[House Hearing, 110 Congress]
[From the U.S. Government Publishing Office]
EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
=======================================================================
HEARING
BEFORE THE
SUBCOMMITTEE ON IMMIGRATION,
CITIZENSHIP, REFUGEES, BORDER SECURITY,
AND INTERNATIONAL LAW
OF THE
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED TENTH CONGRESS
SECOND SESSION
__________
SEPTEMBER 23, 2008
__________
Serial No. 110-211
__________
Printed for the use of the Committee on the Judiciary
Available via the World Wide Web: http://judiciary.house.gov
U.S. GOVERNMENT PRINTING OFFICE
44-611 PDF WASHINGTON : 2009
----------------------------------------------------------------------
For sale by the Superintendent of Documents, U.S. Government Printing
Office Internet: bookstore.gpo.gov Phone: toll free(866) 512-1800; DC
area (202) 512-1800 Fax: (202) 512-2104 Mail: Stop IDCC,
Washington, DC 20402-0001
COMMITTEE ON THE JUDICIARY
JOHN CONYERS, Jr., Michigan, Chairman
HOWARD L. BERMAN, California LAMAR SMITH, Texas
RICK BOUCHER, Virginia F. JAMES SENSENBRENNER, Jr.,
JERROLD NADLER, New York Wisconsin
ROBERT C. ``BOBBY'' SCOTT, Virginia HOWARD COBLE, North Carolina
MELVIN L. WATT, North Carolina ELTON GALLEGLY, California
ZOE LOFGREN, California BOB GOODLATTE, Virginia
SHEILA JACKSON LEE, Texas STEVE CHABOT, Ohio
MAXINE WATERS, California DANIEL E. LUNGREN, California
WILLIAM D. DELAHUNT, Massachusetts CHRIS CANNON, Utah
ROBERT WEXLER, Florida RIC KELLER, Florida
LINDA T. SANCHEZ, California DARRELL ISSA, California
STEVE COHEN, Tennessee MIKE PENCE, Indiana
HANK JOHNSON, Georgia J. RANDY FORBES, Virginia
BETTY SUTTON, Ohio STEVE KING, Iowa
LUIS V. GUTIERREZ, Illinois TOM FEENEY, Florida
BRAD SHERMAN, California TRENT FRANKS, Arizona
TAMMY BALDWIN, Wisconsin LOUIE GOHMERT, Texas
ANTHONY D. WEINER, New York JIM JORDAN, Ohio
ADAM B. SCHIFF, California
ARTUR DAVIS, Alabama
DEBBIE WASSERMAN SCHULTZ, Florida
KEITH ELLISON, Minnesota
Perry Apelbaum, Staff Director and Chief Counsel
Sean McLaughlin, Minority Chief of Staff and General Counsel
------
Subcommittee on Immigration, Citizenship, Refugees,
Border Security, and International Law
ZOE LOFGREN, California, Chairwoman
LUIS V. GUTIERREZ, Illinois STEVE KING, Iowa
HOWARD L. BERMAN, California ELTON GALLEGLY, California
SHEILA JACKSON LEE, Texas BOB GOODLATTE, Virginia
MAXINE WATERS, California DANIEL E. LUNGREN, California
WILLIAM D. DELAHUNT, Massachusetts J. RANDY FORBES, Virginia
LINDA T. SANCHEZ, California LOUIE GOHMERT, Texas
ARTUR DAVIS, Alabama
KEITH ELLISON, Minnesota
ANTHONY D. WEINER, New York
Ur Mendoza Jaddou, Chief Counsel
George Fishman, Minority Counsel
C O N T E N T S
----------
SEPTEMBER 23, 2008
Page
OPENING STATEMENTS
The Honorable Zoe Lofgren, a Representative in Congress from the
State of California, and Chairwoman, Subcommittee on
Immigration, Citizenship, Refugees, Border Security, and
International Law.............................................. 1
The Honorable Steve King, a Representative in Congress from the
State of Iowa, and Ranking Member, Subcommittee on Immigration,
Citizenship, Refugees, Border Security, and International Law.. 2
The Honorable John Conyers, Jr., a Representative in Congress
from the State of Michigan, and Chairman, Committee on the
Judiciary...................................................... 4
The Honorable Lamar Smith, a Representative in Congress from the
State of Texas, and Ranking Member, Committee on the Judiciary. 5
WITNESSES
Mr. Kevin A. Ohlson, Director, Executive Office for Immigration
Review, U.S. Department of Justice
Oral Testimony................................................. 7
Prepared Statement............................................. 9
Mr. Lee Lofthus, Assistant Attorney General for Administration,
U.S. Department of Justice
Oral Testimony................................................. 13
Ms. Susan B. Long, Co-Director, Transactional Records Access
Clearinghouse (TRAC)
Oral Testimony................................................. 28
Prepared Statement............................................. 30
Mr. Stephen H. Legomsky, The John S. Lehmann University
Professor, Washington University School of Law
Oral Testimony................................................. 40
Prepared Statement............................................. 41
APPENDIX
Prepared Statement of the Honorable Zoe Lofgren, a Representative
in Congress from the State of California, and Chairwoman,
Subcommittee on Immigration, Citizenship, Refugees, Border
Security, and International Law................................ 51
Prepared Statement of the Honorable John Conyers, Jr., a
Representative in Congress from the State of Michigan, and
Chairman, Committee on the Judiciary........................... 52
Prepared Statement of Mary M. Schroeder, Judge, United States
Court of Appeals, Ninth Circuit................................ 53
Prepared Statement of Dennis Jacobs, Chief Judge, United States
Court of Appeals, Second Circuit............................... 55
EXECUTIVE OFFICE FOR
IMMIGRATION REVIEW
----------
TUESDAY, SEPTEMBER 23, 2008
House of Representatives,
Subcommittee on Immigration, Citizenship,
Refugees, Border Security, and International Law
Committee on the Judiciary,
Washington, DC.
The Subcommittee met, pursuant to notice, at 10:17 a.m., in
room 2141, Rayburn House Office Building, the Honorable Zoe
Lofgren (Chairwoman of the Subcommittee) presiding.
Present: Representatives Conyers, Lofgren, Sanchez, Smith,
and King.
Staff Present: Traci Hong, Majority Counsel; George
Fishman; Minority Counsel; and Andres Jimenez, Majority
Professional Staff Member
Ms. Lofgren. The Ranking Member having arrived, the hearing
of the Subcommittee on Immigration, Citizenship, Refugees,
Border Security, and International Law is now able to come to
order.
On July 28, 2008, the Department of Justice's Office of
Professional Responsibility and the Office of the Inspector
General (I.G.) issued a report showing that three high-level
Department of Justice officials--Kyle Sampson, Jan Williams,
and Monica Goodling--violated Department of Justice policy and
Federal law by considering political or ideological
affiliations in soliciting and evaluating candidates for
immigration judges (I.J.), which are Schedule A career
positions, not political appointments.
``Further''--and this is a quote of the I.G.--``the
evidence demonstrates that their violations were not isolated
instances but were systematic in nature.''
Based on this report, it appears Republicans credentials,
rather than knowledge of and experience in immigration law,
became the main criteria for hiring immigration judges and
members of the Board of Immigration Appeals (BIA). All three
named officials only considered candidates referred to them by
the White House, Republican Members of Congress, Republican
political appointees, the Federalist Society, the Republican
National Lawyers Association, and individuals with Republican
Party affiliations, while ignoring candidates sent to them by
the Executive Office for Immigration Review.
This politicization of EOIR occurred at a time when
immigration courts and the Board of Immigration Appeals were
also suffering from systemic problems created by former
Attorney General Ashcroft's streamlining plan. By 2002, then-
Attorney General John Ashcroft promulgated a rule that
established--and this is a quote--``the primacy of the
streamlining system for the majority of the cases.'' The 2002
streamlining regulation made single-member decisions and
affirmance without opinions the norm, rather than the
exception.
At the same time, Attorney General Ashcroft also reduced
the size of the BIA from 23 members to 11. Several analyses of
the eliminated BIA members found that the selections had been
ideological, and those with voting records most favorable to
applicants or appellants were the ones chosen for reassignment.
The result of the Ashcroft streamlining plan was a
significant increase in the number of BIA decisions appealed to
the Federal courts of appeal. The courts of appeal not only
reversed the BIA at a higher rate, but also added
uncharacteristically scathing comments about the poor quality
of I.J. and BIA decisions.
