IN THE SENATE OF THE UNITED STATES
April 18, 2018
Ms. Hirono (for herself, Mrs. Gillibrand, and Ms. Harris) introduced the following bill; which was read twice and referred to the Committee on the Judiciary
To clarify the status and enhance the effectiveness of immigration courts, and for other purposes.
This Act may be cited as the
Immigration Court Improvement Act of 2018.
Finding; sense of Congress
Congress finds that the United States tradition as a nation of laws and a nation of immigrants is best served by effective, fair, and impartial immigration judges who have decisional independence and are free from political influence.
Sense of Congress
It is the sense of Congress that—
should be fair and impartial; and
should have decisional independence that is free from political pressure or influence; and
in order to promote even-handed, non-biased, decision making that is representative of the public at large, immigration judges should be selected from a broad pool of candidates with a variety of legal experience, such as law professors, private practitioners, representatives of pro bono service and other nongovernmental organizations, military officers, and government employees.
Professional treatment of immigration judges
Section 101(b)(4) of the Immigration and Nationality Act (8 U.S.C. 1101(b)(4)) is amended to read as follows:
The term immigration judge means an attorney who—
has been appointed by the Attorney General to serve as a United States immigration judge;
is qualified to conduct proceedings under this Act, including removal proceedings under section 240.
An immigration judge shall be subject to such supervision and shall perform such duties as the Attorney General shall prescribe as long as such supervision does not interfere with the immigration judge’s exercise of independent decision making authority over cases in which he or she presides.
An immigration judge shall be an attorney at the time of his or her appointment by the Attorney General and shall maintain good standing or appropriate judicial status (as defined solely by the licensing jurisdiction) with the bar of the highest court of any State.
The service of an immigration judge is deemed to be judicial in nature. Actions taken by an immigration judge while serving in a judicial capacity shall be reviewed under the applicable Code of Judicial Conduct. Immigration judges shall not be subject to any code of attorney behavior for conduct or actions taken while performing duties as an immigration judge.
An immigration judge may not be disciplined for any good faith legal decisions made in the course of hearing and deciding cases. Criticism of an immigration judge, in a decision of any appellate court may not be considered or construed as a finding of misconduct.
Any system of completion goals or other efficiency standards imposed on immigration judges (as defined in section 101(b)(4) of the Immigration and Nationality Act)—
may be used solely as management tools for obtaining or allocating resources; and
may not be used—
to limit the independent authority of immigration judges to fulfill their duties; or
as a reflection of individual judicial performance.
Judicial complaint process
Not later than 180 days after the date of the enactment of this Act, the Attorney General shall establish a transparent judicial complaint process that is consistent with—
the Guidelines for the Evaluation of Judicial Performance developed by the American Bar Association; and
the judicial performance evaluation principles developed by the Institute for the Advancement of the American Legal System.
Every immigration judge shall be presumed to have 15 years of Federal civilian service for the purpose of the accrual of annual leave.
Continuing legal education
In addition to the training required under section 603(c) of the International Religious Freedom Act of 1998 (22 U.S.C. 6473(c)), the Attorney General shall provide immigration judges with—
meaningful, ongoing training, including annual, in-person training, to maintain current knowledge of immigration cases, changes in the law and effective docketing practices; and
time away from the bench to assimilate the knowledge gained through such training.
Service to the legal profession
Because of the ethical duty owed by immigration judges to participate in continuing legal education, including teaching of law at institutions of higher learning and other activities to educate the public and to improve the legal profession, the Attorney General may not prevent or interfere with the participation of an immigration judge in any such bona fide activities if—
undertaken in conjunction with an established university, law school, bar association, or legal organization; and
the immigration judge clearly indicates that such participation is in his or her personal capacity and does not reflect any official positions or policies.
Not later than 60 days after the date of the enactment of this Act, the Attorney General shall promulgate interim regulations governing the exercise of the authority given to immigration judges under section 240(b)(1) of the Immigration and Nationality Act (8 U.S.C. 1229a(b)(1)) to sanction contempt of an immigration judge’s exercise of authority under such Act.
Not later than 180 days after the date of the enactment of this Act, the Attorney General shall promulgate final regulations governing the authority described in subparagraph (A).
Effect of failure to promulgate regulations
If the Attorney General fails to comply with subparagraph (1)(B), immigration judges shall—
make appropriate findings of contempt; and
submit such findings to the United States District Court for the judicial district in which the immigration judge is physically located.