Opposition to EOIR Proposed Rule on Immigration Judge Contempt Sanctions

Editor’s note: This page has been updated to reflect that the rulemaking is a proposed rule, not an interim final rule. The letter is reproduced as submitted.

SUMMARY

The Immigration and Nationality Law Committee (Rebecca Rubin and Kyle Dandelet, Co-Chairs) submitted a comment opposing the Executive Office for Immigration Review’s (“EOIR”) proposed rule, published in the Federal Register on July 30, 2026. The proposed rule would authorize Immigration Judges to impose civil monetary penalties for conduct deemed contemptuous of an Immigration Judge’s exercise of authority. The rule identifies five categories of sanctionable conduct: repeated late or missed appearances,  repeated missed filing deadlines, disorderly or abusive language, knowingly or recklessly making false statements, and willfully misleading others. The rule grants substantial discretion to individual Immigration Judges in determining whether conduct falls within these categories, creating a risk that similar conduct could be treated differently across courtrooms. In addition, the sanctions would apply only to respondents, their attorneys and representatives, and their witnesses, while government attorneys and witnesses would be exempt.

The City Bar strongly opposes the proposed rule because its vague and discretionary standards for sanctionable conduct could chill zealous advocacy and deter attorneys and representatives from appearing in immigration proceedings. In particular, the Committee raises concerns that Immigration Judges would have the authority to determine whether criticism of their own conduct or rulings is considered sanctionable behavior. The Committee also objects to provisions that would provide limited notice protections for alleged repeat offenders and impose significant financial consequences on practitioners, including barring attorneys with unpaid sanctions from appearing before Immigration Courts.

The Committee further contends that the proposed rule could exacerbate the immigration court backlog by reducing access to counsel and generating additional litigation over sanctions. The City Bar therefore urges EOIR to withdraw the proposed rule and instead pursue measures to improve the efficiency of immigration adjudication while preserving due process, meaningful access to counsel, zealous advocacy, and confidence in the fairness and impartiality of immigration proceedings.

REPORT

By Electronic Portal

Jamee E. Comans
Assistant Director
Office of Policy, Executive Office for Immigration Review
5107 Leesburg Pike, Suite 2500
Falls Church, VA 22041

Re: RIN 1125–AB02 or EOIR Docket No. EOIR–26–AB02

Dear Ms. Comans:

The Immigration and Nationality Law Committee (“Committee”) of the New York City Bar Association (“City Bar”) submits this comment in opposition to the Executive Office for Immigration Review (“EOIR”)’s above-referenced notice of proposed rulemaking (“NPRM”) titled “Civil Money Penalty for Actions in Contempt of an Immigration Judge’s Proper Exercise of Authority,” which was published in the Federal Register on July 30, 2026. With the threat of discretionary monetary sanctions applied only to respondents, their representatives, and their witnesses, while wholly exempting government counsel and government witnesses, the proposed rule stands to chill zealous client representation through a blatantly disproportionate application.

The Committee addresses diverse issues pertaining to immigration law and policy. Our members include staff of legal services organizations, private immigration attorneys, former judges, staff of local prosecutor’s offices, academics, and law students. We submit this comment based on our collective expertise.

I. INTRODUCTION

On July 30, 2026, the Department of Justice (“DOJ”) issued the NPRM pursuant to its statutory authority at section 103(g) of the Immigration and Nationality Act (“INA” or “the Act”), 8 U.S.C. 1103(g), as amended by the Homeland Security Act of 2002 (“HSA”), Pub. L. 107-296, 116 Stat. 2135 (as amended). As published in the Federal Register, the NPRM is proposing significant changes, explained below.

The proposed sanctions would authorize Immigration Judges (“IJs”) to penalize attorneys and representatives for one party only (respondents) for conduct that extends beyond traditional forms of courtroom misconduct, including speech or arguments that the IJ perceives as questioning the IJ’s integrity, competence, or impartiality, or language the IJ deems defamatory, slanderous, or improperly directed toward an individual in the courtroom. By permitting sanctions based on an IJ’s subjective assessment of advocacy challenging the court’s impartiality or understanding of immigration law, the proposed rule risks transforming legitimate legal advocacy into sanctionable conduct. The rule would therefore chill attorneys from vigorously representing their clients, as advocates may reasonably fear that raising good-faith objections, challenging legal errors, or questioning an IJ’s impartiality could result in monetary penalties or jeopardize their ability to continue representing clients before the Immigration Court.

