Transcripts For CSPAN3 Executive Office For Immigration Review Oversight Hearing 20171103

Immigration. He said the Trump Administration would have to double the number of Immigration Judges to work through the large number of pending cases. The subcommittee on immigration and Border Security will come to order. Without objection the chairs authorized to declare recesses of the committee at any time. We welcome everyone to todays hearing on oversight of the executive office for immigration review. And now i recognize myself for an Opening Statement. Todays oversight hearing focuses on a critical facet of u. S. Immigration policy. The executive office for immigration review or eoyr is the lynchpen as it administers of other components the u. S. Immigration courts and the court of appeals. We must ensure our Immigration Laws are interpreted as congress intended. As a former immigration who regularly appeared in Immigration Court i certainly appreciate how important it is that the courts are administered effect 11 and a way that maximizes daca management and minimizes fraud and lay. Unfortunately eoyr has been consistently plagued with problems. During the past administration the department of justices Inspector Generals Office found the office engaged in nepotism and other disturbing practices. It made it impossible to focus on much needed imp provement. Additionalally a 2014 serve crash paralyzed the courts nationwide for several weeks. Again necessitating the allocation of resources away from management and oversight of the agency. The policies and practices instituted during the Obama Administration served a decidedly political agenda throughout the federal government and eoyr was not spared. They racedt a minimum a specter of collusion between the department of justice and department of Homeland Security. The prioritization of recent inference including the surgeance of unaccompanied minors and immigrants were likewise ill advised and poorly executed. Ignoring the spikes of asylum fraud eoyr chose its Program Based on expediency rather than based on prudence. Of utmost concern to this subcommittee is the current backlog of pending cases. I am appalled but really not surprised that the Previous Administration created conditions that ult matly resulted in a backlog of almost 630,000 pending cases nationwide. This number represents a 22 increase in fiscal year 2017 and is simply unacceptable. The Government Accountability offices recent report on Management Practices at eoyr and the backlog identified several possible Solutions Including reforming the hiring process for Immigration Judges and updating internal oversight practices to ensure better daca management. The goa report noted coiniances were a contributing factor to the backlog. It found that court saw a 23 increase in the dprapts of continue witnesses. I would never suggest that continuances be disallowed. However, the rash of continuances used for the purposes of delay constitute an abusive process that must be stopped. The july 2017 memo of chief judge mary beth cellar out lining the tremendous step in curbing this abuse but represents only one of the solutions to reduce the number of pending cases. The goa report further noted the inefficiencies associated with hiring Immigration Judges as the written as acknowledged calling for the hiring of an additional 370 immigration suggests. I remain concerned that eoyr must evaluate hiring practices to meet even a fraction of this goal. Finally, i have long spoken about the need to modernize our imdpragz system. One of the key components must be the modernization of our Immigration Courts. Eoyr currently lacks in terms of basic items such as filings and other similar items. This was never a priority for a Previous Administration. Employing an efiling system would drastically reduce the need for more filing space and overall reduce the number of lost filings that could also lead to unnecessary delays. In addition, eoyr relies on other technology, but there are concerns that this equipment is either outidated in some locations or not operational at all in others. With the challenges facing eoyr today and the solutions of the administration, i am hopeful we can Work Together to bring real change to the agency and continue the goals of modernizing and reforming our immigration system. Before i recognize the general woman from c, i would like to place into the record a statement from judge ashley tabanor. Without objection this statement will be placed into the record. The last time the immigration subcommittee gathered for an eoyr or oversight hearing we heard testimony from the former eoyr director. In august of this year juan passed away this year suddenly. And id like to take a moment to acknowledge his life and service to this country. Juan worked for 17 years as a Legal Advisor in the Justice Department for both democratic and republican administrations. He was a form board of immigration appeals judge and former associate Deputy Attorney general in charge of immigration policy that the department of justice. Juan had a remarkable career in public service, and he will be greatly missed. And i would like to extend my heartfelt condolences to his family over his loss. We are are assembled here now to take a close look at the administration of our Immigration Courts system. The executive office of immigration review currently employs 339 Immigration Judges in 58 courtrooms around the country. Immigration judges have a complex often thankless task of making sophisticated legal decisions with decisive speed. Because there is no right to government appointed council Immigration Judges often have to act as a fact finder and legal researcher to ensure the result in each case is just, fair and in accordance with legal precedent. The difficulty of this task is magnified by the severity of the consequences. Immigration judge dana lee marks once said theyre, quote, Death Penalty cases heard in traffic court. This is particularly true for asylum seekers, children and other vulnerable populations. Yet despite these difficulties the Trump Administration has taken steps towards imposing numeric and performance quotas. This could add difficulties by in his written testimony our witness states at eoyr is transforming its Institutional Culture to emphasize the importance of completing cases. He claims this will improve the efficiency of our court system, but i dont think itll do more except increase the removals, speedy deportations and also increase appeals in our federal court system. Much of the discussion today will focus on the immigration back and the ways this can be reduced. I want to start by saying congress can fully fund hiring Immigration Lawyers, clerks and infrastructure. The backlog will not be fully remedied by policy shifts alone. But the immigration backlog is not one that happened overnight. There are reasons for the backlog. First Immigration Enforcement specifically funding for i. C. E. Are out paced by fundsing for Immigration Courts. In 2002 to present day funding increased by over 400 . I. C. E. And cvp went from a budget of about 5. 5 billion in 2002 to about 7 billion in 2017. This means at the same time i. C. E. And cvp are fundling cases into the court system the courts are not given amounts of resources to judeicate the speed and efficiency, and its created a massive bottleneck in backlogs which were seeing today. Eoyr currently has 60,030 cases pending. And in some cases courts can wait three to five years to receive a decision on their case. On perspective the average caseload of a u. S. District court judge is 440. Second, both under the obama and Trump Administration eoyr implemented policies under president obama eoyr implemented a rocket docket. These cases primarily consisted of children and families from Central America who are fleeing violence and seeking asylum. Eoyr implemented a last in, first out strategy which meant that removal cases of immigrants who had been waiting for months or years were further delayed. Now, under the Trump Administration eoyr moved the Immigration Judges along it the southern border. Reports that many of these judges sat in empty court rooms with little to do. The mobilized judges completed approximately 427 more cases expecteden if they had not be detailed. But what he fails to mention is the socalled surge of these immigration suggests over 4,000 hearings were rescheduled. Immigration courts must ensure those who enter our country seeking protection be afford a due process and a full and impartial hearing in a prompt manner. But this