts,
Fiscal Years 2000 through 2005
According to EOIR officials, the annual increase in newly filed cases can
be driven by several factors. These factors include enhanced border and
interior enforcement actions, changes in immigration laws and regulations,
and emerging or special situations.
The greatest increase (about 47,000 or 16 percent) in the number of cases
completed by the immigration courts occurred between fiscal years 2004 and
2005. This increase is in large part because of an increase in the number
of in absentia decisions-in cases where a judge orders an immigrant
removed from the United States when the immigrant has not appeared for a
scheduled removal hearing.23 The number of in absentia cases increased
about 80 percent from about 70,000 cases in fiscal year 2004 to about
126,000 cases in fiscal year 2005. According to EOIR officials, in
absentia cases require less time to complete because there is limited or
no conflicting evidence for the court to hear and review when the
immigrant does not appear to respond to the charge of removability.
While there has been an increase in the number of immigration judges since
fiscal year 2000, the immigration court caseload has grown at a much more
rapid pace. The number of on-board immigration judges increased by 6
(about 3 percent), from 206 to 21224 between fiscal years 2000 and 2005,
while the immigration courts' caseload increased about 39 percent during
the same period. As a result, the average number of cases per on-board
immigration judge has increased slightly more than 35 percent, from 1,852
in fiscal year 2000 to 2,505 in fiscal year 2005 (see fig. 3). In
particular, the case-per-judge ratios were generally higher in
southwestern border courts where the proportion of in absentia cases is
also among the highest in the country. For example, in fiscal year 2005,
the Harlingen and San Antonio immigration courts in Texas each had a
case-per-judge ratio of over 8,000 compared to the average for all courts
of 2,505.
23
According to EOIR, there was an increase in the number of DHS charging
documents that did not have the address of the immigrant, which, in turn,
resulted in an in absentia decision. By regulation, if the immigrant fails
to provide his or her address as required by law, actual written notice is
not required for an immigration judge to proceed with an in absentia
hearing.
24
During the same period, the number of authorized immigration judges
increased about 7 percent, from 211 to 225.
Figure 3: Immigration Court Caseload Compared to Average Number of Cases
per On-board Immigration Judge, Fiscal Years 2000 through 2005
OCIJ Set Goals to Reduce the Age of Proceedings Awaiting Adjudication;
despite Some Progress, OCIJ Had Not Met Its Goals
OCIJ has taken steps to reduce the age of proceedings awaiting
adjudication. According to an OCIJ memorandum, in March 2003, the
immigration courts established a priority for completing its older
proceedings. The courts set a series of goals to complete all proceedings
older than 4 years; since then, they have introduced additional goals
targeting proceedings older than 3 years. OCIJ's goals are summarized in
table 1.
Table 1: OCIJ Goals to Eliminate Proceedings Awaiting Adjudication over 3
Years Old
Age of proceeding Completion deadline
Greater than 6 years September 30, 2003
Greater than 5 years March 31, 2004
Greater than 4 years November 30, 2004
Greater than 3 and 1/2 years June 30, 2005
Greater than 3 years December 31, 2005
Source: GAO based on EOIR data.
Our analysis of the immigration courts' proceedings data shows that while
the courts have achieved success in reducing the number of proceedings
older than 4 years between fiscal year 2003 and December 31, 2005, the
courts did not meet their goal of completing all proceedings more than 3
years old by December 31, 2005 (see table 2). At the end of fiscal year
2003, the courts had 13,031 proceedings awaiting adjudication 3 or more
years. Between fiscal year 2003 and December 31, 2005, the number of
proceedings 6 or more years old was cut about 48 percent, from 1,058 to
547; the number of proceedings between 5 and 6 years old dropped to about
a quarter of its fiscal year 2003 level from 2,375 to 547; and the number
of proceedings between 4 and 5 years old decreased about 37 percent (3,185
to 2,010). However, at the end of December 2005, 9,412 proceedings
remained open after 3 or more years.25
Table 2: Number of Proceedings Awaiting Adjudication 3 or More Years, by
Age, All Courts, End of Fiscal Years 2003 through 2005 and as of December
31, 2005
Age of proceeding
3 - 3.5 years 3.5 - 4 years 4 - 5 years 5 - 6 years 6 or more years Total
September 30, 2003 3,914 2,499 3,185 2,375 1,058 13,031
September 30, 2004 5,878 2,959 2,122 742 619 12,320
September 30, 2005 5,607 3,246 2,395 625 621 12,494
December 31, 2005 3,945 2,363 2,010 547 547 9,412
Source: GAO analysis of EOIR data.
25
According to EOIR, there has been an increase in the number of visa
petitions pending at DHS for beneficiaries who are also in removal
proceedings. An immigration judge cannot proceed on the immigrant's
request for relief from removal in the form of adjustment of status until
the visa petition has been adjudicated by DHS.
Page 15 GAO-06-771 Executive Office for Immigration Review
OCIJ Monitors Caseload to Assign Cases to Judges Accordingly, and Uses a
Variety of Means to Address Growing Caseload
OCIJ Monitors Caseload and Assigns Cases to Judges within Courts
OCIJ monitors immigration courts' caseload to assign cases to judges
within a court. According to OCIJ, in general, the need for court
personnel is driven by the immigration courts' caseload. Specifically,
OCIJ considers the number of newly filed cases and cases awaiting
adjudication from prior years, historical data, and the nature of the
caseload, such as the type of cases prevalent in the court and their
complexity. As newly filed cases are received, OCIJ said that it evaluates
the impact of these cases on the allocation of resources at the
immigration courts. For example, according to OCIJ, through experience, it
has learned that the immigration courts will have difficulty meeting and
maintaining its case adjudication time goals when immigration judges have
more than 1,050 and 1,500 newly filed cases involving non-detained and
detained immigrants, respectively. Therefore, OCIJ attempts to keep the
list of cases that appears on the judges' calendars under these levels. In
addition, on the basis of feedback from the courts, the responsible ACIJ
notifies OCIJ headquarters of any unexpected increases in newly filed
cases in a given court due to emerging or special situations, such as mass
migration or enhanced border enforcement actions. According to OCIJ, if a
pattern of need emerges, it reassigns personnel or provides other
assistance, if available.