II. BACKGROUND ON THE PROPOSED RULE

The statutory authority for this amendment stems from the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”). As enacted through IIRIRA, INA § 240(b)(1), codified at 8 U.S.C. § 1229a(b)(1), authorizes the Attorney General to promulgate regulations permitting IJs to “sanction by civil money penalty any action (or inaction) in contempt of the judge’s proper exercise of authority under this chapter.”[1] Congress thus authorized the Attorney General to establish, by regulation, a mechanism through which IJs could impose civil monetary sanctions; the statute did not itself confer an independently exercisable contempt power on IJs.

Despite this statutory authorization, the Attorney General historically did not promulgate regulations implementing the civil monetary sanction authority contemplated by § 1229a(b)(1). This distinction is significant because IJs are administrative adjudicators whose authority is defined by statute and by the powers delegated to them by the Attorney General. Accordingly, the existence of statutory authority permitting the Attorney General to promulgate contempt regulations should be distinguished from the actual delegation of sanctioning authority to IJs.

Nor has Congress amended the INA to confer an independent contempt power directly upon IJs. To the contrary, the statutory scheme separately protects a noncitizen’s right to representation by counsel of the noncitizen’s choosing, at no expense to the Government. See INA § 240(b)(4)(A), 8 U.S.C. § 1229a(b)(4)(A); INA § 292, 8 U.S.C. § 1362. The federal courts of appeals have likewise recognized the importance of the statutory right to counsel in removal proceedings, including in cases involving attorney error.

The proposed expansion of IJs’ sanctioning authority arises against the backdrop of significant changes within the immigration adjudication system. In recent years, the DOJ has appointed a substantial number of new IJs, some of whom entered the bench with limited or no prior experience practicing immigration law. These IJs are tasked with adjudicating cases within a complex and rapidly changing body of law, in which briefing and advocacy by attorneys and accredited representatives play an important role in identifying relevant legal developments and preserving issues for adjudication.

The proposed rule also arises within the unique institutional structure of the immigration courts. Unlike Article III judges, IJs are employees of the DOJ and exercise authority delegated by the Attorney General. They therefore operate within an Executive Branch supervisory structure in which DOJ policies and directives may affect the administration of immigration proceedings.

Recent reports concerning the termination of IJs have raised questions regarding the relationship between that supervisory authority and the exercise of independent adjudicatory judgment. For example, one IJ reportedly was terminated shortly after questioning the treatment of an asylum seeker by Immigration and Customs Enforcement (“ICE”).^[2]  Because IJs themselves remain subject to DOJ supervision, the proposed sanctioning authority also implicates questions regarding the standards governing its exercise, the degree of discretion afforded to individual IJs, and the safeguards available to ensure that sanctions are imposed consistently and independently, as set forth below.

III. PROPOSED CHANGES UNDER THE PROPOSED RULE

a. The proposed rule would significantly expand an IJ’s existing authority by permitting the imposition of civil monetary penalties against respondents and their attorneys, representatives, and witnesses (excluding government witnesses).^[3] Critically, the proposed rule creates an asymmetrical enforcement scheme by expressly prohibiting IJs from imposing monetary penalties against Department of Homeland Security (“DHS”) attorneys or government witnesses.^[4] This unequal delegation of sanction authority raises concerns about fairness and due process by subjecting only participants appearing on behalf of noncitizens, and the noncitizens themselves, to the risk of financial penalties.

b. The proposed rule advances five types of sanctionable conduct, including: “(1) attorneys’ and representatives’ repeated failure to appear or to appear on time for scheduled hearings or pre-hearing conferences, including those held via telephone or video conferencing, without good cause; (2) repeated failure to comply with [IJ] orders to timely file pleadings, applications, pre-hearing statements, evidentiary submissions, or any other filings, without good cause; (3) disorderly or abusive behavior or language in and around the courtroom and before the [IJ] or abusive language in any filing with the Immigration Court; (4) knowingly or recklessly making a false statement of material fact or law, or knowingly or recklessly offering false evidence, and for attorneys and representatives, failing to take appropriate remedial measures after becoming aware of the falsity of previous material statements or evidence; and (5) willfully misleading, misinforming, threatening, or deceiving any person (including a party to a case or an officer or employee of the [DOJ]), concerning any relevant matter relating to a case.”^[5] Additionally, “[b]oth actions and inactions may constitute contemptuous conduct.”^[6] The adjudicator would employ a “good cause” standard typical to immigration proceedings, considering the relevant attendant circumstances.^[7]