cannot come at the expense of Immigration Court backlogs in the interior of the country. And lastly one of the primary reasons for the Immigration Court backlog is the continued lack of representation particularly for children and other vulnerable populations. When particularly a child appear ins Immigration Court without legal representations, an immigration judge will spend a considerable amount of time in assessing the child and determining her legal options. This is precisely what a judge should do when a one is presented in Court Without legal remtation. The National Association of Immigration Judges has explained that, quote, when noncitizens are represented by attorneys, Immigration Judges are able to conduct proceedings more expeditiously and resolve cases. It was save the country 38 million through expedited processes. My bill would provide Government Counsel to children and particularly vulnerable individuals. It would save the government money and ensure the Due Process Rights of children are protected. I hope my republican colleagues will join me in sponsoring this bill, and i look forward to substantive conversation today. I yield back the remainder of my time. Thank you, chairman. And i want to let my colleague from california know that i cosponsored the legislation with great pride. Members of our committee and to our distinguished witness, i too want to note the passing of juan osana who served as the director of immigration review and who testified before this subcommittee in that capacity. Mr. Osana was a model Public Servant who devoted the last 17 years of his life to the department of justice. He was a consummt professional known for his leadership and his ability to balance access to justice with court efficiency. And im sure hes deeply missed by the department and those that work with him there. Now, turning to the focus of todays hearing, we have an important opportunity to consider the current challenges facing the executive office for immigration review, particularly under the current administration. To begin with, rather than the rule of law is guiding Immigration Court policies under the Trump Administration, the antiimmigrant ideology. Now after all since the earliest days of his campaign now President Trump has shown troubling disregard for that rule. Hes attacked the judiciary, issued an unprecedented pardon of a sheriff convicted of criminal contempt of court, and fired the fbi director during an Ongoing Investigation by that agency into his own campaign. Pardon me. Unfortunately, the executive office for the immigration review appears to have not escaped this broad erosion of rule of law principles based on the administrations policies that threaten judicial independence, due process and fundamental fairness within our Immigration Courts. First, media accounts report tat the Trump Administration could impose numerical and timebased case quotas on Immigration Judges. All of us regardless of Party Support common sense measures for reducing Immigration Court backlogs. But quotas are not the solution. Their implementation would force already overstressed judges to hurry through lengthy dockets regardless of the circumstances of individual cases. Hearings would become lightening fast, fundmentally unfair and unfair due process. It would turn it into a forced march towards deportation. Secondly, the administration issued a memorandum effectively pressuring judges to deny motions for continuances, which often represent a vulnerable immigrants only chance for obtaining counsel essential to protecting his or her rights. Together with case quotas this will force many respondents even Young Children to face immigration and Custom Enforcement prosecutors without counsel, which all but ensures their unjust removal. Thirdly, the executive office for immigration review has moved to strip children in immigration proceedings of other vital protections. In a callus break with prior policy, the Agents Office of general counsel issued an opinion concluding that Immigration Judges may revoke minors, unaccompanied alien child status and associated legal safeguards. As with the first two measures, this will substantially increase removals of minors. The common denominators among these three measures are clear. Far less due process and fairness, far less deportations, this is anything but the rule of law of instead these policies undermine that rule in the service of the president s antiimmigrant ideology intended to drive immigrants out of the United States. Our task today must be to gain a greater understanding of how this administratives executive Office Immigration review policies concretely advance that agenda and how they serve to further his mass deportation plan. I thank acting director mckenly for his appearance before the committee and look forward to a substantive dialogue with him on these critical matters. I thank the chair and yield back any time that may be remaining. Thank you, mr. Conyers. Without objection other members Opening Statements will be made a part of the record. We have a distinguished panel here today, a panel of one. And the witnesss written statements will be entered into the record in its entirety. I ask you summarize your testimony in five minutes or less. To help you stay within that time there is a timing lith on your table. When the light switches from green to yellow, you will have one minute to conclude your testimony. When the light turns red it signals that your five minutes have expired. I will give you a little bit of leeway because youre the only witness, but dont go much beyond the five minutes. And before i introduce your witness, id like you to stand and be sworn in. Do you swear that the testimony youre about to give is the truth, the whole truth and nothing but the truth . I do. Let the record reflect that the witness answered in the affirmative. Thank you, please be seated. Mr. Mckennelly was appointed on may 30th, 2017. Prior to his appointment he served in the office of the associate attorney general. He was previously an Administrative Law judge in the Social Security administration. Hes also worked as an at or near for the u. S. Immigrations and customs enforcement. He earned a bachelor of science from the georgetown Universe School of service, a master of arts in Political Science from the vanderbilt Universe School and a juris doctorate from the vanderbilt universe law school. I now represent the witness for his statement. Thank you for the opportunity to speak with you today about the department of justices executive office for immigration review or as we affectionally call it eoyr. This is my third stint and i have a deep respect for eoyrs position. I returned to the agency several years later as an Administrative Law judge. I am honored to now serve as its acting director and to be able to appear before you to discuss some of the challenges and opportunities it currently faces. At eoyr our primary mission is to adjudicate immigration practices. We do under delegated authority from the attorney general by conducting immigration hearings, and appellet reviews. As policy changes and daca Management Practices have contributinged contributinged to a pronounced increase. The caseload has almost tripled since fy 2009 and doubled since 2012. Eoyr has formulated a plan to achieve our goal. Were actively implementing a number of initiatives towards that goal which im happy to talk about today. Weve hired 61 new judges since january 1st, and were in the process of filling up to 42 additional positions utilizing a new stream lined hiring process announced bay the attorney general earlier this year. Second, we are maximizing our existing adjudicatory capacity by addressing daca inishancies and unused capacity. For example, earlier this year we issued guidance tew cyst Immigration Judges with fair and efficient daca practices. Weve also implemented a policy of no dark courtrooms by expanding our use of cellferencing and rehiring judges on a part time basis to hear cases as needed when permanent judges are unavailable. Third, weretrance forming eoyrs culture and improving the infrastructure by focusing on its core mission of adjudicating cases. We are committed in implementing a pilot system in 2014. Fourth, were working with our partners to ensure any there flux, sudden influx of new cases does not undermine our efforts. Fifth, we are reviewing all our internal policies to evaluate ways in which our own guidance may be utilized effectively. All these initiatives are beginning to yield some signs of progress. Existence or nonexistence