[House Hearing, 115 Congress]
[From the U.S. Government Publishing Office]
OVERSIGHT OF THE EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
=======================================================================
HEARING
before the
SUBCOMMITTEE ON
IMMIGRATION AND BORDER SECURITY
of the
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED FIFTEENTH CONGRESS
FIRST SESSION
__________
NOVEMBER 1, 2017
__________
Serial No. 115-31
__________
Printed for the use of the Committee on the Judiciary
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Available via the World Wide Web: http://judiciary.house.gov
______
U.S. GOVERNMENT PUBLISHING OFFICE
30-995 WASHINGTON : 2018
COMMITTEE ON THE JUDICIARY
BOB GOODLATTE, Virginia, Chairman
F. JAMES SENSENBRENNER, Jr., JOHN CONYERS, Jr., Michigan
Wisconsin JERROLD NADLER, New York
LAMAR SMITH, Texas ZOE LOFGREN, California
STEVE CHABOT, Ohio SHEILA JACKSON LEE, Texas
DARRELL E. ISSA, California STEVE COHEN, Tennessee
STEVE KING, Iowa HENRY C. ``HANK'' JOHNSON, Jr.,
TRENT FRANKS, Arizona Georgia
LOUIE GOHMERT, Texas THEODORE E. DEUTCH, Florida
JIM JORDAN, Ohio LUIS V. GUTIERREZ, Illinois
TED POE, Texas KAREN BASS, California
JASON CHAFFETZ, Utah CEDRIC L. RICHMOND, Louisiana
TOM MARINO, Pennsylvania HAKEEM S. JEFFRIES, New York
TREY GOWDY, South Carolina DAVID CICILLINE, Rhode Island
RAUL LABRADOR, Idaho ERIC SWALWELL, California
BLAKE FARENTHOLD, Texas TED LIEU, California
DOUG COLLINS, Georgia JAMIE RASKIN, Maryland
RON DeSANTIS, Florida PRAMILA JAYAPAL, Washington
KEN BUCK, Colorado BRAD SCHNEIDER, Illinois
JOHN RATCLIFFE, Texas
MARTHA ROBY, Alabama
MATT GAETZ, Florida
MIKE JOHNSON, Louisiana
ANDY BIGGS, Arizona
Shelley Husband, Chief of Staff and General Counsel
Perry Apelbaum, Minority Staff Director and Chief Counsel
------
Subcommittee on Immigration and Border Security
JIM SENSENBRENNER, Jr., Wisconsin, Chairman
RAUL R. LABRADOR, Idaho, Vice-Chairman
LAMAR SMITH, Texas ZOE LOFGREN, California
STEVE KING, Iowa LUIS V. GUTIERREZ, Illinois
JIM JORDAN, Ohio PRAMILA JAYAPAL, Washington
KEN BUCK, Colorado SHEILA JACKSON LEE, Texas
MIKE JOHNSON, Louisiana DAVID CICILLINE, Rhode Island
ANDY BIGGS, Arizona
C O N T E N T S
----------
NOVEMBER 1, 2017
OPENING STATEMENTS
Page
The Honorable Raul Labrador, Idaho, Chairman, Subcommittee on
Immigration and Border Security, Committee on the Judiciary.... 1
The Honorable Zoe Lofgren, California, Ranking Member,
Subcommittee on Immigration and Border Security, Committee on
the Judiciary.................................................. 3
The Honorable John Conyers, Michigan, Ranking Member, Committee
on the Judiciary............................................... 5
The Honorable Bob Goodlatte, Virginia, Chairman, Committee on the
Judiciary...................................................... 13
WITNESSES
Mr. James McHenry, Acting Director, Executive Office for
Immigration Review, U.S. Department of Justice
Oral Statement............................................... 7
OFFICIAL HEARING RECORD
Responses to Questions for the Record from Mr. James McHenry,
Acting Director, Executive Office for Immigration Review, U.S.
Department of Justice
http://docs.house.gov/meetings/JU/JU01/20171101/106561/HHRG-
115-JU01-20171101-SD005.pdf
Additional Material Submitted for the Record
Statement of A. Ashley Tabaddor, President, National Association of
Immigration Judges. Submitted by the Honorable Raul Labrador,
Idaho, Chairman, Subcommittee on Immigration and Border Security,
Committee on the Judiciary. This material is available at the
Committee and can be accessed on the Committee Repository at:
http://docs.house.gov/meetings/JU/JU01/20171101/106561/HHRG-
115-JU01-20171101-SD003.pdf
Donald Trump promises `deportation force' to remove 11 million and
President Trump's Immigration Policy Takes Shape. Submitted by the
Honorable John Conyers, Michigan, Ranking Member, Committee on the
Judiciary. This material is available at the Committee and can be
accessed on the Committee Repository at:
http://docs.house.gov/meetings/JU/JU01/20171101/106561/HHRG-
115-JU01-20171101-SD002.pdf
New York City ICARE Juvenile Docket letter, National Association of
Immigration Judges, National Immigrant Justice Center, American-
Arab Anti-Discrimination Committee, American Immigration Council,
American Immigration Lawyers Association, Hebrew Immigrant Aid
Society, Human Rights First, Kids in Need of Defense (KIND),
Lutheran Immigration and Refugee Service (LIRS), National
Immigration Law Center, Northern Illinois Justice for Our
Neighbors, Tahirih Justice Center, USC International Human Rights
Clinic, U.S. Committee for Refugees and Immigrants (USCRI) and
Women's Refugee Commission, and The Association of Pro Bono
Counsel. Submitted by the Honorable Zoe Lofgren, California,
Ranking Member, Subcommittee on Immigration and Border Security,
Committee on the Judiciary. This material is available at the
Committee and can be accessed on the Committee Repository at:
https://docs.house.gov/meetings/JU/JU01/20171101/106561/HHRG-
115-JU01-20171101-SD004.pdf
Statement from the Honorable Sheila Jackson Lee of Texas for the
hearing on Oversight of the Executive Office for Immigration
Review. Submitted by the Honorable Sheila Jackson Lee, Texas,
Member, Subcommittee on Immigration and Border Security, Committee
on the Judiciary. This material is available at the Committee and
can be accessed on the Committee Repository at:
http://docs.house.gov/meetings/JU/JU01/20171101/106561/HHRG-
115-JU01-State-J000032-20171101.pdf
OVERSIGHT OF THE EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
----------
WEDNESDAY, NOVEMBER 1, 2017
House of Representatives
Subcommittee on Immigration and Border Security
Committee on the Judiciary
Washington, DC
The subcommittee met, pursuant to call, at 2:05 p.m., in
Room 2141, Rayburn House Office Building, Hon. Raul R. Labrador
[chairman of the subcommittee] presiding.
Present: Representatives Labrador, Goodlatte,
Sensenbrenner, King, Jordan, Buck, Johnson, Biggs, Lofgren,
Conyers, Jackson Lee, and Cicilline.
Staff Present: Joseph Edlow, Counsel; Maunica Sthanki,
Minority Counsel; and Sabrina Hancock, Clerk
Mr. Labrador. The Subcommittee on Immigration and Border
Security will come to order. Without objection, the chair is
authorized to declare recesses of the committee at any time.
We welcome everyone to today's hearing on Oversight of the
Executive Office for Immigration Review, and now I recognize
myself for an opening statement.
Today's oversight hearing focuses on a critical facet of
U.S. Immigration policy. The Executive Office for Immigration
Review, or EOIR, is the linchpin of Immigration law as it
administers, among other components, the U.S. Immigration
Courts and the Board of Immigration Appeals.
