Immigration judges struggling to work through inadequate technology, pandemic, union pushback

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They don’t make compelling television footage, but immigration hearings are an important component of the system that’s so distressing to the nation today. The people who actually conduct the hearings say they’re struggling with the technology that is supposed to support them; with the pandemic; and with what they say are efforts to de-certify their union. For more, Federal Drive with Tom Temin turned to the president of the National Association of Immigration Judges, Mimi Tsankov.

Interview transcript:

Tom Temin: Ms. Tsankov, good to have you on.

Mimi Tsankov: Thank you so much. I am appearing here in my capacity as the president of the National Association of immigration judges. So the comments that I’m making are really in that capacity, and they’re not in any way a reflection of the position of the Department of Justice.

Tom Temin: Let’s begin with what you perceive as an effort to decertify the union. What is going on now? What’s the status here?

Mimi Tsankov: Well, what’s been really troubling is dating back to 2018. The Department of Justice did seek to decertify the union. And they took steps by filing a motion with the Federal Labor Relations Authority that went through a process that culminated in a in a full hearing with a regional director of the Federal Labor Relations Authority finding that, in fact, the immigration judges are not management officials, so they are eligible to unionize. That case went up to the Federal Labor Relations authority, the full FLRA board and that is the more political wing of the FLRA, that entity overturned the RDs position and sought to remand the matter to the regional director. But we also saw a change in administration. And now that matter is still pending a motion for reconsideration. So the immigration judges are still in limbo. We are facing a labor friendly Department of Justice and administration. And yet we’re still in this limbo waiting to see what’s going to happen to us.

Tom Temin: And have you had any consultation with the administrative law judges that work for Social Security because they’ve been dealing back and forth with similar issues now for quite a number of years?

Mimi Tsankov: We’ve been working with our sister organization, the SSA judges, for years now. And they are very supportive of our efforts to fight this decertification. But despite all of our best efforts, and our efforts on Capitol Hill as well, and through our parent organization, the IFPTE, none of that yet has rendered a resolution to this matter. So we are on pins and needles waiting for a result.

Tom Temin: And is your situation overlaid by contract negotiations also, as well as just basic status of the union?

Mimi Tsankov: The challenge that we’re facing is that while we have a contract, the Department of Justice is not recognizing our contract. So until they do, we will not even be able to engage in contract negotiations. We have a pending motion to engage in midterm bargaining, still no result there from the Department of Justice.

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Tom Temin: And just for purposes of reference, how many are there of you nationwide? And what is the typical caseload?

Mimi Tsankov: We have about 500 non-supervisory managerial immigration judges, those are the trial judges that are actively hearing cases. And in terms of our docket, we have about 1.4 million cases in the backlog right now. Judges are hearing cases in their courtrooms all day, every day throughout the country. And still we are barely scratching the surface as to the caseload that we have pending.

Tom Temin: Wow. And you said in your courtrooms, does that mean virtually now or what’s the status of the hearings physically, vis-à-vis the pandemic?

Mimi Tsankov: It’s a combination of all of those. Some of the judges are hearing cases and have been throughout the pandemic in their courtrooms. Some have been hearing cases virtually, some are, there are a few. It’s a new rolled out program where some immigration judges are being afforded digital audio recording enabled laptops, and they’re holding hearings from their telework locations and doing so through WebEx.

Tom Temin: I would think that that might even be the preferable mode of conducting these since the immigrants coming into the country that are subject to hearings could be anywhere visa a where it is they entered the country. And so Wouldn’t it be perhaps a better way just to assign the cases from wherever the particular immigrant is, rather than having them go to a courtroom that could be hundreds of miles away?

Mimi Tsankov: It certainly has an efficiency compelling element. But as you know, cases are really not, the focus is not always just on efficiency, it has to always balance the due process concerns. So many respondents are worried that something will be lost in a video, video access to the hearings, and we certainly are mindful of that. But as you note, we’re in the middle of a pandemic. And more so now than we were maybe just even a few months ago with this new Delta variant. So there’s always a real tension between safety for everybody, all of the stakeholders, including the judges and the respondents and their attorneys that must come to court, with the technological advances and how we should let the two work together to resolve the matters that are pending before us.

Tom Temin: We were speaking with Mimi Tsankov. She’s president of the National Association of Immigration Judges. There’s also a technological component to supporting judges. What’s going on with the case flow management system, designed in theory to help out the whole process?

