[House Hearing, 117 Congress]
[From the U.S. Government Publishing Office]
FOR THE RULE OF LAW, AN INDEPENDENT
IMMIGRATION COURT
=======================================================================
HEARING
BEFORE THE
SUBCOMMITTEE ON IMMIGRATION AND CITIZENSHIP
OF THE
COMMITTEE ON THE JUDICIARY
U.S. HOUSE OF REPRESENTATIVES
ONE HUNDRED SEVENTEENTH CONGRESS
SECOND SESSION
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THURSDAY, JANUARY 20, 2022
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Serial No. 117-50
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Printed for the use of the Committee on the Judiciary
[GRAPHIC NOT AVAILABLE IN TIFF FORMAT]
Available via: http://judiciary.house.gov
__________
U.S. GOVERNMENT PUBLISHING OFFICE
47-087 PDF WASHINGTON : 2022
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COMMITTEE ON THE JUDICIARY
JERROLD NADLER, New York, Chair
MADELEINE DEAN, Pennsylvania, Vice-Chair
ZOE LOFGREN, California JIM JORDAN, Ohio, Ranking Member
SHEILA JACKSON LEE, Texas STEVE CHABOT, Ohio
STEVE COHEN, Tennessee LOUIE GOHMERT, Texas
HENRY C. ``HANK'' JOHNSON, Jr., DARRELL ISSA, California
Georgia KEN BUCK, Colorado
THEODORE E. DEUTCH, Florida MATT GAETZ, Florida
KAREN BASS, California MIKE JOHNSON, Louisiana
HAKEEM S. JEFFRIES, New York ANDY BIGGS, Arizona
DAVID N. CICILLINE, Rhode Island TOM McCLINTOCK, California
ERIC SWALWELL, California W. GREG STEUBE, Florida
TED LIEU, California TOM TIFFANY, Wisconsin
JAMIE RASKIN, Maryland THOMAS MASSIE, Kentucky
PRAMILA JAYAPAL, Washington CHIP ROY, Texas
VAL BUTLER DEMINGS, Florida DAN BISHOP, North Carolina
J. LUIS CORREA, California MICHELLE FISCHBACH, Minnesota
MARY GAY SCANLON, Pennsylvania VICTORIA SPARTZ, Indiana
SYLVIA R. GARCIA, Texas SCOTT FITZGERALD, Wisconsin
JOE NEGUSE, Colorado CLIFF BENTZ, Oregon
LUCY McBATH, Georgia BURGESS OWENS, Utah
GREG STANTON, Arizona
VERONICA ESCOBAR, Texas
MONDAIRE JONES, New York
DEBORAH ROSS, North Carolina
CORI BUSH, Missouri
AMY RUTKIN, Majority Staff Director & Chief of Staff
CHRISTOPHER HIXON, Minority Staff Director
------
SUBCOMMITTEE ON IMMIGRATION AND CITIZENSHIP
ZOE LOFGREN, California, Chair
JOE NEGUSE, Colorado, Vice-Chair
PRAMILA JAYAPAL, Washington TOM McCLINTOCK, California,
J. LUIS CORREA, California Ranking Member
SYLVIA R. GARCIA, Texas KEN BUCK, Colorado
VERONICA ESCOBAR, Texas ANDY BIGGS, Arizona
SHEILA JACKSON LEE, Texas TOM TIFFANY, Wisconsin
MARY GAY SCANLON, Pennsylvania CHIP ROY, Texas
VICTORIA SPARTZ, Indiana
BETSY LAWRENCE, Chief Counsel
ANDREA LOVING, Minority Counsel
C O N T E N T S
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Thursday, January 20, 2022
Page
OPENING STATEMENTS
The Honorable Zoe Lofgren, Chair of the Subcommittee on
Immigration and Citizenship from the State of California....... 2
The Honorable Tom Tiffany, a Member of the Subcommittee on
Immigration and Citizenship from the State of Wisconsin........ 3
The Honorable Jerrold Nadler, Chair of the Committee on the
Judiciary from the State of New York........................... 11
WITNESSES
The Honorable Mimi E. Tsankov, President, National Association of
Immigration Judges
Oral Testimony................................................. 13
Prepared Testimony............................................. 16
Elizabeth J. Stevens, Of Counsel, Poarch Thompson Law,
Representing the Federal Bar Association
Oral Testimony................................................. 23
Prepared Testimony............................................. 25
Karen T. Grisez, Pro Bono Counsel, Fried, Frank, Harris, Shriver
& Jacobson LLP, Representing the American Bar Association
Oral Testimony................................................. 33
Prepared Testimony............................................. 35
The Honorable Andrew R. Arthur, Resident Fellow in Law and
Policy, Center for Immigration Studies
Oral Testimony................................................. 44
Prepared Testimony............................................. 46
LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING
Articles submitted by the Honorable Tom Tiffany, a Member of the
Subcommittee on Immigration and Citizenship from the State of
Wisconsin for the record
An article entitled, ``Del Rio Sector Encountering Migrants
from Around the World,'' U.S. Customs and Border Patrol...... 6
An article entitled, ``Border agents nab murderers, sex
offender, gang members in 2 days,'' Fox News................. 8
Reports submitted by the Honorable Pramila Jayapal, a Member of
the Subcommittee on Immigration and Citizenship from the State
of Washington for the record
A report entitled ``Access to Counsel in Immigration Court,''
American Immigration Lawyers Association..................... 114
A report entitled ``Evaluation of the New York Immigrant Family
Unity Project: Assessing the Impact of Legal Representation
on Family and Community Unity,'' Vera Institute of Justice... 142
An article entitled ``In Philly immigration court, a judge is
replaced after delaying man's deportation,'' Philadelphia
Inquirer, submitted by the Honorable Mary Gay Scanlon, a Member
of the Subcommittee on Immigration and Citizenship from the
State of Pennsylvania for the record........................... 220
Items submitted by the Honorable Zoe Lofgren, Chair of the
Subcommittee on Immigration and Citizenship from the State of
California for the record
Statement from the Advocates for Human Rights.................. 226
Statement from the American Immigration Lawyers Association
(AILA)....................................................... 228
Statement from the Asian Pacific Institute on Gender-Based
Violence..................................................... 232
Statement from the Bipartisan Policy Center.................... 236
Statement from the Center for Gender & Refugee Studies (CGRS).. 240
Statement from the Coalition for Humane Immigrant Rights
(CHIRLA)..................................................... 267
Statement from Human Rights First.............................. 271
Statement from Immigration Hub................................. 274
Statement from Immigrant Legal Defense (ILD)................... 275
Statement from the Innovation Law Lab and the Southern Poverty
Law Center (SPLC)............................................ 278
A report entitled ``Bearing Witness: A report of the Cleveland
Immigration Court Monitoring Project,'' Jobs With Justice
(JWJ)........................................................ 323
Statement from Kids in Need of Defense (KIND).................. 342
Statement from The Leadership Conference on Civil and Human
Rights....................................................... 347
Statement from the National Immigrant Justice Center (NIJC).... 350
Statement from the National Immigration Forum.................. 359
Statement from the National Immigration Law Center (NILC)...... 361
Statement from the National Immigration Project of the National
Lawyers Guild (NIPNLG)....................................... 365
A report entitled ``Report on the Independence of the
Immigration Courts,'' New York City Bar Association's
Immigration and Nationality Law Committee.................... 369
Statement from the Niskanen Center............................. 397
Statement from the Ohio Immigrant Alliance..................... 406
Statement from the Round Table of Former Immigration Judges.... 415
Statement from the Tahirih Justice Center...................... 427
APPENDIX
Items submitted by the Honorable Zoe Lofgren, Chair of the
Subcommittee on Immigration and Citizenship from the State of
California for the record
An articles entitled, ``We Have Nothing to Fear but
`Sovereignty Fear' Itself *,'' Yale Journal on Regulation.... 432
A statement from The Alliance for Justice...................... 433
FOR THE RULE OF LAW, AN INDEPENDENT IMMIGRATION COURT
Thursday, January 20, 2022
House of Representatives
Subcommittee on Immigration and Citizenship
Committee on the Judiciary
Washington, DC
The Committee met, pursuant to call, at 2:00 p.m., via
Zoom, Hon. Zoe Lofgren [Chair of the Subcommittee] presiding.
Members present: Representatives Nadler, Lofgren, Jayapal,
Correa, Escobar, Jackson Lee, Scanlon, Buck, Biggs, and
Tiffany.
Staff present: John Doty, Senior Advisor and Deputy Staff
Director; David Greengrass, Senior Counsel; Moh Sharma,
Director of Member Services and Outreach & Policy Advisor;
Cierra Fontenot, Chief Clerk; John Williams, Parliamentarian
and Senior Counsel; Daniel Rubin, Communications Director;
Merrick Nelson, Digital Director; Betsy Lawrence, Chief Counsel
for Immigration; Joshua Breisblatt, Deputy Chief Counsel for
Immigration; Anthony Valdez, Professional Staff Member/
Legislative Aide for Immigration; Ami Shah, Counsel for
Immigration; Julie Rheinstrom, Counsel for Immigration; Yasser
Killawi, Counsel for Immigration; Andrea Loving, Minority Chief
Counsel for Immigration; Kyle Smithwick, Minority Counsel;
Andrea Woodard, Minority Professional Staff Member; and Kiley
Bidelman, Minority Clerk.
Ms. Lofgren. The Subcommittee on Immigration and
Citizenship will come to order, a quorum being present. Without
objection, the Chair is authorized to declare a recess of the
Subcommittee at any time.
I want to welcome everyone to this afternoon's hearing
``For the Rule of Law, An Independent Immigration Court.''
I would like to remind Members that we have established an
email address and distribution list dedicated to circulating
exhibits, motions, or other written materials that Members
might want to have as part of our hearing today.
If Members would like to submit written materials, please
send them to the email address that has been previously
distributed to your offices, and we will circulate the
materials to Members and staff as quickly as we can.
I would also like to ask Members to, as well as witnesses,
to mute your microphones when you are not speaking. This will
help prevent feedback and other technical issues. You can
unmute yourself any time when you want to seek recognition.
I will now recognize myself for an opening statement.