c. The proposed rule provides that “the warning would not be limited to the particular proceeding in which the initial contemptuous conduct occurred but, rather, would apply across all future proceedings,” meaning that the initial warning “would still be a valid foundation for the initiation of the civil money penalty process in the new Immigration Court if the individual continues to engage in the same contemptuous conduct that was the subject of the warning.”^[8]

d. Relatedly, the proposed rule further provides that the IJ “will not be required to issue a warning where a previous order imposing a civil money penalty had been issued on a covered individual for continuing to engage in the same type of contemptuous conduct.  In such instances, the previous order will serve as a warning for the imposition of future civil money penalties if the individual continues to engage in the same conduct within one year of the previous order.”^[9]   

e. The penalty schedule is proposed as follows: “$1,000 to $1,500 for a first contempt order; $1,500 to $2,500 for a second contempt order; and $2,500 to $3,500 for any subsequent contempt orders,” permitting discretion regarding “the number of offenses, the harm resulting from the sanctionable conduct, the remarkable nature of the conduct, and the deterrent effect of the penalty.”^[10]

f. The appeals process claims to “provide an additional layer of procedural protection to individuals found in contempt,” but imposes a filing fee of $675.^[11]

g. Attorneys or representatives who fail to pay a penalty face immediate suspension from practicing before the EOIR.^[12]

h. The stated goal of the proposed rule is, in part, to decrease the existing backlog of over 3.5 million cases by allowing IJs to sanction attorneys so that they can “control the proceedings before them and address and deter conduct that prevents efficient completion of removal proceedings.”^[13]

i. The proposed rule overall allows IJs to single-handedly wield the power to sanction only immigration attorneys and representatives. Although an appeals process can follow after the IJ sanctions an attorney, the sole decision-maker in the courtroom is the IJ.

IV. STATEMENT OF THE CITY BAR IN OPPOSITION TO THE PROPOSED RULE

The City Bar strongly opposes the proposed rule because its vague and discretionary standards for sanctionable conduct threaten to chill zealous advocacy and deter attorneys and representatives from appearing in immigration proceedings. By granting IJs broad discretion to impose monetary sanctions, including for conduct or speech that may cause no material harm, the proposed rule creates an impermissible risk of arbitrary and inconsistent enforcement.

The proposed rule further threatens access to representation by imposing significant financial consequences on practitioners and barring those with unpaid sanctions from appearing in Immigration Court. These measures will not meaningfully address the Immigration Court backlog. To the contrary, deterring or disqualifying attorneys and representatives from practice risks reducing the availability of representation, impairing the efficient adjudication of cases, and further exacerbating existing delays. For the reasons set forth more fully below, the City Bar opposes the proposed rule and urges its withdrawal.

V. BASIS FOR THE CITY BAR’S OPPOSITION 

A. The proposed rule creates an unequal enforcement regime by subjecting only noncitizens and their advocates to monetary penalties.

The proposed rule creates a fundamentally one-sided sanctions regime, a lopsided punitive scheme wherein immigration attorneys, noncitizens, and their witnesses stand to face discretionary monetary sanctions, while DHS attorneys and government witnesses do not.^[14] This asymmetry risks chilling zealous advocacy by forcing a noncitizen’s counsel to litigate under the threat of personal financial liability while opposing government counsel faces no comparable sanction from the IJ.

The resulting imbalance threatens both the fairness of removal proceedings and noncitizens’ ability to receive effective representation. A sanctions regime that constrains only one side of an adversarial proceeding risks deterring legitimate advocacy, discouraging attorneys from advancing good faith arguments, and undermining the procedural fairness protected by the Fifth Amendment’s Due Process Clause.