in fy 2017 our judges completed approximately 20,000 more cases than they did in prior fiscal year. We know more challenges lie ahead of us. There are two other eoyr programs i would like to mention for the subcommittee and are also ins grl to the success of the agency. First, we have commanded our fraud and Abuse Prevention Program. And in june i issued an directive reminding all eoyr employees of their duty to report fraud and abuse. Eoyr has no tolerance for misrepresentations of fraud in our system. Second, weve reevaluated our Strategic Planning division which has been under utilized in the last two years. We are pleased to have a robust Analytics Division to aide us in our policy development and implementation. Mr. Chairman, representative lofman, i am proud of eoyr and proud of its employees. However, we are also cognizant more work needs to be done. Nevertheless, we will continue to make significant strides in 2018 in reversing some of the negative trends of the past. Thank you again, and im pleased to answer any questions you have. We will now proceed under the five minute rule with question. I will begin by recognizing myself for five minutes. How many Immigration Judges do you anticipate hiring and onboarding in the up coming fiscal year . Its hard to say for the entire fiscal year. We have 19 currently in the pipeline, and were in the process of hiring up to 42 additional ones. So that would be a total of 61. Beyond that it would depend on factors such as availability requirements and things like that. What steps is eoyr taking to convert to a process of efiling system . We have had several meetings with our office of information technology. And ive made it clear in no Uncertain Terms that efiling and electronic case system is an absolute priority for the agency. Weve begun piloting weve begun developing a process to pilot an Electronic Filing system next year. Its an overall electronic Case Management system. Were in the prauz of developing the prototype for it now and soliciting feedback. I am confident well have some type of system in Immigration Courts. How is eoyr able to enforce that memorandum and ensure Immigration Judges are not overtly ignoring it when ruling on continuances. It doesnt direct to determination of specific cases. It does remind judges of considerations they should keep in mind regarding daca efficiencies. That memorandum was issued at the end of july, so weve just come upon a threemonth window when it came into effect. Once we review the data and see what it shows, then well take the steps if proecappropriate t back. There seem to be some data quality issues, and thats why were going back and doublechecking them. Much of todays hearing focuses on the backlog which stands at 630,000 pending cases. To what extent do you believe the reallocation of judges to family units beginning in 2014 contribute today the backlog . I dont believe theres any question that it contributed to the backlog in a significant way. A measurement of the precise magnitude is perhaps a little difficult to come by. But its clear especially ununaccompanied alien children cases, they typically take longer to resolve for various reasons. So by putting them to the front of the line, you put cases that take longer to resolve first and then you continue cases that might have been resolved in their place. So its had a Significant Impact but im not sure we can so its almost an example of triage. We take the ones that take the longest in the beginning instead of taking the ones we can handle right away. It was a system that was counter productive, i think, to its stated goal of trying to resolve cases does eoir still prioritize these cases . We changed our priorities for the third time in three years in january of this year. That was before i became acting director, so i cant speak to the process that drove that. Currently our priorities for unaccompanied children or only those in the custody of the department of health and human services. Other unaccompanied alien children are no longer considered a priority. I can say within the agency, within eoir as a whole, myself, my Senior Management team are reviewing our priorities in general and looking at whether the priorities memo, the last one we issued, is still the best statement of how we look at cases. As eoir is considering performance metrics for Immigration Judges including possible case completion goals how would you expect such metrics to impact the current backlog . Eoir already operates under a number of performance metrics. Some of those are established by the immigration and nationality act. Some of those have been developed by the government performance and results act or gpra. Those results have been positive so far, the goals that we do have. We would anticipate if we develop new goals, and weve been recommended to do those by the gao, the office of the inspector general, by congress, we develop those new goals, we would expect the judges to be able to comply with those as well. We feel our judges are professional enough that they can understand the importance of adjudicating cases while at the same time maintaining due process in each individual case. So according to the track data, the average number of days a case is pending before the Immigration Court is 691. It seems it is meaningless for i. C. E. To bring in individuals and place them into removal proceedings if they will then be in limbo for over two years before there is final disposition of their case. What is eoir doing to reduce this average number of days pending . Our data i think i dont have it in terms of days. I have it in terms of month, that the average pending nondetained case is probably 21 months. Were trying to reduce inthat. Were looking at consolidating cases, achieve efficiencies of scale. Were committed to no more dark courtrooms. When we have a judge thats absent, well have by vtc or rehired retired immigration judge, be able to hear those cases in those absences. Together that should start bringing the average down. Thank you very much. Ill now recognize the gentlelady from california, ms. Lofgren. Thank you, mr. Chairman. Its good news that were making progress on the electronic case filing system. So that would be i think theres unanimous support here for that success. I do have some concerns, however, about some of the other proposals. I wanted to raise an issue first about the what i understand is disbanding the Juvenile Court docket in new york city. Its my understanding that almost the highest amount of Pro Bono Service was provided to children in new york. And i would like to ask unanimous consent, mr. Chairman, to enter into the record a letter from kids in need of defense safe passage project in the Legal Aid Society of new york and the door about the closure of this docket. Can you explain the decision in this case, or am i incorrect . My understanding is that occurred in january of this year. I was not in eoir at the time. So i cant speak to what was the driving force behind it. I do know, as i alluded to a moment ago, we issued a new priorities memo at about the same time that limited the types of unaccompanied alien child cases that were considered priorities. I assume that had something to do with it. But i cant speak to it directly. You know, in immigration removal proceedings, we all know that the government doesnt provide lawyers. And i think it was one Supreme Court decision that described Immigration Law as close to the complexity of tax law. I think they described it as bugs on the page. Thats problematic for an adult. But for a child, its very challenging. There are children, some as young as 3 or 4, representing themselves in Immigration Court. In 2016, assistant chief immigration judge jack will made the claim that he was able to teach 3 and 4yearolds to represent themselves in Immigration Court. Do you believe its possible for a 3 or 4yearold to represent themselves in Immigration Court . I cant speak for judge weil directly. I asked what you think. Our junction dont teach the law. Their role is to adjudicate the case. I understand that. But do you think a 3 or 4yearold has the legal capacity to understand the consequences of their statements, the validatity of immigration claims . As the parent of a 4yearold, i can say no. Thank you. I have 2yearold twin grandsons, so heading towards 4. Thinking about the need to get representation for these kids, i wont ask you to comment on my bill, but youre going to have continuances, because judges have an obligation to uphold due process and fairness. And im just wondering whether