Today's hearing is, in a sense, a continuation of a hearing
this Subcommittee held two years ago where we explored the
crisis in our nation's immigration courts. Two years ago, we
discussed at length the issues that plague the immigration
court system. And today, we will focus on some possible
solutions.
The immigrations courts, I believe, can't be effective as a
judicial institution as long as they are housed in the
Department of Justice. Decades of bureaucratic and political
meddling by the governing Administration have undermined and
eroded public trust in the system. We should find new ways to
ensure that immigration courts function as other courts do,
where judges have the flexibility and resources to conduct full
and fair hearings, due process is held in the highest regard,
and parties on all sides have faith in the outcomes of the
case.
Unfortunately, this does not describe the system as we know
it today. Immigration judges are saddled with crushing
caseloads and, despite their best efforts, struggle to deliver
just and timely decisions that are free from political
influence. This political influence is born out of the Attorney
General's broad authority to reshape immigration policy through
rulemaking and a procedural mechanism known as self-
certification.
Self-certification gives the Attorney General unilateral
power to create new precedent or modify long-standing precedent
by reconsidering decisions issued by the Board of Immigration
Appeals.
Although self-certification, this process has been used by
every Administration since the Eisenhower Administration, it
was invoked an unprecedented 17 times by the Trump
Administration. The opinions that resulted dramatically
restricted the ability of immigration judges to manage their
docket and made it more difficult for immigrants to qualify for
relief from removal.
Thus far, Attorney General Garland has used the self-
certification process essentially to vacate or reconsider the
decisions made by the prior Administration. Regardless of one's
position on the issues, I hope we can agree that the use of
this authority to bend immigration policy to reflect the will
of whatever Administration is using it, undermines judicial
independence and, I believe, the Rule of law.
Like many of its predecessors, the Biden Administration has
promised to improve the court system, the immigration court
system. However, I have examined these issues for a long time
under multiple Administrations, and I think it's clear that the
flaws of the system can't be fixed by executive action alone. I
believe Congress should Act to pass legislation to create an
immigration court system independent of the Executive Branch.
Over the past decade, as the problems that afflict the
immigration courts have grown, support for the creation of an
independent immigration court has also grown. Multiple
nonpartisan organizations, including the American Bar
Association, the Federal Bar Association, the American
Immigration Lawyers Association, and the National Association
of Immigration Judges have concluded that an article I
immigration court is the best solution.
Today we will hear from representatives of several of these
organizations, who study this issue extensively, as to why they
have reached this conclusion. An independent immigration court
is important to the integrity of the system. Judges should have
judicial autonomy to conduct fair and impartial hearings. They
need the ability to prioritize adjudications and control their
case docket. For the Rule of law, we must free them from
whiplash that results in ever-changing policies and priorities
of the Executive Branch.
I look forward to hearing from all of our Witnesses today
and thank them for their very thoughtful written testimony. It
is my hope that this hearing will serve as a first step towards
solving what is really a crisis in our immigration courts. I am
committed to working with my friends and with my colleagues
across the aisle to accomplish this objective.
Now, I understand Mr. McClintock is unable to be with us
today. We wish him well. Mr. Tiffany will offer his opening
statement as the Ranking Member of the day.
Mr. Tiffany, you are now recognized.
Mr. Tiffany. Yeah, thank you, Madam Chair. Thank you to the
Witnesses for attending today.
First, I want to acknowledge why Representative McClintock
is not able to be here today. His wife passed away unexpectedly
around Christmastime.
Ms. Lofgren. Oh, no.
Mr. Tiffany. I hope you are keeping him and his family in
your thoughts and prayers. It is very unfortunate. We miss Mr.
McClintock here in Washington, DC.
Ms. Lofgren. May I interrupt and say how sorry I am to hear
that news. He and his family will be in all our prayers. I am
so glad that you advised us of this.
Mr. Tiffany. Yes. Thank you for that very much, Madam
Chair.
So, I appreciate the Chair holding this Subcommittee
hearing today. I must note that the hearing continues the
Immigration Subcommittee's steadfast refusal to acknowledge the
southern border crisis that President Biden and Vice-President
Harris created, allow to persist, and continue to encourage
with their anti-enforcement and open borders policies.
Remember, it was one year ago today when it was announced
to the world by President Biden, we are going to open our
southern borders and we are basically going to be a borderless
country. It is unfortunate that our United States Government
now, as a result of the Biden Administration's actions, has
become the largest human trafficking operation in the world.
Last year, this Subcommittee held only three hearings for
things like amnesty, drastic increases of legal immigration,
and other open border-related ideas. All the while the southern
border has been lost. U.S. Customs and Border Protection
impounded 1.7 million illegal aliens, an all-time high, on the
southern border during fiscal year 2021. An estimated 400,000
got-aways successfully evaded Border Patrol and disappeared
into the United States.
Despite my Democratic colleagues' best efforts to convince
people not to believe their lying eyes, criminals and drugs
continue to pour across our border to places as far north as my
home State of Wisconsin. Every State is now a border state.
I seek unanimous consent, Madam Chair, to enter two
articles into the record entitled, ``Del Rio Sector
Encountering Migrants from Around the World.'' This comes from
the Border Patrol themself. ``Border Agents Nab Murderers, Sex
Offenders, Gang Members in Two Days,'' an article from Fox
News, if I may.
Ms. Lofgren. Without objection, those will be made part of
the record.
[The information follows:]
MR. TIFFANY FOR THE RECORD
=======================================================================
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Mr. Tiffany. Thank you very much.
Border Patrol arrested murderers, a sex offender, and gang
members in one part of the southern border in less than two
days, the latest haul of criminals caught trying to enter the
U.S. and get past overwhelmed agents. Border Patrol continues
to encounter aliens from countries all over the world,
including those of concern for terrorism along the southern
border. During just one week in November 2021, Border Patrol
encountered aliens from Syria, Tajikistan, Lebanon, Uzbekistan,
Eritrea, among other countries, illegally crossing the border.
That's just the Del Rio Sector.
In May, I traveled to the Darien Gap in Panama to see
firsthand the migration superhighway. There I encountered
hundreds of migrants from Senegal, Pakistan, Iran, Iraq,
Bangladesh, Syria, Haiti, and Cuba. Every one of these persons
I spoke with told me they were coming because of the invitation
from President Biden and his immigration policies. None
indicated they were fleeing persecution. In fact, many had
settled in other countries for 8 to 10 years, and they were
established there.
They wanted to come to the United States for economic
reasons. By the time they get to our border, many have been
coached on how to claim credible fear and seek asylum.
You know who else was there? IOM, the International
Organization for Migration. We give millions of dollars every
year to the United Nations, United Nations only so that they
can undermine our immigration policies through these refugee
settlement businesses.
According to the Department of Homeland Security, there
were 104,171 Notices to Report issued to aliens between March
21 and August 31 last year. Of those 104,171 issued in that 5-
month period, 47,705 did not check in within their required 60-
day window. That means almost half of the people that entered
illegally during this period are unaccounted for: No vetting,
no idea where they are, no efforts to find them.
An Article I immigration court will not fix this. The
Immigration Court was created by Congress as a component of the
Department of Justice. They are housed in DOJ's Executive
Office for Immigration Review. IJs are bound to apply the law
to the facts of a case and provide due process to the parties
before appearing--before appearing before them.
The number of immigration judges, currently at 576, has
nearly doubled since 2016. No court system is perfect, and the
immigration courts have their share of challenges. Caseload and
backload affect daily operations, as do actions of the
Immigration Judge Corps.
The Trump Administration tried to address immigration court
concerns, including court technology, court case completion
rates, and judicial productivity. For instance, it prioritized
completion of proceedings, such as those where the alien is
detained, credible peer reviews in cases with a regulatory or
statutory deadline. It advanced work to replace the paper case
filing and processing system with an online system, which is
now fully operational and set to be mandatory next month.
The Trump Administration also addressed judicial
productivity by implementing GAO and Inspector General
recommended performance metrics in case completion goals, and
by issuing a precedential decision aimed at reigning in the
abuse of case continuances.
I have much more I would like to say, but I am going to go
with my closing paragraph.
Immigration courts, an article I court, is not the topic we
should be focused on. This Subcommittee should be focused on
securing our border and enforcing our immigration laws. This
myth that we have that you will achieve independence of a court
by moving it to a place where it's not under an elected
officials is just that, a myth.
I saw this numerous times when I was a State legislator in
Wisconsin where it had happened decades ago and people tried to
propose it again where, if we just got them out from underneath
elected officials, we would have this magical moment where
there would be no political influence. It is a myth, and we
should not go down that route. Congress should retain its role,
our rightful role in making sure that we, along with the
Executive Branch oversee, that we oversee the immigration
courts.
I yield back.
Ms. Lofgren. The gentleman yields back.
I am now pleased to recognize the Chair of the Judiciary
Committee, Chair Nadler, for any opening statement he may wish
to offer.
Chair Nadler. Thank you very much. Let me start off by
extending my condolences to the McClintock family. I hope
someone can convey that to them.
With today's hearing, we take a close look at our nation's
immigration court system, a system that bears little
resemblance to other courts charged with the Administration of
justice.
The U.S. immigration court system is administered by the
Executive Office for Immigration Review, also known as EOIR, an
agency housed under the Department of Justice. Since its
founding in 1983, EOIR has struggled with its quasi-judicial
status. Simply put, because it lacks independence from the
Executive Branch, the immigration court system is highly
susceptible to political interference.
This interference, from Administrations on both sides of
the aisle, has greatly diminished the effectiveness of the
immigration courts as well as the quality of justice served in
such courts. Our country deserves an immigration court system
that works. To be truly effective, the immigration courts
should function just like any other judicial institution, where
judges serve as independent, neutral adjudicators, free from
political pressure.
Unfortunately, under the current system, the opposite is
the case. Immigration judges are subject to the whims of the
executive. Unable to function as independent judicial officers,
judges lack the autonomy to manage their dockets and, in some
cases, to render fair and impartial decisions.
Although these issues have been evident for decades, the
need for an independent immigration court system could not have
been clearer under the Trump Administration, which used EOIR as
a pawn to advance its anti-immigrant agenda.