OCIJ noted that the judges' calendar of cases might vary among courts due
to the type and complexity of the cases received. Thus, the case-per-judge
ratios will be higher in some courts than others. Courts with a high
number of change of venue cases (cases that are transferred from one court
to another court) and/or in absentia cases that require less time to
complete have a higher volume of cases per judge than courts with more
merits asylum cases and other complex cases awaiting adjudication. For
example, judges in the Harlingen and San Antonio immigration courts
located in Texas are assigned a higher number of cases because these
courts have a high number of change of venue and in absentia cases
adjudicated in a given year compared to the San Francisco, California, New
York City, New York, and Miami, Florida, immigration courts, where most
cases are merits asylum hearings that require more time to complete. In
fiscal year 2005, judges in the Harlingen and San Antonio immigration
courts had, on average, over 8,000 cases compared to judges in San
Francisco, New York City, and Miami immigration courts who had, on
average, about 1,200, 1,500, and 2,400 cases, respectively.
Within each immigration court, newly filed cases are generally assigned to
immigration judges through an automated process; however, some flexibility
exists. After a charging document has been filed, either DHS through an
interactive scheduling system or immigration court staff are to enter data
on newly filed cases in EOIR's case management system.26 The case
management system automatically assigns newly filed cases within each
court on the basis of the next available judge's calendar, rotating
through all of the judges to equalize the number of cases assigned to each
immigration judge. In addition, OCIJ stated that court staff has the
flexibility to manually assign newly filed cases to a specific immigration
judge rather than use the automated system. For example, the court
administrator may manually schedule some cases to correct inequities that
occurred in the number and type of cases that were assigned to a judge by
the automated system. Also, cases that are re-entering the immigration
court system are generally manually assigned to the immigration judge who
had initially adjudicated the case.27 Further, if a judge already has a
heavy caseload, OCIJ officials said that an ACIJ, through authority
delegated by the Chief Immigration Judge, may decide to exclude a judge
from assignment of newly filed cases through the automated system.
EOIR's Strategic Plan for fiscal years 2005 through 2010 states that it
intends to consider changes in workload, establish better methods to
project future workload, and adjust resources accordingly. Additionally,
EOIR proposes to refine its current caseload management practices to
ensure that cases move through the system as efficiently as possible. For
example, EOIR plans to study the rates at which immigrants are failing to
appear at their court proceedings and to schedule cases so that court time
is used more efficiently. EOIR officials stated they are in the early
stages of implementing the objectives outlined in the Strategic Plan.
26
With the exception of two courts, the same case management system is used.
Courts in Arlington, Virginia, and Seattle, Washington, are piloting a new
case management system.
27
A case that has a motion to reopen or a case remanded from the BIA is
usually assigned to the immigration judge that had initially adjudicated
the case.
Page 17 GAO-06-771 Executive Office for Immigration Review
OCIJ Details Judges, Uses Technology, Transfers Responsibility for Hearing
Locations, and Recommends Establishing New Courts to Address Growing
Caseload
OCIJ's process for managing court caseload is to monitor the caseload of
each immigration court to identify those courts that are unable to meet
their established goals for timely case adjudication, and provide
assistance to these courts in meeting their goals. According to OCIJ, it
primarily addresses immigration judge staff shortages at immigration
courts through detailing judges from their assigned court to a court in
need of assistance. Details usually occur to cover situations such as
emerging needs that result in a surge of newly filed cases; staff
shortages in a court due to illness, retirements, or annual leave; or the
need to hear cases in other designated hearing locations. OCIJ advertises
the detail opportunities to solicit volunteers. In selecting from the
judges that volunteer,28 OCIJ said that it considers the needs of these
immigration judges' respective assigned courts. Volunteers from courts
that have heavy caseloads and are not meeting their goals for timely case
adjudication will usually not be selected. According to EOIR, it does not
maintain readily available data on the number and duration of immigration
judge details.
OCIJ also uses available technology to address staff shortages. Many
courts have the capability to use videoconferencing to conduct immigration
hearings in other courts and locations such as detention centers and
correctional facilities throughout the country. As of May 1, 2006, EOIR
had videoconferencing capability at 47 of the 53 immigration courts, and
77 other locations where immigration hearings were conducted. According to
OCIJ, videoconferencing allows immigration judges in one court to assist
another immigration court with an unusually heavy caseload, on an ad hoc
basis. For example, the two immigration judges in the court located at
EOIR headquarters in Falls Church, Virginia, use videoconferencing to
address short-term resource needs as they arise in the other immigration
courts nationwide. OCIJ said that it will use this technology where
available and feasible until this remedy is deemed insufficient to meet
the needs of the courts. OCIJ also said that it has used videoconferencing
as an interim measure while it assesses the ongoing need to establish a
new immigration court. According to EOIR's fiscal year 2005 performance
work plans, ACIJs were expected to increase the usage of video technology
to address case requirement needs of immigration courts.
In addition, EOIR transfers responsibility for some hearing locations
among immigration courts to more evenly distribute the caseload among
28
OCIJ will select judges for details if it does not get volunteers.
immigration judges. For example, in July 2003, EOIR redistributed the
Detroit, Michigan, immigration court's caseload by transferring cases from
Cincinnati and Cleveland, Ohio, to the Arlington, Virginia, court; and
cases from Louisville, Kentucky, to the Memphis, Tennessee, court.29
According to EOIR, unless the parties are notified otherwise, immigration
hearings continue to be conducted at the same hearing locations in each of
these states, with immigration judges traveling to those locations or
holding hearings by videoconference when appropriate. EOIR stated that
these transfers are infrequent.
When a pattern of sustained need emerges, OCIJ officials said that they
recommend to EOIR establishing a court in a new location, usually a
previous hearing location-especially if there is a significant distance to
travel, along with significant travel costs. A permanent court is usually
recommended if the hearing location can no longer be effectively covered
by an existing immigration court (e.g., if a court fails to meet its goals
for timely case adjudication). However, according to OCIJ, whether a new
court can be established depends on the available resources. During fiscal
years 2000 through 2005, EOIR established three new immigration courts.30
For example, in July 2005, EOIR established the newest immigration court
in Salt Lake City, Utah, which was previously a hearing location of the
Denver immigration court in Colorado. EOIR recently said that it will open
a new court in Cleveland, Ohio, in August 2006 and is requesting funds to
open four additional courts in fiscal year 2007.