you might be willing to revisit the decision in new york and to take a look at how we could enhance representation of children, not only for fairness to them, but for efficiency in the system. I will look into that. I would like to talk also about the hiring issues. In your testimony you talk about streamlining the hiring process. And it reminded me of the concern that we had here in 2008, when the Bush Administration went on a hiring spree, and the department of justice found that Monica Goodling and others violated the federal law and committed misconduct when they considered political and ideological affiliations when selecting Immigration Judges, and the eoir hiring process was reformed to prevent that from ever happening again. Have you changed those standards that were implemented following that hiring scandal to expedite, or are they basically the same and youre moving through them quicker . The process is very similar. Its still conducted according to merit systems principles. The new process, however, has specific deadlines that each component has to meet. Thats one of the things that makes it faster and more streamlined. I would like to just close with this. We remember when John Ashcroft was attorney general, and streamlined measures at the board of immigration appeals, which resulted in the lack of opinions, which caused a flood of appeals to the court of appeals. And im concerned, and as a matter of fact the Immigration Judges have written to us indicating their concern that these metrics are going to result in the same kind of flood of appeals to the court of appeals, and that rather than making the process more efficient, a change, and this is a quote from their letter, will encourage individual and class action litigation, creating even more backlogs. We certainly do need to have efficiency in the system. But i am concerned, as are the judges, that having these metrics is going to backfire on us. And i would ask unanimous consent, mr. Chairman, to place in the record a letter from the a statement from the National Immigrant Justice Center letter from 13 immigration groups. And did you put the letter from the judges in the record already . Okay. Then i will not ask for that. Unanimous consent . Without objection. Thank you. I yield back. The chair now recognizes the chairman of the full committee for his statement. Thank you, mr. Chairman. I apologize for being late, but i do appreciate your holding this hearing on a very important subject. The executive office for immigration review is charged with the administration of the u. S. Immigration courts and the board of immigration appeals as a component of the department of justice, eoir has the task of adjudicating immigration cases and ultimately interpreting the Immigration Laws enacted by congress. I am pleased that today we can conduct our critical oversight role and here more about the future of our Immigration Court system. Just as in any other court matter or appeal, the onus is on the trier of fact to ensure that the law is applied correctly and that justice ultimately prevails. Over the the past several years this committee has engaged in oversight activity and action over the obama immigration admi immigration policies, which have led to a degradation of the courts. The u. S. Immigration courts and to a lesser extent the bia are often thought of as a policy mechanism of whatever administration is in office. This was unfortunately illustrated by guidance aimed at ensuring that Immigration Judges are playing their role in carrying out the obamacare dam can an initiative. While politics certainly played a role, mismanagement of the agency and the apparent lack of any meaningful guidance on daca control has resulted in an explosion of pending cases, some with merits hearing dates more than five years from now. The allocation of resources to socalled priority dockets have left the typical nondetained alien without resolution but with also certain ability to receive Work Authorization in the United States. Rampant continuances or postponements of both initial and merits hearings have further escalated this backlog which has reached epic proportions. As we know, the gao identified several sources for the backlog. I am eager to here about eoir plans to hire additional Immigration Judges, to implement best Management Practices, and to potentially set some metrics for case completion. Make no mistake, Immigration Judges must be autonomous and without bias while hearing cases and rendering decisions. But they must also be mindful of all components of the administration of justice. Needless changes of venue or continuances made in bad faith for the purpose of delay are detrimental to our system and should not be tolerated. It may turn out that legislative action as the best recourse to ensure that no matter what administration is in charge and what their principales may be, eoir will have clear statutory parameters under which to function. I look forward to hearing from our witness on that issue. There is no question that Congress Must take action to reform many facets of Immigration Law in an attempt to ensure National Security and stream line the process. But those actions will mean little if eoir continues to prioritize the system. Judges should have full dockets and courtrooms waiting. Eoir plays a vital role within the u. S. Immigration system and the time has long past to make necessary reforms. Im encouraged by the steps taken in the past ten months to address some of the issues already raised and i look forward to hearing more about that. Mr. Mchenry, welcome, thank you for your work, and ill start with a question on the extent to which additional Immigration Judges in courts along the border accelerate removal proceedings, especially for those aliens referred following a positive credible fear determination. Whats your opinion on that . I havent seen a specific proposal. We would have to take into consideration a number of logistical factors, staffing, personnel, things like that. If the idea would be to send them to detention facilities, we would also have to coordinate that with the department of Homeland Security. So in the absence of a specific proposal, im not sure i can give a broad opinion. The gao had noted that a strategic workforce plan was needed at eoir in order to better anticipate workforce concerns, including the eventual replacement of Immigration Judges eligible for retirement. As 39 of judges are currently eligible for retirement, has a workforce plan been created and implemented at the agency . We completed the plan actually just before i became the acting director, and weve set up a Staffing Committee subsequently thats doing a top to bottom review of all positions within Immigration Courts. So that plan is in motion. As to the immigration judge retirements, thats been a common issue that weve heard in the past. The number of actual retirements averages fewer than ten per year over the past decade. So the number hasnt quite gotten to a critical point. Even if it were greater, we believe under the new streamlined hiring plan, were able to replace those judges within six months, that wouldnt have a Strong Negative effect as it has in the past. Thank you. Going back to my first question, what would you i think we all agree you need more judges. Do you agree with that . Yes. Okay. So how would you deploy those judges . We would look at a variety of factors. We would look at where the dockets are the most critical, have we have the largest dockets. We also have to be mindful of space, personnel, logistical issues, things like that. We maintain a running review of different locations around the country. We have cases broken down by zip code, by location. We have to consider all of those factors and making determinations as to where were going to deploy the next judges. Thank you. Thank you, mr. Chairman. Thank you, mr. Chair. And the chair will now recognize the gentleman from michigan, the Ranking Member of the full committee, mr. Conyers. Thank you very much, mr. Labrador. Mr. Mchenry, i understand that youre the chief administrator or Immigration Court system and that you were recently pointed to th appointed to this position by the Trump Administration. President trump has repeatedly promised to deport all 11 million undocumented immigrants. Youre aware of that, i presume. Ive heard that report. Youve heard it, yeah. This committee has marked up legislation that would unfortunately implement President Trumps vision for mass deportation. And these plans often involve expediting removal hearings, streamlining