Moreover, even as the Administration and Congress dedicated
more resources to the arrest and detention of deportable
noncitizens, they failed to commit a similar level of resources
to the immigration courts, which are responsible for
determining whether certain noncitizens are, in fact,
deportable.
The failure to devote adequate resources to the immigration
courts has led to increased caseloads at all levels of the
removal process: at the immigration courts, the BIA, and, of
course, the Federal courts. EOIR has been too long ignored, and
the result has been politicization of the immigration courts,
so-called streamlining, and inadequate resources.
Now, I look forward to hearing from our witnesses today so
we may begin to address these very serious problems in the
administrative removal process, which is really at the heart of
our immigration enforcement system.
I would note that we have received informal input from the
Federal circuits who are alarmed at the increased volume of
appeals that is gridlocking the Federal courts and having an
adverse impact on civil litigation generally. And they really
believe it is a product of dysfunction in the immigration
courts and the BIA.
So wherever one lies on the immigration debate, I think it
is certainly not in the national interest to gridlock the
Federal appellate courts with matters that should be
appropriately decided at a lower level and are not being
properly decided.
I will finally add that when then-Attorney General Ashcroft
made his decisions, many of us, including myself, on the
Judiciary Committee warned that it would be a disastrous
result. Our comments were ignored. And once again, I am mindful
of how unsatisfactory are the words, ``I told you so.''
So, at this point, I would recognize our distinguished
Ranking minority Member, Steve King, for any opening statement
he may have.
Mr. King. Thank you, Madam Chair.
And I welcome the witnesses today.
Politics in the hiring process at an executive agency is
nothing new. However, it should not be done in violation of the
law. The inspector general has already issued its report, which
found some improper hiring practices at the Department of
Justice.
Instead of focusing on the conduct of a few former
Department of Justice officials, I hope this hearing proves to
be truly useful by shedding light on what we, in Congress, can
do to ensure a credible and efficient immigration litigation
system.
In 2007, the roughly 220 U.S. immigration judges heard
328,425 cases, and the Board of Immigration Appeals completed
35,393 cases. They should be provided with the resources needed
to perform their jobs effectively now that our immigration laws
are being enforced more vigorously--not as vigorously as I
would like, however. Anything less leaves EOIR open to
criticism.
In the same vein, Congress should work to implement
immigration policy that reduces the workload of immigration
courts instead of policy that increases their workload. It does
no good to vilify an entire group of immigration judges and
Board of Immigration Appeals members simply because a few were
hired after their political affiliation was determined.
Unfortunately, hiring scandals have occurred in the past.
In 1995, during the Clinton administration, White males were
blatantly discriminated against in the hiring process for
immigration judges. In fact, plaintiffs were certified as a
class of ``White, male applicants for employment not selected
as immigration judges during 1994 and 1995.'' And they won
their case against DOJ.
It makes no more sense to impugn immigration judges hired
during the Bush administration than to impugn those hired
during the Clinton administration.
In an effort to ensure quality decisions in the immigration
litigation system, the Executive Office for Immigration Review
is implementing 22 directives announced by the Department of
Justice in 2006.
In recent years, the Board of Immigration Appeals has come
under fire from some Federal courts for its use of affirmances
without opinion, AWOs, which are one-sentence decisions
affirming the immigration judge's ruling. Use of AWOs became
popular in an effort to streamline the overwhelming number of
immigration cases, but critics think that the AWOs show a lack
of diligence and willingness to examine all of the facts on the
part of the immigration judges. Others disagree.
In 2006, the Second Circuit held that, ``The BIA's members
and the dedicated corps of immigration judges under the board's
supervision should be applauded for their continuing diligence,
their integrity and, as is shown in the records of nearly all
immigration cases in this court, their earnest desire to reach
and equitable results under an almost overwhelmingly complex
legal regime.''
And I will submit that the fear of being seen as too harsh
toward alien litigants by the Federal courts, Members of
Congress and nongovernmental agencies, that fear may have
caused some immigration judges and BIA members to bend the law
in favor of illegal immigrants and criminal aliens.
We have witnessed this before. It is why Congress took
action in 1996 to reduce the amount of discretion held by
immigration judges. Maybe we would have a fairer process for
the American people if ICE could appeal EOIR decisions made in
favor of illegal immigrants and criminal aliens.
The reversal rates show that most of the criticism is
unfair. So far this year, 87 percent of BIA decisions that have
been appealed were affirmed by Federal courts. The affirmance
rates are even higher in the circuits with large numbers of
cases. For instance, this year, the Ninth Circuit, large
numbers of cases, has affirmed 81 percent of the BIA appeals.
I look forward to the testimony of the witnesses here today
to give this Congress guidance on changes that may be warranted
to ensure fair and equitable disposition of immigration cases.
I think we need to, though, advocate for a balance here and
not overreact to a sample. Because the sample of what we have
seen before in this hearing and some of the decisions and the
advocacy that comes from the other side I think doesn't reflect
the whole. So I urge our restraint in overreacting to something
here.
I am looking forward to the testimony of the witnesses.
And I yield back the balance of my time.
Ms. Lofgren. The Chairman of the House Judiciary Committee,
Congressman Conyers, is recognized if he wishes to give an
opening statement.
Mr. Conyers. Thank you, Madam Chairwoman.
I welcome the witnesses. And I want to report to you that
this is the first oversight hearing on what you gentlemen have
been supposed to have been doing for a long time. So a lot of
the problem is that we in Congress haven't been doing our job.
When the cat is away, the mice will play.
So I want to just read you what the inspector general's
report said, the part that really criticizes you. ``The
evidence detailed above in the report demonstrates that Kyle
Sampson, Jan Williams, Monica Goodling each violated Department
of Justice policy and Federal law by considering political or
ideological affiliations in soliciting and evaluating
candidates for immigration judges, which are Schedule A career
positions, not political appointments.''
Now, I will insert my comments in here. There were
political appointments made en masse. I am not talking about a
couple political appointments; I am talking about a lot of
them. And we found out about that now. And we regret it very
much, because you have some explaining to do here today about
that.
And then the inspector general goes on to say, ``Further,
the evidence demonstrates that their violations were not
isolated instances, but were systemic in nature.''
``The evidence demonstrates further''--and I am quoting--
``that Goodling violated department policy and Federal law by
considering political or ideological affiliations in selecting
candidates even for the Board of Immigration Appeals.''
So we hope you will find time, in your opening statements
and other opportunities, to help us understand the depth of
what went wrong and how that happened.
Now, I know one of the excuses coming forward is that we
need more money in the budget to hire more judges. And, of
course, that is a function of the executive branch, as well as
the Congress, not owning up to what the reality of this thing
is. How can 215 immigration judges be expected to handle a
caseload of 300,000 cases a year?
And then, of course, to make insult to injury, the
reduction of the Board of Immigration Appeals from 23 members
to 11 members. What do you think that did? A crushing workload,
an appellate mess, that has spilled over into the circuit
courts as well.
So if you notice some unhappiness in my presentation about
what you have been doing, you are absolutely right. This is
awful. And of course we plan to get to the bottom of it.
And I hope that you feel free to comment on anything I have
said here at the hearing or subsequently in writing afterward.
Thank you, Madam Chairwoman.
Ms. Lofgren. Thank you, Mr. Chairman.
I would now invite the Ranking Member of the full
Committee, Congressman Smith, to deliver any opening statement.
Mr. Smith. Is that an open invitation?
Ms. Lofgren. If you have an opening statement, now would be
the time.
Mr. Smith. Thank you, Madam Chair.
I, too, was disappointed with the finding of the July 2008
inspector general's report that senior Justice Department
officials violated civil service laws in the hiring of several
career employees, detailees and immigration judges.
The Justice Department is responsible for enforcing the
law, so it is regrettable when its officials abuse their
positions of authority and violate the laws that they had
promised to uphold.
While the findings in the report are troubling, we must be
sure not to let the actions of a few undermine the good work of
the many. On the whole, immigration judges and members of the
Board of Immigration Appeals carry out their duties in a highly
professional manner. In fact, less than 10 percent of cases
decided by immigration judges are appealed to the Board of
Immigration Appeals. Understanding that immigration judges hear
over 300,000 cases per year, such a low rate of appeals is
impressive.
I am pleased that, in response to the inspector general's
report, the attorney general has already taken steps to guard
against future abuses. And the mechanisms in place since April
2007 help to ensure a lack of political influence in the hiring
process.