29
According to EOIR, in fiscal year 2003, the Detroit immigration court had
5,916 newly filed cases including 603 for Cincinnati, 1,385 for Cleveland,
and 553 for Louisville. The Detroit court, which had three immigration
judges, lacked the physical facilities to expand beyond the three judges.
To address the Detroit court's large caseload, OCIJ added an additional
judge to the Arlington court and transferred the Cincinnati and Cleveland
cases to the Arlington court. The Louisville cases were transferred to the
Memphis court, which had two judges with 1,420 newly filed cases.
30
According to EOIR, if a new immigration court opens, the Chief Immigration
Judge will announce transfer opportunities and set a deadline for transfer
requests. The Chief Immigration Judge will consider the transfer requests
in order of seniority. EOIR said that it also closed two immigration
courts during this period.
EOIR's Case Completion Goal Reports Contain Some Inconsistencies; Peer
Evaluations Used to Evaluate Court Operations
EOIR/OCIJ evaluates the immigration courts' performance based on their
success in meeting case completion goals and through peer evaluations of
court operations. In addition, EOIR/OCIJ monitors complaints against
immigration judges.
EOIR's Case Completion Goal Reports Contain Some Inconsistencies
To assist in ensuring that the immigration courts adjudicate cases fairly
and in a timely manner-one of the agency's stated strategic objectives31-
EOIR has established target time frames for each of OCIJ's 11 case
types.32 Each case type has an associated case completion goal (the
percentage of cases to be completed within the established time frame).
(See table 3 for a list of case types and their corresponding goals.) The
case completion goals were formulated beginning in June 2000, when EOIR's
Director recognized that not all case types had completion time frames.
Some case types had completion time frames established by law; others had
longstanding agency completion time frames, while some had none.
Consequently, EOIR's Director solicited input from OCIJ regarding the
impact and feasibility of establishing completion goals across all case
types. OCIJ, in turn, solicited input from the immigration judges and
court administrators. Over a 2-year period, EOIR collaborated with OCIJ to
develop case completion goals for immigration courts covering the 11 case
types. In May 2002, OCIJ formally implemented these goals. The courts'
success in meeting the goals for 4 of the 11 case types have been
identified as adjudication priorities and are published in DOJ's annual
budget report and "Report on Performance and Accountability."33 The
"Report on
31
The goals were also established to assist management in identifying areas
that need improvement and in allocating resources better.
32
The case types are based on the status of the immigrant, for example,
whether the immigrant is detained or non-detained and whether the
immigrant has filed an application for relief.
33
In these reports, EOIR combined two of the four case types.
Page 20 GAO-06-771 Executive Office for Immigration Review
Performance and Accountability" presents DOJ's performance progress as
required by the Government Performance and Results Act of 1993.34
Table 3: Current Targeted Case Completion Goals and Completion Rates
Percent of cases
to be completed
within the time
Case type Definition Time goal goal
Detained without A detained immigrant does 30 daysa 90
applications for not request relief from the
relief removal.
Non-detained A non-detained immigrant 240 days b 90
without does not request relief from
applications for the removal.
relief
Credible fear An immigrant seeking to 7 daysc 100
review enter the United States does
not have any documents or
valid documents to enter but
expresses a "credible fear"
of persecution or torture or
an intention to apply for
asylum; the immigrant is
referred for an interview
with a DHS asylum officer.
If the asylum officer
believes that the immigrant
has not established a
credible fear and a
supervisory asylum officer
concurs, the immigrant may
request a review of that
determination by an
immigration judge. If the
immigration judge determines
there is "credible fear,"
the immigrant will be placed
in removal proceedings to
apply for asylum.
Claimed status An immigrant claims to be a 120 days b 90
review U.S. citizen, to have been
lawfully admitted for
permanent residence, to have
been admitted as a refugee,
or to have been granted
asylum, and DHS determines
that the immigrant has no
such claim; the immigrant
can obtain a review by the
immigration judge.
Detained with A detained immigrant 120 days a 90
applications for requests relief from removal
relief other than for reasons other than that
expedited asylum of expedited asylum.
Non-detained with A non-detained immigrant 240 days b 60
applications for requests relief from removal
relief other than for reasons other than
expedited asylum expedited asylum.
Institutional The removal process for an Prior to 90
hearing program immigrant incarcerated by release a
federal, state, or municipal
correctional authorities as
a result of a conviction for
a criminal offense. The
hearings are held inside
correctional institutions
prior to the immigrant
completing his or her
criminal sentence.
The four case types identified as adjudication priorities for OCIJ are
immigration court cases involving (1) detained immigrants that do not file
an application for relief, (2) immigrants seeking expedited asylum
affirmatively as a form of relief, (3) immigrants seeking expedited asylum
defensively as a form of relief, and (4) the Institutional Hearing
Program.
Page 21 GAO-06-771 Executive Office for Immigration Review
Percent of cases to be
completed within the
Case type Definition Time goal time goal
Motions to reopen Either the immigrant or DHS 60 daysb 90
requests the reopening of a case
previously heard by an immigration
judge. The motion asks the
judge to consider newly filed or
previously unavailable facts or
evidence in a case.
Custody hearings A detained immigrant's release 100
bonds from custody is contingent on 3 business
posting a bond to ensure the daysb
immigrant's appearance at the
immigration hearing. The immigrant
asks the immigration judge
to reconsider the bond set by DHS.
Expedited asylum An immigrant requests asylum by 180 days c 90
filing an asylum application
affirmative with DHS Asylum Office. If the
asylum application is not
approved by DHS, the asylum
application is referred to EOIR
within 75 days of filing.
Expedited asylum An immigrant requests asylum by 180 days c 90
filing an asylum application
defensive directly to EOIR in removal
proceedings.
Source: GAO based on EOIR data.
a
A long-standing agency goal established prior to the formal implementation
of the case completion goals.
b
An internal agency goal established during the formal case completion goal
implementation process.
A goal established by statute and/or regulation.
EOIR documents the immigration courts' success in meeting the case
completion goals for the 11 case types in internal quarterly reports.
According to EOIR, the case completion goal reports are intended to
measure whether the courts are meeting their completion goals, not to
define the total caseload of the courts (all cases awaiting adjudication).
