Complaints Against EOIR Adjudicators



On October 15, 2018, the Executive Office for Immigration Review (EOIR) published an updated summary of its procedures for handling complaints concerning its immigration adjudicators [PDF version]. In this post, we will review the revised version of the procedures.


The EOIR includes immigration judges and the Board of Immigration Appeals (BIA). It monitors the performance of its three main components: the Office of Chief Immigration Judge (OCIJ), the BIA, and the Office of the Chief Administrative Hearing Officer (OCAHO). The document, and our article, will refer to these components collectively as “adjudicators.” The EOIR investigates and resolves formal allegations of misconduct against adjudicators.

Sources of Complaints

There are three potential sources of complaints against adjudicators:

Formal written complaint by an individual or a group;
Governmental referral; or
Information from any source.

Complaints against adjudicators are reviewed the EOIR's Judicial Conduct and Professionalism Unit (JCPU). Below, you will find the contact information for the JCPU, courtesy of the EOIR summary document:

Requirements and Intake for Formal Written Complaints and Government Referrals

A formal written complaint may be filed by any group or individual. Such complaints must be sent either by postal mail or e-mail to the JCPU.

A U.S. government agency may initiate a government referral to make a complaint with the JCPU. In the case of a referral made by an EOIR component, the referral “must be made by the referring compoent's head or his or her designee.”

A formal written complaint or government referral must include the following information in order to qualify for processing (quoted):

1. Name of the individual adjudicator;
2. A statement describing the conduct at issue;
3. The time and place of the conduct, if known;
4. Any associated A-numbers or other information to permit identification of the proceedings in question; and
5. Any witnesses to the conduct.

Furthermore, the complainant must include “adequate contact information.” Examples of adequate contact information include “name, address, telephone number, and email address.” A government referral “must identify the referring individual and agency.” Unless required by law or privacy, “formal written complaints shall not be confidential.” (Emphasis added.) Government referrals are also not confidential “[e]xcept where required by law or agency-wide policy…”

Formal written complaints and government referrals must involve “active EOIR employees currently engaged in adjudicating cases in one of EOIR's adjudicating components.” (Emphasis added.) The JCPU does not review complaints against individuals who are not current EOIR employees or those who are not engaged in adjudicating cases.

Furthermore, the document specifies things that formal written complaints and government referrals are not to be used for. Below, we quote the list:

1. Challenge an unfavorable decision;
2. Challenge general misconduct unrelated to an adjudicator's judicial role;
3. Request that an adjudicator withdraw from hearing a case;
4. Express disapproval of or disagreement with the outcome of an adjudicator's decision, unless that outcome reflects alleged judicial misconduct; or
5. Criticize or express political disagreement with established law or policy or an adjudicator's adherence to such law or policy.”

In short, the role of the JCPU is narrow, limited only to investigating allegations of misconduct by current adjudicators related directly to their judicial role. Complaints including the above five points are outside the scope of what JCPU does. For example, regarding points 1 and 4, an individual may seek administrative or, in some cases, judicial review of an unfavorable decision. Other avenues would be appropriate for cases 2 and 3. Finally, the JCPU is not tasked with crafting immigration laws or policy, so it has no jurisdiction to address any complaints encompassed by point 5.

In addition to the above, the JCPU warns against using the complaint process “to harass, threaten, intimidate, or retaliate against an adjudicator.” The document makes clear that, in addition to taking seriously claims of retaliation by adjudicators, “it closely scrutinizes formal written complaints or government referrals that attempt to harass, threaten, intimidate, or retaliate against its adjudicators.”

When the JCPU receives a properly submitted complaint from an identifiable complainant or a government referral, it will acknowledge receipt of the complaint or referral. After receiving the complaint or referral, the JCPU will review it to determine whether the claims would constitute judicial misconduct if true. If the claims would constitute judicial misconduct if true, the JCPU may docket the complaint. If the claims would not constitute judicial misconduct even if they were true, the JCPU will recommend to a supervisor that the claims not be docketed as a complaint. In the event that the supervisor concurs with the JCPU's assessment, the claims will not be docketed.