As Chair Lofgren mentioned, ``the Attorneys General of the
Trump era used the self-certification'' process 17 times to
unilaterally change immigration policy or to limit judges'
discretion. In contrast, under the Obama and Bush
Administrations, both of which lasted 8 years, the self-
certification mechanism was used only four and ten times,
respectively.
The Trump Administration also targeted the National
Association of Immigration Judges, or NAIJ, the recognized
representative of immigration judges and a vocal critic of many
of the Administration's policies that limited judicial
discretion. It even went so far as to successfully petition the
Federal Labor Relations Authority to strip the NAIJ of its
union status.
Fortunately, the Justice Department once again recognizes
the NAIJ for collective bargaining purposes, and many of the
policy changes implemented under the Trump Administration have
now been reversed or enjoined by Federal courts.
Policy whiplash is no way to run a court. A true court
system must be defined by the separation of powers. It must
prioritize judicial independence, due process, and the Rule of
law. Because of these issues, nonpartisan groups, including
those represented by several of our Witnesses today, have long
called on Congress to pass legislation establishing an
independent immigration court system. I look forward to hearing
from our Witnesses today as to why this is so critical and how
such a system should be structured.
I thank the Chair, Ms. Lofgren, for her leadership on this
issue, and for holding this important hearing. With that, I
yield back the balance of my time.
Ms. Lofgren. The gentleman yields back. I do not believe
that the Ranking Member of the Full Committee is present to
offer an opening statement. If he arrives, we will, obviously,
welcome his statement.
Now, is the time for me to introduce our Witnesses.
First, I would like to introduce Judge Mimi Tsankov. Judge
Tsankov is President of the National Association of Immigration
Judges and is an immigration judge based in New York, and an
adjunct professor at Fordham School of Law.
Prior to her appointment as an immigration judge in 2006,
Judge Tsankov served as assistant district counsel and an
asylum officer for the legacy Immigration and Naturalization
Service, and as a special assistant U.S. attorney for the
Eastern District of New York.
She earned her Bachelor's Degree from James Madison
University, and a J.D. and Master's Degree in International
Relations from the University of Virginia.
I would now like to introduce Elizabeth Stevens. Elizabeth
Stevens is of counsel to Poarch Thompson Law and is here today
representing the Federal Bar Association. Previously, Ms.
Stevens served in multiple capacities at the Department of
Justice Office of Immigration Litigation, acting as Assistant
Director of the District Court section.
Ms. Stevens has been active with the Federal Bar
Association for 21 years, holding various leadership positions,
including chair of the Immigration Law Section's Board of
Governors.
She received her Bachelor's Degree from Georgetown
University, and her J.D. Degree from George Mason University
School of Law.
Karen Grisez is Pro Bono Counsel at Fried, Frank, Harris,
Shriver & Jacobson LLP, where she focuses on asylum, removal
defense, and other immigration matters. She is here today
representing the American Bar Association.
She is the former Chair of the ABA's Commission on
Immigration, and serves on the National Pro Bono Committee of
the American Immigration Lawyers Association. She is Chair of
the Board of Trustees of the Center for Migration Studies in
New York, and a Member of the Board of Directors for the
Capital Area Immigrants' Rights Coalition and the Washington
Council of Lawyers.
She received her Bachelor's Degree from the University of
Maryland, and her J.D. from the Columbus School of Law at
Catholic University.
Finally, but not least, the Honorable Andrew Arthur,
Resident Fellow in Law and Policy for the Center on Immigration
Studies, and a former Immigration Judge serving at the York
Immigration Court in York, Pennsylvania, from 2006 to 2015.
Mr. Arthur also served as an Associate General Counsel for
the former Immigration and Naturalization Service, as well as
Counsel for the House Judiciary Committee, and Staff Director
of the House Oversight Committee.
He received his Bachelor's Degree from the University of
Virginia, and his J.D. from the George Washington University
School of Law.
I welcome all our Witnesses. I would invite them now to
take the oath before their testimony. Please turn on your
audio.
I ask that each of you raise your right hand while I
administer the oath.
Do you swear or affirm under penalty of perjury that the
testimony you are about to give is true and correct to the best
of your knowledge, information, and belief, so help you God?
I will note that each of the Witnesses answered in the
affirmative. We will now begin.
Let me remind the Witnesses that your entire written
statement will be made part of our record. We ask that you
summarize the written statement in about 5 minutes. There is a
clock on our screen, and when it hits zero, we ask that you sum
up as promptly as possible so that we will have an opportunity
to ask our questions.
We will begin with you, Judge Tsankov. Please give us your
wisdom.
STATEMENT OF THE HONORABLE MIMI E. TSANKOV
Judge Tsankov. Thank you so much. Good afternoon.
My name is Mimi Tsankov and I am President of the National
Association of Immigration Judges. Members of the Subcommittee,
thank you for this opportunity to testify today.
I am an immigration judge, as you heard, seated in New
York. I have been on the bench for about 15 years. Today, what
I want to do is share my experience at the court with you. I am
seeking your support in bringing about an immigration court
that is reformed.
Let me walk you through some of the difficulties that have
been really challenging the average judge over the past decade.
There are almost 580 immigration judges hearing cases at
the roughly 70 courts around the country. Generally, judges are
on the bench almost every day, all day. It seems like no matter
how hard we work, that backlog we are facing just keeps
growing. Each judge's piece of the 1.6 million case backlog is
approximately 2,700 cases.
We have reached this part--this point in large part because
our courts are housed, as you heard, within the Department of
Justice. We answer to a political leader, the Attorney General,
who is also the nation's chief prosecutor. Because of that, the
DOJ's control over the court has yielded extreme pendulum
swings and our apolitical judges are reeling as they navigate
their judicial responsibilities on the one hand and heavy
political scrutiny.
That ping-pong between one Administration's priorities and
another's reduces judicial effectiveness. That is because the
priority for one attorney general may be completing the oldest
cases and, for another, it might be recent arrivals requiring
travel to the border. Our inability to complete cases is a
function of those shifting priorities. Whatever isn't a
priority just gets shoved to the back of the line, and my part
of the backlog grows.
That backlog pressure, it has repercussions for the judges
who are viewed as attorney employees by the Department of
Justice. Amid those political swings, I may be staring down a
possible poor performance rating, not because I don't know how
to do my job but because the agency I work for has shifted its
priorities. Suddenly court resources are de-prioritized, the
budget for interpreters dries up, plans for our new IT system
improvement get put on the back burner, training conferences
are canceled, staffing levels stagnate, filings stack up
unfiled, and space needs aren't addressed.
Repeatedly, according to the DOJ Office of Inspector
General, the agency has mismanaged its resources. Simply put,
the immigration court is treated as a stepchild within the
Department of Justice.
These problems are compounded for judges like me since I
preside over a family unit docket. With many young,
unrepresented juveniles, it takes extra time to ensure that
these vulnerable respondents understand their rights. It is
difficult.
DOJ has tried to implement solutions over the years. For
example, in an effort to modernize the court, back in 2001 the
DOJ said we need to move away from paper files and got a
digital filing system that the public can use to interact with
the court, much like PACER at the U.S. Courts. DOJ didn't
implement an off-the-shelf product like PACER, it embarked on a
two-decade project to build its own bespoke system.
The final nationwide roll-out of ECAS, as you heard, will
be next month. However, I am not sure that the system is in
fact complete. Now we have years' worth of paper files that
need to be digitally scanned to even operate within our new
ECAS system. That is no small task.
What I am trying to explain is that DOJ's solution has
exacerbated our problems. What is worse is that the DOJ has
undermined the integrity of the court. Politicization has led
to infringement on judicial independence. Every Administration
imposes its political will on the court. This is not a
political statement but a statement of fact. This can be
applied to every Administration I have worked for in both
parties.
Today the mission of the DOJ simply does not align with the
mission of a court of law. Courts are supposed to be
independent from all external pressures, including political
priorities. We are not. We need an independent article I
immigration court. It is a good government solution. It would
legitimize the integrity of immigration court outcomes, and it
would support the Rule of law.
We need to shed the politically tinged system we currently
operate in and start functioning as the judges we are supposed
to be.
Thank you for your attention. I am happy to answer any
questions.
[The statement of Judge Tsankov follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Ms. Lofgren. Thank you very much for that testimony, Judge.
We will now turn to Ms. Stevens for her testimony.
STATEMENT OF ELIZABETH J. STEVENS
Ms. Stevens. Chair Nadler, Chair Lofgren, Ranking Member
Tiffany, and Members of the Subcommittee, good afternoon. I am
honored to represent the Federal Bar Association and to be
asked to address one of our organization's highest priorities,
the creation of an independent article I immigration court.
I have spent considerable time immersed in immigration law
and policy, both as an Assistant Director of the Office of
Immigration Litigation of the Justice Department, and as Chair
of FBA's Immigration Law Section.
The FBA has determined, after significant research and
consideration of alternatives, that an independent article I
immigration court, similar to the Tax Court, will best improve
the adjudication of immigration cases without making changes to
substantive immigration law. article I courts have a long,
successful history. An article I immigration court will ensure
decisional independence and promote timely decision making and
efficient adjudication.
No simple band-aid can fix the current broken system and
its ever-growing trial level backlog. Only through major
surgery can the system be restored to full and proper
functionality. Let this be the Congress that addresses this
problem and solves it.
Unlike other elements of immigration law, there is a broad
consensus that the current system for adjudicating immigration
claims is dysfunctional and deserves systemic overhaul. The
current system undermines efficient adjudication, denies due
process, politicizes an important adjudicative function, and
deprives immigration judges of effective authority and
autonomy.
This is not a partisan issue; it is a good government
issue. It has nothing to do with substantive immigration law or
broad immigration policy. Whatever the immigration laws are,
and whatever the policies that inform them, it is past time to
lift the courts that apply them from halfway there, not-quite
courts to true courts under article I.
Let me walk you through some of the problems the FBA has
identified with the current adjudication structure.
The Executive Office for Immigration Review is a top-heavy
bureaucracy, not a true court system. Headquarters programs are
largely duplicative of functions performed elsewhere within the
Government, and drain resources that should be devoted to
adjudication.