The adjudication and appeals of immigration matters is of
critical importance to the proper administration of justice in
this country, and we must ensure that our immigration laws are
interpreted as Congress intended.
As a former immigration practitioner who regularly appeared
in immigration court, I certainly understand and appreciate
just how important it is that the courts are administered
effectively, and in a way that maximizes docket management and
minimizes fraud and delay.
Unfortunately, EOIR has been plagued by management problems
that have consistently hampered its ability to operate the
courts.
During the past administration, the Department of Justice's
Inspector General's office found that the office engaged in
nepotism and other inappropriate practices.
These disturbing findings served as a distraction for EOIR
making it impossible to focus on much-needed improvement.
Additionally, a 2014 server crash paralyzed the courts
nationwide for several weeks, again, necessitating the
allocation of resources away from management and oversight of
the agencies.
The policies and practices instituted during the Obama
administration served a decidedly political agenda throughout
the Federal Government, and EOIR was not spared.
Companion memos to those issued by the Department of
Homeland Security and prosecutorial discretion and
administrative closure policies raised, at a minimum, the
specter of collusion between Department of Justice and the
Department of Homeland Security.
The prioritization of recent entrants, including the surges
of unaccompanied minors and family units, likewise, were ill-
advised and poorly executed.
Ignoring the irrefutable evidence of spikes and asylum
fraud before the court, EOIR chose its focus based on political
expediency rather than judicial prudence.
It is against this backdrop that the incoming leadership
must begin to restore this agency and where necessary, needs to
overhaul it.
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 ultimately resulted in a backlog of almost 630,000 pending
cases nationwide. This number represents a 22 percent increase
in fiscal year 2017, and is simply unacceptable. The Government
Accountability Office's recent report on management practices
at EOIR and the backlog identified several possible solutions,
including reforming the hiring process for Immigration judges,
and updating internal oversight practices to ensure better
docket management.
The GAO report noted that continuances were a contributing
factor to the backlog. The report found that from 2006 through
2015, the court saw 23 percent increase in the grants of
continuances.
I would never suggest that continuances be disallowed. They
can be valuable for attorney preparation. I've experienced that
myself for purposes, and are essential and critical evidence
must still be collected. However, the rash of continuances used
for the purposes of delay, constitute and abuse of process that
must be stopped.
The July 2017 memo from Chief Judge MaryBeth Keller,
outlining EOIR continuance, is a tremendous step in curbing
this abuse, but represents only one of the solutions to reduce
the number of pending cases.
The GAO report further noted the inefficiencies associated
with the hiring of additional Immigration judges, as your
written testimony acknowledged, the Trump administration,
through its immigration principles, has called for the hiring
of an additional 370 immigration judges.
I remain concerned that EOIR must reevaluate hiring
practices and processes to meet even a fraction of this goal.
The time between an initial job posting to the actual
onboarding of a judge must be reduced.
Finally, I have long spoken about the need to modernize our
immigration system. One of the key components must be the
modernization of our immigration courts.
EOIR currently lags behind other Federal courts in terms of
basic items, such as filings and other similar items. This was
never a priority for the previous administration as the U.S.
immigration courts are one of the last remaining Federal
adjudicative bodies relying on paper filings.
Employing an e-filing 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, EOIR relies on other technology, such as video
teleconference system, or VTC, but there are concerns that this
equipment is either outdated in some locations, or not
operational at all in others.
With the challenges facing EOIR today, and the solutions of
the new administration, I am hopeful that 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 gentlewoman from California, I would
ask unanimous consent to place into the record, a statement
from Judge Ashley Tabaddor, President of the National
Association of immigration Judges.
Without objection, the statement will be placed in the
record.
This material is available at the Committee or on the
Committee repository at: http://docs.house.gov/meetings/JU/
JU01/20171101/106561/HHRG-115-JU01-20171101-SD003.pdf.
Mr. Labrador. I now recognize our ranking member, Ms.
Lofgren of California, for her opening statement.
Ms. Lofgren. The last time the Immigration Subcommittee
gathered for an EOIR oversight hearing, we heard testimony from
the former EOIR Director Juan Osuna.
In August of this year, Juan passed away suddenly, and I
would like to take a moment to acknowledge his life and service
to this country. Juan worked for 17 years as a Senior
immigration legal adviser in the Justice Department for both
Democratic and Republican administrations. He was a former
Board of Immigration Appeals Judge and Former Associate Deputy
Attorney General in charge of immigration policy at 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 this loss.
We are assembled here now to take a close look at the
administration of our immigration court 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 counsel,
immigration judges often have to act as a fact-finder and legal
researcher to ensure that 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 Leigh Marks has once said that
immigration proceedings are, quote, ``like 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
on immigration judges. This could add an additional obstacle to
the immigration judge juggling act by requiring faster case
completions with fewer continuances and shorter evidentiary
hearings.
In his written testimony, our witness states that ``EOIR is
transforming its institutional culture to emphasize the
importance of completing cases.'' He claims that this will
improve the efficiency of our court system, but I don't think
it will do more, except increase the number of immigration
removals, speedy deportations, and, also, increase appeals in
our Federal court system.
Much of the discussion today will focus on the immigration
court backlog and ways that this can be reduced. I want to
start by saying that Congress must fully fund hiring of
immigration judges, law clerks, technology, and infrastructure.
The immigration court backlog will not be fully remedied by
policy shifts alone, it must include sufficient appropriations.
But the immigration backlog is not one that happened overnight.
There are reasons for the backlog.
First, immigration enforcement, specifically funding for
ICE and CBP, far outpace the funding for immigration courts.
From 2002 to the present day, funding for immigration
enforcement increased by over 400 percent. ICE and CBP went
from a budget of $4.5 billion in 2002 to over $20 billion in
2017. In contrast, EOIR's budget increased only 70 percent.
This means that at the same time ICE and CBP are funneling
cases into the immigration court system, the courts are not
given requisite amounts of resources to adjudicate with speed
and efficiency, and it's created a massive bottleneck and
backlog, which we're seeing today.
EOIR currently has approximately 640,000 cases pending, and
in some courts, immigrants can wait 3 to 5 years to receive a
final decision on their case.
Immigration judges currently have an average caseload of
close to 1900 cases. For perspective, the average caseload of
U.S. District court judge is 440.
Second, under both the Obama and Trump administration, EOIR
implemented policy that prioritize cases at the southern border
to the detriment of cases in the interior of the country.
Under President Obama, EOIR implemented a rocket docket
that expedited the cases of recent border crosses. These cases
primarily consisted of children and families from Central
America who were fleeing violence and seeking asylum. This EOIR
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, EOIR moved immigration
judges from already backlogged courts to detention centers
along the southern border. NewsPedia reports that many of these
judges sat in empty courtrooms with little to do.
In his written testimony, our witness states that the
mobilized judges completed approximately 2,700 more cases than
expected if they had not been detailed, but what he fails to
mention is that these so-called surge of immigration judges,
over 20,000 non-detained immigration court hearings were
rescheduled.
We all agree that our border must remain secure and
immigration courts must ensure that those who enter our country
seeking protection be afforded 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 a continued lack of representation,
particularly for children and other vulnerable populations.
When a respondent, particularly a child, appears in
immigration court without legal representation, an immigration
judge will spend a considerable amount of time assessing the
child and determining her legal options. This is precisely what
a judge should do when a vulnerable child is presented in a
courtroom without legal representation, but it, nevertheless,
creates delays for other respondents.
