It’s rare to hear from judges about how their jobs affect them. In an engaging new memoir, Bench Pressed, former Immigration Judge Susan L. Yarbrough discusses the human side of adjudicating asylum cases.

The book covers five cases decided by Judge Yarbrough–one for each of the five protected grounds (race, religion, nationality, political opinion, and particular social group). Reflecting the time period (1990’s) and the location of her court (Texas), most of the cases involve Latin American applicants. The one exception is a Palestinian man who was used as a human shield by the Israeli army. The IJ gives some background on the country situation and then describes each person’s case. Finally, she talks about how each case affected her.

This book was a quick read, and–as a person who practices asylum law on a daily basis–I really enjoyed it. That said, it seems to me that the book is targeted more for people who are not so familiar with the asylum system. For someone like me, the stories of the applicants are probably the least interesting part of the book. I am more interested in the Judge’s observations of “the system” and of her own reactions to the cases. The stories of the applicants are similar to what I hear from my clients all the time. But for people who do not live this stuff, I imagine that the stories may be the most interesting part of the book (and the stories are interesting).

One surprise in the book was how strongly Judge Yarbrough was affected by these cases. She often described crying after a case, and it was obvious that the job was emotionally trying for her. In some ways, I think she is lucky to “feel” the cases so strongly, though of course it takes a toll. I clerked for an immigration court during the same time that Judge Yarbrough was active, and so I observed IJs in Atlanta, Philadelphia, and (mostly) Arlington, Virginia. I never got the sense that they were as emotionally affected as Judge Yarbrough, and so I think her reactions may be somewhat atypical. Nonetheless, her observations shed important light on the emotional damage these cases can do to the adjudicators (and others in the system).

If there is a weakness to the book, it is that the Judge does not discuss any cases that she denied. I would have been curious to see how a judge reconciles her duty to the law with what she views as the morally correct outcome where those two concepts are in conflict. I recall a federal appeal I worked on where the applicant sought asylum based on fear of persecution by gang members in El Salvador. During the trial, the IJ agreed that he faced persecution and she told him, “I think you are in a terrible situation and I could not have more sympathy for you.” Nevertheless, she denied his case because a protected ground was not “one central reason” for his persecution (I litigated the case in the Fourth Circuit where we lost). I was (and am) curious about how an IJ can square her feelings of sympathy towards an applicant–and her belief that she may be sending the applicant back to his death–with what she views as her duty to enforce the law.

Overall, I thought Judge Yarbrough’s book was a very worthwhile read. If you practice asylum law, you will enjoy reading about the system from the IJ’s point of view. Also, if you are like me, you will find some schadenfreudian (if that is a word) pleasure from reading the Judge’s descriptions of certain government and private attorneys (though she is too polite to name names). If you are not familiar with the asylum system, the book will provide an interesting and entertaining introduction to the people who come to our country for refuge and those who decide their cases.

You can see more reviews of Bench Pressed and buy the book here.

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A new Inspector General report criticizes EOIR for the quantity of cases completed, but totally ignores the quality of EOIR’s work.  The 74-page report by DOJ Inspector General Michael Horowitz finds that data from Immigration Courts overstates case completion rates and that the Courts are too slow.  The report also makes recommendations, such as developing guidelines for when Immigration Judges should grant continuances.

I’ve reviewed the report, and I can safely say that it was a complete waste of time (both my time and the time of the poor sod who prepared it) and tax payer money (both mine and yours).  For that reason, I won’t waste additional time discussing what’s in the report (and if you want to see a substantive critique of the report, check out TRAC Immigration).  However, I want to discuss what’s not in the report.

Actually, before I get to that, I want to further trash this report.  It is frankly offensive that the Office of Inspector General (“OIG”) would issue a report about quantity without discussing quality.  If the OIG’s only concern is completing cases quickly, why not just deny all the cases now and be done with it?  Why bother with due process or equal protection?  Why bother to have a Department of Justice at all?  We can simply rename it the Department of “Just ICE” and then deport everyone.  Done and done.

And now, for what’s not in the report.

First, you would think that anyone preparing a report about IJs or BIA Board Members would have sought input from people who practice before the Immigration Courts and the BIA.  Bar associations regularly survey their members about the quality of judges, so why can’t the OIG (or EOIR) survey private attorneys, non-profit organizations, and DHS attorneys about their experience with IJs and the BIA?  Such information would be very helpful in assessing both the quality and the quantity of EOIR’s work product.