Immigration judges have little control over their dockets
and cannot use the contempt authority authorized by Congress.
Individuals wait an average of 1,938 days from receiving the
first charging document to a hearing on their applications.
An article I court would not duplicate or add jobs, nor
would it require significant numbers of political appointments.
Though it will not singlehandedly fix the backlogs, an article
I court should help us improve the current backlogged system
through administrative efficiencies and docket control.
The current system does not fit the general view of what
Americans consider due process. The Department of Justice does
not view immigration judges as independent judicial officers.
The potential for political influence means that they cannot
ensure due process or decisions made solely according to law.
A broad perception exists that the immigration courts
merely rubber stamp DHS actions. Because of this perception,
individuals may not pursue relief for which they might be
eligible; It also leads to more petitions for review in the
circuit courts, as the hope of impartial review in the federal
court system postpones finality and undermines the authority of
immigration determinations.
There is ample precedent for Congress to establish an
independent article I immigration court. Congress has
successfully done this in other areas of law that involve
executive policy making, priority setting, and impartial
adjudication. For example, the Tax Court and the Court of
Appeals for the Armed Forces also started off as internal
components of civilian or military bureaucracies. In response
to concerns about fairness and impartiality, Congress
reassigned the adjudicative functions to independent article I
courts with no impact on the agencies' other processes.
Some propose creating a separate executive agency or
placing immigration courts within the regular article III
federal court system. The former would simply relocate, but not
eliminate, the bureaucratic problems. The Judicial Conference
of the United States opposes the latter. The best option is an
independent article I immigration court.
Thank you again for the opportunity to testify today. The
FBA looks forward to collaborating with you on this issue. I
look forward to answering your questions.
Thank you.
[The statement of Ms. Stevens follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Ms. Lofgren. Thank you very much for your testimony.
We will now turn to Ms. Grisez for your testimony.
STATEMENT OF KAREN GRISEZ
Ms. Grisez. Good afternoon. Thank you, Chair Lofgren, Chair
Nadler, today's Acting Ranking Member Tiffany, and Members of
the Subcommittee. My name is Karen Grisez, and I am pro bono
counsel for the law firm of Fried, Frank, Harris, Shriver &
Jacobson in Washington, DC. I am also a former Chair of the ABA
Commission on Immigration.
The ABA appreciates this opportunity to share our views on
the Rule of law and the need for an independent immigration
court.
Due process and judicial independence are integral
components to the Rule of law, as well as core concerns of the
ABA. As currently constituted, the immigration courts lack many
of the basic structural and procedural safeguards necessary to
ensure fair and impartial adjudication, to the detriment of
both the Government and those who are going through the system.
The location of the EOIR within the Department of Justice
and, consequently, under the direct authority of the sitting
Attorney General, is central to our due process concerns. Over
the course of many Administrations, we have witnessed the
adoption of policies and procedures that undermine immigration
judges' duty to perform as neutral arbiters of facts and law,
and by prioritizing expeditious case processing overdue
process, as well as segregating case categories in reaction to
changing enforcement priorities.
In addition, the role of the Attorney General as the
ultimate decision maker within the Executive Branch has led to
a dizzying back and forth instructions of law that impairs
finality and diminishes confidence in the integrity of the
adjudication system. Even brief consideration of the basic
hallmarks of due process--notice, an opportunity to be heard, a
hearing before an impartial tribunal, and the opportunity to be
represented by counsel, reveal important flaws in the current
system.
Notice frequently contains a place-holder date as opposed
to a real hearing date in immigration court because of the
limitations on the technology of the system. The EOIR automated
system available to litigants to check on the current status of
a hearing date often do not reflect current hearing schedules.
Judges are assigned and reassigned to different dockets for
administrative convenience. Additionally, notices of hearing
are often mailed out too late to inform respondents of their
new hearing date or are mailed to outdated addresses because
submissions are not timely filed in the court case file.
The scope of the opportunity to be heard is controlled by
the immigration judge, which is particularly concerning with
regard to place a response. Regardless of practice annual
guidelines, the judge controls how long will be allowed to find
counsel; how much time will be allowed to identify witnesses
and obtain corroborating evidence, often requiring translation;
how long will be allowed for the hearing; how many available
witnesses will be allowed to testify and by what means.
Many asylum applicants whose cases involve life or death
consequences are allowed only 2 to 4 hours to present their
complete cases, even when interpretation is required. Due
process violations can only be raised on appeal if they are
reflected on the record, and only if the respondent is actually
able to take an appeal.
The need for an impartial tribunal may be the most
compelling reason for an independent court. Other witnesses
have already talked about control by the Attorney General in
many other ways, but the hiring process, too, is completely
under control of the Attorney General in a non-transparent
process. The performance of immigration judges is evaluated not
by the quality of their opinions, but by how quickly they can
complete their cases.
Opportunity to be represented by counsel is also an issue.
The statute provides opportunity for counsel, but at no expense
to the Government. So, there is no right to appointed counsel
for the indigent, except in rare circumstances. Access to legal
information is also very limited.
To address these issues, the ABA conducted a study, issued
a report, and has come to the conclusion an article I court is
the best solution for a variety of reasons: Independence,
fairness and perception of fairness professionalism, and
increased efficiency.
We examined an independent article I court, independent
agency, and a hybrid model, and concluded for reasons that we
can discuss further, that article I is the most preferable
model for a variety of reasons. We urge Congress to
expeditiously pass legislation to create an article I
immigration court to enhance the Rule of law and strengthen due
process in our removal adjudication system.
[The statement of Ms. Grisez follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Ms. Lofgren. Thank you very much for that testimony.
We will now turn to Mr. Arthur for his testimony. You are
now recognized.
STATEMENT OF THE HONORABLE ANDREW ARTHUR
Judge Arthur. Madam Chair, Chair Nadler, and Ranking Member
Tiffany, Members of the Subcommittee, thank you for inviting me
today.
The 580 or so immigration judges play a crucial role in our
system of justice and national security to face numerous
challenges, as you have just heard. For decades, the
immigration courts were largely forgotten, inadequately
staffed. IJs were left without needed guidance and oversight
from the Executive Branch.
They have also struggled to do their jobs through the flaws
in the immigration laws and poorly reasoned judicial opinions
that suffered under various Executive Branch priorities and
policies that have swelled their dockets by encouraging foreign
nationals to enter and remain in the United States illegally.
In fiscal year 2021, Border Patrol apprehended 1.659
million migrants along the southwest border, an all-time high.
Those migrants have overwhelmed limited DHS resources, resulted
in many being released with nothing more than a notice to
report to an ICE office near their destinations in the United
States.
A federal bipartisan panel during a lesser surge in 2019,
determined that similar releases were the major
``pull factor'' drawing family migrants to enter the United
States illegally with great danger to all and prominently
children.
Largely as a result of surges at the southwest border in
recent years, IJs now face a crushing backlog of almost 1.6
million cases, not counting hundreds of thousands of others
that are administratively closed. That backlog is bad for our
system of justice.
Here is one example: Congress has mandated that most asylum
cases be adjudicated within 180 days. In October, the
immigration courts were handling more than 623,000 asylum
claims. Few will be decided in 2 years, let alone 180 days.
Some have called for abandoning the EOIR system and
creating an independent article I court outside the Executive
Branch. That won't resolve the issues that the IJs face, which
are driven largely by a lingering lack of resources and the
backlog which, again, in turn is driven by the crisis at the
border and exacerbated by the aforementioned flawed statutes
and policies.
Moreover, any restructuring would be complex and costly,
absorbing resources that would be better directed toward
including EOIR and providing it with more funding.
The arguments favoring restructuring are less compelling
than they appear. While I served as an immigration judge,
attorneys general from both parties, my independent judgment
was never impinged upon, and I had a relatively high level of
autonomy over my dockets. I strove to run my court in a
professional manner and expected the same of the parties who
appeared before me.
The arguments against an independent immigration court on
the other hand are significant. First and most crucially, this
plan would have serious constitutional implications.
Immigration decisions are closely tied to the foreign policy of
the United States. The Supreme Court and the Ninth Circuit have
both found that. That has been recognized as solely within the
sway of the Executive Branch.
I can ratify this and elaborate with more real-world
examples from my own experience if you are interested, but the
problem is far from theoretical. Creating an independent
immigration court would largely remove congressional oversight
of immigration decision making, which matters to me as a former
staffer.
Finally, an article I court would be left to fight for
resources. Immigration is contentious, and Congress, with the
power of the purse, could easily starve an immigration court
whose decisions it did not agree with of funding. IJs need
additional resources, which the Administration has promised to
seek. While more judges will help, they already need extra
support staff, including law clerks. I would ask this body to
move to providing that.
That said, IJ candidates should be fully vetted before they
are hired and trained in both immigration law and courtroom
procedure before they hear cases. While IJs need bright line
rules to follow, the Attorney General should not overturn
settled law. Moreover, a recent proposed letter which IJs would
be required to adjudicate asylum cases in which no asylum
application has been filed would further burden the courts and
should be rejected.
Congress should, however, consider creating an article I
circuit court for immigration. That would help IJs by bringing
uniformity to interpretations of the immigration laws and
alleviate burdens on the 11 circuit courts that currently hear
aliens' petitions for review. Reviews of the IJs decisions
accounted for 85 percent of administrative agency appeals
before the circuit courts in 2019, more than 5,000 cases.
I thank you for the opportunity to appear today, and I look
forward to your questions.
[The statement of Judge Arthur follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Ms. Lofgren. Thank you. Thank you, Mr. Arthur. Thanks to
each one of our Witnesses for their thoughtful testimony.
This is now the time when the Members of the Subcommittee
can ask questions under the 5-minute rule. I will begin with
myself.
First, Ms. Stevens, we heard in your opening statement and
from our other witnesses concerns about the Executive Branch's
influence on the court system. Under the article I model
proposed by the Federal Bar Association, the President would
have the authority to appoint the appellate level immigration
judges who would then select the trial level immigration
judges.
Given the power of the President to appoint appellate
judges, explain how the FBA's proposal would protect against
political influence, if you may.
You need to unmute. You are muted.
Ms. Stevens. Thank you, Chair Lofgren, for that question.