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 more quickly.'' This
conclusion is supported by outside economic consulting firms,
which found that government-funded counsel would actually save
the country $38 million through expedited hearing process and
reduced detention. That's why I'm proud to be the lead sponsor
for the Fair Day in Court for Kids Act. My bill would provide
government counsel to children, and, particularly, vulnerable
individuals. This would help reduce the immigration court
backlog, save the government money, and ensure that 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 a substantive discussion on
our immigration court system today. And I yield back the
balance of my name.
Mr. Labrador. Thank you, Ms. Lofgren. I would now like to
recognize the full committee ranking member, Mr. Conyers of
Michigan, for his opening statement.
Mr. Conyers. Thank you, Chairman Labrador. And I want to
let my colleague from California know that I am a cosponsor of
her legislation with great pride.
Members of the committee and to our distinguished witness,
I, too, want to note the passing of Juan Osuna who served as
the director of the Executive Office of Immigration Review, and
who testified before this subcommittee in that capacity.
Mr. Osuna was a model public servant who devoted the last
17 years of his life to the Department of Justice. He was of a
consummate professional, known for his leadership and the
ability to balance access to justice with court efficiency. And
I'm sure he's deeply missed by the Department and those that
work with him there.
Now, turning to the focus of today's 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 policy under the Trump administration: the
anti-immigrant ideology.
Now, after all, since the earliest days of his campaign,
now-President Trump has shown troubling disregard for that
rule. He's 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.
Unfortunately, the Executive Office for Immigration Review
appears to have not escaped this broad erosion of rule of law
principles based on the administration's policies that threaten
judicial independence, due process, and fundamental fairness
within our immigration courts.
First, media accounts report that the Trump administration
could impose numerical and time-based case quotas on
immigration judges.
All of us, regardless of party, support commonsense
measures for reducing immigration court backlogs, but quotas
are not the solution. Their implementation would force already
overstretched judges to hurry through lengthy dockets
regardless of the circumstances of individual cases. Hearings
would become lightning fast, fundamentally unfair, and devoid
of due process. In short, a quota system would turn immigration
courts into a forced march toward deportation.
Secondly, the administration issued a memorandum
effectively pressuring judges to deny motions for continuances,
which often represent a vulnerable immigrant's 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 callous break with prior policy, the
agent's 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 removal of
minors.
The common denominators among these three measures are
clear: far less due process and fairness; far more
deportations, which is anything but the rule of law.
Instead, these policies undermine that rule in the service
of the President's anti-immigrant ideology, intended to drive
immigrants out of the United States.
Our task today must be to gain a greater understanding of
how this administration's Executive Office for Immigration
Review policies concretely advance that agenda and how they
serve to further his mass deportation plan.
I thank Acting Director McHenry for his appearance before
the subcommittee 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.
Mr. Labrador. 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 witness' written statement will be entered into the
record in its entirety.
I ask that you summarize your testimony in 5 minutes or
less. To help you stay within that time, there is a timing
light on your table. When the light switches from green to
yellow, you will have 1 minute to conclude your testimony.
When the light turns red, it signals that your 5 minutes
have expired. I will give you a little bit of leeway because
you're the only witness, but don't go much beyond the 5
minutes.
And before I introduce our witness, I would like you to
stand and be sworn in.
Do you swear that the testimony you're about to give is the
truth, the whole truth and nothing but the truth?
Mr. McHenry. I do.
Mr. Labrador. Let the record reflect that the witness
answered in the affirmative.
Thank you. Please be seated.
Mr. McHenry was appointed Acting Director of the Executive
Office for Immigration Review on May 30th, 2017.
Prior to his appointment, he served as the Deputy Associate
Attorney General in the Office of the Associate Attorney
General. He was previously an administrative law judge for the
Office of Disability Adjudication and Review in the Social
Security Administration. Mr. McHenry has also worked as an
attorney for the U.S. Immigration and Customs Enforcement.
Mr. McHenry earned a bachelor of science from the
Georgetown University School of Foreign Service, a master of
art in political science from the Vanderbilt University
Graduate School, and a juris doctor from the Vanderbilt
University Law School.
I now recognize Mr. McHenry for his statement.
STATEMENT OF JAMES McHENRY, ACTING DIRECTOR, EXECUTIVE OFFICE
FOR IMMIGRATION REVIEW, UNITED STATES DEPARTMENT OF JUSTICE
Mr. McHenry. Thank you, Mr. Chairman, Representative
Lofgren, and other distinguished members of the subcommittee.
Thank you for the opportunity to speak with you today about
the Department of Justice's Executive Office for Immigration
Review, or as we affectionately call it, EOIR.
This is my third stint with the agency during my government
career, and I have a deep respect for EOIR's mission.
I began my legal career as a judicial law clerk at EOIR for
immigration judges, and then 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 EOIR, our primary mission is to adjudicate immigration
cases by fairly, expeditiously, and uniformly interpreting and
administering the Nation's immigration laws.
We do that under delegated authority from the Attorney
General by conducting immigration court hearings,
administrative hearings, and appellate reviews.
The last several years have raised significant challenges
for EOIR as policy changes and docket management practices have
contributed to a pronounced increase in pending immigration
cases. EOIR's pending caseload currently is approximately
640,000, which is an all-time high. The caseload has almost
tripled since fiscal year 2009, and doubled since fiscal year
2012.
Addressing this caseload is a top priority for the agency.
And EOIR has formulated a multi-front plan to achieve our goal
of expeditiously reducing the number of pending cases while
maintaining due process.
We are actively implementing a number of initiatives
towards that goal that I'm happy to talk about today.
First, we're increasing our adjudicatory capacity by hiring
more immigration judges. We've hired 61 new judges since
January 1, and we're in the process of filling up to 42
additional positions utilizing a new streamlined hiring process
announced by the Attorney General earlier this year.
Second, we are maximizing our existing adjudicatory
capacity by addressing both docket inefficiencies and unused
courtroom capacity. For example, earlier this year, we issued
guidance to assist immigration judges with fair and efficient
docket management practices related to continuances.
We have also implemented a policy of ``no dark courtrooms''
by expanding our use of video teleconferencing, and by rehiring
retired immigration judges on a part-time basis to hear cases
as needed, when permanent immigration judges are unavailable.
Third, we are transforming EOIR's institutional culture and
improving its infrastructure by focusing on reorienting the
agency towards its core mission of adjudicating cases, and by
upgrading our infrastructure to switch from a paper-based to an
electronic-based system. We are committed to piloting an
electronic filing system in 2018.
Fourth, we are working with our Federal partners,
particularly at the Department of Homeland Security, to ensure
that any influx, sudden influx of new cases, does not undermine
our efforts.
Fifth, we are reviewing all of our internal regulations and
policies to evaluate ways in which our own guidance may be
utilized more effectively in the disposition of pending cases.
All these initiatives are beginning to yield some signs of
progress. For instance, in fiscal year 2017, our judges
completed approximately 20,000 more cases than they did the
prior fiscal year and the most cases overall since fiscal year
2012. But we know that more challenges lie ahead of us.
There are two other EOIR programs that I would like to
mention for the subcommittee, for they are also integral to the
overall success of the agency.
First, we have expanded our Fraud and Abuse Prevention
program, and in June, I issued a directive reminding all EOIR
employees of their responsibility to report suspected fraud and
abuse, particularly in regard to applications for relief or
protection in immigration proceedings. EOIR has no tolerance
for misrepresentations or fraud in our system.
Second, we have reinvigorated our strategic planning and
analytics division, which has been underutilized in the past
few years. None of our efforts can be successful without solid
data analysis, and we are pleased to have a robust analytics
division to aid us in our policy development and
implementation.
Mr. Chairman, Representative Lofgren, I am proud of EOIR
and proud of its employees, and I am also proud to highlight
some of the progress that we have made.