Although monetary sanctions exist in civil and criminal proceedings, the proposed rule creates a uniquely one-sided enforcement mechanism by authorizing IJs to impose monetary penalties on attorneys and representatives for noncitizens, but not on DHS counsel. The government justifies this disparity on the grounds that DHS attorneys are already subject to separate disciplinary procedures.^[15] But the same is true of attorneys and representatives for the noncitizens: EOIR already maintains an attorney disciplinary system that addresses much of the same conduct covered by the proposed rule, including frivolous conduct, failures to appear, and “rude, insulting, or obnoxious conduct.”[16] Thus, the premise that additional sanctions are necessary to address practitioner misconduct is unpersuasive; EOIR already has a mechanism for disciplining such conduct.

In this vein, the process hinders the efficiency goals that it purports to advance, creating a bifurcated and duplicative disciplinary regime in which the same conduct may trigger both existing EOIR disciplinary proceedings and monetary sanctions before an IJ. This additional layer of enforcement risks diverting adjudicative resources from the merits of immigration cases, generating collateral sanctions litigation and appeals, and further burdening an already strained Immigration Court system.

B. Covered conduct is vague and discretionary.

The City Bar is concerned that the proposed rule’s five categories of sanctionable conduct leave substantial discretion to individual IJs, creating a risk that comparable conduct will be treated differently across courtrooms. That concern is heightened by the proposed rule’s recognition that both acts and omissions may constitute contempt and that determinations of “good cause” will depend on the circumstances presented.^[17] Accordingly, the proposed rule invites inconsistent and disparate enforcement by vesting individual IJs with broad discretion to determine what conduct constitutes sanctionable behavior, creating the risk that similar conduct will be treated differently across proceedings. Although flexibility may be appropriate in evaluating courtroom conduct, the City Bar believes that monetary sanctions require sufficiently clear and objective standards to provide practitioners with meaningful notice of what conduct may result in personal financial liability, as specifically addressed below:

(1) Attorneys’ and representatives’ repeated failure to appear or to appear on time for scheduled hearings or pre-hearing conferences, including those held via telephone or video conferencing: The attendance provisions provide no clear standard for when tardiness or nonappearance becomes sufficiently recurrent to warrant sanctions or what constitutes “good cause.” Given competing hearing schedules, detained cases, and remote appearances, similar circumstances could be treated differently by different IJs.

(2) Repeated failure to comply with IJ orders to timely file pleadings, applications, pre-hearing statements, evidentiary submissions, or any other filings, without good cause: The filing provisions likewise leave IJs broad discretion to determine whether delays caused by difficulties obtaining evidence, communicating with clients, or securing translations constitute good cause. This discretion risks turning routine case management issues into sanctionable conduct.

(3) Disorderly or abusive behavior or language in and around the courtroom and before the IJ or abusive language in any filing with the Immigration Court: The provisions governing courtroom behavior and speech are particularly concerning because the IJ determines whether criticism of the IJ’s own competence or impartiality crosses the line into sanctionable conduct. Attorneys must be free to identify legal error, challenge rulings, and preserve objections without risking sanctions merely because an IJ views forceful advocacy as abusive or unfairly critical.

Moreover, the covered conduct includes “behavior or language that unfairly maligns the competence or impartiality of the presiding [IJ], is defamatory or slanderous, or inappropriately accosts any individual in the courtroom.” Of particular concern, the proposed rule places the IJ in the dual role of subject and adjudicator: the same IJ whose competence or impartiality is criticized determines whether that criticism warrants sanctions. This structure risks converting legitimate challenges to an IJ’s legal analysis, knowledge, or impartiality into sanctionable conduct based on the IJ’s own assessment of the criticism. The ability to raise such legitimate challenges is especially important amid substantial turnover and the appointment of numerous new IJs, some of whom have no or limited prior experience in immigration law.^[18] A staggering number of recently hired IJs lack experience in immigration law and rely on the attorneys to provide information about the applicable law, which makes attorneys’ ability to question the expertise and knowledge of an IJ all the more important.

(4) Knowingly or recklessly making a false statement of material fact or law, or knowingly or recklessly offering false evidence, and for attorneys and representatives, failing to take appropriate remedial measures after becoming aware of the falsity of previous material statements or evidence: The provisions concerning false statements and evidence require IJs to distinguish knowing or reckless misrepresentations from factual mistakes, evolving evidence, and good faith legal disagreements. Without clear standards, ordinary errors or legitimate disputes may be treated as misconduct.

(5) Willfully misleading, misinforming, threatening, or deceiving any person (including a party to a case or an officer or employee of the DOJ), concerning any relevant matter relating to a case: The prohibition against misleading or misinforming others similarly turns on subjective assessments of intent, accuracy, and relevance. Without clearer limits, the provision risks sweeping legitimate advocacy and disputed communications into the sanctions regime.