That is an excellent question that goes to the core of the
FBA's presentation.
In the FBA's model proposal, we proposed that appointments
to the appellate level be staggered so that every 5 years only
one-third of the appellate judges would be appointed. That will
limit the specific political--limit the ability of any specific
Administration to select all the judges on the system. We
believe that would go a long way towards limiting political
issues. Thank you.
Ms. Lofgren. Thanks for that answer.
Ms. Grisez, the American Bar Association has been an
outspoken advocate for immigration court reform for over a
decade that we have been talking. Now, there are various
options for changing the immigration courts, everything from an
article I court to a separate agency, and the like.
Can you explain why the ABA chose specifically to endorse
an article I court system as opposed to the various other
alternatives that we could devise?
Ms. Grisez. Yes. Thank you, Madam Chair.
There are a number of reasons. Going back to the core
principles, the core values of the ABA, focused on fairness and
due process in adjudication, the notion is that the article I
courts would provide the most court-like system, the most
independence, the most freedom from Executive Branch control,
and ability to recruit, with the prestige of a true independent
court, the best qualified pool of candidates.
Ms. Lofgren. Thank you for that answer.
Judge Tsankov, Federal Judges, both article III and article
I, have job protections. article III judges have lifetime
tenure. article I judges have fixed terms. I would like you to
explain what kind of job protections immigration judges
currently enjoy. How would that change if the courts were
independent from the Department of Justice?
Judge Tsankov. Thank you for that question.
Currently, the immigration judges have the same types of
federal protections that any federal employees have. They can
only be fired for cause. If they have engaged in some sort of--
if they are deficient in doing their job or engage in some sort
of problematic conduct.
However, the vast majority of the immigration judges that
are currently seated are probationary judges. Those judges can
be removed at will, except in certain circumstances such as EEO
type based reasons.
Now, if we were to transport our current system into the
article I context, we would have the independence. The
political influence that could impact the firing of
probationary judges or any of the other judges, that would be
eliminated.
Ms. Lofgren. Let me just ask if you have given--Judge
Tsankov, there would need to be a transition period. Have you
thought, or any of the other Witnesses, thought about how that
transition from the current system to an article I court would
work, and how, what are the complications that we need to be
alert to? Any of you?
Judge Tsankov. I would probably defer. I know you mentioned
my name, but I would defer on that question to my colleagues
who have been, who are really the experts in creating those
types of courts.
Ms. Lofgren. Ms. Stevens, do you want to give it a try?
Ms. Stevens. Chair Lofgren, I would be happy to give that a
try. In our proposal, in our model legislation we have proposed
a transitional period of 3 to 5 years where the current
immigration judges and board Members would be pulled into the
article I system. That would require a term, especially for the
appellate level, for them to have presidential appointment and
Senate confirmations so that they could appoint new immigration
judges to those particular areas, keeping in mind very serious
issues needing confirmation under the appointments clause.
Thank you.
Ms. Lofgren. Thank you very much. I see my time has
expired. So, I will turn now to Mr. Tiffany for his questions.
Mr. Tiffany. Yeah, thank you very much, Madam Chair.
First, Ms. Stevens, did I hear your comment correctly that
the backlog of cases is not affected by the number of cases or
the amount of illegal immigration?
Ms. Stevens. Thank you for that question, Congressman
Tiffany. I do not believe that was part of my statement.
The backlog is significantly affected by new cases being
filed. It also has a significant impact from cases being
remanded, and motions to reopen, and motions to reconsider,
where immigration judges have to take a look at a case three,
four, five, six, seven, times, or the Board of Immigration
Appeals has to take a look at the cases many times.
There's a number of reasons for the backlog, including the
push me/pull you of Administrations saying, ``Do this. No, do
that first.'' Thank you.
Mr. Tiffany. Yeah, thank you for that. I will go back and
re-listen to that testimony. I appreciate your answer.
Mr. Arthur, would securing our borders in conjunction with
requiring immigration judges to meet case completion goals help
our backlog issues?
Judge Arthur. Let me break that into two parts, if I could,
Mr. Tiffany. The first one has to do with the border.
In recent filings with the court in Texas v. Biden, DHS
revealed the fact that it had apprehended I think 176,000
migrants at the southwest border in December, and that 51,000
of those individuals had been issued NTAs or had been paroled.
Logically, they would be amenable to removal proceedings.
On an annual basis, that would be 600,000 new cases. So,
that will give you an idea to quantify how much the border
would affect it.
With respect to case completion goals, I will note that
Congress actually, again, created one. Asylum applications are
supposed to be completed within 180 days. That is the entire
process, that is not just the immigration court process.
So, again, case completion goals are a tricky issue. I
never had any problems meeting mine. If it was coupled with
some sort of assistance to the judge, then completing cases
more quickly definitely would cut back on the backlog.
Mr. Tiffany. You alluded to the nexus between the role of
foreign policy and immigration. I find that to be a pretty
compelling message, keeping this with the Executive Branch,
that there is this nexus. I mean, you have foreign migrants
coming into our country, and the Executive Branch clearly has
purview over foreign policy to a large extent.
Could you talk about that a little bit more, the importance
of keeping, keeping this in the Executive Branch within the
Department of Justice?
Judge Arthur. Thank you, Mr. Tiffany. Yeah, and I note that
I have a number of immigration experts here. One of the key
components of immigration is something called reciprocity. We
treat foreign--other countries treat our citizens the way that
we treat their foreign nationals. For that reason there must be
a certain amount of Executive Branch oversight over the process
to ensure that those individuals are being properly treated.
We have things in the law like serious non-political crimes
which is a bar to asylum. If an immigration judge were to find
that something is a serious non-political crime that had a huge
impact in a country, I mean, take the regrettable bombings
during the Troubles in Northern Ireland and we were to find
that those were not--or that they were political crimes and,
therefore, not a bar to asylum, that would have a serious
impact on our foreign policy with the U.K.
I am going to have to dance around a specific case that I
had, but there were two individuals who were accused of
participating in the killing of an individual who was the
father of a head of State abroad. That is a situation in which
if an immigration judge were to grant those two people asylum
it would have significant impact on our foreign policy with
that country.
I could speak in camera to staff if they are interested in
the facts of that case, but it was a very significant case.
Mr. Tiffany. I want to get this last question really
quickly. Are you aware of any effort by EOIR under this or
prior Administrations to tell immigration judges how they
should Rule in a particular case in a manner that is
inconsistent with the law of precedent?
Judge Arthur. No. I think that, of course, from my
testimony you can see the memo that was put out by EOIR with
respect to prosecutorial discretion. No, I have never seen
anyone--and, again, I served under both President George W.
Bush and President Barack Obama.
Mr. Tiffany. I yield back, Madam Chair.
Ms. Lofgren. The gentleman's time has expired.
We will now be pleased to recognize Chair Nadler for his
questions.
Chair Nadler. Thank you. Ms. Stevens, the Federal Bar
Association supports the establishment of an article I
immigration court and has even drafted model legislation for
that purpose.
Did the FBA explore other restructuring options? If so, can
you please explain why the FBA concluded that an article I
structure is the best solution?
In particular, why not make it a regular article III court
with lifetime appointments, independence, and appeals to the
circuit courts or the Supreme Court?
Ms. Stevens. Thank you very much for that question, Chair
Nadler.
The FBA looked at several different types, including making
the immigration courts a separate administrative agency outside
of the Department of Justice. Continuing, we identified the
Department of Justice in its current fashion. Also, the article
III question.
First, I would like to say that the article III question
has been addressed by the article III courts themselves. They
recommended time and again in 1982 and again in 2016 that any
independent immigration court should be located outside of the
article III courts.
This has there are two real reasons for that. One of them
is that there is the possibility of having the Administration,
the article I courts, make the primary decision, but it is then
reviewed in an article III situation. So, there is the
possibility of separate review.
The reason that we want a true court system is to really
provide efficiencies within the system itself. If it is an
article I court like the Tax Court, you have the perception
that it is indeed independent. That is so important.
The perception of independence is similar to the creation
of the Tax Court back in the 1920s. The very reason the Tax
Court was taken out of the Department of the Treasury and the
IRS at the time, or whatever it was called at the time, are the
same reasons: The perception of fairness, of impartial
adjudication, and the ability to judges to be secure in their
appointments and, not have to worry about political impact.
Chair Nadler. Thank you.
Ms. Stevens. Thank you.
Chair Nadler. Judge Tsankov, Ms. Grisez, and Ms. Stevens,
all of you and the organizations you represent have been
calling for the creation of an independent immigration court
system for many years. You have stood by this position under
both Democratic and Republican Administrations.
Judge Tsankov, in your view is there any reason this would
be a partisan issue?
Judge Tsankov. It is a nonpartisan issue from my
perspective. It is a good government problem--solution. It is a
Rule of law issue that needs to be addressed. Both parties
really support good governance and Rule of law concerns.
Chair Nadler. Okay, thank you.
Judge Tsankov. Thank you.
Chair Nadler. Thank you. Ms. Grisez, one of the problems
with immigration courts that was identified by the American Bar
Association in its 2017 and 2019 reports is a lack of adequate
resources. In the last two years Congress has appropriated
hundreds of millions of additional dollars to EOIR and, yet
problems with the immigration court system persist, and many
have worsened.
In your opinion, why hasn't the increase in funding
improved court efficiency? Why is the hiring of more
immigration judges not enough to solve the problems with the
court system?
Ms. Grisez. Thank you for that question, Chair Nadler.
I would say that the resources are one problem with the
current immigration court, and one of the reasons that it has
been unable to keep up with or make a dent in the backlog, but
it is not the only reason.
The structure is a reason, the political influence that we
have talked about is a reason, and the constant shifting in
policies, procedures, dockets, judges getting reassigned, all
contribute to the inability for the judges, even new judges, as
you heard from an earlier Witness, to keep up.
The biggest thing that I would say, though, from the ABA
perspective is that the immigration court system can't be
looked at as a vacuum, and reforms to the immigration court,
including the article I recommendation, isn't the only thing
needed to fix the system.