However, we are also cognizant that more work needs to be
done. Nevertheless, we are confident that with the continued
support of the Department of Justice and Congress, we will
continue to make significant strides in 2018 in reversing some
of the negative trends of the recent past.
Thank you again, and I am pleased to answer any questions
you may have.
Mr. McHenry's written statement is available at the
Committee or on the Committee Repository at: http://
docs.house.gov/meetings/ju/ju01/20171101/106561/hhrg-115-ju01-
wstate-mchenryj-20171101. pdf.
Mr. Labrador. Thank you, Mr. McHenry. We will now proceed
under the 5-minute rule with questions.
I will begin by recognizing myself for 5 minutes.
Mr. McHenry, how many immigration judges do you anticipate
hiring and onboarding in the upcoming fiscal year?
Mr. McHenry. It's hard to say for the entire fiscal year.
We have 19 that are currently in the pipeline, and we're in the
process of hiring up to 42 additional ones. So that would be a
total of 61. Beyond that, it will be depend on factors, such as
availability, retirements, and things like that. But at least
61 by the spring of next year.
Mr. Labrador. What step is EOIR taking to begin the process
of converting to an e-filing system?
Mr. McHenry. We have had several meetings with our Office
of Information Technology, and I have made it clear, in no
uncertain terms, that e-filing and electronic case system is an
absolute priority for the agency.
We have begun piloting--well, we have begun developing a
process to pilot an electronic filing system next year, but
it's more than just an electronic filing system; it's an
overall electronic case management system.
We're in the process of developing the prototype for it now
and soliciting additional feedback, but I am confident that we
will have a pilot of some type in one or more immigration
courts by 2018.
Mr. Labrador. Okay. Judge Keller's memorandum of July 2017
provided the framework for continuances in immigration court.
How is EOIR able to enforce that memorandum and ensure that
immigration judges are not overtly ignoring it when ruling on
continuances?
Mr. McHenry. The memorandum, by its own terms, it's an
operating policies and procedures memorandum, doesn't direct a
determination in specific cases. It does remind judges,
however, of considerations they should keep in mind regarding
docket efficiencies when entertaining certain types of
continuance requests.
That memorandum was issued at the end of July, so we've
just come upon about a 3-month window since it went into
effect, and we're just now getting the data to analyze it.
Once we review the data and see what it shows, then we'll
take appropriate steps, if necessary, to go back and revisit
it.
Mr. Labrador. Do you have any preliminary findings from the
data you've looked at so far?
Mr. McHenry. We had a couple of initial findings, but there
seem to be some data quality issues, and that's why we're going
back and double-checking them.
Mr. Labrador. Okay. Much of today's hearing focuses on the
backlog, which as previously stated, stands at about 630,000
pending cases. To what extent do you believe that the
reallocation of resources and judges to so-called priority
dockets of unaccompanied minors and family units beginning in
2014 contributed to the backlog?
Mr. McHenry. I don't believe there's 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 it's clear, especially unaccompanied alien children
cases, they typically take longer to resolve than other cases,
other immigration cases 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 otherwise might
have been resolved in their place. So it's had a significant
impact, as I said, though, I'm not sure that we can----
Mr. Labrador. So it's almost the opposite of triage. That
we actually put the ones that takes the longest in the
beginning instead of taking care of the ones that we could
handle right away.
Mr. McHenry. It was a system that was counterproductive, I
think, to its stated goal of trying to resolve the cases more
quickly.
Mr. Labrador. Does EOIR still prioritize these cases?
Mr. McHenry. We changed our priorities for the third time
in 3 years in January of this year. That was before I became
Acting Director, so I can't speak entirely to the process that
drove that.
Currently, our priorities regarding unaccompanied children
are only those who are in the custody of the Department of
Health and Human Services. Other unaccompanied alien children
are no longer considered a priority. But I can say that within
the agency, within EOIR as a whole, myself, my senior
management team, are reviewing our overall priorities in
general and looking at whether that priorities memo, the last
one that we issued, is still the best statement of how we look
at cases.
Mr. Labrador. As EOIR is considering instituting certain
performance metrics for immigration judges, including possible
case completion goals, how would you expect such metrics to
impact the current backlog?
Mr. McHenry. Well, 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
we've been recommended to do those by the GAO, the Office of
the Inspector General, by Congress. If 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.
Mr. Labrador. So according to tract data, the average
number of days that a case is pending before the immigration
court is 691. It seems that it is meaningless for ICE to
apprehend individuals and place them into removal proceedings
if they will then be in limbo for over 2 years before there is
final disposition of their case.
What is EOIR doing to reduce this average number of days
pending?
Mr. McHenry. On data, I think, I don't have it in terms of
days, I have it in terms of months, of the average pending non-
detained case is approximately 21 months. But we are trying to
reduce that. As I mentioned, we're looking at docketing
efficiencies, we're looking at instituting specialized dockets
to try to consolidate cases, achieve efficiencies of scale.
We're also committed to no more dark courtrooms. Whenever we
have a judge who is absent, we're going to have, either by VTC
or rehired--retired immigration judge, be able to hear those
cases in their absence. Together, that should start to bring
the average down.
Mr. Labrador. Thank you very much.
I now recognize the gentlelady from California, Ms.
Lofgren.
Ms. Lofgren. Thank you, Mr. Chairman. It's good news that
we're making progress on the electronic case filing system. So
that would be, I think there's 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.
It's my understanding that almost the highest amount of pro
bono service was provided to children in New York. And I'd like
to ask unanimous consent, Mr. Chairman, to enter into the
record a letter from Kids in Need of Defense, Safe Passage
Project, and 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?
This material is available at the Committee or on the
Committee repository at: https://docs.house.gov/meetings/JU/
JU01/20171101/106561/HHRG-115-JU01-20171101-SD004.pdf.
Mr. McHenry. My understanding is that occurred in January
of this year. I was not at EOIR at the time, so I can't 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 about
the same time that limited the types of unaccompanied alien
child cases that were considered priorities. So I assume that
had something to do with it, but I can't speak to it directly.
Ms. Lofgren. You know, in immigration removal proceedings,
we all know that the government doesn't 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.'' That's problematic
for an adult, but for a child, it's very challenging. There are
children, some as young as 3 or 4, representing themselves in
immigration court.
In 2016, Assistant Chief Immigration Judge Jack Weil made
the claim that he was able to teach 3- and 4-year-olds to
represent themselves in immigration court. Do you believe it's
possible for a 3- or 4-year-old to represent themselves in
immigration court?
Mr. McHenry. I can't speak for Judge Weil directly.
Ms. Lofgren. No, but I asked what you think.
Mr. McHenry. But our judges don't teach the law. That's not
their role. Their role is to adjudicate the case.
Ms. Lofgren. No, I understand that. But do you think a 3-
or 4-year-old has the legal capacity to understand the
consequences of their statements, the validity of immigration
claims?
Mr. McHenry. As the parent of a 4-year old, I can say no.
Ms. Lofgren. Thank you. I have 2-year-old twin grandsons,
so heading towards 4.
Thinking about the need to get representation for these
kids--I won't ask you to comment on my bill--but you're going
to have continuances because judges have an obligation to
uphold due process and fairness. And I'm just wondering whether
you might be willing to revisit the decision in New York and to
take a look about how we could enhance representation of
children, not only for fairness to them, but for efficiency in
the system?
Mr. McHenry. I will look into that.
Ms. Lofgren. 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's 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 you're moving through them quicker?
Mr. McHenry. The process is very similar. It's still
conducted according to merit systems principles.
The new process, however, has specific deadlines that each
component has to meet. That's one of the things that makes it
faster and more streamlined.
