II 116TH CONGRESS 1ST SESSION S. 663 To clarify the status and enhance the effectiveness of immigration courts, and for other purposes. IN THE SENATE OF THE UNITED STATES MARCH 5, 2019 Ms. HIRONO (for herself, Ms. HARRIS, Mr. SANDERS, Ms. CORTEZ MASTO, Mrs. GILLIBRAND, Ms. KLOBUCHAR, Ms. SMITH, and Mr. BOOKER) in- troduced the following bill; which was read twice and referred to the Com- mittee on the Judiciary A BILL To clarify the status and enhance the effectiveness of immigration courts, and for other purposes. Be it enacted by the Senate and House of Representa- 1 tives of the United States of America in Congress assembled, 2 SECTION 1. SHORT TITLE. 3 This Act may be cited as the ‘‘Immigration Court Im- 4 provement Act of 2019’’. 5 SEC. 2. FINDING; SENSE OF CONGRESS. 6 (a) FINDING.—Congress finds that the United States 7 tradition as a nation of laws and a nation of immigrants 8 is best served by effective, fair, and impartial immigration 9 VerDate Sep 11 2014 04:20 Mar 14, 2019 Jkt 089200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\S663.IS S663 kjohnson on DSK79L0C42 with BILLS 2 •S 663 IS judges who have decisional independence and are free 1 from political influence. 2 (b) SENSE OF CONGRESS.—It is the sense of Con- 3 gress that— 4 (1) immigration judges— 5 (A) should be fair and impartial; and 6 (B) should have decisional independence 7 that is free from political pressure or influence; 8 and 9 (2) in order to promote even-handed, non-bi- 10 ased, decision-making that is representative of the 11 public at large, immigration judges should be se- 12 lected from a broad pool of candidates with a variety 13 of legal experience, such as law professors, private 14 practitioners, representatives of pro bono service and 15 other nongovernmental organizations, military offi- 16 cers, and government employees. 17 SEC. 3. PROFESSIONAL TREATMENT OF IMMIGRATION 18 JUDGES. 19 (a) DEFINED TERM.—Section 101(b)(4) of the Im- 20 migration and Nationality Act (8 U.S.C. 1101(b)(4)) is 21 amended to read as follows: 22 ‘‘(4)(A) The term ‘immigration judge’ means an at- 23 torney who— 24 VerDate Sep 11 2014 04:20 Mar 14, 2019 Jkt 089200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\S663.IS S663 kjohnson on DSK79L0C42 with BILLS 3 •S 663 IS ‘‘(i) has been appointed by the Attorney Gen- 1 eral to serve as a United States immigration judge; 2 and 3 ‘‘(ii) is qualified to conduct proceedings under 4 this Act, including removal proceedings under sec- 5 tion 240. 6 ‘‘(B) An immigration judge shall be subject to such 7 supervision and shall perform such duties as the Attorney 8 General shall prescribe as long as such supervision does 9 not interfere with the immigration judge’s exercise of inde- 10 pendent decision-making authority over cases in which he 11 or she presides. 12 ‘‘(C) An immigration judge shall be an attorney at 13 the time of his or her appointment by the Attorney Gen- 14 eral and shall maintain good standing or appropriate judi- 15 cial status (as defined solely by the licensing jurisdiction) 16 with the bar of the highest court of any State. 17 ‘‘(D) The service of an immigration judge is deemed 18 to be judicial in nature. Actions taken by an immigration 19 judge while serving in a judicial capacity shall be reviewed 20 under the applicable Code of Judicial Conduct. Immigra- 21 tion judges shall not be subject to any code of attorney 22 behavior for conduct or actions taken while performing du- 23 ties as an immigration judge. 24 VerDate Sep 11 2014 04:20 Mar 14, 2019 Jkt 089200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\S663.IS S663 kjohnson on DSK79L0C42 with BILLS 4 •S 663 IS ‘‘(E) An immigration judge may not be disciplined 1 for any good faith legal decisions made in the course of 2 hearing and deciding cases. Criticism of an immigration 3 judge, in a decision of any appellate court may not be con- 4 sidered or construed as a finding of misconduct.’’. 5 (b) PERFORMANCE APPRAISALS.