Moreover, “[b]oth actions and inactions may constitute contemptuous conduct.”^[19] The adjudicator would employ a “good cause” standard typical to immigration proceedings, considering the relevant attendant circumstances.^[20]  This broad formulation compounds the proposed rule’s vagueness: practitioners must anticipate not only what affirmative conduct may trigger sanctions, but also what they may be sanctioned for failing to do. Coupled with a case specific “good cause” standard, the rule provides little guidance as to when an omission crosses the line from excusable conduct to punishable contempt, inviting inconsistent application among IJs.

Taken together, these provisions grant individual IJs substantial authority to determine not only whether conduct falls within a sanctionable category, but also whether an explanation establishes good cause and whether the circumstances warrant a monetary penalty. The City Bar is concerned that the resulting variation in application could make it difficult for practitioners to determine in advance what conduct will expose them to sanctions and could chill legitimate advocacy, including objections and arguments necessary to preserve a noncitizen’s rights.

These concerns are particularly relevant in light of recent changes in the composition of the immigration bench. Recent reporting indicates that many newly appointed IJs have entered the bench without prior immigration law experience and with less training than was previously provided.^[21] In that environment, briefing and advocacy by experienced practitioners may play an important role in identifying controlling authority and preserving disputed legal issues. The City Bar therefore believes that practitioners must remain free to identify legal error, challenge an IJ’s interpretation of the law, and preserve objections for review without uncertainty as to whether vigorous disagreement itself could expose them to monetary sanctions.

C. Sanctions that occurred in one proceeding transfer to different proceedings.

The proposed rule provides that “the warning would not be limited to the particular proceeding in which the initial contemptuous conduct occurred but, rather, would apply across all future proceedings,” meaning that the initial warning “would still be a valid foundation for the initiation of the civil money penalty process in the new Immigration Court if the individual continues to engage in the same contemptuous conduct that was the subject of the warning.”^[22] The issues described above regarding disparate application are exacerbated by the fact that conduct deemed contemptible in one proceeding suffices to constitute warning before a different IJ.

D. Notice requirements are effectively waived for alleged repeat offenders.

The proposed rule provides that  IJs “will not be required to issue a warning where a previous order imposing a civil money penalty had been issued on a covered individual for continuing to engage in the same type of contemptuous conduct. In such instances, the previous order will serve as a warning for the imposition of future civil money penalties if the individual continues to engage in the same conduct within one year of the previous order.”^[23]

This provision effectively eliminates the safeguard of a contemporaneous warning and permits a prior penalty imposed in one proceeding to serve as the basis for future sanctions, even when the conduct occurs before a different IJ or in a separate proceeding. By allowing a prior order to substitute for a new warning, the proposed rule deprives attorneys and representatives of an opportunity to understand how a particular IJ interprets the rule’s broad and subjective standards before facing additional monetary penalties. A warning issued in one proceeding may not provide meaningful notice of what conduct will be deemed sanctionable in another proceeding, particularly where different IJs may apply varying interpretations of terms such as “disorderly,” “abusive,” or “misleading” conduct.

As a result, the provision risks imposing escalating penalties based on a prior determination that may not reflect the circumstances, context, or judicial interpretation present in the subsequent proceeding. Rather than promoting fairness and orderly proceedings, this mechanism creates uncertainty and increases the likelihood of inconsistent enforcement across the Immigration Court system. This process completely eviscerates the due process protections that courts have repeatedly held are required by the Constitution for sanctions in different circumstances.^[24]

E. Monetary penalties are imposed with increasing severity.

The penalty schedule is proposed as follows: “$1,000 to $1,500 for a first contempt order; $1,500 to $2,500 for a second contempt order; and $2,500 to $3,500 for any subsequent contempt orders,” permitting discretion regarding “the number of offenses, the harm resulting from the sanctionable conduct, the remarkable nature of the conduct, and the deterrent effect of the penalty.”^[25]

Although the proposed rule characterizes these penalties as graduated sanctions, the structure provides limited protection against arbitrary or inconsistent application. The schedule allows an IJ to impose increasingly severe penalties based on prior findings of contempt without requiring a meaningful opportunity for the attorney or representative to receive notice of the specific conduct deemed sanctionable and to modify their actions before facing escalating financial consequences. By permitting prior contempt findings to serve as the basis for increased penalties, the proposed rule effectively transforms a discretionary sanction into a cumulative punishment scheme. The implications for such a punishment scheme could be disastrous for the entire bar, particularly when appealing a decision may not only be time-consuming, but also costly in addition to the potential cost of the sanction.

