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Necessary Immigration Reforms PLAYING POLITICS at the BENCH: A White Paper on the Justice Department’s Investigation into the Hiring Practices of Immigration Judges Prepared by Penn State Law’s Center for Immigrants’ Rights for the National Immigration Project of the National Lawyers Guild n a t i o n a l IMMIGRATION p r o j e c t of the national lawyers guild SHOBA SIVAPRASAD WADHIA DAN KESSELBRENNER, Executive Director Clinical Professor of Law PAROMITA SHAH, Associate Director Director, Center for Immigrants’ Rights www.nationalimmigrationproject.org Penn State Law www.law.psu.edu TABLE OF CONTENTS CHAPTER 1: INTRODUCTION I. Preface and Acknowledgements………………………………………………………. 2 II. Table of Abbreviations…………………………………………………………………. 4 III. Quick Reference to the Immigration Court System.……………………….………... 5 A. Brief Explanation of the U.S. Immigration Courts B. Brief History of the Executive Office of Immigration Review IV. Participants in the Illegal Hiring Process…………………………………….………10 V. Executive Summary……………………………………………………………...……. 11 CHAPTER 2: OFFICE OF PROFESSIONAL RESPONSIBILITY AND THE OFFICE OF THE INSPECTOR GENERAL REPORT ON THE POLITICIZED HIRING OF IMMIGRATION JUDGES I. Introduction……………………………………………………………………………. 16 A. Background: DOJ Hiring Standards II. Illegal Hirings in the Department of Justice……….……………………………....... 19 A. EOIR Hiring Process for Immigration Judges and BIA Members Before 2003 B. The New EOIR Hiring Process for Immigration Judges and BIA Members C. Kyle Sampson‘s Story D. Sampson‘s Candidates for Immigration Judge Positions E. Jan Williams‘ Loyalty Pledge F. Monica Goodling‘s Politicized Hiring of Immigration Judges G. Republican Immigration Judges Recommend Candidates H. Goodling Extends Sampson‘s Hiring Process to BIA Members III. Report Conclusions and Recommendations………………………..……………….. 46 CHAPTER 3: SURVEYS I. Introduction & Analysis….…………………………………………………………… 52 CHAPTER 4: RECOMMENDATIONS I. Summary & Recommendations ……………........……………………….…….…...... 54 TABLE OF APPENDICES…..……………………………………...…………….……...….. 61 I. Preface On behalf of the National Lawyers Guild National Immigration Project (NLGNIP), the Center for Immigrants' Rights (Center) at the Pennsylvania State University's Dickinson School of Law prepared a white paper facilitated by a government report on the politicized hiring of immigration judges. This white paper is based findings by the Department of Justice‘s Office of Professional Responsibility and Office of the Inspector General in their investigation of the illegal hiring of immigration judges during a period in the George W. Bush Administration. The recommendations presented here are a product of this analysis and extensive research on data produced by individuals and organizations committed to due process and justice in immigration law. The National Lawyers Guild National Immigration Project (NLGNIP) is a national organization comprised of lawyers, legal workers, and law students working to defend and expand the rights of all immigrants in the United States. The National Immigration Project is particularly committed to working on behalf of battered women, people with HIV/AIDS, children, and noncitizen criminal defendants. The NLGNIP provides legal assistance as well as other technical support to immigrant communities, legal practitioners, and advocates who work to advance the rights of noncitizens. The organization seeks to promote justice and equality of treatment in all areas of immigration law, the criminal justice system, and social policies related to immigration. The Center for Immigrants‘ Rights is an in-house clinic at the Pennsylvania State University Dickinson School of Law whose mission is to represent immigrants‘ interests through legal excellence, advocacy, education, and collaboration with key stakeholders and the community. The Center teaches law students the skills necessary to be effective immigration 2 advocates and attorneys, primarily through organizational representation, where students work on innovative advocacy and policy projects relating to U.S. immigration policy and immigrants‘ rights. Students build professional relationships with government and nongovernmental policymakers, academics, and individuals. Students acquire essential practical and substantive knowledge of immigration lawyering and advocacy through project specific work, weekly classes, readings reflecting papers, and ―case rounds.