—Any system of 6 completion goals or other efficiency standards imposed on 7 immigration judges (as defined in section 101(b)(4) of the 8 Immigration and Nationality Act)— 9 (1) may be used solely as management tools for 10 obtaining or allocating resources; and 11 (2) may not be used— 12 (A) to limit the independent authority of 13 immigration judges to fulfill their duties; or 14 (B) as a reflection of individual judicial 15 performance. 16 (c) JUDICIAL COMPLAINT PROCESS.—Not later than 17 180 days after the date of the enactment of this Act, the 18 Attorney General shall establish a transparent judicial 19 complaint process that is consistent with— 20 (1) the Guidelines for the Evaluation of Judi- 21 cial Performance developed by the American Bar As- 22 sociation; and 23 VerDate Sep 11 2014 04:20 Mar 14, 2019 Jkt 089200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\S663.IS S663 kjohnson on DSK79L0C42 with BILLS 5 •S 663 IS (2) the judicial performance evaluation prin- 1 ciples developed by the Institute for the Advance- 2 ment of the American Legal System. 3 (d) ANNUAL LEAVE.—Every immigration judge shall 4 be presumed to have 15 years of Federal civilian service 5 for the purpose of the accrual of annual leave. 6 (e) CONTINUING LEGAL EDUCATION.— 7 (1) IN GENERAL.—In addition to the training 8 required under section 603(c) of the International 9 Religious Freedom Act of 1998 (22 U.S.C. 6473(c)), 10 the Attorney General shall provide immigration 11 judges with— 12 (A) meaningful, ongoing training, includ- 13 ing annual, in-person training, to maintain cur- 14 rent knowledge of immigration cases, changes 15 in the law and effective docketing practices; and 16 (B) time away from the bench to assimi- 17 late the knowledge gained through such train- 18 ing. 19 (2) SERVICE TO THE LEGAL PROFESSION.—Be- 20 cause of the ethical duty owed by immigration 21 judges to participate in continuing legal education, 22 including teaching of law at institutions of higher 23 learning and other activities to educate the public 24 and to improve the legal profession, the Attorney 25 VerDate Sep 11 2014 04:20 Mar 14, 2019 Jkt 089200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\S663.IS S663 kjohnson on DSK79L0C42 with BILLS 6 •S 663 IS General may not prevent or interfere with the par- 1 ticipation of an immigration judge in any such bona 2 fide activities if— 3 (A) undertaken in conjunction with an es- 4 tablished university, law school, bar association, 5 or legal organization; and 6 (B) the immigration judge clearly indicates 7 that such participation is in his or her personal 8 capacity and does not reflect any official posi- 9 tions or policies. 10 (f) CONTEMPT AUTHORITY.— 11 (1) RULEMAKING.— 12 (A) INTERIM REGULATIONS.—Not later 13 than 60 days after the date of the enactment of 14 this Act, the Attorney General shall promulgate 15 interim regulations governing the exercise of 16 the authority given to immigration judges under 17 section 240(b)(1) of the Immigration and Na- 18 tionality Act (8 U.S.C. 1229a(b)(1)) to sanction 19 contempt of an immigration judge’s exercise of 20 authority under such Act. 21 (B) FINAL REGULATIONS.—Not later than 22 180 days after the date of the enactment of this 23 Act, the Attorney General shall promulgate 24 VerDate Sep 11 2014 04:20 Mar 14, 2019 Jkt 089200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\S663.IS S663 kjohnson on DSK79L0C42 with BILLS 7 •S 663 IS final regulations governing the authority de- 1 scribed in subparagraph (A). 2 (2) EFFECT OF FAILURE TO PROMULGATE REG- 3 ULATIONS.—If the Attorney General fails to comply 4 with subparagraph (1)(B), immigration judges 5 shall— 6 (A) make appropriate findings of con- 7 tempt; and 8 (B) submit such findings to the United 9 States District Court for the judicial district in 10 which the immigration judge is physically lo- 11 cated. 12 Æ VerDate Sep 11 2014 04:20 Mar 14, 2019 Jkt 089200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6301 E:\BILLS\S663.IS S663 kjohnson on DSK79L0C42 with BILLS