F. The appeals process presents additional financial barriers for accused persons.

The appeals process claims to “provide an additional layer of procedural protection to individuals found in contempt,” but imposes a filing fee of $675.^[26]  This filing fee poses an additional financial barrier to attorneys and representatives already subject to monetary penalties and may deter individuals from pursuing legitimate challenges to contempt findings. Notably, the appeal fee is only $325 less than the minimum penalty that may be imposed, meaning that an individual seeking review must incur a substantial financial burden regardless of whether the underlying sanction is ultimately upheld or reversed. Rather than providing a meaningful safeguard, the appeals process risks making review practically inaccessible for those seeking to challenge erroneous or disproportionate sanctions.

G. An attorney who fails to pay the fee will face immediate suspension from practicing before EOIR, raising additional due process concerns.^[27]

This automatic suspension raises serious due process concerns because it imposes a professional disability that extends beyond just a monetary sanction. The immediate suspension of an attorney directly interferes with the attorney’s ability to fulfill professional obligations owed to existing clients and to provide meaningful representation in immigration proceedings. If several attorneys are suspended, there will be fewer representatives for noncitizens in Immigration Court, which would only increase the existing backlog of immigration cases.

The consequences of this provision extend beyond the sanctioned attorney. Removing an attorney or representative from EOIR practice may force represented noncitizens to proceed without counsel, obtain new representation under compressed timelines, or otherwise experience delays that further burden an already overwhelmed adjudicatory system. For many noncitizens, the loss of counsel can have profound consequences because removal proceedings often involve complex statutory requirements, evidentiary burdens, and procedural rules that make effective representation critical to a fair hearing. In fact, similar burdens imposed on attorneys have been held to be an improper denial of a noncitizen’s right to counsel.^[28]

The automatic suspension mechanism is particularly problematic because it punishes noncitizens for alleged misconduct by their representatives and creates a direct conflict with the government’s interest in fair and efficient adjudication. Although removal proceedings are civil proceedings and generally do not carry a constitutional right to appointed counsel, the government must still provide fundamentally fair procedures consistent with due process. See Reno v. Flores, 507 U.S. 292, 306 (1993) (noting that it is “well established that the Fifth Amendment entitles [noncitizens] to due process of law in deportation proceedings”); Campos-Sanchez v. INS, 164 F.3d 448, 450 (9th Cir. 1999) (recognizing that due process requires a full and fair hearing in removal proceedings).

Moreover, the automatic suspension provision conflicts with the principle that professional discipline should be imposed through procedures designed to protect against erroneous deprivation of an attorney’s ability to practice. The American Bar Association Model Rules of Professional Conduct recognize that disciplinary sanctions should be proportionate and imposed through fair procedures. See ABA Model Rules for Lawyer Disciplinary Enforcement, Rule 10 (providing for disciplinary proceedings and safeguards before sanctions are imposed).  These rules also require attorneys to protect client interests through continued and competent advocacy. See id. at Rule 1.1 (concerning competent representation); id. at Rule 1.3 (regarding diligence). Suspending an attorney solely because of nonpayment of an EOIR-imposed penalty—without accounting for the effect on existing clients—risks placing attorneys in an untenable position where compliance with the sanction may itself undermine their ethical obligations to clients.

Accordingly, the proposed rule’s suspension provision threatens to transform an administrative penalty against an attorney into a penalty imposed on both the attorney and the represented noncitizen. By restricting access to counsel, increasing delays, and potentially depriving noncitizens of meaningful representation, the provision risks undermining the very efficiency and fairness objectives the proposed rule purports to advance.

H. Discouraging attorneys from representing noncitizens in Immigration Court will only increase the EOIR backlog.

The proposed rule justifies these civil penalties in part due to EOIR’s “backlog of over 3.5 million cases,” and suggests that civil penalties will “address and deter conduct that prevents efficient completion of removal proceedings.”^[29] However, the backlog will only increase if attorneys or representatives withdraw from representation out of fear of the imposition of these sanctions. Furthermore, the limited access to an attorney’s assistance in Immigration Court would undermine the fairness that a noncitizen is entitled to receive in removal proceedings and limits their right to due process.