There is no government agency that is not deserving of at
least legitimate criticism. The important thing is whether the
criticism leads to constructive changes being implemented to
address these concerns.
In August 2006, then-Attorney General Gonzales announced 22
new directives for the Executive Office of Immigration Review,
and EOIR has made significant positive strides in implementing
those directives.
For example, newly appointed immigration judges and Board
of Immigration Appeals members must pass a test on immigration
law. In addition, the judges and board members are trained
periodically on immigration subjects such as asylum
adjudication and international religious freedom.
Mechanisms have been put into place to notify EOIR
management about any inappropriate conduct by immigration
judges. And the Department of Justice has proposed a new
regulation to increase the ability of judges to discipline
attorneys who file frivolous lawsuits and to provide sanctions
for gross misconduct on the part of counsel or litigants.
EOIR continues to make progress on the implementation of
those 22 directives, which will ensure a more streamlined and
effective immigration litigation system.
The number of immigration court cases in the United States
is on the rise, due, in part, to a long-overdue increase in
enforcement of our immigration laws. And Congress needs to
respond with additional funding to hire judges and support
staff to relieve the overwhelmed court system. This is just as
important as hiring additional Border Patrol agents.
However, more money is not the only answer. The number of
immigration cases will eventually decrease with a consistent
emphasis on immigration enforcement. If the laws against
illegal hiring and employment, there will be fewer jobs
available for illegal immigrants. There will be an increase in
the number of illegal immigrants returning to their home
countries on their own. There will be less of an incentive to
come here in the first place. Finally, of course, there will be
a decrease in the number of matters that come before the
immigration courts.
I thank you, Madam Chair, and I will yield back.
Ms. Lofgren. The gentleman yields back.
In the interest of proceeding to our witnesses and mindful
of our busy schedules, I would ask that other Members submit
their statements for the record within 5 legislative days. And,
without objection, all opening statements will be placed in the
record.
And, without objection, the Chair is authorized to declare
a recess of the hearing at any time.
Today we will hear from two panels of witnesses to help us
consider the important issues before us.
It is my pleasure to introduce Lee Lofthus. Mr. Lofthus was
appointed as assistant attorney general for administration in
December of 2006. His responsibilities include department-wide
financial reporting, budget formulation and execution,
accounting operations, asset forfeiture, fund operations,
support, procurement, and debt management support. He also
oversees department-wide facilities management, human
resources, business services and planning.
He has served in several financial management positions
during 20-plus years with the Department of Justice. He joined
the department in 1982, and since that time has held senior
management positions overseeing financial operations, financial
policy, reportings and systems. He received his MBA in 1982
from the American University in Washington, D.C.
I would also like to introduce Kevin Ohlson. Mr. Ohlson has
served as director of the Executive Office for Immigration
Review, known as EOIR in the immigration world, since September
2007. Before being appointed director, Mr. Ohlson also served
as the deputy director of EOIR and as a member of the Board of
Immigration Appeals.
Mr. Ohlson is a graduate of Washington and Jefferson
College and the University of Virginia School of Law. Mr.
Ohlson is a member of the bar in both Virginia and the District
of Columbia.
Upon his graduation from law schools, he was commissioned
as an officer in the U.S. Army, where he served as both a judge
advocate and as a paratrooper. In 1989, he was appointed as a
Federal prosecutor, but in 1990 he was recalled to active duty
and was awarded the Bronze Star for his actions overseas during
the Persian Gulf war.
As you may know, your written statements will be made part
of the record of this hearing in their entirety. We ask during
the testimony that you summarize your written testimony in 5
minutes or less.
And to help you know about those time limits, we have a
little machine there on the desk. When you have 1 minute
remaining, the green light will turn yellow. And when your time
is up, a red light will begin. And we don't ask you to stop
mid-sentence, but we would ask you to sum up at that point.
Now, it is my understanding that there has been a request
that Mr. Ohlson testify first. Is that correct? And I am happy
to accommodate that request. So, Mr. Ohlson, if you would
begin.
TESTIMONY OF KEVIN A. OHLSON, DIRECTOR, EXECUTIVE OFFICE FOR
IMMIGRATION REVIEW, U.S. DEPARTMENT OF JUSTICE
Mr. Ohlson. Madam Chairwoman, Congressman King, other
Members of the Subcommittee, it is my pleasure to be here
today. It provides me with an excellent opportunity to testify
about the steps we are taking as we transform the immigration
court system. It also gives me the opportunity to answer any
questions you may have about that process.
A discussion of the transformation of the immigration
courts really needs to begin with the topic of hiring. We now
have a process in place that gives career officials at the
Executive Office for Immigration Review much of the authority
to screen, interview and recommend immigration judge
candidates.
Using that process, during the past year, we have been able
to hire 18 top-notch immigration judges to augment the many
truly outstanding judges we already have on the bench. What is
more, there are an additional 16 immigration judge candidates
in the pipeline, many of whom are simply waiting for their
background investigations to be completed.
But hiring is only the start. When these new immigration
judges come onboard, we now provide them with 5 weeks of
training, rather than just 1 or 2 weeks of training, as in the
past. In addition, they now are required to take and pass a new
immigration law exam before they can begin adjudicating cases.
When the new judges come onboard, they are now subject to a
formalized review process as part of their probationary period.
This probationary period typically lasts 2 years. New
immigration judges who are not capable of serving
professionally and well will now be removed from the bench.
But it is important to note that we also now are taking
many other steps to ensure that all of our immigration judges,
whether they are newly hired or long-term veterans, will
succeed in their mission. For instance, a year ago we had a
week-long training conference for all the immigration judges.
Provided we have adequate resources, we plan to resume holding
such training conferences on an annual basis in the future.
So far this year, we have conducted a 2-day training
program for all the judges in their home courts regarding
asylum adjudications. We have launched a new Immigration Judge
Benchbook that is full of reference materials. We have
developed a comprehensive practice manual that incorporates
best practices nationwide. We have begun distributing a monthly
newsletter on regulatory, judicial and legislative
developments. And we have expanded our online Virtual Law
Library.
In addition to these new hiring and training steps, we
recently have launched a number of other important initiatives.
For instance, we have placed supervisors with immigration
judges in six field sites located around the country. We have
implemented new, rigorous procedures for reporting and
investigating allegations of judicial misconduct. We are
working hard to reduce disparities in asylum grant rates among
our immigration judges. We are completing a massive revision of
our ethics manual.
We have published new regulations that will improve the
judicial process. We have launched digital audio recording to
replace the antiquated analog recording system we currently
have. We have started a new program to help ferret out fraud
and abuse in the immigration court system. We have implemented
performance work plans with regard to members of the Board of
Immigration Appeals, and we have worked diligently to do the
same with the immigration judges. And we have significantly
enhanced our pro-bono program.
As can be seen then, Madam Chairwoman, we have been very,
very busy and very, very productive. And we have made these
great strides largely due to the professionalism, dedication
and hard work of our immigration judges, who, as has been
noted, are on target to handle approximately 300,000 matters
this year. That number is staggering, and our immigration
judges deserve a tremendous amount of credit.
And they also deserve to have all of the resources
requested in the President's 2009 budget. If congressional
appropriators match that number, it would be extremely helpful
to us as we continue our vitally important mission of
transforming the immigration court system.
Thank you.
[The prepared statement of Mr. Ohlson follows:]
Prepared Statement of Kevin A. Ohlson
Ms. Lofgren. Thank you, Mr. Ohlson.
Mr. Lofthus, were you going to provide testimony, or are
you here as a resource person?
Mr. Lofthus. I do have an opening statement.
Ms. Lofgren. Well, we would love to hear it then, if you
would turn on the mic and pull it forward.
TESTIMONY OF LEE LOFTHUS, ASSISTANT ATTORNEY GENERAL FOR
ADMINISTRATION, U.S. DEPARTMENT OF JUSTICE
Mr. Lofthus. Okay, thank you very much.
Chairwoman Lofgren, Ranking Member King, and Members of the
Subcommittee, thank you for the invitation to testify about the
Executive Office for Immigration Review, or what we call it at
the department, by its acronym, EOIR, at the Department of
Justice.
I have a brief statement about the department's support and
funding for hiring of EOIR, and then I welcome any questions
you may have.
Let me start by saying I am a career government employee,
and I have worked for the Department of Justice for going on 27
years. My work has been dedicated to supporting the
counterterrorism, law enforcement and litigation operations of
the department through four different Administrations.