Information from any Source

If the JCPU receives information from any source relating to relevant judicial misconduct by an EOIR adjudicator, it may docket the information as a complaint even if the complaint does not meet the requirements of a “formal written complaint” discussed in the previous section of this post. Examples of sources and types of information that may not meet the standard of a formal written complaint includes, but are not limited to, information received from “news reports, federal court decisions, or routine reviews of agency proceedings and decisions.”

If the JCPU receives information from any source relating to judicial misconduct by an EOIR adjudicator, it may bring the issue to the attention of its supervisor. Then, in consultation with the supervisor, the JCPU will make a determination of whether the information received from a source warrants being docketed as a complaint.

Intra-EOIR Referrals

In addition to referrals made by other DOJ components or government agencies, an immigration judge may raise issues with the judicial conduct of a Board member and vice versa. Both the immigration judges and the Board have formal processes for determining whether the issue should be formally brought to the attention of the JCPU.

Docketing Claims

If the JCPU dockets a complaint, referral, or information received, it will do so by assigning the complaint a unique number and creating an entry for the complaint in the EOIR's complaint tracking system. If the complaint does not warrant docketing because it is not related to an EOIR adjudicator's judicial role or does not amount to judicial conduct, the complaint “will be handled appropriately outside of the judicial complaint process.”

Investigation of Docketed Complaint

After docketing a complaint, the JCPU will review it along with all relevant information relating to it, including attachments sent with the complaint and agency records. The JCPU will then forward the complaint along with a summary of its preliminary fact-gathering to the adjudicator's direct supervisor for further processing. The Employee Labor Relations Unit (ELR) will also receive a copy of the communication.

After these steps are completed, the supervisor will normally notify the adjudicator of the complaint and provide the adjudicator with the opportunity to respond. Notification will only not occur if it “would compromise an ongoing investigation or is contrary to law or agency-wide policy…” In the event that the docketed complaint can be dismissed or otherwise concluded without a response from the adjudicator, and if no corrective or disciplinary action is warranted, the adjudicator will be informed of the existence of the complaint and its resolution.

After receiving the summary of the JCPU's initial investigation, the adjudicator's supervisor or his or her designee will continue the investigation. The supervisor or designee may review relevant records and obtain witness statements. If he claims are substantiated, the supervisor will determine what disciplinary or corrective action is appropriate. Adverse actions against immigration judges are covered in 5 C.F.R. 930.211.

If it appears that the complaint alleges conduct that falls under the jurisdiction of the Department of Justice's Office of Professional Responsibility (OPR), Office of the Investigator General (OIG), or the Office of Special Counsel (OSC), the EOIR will refer the complaint to the appropriate entity. Below, you will find the footnote from the document which discusses the scope of these agencies:

Resolution of Docketed Complaints

A docketed complaint may be resolved on one of four grounds.

First, the complaint may be dismissed if it is determined that it does not constitute judicial misconduct. It may be categorized as “frivolous, not substantiated, merits-related, disproven, or fails to state a claim of misconduct.”

Second, a complaint may be concluded if intervening events make further action unnecessary. For example, if the adjudicator retires, resigns, or if corrective action has already been taken, a complaint may be concluded.

Third, corrective action may be taken. In some cases, a supervisor may determine that the disciplinary action is not required, but that the adjudicator needs corrective action. Such action “may include counseling the adjudicator orally or in writing, consulting with the Office of Policy to arrange for individualized training, and/or initiating a performance-based action.”

Finally, in some cases where a complaint is substantiated, disciplinary action may be appropriate. Disciplinary action may come in the form of “a written reprimand, suspension, or removal from federal service.”

Dismissal and Conclusion of Complaint

Once a docketed complaint is resolved, the final action taken on the complaint will be recorded and it will be marked as closed. The supervisor will notify the adjudicator of the closure and resolution of the complaint. If the complaint was filed by an identifiable complainant, the JCPU will notify the complainant in writing in a manner that will not violate the privacy rights of the adjudicator.

The EOIR periodically publishes statistics on complaints.


In the event that an individual has a claim of judicial misconduct against an EOIR adjudicator, the EOIR has robust procedures for reporting a complaint. However, as the document makes clear, this complaint process is strictly for claims of judicial misconduct. Merely disagreeing with the outcome of a case does not constitute judicial misconduct. In general, an experienced immigration attorney will be in position to assess the circumstances and determine whether a given case may be one of the very rare circumstances where judicial misconduct occurred.