The alleged purpose of the proposed rule is to enable IJs “to control their courtrooms and to protect the adjudicatory system from fraud and abuse.”^[30] Citing a backlog of over 3.5 million cases, the proposed rule claims that giving IJs monetary sanctioning power “is imperative. . . to ensure [IJs] can exercise contempt authority to efficiently manage removal proceedings.”^[31] However, the backlog will only increase if attorneys and representatives withdraw from representation out of fear of the imposition of these sanctions. As such, the projected 50 sanctions per year will do little to ameliorate the EOIR backlog of over 3.5 million cases.^[32]

Additionally, EOIR claims that the civil monetary penalty would be “an exceptional tool that should rarely be invoked.”^[33] However, given that this directive emerged as a result of President Trump’s Presidential Memorandum entitled “Preventing Abuses of the Legal System and the Federal Court,”^[34] the application of this rule by the administration and, consequently, IJs may differ. In this Memorandum, the President explicitly states that he believes there is “rampant fraud and meritless claims” in the immigration system, which would imply the supposed need to impose far more sanctions than what the government claims they will make in this proposed rule. Consequently, more attorneys will be afraid to advocate for their clients in Immigration Court due to the broad and arbitrary sanctions that can be placed on them. Indeed, the rule appears designed to instill fear in attorneys, representatives, witnesses, and noncitizens themselves, dissuading them from asserting genuine, lawful, and legitimate claims. Indeed, it is the threat of sanctions that does the work, not the sanctions themselves.

In sum, this is a disproportionately broad, blanket “solution” for an exceedingly rare and specific scenario of blatant courtroom misconduct that is already provided for by existing disciplinary procedures.

I. The proposed rule exacerbates longstanding concerns regarding the impartiality and structural independence of immigration adjudication.

The proposed rule is particularly troubling because it expands the punitive authority of IJs within an adjudicatory system that has long faced concerns regarding institutional independence and impartiality. Unlike Article III courts, Immigration Courts are housed within EOIR, an agency of the DOJ. As a result, the same Executive Branch that initiates and prosecutes removal proceedings also maintains administrative control over the adjudicators who preside over those proceedings. Although Congress has authorized the Executive Branch to administer the immigration adjudication system, the concentration of prosecutorial and adjudicatory functions within the same branch creates longstanding concerns regarding the perception and reality of impartial decision-making.

These structural concerns are especially significant in the context of the proposed rule because the rule would authorize IJs to impose monetary penalties against the very attorneys and representatives who appear before them. The rule does not merely regulate courtroom decorum; it creates a direct mechanism by which an adjudicator may financially penalize an advocate for conduct that the adjudicator personally views as improper, including speech or arguments that allegedly question the IJ’s competence, integrity, or impartiality. In a system where IJs operate within the same Executive Branch responsible for enforcing immigration laws, granting adjudicators expanded authority to punish advocates who challenge their rulings or impartiality raises substantial concerns regarding the ability of attorneys to engage in vigorous representation without fear of retaliation or reprisal.

The need for independent advocacy is particularly important in immigration proceedings because noncitizens appear before a system in which the government is both the party seeking removal and the entity responsible for administering the adjudicatory process. The Supreme Court has recognized that due process requires a hearing before a neutral decision-maker. See, e.g., Wong Yang Sung v. McGrath, 339 U.S. 33, 50-51 (1950) (recognizing the importance of separation between prosecutorial and adjudicatory functions in administrative proceedings). Although subsequent statutory changes have altered the structure of immigration adjudication, the constitutional principle remains that adjudicatory systems must provide procedures sufficient to ensure fundamental fairness and an impartial hearing.

The proposed rule threatens to undermine that safeguard by limiting the ability of attorneys to raise legitimate concerns regarding judicial impartiality, legal errors, or procedural irregularities. Meaningful advocacy necessarily requires attorneys to challenge adverse rulings, identify legal mistakes, and preserve issues for review. If an attorney’s criticism of an IJ’s reasoning or impartiality may itself be interpreted as sanctionable conduct, the rule risks converting legitimate advocacy into a basis for punishment. This concern is heightened in immigration proceedings, where noncitizens frequently face severe consequences, including separation from family, loss of lawful status, or return to countries where they may face persecution or other serious harm.