My role at DOJ as the assistant attorney general for
administration and the head of the Justice Management Division
includes being the department's chief financial officer,
developing our budget, and overseeing the management of
personnel, planning, technology and other management programs
across the department.
I take very seriously the issues raised by the inspector
general, as well as questions about the appropriate funding
levels at EOIR. I want to ensure that EOIR has sufficient
resources to accomplish its mission and that its hiring
practices are consistent, fair and effective.
EOIR and the department have worked to address the findings
of the inspector general, and we are working hard to implement
all the changes recommended and needed. We have also integrated
hiring rules and laws into the transition briefing materials we
plan to use for the incoming Administration.
During fiscal year 2006, then-Attorney General Gonzales
commissioned a review of EOIR. From that review, 22 steps for
improving the office's operations were identified, two of which
suggested that the department seek additional funding for new
positions and information technology improvements. We have
taken measures to address both those findings.
The fiscal year 2007 President's budget request was the
department's first opportunity to formally request additional
resources to support those findings. During the same budget
cycle, the department also requested additional resources for
the Civil Division's Office of Immigration Litigation, commonly
called OIL.
EOIR has developed a budget request to increase the number
of immigration judges and lawyers, and the department and OMB
have supported those needs, and the Administration has
requested them from Congress.
After positive funding results in the fiscal year 2006
emergency supplemental, a fiscal year 2007 appropriation, and
the initial fiscal year 2008 marks, EOIR ultimately did not
receive its requested funding when the 2008 omnibus was passed.
But the department will continue to work with Congress to
identify the resources needed to support EOIR's needs.
Thank you, and I welcome any questions the Committee may
have.
Ms. Lofgren. Thank you very much, Mr. Lofthus and Mr.
Ohlson.
We will now begin questions by the panel, and I will begin.
Mr. Lofthus, it is my understanding that there was no
request made for additional personnel in the 2009 budget
request. Is that correct?
Mr. Lofthus. That is correct. There were----
Ms. Lofgren. That is fine, because I have a whole list of
questions. I just wanted to know if that was true.
I would like to ask--Mr. Lofthus, I don't know if you can
answer this, but if you can't, you can just tell me so. I have
been looking--and we have been assisted by TRAC Statistics, as
well as testimony we received in Ms. Sanchez's Subcommittee--
that there has been a massive expansion of enforcing of garden-
variety, low-level immigration violations that have tracked a
decline, especially in the Southwest quadrant, of prosecutions
of organized crime.
It is pretty obvious it has happened at the same time. We
have also had feedback privately from U.S. attorneys that they
have really been pulled off organized crime and drug smuggling
and the like to do massive expansions of these prosecutions of,
you know, bus boys and gardeners.
Has that been a policy decision that you have been involved
in, in terms of resources? Or is that just something that you
respond to as the MBA guy at the department in supporting a
policy decision elsewhere?
Mr. Lofthus. What we do when we look at resources across
the department is we look at influencing workload factors. In
this case, we look at what is going on at the Department of
Homeland Security. We look at what is going on across the
prosecution realm. But we basically get that input from our
program offices and from our policy officials who are running
their programs and responding to those types of needs.
My goal is to make sure that our offices have the
appropriate resources once those decisions are made.
Ms. Lofgren. All right.
Mr. Ohlson, you mentioned in your remarks the benchbook
that you have put together to try to get some additional
professionalism--maybe that is not the right way to put it, but
I think it is--to upgrade performance.
I am interested and, frankly, I think, from what I have
heard, concerned about the development of that benchbook. The
Office of Immigration Litigation, or OIL, had input into the
development, but it is my understanding that outside lawyers
did not.
And that is kind of like asking the prosecutor to write the
rules for the judge; it is a little bit one-sided. And if it
ends up being the prosecutor's view instead of a more general
view of the law overall, it is going to end up with still more
appeals and more process problems.
Do you have a plan to allow other outside immigration
experts to review that and provide input to the department?
Mr. Ohlson. Madam Chairwoman, our Immigration Judge
Benchbook is an outstanding resource material for our
immigration judges when they are on the bench.
The primary individuals who worked on that Immigration
Judge Benchbook were our most senior and the immigration judges
who are recognized as being experts in this area, in terms of
training, as well as----
Ms. Lofgren. It was a simple question. Do you have a plan
to allow others in the immigration world--AILA or law
professors or the like--to provide input to the department?
Mr. Ohlson. With something such as the Immigration Judge
Benchbook, we are always completely open. We have continued
meeting with AILA. I personally attend those meetings that we
have on a semi-annual basis. We are open to input----
Ms. Lofgren. Okay, very good.
I am interested also in how one of the recent studies
indicated that immigration judges were making diametrically
opposed decisions on asylum on essentially the same fact
situation. And the studies seem to indicate--and this is
something we hear a lot, actually, anecdotally--that whether
your asylum petition is granted really has more to do with who
you land in front of than the actual facts of your case.
And it has often been of concern to me that the immigration
judges have to make it up each time. There is no general
resource that is updated constantly for the American view of
what is going on in a foreign nation that we accept as true.
Is that part of your planning? I mean, you wouldn't want to
put that in a published benchbook. It would have to be an
electronic version of that that is constantly updated. Is that
something you are looking at?
Mr. Ohlson. We certainly would be open to that. We get
country reports from the Department of State, and we are
certainly willing to look into that. In terms of----
Ms. Lofgren. All right. Thank you very much.
I have a question on the inspector general's report. The
inspector general really panned what was going on in the
department. And we have got a new process now that you have
talked about.
Has the inspector general reviewed the questions that are
now part of the hiring process?
Mr. Ohlson. In terms of the questions that are posed to the
individual?
Ms. Lofgren. Yes.
Mr. Ohlson. Those questions were developed by our career
officials in the Office of the Chief Immigration Judge. And the
Office of the Inspector General I don't believe has ever seen
them. But it is really now--that part of the process is
strictly run by career people.
Ms. Lofgren. But is it true that one of the questions for
the IGs is whether the applicant would follow a direction or
order from the attorney general even if it was contrary to law?
Mr. Ohlson. Not to the best of my knowledge, Chairwoman.
Ms. Lofgren. Would you please look into that?
Mr. Ohlson. Certainly.
Ms. Lofgren. Thank you.
I will now recognize the Ranking Member for 5 minutes for
his questions.
Mr. King. Thank you, Madam Chair.
First, Mr. Lofthus--and thank you both for your testimony--
in your testimony I believe you said that you had been at
Justice for 27 years?
Mr. Lofthus. Yes, just going on.
Mr. King. And in that period of time, you have seen a lot
of things move through and change. And I am not sure what your
vantage point was throughout all those 27 years, but I presume
it was a gradual moving up through the ranks.
Mr. Lofthus. Yes.
Mr. King. And I am wondering what your title and your
perspective was back in 1995. Do you recall?
Mr. Lofthus. In 1995, I was--during that year, I became
chief of finance for the Federal Bureau of Prisons.
Mr. King. Okay. I would ask you then, from that standpoint,
I wouldn't know how much insight you would have had into the
circumstances where, under the Clinton administration's
appointments, where they essentially put a hiring freeze on
White males. Being one, you might have noticed that a little
more closely. Do you recall those times?
Mr. Lofthus. Only from a distance, because of my role at
the time as the finance officer for the prisons I didn't have
any direct exposure to that particular event.
Mr. King. I would ask Mr. Ohlson, did you have--where were
you in 1995?
Mr. Ohlson. Congressman King, I was a Federal prosecutor at
that time.
Mr. King. Then did you have a vantage point that might have
given you a little more insight into those circumstances?
Mr. Ohlson. Since that time, I have served as the deputy
director of the organization and as the director. And, as a
result of settling that case, I have become aware of what was
going on during that time, yes, sir.
Mr. King. Do you recall how many plaintiffs were part of
that class action suit?
Mr. Ohlson. I am afraid I don't remember that number off
the top of my head, Mr. King. I would be happy to get that
number for you.
Mr. King. Does 150 ring a bell?
Mr. Ohlson. It was a very significant number, yes, sir.
Mr. King. Do you know how many are the subject of this
I.G.'s report, those that they said the evidence supported that
they had violated policy and law?
Mr. Ohlson. Yes, Congressman King. In the Office of the
Inspector General report, it was approximately 40 immigration
judges.
Mr. King. Cases? Forty whats, I am sorry?
Mr. Ohlson. Forty immigration judges who were hired during
the process covered by the I.G.
