EOIR's Hiring Practices Raise Concerns

In response to a whistleblower’s letter from within EOIR, ranking Senate Democrats have requested an investigation into improper political influence in EOIR’s hiring criteria for immigration judges and members of the Board of Immigration Appeals.  https://democrats-judiciary.house.gov/news/press-releases/top-dems-request-inspector-general-investigation-allegations-illegal-hiring.  Following up on an April 17 letter to Attorney General Sessions, the Democratic leaders on May 8 stated that in subsequent weeks, more whistleblowers have come forward to corroborate the delaying or withdrawal of IJ appointments to candidates whose political views are not believed to align with those of the present administration.

There seems to be little if any doubt among EOIR employees that this is in fact happening.  The resulting slowdown in IJ hiring is further exacerbating the huge backlog of cases plaguing the immigration courts.  There are presently no judges sitting in the Louisville, Kentucky immigration court; other courts are simply understaffed.  In what my friend and fellow blogger Hon. Paul W. Schmidt has termed "ADR" (Aimless Docket Reshuffling), sitting IJs are being detailed to hear cases in courts with vacancies, forcing the continuance of cases on their own dockets, some of which have been waiting two or more years for their day in court.

It was just under 10 years ago that a 140 page report of the Department of Justice’s Office of the Inspector General found similar wrongdoing in the hiring of IJs under the Bush administration.  https://oig.justice.gov/special/s0807/final.pdf  That report noted at p.135 that “both Department policy and federal law prohibit discrimination in hiring for career positions on the basis of political affiliations.”  That investigation found that such policy and law had been violated, and included recommendations to prevent a future recurrence of such improper conduct. Then as now, the slowdown in IJ hiring caused by the improper political screening of candidates compromised EOIR’s mission (in the words of the agency’s Director at the time, at p.96), and contributed to the growing case backlog.

In another employment-related development that has drawn little public notice, the Department of Justice on May 17 posted a hiring ad for 38 vacant staff attorney positions at the BIA.  The twist is that for the first time, the positions were advertised as being entry level grade positions with no potential for promotion.

EOIR Director James McHenry had hinted since his appointment that he believed BIA attorney positions should be downgraded.  There is something disingenuous about such statement. I can think of at least three immigration judges who were appointed to the bench directly from their positions as non-supervisory BIA staff attorneys.  Two of the four temporary BIA Board Members at present are long-term BIA staff attorneys. The present BIA chairperson, David Neal, previously served as a Board staff attorney for 5 years, a position that apparently qualified him to directly become chief counsel to the Senate Immigration Subcommittee.  Nearly all of the BIA’s decisions, including those that are published as precedent binding on the agency and DHS, are drafted by its staff attorneys. Some of those attorneys have accumulated significant expertise in complex areas of immigration law. A number of Board staff attorneys have participated as speakers at the immigration judge training conferences.

The question thus becomes: how are experienced attorneys who are deemed qualified to move directly into immigration judge and BIA Board Member positions, to craft precedent decisions and to train immigration judges only deemed to be entry level, non-career path employees?

There has been much attention paid to the nearly 700,000 cases pending before the nation’s immigration courts.  As the agency moves to hire more judges and limit continuances, and recently had its power to administrative close cases revoked by the AG, the number and pace of cases appealed to the BIA will speed up significantly.  It would seem like a good time for the BIA to be staffed with knowledgeable and experienced staff attorneys. Instead, the agency’s move essentially turns new BIA attorney hires into short-term law clerks.  New attorneys undergo a full year of legal training to bring them up to speed to handle the high volume and variety of complex legal issues arising on appeal. However, attorneys are unlikely to remain in such positions for much more than a year without the possibility of promotion.

Copyright 2018 Jeffrey S. Chase.  All rights reserved.