35 In developing these reports, EOIR management decided to exclude from
the measurement certain categories of cases that, due to extenuating
circumstances, are not expected to be completed within the established
goals. For example, DHS is responsible for conducting background and
security checks on all immigrants in immigration court proceedings. Since
EOIR's Office of Planning Analysis and Technology uses data from its case
management system to calculate how well the courts are meeting the case
completion goals. The office uses a structure query language to convert
data from its case management system and to generate the case completion
goal data. Structure query language is a standardized language for
retrieving and updating data in relational databases and tables, which
allows a user to generate counts and statistics, select records or fields,
and merge tables. For each of the 11 case types, EOIR's queries count the
total number of cases awaiting adjudication at the start of a quarter, the
total number of newly filed cases, the total number of completions (both
cases awaiting adjudication at the start of a quarter and newly filed
cases), the total number of cases that were completed within goal, and the
total number of cases awaiting adjudication at the end of a quarter.
the courts cannot grant an applicant relief from removal until all checks
have been favorably completed, these cases are exempted from case
completion goals. As a result, the number of cases covered by the
quarterly reports is less than the total court caseload. Additionally,
depending on what cases are excluded from the case completion goals, the
makeup of the cases included in the reports can change from one quarter to
the next. These facts are not clearly reflected in the reports themselves.
Our preliminary review of EOIR's quarterly reports identified
inconsistencies in some reports. For example, we noted a recurring
inconsistency between reports: the number of cases awaiting adjudication
at the end of a quarter was not the same as the number of cases awaiting
adjudication at the beginning of the following quarter. EOIR provided
several reasons for the inconsistency, as follows: (1) the EOIR case
management system is a live data base that is constantly changing as
events occur to immigration cases in the courts; (2) changes occur to the
number of cases awaiting adjudication from one quarter to another when
categories of cases are exempted from the case completion goals, since
once a case is exempted it is no longer included in the reports; (3) cases
double entered by DHS in the automated scheduling system were deleted;
(4) reconciliations were necessary due to changes to date fields to update
cases in the data base; (5) delays in data entry occurred; and (6)
programming errors occurred in the calculation of the data.
We could not evaluate the reasonableness of EOIR's explanation; however,
EOIR's reasons did not appear to explain completely the inconsistency
between the number of cases awaiting adjudication at the end of the
quarter and the number of cases awaiting adjudication at the beginning of
the following quarter. EOIR said that the agency does not use the
quarterly reports to monitor and report on cases awaiting adjudication;
rather, other comprehensive reports serve that purpose. According to EOIR,
the case completion goal reports have a specific purpose: to report solely
on the percentage of cases completed within the goals for the appropriate
reporting period. EOIR stated that it evaluates the case completion goal
data against other sources of data to ensure the accuracy of the case
completion goal data prior to release within the agency, following
established protocols.
We also identified inconsistencies in a 2002 report where the reported
total number of completions did not equal the sum of its components. EOIR
responded to our inquiry about this inconsistency that a programmer had
used the wrong end date for a quarter and therefore retrieved more cases
than should have been included.
EOIR has changed its criteria for compiling the case completion goal
reports over time, as EOIR management has established new specifications
to identify the cases to be included in the case completion goals. When
the agency approves categories of cases to be excluded from the reports,
the queries used to run the reports are updated accordingly. EOIR reported
that it maintains the historical documentation of the changes it has made
to the reports through memos approved by EOIR management outlining each
change in the case completion goal criteria. However, EOIR does not
maintain the individual queries used to run each of the prior quarterly
reports; it only maintains the current set of queries. As a result, we
could not replicate the past reports to determine the accuracy of the case
completion goal data. The inconsistencies indicate that EOIR should
maintain appropriate documentation to demonstrate the accuracy of data
reported by EOIR.
Peer Evaluations Used to Evaluate Court Operations
Another means that EOIR/OCIJ uses to evaluate its courts' performance is
peer evaluation-its Immigration Court Evaluation Program (ICEP). The ICEP
was established in July 1997 to evaluate court operations based on
objectives established by OCIJ, identify challenges to achieving agency
goals, and recommend appropriate corrective measures.36 The evaluation
program seeks to make recommendations for improving court operations by
evaluating the courts' organizational structure, caseload, and workflow
processes to assess the efficiency of the court in accomplishing its
mission. Judges' individual hearing decisions are the only aspect of court
operations that are not evaluated.
OCIJ established a Court Evaluation Unit (CEU) to manage the coordination
and operation of the court evaluation program. The CEU selects courts to
be evaluated, notifies the courts being selected, prepares an evaluation
schedule, and sends out pre-evaluation questionnaires. While the Chief
Immigration Judge selects the evaluation team members, the CEU is
responsible for training the evaluation team as well as identifying a team
leader. The evaluation team is comprised of volunteers of one or more
immigration judge(s), court administrator(s), court
36
Its predecessor was the Field Office Case Management Review Program, which
was primarily a file review that had been in existence since 1988.
According to EOIR, the Chief Immigration Judge determined that this
evaluation program was insufficient in scope to adequately fulfill his
responsibility for evaluating the performance of the courts, making
appropriate reports and inspections, and taking corrective action where
indicated. As such, the ICEP program was developed to give the Chief
Immigration Judge increased oversight of the courts.
interpreter(s), and legal technician(s). The participation of team members
from diverse courts and positions is intended to facilitate the exchange
of information regarding best practices of court operations. The size of
the evaluation team depends on the size of the court being evaluated. For
example, in fiscal year 2004, the team that evaluated the Bradenton
immigration court in Florida, a small court with 2 authorized full-time
permanent immigration judges, consisted of 3 team members, while the team
that evaluated the Miami immigration court in Florida, a large court with
21 authorized full-time permanent immigration judges, had 13 members. OCIJ
has established an evaluation program cycle in which approximately 10 to
12 courts have been evaluated per year. Each court has typically been
evaluated approximately once every 4 years.
During the onsite visit, the evaluation team gathers information about the
court under review in a variety of ways. The evaluation team conducts
interviews with local court personnel, DHS officials, and members of the
private bar. Evaluation team members select and review a random sample of
court files and administrative records maintained by the court. While
conducting interviews and reviewing court documentation, the evaluation
team assesses aspects of court operations: immigration court initiatives,
security, case management and case processing, DHS/immigration bar
relations, administrative operations, and database management.