Mr. King. By three people taking action?
Mr. Ohlson. That is correct, sir.
Mr. King. If three people hired 40, and in 1995 and 1996
there was a policy that brought at least--we will use this
number--150 into the class action lawsuits.
I lay that out as a comparison of the magnitude of what we
are dealing with here today compared to what was taking place
in the mid-1990's under the previous Administration. And I
thank you for that, lending that clarity.
Now, also, Mr. Ohlson, are you aware if any of the Federal
circuits issue an automatic stay of removal if an alien appeals
the case?
Mr. Ohlson. I believe that may occur in the Ninth Circuit.
Mr. King. Any other circuits that you are aware of?
Mr. Ohlson. I am not aware. It may occur also in the Second
Circuit.
Mr. King. The Second and the Ninth. And then could you
explain to this panel what the result of that is?
Mr. Ohlson. Well, approximately 70 percent of the cases
that are appealed up from the Board go to those two circuits.
We are very happy to note that, over the last year, we have had
about a 23 percent drop in the number of cases that are going
from the Board of Immigration Appeals up to the circuit courts.
There certainly has been the view on the part of some that
it is because of those delays that people are appealing at a
higher rate within the Second and the Ninth Circuits, sir.
Mr. King. Do you have an idea about how much higher their
rate might be if--have you analyzed this proportionally, from
circuit to circuit, to see if that incentive that is there to
appeal, what that has done to overburden the circuits in the
Ninth, as you testified, and the Second, as I allege?
Mr. Ohlson. There is a significantly increased percentage
of cases that are appealed to the Second and Ninth Circuits
where there are longer delays before they are adjudicated.
Mr. King. And ``significant'' would mean?
Mr. Ohlson. I would have to get you those numbers precisely
to be accurate.
Mr. King. I would ask you if you could produce those
numbers, the percentage comparisons between the circuits.
Mr. Ohlson. I would be happy to, Mr. King.
Mr. King. I think that is essential data for us to look at
to evaluate that practice.
And then I would ask you also, of the 40 or so IJs that
have been hired under the practice that has been brought into
question and criticized by the I.G.--and I am going to say
appropriately, given the testimony that I have seen here--of
those 40, is there any evidence of any partisan bias in the
decisions that they have made?
Mr. Ohlson. I am familiar with the work of the 40
individuals who have been hired. A couple of those individuals
have not completed their probationary period. But I can tell
you that my experience is the vast, vast majority are extremely
dedicated and very successful on the bench.
Mr. King. I thank you, Mr. Ohlson. And I thank you also,
Mr. Lofthus. And I appreciate you all's testimony.
And I yield back the balance of my time.
Ms. Lofgren. The gentleman yields back.
I would now invite the Chairman of the Judiciary Committee,
Chairman Conyers, for any questions he may have.
Mr. Conyers. Well, thank you, gentlemen.
My opening statement contained about 20 or so questions. I
would like you both to try to respond to them, send in your
responses as soon as you can.
Mr. Ohlson. I would be happy to, Mr. Chairman.
Mr. Lofthus. Yes.
Mr. Conyers. Have you ever been before a Judiciary
Committee for oversight in this position before?
Mr. Ohlson. I have not, sir. I am a career person in the
Department of Justice. I have been with the department for
approximately 20 years----
Mr. Conyers. Okay. You haven't.
Have you?
Mr. Lofthus. Not Judiciary. Other Committees, but not
Judiciary.
Mr. Conyers. But on this subject?
Mr. Lofthus. Not on this subject.
Mr. Conyers. Do you happen to know--I am impressed that
everything is moving forward, that everything is going pretty
smoothly, now that the I.G. and lots of hearings, including in
this Committee, have revealed the politicization of the
Department of Justice and Immigration. And I am pleased with
it.
What about during the year of, say, 2000? How many
immigration judges were appointed?
Mr. Ohlson. In terms of having the number who were hired
during that time, Mr. Chairman, I would have to----
Mr. Conyers. Okay. All right. Let's take 2004, 2005, 2006,
2007. Because that is the period of time the inspector general
was critical about. As a matter of fact, he gave you, Mr.
Ohlson, a pretty good--he didn't find you in violation of
anything he was inspecting. As a matter of fact, you got
promoted.
Now we are going to be watching carefully--and I am not
threatening you. But we have got to clean this mess up and keep
it cleaned up. It is our fault that we didn't oversight you.
You can't call up and say, ``Judiciary hasn't oversighted us in
8 years, and now they wonder why we are wandering all over the
lot, with Monica doing all this political stuff.''
But we are not going back into those years just to harass
you. We are trying to make sure it never happens again.
Now, what is the deal on the budget. Everybody knows we
need a lot more judges and a lot more appeal board members.
What is the situation here? Tell me.
2009, Department of Justice did not request any positions
for judges or appeal board members.
Mr. Lofthus. Mr. Conyers, let me address that question,
because I think it is an excellent one.
To really get the context of what is going on with the
budget at EOIR, if you go back to the report with the 22
recommendations, two of the recommendations said go forth and
help this organization; it needs money for additional hiring,
and it needs money for infrastructure, support for the judges
and the activities of the court, information technology
improvements.
So, for three straight budgets, we worked and successfully
worked with OMB to present budgets to the Hill that----
Mr. Conyers. But there were no requests in 2009. Where is
2009?
Mr. Lofthus. Here is what happened. In 2007, we sought
positions in our budget, meaning increases of 120 positions,
including 22 judge positions. in 2008, we came back for another
tranche of those positions, another 120, including 20 judges.
We were successful back in 2007----
Mr. Conyers. What about 2009?
Mr. Lofthus. In 2009, what we did, because we knew we had
gotten the money in 2007 and had a request for 2008, in 2009 we
went after technology money.
Mr. Conyers. You did not make any requests for judges.
Mr. Lofthus. That is right, because we had an existing 2008
request here and because we had been successful in 2007. So we
had 2 straight years of requests for judges, and then we felt
we needed to turn our attention to the infrastructure to
support the judges, which was the DARS, digital audio recording
system, and another I.T. system.
So after 2 years of supporting the personnel increases, we
wanted to turn our attention to the I.T.
Mr. Conyers. So then you are the one that allowed 300,000
cases to be handled by 215 immigration judges, because you
didn't make any requests. You didn't expect us to come out of
the clear, blue sky and give you some judges when there is no
request made for them, did you?
Mr. Lofthus. We had two----
Mr. Conyers. Yes or no?
Mr. Lofthus. We made two----
Mr. Conyers. Yes or no?
Mr. Lofthus [continuing]. Requests.
Mr. Conyers. The 2009--hey, you must know something about
the budget process. You don't go back and look at the years
before to find out what happened and 2 years before to find out
what happened. We are taking the current annual budget for
2009.
Mr. Lofthus. Sure.
Mr. Conyers. So you can't say, ``Well, this is what
happened in 2008, this is what happened in 2007, and although
we need hundreds of judges, I am not going to ask for any.''
And then we come here today and give me this lame alibi, that
you had made the request before and you wanted to turn it to
something else. I find that almost unbelievable.
Mr. Lofthus. Well, I think 2009 was requested in light of
what we had done in 2007 and 2008. And unfortunately 2008 had
not been completed or enacted when we made the 2009 request to
the Hill. And when the 2008 omnibus was finished in the wee
hours, when that finally was completed, there was not the money
for our personnel increase. We would have liked that.
I have to say, I share your concern----
Mr. Conyers. Oh, thank you.
Now, let me ask you something else. Are you making the ones
for next year?
Mr. Lofthus. Excuse me, sir?
Mr. Conyers. Are you the person that makes the request for
the coming budget?
Mr. Lofthus. Absolutely. We will work with the department's
officials, and we are going to work with the incoming
transition group and the incoming Administration to put
together a 2010 budget.
Mr. Conyers. So we can expect the same kind of work that
you have given us in the past, right? Even though you need
hundreds of judges, after you work with everybody and it is
late at night and everything is going crazy, you make no
request. That could happen, right?
Mr. Lofthus [continuing]. We made 2 years' requests. And I
have to say, I am very concerned, as you are, that when that
other----
Mr. Conyers. Well, we never heard about you being concerned
before this morning.
Mr. Lofthus. When that second request was made and did not
get fulfilled through the omnibus, that presents a problem for
me and for Mr. Ohlson. We know that that didn't come through,
and I need help in the 2009----
Mr. Conyers. I will be watching to help you, and I will be
watching to see how you perform.