Moreover, the proposed rule’s reliance on IJs themselves to determine whether advocacy directed toward the court constitutes impermissible criticism creates an inherent conflict. The same IJ whose impartiality, legal reasoning, or conduct is being challenged would possess the authority to determine whether that challenge crosses the line into sanctionable behavior. This is particularly concerning when IJs are pressured to comply with the goals of the Presidential administration, a practice that has been seen with the changes under the Trump administration and the notorious firing of many IJs. These changes increase the likelihood that IJs will have biased views of noncitizens and their cases. This makes the attorney’s ability to criticize the lack of impartiality in an IJ’s hearing crucial in defending their client. Attorneys should be able to hold IJs to the law, and not the priorities of the Executive Branch. The inability to fairly critique an IJ without undue fear of reprisal weakens the due process protections that noncitizens are entitled to and limits the vigorous advocacy of an attorney on behalf of their client. Even in circumstances where an IJ acts in good faith, this structure creates the appearance that advocates may be penalized for raising objections that are essential to protecting their clients’ rights.

The concern is not that IJs should lack authority to maintain courtroom order or address genuine misconduct. Courts have long possessed authority to regulate proceedings and sanction abusive conduct. Rather, the concern is that the proposed rule provides a one-sided and unusually broad punitive mechanism within a system already subject to longstanding questions regarding institutional independence. Existing professional responsibility rules and EOIR disciplinary procedures already provide mechanisms to address frivolous filings, dishonest conduct, and genuine attorney misconduct. Expanding unilateral sanction authority within the courtroom risks creating a duplicative enforcement system that may discourage lawful advocacy rather than prevent misconduct.

The proposed rule therefore presents a significant risk that attorneys will avoid forcefully challenging erroneous decisions, raising concerns about impartiality, or making necessary objections for fear that such advocacy may be characterized as contemptuous conduct. In an adjudicatory system where the prosecuting authority and adjudicating authority exist within the same Executive Branch, preserving the ability of advocates to question, challenge, and test government action is essential to maintaining the fairness and legitimacy of immigration proceedings. Rather than strengthening adjudication, the proposed rule risks further weakening confidence in the impartiality of the Immigration Court system by granting adjudicators expansive authority to punish those who appear before them.

VI. CONCLUSION

The need for an efficient and effective immigration adjudication system is a shared objective. However, the proposed rule’s expansion of IJs’ sanction authority does not advance that goal. Instead, by imposing broad and discretionary monetary penalties on attorneys, representatives, witnesses, and noncitizens, while restricting the ability of advocates to challenge judicial conduct and legal errors, the rule risks further undermining the fairness, impartiality, and integrity of immigration proceedings. Indeed, the threat of these monetary sanctions will effectively and insidiously stifle zealous representation by all immigration attorneys, even if only a select few are sanctioned in practice.^[35]

Although the proposed rule characterizes monetary sanctions as an extraordinary measure to be used sparingly, the practical impact of the rule extends beyond the limited number of individuals who may ultimately be sanctioned. The threat of financial penalties, suspension from EOIR practice, and other professional consequences will inevitably influence attorney conduct and may deter advocates from engaging in the vigorous representation necessary to ensure that noncitizens receive a full and fair opportunity to present their claims. The resulting harm will fall most heavily on noncitizens who rely on effective representation in proceedings that may determine whether they remain separated from their families, return to dangerous conditions, or lose lawful status in the United States.

Rather than imposing additional punitive mechanisms, resources should be directed toward addressing the administrative and structural burdens that contribute to Immigration Court backlogs, including improvements to case processing, adjudicatory resources, and court infrastructure. The City Bar therefore opposes the proposed rule and urges EOIR to pursue reforms that promote efficiency while preserving the essential principles of due process, impartial adjudication, and meaningful access to representation.

The City Bar appreciates the opportunity to submit these comments and welcomes continued dialogue regarding reforms that advance a fair, efficient, and effective immigration adjudication system.

Respectfully submitted,

Immigration & Nationality Law Committee
Kyle Dandelet, Co-Chair
Rebecca Rubin, Co-Chair
Jeri Milan, Member
Crystal Larios, Member
Valerie Hanna, Member