‖ This paper was authored by Alham Usman and Christina Heischmidt, law students in the Center for Immigrants‘ Rights at the Pennsylvania State University Dickinson School of Law, under the supervision of Professor Shoba Sivaprasad Wadhia, Director of the Center for Immigrants‘ Rights at the Pennsylvania State University Dickinson School of Law. Feedback and edits were also provided by Paromita Shah, Associate Director of the National Immigration Project of the National Lawyer‘s Guild; and Dan Kesselbrenner, Executive Director of the National Immigration Project of the National Lawyer‘s Guild. Penn State law student Nicole Comstock assisted with citation checks. The Center and NLGNIP thank Stephen H. Legomsky, Lory D. Rosenberg, and members of the National Immigration Project for their contributions and insights. 3 II. Table of Abbreviations AAG Assistant Attorney General AG Attorney General ACIJ Assistant Chief Immigration Judge ACLU American Civil Liberties Union AILA American Immigration Lawyers Association AUSA Assistant United States Attorney BIA Board of Immigration Appeals CD Civil Division CIJ Chief Immigration Judge DAG Deputy Attorney General DOJ Department of Justice EOIR Executive Office of Immigration Review EOUSA Executive Office United States Attorney GAO Government Accountability Office ICE U.S. Immigration and Customs Enforcement IJ Immigration Judge INA Immigration & Nationality Act INS Immigration & Naturalization Service JMD Justice Management Division NLGNIP National Lawyers Guild National Immigration Project OAG Office of the Attorney General OARM Office of Attorney Recruitment and Management OCIJ Office of the Chief Immigration Judge ODAG Office of the Deputy Attorney General OIG Office of the Inspector General OLC Office of Legal Counsel OLP Office of Legal Policy OPM Office of Personnel Management OPR Office of Professional Responsibility PPO Presidential Personnel Office SES Senior Executive Service 4 USAO United States Attorney's Office III. Quick Reference to the Immigration Court System EXECUTIVE OFFICE OF IMMIGRATION REVIEW (EOIR) www.usdoj.gov/jmd/mps/manual/eoir.htm THE IMMIGRATION CASE PROCESS 5 A. Brief Explanation of the U.S. Immigration Courts IMMIGRATION COURT In the United States, there are fifty-seven immigration courts. Generally, a noncitizen or the government has the right to appeal an immigration judge‘s (IJ) decision to the Board of Immigration Appeals (BIA). In limited circumstances, the noncitizen or the government may file a motion to ―reopen‖ and/or ―reconsider‖ a case with the IJ. Government attorneys are not appointed to noncitizens in immigration cases. THE BOARD OF IMMIGRATION APPEALS The BIA is not a federal court, but is a part of the EOIR where immigration court appeals are adjudicated. Generally, if the BIA determines a case was wrongly decided, it remands the case to the immigration court. In limited circumstances, the government or a noncitizen may file a motion to reopen and/or a motion to reconsider with the BIA. BIA decisions are binding on all Department of Homeland Security (DHS) officers and immigration judges unless modified or overruled by the Attorney General or a Federal court.1 The Attorney General may however ―certify‖ a BIA decision to him/herself and thereafter issue a new independent decision.2 BIA decisions may be appealed to one of the twelve federal courts of appeals. THE FEDERAL COURTS OF APPEALS The federal appeals courts review decisions by the BIA. In recent years, Congress has restricted judicial review for certain noncitizens ordered removed for criminal reasons and denials of discretionary relief, among other decisions. Generally, federal appeals courts can only decide cases based on the administrative record in the immigration court and the BIA. If a federal appeals court reverses a decision of the Board of Immigration Appeals, the case can be remanded to the BIA. The BIA can then remand the case to the immigration court. THE UNITED STATES SUPREME COURT If the federal appeals court denies a case, appellants may apply for certiorari to the United States Supreme Court. Such cases are rarely granted. 1 See BIA Decisions, http://www.uscis.gov/portal/site/uscis/menuitem.eb1d4c2a3e5b9ac89243c6a7543f6d1a/?vgnextoid=f2c29c7755cb9 010VgnVCM10000045f3d6a1RCRD&vgnextchannel=f2c29c7755cb9010VgnVCM10000045f3d6a1RCRD (last visited May 7, 2009). 2 For example, in a decision titled Matter of J-S-, 24 I. & N. Dec. 520 (AG 2008), the Attorney General held that spouses of individuals subjected to forced sterilization or abortion are not per se entitled to refugee status. Notably, this decision, which the Attorney General ―certified‖ to himself, overrules two precedential cases, Matter of C-Y-Z-, 21 I&N Dec. 915 (BIA 1997) and Matter of S-L-L-, 24 I&N Dec. 1 (BIA 2006). 6 B. Brief History of the Executive Office of Immigration Review The EOIR was created within the Department of Justice (DOJ) on January 9, 1983. This agency constitutes the judicial arm of the government‘s role in immigration by combining the Immigration Judge division, which had previously been held within the former Immigration and Naturalization Service
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