Thank you, Madam Chair.
Ms. Lofgren. Thank you, Mr. Chairman.
I now recognize Chairwoman Linda Sanchez for 5 minutes for
her questions.
Ms. Sanchez. Thank you, Ms. Lofgren, for your leadership on
this issue and the fact that we are actually having an
oversight hearing. Because I am appalled at some of the
information that is coming out and some that isn't coming out,
quite frankly.
Mr. Lofthus, a fact sheet that is entitled ``EOIR's
Improvement Measures: Progress Overview'' and dated September
8, 2008, states that EOIR has hired 22 immigration judges and
one new assistant chief immigration judge. Is that correct?
Mr. Lofthus. I defer to Mr. Ohlson on----
Ms. Sanchez. Mr. Ohlson?
Mr. Ohlson. Over what time frame were we talking about, Ms.
Sanchez?
Ms. Sanchez. I don't know. I am specifically referring to
the ``Progress Overview'' that is dated September 8, 2008.
Mr. Ohlson. What we have done is, through the new hiring
process that has been implemented since April of 2007, we have
managed to bring onboard 18 new immigration judges, and we have
16 in the pipeline.
Ms. Sanchez. Okay. And yet, in something that is dated
September 8 of this year, you are saying that EOIR has hired 22
immigration judges.
Mr. Ohlson. I would have to see the document, Ms. Sanchez.
Ms. Sanchez. Okay. Because I would be interested in
knowing, of those 22, how many of them were hired through the
revised process and how many were hired through the politicized
process. If you could get me that information, that would----
Mr. Ohlson. I would certainly be happy to. With the 18 to
which I am referring, all of them have been hired through the
new process.
Ms. Sanchez. Okay. So there is a potential that in the
progress report about improvement, they may be adding in judges
that were hired under the old process, in which it was
politicized.
Mr. Ohlson. I would have to look at the document, ma'am.
Ms. Sanchez. But wouldn't that stand to make sense? If 18
were hired under the new process and the progress report says
22 new judges have been hired, then, by simple arithmetic, the
ones that were not hired in the new process were hired under
the old process? Do you want to take a look at it?
Mr. Ohlson. I don't believe so, because the last people we
had come onboard through the old process was December 2006.
Ms. Sanchez. Okay. I have actually got the document here.
Ms. Lofgren. Maybe we can ask the clerk to bring it down to
the witness, and he can take a look at it.
Ms. Sanchez. You know, I am really concerned, after hearing
the testimony, that, you know, there is this sort of rose-
colored glass vision that, you know, since the revised, you
know, hiring has come into effect, you know, there isn't any
problem with the immigration judges that are currently deciding
cases.
I am interested in knowing, of the new judges that have
been hired, how many of them have an ICE, an INS or a law
enforcement background. Do you know that?
Mr. Ohlson. In terms of specific numbers, I don't. I do
know that----
Ms. Sanchez. Could you please provide that for this
Committee?
Mr. Ohlson. I would be happy to, Ms. Sanchez.
Ms. Sanchez. Great. And I would be interested in knowing,
conversely, how many of them have private practice, teaching or
other types of immigration law background.
Mr. Ohlson. We will be more than happy to get that
information to you.
Ms. Sanchez. Okay. And I would be interested in knowing how
many of them have no background in immigration at all.
Mr. Ohlson. Certainly.
Ms. Sanchez. I think that would definitely be helpful, to
know who is deciding cases that has no background in
immigration law at all.
Another question that I have: Is it true that Rex Ford, who
was one of three immigration judges mentioned by name in the
OIG report as having been involved in the ``coordinated
efforts'' with two other immigration judges to identify
candidates for the I.J. vacancies for Monica Goodling under the
politicized hiring system, is also now participating in
interviews for I.J. candidate positions in the new process? Is
that correct?
Mr. Ohlson. No, I don't believe that is correct, ma'am.
Ms. Sanchez. Okay. Because you can see why that would be
troubling.
Mr. Ohlson. Certainly.
Ms. Sanchez. Okay.
Mr. Ohlson. The three people who do that are our assistant
chief immigration judges. And Rex Ford is not an assistant
chief immigration judge.
Ms. Sanchez. Okay. I am particularly concerned--and
Chairwoman Lofgren mentioned this--the background, in terms of
who serves or who chooses who serves, is very troubling to me.
And in looking at the lowest rates for approval of asylum
cases, the lowest rates of approval tend to come from ICE, INS
trial attorneys.
So it would stand to reason that if you worked for ICE or
INS, that probably you come in with a certain perspective when
you are adjudicating cases. Would you not agree?
Mr. Ohlson. What we are trying to do is we are trying to
address the issue of asylum disparity very aggressively. Our
goal is to ensure that whenever an alien comes before an
immigration judge, he or she does not feel as if the case has
been predetermined.
Ms. Sanchez. But if the lowest asylum-grantee rate comes
from ICE or INS trial attorneys, wouldn't it stand to reason
that perhaps you need to balance the number of judges who come
from that kind of background versus pro-bono work or private
practice or teaching?
Mr. Ohlson. We have a broad representation of backgrounds
on the immigration judge bench, as it is now. And it is not
always predictive of how they will decide asylum cases.
Ms. Sanchez. But wouldn't you agree that if there is a link
between the lowest rates of granting asylum cases and the type
of the background of the judge deciding them, that there might
be some kind of inherent bias or preconceived perspective that
those judges are bringing to the table? Or is that totally
crazy and outside the realm of possibility in your world?
Mr. Ohlson. No, I don't think in anyone's world. But our
goal is to have----
Ms. Sanchez. I know what your goal is, but I am----
Mr. Ohlson. And it is not only just a spoken goal. We are
taking concrete steps to ensure that that is the case.
Ms. Sanchez. In terms of streamlining, which is something
that was developed in 2002, there was--item 12 of the former
attorney general's 22-point plan to improve EOIR called for a
revision of the 2002 streamlining regulations. And in March
2007, then-EOIR director Kevin Rooney stated that the proposed
rule would be issued in the spring of 2007. And the proposed
rule was, in fact, issued in June of this year, of 2008.
When do you expect to finalize the revised streamlining
rule?
Mr. Ohlson. I would expect the regulation to be out very
soon, but we also have actually implemented the provisions
without the regulation needing to be out there.
What the goal is, when it comes to affirmances without
opinion, as part of the streamlining, we have decreased that
number from 34 percent of all their decisions down to 9
percent.
We have also increased dramatically the number of
precedential decisions. A few years ago it was 12; we are up to
about 50 a year now.
Ms. Sanchez. Well, that is an improvement. But without the
regulation, it is just sort of--you can choose to follow it or
you cannot. I am interested in knowing when that will be
finalized.
Mr. Ohlson. The regulatory process sometimes is rather
opaque, but we expect to have that finalized very soon.
Ms. Lofgren. The gentlelady's time has expired.
I have been a Member of the Judiciary Committee for almost
14 years, and this is the first time we have ever had any
oversight of this activity. So I think that merits a second
round of questions. And I would permit the Ranking Member to
begin the second round.
Mr. King. And not in preparation of the gentlelady's
generous offer, I would----
Ms. Lofgren. Oh, I will be happy to begin then.
I want to talk about, getting back to the inspector
general's report, there were just a few people who were
mentioned by name in that report. And Mr. Garry Malphrus was
one of them mentioned as a politicized appointee. The inspector
general also noted that he was involved in politicized
appointments of others, on page 88, 89, 97, 98, and 108 to 111,
if you want to reference the report. I was feeling surprised to
see that he was recently named to the Board of Immigration
Appeals.
Was the fact that Mr. Malphrus was originally hired through
the politicized process and, according to the I.G.,
participated in this illegal scheme of appointment taken into
consideration when he was appointed?
Mr. Ohlson. I am not privy to any discussions that occurred
within the office of the deputy attorney general or the
attorney general. It was a career process that was used in
selecting Mr. Malphrus for the Board of Immigration----
Ms. Lofgren. Well, on that point, I believe it is true that
Board of Immigration Appeals members are required to have 7
years of experience in immigration law, as opposed to IJs that
merely requires 7 years of legal experience.
Did, to your knowledge, Mr. Malphrus have at least 7 years
of experience in immigration law?
Mr. Ohlson. I am not sure that it is required that they
have 7 years of immigration law experience.
Ms. Lofgren. Do you know what his experience is in
immigration law?