Court Procedures and denying legal representation. Now, under your watch, during those do you believe the Immigration Court system will implement a mass deportation agenda . Our judges adjudicate immigration cases that are brought to us by the department of Homeland Security. So i would defer any questions about their Enforcement Actions to them. I cant speak for that agency. Our judges adjudicate the cases that are brought in front of them. They add judadjudicate them in professional manner and ensure that due process is met. Im not asking them. Im asking you what you think about it. About im sorry. Well, the plans of the president are such that i want to know if you believe the Immigration Court system will implement a mass deportation agenda. I cant speak fully and im not entirely sure what mass deportation agenda means in this context. Deporting all 11 million undocumented immigrants. Our Immigration Judges arent involved in the actual deportation or removal of aliens. They make determinations as to whether an alien or someone is removable in the first instance and then they make a second determination whether that person is entitled to relief or protection from removal. Well, that gets us right back to where we began. Thats what they do, is determine removal. Its two steps youve mentioned. They do also determine relief and protection from removal as well. Yes. But im asking you about President Trumps promise or threat to deport all 11 million undocumented immigrants. And all i want to know is do you believe that the Immigration Court system might implement a mass deportation agenda. Again, its not the role of the Immigration Courts to implement any particular agenda. They adjudicate the cases brought to them by the department of Homeland Security and issue decisions either based on removability or based on protection or relief from removal. You dont think theyre influenced by President Trumps public position on this question . I have confidence that our judges apply the law in each case to the facts and evidence in that case and they make the best decisions based on the evidence before them. Well, do you believe that President Trumps promise or threat has any bearing or influence upon them at all . I cant speak to the mindset of all of our judges. As i said, i do have confidence that they carry out their duties to the best of their abilities, the best of their understanding of the law based on the fact and the evidence of each case that comes before them. Well, do you believe that the policies implemented by the executive office for immigration review may lead to mass deportation . Our policies are not outcome determinative and theyre not implemented with any specific outcome in a particular case in mind. Our policies are essentially outcome neutral. Were trying to revolve more cas resolve more cases. Were not trying to reach any particular outcome or another. I know it, but they may be neutral, but the policies may lead to mass deportation anyway, or they could. Or you may think that they wouldnt. I mean, in other words, im not asking you how they operate. If there was implemented such a policy, would this lead to mass deportation . Im not sure i understand which policy in particular. The policies that i just mentioned. President trump has repeatedly promised to deport 11 million, all 11 million undocumented immigrants. I havent seen a specific proposal as to how that would impact eoir. I didnt say you did see it. The gentlemans time has expired. Consent for one additional minute. Without objection. But i think youve asked him the same question seven different ways and hes answered your question. Im not sure what else you want the gentleman to do. Could i get a minute . You can get an additional 30 seconds, yes. 30 seconds. Well, thank you very much. Its already two minutes over. Do you, mr. Mchenry, believe that the policies implemented the executive office for immigration review will protect the Due Process Rights of immigrants . All the processes or all the policies that eoir has implemented, at least since ive been acting director, due process is certainly a significant consideration. Is it fair for me to assume that youve said yes . Yes. Okay. Last question. In recent executive office for immigration review announcements, the minimum qualifying experience required to apply has been changed from seven years of relevant legal experience to seven years of litigation in governmentinstituted proceedings. Can you think of any kinds of legal examples of any kinds of legal experiences that would qualify as litigation in governmentinstituted proceedings . With respect, congressman conyers, i believe thats a misreading of the advertisement that we sent out. The advertisement, actually i had occasion to look at this, because we got an inquiry to our Public Affairs office on that very point not too long ago. The advertisement actually says a full seven years of experience either in litigation or in administrative proceedings at the federal, state, or local level. It doesnt require and its not limited to proceedings that were just initiated by the government. Thats one example thats given in the advertisement but its not the only example. All right. The gentlemans time has expired. I thank you very much, mr. Chairman. I recognize mr. King, the gentleman from iowa. Thank you, mr. Chairman. Had mchenry, thank you for your testimony. As im listening to the gentleman from michigan and his discussion about the alleged effort to round up and deport 11 million people, i still havent heard anyone advocate for that that seems to be for it. I make that point. But also im looking at the overruns here, ill call it, the 691 days the average wait for a resolution and 630,000 pending cases. And your intent to hire at least 61 new judges by spring. And im wondering what your opinion would be if we were able to, in short order, by spring, we wont get it done that soon, but build a 2,000mile wall, 30 feet high. And if we were able to do that successfully, what would that how would that impact your caseload over the longer term . Ultimately i cant answer that. I know. Its speculative and a bit of a hypothetical at this point. Moreover, dhs, the department of Homeland Security, would have primary responsibility for the wall and for border crossers. So a lot of it would depend on their actions. I would have to defer to them. But i dont think it takes the department of Homeland Security to answer the question, if we build an impermeable wall all the way down to hell and all the way up to heaven, what would happen to your caseload . Again, i cant speak to that. Sure, you can. Its a little too speculative for me to speak to. But if you had no one crossing the border, i guess i have to put this in some different terms. If no one crossed the border, all done, then what happens to your caseload . Well, the other excuse me. I want to rephrase that. If no one can cross the border, what happens to your caseload . There are other factors we have to consider. Some of our caseload is driven by interior cases, individuals come does it go up or does it go down . Again, i cant speak to it. Can you all right. How many judges does it take, then, to deplete this caseload down to a reasonable time . Weve run several estimations, and weve asked for additional judges. I think up to a total of 700 is where it really starts to turn around. Judges . Yes. Its not a surprise to me to hear a number like that, its actually into the very often that we get someone that lays out a proposal to get there. And then how many judges does it take to maintain the current flow . Could the gentleman i didnt hear what you said in terms of the number. Im sorry. Ive forgotten. You said the number of judges. I didnt hear what you said. We current have authorization for 384. The next budget request brings it up to 449. The president has outlined a policy that would add to 370, that gets to approximately 700. Thank you. If i could go back to where i was, would be the question was, if you get up to that number, thats the number you said it takes to deplete your caseload down to a reasonable turnover time. How many judges does it take to maintain it at the current level that cases are coming in the door . I dont know that i have the analytics of the data in front of me. Thats curious. How many judges dogs it take to get this under control and how many does it take to maintain it are two different questions that i would think you would answer before you answer the first question. Because were focused on reducing it and bringing it down to a manageable