The “rubber stamp” is a nefarious metaphor, historically used to accuse judges or legislatures of lacking any real power (or of refusing to exercise it). As it goes, the judge hasn’t made a meaningful decision at all; their signature has merely been stamped on an order or decree to provide a sheen of formality or due process.
Records recently obtained through the Freedom of Information Act show that the Department of Justice, which runs the nation’s immigration courts, is issuing “rubber stamp” orders under a new system called “Case Flow Processing.” While these orders appear to be signed by the judge, in some cases they have been issued by a DOJ employee in Virginia and the signature is stamped by a staff member, using a rubber signature stamp, and then mailed to the parties.
“Case Flow Processing” and Rubber Stamps
In the November 2020 memorandum announcing the program, then-director of EOIR, James McHenry, wrote that once a person hires an attorney, their court hearings will be cancelled and they will be required to submit pleadings and applications in a short time period. The memo also said that the judge assigned to the case would still have “discretion to deviate” from this model. That meant the judge would ultimately decide whether to issues these orders or what requirements they would contain. But that now appears to have been untrue.
Weeks before the program’s announcement, the agency began ordering rubber stamps with the judges’ signatures in bulk. A list circulated to court staff at the time said that one judge, Rico Bartolomei of San Diego, “refused” this order.
Rather than give the judges “discretion” to decide whether to use this new streamlining method as the McHenry memo had promised, a November email message from Principal Deputy Chief Immigration Judge Mary Cheng said that “all pending” cases with an attorney (other than unaccompanied children and cases with competency issues) would be included. She wrote that EOIR headquarters in Falls Church, Virginia would create a report to “identify these cases” they wanted included instead of letting the judges themselves decide.
A followup email from a staff member requested that rubber signature stamps from the judges be sent to EOIR headquarters in Virginia so that headquarters staff could issue the orders themselves, stamp the judges’ signatures on them, and mail them from Virginia as if they had come from the judge assigned to the case.
The training materials sent to agency staff, which have not previously been made public, confirm this approach. A PowerPoint presentation for staff describes legal assistants printing scheduling orders and rubber stamping them to appear as if they were signed by the judge.
These emails and training materials raise serious questions about whether EOIR is bending the law. The agency’s own policy manual bans the use of “signature stamps” because “these signatures do not convey the signer’s personal authorization” for the stamped document. More recently a policy memo issued in response to COVID-19 said digital signatures were now allowed, but not stamped signatures.
More broadly, courts have long rejected the use of signature stamps by court employees to simulate a judge’s signature on orders not issued by the judge. As one court wrote: “A judge may not delegate the judicial duties and responsibilities that are exclusively his or hers to the bearer of his or her signature stamp.” It wrote that doing so “calls into question the validity of any orders” because court staff lack authority to issue such orders themselves.
Early Concerns About Due Process
Internal concerns about the program were raised early. The emails show that days after the program’s announcement, Teresa Kaltenbacher, a regional public information officer in the agency, wrote to an Assistant Chief Immigration Judge that they should be prepared for “questions regarding due process.” This followed reporting about how “skipping hearings” could jeopardize immigrants’ abilities to navigate the system without guidance on their rights from the judge.
In April 2021, citing the requirement of “fair adjudications,” the agency made minor changes to the policy in a new memorandum. But it also said all previously-issued orders under the December memo would “remain in effect.” The memo said that this guidance did not require judges to conduct their cases in a particular way.
Still, the ongoing concerns about due process have persisted. In an interview in August 2021, Immigration Judge Mimi Tsankov, president of the National Association of Immigration Judges, described the judges’ concerns that the new process was tying their hands. She described the new system as outsourcing the judges’ roles to assistants and said “the judges themselves sometimes don’t even see a case until it’s ready for a merits hearing, a full hearing.” She noted that under this system judges don’t even have “access to the details of that case” until trial.
Eliminating Master Calendar Hearings is Illegal
Setting aside the problem with rubber stamping judges’ signatures, it’s not even clear why the EOIR believes this program is legal. Neither the implementing memos nor the training materials explain why EOIR is allowed to skip these important first hearings, called “Master Calendar” hearings. Yet the federal regulations that govern immigration court, the immigration statute, and binding agency and court decisions require them.
One section of the regulations says that at these hearings the judge is required to advise the person of their rights and of the availability of pro bono counsel and explain the charges against them. Doing this at a hearing is important, because the judge can see whether the person needs an interpreter, for example, or understands the explanation of their rights. A different section of the regulations says that judges can only order removal “without a hearing and in the absence of the parties” if the person agrees to this in writing.
The regulations also rely on the date of the Master Calendar hearing to determine what a person might be eligible to apply for. For example, the section on Voluntary Departure says that the person has a right to request voluntary departure up until “the master calendar hearing at which the case is initially calendared for a merits hearing.” And it says that date also triggers the start of a 30-day period where a judge can grant “pre-conclusion” voluntary departure. Cancelling all Master Calendar hearings throws a giant wrench into the requirements for conducting these hearings.
It’s not just the regulations – the immigration statute itself says the judge’s decision on whether to deport a person can only be based on “the evidence produced at the hearing.” And courts have relied on this language to conclude that “federal immigration law is clear” in requiring a hearing.
The Board of Immigration Appeals, which issues precedent decisions that control the manner of immigration court hearings, has also explained why these hearings are not just required by law but are specifically important in protecting immigrants’ rights. For example, in a 1999 decision the BIA explained that Master Calendar hearings are “the stage of the proceedings at which the Immigration Judge generally ensures that [a person] has been advised of his or her rights under the Act and applicable regulations, including rights to apply for relief, and has been given notice and warnings regarding his or her obligation to attend future hearings, file applications and evidence in a timely manner, and otherwise cooperate with orders of the Immigration Court.”
In a more recent decision the BIA said that judges must explain “at the master calendar hearing” the “general type of evidence” needed to be granted something like asylum.
Elsewhere the BIA has said these hearings are required because the judge needs to be able to determine if the person is competent. Although the “case flow processing” memo says the new process does not apply to cases where the person is not competent, if a judge never gets to see or talk with the immigrant until the date of trial, they have no way to know. And the BIA has said the decision about competency affects even the preliminary stages of the case, like who can be served with a charging document.
And at least one federal court has agreed that skipping Master Calendar hearings can prejudice immigrants who may be unable to navigate these proceedings with no meaningful guidance.
Whether this program is “good” or “bad” for specific individuals, there’s no real question that it’s illegal. Most would prefer a system that moves faster. But the minimal rights given to people in immigration court are tied to the existence of a hearing.
At its core, the very existence of this program is a problem; it largely ignores legal requirements designed to protect the rights of vulnerable populations. While the immigration courts are facing greater backlogs than they ever have before, nothing permits the courts to cut corners by skipping mandatory hearings.
If that weren’t enough, the new email messages and training materials about staff in Virginia using rubber signature stamps, issuing orders purporting to be signed by a judge when they are not, should raise serious questions for lawmakers about how this agency is running.