Mr. Ohlson. He has served as an immigration----
Ms. Lofgren. How long? Only through this politicized
process?
Mr. Ohlson. He was appointed in 2004-2005.
Ms. Lofgren. Okay.
I want to talk about the appointment process and how it
might lead to a particular result.
How long does the new hiring process take?
Mr. Ohlson. It actually takes a significant period of time,
particularly when you factor in----
Ms. Lofgren. Approximately how long?
Mr. Ohlson. Going forward, if we don't count the background
investigation----
Ms. Lofgren. Count the whole process. I mean, is it a year?
Is it 6 months?
Mr. Ohlson. If you include the background investigation, it
will probably take at least a year.
Ms. Lofgren. So I would just like to make this suggestion,
that that really means that we are going to hire government
lawyers for the most part. It is very difficult in the private
sector to be on hold for a year if you are in a law firm. And I
think that that is something that needs to be, obviously in the
new Administration, reviewed. Because I think that skews it
toward--it is going to be OIL or ICE, instead of anybody who
knows a different angle on immigration law.
I am also interested in what efforts have been made to
reach out to the broad spectrum of immigration expertise in
this country for EOIR.
Mr. Ohlson. In terms of hiring?
Ms. Lofgren. Yes.
Mr. Ohlson. We actually put out the ad in a number of
publications, minority publications and so forth, around the
country. We try to aggressively recruit individuals from a
diverse background.
Ms. Lofgren. When you say ``try to aggressively recruit,''
what does that consist of, I mean, other than an ad?
Mr. Ohlson. We have, as I mentioned, I put on our DOJ Web
site, we put on OPM's Web site, we----
Ms. Lofgren. I see. I mean, in my experience, you know,
looking at it, the prosecutors generally are the ones--the OIL
people are taking a look, they know in advance when the
openings are in. And, you know, they have a right to apply; I
wouldn't say otherwise. But you end up with kind of a skewed
process.
And unless there is a real effort to include a different
perspective, you end up with, you know, a prosecutor as the
prosecutor, a prosecutor as the judge, and an immigrant who
doesn't have a lawyer, and it doesn't always lead to a result
that is a just result or at least providing the appearance of a
just result. And I am concerned that that is still going on.
Mr. Ohlson. We would certainly be receptive to any ideas
you have along those lines, Madam Chairwoman.
Ms. Lofgren. Now, the former chief judge of the U.S. Court
of Appeals for the Second Circuit, the Honorable John Walker,
testified before the Senate Judiciary Committee in 2006. I was
glad that they had a look at this. In his opinion, at least 30
people should be on the BIA. And in his judgment, the number of
immigration judges should be doubled to about 400, given the
workload. And that was certainly before the surge that we have
had in prosecutions and arrests.
Do you think those are the kinds of numbers that are, in
fact, necessary to deal with the caseload that we have here?
Mr. Ohlson. If you look at the Board of Immigration
Appeals, they are currently capable of adjudicating 35,000
cases a year, and they are receiving approximately 30,000. So
they are----
Ms. Lofgren. But some would argue they are not capable,
given what the circuit courts are seeing and the scathing
comments made by the real judges about the quality of these
decisions.
Mr. Ohlson. Well, I would note that we have about an 87
percent affirmance rate within the circuit courts, which is
extremely high. And I think our members of the Board of
Immigration Appeals are doing a truly outstanding job.
Ms. Lofgren. I see that my time has expired. I will turn to
Mr. King for any additional questions he may have.
Mr. King. Thank you, Madam Chair.
Let's say first to Mr. Lofthus, you know, you were
excoriated earlier for not coming to this Congress and pressing
us for authorization and funding for more IJs. I don't exactly
know how many. But I heard that and I would characterize that,
and I would ask you if you agree with my characterization.
And I would point out for your benefit that the House
hasn't passed a single appropriations bill for 2009, for fiscal
year 2009. We have had one come to the floor of the House of
Representatives, and that was the milcon, military
construction, appropriations bill.
Now, we could discuss the reasons for that. But I will just
submit that that is just dysfunctional. And Congress has never
been this dysfunctional. There has never been a time that we
have gone this far, in the history of this country, and not
passed an appropriations bill.
There is a reason that this Congress is structured the way
it is, that we have appropriations Subcommittees and Committees
and that bills come to the floor, that we have authorization
Committees and that bills come through the Subcommittee and the
Committee to the floor.
The reason for that is so that every Member of Congress has
an opportunity to weigh in and perfect legislation so that when
it does arrive at the President's desk it is the voice of the
people of the United States of America run through the filter
of the United States House of Representatives and the United
States Senate.
What we are seeing instead--we are here discussing how we
run this country by omnibus spending bills, by stacks of 3,600
pages, by my memory, and $912 billion in one stack that comes
out in the print at 11 o'clock at night and comes to the floor
for debate and passage without amendment the following day.
That means that the effect is the American people will go
to the polls again on November 4 and they will put up their
votes, and whatever the party affiliation is of the members of
House of Representatives, they will vote for speaker. Whether
it be the Democrats or whether it be Republicans, those votes
will be exactly down party lines.
And then whoever is elected the speaker will have the
authority to suspend Committee process, effective Committee
process, and bring bills to the floor with the assent of the
Rules Committee, which is approved by the speaker.
And so we look back on how this happens--the energy bill
would be a perfect example of that. No Committee action, a bill
that might set the destiny of this country for a generation or
more, no amendments, only 3 hours of debate on the floor, no
way to perfect the legislation.
So, whatever Members of this Judiciary Committee hear, or
Justice Approps over on the appropriations side, might have
wanted to do to help you and provide you more judges to work
with, we haven't had a process to do that. And you haven't had
the opportunity to make the request that could be acted upon by
anyone other than the speaker of the House and those that she
might authorize to do this.
This is not a representative form of government. And it
troubled me that you have to sit there and listen to that when
there was no avenue for anyone to help you, except the people
who are wielding the gavel at the speaker's level.
So I am hopeful that one day soon we will get back to an
open Congress, a functional Congress, one that takes advantage
of the wisdom and the expertise of 435 members of the House,
100 members of the Senate, so that we can provide the filter to
receive input, build those kind of coalitions and those
consensus, and be able to move through to provide effective
government. It is just simply not possible for a small group of
people to make all the right decisions, no matter how smart
they might be.
So then I would just take you to this. Mr. Ohlson, I have
the information, it has arrived in front of me, that I had
asked of you earlier, the rate of appeals for BIA decisions. So
it won't be necessary for you to provide it unless the other
Committee Members would be interested.
But I would just say this, that the I.J. appeals rate is 10
percent, the BIA appeals rate is 30 percent. And when you look
at the two circuits that I mentioned in the previous
questioning, the Ninth Circuit and the Second Circuit, those at
the Ninth--and I think Mr. Lofthus has actually testified--that
is an automatic stay if it is appealed from the BIA to the
Ninth Circuit. They have the highest rate of appeals, at 42
percent.
And if I am correct on the Second Circuit having an
automatic stay, they have the second highest rate of appeals;
that is 36 percent. That is compared to the average of 30
percent. If you go to the more conservative circuits, for
example, the 11th, you will see a 9 percent rate of appeals.
I mean, I would think that the reflective appeals out of
I.J. on up through the BIA to the circuit at 10 percent, that
would be something we might want to look at as being more the
norm that we should like to see.
Ms. Lofgren. Would the gentleman yield?
Mr. King. I would yield.
Ms. Lofgren. I think the premise is incorrect. There is no
automatic stay in law in this appeals.
Mr. King. The practice then--reclaiming my time. I will
ask, then, Mr. Ohlson.
Are you aware of the practice in the Ninth Circuit? Do they
grant stay for every appeal, or don't they?
Mr. Ohlson. Essentially, yes.
Mr. King. Okay. Then let me just correct that to the
practice in the Ninth Circuit and the practice that I allege
exists in the Second Circuit has yielded the highest percentage
of appeals. And so, that is the standard that we need to be
looking at.
And I think--I will ask you this. Will you, then, put
together for this Committee the data that will show us the
percentage of appeals and how many stays are granted for each
of the circuits and, in print, the statistical data and the
text of the practice that you have testified exists in the
Ninth, that I allege in the Second, and any exceptions that
might exist in the other districts, so that we have a real
perspective on what is going on here? And I would ask you if
you would do that.
And I would yield back the balance of my time.