level, we havent studied sort of maintaining the status quo. That may be part of it. I see. When you are evaluating the applicants, i recall Monica Goodling testifying before this committee in this room. I would ask the question, when you evaluate the applicants, do you examine their bios carefully . We look at their resumes. They typically have thats it . They typically have to submit a resume. If they dont put it on the resume, do you go beyond that . I think the last ad required a resume. I know in prior ads we required law school transcripts. Going back a few years weve also required letters of recommendations. Had an about professional affiliations or ngo officia affiliations . Those have never been required, to my knowledge. So you could have someone there whose job is to bring about an adjudication who had a long history of lulac or aclu or is the splc and you wouldnt know that . Our judges have had a variety of careers. Weve run some numbers on that, the vast majority of them have worked for many different organizations, entities, and Government Agencies throughout their careers. And if i were to request that information in a more precise fashion, would you be able to deliver that . I think all of the biographies of most of them are online currently. Then just in my concluding question here, as the attorney advisers, can you tell me how they are chosen . Attorney advisers, those that might have been chosen to write awe given opinion. Are you talking at the border of immigration appeals level or the Immigration Court level, or some other agency or some other component of eoir . Why dont you tell me both of them. Our judicial law clerks are typically hired through the honors program, every fall. Those go to the Immigration Courts. They typically serve for two years. And then go on to some other career. Okay. Thats how you choose. But how are the cases chosen . Is it a random Selection Process . How are they assigned . The cases at which level . At the board level. There are panels and teams that are assigned. I dont have the specific mechanics in front of me, though. But youre testifying its a random Selection Process . They do theyre required by regulation to have screening panels. So there are panels that look at the cases on the front end to determine if theyre subject to summary dismissal or Something Like that. Ill follow up with that in a written request. I thank you, mr. Mchenry, and i yield back the balance of my time. Thank you. The chair will now recognize. Mr. Cimr. Cies cilline cicilline. May i ask unanimous consent to put into the record a letter from the association of pro bono counsel . Without objection. The chair recognizes mr. Cicilline. Thank you, mr. Chairman. Im sure, sir, you are aware that there is tremendous disparity in the asylum grant rates by our Immigration Judges. As recently as 2006, the Government Accountability Office Confirmed the disparity, noting that the grant rate in the new york Immigration Court was 52 . The grant rates in the omaha, atlanta, and bloomington, minnesota courts were less than 5 . The gao additionally found this disparity persisted even holding constants in case and judge characteristics. These grand rates have earned the name acsyluasylumfree zone. Asylum denial rate in atlanta is 98 , almost no one is granted asylum. I understand some of your colleagues at doj and dhs are former i. C. E. Attorneys in atlanta. The goal of dhs is to replicate the atlanta model for the rest of the country with the goal of driving down asylum grant rates to minuscule percentages. Do you think that the atlanta courts with a 98 rate of acsylm denial is the model that other Immigration Courts should be following and is there any discussion, overtly or implicitly, and suggesting that model be followed . Im not sure we have a model, a onesizefitsall for any of our its not a onesizefitsall. My question is, is that model, that rate of denial, something you as the leader of the office are promoting or theres an active effort to use that as a standard . As i mentioned a moment ago, the policies we implement are not driven by particular outcomes. Theyre designed to be outcome neutral. Were not looking to make one court like any other court. In fact it would be inappropriate for us to start going into specific cases to tell judges which cases they should deny, which ones they should grant. I mean, you dont think that that rate of 98 denial that the atlanta courts follow ought to be a model followed by other Immigration Courts . As i indicated, we dont believe theres one standard model, whether its a court that grants a lot of cases or a court that denies a lot of cases. Were not our role is not to go in and pick and choose which cases should be granted or which ones should not. I recognize you dont pick and choose. I guess my question is, does it concern you, this is the second question, that that kind of disparity exists . Weve looked at this, because this concern has been raised before. But its difficult to compare sort of apples and oranges once you start looking at specific or individual cases. Cases that may look the same on the surface turn out not to be the same down below. Thank you very much. It is not so difficult to do, courts do this all the time. They do an analysis of sentencing, and they do an analysis of charging. They are able to control for the different jurisdictions and different judges. Theres lots of good ways to do that. So i would urge you to look at this disparity and pay close attention to it because i think it undermines confidence in the system. The second thing i want to discuss with you, and i apologize if someone mentioned this while i was out of the room, but this report that we have been hearing that the department of justice plans to use a numeric and time based completion quotas to evaluate the performance of Immigration Judges with the idea, i presume, that someone would either be rewarded or disciplined for failing to complete a certain number of cases in a particular period of time, i take it that you will publicly reject that idea, and that is not the plan to actually use the number of cases and the time it takes as a method of deciding whether or not a judge is doing his or her job. As i mentioned earlier, eoir already operates under a number of performance metrics. Some of them are set by the immigration nationality act. Others weve developed do any of those metrics involve the number of cases you complete and how long it takes you to complete them . Yes. The immigration nationality act, second 235, requires federal fear reviews to be conducted within seven days. Theres also a time limit for asylum applications in section 208. Other than requirements by statute of meeting a certain deadline, are there other evaluations of Immigration Court judges that relate to how quickly or how many cases they resolve . Weve developed standards under the government performance and results act that also looks at similar measures. What do you mean, similar measures . Completing cases, moving cases more efficiently, that sort of thing. Are you telling me, sir, that you currently evaluate in part the performance of Immigration Judges based on the number of cases and the period of time it takes them to resolve those cases . Its not part of the individual judges performance work plan currently. But it is numbers that we do track, because we keep that data to make the process better. You intend to make it part of the Performance Plan of individual judges . Thats something i cant get into. That still requires some additional discussions with the unions. Its not appropriate its something youre pursuing . Its something were looking at in consultation with the unions. Mr. Chairman, i would ask an indulgence for one moment. The National Association of judges explains this sort of effort would be, and i quote, a huge, huge, huge encroachment on judicial independence. Its trying to turn Immigration Judges into Assembly Line workers. I would ask, again, that you reject publicly the idea that you would use simply the numbers of cases or the amount of time it takes to complete immigration work as a measure of the quality of a judges work. I think it turns our judicial system in proceedings such as this on their head. With that i yield back. Thank you. Just a followup question, mr. Mchenry. There is a split in the circuit, right, as to asylum law and all these different areas. So wouldnt that yield different results in different areas . Well, there are a number of reasons for the discrepancy and the rates. Not only are there differences in circuits, but