Ms. Lofgren. I'd 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
lack of opinions, which caused a flood of appeals to the Court
of Appeals. And I'm 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, the 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?
Mr. Labrador. Yes.
Ms. Lofgren. Okay. Then I will not ask for that.
Mr. Labrador. All right.
Ms. Lofgren. Unanimous consent?
Mr. Labrador. Without objection.
This material is available at the Committee or on the
Committee repository at: https://docs.house.gov/meetings/JU/
JU01/20171101/106561/HHRG-115-JU01-20171101-SD004.pdf.
Ms. Lofgren. Thank you. And I yield back.
Mr. Labrador. The chair now recognizes the chairman of the
full committee for his statement.
Chairman Goodlatte. 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 hear 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 past several years, this committee has engaged in
review, both in an oversight capacity, and in the form of
legislative action of the Obama administration's failed
immigration policies. The politicization of the immigration
courts and the clear bias by former individuals in top
administration jobs, 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 were
playing their role in carrying out the Obama DACA initiative.
While politics certainly played a role, mismanagement of
the agency and the apparent lack of any meaningful guidance on
docket control has resulted in an explosion of pending cases,
some with hearing dates more than 5 years from now.
The allocation of resources to so-called priority dockets
have left the typical non-detained alien without resolution,
but with almost certain ability to receive work authorization
in the United States.
Rampant continuances or postponements of both initial and
merit 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 hear 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 is the best
recourse to ensure that no matter what administration is in
charge and what their principles 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 streamline the process. But those actions
will mean little if EOIR continues to lag behind the rest of
the system.
Resource allocation must be prioritized to ensure that
detailed judges have full dockets and incoming judges have
courtrooms waiting. EOIR plays a vital role within the U.S.
immigration system and the time has long past to make necessary
reforms.
I'm encouraged by the steps taken in the past 10 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 I'll
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. What's your
opinion on that?
Mr. McHenry. I haven't seen a specific proposal, and 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, I'm not
sure I can give a broad opinion.
Chairman Goodlatte. The GAO 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 percent of immigration judges are currently eligible
for retirement, has a workforce plan been created and
implemented at the agency?
Mr. McHenry. We completed the plan, actually, just before I
became the Acting Director. And we've set up a staffing
committee subsequently that's doing a top-to-bottom review of
all positions within immigration courts. So that plan is in
motion.
As to the immigration judge retirements, that's been a
common issue that we've heard in the past. With the number of
actual retirements averages fewer than 10 per year over the
past decade. So the number hasn't quite gotten to a critical
point.
Even if it were greater, we believe, under the new
streamlined hiring plan, we're able to replace those judges
within 6 months that wouldn't have a strong negative effect as
it has in the past.
Chairman Goodlatte. Thank you.
Going back to my first question. What would you--I think we
all agree that you need more judges. Do you agree with that?
Mr. McHenry. Yes.
Chairman Goodlatte. Okay. So how would you deploy those
judges?
Mr. McHenry. We would look at a variety of factors. We
would look at where the dockets are the most critical, where we
have the largest dockets, but we also have to be mindful of
space, personnel, logistical issues, things like that. We
maintain sort of a running review of different locations around
the country. We have cases broken down by Zip Code, by
location. But we have to consider all of those factors in
making determinations as to where we're going to deploy the
next judges.
Chairman Goodlatte. Thank you.
Thank you, Mr. Chairman.
Mr. Labrador. Thank you, Mr. Chair. And the chair will now
recognize the gentleman from Michigan, the ranking member of
the full committee, Mr. Conyers.
Mr. Conyers. Thank you very much, Mr. Labrador.
Mr. McHenry, I understand that you're the chief
administrator for immigration court system, and that you were
recently appointed to this position under the Trump
administration.
Now, as you and all of us are aware, President Trump has
repeatedly promised to deport all 11 million undocumented
immigrants. You're aware of that, I presume?
Mr. McHenry. I've heard that reported.
Mr. Conyers. You've heard it, yeah.
This committee has marked up legislation that would
unfortunately implement President Trump's vision for mass
deportation. And these plans often involve expediting removal
hearing, streamlining immigration court procedures and denying
legal representation.
Now, under your watch, do you believe that the immigration
court system will implement a mass deportation agenda?
Mr. McHenry. 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 can't speak for that agency.
Our judges adjudicate the cases that are brought in front
of them. They adjudicate them in a professional and dedicated
manner, based on the facts and the evidence that are before
them. And they ensure that due process is met.
Mr. Conyers. Well, I'm not asking them. I'm asking you what
you think about it?
Mr. McHenry. About? I'm sorry.
Mr. Conyers. 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?
Mr. McHenry. I can't speak fully, and I'm not entirely sure
what mass deportation agenda means in this context.
Mr. Conyers. Deporting all 11 million undocumented
immigrants.
Mr. McHenry. Our immigration judges aren't 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.
Mr. Conyers. Well, that gets us right back to where we
began. That's what they do, is determine removal. That's two
steps you mentioned.
Mr. McHenry. But they do also determine relief and
protection from removal as well.
Mr. Conyers. Yes. But I'm asking you about President
Trump's promise, or threat, to deport all 11 million
undocumented immigrants. And all I want to know is that, do you
believe that the immigration court system might implement a
mass deportation agenda?
Mr. McHenry. Again, it's not the role of the immigration
courts to implement any particular agenda. They adjudicate the
cases that are brought to them by the Department of Homeland
Security and issue decisions, either based on removability, or
based on protection and relief from removal.
Mr. Conyers. You don't think they're influenced by
President Trump's public position on this question?
Mr. McHenry. I have confidence that our judges apply the
law in each particular case to the facts and evidence of that
case, and they make their best decisions based on the evidence
before them.
Mr. Conyers. Well, do you believe that President Trump's
promise or threat has any bearing or influence upon them at
all?
Mr. McHenry. I can't 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 facts and the evidence
of each case that comes before them.
Mr. Conyers. Well, do you believe that the policies
implemented by the Executive Office for Immigration Review may
lead to mass deportation?
Mr. McHenry. Our policies are not outcome-determinative,
and they are not implemented with any specific outcome in a
particular case in mind.
Our policies are essentially outcome-neutral. We're trying
to resolve more cases, but we're not trying to reach any
particular outcome one way or the other.
Mr. Conyers. Well, I know, but you mean they may be
neutral, but the policies may lead to mass deportation anyway,
or they could. Or you may think that they wouldn't. I mean, in
other words, I'm not asking you how they operate, but if there
was implemented such a--such a policy, would this lead to mass
deportation?
Mr. McHenry. I'm not sure I understand which policy in
particular.
Mr. Conyers. The policies that I've just mentioned, that
President Trump has repeatedly promised to deport 11 million,
all 11 million undocumented immigrants.
Mr. McHenry. I haven't seen a specific proposal as to how
that would impact EOIR.
Mr. Conyers. Well, I didn't say you did see it----
Mr. Labrador. The gentleman's time has expired.
Mr. Conyers. I ask for consent for one additional minute,
sir.
Mr. Labrador. Without objection, but I think you've asked
him the same question, like, seven different ways and he's
answered your question, so I'm not sure what else you want the
gentleman to do but----
Mr. Conyers. So could I get a minute?
Mr. Labrador. You can get an additional 30 seconds, yes.
Mr. Conyers. 30 seconds. Well, thank you very much.
Mr. Labrador. It's already 2 minutes over the time.
Mr. Conyers. Do you, Mr. McHenry, believe that the policies
implemented by the Executive Office for Immigration Review will
protect the due process rights of immigrants?