If you look at our reports, the 2010 and 19, they look at
the immigration system as a whole, and all the other factors,
so the inputs that go in, what cases get in removal proceeding
to begin with, who makes decisions about charging, what is the
opportunity for considering whether the Government would
actually remove someone, the prosecutorial discretion question,
the functioning of the board, all the way up.
So, resources are one issue, but the inputs and the
operational concerns are another. A big one that I would point
out is that access to counsel. The court system would be more
efficient if people had lawyers, judges didn't have to conduct
three or four master calendars, there weren't appeals and
motions to reopen, to remedy due process violations that
occurred in the first hearing, and the like. So, there are a
multiplicity of factors.
Ms. Lofgren. Thank you so much. The gentleman's time has
expired. I understand that Mr. Buck is next in order, but I
don't see his camera on. Mr. Buck, are you waiting? If not, we
will--
Mr. Tiffany. Madam Chair?
Ms. Lofgren. Yes.
Mr. Tiffany. Madam Chair, you can go to Mr. Biggs, if you
would like.
Ms. Lofgren. Okay. I will recognize Mr. Biggs for his
questions.
Mr. Biggs. Thank you, Madam Chair. I appreciate that. Madam
Chair, over the past year, I and many other Members of this
Committee have written to you and Chair Nadler requesting that
we have a hearing with Secretary Mayorkas, so that we can ask
him directly about the border crisis that he created.
We have yet to hear back from you, and I just want to give
a little flavor. At the Van Horn station just yesterday, they
only had four agents on duty in one shift. Three of them were
attending illegal aliens who were hospitalized. The fourth was
the only agent that was monitoring the border, not just the
line but also the interior that went there.
So, that is just one flavor. I have some videos. I am not
going to play those. Instead, Democrats on this Committee have
pushed tirelessly for amnesty for millions of illegal aliens.
This push for amnesty is one of the many factors that have led
millions of aliens to enter our country illegally. They believe
that if they get here President Biden will allow them to stay,
and Congressional Democrats will give them amnesty. I have been
down to the border, talked to people. That is what they tell
me.
Since January 2021, CBP has reported more than 1.7 million
encounters at the southwest border, and this number does not
include the hundreds of thousands of got-aways. According to
CBP, Yuma sector experienced a nearly 2,400 percent increase in
encounters during several months last year. The facts are
clear: There is a crisis at the southern border, and the Biden
Administration continues to ignore it.
This Committee should be conducting proper oversight, but
it is not, and the majority refuses to call Secretary Mayorkas
to testify. We are here today having a hearing that is very
similar to one that we did just a year ago. We should be having
a hearing with Secretary Mayorkas as the Witness, so that he
can answer questions from the Members of this Committee.
He has managed to testify before the House Homeland
Security Committee, the Senate Homeland Security and
Governmental Affairs Committee, the Senate Appropriations
Committee, the House Appropriations Committee, and the Senate
Judiciary Committee--some of these committees more than once.
We are the Committee of jurisdiction, and he hasn't been before
us.
Mr. McArthur--sorry, sorry, sorry. Mr. Arthur, will
changing the immigration court to article I court solve the
crisis at the southern border?
Mr. Arthur. It will not. The number of migrants who are
being apprehended down there is so large, you would also have
to double the size of the immigration court at this point to
address it.
Mr. Biggs. Mr. Arthur, the Immigration Nationality Act
requires DHS to detain aliens who enter the country illegally
while any potential claims for relief they may make are pending
before an immigration judge. Is that the law?
Mr. Arthur. That is section 235 of the INA. 235b, yes.
Mr. Biggs. Is DHS detaining aliens as required by law?
Mr. Arthur. No. Again, I reference the discovery in Texas
v. Biden, and I believe that they said it was 50,000-plus
individuals encountered at the southwest border who were
released in the month of December.
Mr. Biggs. They have been told to just simply check in, and
these are the 50,000 roughly that did not bother to check in at
all. Is that right?
Mr. Arthur. No. These are individuals who were apprehended.
This particular report doesn't list notices to report, which
would be that 60-day check in. We did have information that had
been handed over to Senator Johnson in the other, from
Secretary Mayorkas that indicated that I believe just short of
half of individuals who had been released on notices to report
had failed to check in.
Mr. Biggs. So, I am hearing troubling reports that DHS is
simply paroling agents--excuse me, paroling aliens into the
country instead of detaining them. Are these reports accurate?
Mr. Arthur. Yes. Actually, in the month of December, 18,270
migrants or individuals encountered at the southwest border
were paroled. On top of that, DHS released an additional 32,836
on their own recognizance.
Mr. Biggs. Is that the way parole is supposed to work,
according to the law?
Mr. Arthur. It is not. Parole, under section 212b(5) of the
INA is supposed to be on a case-by-case basis based on an
individual determination. Only for significant public benefit
or--I can't remember the other factor, but no, it is supposed
to be very narrowly provided.
Mr. Biggs. Are you familiar with Secretary Mayorkas'
directive to limit ISIS enforcement of immigration law?
Mr. Arthur. I am familiar with his September 30, 2021,
guidelines, yes.
Mr. Biggs. So, it has come to my attention there is about a
million aliens with final orders of removal on ISIS's non-
detain docket. What is happening? Is ISIS removing those
individuals?
Mr. Arthur. There are three priorities that are listed in
Secretary Mayorkas' memo--individuals who pose a risk to the
national security, spies, and terrorists; individuals who pose
a risk to public safety, and those are individuals with serious
criminal offenses; and the third one are threats to border
security, and those are individuals who enter the United States
illegally after November 1, 2020. I don't know why they picked
that date.
No, if they don't fit within one of those three categories,
they would not be priorities for enforcement action, which
would include even questioning, let alone removal.
Mr. Biggs. Thank you. My time has expired.
Ms. Lofgren. The gentleman's time has expired.
We will turn now to Ms. Jayapal.
Ms. Jayapal. Thank you, Madam Chair. Let me return our
hearing to the topic of the fairness in the immigration court
system. The mission of our immigration court system is to
(adjudicate immigration cases fairly, expeditiously, and
uniformly, interpreting and administering the Nation's
immigration laws.
However, unlike our civil and criminal court systems,
immigration courts aren't independent. They are housed within
the Department of Justice, and they are overseen by the
Attorney General, who can change the fundamental operations of
the court and the interpretation of laws and policies governing
people's access to justice and immigration benefits.
As Judge Tsankov pointed out in her responses to Chair
Nadler, having an independent court that is not subject to
political whims is basic for good governance and is bipartisan,
not partisan.
Ms. Stevens, in your experience monitoring the courts and
representing individuals, how does the design of the
immigration court system impact the functioning of the courts
and an individual's ability to pursue their case?
Ms. Stevens. Thank you much for that question,
Representative Jayapal. The immigration courts are housed
within the Department of Justice. When you go into a court, you
have the immigration judge sitting there, and you have DHS
counsel sitting on one side with their computer and their
telephone and their full big bin of cases, and on the other
side you have this one person trying to talk to all of them,
possibly with an interpreter, possibly not.
It feels, as you walk in, that even if they are represented
by counsel that DHS and the judge are there together, and you
are just kind of coming in. This really does impact the ability
of an individual to accept the judge's decision and leads to
additional motions to reopen, motions to reconsider, and
appeals, hoping that they finally will get an independent
arbiter, regardless of how good the immigration judge is.
Thank you.
Ms. Jayapal. Yes. It really hurts court efficiency when
people don't believe that they are getting a fair shake.
In the criminal justice system, everyone is provided an
attorney if they can't afford one. Ms. Grisez, as an
experienced pro-bono attorney, how would expanding appointed
counsel into the immigration system impact an individual's
access to justice?
Ms. Grisez. Thank you for that question, Representative
Jayapal. It would impact access to justice in a lot of ways,
and one of the big ways is starting before people would even
enter the courtroom.
Right now, the Office of Legal Access Programs within EOIR
does fund a legal orientation program, but it is not present in
all detention centers. It is not universal, and it doesn't
exist for non-detained people, and it doesn't exist for
children. There are groups of people that either find a lawyer
on their own or a pro-bono lawyer or they don't.
So, for your question, I like to think about what the
immigration system would look like for pro se people, where
everyone would have access to LOP, everyone would have a
lawyer, people would understand what the charges against them
are, what has to happen at a master calendar with pleadings,
what is the impact of the concessions they make or the
applications for relief that they indicate they are going to
file, and that there would be predictability from one hearing
to the next on what they would expect.
If an objection is made on the record, it is preserved for
the ruling, and a ruling made by one judge would carry over to
another judge. It is understanding, knowing decisions, respect
for the process, and ability to accept the decision even if it
is negative.
Ms. Jayapal. Well, let's
Ms. Grisez. I am sorry.
Ms. Jayapal. No. Let's go to that, actually, because I
think you are pointing out that it is not just success in
receiving immigration relief, but we have seen in New York City
where the Vera project has provided universal counsel to
detained individuals, that when people have competent counsel
and understand that they are not eligible for benefits under
U.S. law, they are much more likely to accept removal as well.
Let me ask you to respond to that point that you were just
beginning on.
Ms. Grisez. Yes.
Ms. Jayapal. Would you agree that expanded counsel--access
to counsel could actually help improve court efficiency?
Ms. Grisez. Yes. I can give you one good example. A lawyer
in my firm was appointed to represent someone at the 9th
Circuit, by the 9th Circuit pro-bono panel, the first time the
individual ever had a lawyer. They were persisting from the
immigration court to the BIA to the circuit in asserting a
legal claim that was based on a fact but didn't influence his
eligibility for relief.
Once he got a lawyer who told him, ``Your claim is not
going to work, it is not allowed under the statute, you are
going to stay detained through the whole 9th Circuit process,
and you are going to lose,'' he dissolved his claim, accepted
deportation, and left. That could have happened years earlier
if he got a lawyer earlier in the process.
Ms. Lofgren. The gentlelady's time has expired.
Ms. Jayapal. Madam Chair, I do have a unanimous consent
request to enter into the record, a September 2016 report by
the American Immigration Council, Access to Counsel in
Immigration Court; and a 2017 report by the Vera Institute of
Justice evaluating the impact of legal representation on family
and community unity.
Ms. Lofgren. Without objection, those will be entered into
the record.