many asylum applications are denied for reasons that are unrelated to the merits. An individual may be denied asylum but granted withholding of removal or some other form because they didnt file for asylum on time or because theres some criminal ground. There are a number of explanations for the disparities. It becomes difficult to sort of get down to that level of granularity without essentially redeciding each case. Thank you. I now recognize the gentleman from arizona. Thanks, mr. Chairman. Thank you, mr. Mchenry, for being here. The Trump Administration is considering expedited removal procedures for those who could be removed from the United States without first appearing before an immigration judge. In the past this group has included illegal aliens caused within 100 miles of the border and within two weeks of entry. Reports say that could be expanded nationwide and to aliens who cannot prove they have been in the United States for at least two years. Do you think such a policy would be beneficial in limiting the number of new cases that come before a court . Expedited removal is a policy thats undertaken by the department of Homeland Security. I would have to defer to them on any questions about it. You cant make any assessment on whether that might decrease because the number of people that would be in that pool, that would normally come before a court, you dont know you cant assess whether that would actually decrease it would be speculative for me to say, because there are a number of exceptions to expedited removal that are already enshrined in the statute. We would have to take account of those before giving an impact on our caseload. You said in your Opening Statement, im going to give a rough quote because i was trying to get it while you were saying it, that you were concerned that the new influx doesnt overwhelm our capabilities. I wondered what you meant by that and if you would expand on that, please. I dont want to speak for the department of Homeland Security. But my understanding is they have their own adjudicatory backlog concerns. So we have to make sure that we dont get swamped by any sudden influx of new cases that they bring to us. Okay. And you talked about fraud in your Opening Statement and in your summary or excuse me, in your document that you provided to us. Please tell me more about fraud and more specifically how you are dealing with fraud. And with the amount of backlog that you have, i am interested in the number of fraud complaints being below it looks like its below 200. Explain to me what that how that i am pmpinges on the backl. The fraud and Abuse Prevention Program was set up in the mid2000s. Weve sort of tried to revitalize it in the past few months. The number of referrals coming in from the field has gone up i think over 100 . I also issued a memo earlier this year to remind all the employees, all of our employees including Immigration Judges, that they do have a duty and a responsibility to report fraud, misrepresentations, where they see them. So we are starting to see an increase. Some of those are still in investigation, so i cant really speak to them directly. It looks like were trying to ensure our employees are focused on that. In terms of the backlog, obviously any misrepresentations undermine the integrity of the system. They cause cases to have to be delayed to investigate allegations, things like that. The more that we can root out fraud, the more efficient our system is going to be. And i get the impression that youre not satisfied with a very basically a fraction of a point of fraud detection and apprehension . I wouldnt say that we have a specific target in mind. But we do know anecdotally there are a number of instances that are out there, a number of instances have been reported over the past few years. We want to root it out as much as possible in our proceedings. After an order of removal has been issued, whats the process for removal . I would defer that to the department of Homeland Security, theyre responsible for actually executing the order of removal. So you would not know how many individuals are currently present in the u. S. With a final order of removal . I would not. Okay. What penalty occurs for those who commit fraud in the system . It would depend on the nature of the fraud. I mean, it could be anything from a criminal penalty to a sanction, to the denial of an application, to a permanent ineligibility for most benefits. In the criminal in the field of criminal law, everybody has a certain period of time before their case has to actually be adjudicated and completed. So for instance, if youre in custody, maybe 90 days. If youve been in custody, but youve been released, its 120. If youve never been in custody, maybe 150 days, depending on the state and the rules that govern. Whats the rule for immigration cases . Do you have any deadline before somebody has to make an appearance and actually adjudicate the case . For a typical removal case, theres nothing like the speedy trial act or Something Like that. Thanks, mr. Chairman. The gentleman yields back. The chair recognizes ms. Jackson lee from texas for five minutes. Let me thank the witness and thank the chairman and the Ranking Member. This is an important hearing. But i think, as some of my colleagues know, periodically ive taken just a moment and i guess it will be just a brief moment, to reassert, even as we discuss these vital issues, that in light of the indictments on monday, october 30th, were not really focusing on the institutions that are important to stabilizing our government. So i hope that i will place on the record a concern that many of us have that we have not begun to look at the questions of obstruction of justice, collusion in the 2016 election with russia, and frankly, the beginning of the mueller special counsel work is not ending, but it is beginning. And to ensure that we discuss any prohibition or any stopping of the administration attempting to fire director mueller. So i wanted to place that on the record, even as we question the witness, and mr. Mchenry, thank you so very much for your presence here today. I introduced legislation dealing with the need for Immigration Judges, and continue to introduce it. At that time i asked for 75 new judges. Did i hear you correctly that you are seeking to or i think theyre not Immigration Judges, youre looking to do sort of attorney advisers for 61, what was the 61 number you were trying to do . We have 19 Immigration Judges currently in the hiring pipeline. And weve had three advertisements since july for up to 42 additional positions. And were in the process of also filling them. We expect or anticipate getting 61 additional Immigration Judges on board by the spring of next year. So we are speaking of judges . Yes. Permanent Immigration Judges. Yes. And so my number, 75, was not unrealistic. I would encourage you to raise that number and the administration to raise that number. Now, we have a different perspective on how what we perceive this court to do. Do you seek judges who adhere to due process and the recognition that immigrants have a right to present their case fully . We expect all judges that we hire, after we train them, that they will respect the Due Process Rights and apply the law as they see fit to the case and facts before them. We advertise and we hire from a wide range or wide variety of backgrounds when we select Immigration Judges. You were asked by a colleague of mine whether or not you distinguish or you weed out individuals who may have differing legal backgrounds, whether they were on the defense side of the immigrant bar, whether they were individuals from the aclu or various other advocacy groups. Do you do that, do you weed them out . No, maam, we do not. All of our hiring is conducted according to merit systems principles. We dont require information about any organizations that individuals belong to. We evaluate them based on resume, interviews, writing samples, things like that. Mr. Mchenry, this is not a personal offense. Can i take you at your word . Because obviously we come from different sides of the aisle, and may have a different perspective. But i think your answer is more than a credible answer. I know that you are a member of the bar, so am i, and not the drinking bar. And i would hope that you would really be saying to me what is fact and truth in how you will implement that process. Am i to understand that . Is that your act and true representation of what occurs and will occur . All of our hiring is conducted according to merit systems principles. We