Second, the report does not tell us whether IJs or the BIA are doing a good job deciding cases.  This seems to me the single most important part of the Judges’ and Board Members’ jobs.  One way to measure the quality of IJ and BIA decisions is to look at the reversal rates for those decisions.  To me–and this is an issue I’ve harped on before–one relatively easy way to reduce reversal rates is to provide more guidance to decision-makers.  The BIA can do this by publishing more decisions.

Finally, the report fails to acknowledge the connection between quantity and quality.  Immigration cases are often complex.  Aliens (and DHS attorneys) seek continuances for valid reasons.  In order to reach a just result in many cases, continuances are needed.  In the asylum context, for example, continuances are sometimes necessary to allow the alien more time to find a lawyer (the success rate for unrepresented aliens is much lower than for represented aliens).  Thus, in Immigration Court, justice delayed is not always justice denied.  Sometimes, it is simply justice.

Perhaps I am being a bit too hard on the OIG.  It is certainly possible to help improve EOIR by examining the quantity of its decisions and the accuracy of its reporting.  But when the OIG has failed to address the quality of EOIR’s work and instead issues a comprehensive report basically telling EOIR to hurry up, it seems to me that the OIG’s priorities are not where they should be.

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The Arlington Immigration Court recently relocated from Ballston to Crystal City, Virginia.  The new court is bigger and has public bathrooms (a BIG improvement for the bladder-impaired).  It is also totally devoid of art.

For those of us who practice before the Arlington Court, the bare walls feel a bit strange.  The old court had portraits of the founding fathers, various presidents, and some of our founding documents.  You could also see busts and paintings of various presidents inside the courtrooms.  One IJ, now retired, was known for her husband’s paintings (mostly flowers), which adorned her courtroom walls.  

In stark contrast, you’re lucky to find a light switch on the walls of the new court.  Now, you might be thinking, “The Court just opened, so they haven’t yet had time to decorate.”  Not so.  I asked around about the barren landscape.  The word on the street is that courtrooms and waiting areas can no longer be “personalized.”  This means no art.  I contacted the Executive Office for Immigration Review (“EOIR” – the agency that administers the Immigration Courts) for clarification.  Their response:

As EOIR is one adjudicative agency with 59 immigration court locations throughout the nation, we strive to maintain uniform public spaces throughout our facilities.  As with other federal agencies, private spaces such as judges’ chambers and individual office space may be personalized within reasonable boundaries.

In this context, “uniform public spaces” means no wall art.  I suppose I understand the reasoning.  For one thing, if you allow any art, it is hard to control what ends up on the wall.  If EOIR allows a portrait of Abe Lincoln, must they also allow a portrait of anti-immigration president Warren G. Harding?  What about a portrait of presidential candidate (and anti-immigrant crusader) Pat Buchanan?  

Also, what about images that might not be culturally sensitive to the aliens appearing before the Court?  Much as Attorney General John Ashcroft covered a bare-breasted statue in the Justice Department, might some playboy IJ seek to fill a courtroom with inappropriate images?

Given all the potential pitfalls, it is easier to completely ban art in the courtroom than to allow art and then try to regulate it.

All the same, I am not a fan of this policy.  I liked going into courtrooms filled with paintings and statues.  I prefer a “personalized” courtroom (and waiting room) to an antiseptic one.  There is something ennobling about practicing law in a room filled with historic and patriotic images.

Also, while I see the need for IJs to avoid the appearance of impropriety, it is actual impropriety that concerns me.  If some IJ adores Warren G. Harding (and there are good reasons to), why not put up his photo?  I trust that the IJ will make a determination on the merits of each case, and that a picture of President Harding does not indicate an anti-immigration bias.  If we trust IJs to make decisions that will profoundly affect people’s lives, we should trust them to use some common sense in their courtroom decor.

I described the new courtroom ambiance to an asylee friend.  She feels that the bare walls and lack of art would be “intimidating.”

Maybe I am making too big a deal about this.  But there is a long history of art in courtrooms–it benefits the judges, the lawyers, and the litigants.  And while I sympathize with the reasons for EOIR’s decision, I think that the benefits of allowing art in court greatly outweigh the dangers.  To quote George Bernard Shaw: “Without art, the crudeness of reality would make the world unbearable.”

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