REGULATION: Civil Money Penalty for Actions in Contempt of an Immigration Judge's Proper Exercise of Authority

In 1996, Congress codified Immigration Judges' authority to sanction contemptuous action or inaction by imposing civil money penalties. Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Public Law 104-208, 304, 110 Stat. 3009, 3009-589; see INA 240(b)(1), 8 U.S.C. 1229a(b)(1). The statute requires, however, that the Attorney General promulgate regulations to define and delineate that statutory authority.

In 2006, then-Attorney General Alberto Gonzales announced measures designed to improve the performance of the Immigration Courts and the Board of Immigration Appeals (“Board”). One measure directed EOIR to “draft a new proposed rule that creates a strictly defined and clearly delineated authority to sanction by civil money penalty an action (or inaction) in contempt of an immigration judge's proper exercise of authority.” ^[1] Attorney General Gonzales announced this measure because “Immigration judges should have the tools necessary to control their courtrooms and to protect the adjudicatory system from fraud and abuse.” ^[2]

Despite Attorney General Gonzales's instruction and Departmental efforts over time, the Department has not published a rulemaking implementing “a strictly defined and clearly delineated authority” for Immigration Judges to impose a civil money penalty as a sanction for contemptuous conduct. The Department has adopted regulations establishing rules of professional conduct for practice before EOIR, see8 CFR 1003.101-.111, but that disciplinary process is initiated and led by the EOIR disciplinary counsel. See generally8 CFR 1003.105 (detailing discipline process). Thus, there are no existing mechanisms for Immigration Judges presiding over proceedings to impose sanctions when an individual engages in contemptuous conduct; if an attorney or accredited representative engages in contemptuous conduct, the Immigration Judge is limited to filing a disciplinary complaint in the same manner as members of the general public. See8 CFR 1003.104(a)(1).

Now, the Department is issuing this NPRM, which, if finalized, would implement the contempt authority provided for Immigration Judges under section 240(b)(1) of the INA, 8 U.S.C. 1229a(b)(1). The implementation of Immigration Judges' authority to sanction contemptuous conduct by civil money penalty will honor the framework envisioned by Congress for Immigration Judges to control the proceedings before them and help deter detrimental conduct that may affect such proceedings.

IV. Description of the Proposed Rule

The Department proposes to add Subpart H—Civil Money Penalty for Contemptuous Conduct Before an Immigration Judge to Title 8, Chapter V, Part 1003 of the Code of Federal Regulations. Within this subpart, the Department proposes to: (1) explain the purpose and exceptional nature of the civil money penalty; (2) describe individuals who may be ordered to pay a civil money penalty; (3) outline the types of contemptuous conduct that may result in the imposition of a civil money penalty; (4) provide procedural standards for the Immigration Judge, the individual, and the Chief Immigration Judge to follow in the consideration of contempt matters; (5) authorize and provide standards for appeals to the Board; (6) provide guidelines for the payment of civil money penalties, including consequences for failure to pay; and (7) ensure oversight by EOIR management—primarily by the Chief Immigration Judge—of Immigration Judges' use of their contempt authority.

Providing immigration judges with authority to police bad behavior in immigration court could lead to more efficient proceedings. This could help reduce the backlog and definitely could deter abuse and fraud.