Mr. McHenry. All the processes, or all of the policies that
EOIR has implemented, at least since I've been Acting Director,
due process is certainly a significant consideration.
Mr. Conyers. Is it fair for me to assume that you've said
yes?
Mr. McHenry. Yes.
Mr. Conyers. Okay. Last question. In recent Executive
Office for Immigration Review announcements, the minimum
qualifying experience required to apply has been changed from 7
years of relevant legal experience to 7 years of litigation in
government-instituted proceedings.
Can you think of any kinds of legal examples, of any kinds
of legal experiences that would qualify as litigation in
government-instituted proceedings?
Mr. McHenry. With respect, Congressman Conyers, I believe
that's a misreading of the advertisement that we sent out. The
advertisements, I actually 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 7 years of experience in either litigation or
administrative proceedings at the Federal, State, or local
level. It doesn't require, and it's not limited to proceedings
that were just initiated by the government. That's one example
that's given in the advertisement, but it's not the only
example.
Mr. Labrador. All right. The gentleman's time has expired.
Thank you.
Mr. Conyers. I thank you very much, Mr. Chairman.
Mr. Labrador. And I recognize Mr. King, the gentleman from
Iowa.
Mr. King. Thank you, Mr. Chairman. Mr. McHenry, thank you
for your testimony.
I'm just listening to the gentleman from Michigan in his
discussion about the alleged effort to round up and deport 11
million people. I still haven't heard anyone advocate for that
that seems to be for it. I make that point, but I'm also, I'm
looking at the overruns here, I'll call it, the 691 days, the
average wait for resolution, and 630,000 pending cases, and
your intent to hire at least 61 new judges by spring.
And I'm wondering what your opinion would be if we were
able to, and in short order, by spring--we won't get it done
that soon--but build a 2,000 mile 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?
Mr. McHenry. Ultimately, I can't answer that. It's----
Mr. King. I know.
Mr. McHenry [continuing]. 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 and I would have to defer to them.
Mr. King. But I don't think it takes 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?
Mr. McHenry. Again, I can't speak to that.
Mr. King. Sure, you can.
Mr. McHenry. It's a little too speculative for me to speak
to.
Mr. King. 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, yet, all done, then what happens to your
caseload?
Mr. McHenry. Well, the other factors would have----
Mr. King. Well, excuse me. I want to rephrase that. If no
one can cross the border, now what happens to your caseload?
Mr. McHenry. There are other factors we would still have to
consider. Some of our caseload is driven by interior cases.
Individuals come in----
Mr. King. Does it go up or does it go down?
Mr. McHenry. Again, I can't speak to it----
Mr. King. Can you, can you--all right. How many judges does
it take, then, to deplete this caseload down to a reasonable
time?
Mr. McHenry. We've run several estimations, and we've asked
for additional judges. I think up to a total of 700 is where it
really starts to turn around.
Mr. King. Judges?
Mr. McHenry. Yes.
Mr. King. It's not a surprise to me to hear a number like
that. It's actually not very often we get someone that lays out
a proposal to get there. And then, how many judges does it take
to maintain the current flow?
Ms. Lofgren. Could the gentleman restate--I didn't hear
what you said in terms of the number. I'm sorry, Mr. King.
Mr. King. I've forgotten.
Ms. Lofgren. You said the number of judges, and I didn't
hear what you said.
Mr. McHenry. Yeah, we currently have authorization for 384.
The next budget request brings it up to 449. The President has
outlined a policy that would add 370. That gets to
approximately 700.
Ms. Lofgren. Thank you.
Mr. King. Now if I could go back to where I was. And that
would be the question of, if you get up to that number that's
the number that 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?
Mr. McHenry. I don't know that I have the analytics or the
data on that in front of me.
Mr. King. That's curious. How many judges does it take to
get this under control, about how many does it take to maintain
it are two separate questions that I would think would answer
before you would have the answer to the first question.
Mr. McHenry. Well, we're actually, because we're focused on
reducing it and bringing it down to a manageable level, we
haven't studied sort of maintaining the status quo. That may be
part of it.
Mr. King. I see. And when you're evaluating the applicants,
I listened to the gentlelady from California talk about the
Monica Goodling case, and I recall her testifying here before
this committee in this room. And I would ask the question: Do
you, when you evaluate the applicants, do you examine their
bios carefully?
Mr. McHenry. We look at their resumes. They typically
have----
Mr. King. And that's it?
Mr. McHenry. Yeah, they typically have to submit a resume.
Mr. King. If they don't put it on the resume, then do you
go beyond that?
Mr. McHenry. I think the last ad required a resume. I know
in prior ads, we required law school transcripts. Going back a
few years, I think we've also required letters of
recommendations but our most----
Mr. King. What about professional affiliations or NGO
affiliations?
Mr. McHenry. Those have never been required, to my
knowledge.
Mr. King. Never required. So you could have someone there
whose job is to bring about a legitimate adjudication that
maybe had a long history with LULAC or MALDEF or La Raza or
ACLU or SPLC, and you wouldn't know that?
Mr. McHenry. Our immigration judges, I think, represent a
wide variety of careers. I mean, we run some numbers on that
because it's an issue that comes up. And I think the vast
majority of them have worked for many different organizations,
entities, and government agencies throughout their careers.
Mr. King. You know, if I were to request that information
in a more precise fashion, would you be able to deliver that?
Mr. McHenry. I think all of the biographies of most of them
are online currently.
Mr. King. Then I just, in my concluding question here is,
as the attorney advisers, can you tell me how they are chosen?
Mr. McHenry. Which----
Mr. King. Attorney advisers, those that might be chosen to
write or give an opinion?
Mr. McHenry. Are you talking at the Board of Immigration
Appeals level, or at the immigration court level, or at some
other agency or some other component of EOIR?
Mr. King. Why don't you tell me both of them?
Mr. McHenry. Our judicial law clerks are typically hired
through the honors program every fall. Those go to the
immigration courts. They typically serve for 2 years and then
go onto some other career.
Mr. King. Okay. That's how you choose. But how do the
case--how are the cases chosen? Is it a random selection
process? How are they assigned?
Mr. McHenry. The cases at which level?
Mr. King. At the board level.
Mr. McHenry. There are panels and teams that are assigned.
I don't have the specific mechanics in front of me though.
Mr. King. But you don't either testifying that it's a
random selection process?
Mr. McHenry. Well, they do--they're required by regulation
to have screening panels, so there are panels that look at the
cases on the front end to determine if they're subject to
summary dismissal or something like that.
Mr. King. I'll follow up with that in written request. And
I thank you, Mr. McHenry. And I yield back the balance of my
time.
Mr. Labrador. Thank you.
The chair will now recognize Mr. Cicilline for 5 minutes.
Ms. Lofgren. May I ask unanimous consent to put in the
record the letter from the Association of Pro Bono Counsel?
Mr. Labrador. Without objection.
This material is available at the Committee or on the
Committee repository at: https://docs.house.gov/meetings/JU/
JU01/20171101/106561/HHRG-115-JU01-20171101-SD004.pdf.
Mr. Labrador. The gentleman is now recognized. The chair
recognizes Mr. Cicilline.
Mr. Cicilline. Thank you, Mr. Chairman.
I'm sure, sir, that 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 this disparity noting that, for example, the grant
rate in the New York Immigration Court was 52 percent, while
the grant rates at the Omaha, Atlanta, and Bloomington,
Minnesota, courts were less than 5 percent.
The GAO additionally found that this disparity persisted,
even holding constant various case and judge characteristics.
These jurisdictions with grant rates of 2 and 15 percent have
earned the name ``asylum-free zones,'' and include Houston,
Dallas, Charlotte, Atlanta, and Las Vegas. The asylum denial
rate in Atlanta, for example, is 98 percent. Almost no one is
granted asylum.