[The information follows:]
MS. JAYAPAL FOR THE RECORD
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Ms. Lofgren. I see Mr. Buck, who is now recognized for his
questions. I think you are muted, Ken.
Mr. Buck. Thank you. My constituents wish I would stay that
way sometimes, but I appreciate the warning.
Mr. Arthur, I am going to direct my questions to you. I am,
obviously, concerned about the folks that are using the asylum
process as an excuse, but I wanted to get your thoughts on
those that are actually coming to this country with legitimate
asylum claims and the backlog that they have to go through to
be heard in this process.
So, it just seems to me that when we have a lax system
where we are allowing people to be released on their own
recognizance basically, and come back on their own word, we
have this tremendous backlog. The problem is that when someone
has a legitimate asylum claim, they are in limbo until that
claim is decided in their favor, and then they are given legal
status and they can actually try to make a life for themselves
in this country.
So, your thoughts on the effects of just basically an open
door policy for folks to use asylum as an excuse to get in.
Mr. Arthur. Yeah. Thank you for that, Mr. Buck, because
this is one of those subjects that doesn't get discussed
enough. Between Fiscal Years 2008 and Fiscal Year 2019, fourth
quarter, about 83 percent of all migrants apprehended at the
border who claimed a credible fear if returned were found to
have a credible fear. At the end of the day, only about 14
percent of that 83 percent--I am sorry, 17 percent of that 83
percent actually received asylum.
The focus in the system really needs to be on that 17
percent of individuals who are found to have credible fear, so
that we can adjudicate their asylum quickly. It is very
important to our system of justice for a variety of reasons,
and it goes to who we are as a people as well.
If you are granted asylum, you can start to put your life
in order. You can start to put down roots in the United States.
More importantly, or as importantly, you can also petition for
your family Members who are abroad. It is not a big surprise--
it is actually quite logical, unfortunately--that individuals
who are political dissidents, for example, their family Members
will also be threatened.
So, the more quickly that we can grant them asylum, the
more quickly we can get those family Members out of harm's way.
So, absolutely, getting rid of the bad cases and getting to the
good cases is absolutely crucial.
Mr. Buck. Well, one of the things I want to complement you
and your organization for is it is really important that when
we have legitimate asylum cases that we welcome people to this
country, that we are a compassionate country, and we should
demonstrate that across the world. One of the ways we
distinguish ourselves from our adversaries, like China, Russia,
Iran, and other countries, is we are good people. We are a
government and a people that want to make sure that we show our
humanity and our values.
So, the asylum system is important, and it is important
that we get it right and it doesn't get clogged up with people
who are coming here for economic reasons. They want to jump the
line. They don't want to wait their turn for various types of
visas, and they actually hurt the process for those that are
seeking asylum.
The Center for Immigration Studies has it right in a lot of
ways when it talks about the fact that we don't want to have as
broad immigration as we have right now, but we want to make
sure that we are more welcoming to those who are coming to this
country for legitimate reasons and really should be welcomed by
the people of the United States. I appreciate your stand on
that.
Has there been anything else that you want to comment on,
other questions that were asked that you didn't have a chance
to respond to?
Mr. Arthur. Thank you for that, Mr. Buck. As I listened to
my colleagues, my former colleague Judge Tsankov, and to Ms.
Stevens and Ms. Grisez, one of the things that I really heard
was that a lot of the issues that we are talking about are
administrative issues. We need to make sure that cases are done
quickly. We need to make sure that the electronic filing system
is good, and that actually goes to the question that you asked,
because one of the issues with asylum is asylum fraud.
John Morton, who had previously been the Director of ICE,
actually did a massive case involving something called
Operation Jakarta in which individuals from Indonesia falsely
claimed asylum. I think it was more than 1,000 individuals that
were involved.
We want to get the bad cases out of the system, and we want
to cut down on them. Electronic filing will enable that because
it will enable USCIS EOIR to match up very similar claims in
which people are basically just submitting the same claim over
and over again hoping to get asylum.
Mr. Buck. My time has expired. I appreciate your answer,
and I want to yield back.
Mr. Arthur. Thank you, Mr. Buck.
Ms. Lofgren. Thank you very much, Congressman Buck.
I would now like to yield to Mr. Correa for his questions.
Mr. Correa. Thank you, Chair Lofgren. First, let me say
thank you very much for this hearing. Very important. As I
listened to the discussion of immigration today, I would say
this issue is not about immigrants, but rather it is about
Americans and our history.
Judicial discretion independence--I have heard a lot of
discussion today about foreign policy also viewed in the
context of refugees, people coming into the country. I want to
focus a little bit different, and that is the folks that have
been here in this country that have made a life, that have
become good taxpayers, good, productive Members of our society,
that are parents to American citizens, people that are front-
line workers right now.
I am going to ask each of our Witnesses here today a quick
question, and I hope you can answer it. One of the issues that
is very near to my heart right now are deported veterans,
people with a green card that join the military, go off and
fight, come back after God knows how many tours of duty, after
seeing God knows how many things they shouldn't see happen to
their fellow soldiers, they come back and same thing happens to
them that happens to a lot of other soldiers--PTSD, they go to
a bar, get drunk, get in a fight, get a conviction and
deportation.
Under judicial independence or discretion, Ms. Stevens,
would these deported veterans possibly have a shot to stay in
the U.S., if a judge was to weigh the merits of a soldier
versus a mistake?
Ms. Stevens. Thank you for that question, Representative
Correa. That is a very interesting aspect. The immigration laws
are not kind to people who have convictions.
Mr. Correa. Even a soldier who has fought for this country,
laid it all on the line, who has done more than most American
citizens probably have.
Ms. Stevens. He would have had the opportunity, while he
was a soldier, to apply for naturalization, if possible.
The immigration judges do have some ability under the
immigration laws to use some discretion.
Mr. Correa. So, there is some remedy there.
Ms. Stevens. There is some ability to use discretion under
the current system.
Mr. Correa. Ms. Grisez. Ms. Grisez.
Ms. Grisez. Well, Representative Correa, thank you for the
question. The move to an article I court wouldn't solve the
problem that you point out, which is a real and serious
problem. The ABA has other policy on the restoration of
discretion to immigration judges of broader--
Mr. Correa. Thank you. Ms. Tsankov. Ms. Tsankov, would
there--
Ms. Tsankov. The one thing that I would say is if those
individuals are lawful, permanent residents, depending upon the
nature of the crime, if it is a brawl, then potentially they
could apply for some sort of cancellation or removal or some
other form of relief.
Mr. Correa. So, judicial discretion independence here would
or wouldn't help them? Maybe. Maybe not.
Ms. Tsankov. It just depends. We just--
Mr. Correa. Mr. Arthur. Mr. Arthur.
Mr. Arthur. Yeah. Thank you, Representative. Actually, for
what it is worth, I advised Attorney General Janet Reno on not
this case but--
Mr. Correa. Yes or no. Yes or no. Help me out here. I am--
Mr. Arthur. No, it wouldn't. Once the decision is made to
put the person--
Mr. Correa. So, there wouldn't be any amnesty for these
immigrants under this proposed independence of the courts.
Mr. Arthur. There would be no latitude by which the court
could not Rule that way, sir.
Mr. Correa. Thank you very much.
Coming back to the issue of foreign policy, Ms. Stevens,
how would these independent courts affect our Nation's foreign
policy?
Ms. Stevens. Thank you very much for that question, sir.
The establishment of an independent article I court would not
remove the ability of the executive to make decisions on
foreign policy, and policy decisions is in the immigration
context. The visa system, everything else, that is not part of
the things that immigration courts take a look at. They are
only looking at deportation.
So, authority over visa issuance, admissions into the
United States, national security, and related cases, is not
going to be removed from the executive. That actually would be
well within the power of DHS, and DHS is the party before the
immigration court and can bring those concerns to any
independent immigration judge.
Thank you.
Mr. Correa. Chairwoman Lofgren, I have so many other issues
I want to talk about, but it seems like my time is running out.
So, with 12 seconds left, I yield the remainder of my time.
Thank you.
Ms. Lofgren. The gentleman yields back.
I would like to recognize the gentlelady from Texas, Ms.
Escobar, for her questions.
Ms. Escobar. Thank you, Madam Chair. I appreciate the
opportunity to have this conversation with our Subcommittee,
and many thanks to the panelists who have shared their advocacy
and their recommendations with us.
I know some of my colleagues love to say that they have
been to the border. I am the only representative on this
Committee who actually lives in and represents a border
community. While some of my colleagues want to convince the
American people that we can address our immigration challenges
simply by hardening the border and utilizing cruelty as a
policy, the truth is that the prior Administration tried that
and it only made things worse. That, and decades of
congressional inaction, have created the current situation we
face today.
What we need is a holistic approach, significant and
multifaceted reform, and we need some honesty in this
conversation. Honesty, so that we can tackle our great
challenges strategically and together.
We know that housing our immigration court and the
Department of Justice means that our immigration system is
subject to the political will of presidential Administrations.
As detailed in today's hearing, at best, this creates an
inconsistent immigration system with unreliable efficiency,
accessibility, and fairness.
Under the worst-case scenario, as we saw during the prior
Administration, it leaves room for highly partisan forces to
try to use the courts to execute a political agenda.
Our immigration system is broken. While creating an
independent immigration court will not solve everything, it is
a key component to this multifaceted approach, multifaceted
reform, that is needed. It will ensure that our courts are non-
partial, well-staffed, and out from under the influence of
whichever party happens to be in the White House.
Refusing to establish an independent immigration court will
result in us continuing to throw good money after bad while
backlogs pile up, applicants languish in massive lines or
incarceration, and families endure the uncertainty of their
future in the United States.
I would like to ask Ms. Tsankov, Ms. Stevens, and Ms.
Grisez, how would creating an article I court allow it to
address the backlog of non-detained cases? If all of you have a
response to that, that is great. If only a couple of you or one
of you has a response, I am interested in it, please.
Ms. Tsankov. I am happy to give it a go. Under an article I
structure, that intense, politically driven docket shuffling,
which furthers shifting priorities, and which change from one
Administration to the next, that would be avoided.
