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EOIR: How We Got Here

The backlog of immigration cases pending before judges nationally is currently hovering at around 500,000. In Houston, Texas alone that number is around 40,000. There are enough reasons to go around for those high tallies, including a lack of resources, an inefficient bureaucracy, and understaffed positions. It also doesn’t help, though, that Immigration Judges like Mimi Schooley Yam were exacerbating each one of these shortcomings.

Houston faces the third largest backlog of immigration cases in the country after Los Angeles and New York. The metropolis sits near the Mexican border, so it stands to reason that it would face a high volume of immigration cases, particularly considering the huge influx the desperate escaping the poverty and violence of Central America in recent years. It’s no wonder that the city’s mere six immigration judges have their hands full.

According to multiple reports, first by the Houston Free Press, Judge Mimi Yam, who has since left the bench after the release of this and other articles, had been on leave for over a year from the Houston immigration court for undisclosed reasons while continuing to pull in a salary that as of 2014 totaled $167,000. And even when she was holding hearings, she had a reputation as a judge without the temperament or attitude one might expect from such an esteemed position.

Compared to her peers, Judge Yam issued few decisions when she was present. In the five years between 2007 and 2012 Judge Yam issued just 115 decisions. Meanwhile fellow Houston Immigration Judges Law and Brisack each issued over 400 rulings in that time.

Observers also say that even when Judge Yam did manage to hold hearings, she lacked a professionalism normally associated with judges. She has been reported to eject people from her courtroom for wearing perfume or cologne. She often would reset hearings for months or years into the future. One Houston immigration attorney recalled, “she has cleared her courtroom if somebody’s outfit wasn’t dry-cleaned in between hearings.”

Complaints about the conduct of Ms. Yam were nothing new prior to the article by the Houston Free Press, as both practitioners and immigrants had been trying to sound the alarm about her incompetence for years. And yet none of those complaints were sufficient to see her removed before the bad press that came from the article.  As a recent editorial in the New York Times highlighted, Mimi Yam is unfortunately just one example of the multitude of failings of our Immigration Court system.  The courts face a monumental backlog of cases, is understaffed and underfunded, and is run by a largely hidden, non-transparent and inefficient bureaucratic agency called the Executive Office of Immigration Review.

The Executive Office of Immigration Review, or EOIR, is the governing body of the federal immigration court system.  It consists of the Board of Immigration Appeals, the Office of the Chief Immigration Judge, and the Chief Administrative Hearing Officer. As part of the Department of Justice it oversees all immigration courts and the hiring, appointment and regulation of immigration judges across the country. It was EOIR that finally saw fit to remove Ms. Yam from the bench after she had garnered an unacceptable amount of publicity. The EOIR is a notoriously opaque and insulated body that is loath to either be held accountable or hold any of their judges to account in true bureaucratic fashion.

One of the most basic problems with the EOIR is that it is not funded appropriately compared to other arms of the government. For example, funding allocated for immigration enforcement measures like border security or the Immigration and Customs Enforcement have rapidly outpaced funding designated for the EOIR. The federal government now spends over 18 billion dollars every year on immigration enforcement, more than all other principal federal law enforcement agencies combined. In contrast the budget for the EOIR in 2015 was just $347.2 million. The predictable result of the gap is an exponential increase in cases for the immigration courts to handle, but without the corresponding capacity to adequately deal with them. More officers and agents are hired to bring more immigrants before fewer judges.

Another issue that plagues the EOIR is its politicization. Because the EOIR works under the Department of Justice and is not part of the Artice III federal courts, immigration judges are hired by the Attorney General. In 2002 Attorney General for President George W. Bush, John Ashcroft, decided to “reform” and reduce the Board of Immigration Appeals from 23 members to 11 members, and reassigned some of the more senior and experienced of the board members elsewhere.  It later was made clear by a Department of Justice investigation that the “reforms” were focused on purging the EOIR of perceived liberals and installing more conservative leaning individuals into positions throughout the EOIR, including as judges.  Many of those reforms and hirings were never reversed, despite the investigation.  In totality, the Bush administration downsized and politicized the EOIR, effectively hampering its ability to function ever since. Many judges with little to no experience or background in immigration law, one of the most complex systems of law in the country, were appointed based on fundraising or political philosophy instead of qualification.

Whereas judges appointed to criminal or civil court are subject to confirmation as per their qualifications, the unique role of the EOIR and the immigration courts as being under the jurisdiction of the Department of Justice means immigration judges face no such thing. The consequence is too few EOIR employees in general, and too many who are often underprepared or inadequately equipped for their position.

Bush’s next Attorney General, Alberto Gonzalez, sought to reform the EOIR by instituting various codes of conduct and regulations such as performance reviews, but problematically the recommendations were either sporadically applied, vaguely implemented, or introduced without enforcement mechanisms.  As it stands, the EOIR fails to offer any clarity by refusing to either acknowledge whether it investigates its judges based on complaints, or even how it would go about it. The EOIR would not even acknowledge whether Ms. Yam resigned from her position or was fired, only that they no longer employed them.

The American Immigration Lawyer Association filed a lawsuit challenging the EOIR to make public complaints of misconduct and disciplinary action against immigration judges, which the Department of Justice attempted to deflect by labeling immigration judges as “low level employees” and thus not subject to the same degree of transparency that other public officials are. Even the National Association of Immigration Judges took issue with the Department’s position by noting that the importance and consequence of their work is not concomitant with any other low level federal employees as described by the government.

Such a failure of oversight and regulation ensures that immigration judges that contribute to the problems of the overburdened system, whether by incompetency or inefficiency, are unlikely to be replaced by judges more equipped to handle the position. Despite the fact that complaints had been lodged against Judge Yam before, it was only once her egregious behavior became a public embarrassment that the EOIR became interested in solving the problem. The standard whereby complaints of misconduct go unnoticed and unresolved in secret, while the emergence of negative publicity compels immediate disciplinary action, is one that judges, attorneys, and citizens alike should all be concerned by.

EOIR is a body underfunded, politicized, and largely operating in secrecy. The people that end up paying the price for this are the petitioners, attorneys, and judges that fill its courtrooms. Untrained judges are more likely to issue postponements and continuances, which often stretches cases out over the course of many years. They are also less likely to give due consideration to those cases they do manage to decide. More competent judges meanwhile are expected to pick up the slack and do more than their fair share of the work. This is how Mimi Yam can decide a mere 115 cases while her peers have to handle over 400 in the same time span.

Under pressure from mounting caseloads and a struggling judiciary, judges report having just an estimated seven minutes on average to decide a case. This is also in contrast to how much time immigration attorneys are likely to commit to a case, which can require many hours, if not days or weeks, of attention. Dealing with weighty life or death issues like asylum in such an abridged manner is what one judge described as, “like holding death penalty cases in traffic court.” It is little wonder that one of the biggest problems facing the country’s immigration judges is stress and burnout, further depleting their already thinning ranks.

The example of Mimi Yam is a case study in the problems plaguing the EOIR and immigration courts throughout the country. She was appointed to a position that she was clearly unequipped for, and allowed to remain due to vague unclear standards of oversight and conduct. Her presence on the bench only exacerbated the problem of an existing backlog, and yet her absence is only going to make the problem worse. All of the cases on Ms. Yam’s docket will be pushed on to other judges who are already overburdened, and as a result petitioners will have to wait even more years to get their day in court. EOIR officials say there is no specific time-frame or plan to fill her vacancy on the bench, leaving Houston with just five judges to hear its queue of over 35,000 cases and growing.


Lucas Caress,

Bardavid Law