I understand that you were an ICE trial attorney in
Atlanta, and some of your colleagues at both DOJ and DHS are
also former ICE trial attorneys from Atlanta. There have been
reports that the goal of EOIR, and possibly even 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 percent rate
of asylum denial is the model that other immigration courts
should be following? And is there any discussion, overtly or
implicitly, in suggesting that model be followed?
Mr. McHenry. I'm not sure that we have a model, sort of a
one-size-fits-all for any of our immigration courts----
Mr. Cicilline. It's not a one-size-fits-all. My question
is, is that model of that rate of denial is something that you,
as the leader of the office, are promoting, or there's an
active effort to use that as a standard?
Mr. McHenry. As I mentioned a moment ago, the policies that
we've implemented are not driven by any particular outcomes.
They're designed to be outcome-neutral. We're 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 or which ones they should
grant.
Mr. Cicilline. Well, I mean, you don't think that that rate
of 98 percent denial that the Atlanta courts follow ought to be
a model followed by other immigration courts?
Mr. McHenry. No. As I indicated, we don't believe there's
one standard model, whether it's a court that grants a lot of
cases or a court that denies a lot of cases. We're not--our
role is not to go in and pick and choose which cases should be
granted, or which ones should not.
Mr. Cicilline. No, I recognize you don't pick and choose. I
guess my question is, does it concern you--this is a second
question--that that kind of disparity exists?
Mr. McHenry. We've looked at this, because this concern has
been raised before, but it's 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.
Mr. Cicilline. Yeah. Well, thank you very much. I mean, 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
and they are able to control for the different jurisdictions
and different judges. There's 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?
Mr. McHenry. As I mentioned earlier, EOIR already operates
under a number of performance metrics. Some of them are set by
the Immigration Nationality Act. Others we've developed----
Mr. Cicilline. Do any of those metrics involve the number
of cases you complete and how long it takes you to complete
them?
Mr. McHenry. Yes. The Immigration Nationality Act, Section
235, requires credible fear reviews to be conducted within 7
days. There's also a time limit for asylum applications in
Section 208.
Mr. Cicilline. 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?
Mr. McHenry. We've developed standards under the Government
Performance and Results Act that also looks at similar
measures. And, in fact, for detained cases----
Mr. Cicilline. Similar to what? What do you mean, similar
measures?
Mr. McHenry. In terms of completing cases, moving cases
more efficiently, that sort of thing.
Mr. Cicilline. So 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 of
which it takes them to resolve those cases?
Mr. McHenry. It's not part of the individual judge's
performance work plan currently, but it is numbers that we do
track because we keep that data to make the process better.
Mr. Cicilline. You intend to make it part of the
performance plan of individual judges?
Mr. McHenry. That's something I can't get into, but that
still requires some additional discussions with the union, so
it's not appropriate for me----
Mr. Cicilline. It's something you're pursuing?
Mr. McHenry. It's something that we're looking at again in
consultation with the union.
Mr. Cicilline. So, Mr. Chairman, I would just ask an
indulgence for one moment. The National Association of
Immigration Judges explains that this sort of effort would be,
and I quote, a huge, huge, huge encroachment on judicial
independence. It's trying to turn immigration judges into
assembly line workers.
And 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 judge's work. I think it turns our judicial system
and proceedings such as this on their head.
And with that, I yield back.
Mr. Labrador. Thank you.
Just a follow-up question, Mr. McHenry. There is a split in
the circuits, right, as to asylum law and all these different
areas, so wouldn't that yield different results in different
areas?
Mr. McHenry. Well, there are a number of reasons for the
discrepancy in 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 didn't file for asylum on time, or because there's
some criminal ground.
There are a number of explanations for the disparities, but
it becomes difficult to sort of get down to that level of
granularity without essentially re-deciding each case.
Mr. Labrador. All right. Thank you.
I now recognize the gentleman from Arizona.
Mr. Biggs. Thanks, Mr. Chairman.
Thank you, Mr. McHenry, for being here.
The Trump administration is considering expedited removal
procedures to increase those who can be immediately removed
from the United States without first appearing before an
immigration judge. In the past, this group has included illegal
aliens caught within 100 miles of the border, and within 2
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 2 years. Do you think such a policy would be beneficial
in eliminating the number of new cases that come before a
court?
Mr. McHenry. Expedited removal is a policy that's
undertaken by the Department of Homeland Security. I'd have to
defer to them on any questions about it.
Mr. Biggs. You don't--you can't 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 don't know--you can't assess whether that would actually
decrease your----
Mr. McHenry. 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. And we'd have to take into
account all of those before giving any sort of impact on our
caseload.
Mr. Biggs. You said in your opening statement that--and I'm
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 doesn't overwhelm our capabilities. And I wondered what
you meant by that, and if you would expand on that, please?
Mr. McHenry. I don't 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
don't get swamped by any sudden influx of new cases that they
bring to us.
Mr. Biggs. Okay. And you talked about fraud in your opening
statement and in your--and in your summary--or excuse me, in
your document that you provided to us. Please tell me a little
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--looks
like it's below 200. Explain to me what that--how that impinges
on the backlog?
Mr. McHenry. Well, we've--the Fraud and Abuse Prevention
program was set up in the mid-2000s. And we've sort of tried to
revitalize it or reinvigorate it in the past few months. The
number of referrals that are coming in from the field has gone
up, I think, over 100 percent.
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 investigations, so
I can't really speak to them directly. But it looks like we're
trying to ensure that 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.
Mr. Biggs. And I get the impression that you're not
satisfied with a very--basically a fraction of a point of fraud
detection and apprehension?
Mr. McHenry. I wouldn't 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 in the past few years. So we are marshaling all of our
efforts to make sure we can root it out as much as possible
throughout our proceedings.
Mr. Biggs. So after an order of final removal is issued,
what's the process for removal?
Mr. McHenry. I would defer that to the Department of
Homeland Security. They're responsible for actually executing
the order of removal.
Mr. Biggs. And so you would not know how many individuals
are currently present in the U.S. without a final order--or
excuse me, with a final order for removal?
Mr. McHenry. I would not.
Mr. Biggs. Okay. What penalty occurs for those who commit
fraud in the system?
Mr. McHenry. 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.
Mr. Biggs. And in the criminal--in the field of criminal
law, everybody has a certain period of time before they--their
case has to actually be adjudicated and completed.
So, for instance, if you're in custody, it may be 90 days;
if you've been in custody but you've been released, it's 120;
and if you've never been in custody, maybe 150 days, depending
on the State and the rules that govern.
What's the rule for immigration cases? Do you have any
deadline for somebody who has to make an appearance and
actually adjudicate the case?
Mr. McHenry. For a typical removal case, there's nothing
like the Speedy Trial Act or something like that.
Mr. Biggs. Thanks, Mr. Chairman.
Mr. Johnson [presiding]. The gentleman yields back.
The chair recognizes Ms. Jackson Lee from Texas for 5
minutes.
Ms. Jackson Lee. 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,
I've 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 30, we are
not really focusing on the institutions that are important to
stabilizing our government.
So I hope that I will place on the record the concern that
many of us have that we've 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
questioned 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 continuing to do so. At that time, I
asked for 75 new judges. Did I hear you correctly that you are
seeking to--or I think they're not immigration judges, you're
looking to do sort of attorney advisers for 61? What was the 61
number that you were trying to do?
Mr. McHenry. We have 19 immigration judges currently in the
hiring pipeline, and we've had three advertisements since July
for up to 42 additional positions that we're in the process of
also filling. So we expect or anticipate getting 61 additional
immigration judges on board by the spring of next year.