An independent court would enable the judges to ensure that
they control their dockets and that court resources are
prioritized. That goes for making sure there are enough
interpreters, nimble and agile IT systems, appropriate staffing
levels, and all those factors that we need to ensure that we
have well-resourced courts that can address that backlog.
Ms. Escobar. Thank you.
Ms. Stevens?
Ms. Stevens. Thank you for that question. The FBA believes
that allowing the judges to control their own dockets, and
other administrative efficiencies, will help decrease that. The
most important thing is going to be increasing respect for the
decisions and diminishing the number of times that an
immigration judge has to look at the case by decreasing the
number of appeals.
Thank you.
Ms. Escobar. Ms. Grisez?
Ms. Grisez. Yes. One thing that I would say is that
limiting the constantly changing priorities and creating
separate dockets for separate populations, pushing other cases
to the back burner, and moving judges from one docket to the
other, and disrupting the reliability of prior rulings and
causing cases to be revisited, would all improve the backlog
situation.
As we have heard before, cutting down on appeals and
cutting down on motions to reopen, after some of these errors
infect the trial-level proceedings, would be a big contribution
to backlog reduction.
Ms. Escobar. I appreciate that. I have only got about 40
seconds left. Ms. Tsankov, would making IJs and the BIA an
article I court allow it to be more innovative?
Ms. Tsankov. Absolutely. Once the judges and the board have
control over their resources, they can be more nimble. They can
purchase the types of resources that will enable them to
efficiently manage their dockets.
Ms. Escobar. Thank you so much. The point of these
questions is to demonstrate that we don't have to keep throwing
good money after bad. If we create these reforms, we actually
can create a more efficient system, a fairer system, and deal
with those backlogs that both parties--even my colleagues
across the aisle--would like to solve.
Thank you so much, Madam Chair. I yield back.
Ms. Lofgren. Thank you.
Now, I recognize the other gentlelady from Texas, Ms.
Sheila Jackson Lee.
Ms. Jackson Lee. Thank you very much, Madam Chair. I am
traveling at this moment to the airport, but this is a very
important hearing and I want to be able to speak accordingly on
this very important issue, and to at least put my imprint on
what I think is a continuing rising crisis, because people are
speaking at each other, in particular, to those who believe
that the greatest crisis in America is because people are
fleeing oppression and want to seek a legal way of entering the
United States.
So, let me raise questions that I would appreciate
succinctly if our Witnesses could answer. One, in terms of
immigration court, what would that do to the level of
proficiency and expertise? So, my question is about, would
there be a superior level of understanding of immigration law
and a broader capacity for discretion and/or compassion?
Secondarily, venture to guess how many courts would we need
to open, and would we need to focus on areas like the Southern
District, which, as you know, is enormously bogged down in
immigration cases? Would you prioritize in the court, or would
there be a structure for asylum cases to be moved forward on
humanitarian and legal grounds?
I will start with those three questions, please, and how we
would design the court. To Mimi Tsankov and Elizabeth and
Karen, would you go forward, please, at this time? Certainly
Judge Arthur. Would you go forward, please, with those
questions?
Ms. Tsankov. So, if I understood those multiple questions
correctly, what you are trying to understand is, how can we
ensure that the matters that are pending on our dockets are
going to be addressed efficiently and with compassion. The
question about compassion is one that I believe underscores
every interaction by a judge with the parties appearing before
them.
There should never be a moment, no matter what the decision
is that is being issued, that doesn't reflect the humanity that
the judges know is at the core of our immigration system.
The second part of your question is, how would you do that
as a judge? How would you ensure that you are working on the
cases in an effective manner? I believe that if you, as the
judge, can control your docket, as an article I judge role
would give you that ability to do, you can prioritize the cases
in the manner that you think are going to meet the needs of
your docket and those parties that are appearing before you.
So, I do believe that that additional control that you
would have as a judge would give you the power to achieve some
of the goals that you are hoping to see in a new system. I
would like to pass it along to my other colleagues as well.
Ms. Stevens. Good afternoon, and thank you very much for
those questions, Representative Jackson Lee. The FBA believes
that moving the immigration courts to an article I system where
judges have at least a 15-year term will recruit people into
the system for adjudication that are more prepared to be
immigration judges, that have a better background in
immigration law, or in actually running a courtroom.
We believe that it will help with better training and more
focused training. We also believe that a court system will be
far more agile in being able to open up new courts in areas
that need an additional court or judges. That is part of the
whole system that was created in our model bill and could
easily be imported into any piece of legislation.
Thank you. I accede to Ms. Grisez.
Ms. Grisez. Thank you. Representative Jackson Lee, I would
say there are a number of ways where the--
Ms. Jackson Lee. If you could talk about asylum cases as
well. Thank you.
Ms. Grisez. Yeah. A number of ways where the article I
process would help, starting with the selection of judges,
trying to develop a more diverse pool and not leaning as
heavily as we historically have towards government lawyers, and
in particular ICE prosecutors, the tenure, as Ms. Stevens
talked about, is another important factor, and training.
You can't exactly teach compassion, but you can teach
opportunity to be heard and fairness and cultural competence.
So, in all those ways, I think article I would help.
Asylum prioritization, that is a question for the judges
and their ability to control their docket, but I would mention
again the ABA's recommendation that some asylum cases could and
should be diverted to the affirmative asylum system as some of
the children's cases are now, to reduce some of that workload
that currently lands in the immigration court.
Ms. Lofgren. The gentlelady's time has expired.
We will turn now to Ms. Scanlon for her questions.
Ms. Jackson Lee. Thank you.
Ms. Scanlon. Thank you. Sorry. Doing this from the road.
Well, before coming to Congress, I was pro-bono counsel for
a large national law firm like Ms. Grisez, and so I spent
decades working on immigration cases and with our immigration
system.
So, I know the system has been underfunded and
dysfunctional for decades, but we have seen actions by
particularly the most recent Administration, but by successive
Administrations, that have politicized and further dismantled
our immigration system and compounded the preexisting problems.
Nowhere has that been more true than in efforts to eliminate
due process protections and undermine the independence of our
immigration courts.
The Trump Department of Justice implemented rules to
restrict immigration judges' independent authority, imposed
very strict and most would say unreasonable case quotas, and
circumvented hiring processes to appoint more partisan judges
and took away cases from judges they felt were too sympathetic
to immigrants appearing before them.
Although the U.S. has always derived its moral authority
and its international stature from being a Nation of laws,
these efforts to constrain immigration judges really impacted
their ability to apply the law and to ensure due process.
Nowhere was this politicization more evident than when the
Sessions Department of Justice intervened in a deportation base
before an immigration judge in Philadelphia, which I represent.
That judge ordered a short extension to ensure that a teenager
who was facing deportation could be located and notified of his
opportunity to have his day in court.
The Sessions DOJ reassigned the case to a judge who
promptly ordered deportation without ever locating the child or
allowing him to present his case. So, while this may seem an
extreme event, it is important that we insulate our legal
proceedings from the corrosive effects of executive overreach.
So, I am really concerned about how the article I proposal
could help insulate our immigration courts from such
politicization.
Ms. Grisez, I know you have had a great deal of experience
with the courts over time. Can you provide some examples of how
this executive interference with judicial independence has
impacted the immigration judges' ability to comply with the
Rule of law and make impartial adjudications?
Ms. Grisez. Well, thank you Representative Scanlon. One big
place where I see this is in the need for speed, or a report
that some of the Members may be aware of that was prepared by
Appleseed some years ago called Assembly Line Injustice, right?
The idea that you have to go quickly, quickly, quickly,
evaluations based on case completion numbers, case processing
times, and nobody is reviewing immigration judges on the
quality of their decision-making or their reasoning. So, that
is one big area.
Another place where I would say the move to the article I
would help would be in improving standards for what the
immigration judges need to do in the conduct of their cases.
I can say, not in cases I have represented but in cases I
have witnessed, I read a transcript from someone seeking
representation where the judge asked the respondent in
proceedings, besides your name and so forth, ``Were your
parents born in the United States?'' Then, the answer was no,
and then moved to a deportation order. Then dictated a decision
on the record that said, ``I conducted a full colloquy with the
respondent about all available forms of relief.'' Okay. That
just isn't right.
Contrast it with the judge that I have seen when an
unrepresented person asked for a continuance to get a lawyer,
the judge taking plenty of time to make sure that unrepresented
respondent knew that by taking that continuance and pursuing
his right to counsel, he would lose the ability to get a work
permit by stopping the clock.
I think that a move to article I, more standardization in
hiring and training, would help smooth that out and lead to
more even, more predictable results.
Ms. Scanlon. Thank you. I mean, we have certainly seen the
gross disparities in results in terms of the percentage of
folks who have asylum granted or not. Certainly it would be
easy to meet your docket requirements if you say denying 90 or
91 percent of the claims in front of you--the national average
is far below that--about 50 percent of people are granted,
because they are actually illegal claims.
Madam Chair, just before my time expires, I would seek
unanimous consent to introduce into the record an article from
The Philadelphia Inquirer dated August 1, 2018, entitled ``In
Philly Immigration Court, a Judge is Replaced After Delaying
Man's Deportation.''
Ms. Lofgren. Without objection, that is made a part of the
record.
[The information follows:]
MS. SCANLON FOR THE RECORD
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Ms. Scanlon. Thank you. I yield back.
Ms. Lofgren. The gentlelady yields back.
We have recognized all the Members who have had an
opportunity to attend this hearing. I would like to ask
unanimous consent to put statements from 24 organizations into
the record. Without objection, that is so ordered.
[The information follows:]
MS. LOFGREN FOR THE RECORD
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Ms. Lofgren. I would like to note that we have 5
legislative days to submit additional written questions for the
Witnesses or to submit additional material for the record, and
that is without objection.
I would like to thank, once again, each one of our
Witnesses who presented testimony and who provided written
testimony. A lot of people don't realize that Witnesses are
volunteers, and they do this just to help the Congress find its
way and to hear diverse points of view. So, we do appreciate
each one of you taking the time to provide that information as
well as all the Members who participated.
Seeing no further business before the Committee, without
objection, this hearing is now adjourned.
[Whereupon, at 3:41 p.m., the Subcommittee was adjourned.]
APPENDIX
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