As shown in figure 5, the ICEP is comprised of a five-stage process.
Following the week long onsite visit, the evaluation team summarizes the
evaluation findings and recommendations and prepares a draft report for
the Chief Immigration Judge's review. Within 10 business days of receipt
of the draft report, the evaluated court is to submit written comments on
the draft report.37 After reviewing the draft report and court's comments,
the Chief Immigration Judge prepares an action plan addressing the draft
report's specific recommendations-the action plan clarifies which
corrective actions will be taken, who will be responsible for completing
that action, and the date by which the action must be completed.
Approximately 3 months after completion of the action plan, the court must
submit a written "Self-Certification" attesting to the actions taken to
The court response is prepared by the court administrator and the liaison
immigration judge for the court being evaluated. Judges serve on a
rotational basis as the liaison judge to act as the point of contact
regarding topics and issues between the immigration judges and the
responsible ACIJ, the court administrator, the local private bar, the
local DHS office, and other appropriate local contacts such as local law
schools. Liaison judges do not have any supervisory responsibilities.
Page 25 GAO-06-771 Executive Office for Immigration Review
implement the action plan.38 After receipt of the self-certification, the
CEU drafts a final report for the Deputy Chief Immigration Judge's
signature. After the court evaluation process is complete, the final
evaluation report is distributed to the EOIR Director and Deputy Director,
the Chief Immigration Judge, the Deputy Chief Immigration Judges, the
responsible ACIJ, the liaison immigration judge and court administrator
for the evaluated court, the chief clerk of the immigration court, all
evaluation team members, and the CEU program analyst.
Prior to fiscal year 2003, the evaluation team leader conducted a
follow-up visit to assess progress made in implementing the
recommendations and prepared a report. However, due to budgetary
constraints, this practice was discontinued. Beginning in fiscal year
2003, the court administrator, liaison immigration judge, and the ACIJ
were required to submit the self-certification of actions taken.
Page 26 GAO-06-771 Executive Office for Immigration Review
Figure 5: OCIJ Immigration Court Evaluation Process
Source: GAO.
EOIR/OCIJ Monitors Complaints against Immigration Judges
EOIR/OCIJ also monitors complaints against immigration judges, a practice
that began in October 2003, at the direction of the EOIR Director. Since
then, complaint reports have been generated on a monthly basis for
internal use only. According to EOIR, the goal of the reports is to
provide a centralized and comprehensive compilation of written and oral
complaints to EOIR management regarding immigration judges' conduct on the
bench, as well as the status of those complaints. OCIJ sends the reports
to the EOIR Director on a monthly basis.
Complaints against immigration judges are received from a variety of
sources, including immigrants, the immigrants' attorneys, DHS trial
attorneys, other immigration judges, other court staff, OCIJ headquarters
staff, and others. They are raised to OCIJ management either orally or in
writing, primarily from the ACIJ with supervisory responsibility over the
affected immigration judge.39 In meetings with the DHS components and the
American Immigration Lawyers Association, EOIR said that it has advised
them that their employees or members should raise complaints, as issues
arise, to the appropriate ACIJ. According to EOIR, OCIJ is to immediately
notify the EOIR Director when a complaint is filed against an immigration
judge, even if OCIJ has not had an opportunity to verify the accuracy of
the allegation.
According to EOIR, the ACIJ with supervisory responsibility over the
affected immigration judge is the responsible party for addressing the
complaint, unless a referral to DOJ's Office of Professional
Responsibility is deemed warranted. The Office of Professional
Responsibility, which reports directly to the Attorney General, is
responsible for investigating allegations of misconduct involving
Department attorneys, investigators, or law enforcement personnel, where
the allegations relate to the exercise of the authority of an attorney to
investigate, litigate, or provide legal advice. Once a referral is deemed
warranted, either OCIJ, through EOIR's Office of General Counsel, or the
Office of General Counsel can refer a matter to the Office of Professional
Responsibility for investigation. Matters involving criminal or serious
administrative misconduct such as an allegation that a judge had a
business relationship with an immigration attorney are referred to the
DOJ's Office of the Inspector General.
According to its complaint reports, OCIJ received 129 complaints against
immigration judges during fiscal years 2001 through 2005. As of September
30, 2005, OCIJ had taken action on 121 of these complaints; the remaining
8 were still under review. In response to the 121 complaints, OCIJ took
134 actions.40 The actions taken were as follows: about 25 percent (34)
were found to have no merit; about 25 percent resulted in disciplinary
actions against the judges that included counseling (18), written
reprimand (9), oral reprimand (3), and suspension (4); about 22 percent
(29) were referred to DOJ's Office of Professional Responsibility or
Office of the Inspector General or EOIR's Office of General Counsel for
further
39
According to EOIR, the ACIJs routinely deal with operational issues that
fall short of a complaint.
40
A complaint may be associated with more than one action.
Page 28 GAO-06-771 Executive Office for Immigration Review
review;41 and the remaining 28 percent (37) resulted in various other
actions such as informing complainants of the Office of Professional
Responsibility process or their appeal rights to BIA.
In January 2006, the Attorney General requested a comprehensive review of
the immigration courts, to include the quality of work as well as the
manner in which it is performed. According to DOJ officials, the review
was initiated in part in response to complaints about the professionalism
of immigration judges, including their treatment of the people appearing
before them and the quality of their work. The review included, among
other things, interviews with selected court personnel, private attorneys
and immigration organizations, observations of court hearings, and on-line
surveys of other court personnel and DHS trial attorneys. On August 9,
2006, the Attorney General announced the completion of the review and a
number of reforms to improve the performance and quality of the
immigration court system. They include, among other reforms, the
establishment of performance evaluations for immigration judges; the
development of an immigration law examination for newly appointed
immigration judges; the hiring of more immigration judges and judicial law
clerks; and improvements in technology and support to strengthen the
courts' ability to record, transcribe, and interpret court proceedings.