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Mimi Tsankov: We’re really concerned about the case flow management process. And let me just back up for a minute and let you understand why we’re so concerned. Immigration judges preside over hearings and do so in order to fulfill their constitutionally mandated responsibilities to provide due process to the respondents that appear before them. In order to do that well, and accurately they need to know their cases. Well, the bottom line with case flow management is that it it essentially outsources a lot of the prep work for a case to legal assistance and judicial law clerks. So the judges themselves sometimes don’t even see a case until it’s ready for a merits hearing, a full hearing. And that means that the judge is only just getting access to the details of that case as they’re approaching the full hearing, rather than all of those initial status type conferences that would lend well to better understanding of the facts and circumstances surrounding that case.

Tom Temin: Yeah, so have they offered any fixes or roadmap to get that system updated so that it gives you the timely information? Because I imagine that would help maybe chew away at the backlog a little bit, if you had more timely information well ahead of the hearings.

Mimi Tsankov: You mentioned the backlog and to the extent that we can create efficiencies in the system, such as through improved management structures, that’s usually a good thing. However, this particular process doesn’t seem to be designed to really effect, really take into consideration the due process elements. There’s so many individuals that have other forms of relief that they’re eligible for. And if you’re not holding master calendar hearings, the judge is going to be faced with a really difficult situation. They’re going to go to a hearing, that’s scheduled as a full merits hearing. And they have performance metrics that they’re subject to which require that they complete those hearings very quickly in order to continue to keep their jobs and not be disciplined. But at the same time, those respondents may actually have other forms of relief they could have been pursuing. And the case would, ideally, if it had been handled in a measured way with a number of status conferences prior to the ultimate merits hearing, there might have been good reasons to delay that full merits hearing. So you sometimes lose efficiencies by setting a case too quickly to a merits hearing, when there’s really a reasonable resolution that can be handled through a status conference.

Tom Temin: All right. So you have the pandemic, you have the backlog, you have the issue with what the status of the agency will be vis-à-vis whether it wants the union to be in place, how do the judges keep going? Sounds like a difficult life you all have.

Mimi Tsankov: It is really very challenging. But fortunately, the immigration judges love their work. It is extremely fulfilling to be able to consider the cases of the people who oftentimes are applying for relief in the form of asylum, they want protection from their home countries, or they are eligible for something called cancellation of removal. There are various forms of relief that judges have the authority to grant. And despite all of the difficulties of which there are many those days, when you’re able to grant relief to people, is it an extremely rewarding experience. And for all of these reasons, I would say that as challenging as it’s been and as much as morale among the immigration judges has really been challenged, especially during the pandemic, I can say that those positive days are really valued and that’s why we keep so many people in this role.

Tom Temin: And what does it take to become an immigration judge? Do you need to be an attorney? And do you need, I imagine, to understand an extremely arcane section of law?

Mimi Tsankov: In order to become an immigration judge, you basically need two or three things. Number one, you have to have seven years of practice as an attorney. And secondly, you have to essentially have one of two things, that is either a background in immigration law so that you fully understand this area of the law, which as you mentioned, is arcane. Or you likely have to have a lot of judicial experience because we have a lot of veterans who’ve had a lot of experience as judges in the military. And so we get all of those individuals and either we have to teach them the judging part or we teach them the immigration part, and it usually works out well in the end.

Tom Temin: And of course, you’re calling from Manhattan, which is where your jurisdiction happens to be. Did to ever occur to you you could walk down the street to get a nice of counsel job in one of the 10 billion law firms there and triple your salary?

Mimi Tsankov: I love my work. I have had my own practice, and I can tell you that it is extremely fulfilling. I am such a cheerleader for the immigration judge role. I hold so many positions within the community, because I’m an immigration judge. I work with the American Bar Association, the Federal Bar Association, the National Association of Women Judges, the International Association of Women judges, I’m a professor at Fordham, an adjunct professor at Fordham. I am committed to working in this realm in the public sector and finding ways to better the process for those that interface with it.

Tom Temin: Well, at least at Fordham, you get a chance to get beyond uptown once in a while.

Mimi Tsankov: Actually no, because the Fordham law school is at Lincoln Center.

Tom Temin: Ah, okay, so you’re back to Midtown. All right. Well, great to have you on either way. Mimi Tsankov is president of the National Association of Immigration Judges. Thanks so much for joining me.

Mimi Tsankov: Thank you so much, Tom. It’s been a pleasure.

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