Time for Bondi to Give Immigration Judges Contempt Authority to Finish the Job

For nearly three decades, it has been an uphill battle to give immigration judges their fair share of judicial tools to do their ever-increasingly difficult job. A big step in the right direction happened this April, when the acting director the Executive Officer of Immigration Review issued guidance to all immigration judges that stresses their duty to dismiss legally insufficient applications for protection from removal or for asylum. But this guidance is toothless without giving the judges judicial contempt authority to back it up. It’s high time for Attorney General Pam Bondi to finish the job Congress gave the attorney general decades ago so that immigration judges can do their job today.  

Twenty-nine years ago, Congress recognized the dire need for contempt authority in immigration courts. Without that common judicial tool, immigration judges would have to endure disobedience and disrespect by the parties, endless continuance requests without merit, counsel who ignore their orders, and other outrageous courtroom antics. Immigration judges, the vast majority of whom are overseeing our country’s immigration crisis, can’t afford—and certainly don’t deserve—to be all bark and no bite. But that is exactly what has happened over the decades. 

Immigration judges have essentially become the Rodney Dangerfield of administrative law judges—they get no respect!

In 1996, Congress passed legislation authorizing these judges to have contempt authority but delegated to the Attorney General the task of issuing the implementing regulations. The law—8 U.S.C. § 1229a(b)(1)) — is straightforward as to the power it gave to immigration judges. 

Under the heading “Authority of Immigration Judge,” the statute says that “the immigration judge shall have authority (under regulations prescribed by the Attorney General) to sanction by civil money penalty any action (or inaction) in contempt of the judge’s proper exercise of authority under this chapter.” 

Nearly 30 years and 10 attorneys general later, not one has issued those simple regulations, even though several of them had previously been trial judges who, no doubt, knew about the utility of contempt authority to enforce order in their courtrooms and manage their dockets. 

When Congress passed the law, immigration judges had seemingly manageable dockets. Today, they are being suffocated by a combined docket of almost four million cases.   

To assist the attorney general, we wrote about this and drafted a model regulation ourselves back in 2019 based in large part on the federal contempt statute. Here it is again.

The regulation could be codified at 8 C.F.R. §1003.112 (presently nonexistent) and could read:

8 C.F.R. 1003.112 Contempt proceedings in Immigration Court.

Contempt. Pursuant to 8 U.S.C. §1229a(b)(1), an immigration judge may punish by fine such contempt of its authority, and none other, as—

(1) Misbehavior of any person in its presence or so near thereto as to obstruct the administration of justice;

(2) Misbehavior of any of its officers in their official transactions;

(3) Disobedience or resistance to its lawful process, order, rule, decree, or command.

(b) Method of disposition.

(1) Summary disposition. When conduct constituting contempt is directly witnessed by the immigration judge, the conduct may be punished summarily.

(2) Disposition upon notice and hearing. When the conduct apparently constituting contempt is not directly witnessed by the immigration judge, the alleged offender shall be brought before the court and informed orally or in writing of the alleged contempt. The alleged offender shall be given a reasonable opportunity to present evidence, including calling witnesses. The alleged offender shall have the right to be represented by counsel and shall be so advised. The contempt must be proved beyond a reasonable doubt before it may be punished.

(c) Procedure. The immigration judge shall in all cases determine whether to punish for contempt and, if so, what the punishment shall be. The immigration judge shall also determine when the contempt proceedings shall be conducted. The immigration judge may punish summarily under subsection (b)(1) only if the immigration judge recites the facts for the record and states that they were directly witnessed by the immigration judge in the actual presence of the court participants. Otherwise, the provisions of subsection (b)(2) shall apply.

(d) Record; review. A record of the contempt proceedings shall be part of the record of the proceedings during which it occurred. If the person was held in contempt, then a separate record of the contempt proceedings shall be prepared and filed with the Board of Immigration Appeals for review within seven (7) days of the contempt proceedings. The Board of Immigration Appeals may approve or disapprove all or part of the sentence.

(e) Punishment. A fine does not become effective until ordered executed by the Board of Immigration Appeals no more than thirty (30) days after a disposition is entered and filed by the immigration judge. The immigration judge may delay announcing the punishment after a finding of contempt to permit the person involved to continue to participate in the proceedings.

(f) Informing person held in contempt. The person held in contempt shall be informed by the Board of Immigration Appeals in writing of the holding and punishment, if any, of the immigration judge and of the final action of the Board of Immigration Appeals after its own review.

Until such a regulation is promulgated, some litigants will continue to twiddle their apathetic thumbs in and out of immigration court. With no sticks to slap wrists, immigration judges are forced to continue to play by the rules of the inattentive and preoccupied attorneys and parties who appear before them. One small change will round out the powers already possessed by our immigration judges, finally elevating them to the status already enjoyed by most other administrative law judges in the nation.

Securing the border, deporting criminal illegal aliens, and targeted enforcement raids are all part of the broader Trump administration agenda to get illegal immigration under control. Controlling immigration courts is not sexy or headline-grabbing, but it is just as important. 

Attorney General Bondi, it is time to finish the job.

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