Conclusions
EOIR and its immigration courts play a critical role in upholding
immigration law. Immigrants depend upon the courts to ensure the timely
and fair adjudication of their cases, and U.S. residents depend upon the
courts to order the removal of individuals from the United States who lack
a legal right to be here. If the increase in caseload continues to outpace
the growth in the number of immigration judges, the strain on the
immigration courts will likely intensify. Given these conditions, EOIR
will be challenged to judiciously manage its caseload and improve its
courts' performance. EOIR has taken steps to improve the immigration
courts' performance. As part of this process, EOIR has used quarterly case
completion goal reports that contained inconsistencies. However, EOIR's
lack of historical data on the individual queries used to run each
quarterly
41
According to OCIJ's complaint reports, of the 29 complaints that were
referred to these offices, 17 were still pending. In closing the other 12
complaints, these offices found 8 complaints to have no merit. However,
for three of these complaints, OCIJ counseled or gave a written warning to
the immigration judges despite finding no ethical violations. In response
to the remaining 4 closed complaints, OCIJ took disciplinary actions
against the judges that included counseling (2), written reprimand (2),
and suspension (1).
Page 29 GAO-06-771 Executive Office for Immigration Review
report precluded our ability to replicate the data and determine the
accuracy of the reports. By better documenting its case completion goal
data, EOIR would enable users of the data, including members of its
management, to better understand exactly what is being measured and the
data's implications for the courts' efficiency.
Recommendations for Executive Action
To more accurately and consistently reflect the immigration courts'
progress in the timely adjudication of immigration cases, we recommend
that the Director of EOIR (1) maintain appropriate
documentation to demonstrate the accuracy of case completion goal reports;
and (2) clearly state what cases are being counted in the reports.
Agency Comments and Our Evaluation
After reviewing a draft of this report, EOIR responded in an e-mail that
it concurred with GAO's recommendations. EOIR also provided technical
comments, which we have included as appropriate.
As agreed with your office, unless you publicly announce its contents
earlier, we plan no further distribution of this report until 30 days from
its date. At that time, we will send copies to the Attorney General, the
Director of EOIR, and interested congressional committees. We will also
make copies available to others upon request. In addition, the report will
be available at no charge on GAO's Web site at http://www.gao.gov.
If you have any questions about this report or wish to discuss it further,
please contact me at (202) 512-8777 or [email protected]. Contact points for
our Offices of Congressional Relations and Public Affairs may be found on
the last page of this report. Key contributors to this report can be found
in appendix III.
Sincerely yours,
Paul L. Jones
Director, Homeland Security and Justice Issues
Appendix I: Scope and Methodology
Our objectives in this report are to answer the following questions: (1)
in recent years, what has been the trend in immigration courts' caseload,
(2) how does the Office of the Chief Immigration Judge (OCIJ) assign and
manage immigration court caseload, and (3) how does the Executive Office
for Immigration Review (EOIR)/OCIJ evaluate the immigration courts'
performance?
To address these objectives, we met with officials from the Department of
Justice's EOIR headquarters to obtain information and documentation on
caseload trends, caseload management, and evaluation of immigration
courts. To gain a better understanding of the operations and management of
immigration courts, we also visited four immigration courts-Arlington in
Arlington, Virginia; Newark in Newark, New Jersey; and two courts in New
York City, New York. We selected these four courts to include courts
varying in size,1 based on the number of immigration judges. At these
locations, we observed court proceedings and met with immigration judges,
court administrators, and attorneys that litigate cases before the
immigration courts-attorneys from the Office of Chief Counsel of DHS's
Immigration and Customs Enforcement and private bar attorneys.
Furthermore, we obtained and analyzed case information contained in EOIR's
case management system as well as staffing data for fiscal years 2000
through 2005 and OCIJ's reports for court evaluations conducted in fiscal
years 2000 and 2004. We also interviewed representatives of the National
Association of Immigration Judges, the American Immigration Lawyers
Association, and the American Bar Association, Commission on Immigration.
To address the first objective concerning the trend in immigration courts'
caseload in recent years, we reviewed data from EOIR's case management
system, Automated Nationwide System for Immigration Review, and obtained
and reviewed relevant documents, regulations, and policies pertaining to
the immigration courts' caseload and factors affecting caseload. We
assessed the reliability of those data needed to answer this objective by
(1) performing electronic testing for obvious errors in accuracy and
completeness, (2) reviewing related documentation about the data and the
system that produced them, including a contractor's report on data
verification of the case management system, and
1
EOIR categorizes courts according to the number of judges. While some
courts only have a single judge, small courts have 2 to 4 judges; medium
courts, 5 to 14 judges; and large courts, 15 or more judges.
Page 31 GAO-06-771 Executive Office for Immigration Review Appendix I:
Scope and Methodology
(3) interviewing agency officials knowledgeable about the data. We
determined that the data were sufficiently reliable for the purposes of
this report. From this system, we generated immigration court caseload
data for fiscal years 2000 through 2005 for all cases--proceedings, bond
redeterminations, and motions to reopen or reconsider---and analyzed them
for accuracy and completeness. Using SAS software, based on criteria
provided by EOIR, we generated and reviewed unique data at both the global
and immigration court level, on the number of newly filed cases, cases
awaiting adjudication, completed cases, and in absentia decisions, as well
as the age of proceedings awaiting adjudication.
To address the second objective concerning how OCIJ assigns and manages
immigration courts' caseload, we conducted interviews with OCIJ officials,
conducted site visits to four immigration courts, and reviewed EOIR's
authorized and on-board staffing data for fiscal years 2000 through 2005,
as well as their procedures for detailing immigration judges. We also
reviewed policies, procedures, and other documents relating to OCIJ's
caseload management. According to EOIR, the staffing data are from the
Department of Agriculture's National Finance Center database, which
handles payroll and personnel data for DOJ and other agencies. While we
did not independently verify the reliability of the staffing data, we
compared them with other supporting documents, when available, to
determine data consistency and reasonableness.
To address the third objective concerning how EOIR/OCIJ evaluates the
immigration courts' performance, we obtained and reviewed from EOIR
internal quarterly case completion goal reports for fiscal years 2001 to
2005; documents concerning the establishment and refinement of the case
completion goals; 22 court evaluation reports and related documents for
the 12 immigration courts evaluated in fiscal years 2000 and 2004; and
monthly reports containing information on complaints against immigration
judges received in fiscal years 2001 to 2005. Further, we reviewed
relevant memos and documents prepared by EOIR officials pertaining to
EOIR's monitoring and evaluation programs, as well as the Department of
Justice's "Report on Performance and Accountability" and budgets for
fiscal years 2000 through 2005. To assess the reliability of EOIR's case
completion goal reports, we (1) performed logic testing of the data for
obvious inconsistencies in accuracy and completeness and (2) interviewed
and sent questions to agency officials knowledgeable about the reports. We
also reviewed the relevant internal control standards for such reports.