dont consider things like race, religion, political opinion, and things like that. And therefore you do not attempt to exclude because of race, religion, or other aspects . No, we dont screen out any particular candidates one way or the other. Let me raise this question with you, if i might. And i want to read this story, i know that we went down this line of questioning before, but i think this is important. The former majority leader, senator reid, often talked about an experience that he had in Immigration Court. Some of us had this experience when we saw the unaccompanied children. I was actually at the border with my colleague congresswoman lofgren, and we saw children who were fleeing persecution. In this instance the child was 5 years old, clutching a doll, as she appeared before the judge. She was barely tall enough to see over the microphone. The judge asked her a series of questions to which she had no response. Finally after several nonresponses, the judge asked her the name of her doll. She responded, baby baby doll. That concluded the hearing. Baby baby doll. So do you think in the hiker of judges, that that would be an effective way to run a courtroom, of the judges that you might be hiring . I cant speak to that specific example, im not familiar with that case or that incident. But i do know that our judges, once theyre hired, they receive they undergo a rigorous Training Program that includes training on handling different types of cases including juveniles, unaccompanied alien children, things like that. Thats a 5yearold. Do you believe that in that instance, putting aside the very fine way in which youre going to be hiring judges, if you were in the back of the room, would that be an appropriate way . We havent called the judges name so were not going to be citing who the judge was. But the point is, would that be an appropriate way for a 5yearold to be handled in a proceeding . As i said, i cant comment on the specifics of that, because i dont know the context or the background or any other factors. As i said, i do know our judges are trained to handle these types of cases. Common sense would say, not on the facts, thats an answer that we as lawyers give, common sense, if you just were in the back of the room and that was the end of the case, would you argue that that child needed at least representation or better understanding of what was going on . The issue of children representations in litigations, i cant comment on that specifically. As i said, in that particular case im not familiar enough with the example. I would need to know more about the context and the facts. One more point on that. Would you think that this approach that may be being proposed by the administration of quotas, meaning that judges have a cycle of which they have to meet and meet certain numbers in processing cases, would that be effective, if a child was in the courtroom . Im not sure i understand the question. If the judge has to run through his or her cases, and a child happens to come before them as a petitioner in the courtroom, not unrepresented, or represented, is that quota still going, where you have to run through these cases, or allowing a child to understand what happens happening in the courtroom takes a little bit more time, doesnt it . Under this quota system, is the judge going to be allowed to take the time necessary to give a fair hearing to an immigrant or defense or petitioners position . I have confidence that our judges can efficiently and effectively move cases and dispose of those cases while maintaining due process in individual cases, yes. The gentleladys time has expired. Thats a commitment youre making based on your testimony . I believe our judges are professional enough to be able to expeditiously adjudicate cases in conjunction with the mission of eoir, while maintaining due process. We will be watching. Thank you very much. Mr. Chairman, may i have unanimous consent to enter into the record two documents that one, donald trump promises Deportation Force to remove 11 million people, and the second, President Trumps immigration policy takes shape, prioritizing almost all undocumented immigrants for deportation. Without objection. Thank you, sir. Mr. Chairman . Yes. I want to put a question on the record for answer in writing, please. Without objection. The question is, and ill just its just very brief. The media is reporting that the department of justice, and i used this previously, this is the specific question, the department of justice plans to use numeric and timebased completion quotas to evaluate immigration judge performance, thats obviously for compensation or to maintain that judge. And so i would like our director to answer the question whether that is accurate, and whether that will mean that judges will be dismissed or disciplined because they take extra time to hear the cases of those who need extra time whether its a child, whether its an elderly, disabled, or any kind of petitioner before the court. I would like to know how that matches with your recommendation, not your recommendation but your agencys work juxtaposed with the department of justices quotas for completion of work. Thank you, you can answer that in writing at a later time. The gentlelady yields back. The chair will yield to myself the remaining time in the hearing here. Mr. Mchenry, theres been some discussion back and forth about the handling of minor cases, juvenile cases. There is in fact a set of rules and procedures that would apply to those types of cases, correct . We have i mean, theyre both depending on the exact facts of the particular case, theres both law and regulations that would govern it. We also have an operating policies and procedures memorandum that details, gives Additional Guidance tots judges on how to handle juvenile cases. Thank you. As a result of the fraud and Abuse Prevention Program that youve discussed today, do you anticipate with regard to asylum cases that well see a further decline in asylum grant rates as a result of these efforts . Again, i cant speculate, because each asylum case is determined based on the evidence and the facts before it. So i cant speculate as to what the future rates will hold. There was a recent report issued by the Government Accountability office that found that eoir failed on numerous procedures across the agency to adequately prevent asylum fraud anded adjudication process. Weve talked a lot about that today. They recommended regular fraud risk assessments across the asylum claims in the courts. You may have referenced this this morning, but many of us had to come in and out. Have you consulted the gaos recommendations that they issued in their report . I have. My understanding is my general counsels office have completed the risk assessments and are reviewing the results of that. So none of that has been implemented yet . Youre in the process of implementing the risk assessments . My understanding is its been conducted, at least the initial one. Were still reviewing the results of what came back. Could you get to us later a quick summary of what you find with that imreque . Im sure a lot of us would be interested. Personally, you were a former judge, do you agree that judges face greater difficulties in assessing an individuals statements being true or not, when theyre not recorded electronically . Wouldnt that be a benefit of the judges, to have electronically recorded statements . Speaking as a judge, every judge i know wants as much evidence as they can possibly get. And it is easier to determine, is it not, whether or not someone is being consistent in their statements if you have an electronic recording of what theyve said prior . I think thats typically correct, yes. And youve testified earlier those efforts are under way, that i think the word you said, ramping up, or someone said ramping up the technology and what youre able to do in these proceedings. In terms of our Electronic Filing, case adjudication, yes. Does that also extend to the recording of statements, is that something youre working on . Thats something that dhs would handle. We record our hearings, of course. But individual statements or anything that occurs outside of the hearing, i would have to defer to dhs for that. Well, theres no further questions, and we want to thank you for attending today. This concludes the hearing. Without objection, all members have five legislative days to submit additional written questions for the witness or additional materials for the record. With nothing further, the hearing is adjourned. Thank you. Thank you