Ms. Jackson Lee. So we are speaking of judges?
Mr. McHenry. Yes.
Ms. Jackson Lee. Permanent immigration judges?
Mr. McHenry. Yes.
Ms. Jackson Lee. 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?
Mr. McHenry. 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.
Ms. Jackson Lee. Well, 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?
Mr. McHenry. No, ma'am, we do not. We--all of our hiring is
conducted according to merit systems principles. We don't
require any information regarding any organizations or anything
like that that individuals belong to. We evaluate them based on
the resume, interviews, writing samples, things like that.
Ms. Jackson Lee. And, 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're a member of the bar, so am I, and not
the drinking bar. And I hope that you would really be saying to
me what is fact and truth and how you will implement that
process. Is that--am I to understand that?
Mr. McHenry. Again, all----
Ms. Jackson Lee. Is that your accurate and true
representation of what occurs and will occur?
Mr. McHenry. All of our hiring is conducted according to
merit systems principles, so we don't consider things like
race, religion, political opinion, things like that.
Ms. Jackson Lee. And, therefore, you do not attempt to
exclude because of race, religion, or other aspects?
Mr. McHenry. No, we don't screen out any particular
candidates one way or the other.
Ms. Jackson Lee. 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 where we saw the unaccompanied children.
I was actually at the border with my colleague, Congresswoman
Lofgren, and we saw children who were fleeing persecution.
But 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 non-responses, 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
hiring of judges that that would be an effective way to run a
courtroom of the judges that you might be hiring?
Mr. McHenry. I can't speak to that specific example. I'm
not familiar with that case or that incident. But I do know
that our judges, once they are 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.
Ms. Jackson Lee. Well, that's a 5-year-old. And do you
believe that in that instance, putting aside the very fine way
in which you're going to be hiring judges, if you were in the
back of the room, would that be an appropriate way--we haven't
called the judge's name so we're not going to be citing who the
judge was. But the point is, would that be an appropriate way
for a 5-year-old to be handled in a proceeding?
Mr. McHenry. As I said, I can't comment on the specifics of
that because I don't 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.
Ms. Jackson Lee. But common sense would say, if you just--
not on the facts, and that's 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?
Mr. McHenry. Well, the issue of children and representation
is in litigation, I can't comment on that specifically. As I
said, in that particular case, I'm not familiar enough with the
example. I would need to know more about the context and the
facts.
Ms. Jackson Lee. Just 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 of processing
cases, would that be effective if a child was in the courtroom?
Mr. McHenry. I'm not sure I understand the question.
Ms. Jackson Lee. If the judge has to run through his or her
cases, and a child happens to come before it as a petitioner in
the courtroom unrepresented, so I'm not obviously--or
represented, is that quota still going where you have to run
through these cases or allowing a child to understand what was
happening in the courtroom?
It takes a little bit more time, doesn't 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
petitioner's position?
Mr. McHenry. 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.
Mr. Johnson. The gentlelady's time has expired.
Ms. Jackson Lee. That is an adherence that you--that's a
commitment that you're making based on your testimony?
Mr. McHenry. 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.
Ms. Jackson Lee. We will be watching. Thank you very much.
Mr. Conyers. 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 Trump's Immigration Policy Takes
Shape'' prioritizing almost all undocumented immigrants for
deportation?
Mr. Johnson. Without objection.
This material is available at the Committee or on the
Committee repository at: http://docs.house.gov/meetings/JU/
JU01/20171101/106561/HHRG-115-JU01-20171101-SD002.pdf.
Mr. Conyers. Thank you, sir.
Ms. Jackson Lee. Mr. Chairman----
Mr. Johnson. Yes.
Ms. Jackson Lee [continuing]. I want to put a question on
the record for answer in writing, please.
Mr. Johnson. Without objection.
Ms. Jackson Lee. The question is, and I'll just--it's just
very brief, the media is reporting that the Department of
Justice--and I used this previously, but this is the specific
question--the Department of Justice plans to use numeric and
time-based case completion quotas to evaluate immigration judge
performance, and that's obviously for compensation or to
maintain that judge.
And so I'd 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 it's a
child, whether it's an elderly, whether it's a disabled, or any
kind of petitioner before the court.
I'd like to know how that matches with your
recommendation--not your recommendation, but your agency's work
juxtaposed with the Department of Justice's representation
about quotas and numeric time-based completion of their work?
Mr. Johnson. Thank you. Mr. McHenry, you can answer that in
writing at a later time.
The gentlelady yields back. And the chair will yield myself
the remaining time of the hearing here.
Mr. McHenry, there's been some discussion back and forth
about handling of minors' cases, juvenile cases. There is, in
fact, a set of rules and procedures that would apply to those
types of cases, correct?
Mr. McHenry. Well, we have--I mean, they are both--
depending on the exact facts of the particular case, there's
both law and regulations that would govern it. We also have an
operating policies and procedures memorandum that details--
gives additional guidance to the judges on how to handle
juvenile cases.
Mr. Johnson. Thank you.
As a result of the fraud and abuse prevention program that
you've discussed today, do you anticipate, with regard to
asylum cases, that we'll see a further decline in asylum grant
rates as a result of these efforts?
Mr. McHenry. Again, I can't speculate because each asylum
case is determined based on the evidence and the facts before
it, so I can't speculate to what the future rates will hold.
Mr. Johnson. 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 for all in the adjudication process. We've talked a lot
about that today. And they recommended regular fraud risk
assessments across the asylum claims in the courts.
You may have referenced this already this morning, but many
of us had to come in and out. Have you consulted the GAO's
specific representations that they issued in that report?
Mr. McHenry. I have. My understanding is my general
counsel's office, they've completed one of the first risk
assessments and we're still reviewing the results of that.
Mr. Johnson. So none of that has been implemented yet, is
that--you're in the process of implementing risk assessments.
Is that right?
Mr. McHenry. My understanding is it has been conducted, at
least the initial one, but we're still reviewing the results of
what came back.
Mr. Johnson. Could you get to us later a quick summary of
what you find with that? I'm sure a lot of us would be
interested in it.
This is--personally, you were a former judge. And do you
agree that judges face greater difficulties in assessing an
individual's statements being true or not when they're not
recorded electronically? Isn't that--wouldn't that be of
benefit to the judges to have electronically recorded
statements?
Mr. McHenry. Speaking as a judge, every judge I know wants
as much evidence as they can possibly get.
Mr. Johnson. And it is easier to determine, is it not,
whether someone is being consistent in their statements if you
have an electronic recording of what they've said prior?
Mr. McHenry. I think that's typically correct, yes.
Mr. Johnson. And you've testified earlier that those
efforts are underway, that you're--I think the words you said--
ramping up, or someone said ramping up the technology in what
you're able to do in these proceedings?
Mr. McHenry. In terms of our electronic filing and our
electronic case adjudication, yes.
Mr. Johnson. Does that also extend to the recording of
statements? Is that something you're working on?
Mr. McHenry. That's something that DHS would handle. We
don't--we record our hearings, of course, but individual
statements or anything that occurs outside of the hearing, I'd
have to defer to DHS for that.
Mr. Johnson. Okay. Well, there's no further questions, and
we want to thank you for attending today. This concludes the
hearing.
Without objection, all members have 5 legislative days to
submit additional written questions for the witness, or
additional materials for the record.
With nothing further, the hearing is adjourned.
Mr. McHenry. Thank you.
Mr. Johnson. Thank you.
[Whereupon, at 3:33 p.m., the subcommittee was adjourned.]
[all]