When we found inconsistencies in the reports we brought them to the EOIR
officials' attention and they provided reasons for the inconsistencies.
However, we could not evaluate the reasonableness of EOIR's
Appendix I: Scope and Methodology
explanations of the inconsistencies or the overall reliability of each of
its quarterly reports because EOIR has changed its criteria for compiling
the reports over time and only maintains documentation on the current set
of queries used to run the reports. Therefore, we determined that the data
in the quarterly reports were not sufficiently reliable for purposes of
this report.
We conducted our work from March 2005 through August 2006 in accordance
with generally accepted government auditing standards.
Appendix II: Glossary
Adjustment of status
A type of relief from deportation, removal, or exclusion for an immigrant
who is eligible for Lawful Permanent Resident status based on a visa
petition approved by the Department of Homeland Security (DHS). The status
of an immigrant may be adjusted by the Attorney General, in his
discretion, to that of a lawful permanent resident if a visa petition on
behalf of the immigrant has been approved, an immigrant visa is
immediately available at the time of the immigrant's application for
adjustment of status, and the immigrant is not otherwise inadmissible to
the United States.
Affirmative asylum application
An asylum application initially filed with DHS's U.S.
Citizenship and Immigration Services.
Application for relief
Immigrants may request a number of forms of relief
or protection from removal such as asylum, withholding of removal,
protection under the Convention Against Torture, adjustment of status, or
cancellation of removal. Many forms of relief require the immigrant to
fill out an appropriate application.
Asylum
An immigrant may be eligible for protection and immunity from
removal if he or she can show that he or she is a "refugee." The
Immigration and Nationality Act generally defines a refugee as any person
who is outside his or her country of nationality or, in the case of a
person having no nationality, is outside any county in which such person
last habitually resided, and who is unable or unwilling to return to, and
is unable or unwilling to avail himself or herself of the protection of,
that country because of persecution or a well-founded fear of persecution
on account of race, religion, nationality, membership in a particular
social group, or political opinion. Immigrants generally must apply for
asylum within 1 year of arrival in the United States. In the absence of
exceptional circumstances, final administrative adjudication of the asylum
application, not including administrative appeal, must be completed within
180 days after the date the application is filed.
Appendix II: Glossary
Bond
The DHS may detain an immigrant who is in removal or deportation
proceedings and may condition his or her release from custody upon the
posting of a bond to ensure the immigrant's appearance at the hearing. The
amount of money set by DHS as a condition of release is known as a bond. A
bond may be as a condition of voluntary departure at the master calendar,
and a bond must be set by an immigration judge as a condition for allowing
an immigrant to voluntarily leave the country at the conclusion of
proceedings.
Bond redetermination
When DHS has set a bond amount as a condition for release from custody or
has determined not to release the immigrant on bond, the immigrant has the
right to ask an immigration judge to redetermine the bond. In a bond
redetermination hearing, the judge can raise, lower, or maintain the
amount of the bond; however, the Immigration and Nationality Act provides
that bond of at least $1,500 is required before an immigrant may be
released. In addition, the immigration judge can eliminate the bond; or
change any of the bond conditions over which the immigration court has
authority. The bond redetermination hearing is completely separate from
the removal or deportation hearing. It is not recorded and has no bearing
on the subsequent removal or deportation proceeding. The immigrant and/or
DHS may appeal the immigration judge's bond redetermination decision to
the Board of Immigration Appeals.
Cancellation of removal
There are two different forms of cancellation of removal:
(A)
Cancellation of removal for certain lawful permanent residents who
were admitted more than 5 years ago, have resided in the United
States for 7 or more years, and have not been convicted of an
aggravated felony. Application for this form of discretionary
relief is made during the course of a hearing before an
immigration judge.
(B)
Cancellation of removal and adjustment of status for certain
nonpermanent resident immigrants who have maintained continuous
physical presence in the United States for 10 years and have met
all the other statutory requirements for such relief. Application
for this form of discretionary relief is made during the course of
a hearing before an immigration judge. The status of an immigrant
who is granted cancellation of removal for certain nonpermanent
resident immigrants is adjusted to that of an immigrant lawfully
admitted for permanent residence.
Cases
All proceedings, bond redeterminations, and motions to reopen or
reconsider that are before the immigration courts.
Case awaiting adjudication
A case that has not been completed.
Case completion
A case is considered completed once an immigration judge
renders a decision. Proceedings may also be completed for other reasons,
such as administrative closures, changes of venue, and transfers.
Caseload
All cases awaiting adjudication.
Change of venue
lmmigration judges, for good cause shown, may change venue
(move the proceeding to another immigration court) only upon motion by one
of the parties, after the charging document has been filed with the
immigration court. The regulation provides that venue may be changed only
after one of the parties has filed a motion to change venue and the other
party has been given notice and an opportunity to respond.
Charging document
A written instrument prepared by DHS charging an
immigrant with a violation of immigration law.
Claimed status review
If an immigrant in expedited removal proceedings
claims under oath to be a U.S. citizen, to have been lawfully admitted for
permanent residence, to have been admitted as a refugee, or to have been
granted asylum, and DHS determines that the immigrant has no such claim,
he or she can obtain a review of that claim by an immigration judge.
Credible fear
If an immigrant seeking to enter the United States has no documents or no
valid documents to enter, but expresses a fear of persecution or torture,
or an intention to apply for asylum, that immigrant will be referred to a
DHS asylum officer for a credible fear determination. If the asylum
officer determines that the immigrant has not established a credible fear
of persecution or torture and a supervisory asylum officer concurs, the
immigrant may request review of that determination by an immigration
judge. That review must be concluded as expeditiously as possible, to the
maximum extent practicable within 24 hours, but in no event later than 7
days after the date of the determination by the supervisory asylum
officer. No appeal to the Board of lmmigration Appeals may be taken from
the immigration judge's decision finding no credible fear of persecution
or torture. If the immigration judge determines that the immigrant has a
credible fear of persecution or torture, the immigrant will be placed in
removal proceedings to apply for asylum.
Decision
A determination and order arrived at after consideration of facts
and law, by an immigration judge.
Defensive asylum application
An asylum application initially filed with the
immigration court after the immigrant has been put into
proceedings to remove him or her from the United States.
Detained
Detained immigrants are those in the custody of DHS or other
entities. lmmigration court hearings for detained immigrants are conducted
in DHS Service Processing Centers, contract detention facilities, state
and local government jails, and Bureau of Prisons' institutions.
Expedited asylum
Asylum regulations implemented in 1995 mandated that asylum applications
be processed within 180 days after filing either at a DHS U.S. Citizenship
and lmmigration Services Asylum Office or at an immigration court. The
Illegal lmmigration Reform and Immigrant Responsibility Act of 1996
reiterated the 180-day rule. Consequently, expedited processing of asylum
applications occurs when (1) an immigrant files "affirmatively" at an
Asylum Office on or after January 4, 1995, and the application is referred
to the EOIR by DHS within 75 days of the filing; or (2) an immigrant files
an application "defensively" with EOlR on or after January 4, 1995.
Filing
A filing occurs with the actual receipt of a document by the
appropriate immigration court.
lmmigration judge
lmmigration judge is an attorney whom the Attorney General appoints as an
administrative judge within EOIR, qualified to conduct specified classes
of proceedings, including exclusion, deportation, removal, asylum, bond
redetermination, rescission, withholding, credible fear, reasonable fear,
and claimed status review. lmmigration judges act as independent decision
makers in deciding the matters before them. lmmigration judge decisions
are administratively final unless appealed or certified to the Board of
lmmigration Appeals, or if the period by which to file an appeal lapses.
In absentia
A Latin phrase meaning "in the absence of." An in absentia hearing occurs
when an immigrant fails to appear for a hearing and the immigration judge
conducts the hearing without the immigrant present and orders the
immigrant removed from the United States. An immigration judge is to order
removed in absentia any immigrant who, after written notice of the time
and place of proceedings and the consequences of failing to appear, fails
to appear at his or her removal proceeding. The DHS must establish by
clear, unequivocal, and convincing evidence that the written notice was
provided and that the immigrant is removable.
Inadmissible
The Illegal lmmigration Reform and Immigrant Responsibility
Act of 1996 replaced the term "excludable" with the term "inadmissible."
Section 212 of the Immigration and Nationality Act defines classes of
immigrants ineligible to receive visas and ineligible for admission.
Immigrants who, at the time of entry, are within one of these classes of
inadmissible immigrants are removable.
Individual merits hearing
The hearing in which the government must prove
the charges alleged in the charging document. The immigrant also is able
to present his or her case to the immigration judge with witnesses and
persuade the immigration judge to use his or her discretion and allow the
immigrant to remain in the United States (if such relief exists).
Institutional hearing program
The lmmigration Reform and Control Act of 1986
requires the Attorney General to expeditiously commence
immigration proceedings for immigrant inmates convicted of crimes in the
United States. To meet this
requirement, the Department of Justice established the Institutional
Hearing Program where removal hearings are held inside correctional
institutions prior to the immigrant completing his or her criminal
sentence. The Institutional Hearing Program is a collaborative effort
between EOIR and DHS and various federal, state, and local corrections
agencies throughout the country.
Master calendar
A preliminary hearing held to review the charges in the charging document
before an immigration judge. The immigration judge explains the
immigrant's rights (e.g., the immigrant's right to an attorney) and asks
if the immigrant agrees with or denies the charges as alleged by DHS in
the charging document. The immigration judge determines if the immigrant
is eligible for any form(s) of relief, and sets a date for the individual
merits hearing.
Motion
A motion is a formal request from either party (the immigrant or
DHS) in proceedings before the immigration court, to carry out an action
or make a decision. Motions include, for example, motions for change of
venue, motions for continuance, motions to terminate proceedings, etc.
Motion to reconsider
Immigrants may request, by motion, the reconsideration of a case
previously heard by an immigration judge. A motion to reconsider either
identifies an error in law or fact in a prior proceeding or identifies a
change in law and asks the immigration judge to re-examine his or her
ruling. A motion to reconsider is based on the existing record and does
not seek to introduce new facts or evidence.
Motion to reopen
Either party makes a formal request before the
immigration court to reopen the case.
Non-detained
The status of an immigrant who is not in the custody of DHS or the
Institutional Hearing Program.
Notice to Appear
The document (Form 1-862) used by DHS to charge an
immigrant with being removable from the United States. Jurisdiction vests
and proceedings commence when a Notice to Appear is filed with an
immigration court by DHS.
Proceeding
The legal process conducted before the immigration court.
Relief from removal
In hearings before an immigration judge, an immigrant
may be able to seek relief from removal. Various types of relief may be
sought, including asylum, withholding of removal, protection under the
Convention Against Torture, cancellation of removal, or adjustment of
status. Many forms of relief require the immigrant to fill out an
appropriate application.
Removal proceedings
An immigration court proceeding begun on or after April 1, 1997, seeking
to either stop certain immigrants from being admitted to the United States
or to remove them from the United States. A removal case usually arises
when DHS alleges that an immigrant is inadmissible to the United States,
has entered the country illegally by crossing the border without being
inspected by an immigration officer, or has violated the terms of his or
her admission. The DHS issues a charging document called a Notice to
Appear and files it with an immigration court to begin a removal
proceeding.
Voluntary departure
An immigrant agrees to depart from the United States without an order of
removal. The departure may or may not have been preceded by a hearing
before an immigration judge. An immigrant allowed to voluntarily depart
concedes removability but is not barred from seeking admission at a port
of entry in the future. Failure to depart within the time granted results
in a fine and a 10-year bar against the immigrant applying for several
forms of relief from removal.
Appendix III: GAO Contact and Staff Acknowledgments
GAO Contact
Paul L. Jones (202) 512-8777
In addition to the contact named above, Eric Bachhuber, Frances Cook,
Katherine Davis, Evan Gilman, Clarette Kim, Grant Mallie, Katrina Moss,
Sandra Tasic, Margaret Vo, and Robert White made key contributions to this
report.
(440381)
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