Ms. Lofgren. The gentleman's time has expired. And, as we
have said before, we are all entitled to our own opinions but
not entitled to our own facts. So we will find out and we will
have in the record----
Mr. King. Will the gentlewoman yield?
Ms. Lofgren. Of course.
Mr. King. I would submit that I have characterized this
accurately, and the witness has testified that the result is
that there is a stay of deportation----
Ms. Lofgren. Recalling my time----
Mr. King. That is the witness's testimony.
Ms. Lofgren. And I think the witness is incorrect, but we
will find out. As we look at it, we will actually get the
facts. And we will not have a disagreement; we will have the
facts.
With that, I would like to thank this panel for its
testimony.
Without objection, Members of the Subcommittee will have 5
legislative days to submit questions to you, which we will
forward and ask that you answer as promptly as you can so they
can be made part of the record.
I would also like to just note that, in January of this
year, Chairman Conyers and I wrote to the attorney general
regarding a very wrong decision, the matter of ``A.T.,'' a
Board of Immigration Appeals decision that denied political
asylum to a victim of female genital mutilation, a decision
that was at odds with all the precedence and morally incorrect,
from my point of view.
We want to publicly thank the attorney general for
overturning the BIA decision and reaffirming the proud
tradition of asylum for that egregious behavior. And I don't
always agree with Attorney General Mukasey, but I do feel
obliged to publicly acknowledge his very honorable decision
today.
And we do thank you for appearing today. And we will ask
you to relinquish your seats, as we ask up our second panel of
distinguished witnesses.
And as we are doing this, I will introduce our witnesses.
I am pleased to welcome Professor Susan Long. Professor
Long is co-director of the Transactional Records Access
Clearinghouse at Syracuse University. Professor Long's
specialties are in the fields of statistics, data and
measurement. And she is currently a faculty member in the
department of finance at the Martin J. Whitman School at
Syracuse University.
Professor Long has served as an expert witness in
litigation, on information technologies, and with respect to
public disclosure, and on the use of statistical evidence in
evaluating government policy. She has also published articles
on data-warehousing and data-mining tools in the legal
profession.
I am also pleased to introduce Dr. Stephen Legomsky. Dr.
Legomsky is a professor at the Washington University School of
Law in St. Louis. He is the author of ``Immigration and Refugee
Law and Policy,'' which has been adopted as the required text
for immigration courses in 163 U.S. law schools.
Dr. Legomsky founded the Immigration Law Section of the
Association of American Law Schools and chaired the Refugee
Committee of the American branch of the International Law
Association. He has been a consultant to President Clinton's
transition team and to the first President Bush's Commission on
Immigration, as well as to the U.N. high commissioner for
refugees and to several foreign governments on migration,
refugee and citizenship issues.
He is an elected member of the American Law Institute and
has been a visiting fellow at Oxford University and a visiting
fellow at Cambridge University. He has had teaching or research
appointments in the United States, Mexico, New Zealand,
Switzerland, Germany, Italy, Austria, Australia, Suriname and
Singapore.
And we are very honored to have both of you as witnesses
today.
Now, as mentioned before, your entire written statements
will be made part of the record. And we will have 5 minutes of
testimony, which we will follow by questions.
So all those bells and whistles are calling us to the floor
to vote, but we have 13 minutes. So I think that is time to get
both of your oral testimonies in, and then we will return for
questions.
So, Professor Long, could you begin your 5 minutes of oral
testimony? And your full statement will be made part of the
record.
TESTIMONY OF SUSAN B. LONG, CO-DIRECTOR, TRANSACTIONAL RECORDS
ACCESS CLEARINGHOUSE (TRAC)
Ms. Long. Madam Chair and Members of this Subcommittee, my
name is Susan Long, and I am co-director of the Transactional
Records Access Clearinghouse at Syracuse University, commonly
known as TRAC.
I wish to thank you for the invitation to come today to
testify about the results of TRAC's research on the functioning
of the immigration court system and its administration by the
Executive Office for Immigration Review.
Since its founding in 1989, TRAC has sought to provide the
American people with comprehensive information about the
activities of Federal enforcement and regulatory agencies. To
give you one small indicator of the scope of TRAC's activities,
TRAC publishes around 100,000 reports each month on a large
range of topics. These reports are based upon TRAC's ever-
expanding data warehouse, with more than a terabyte of data,
roughly equivalent to over 500 million printed pages of
information.
TRAC's series of focus studies on the immigration courts
began in 2005. The problems faced by our immigration court
system are not new. TRAC's analyses of hundreds of thousands of
immigration court records covering the last quarter-century,
supplemented by extensive examination of budgets, staffing,
workload and other agency documents, along with interviews with
stakeholders, show that our immigration court system has been
troubled for a very long time.
These conclusions are further reinforced by the criticisms
from the Federal appellate courts and the reports of other
analysts and immigration stakeholders.
Two years ago, the Bush administration made a commitment to
end this sorry history. However, our careful examination since
then shows that this promise has not been kept.
Our findings: One, the most recent covering the period
through the end of fiscal year 2007, continue to show
inexplicable asylum grant rate disparities among judges in the
immigration courts.
Two, despite the fact immigration judge caseload has
repeatedly been cited as a chief problem, there are still fewer
immigration judges today than there were in 2006 when the
attorney general announced his 22-point plan for reforms, as
result only partially explained by the illegal hiring process
used by the Justice Department in EOIR.
Further, a central reform promised was for DOJ to seek
budget increases to increase the available number of
immigration judge positions. Regrettably, there has been no
actual increase in the number of immigration judge positions
since the A.G.'s proposals were announced. And DOJ did not even
seek funding for increasing immigration judge positions, as we
heard earlier testimony on, in the fiscal year 2009 budget.
Three, despite the fact that judicial conduct and quality
were the stated reasons for conducting the 2006 comprehensive
review of the immigration court system, over 2 years later EOIR
has failed to implement key improvement measures, as directed
by the A.G., to enforce the oversight and training of judges.
Four, and despite the hope that the Gonzales reforms would
usher in increased transparency and accountability into the
immigration courts, the Justice Department and EOIR has
repeatedly and needlessly sought to veil the implementation of
improvements, including decisions that amount to substantial
policy changes.
My prepared statement outlines each of these points at more
length and provides full references to TRAC's research studies
where these and other findings are laid out in detail.
I would be happy to answer any questions the Committee may
have.
[The prepared statement of Ms. Long follows:]
Prepared Statement of Susan B. Long
Ms. Lofgren. Thank you, Professor Long.
Now we will turn to you, Professor Legomsky, for your 5
minutes of oral testimony.
TESTIMONY OF STEPHEN H. LEGOMSKY, THE JOHN S. LEHMANN
UNIVERSITY PROFESSOR, WASHINGTON UNIVERSITY SCHOOL OF LAW
Mr. Legomsky. Well, thank you very much, Madam Chair.
I have been asked to provide a historical perspective on
EOIR, with specific attention to the 2002 reforms that you have
already described and their impact. The written statement
spells out the history in more detail, so I am going to jump
right up to 2002 when those reforms were announced. And I think
three of those reforms are most relevant to today's hearing.
First, instead of the BIA deciding the vast majority of its
cases in three-member panels, single members now decide all
cases that don't fit within a few specific exceptions.
Second, the BIA was forbidden to give any reasons for its
decisions any time one board member believes that the
immigration judge reached the right result and that the issues
are either squarely controlled by precedent or, in the opinion
of that member, not substantial enough to justify a written
opinion.
And third, despite his expressed desire to boost
productivity, Mr. Ashcroft simultaneously announced a reduction
in the size of the BIA from 23 authorized member positions,
some of which were vacant, to 11. To accomplish that, he
reassigned the generally most liberal board members to either
I.J. positions or non-adjudicative positions.
The BIA was created, I might add, in 1940, and this was the
first time any attorney general had ever removed any BIA member
for any reason.
Attorneys General Gonzales and Mukasey have since
introduced some further changes, also described in the written
statement. But one of those changes was to expressly authorize
DOJ officials to talk with I.J.s and board members ex parte
about pending cases.
Another recent change was to authorize OIL, which is the
office that argues the government's side in the courts, to
report any I.J. or BIA decisions that, in their opinion, were
of ``poor quality.'' Similar reports from the opposing party
are not authorized.
The effect of all of these last few changes--reassigning
liberal adjudicators, authorizing ex parte communications with
DOJ, and allowing one side but not the other to file complaints
about the decisions--does put real pressure on adjudicators to
reach decisions in favor of the government.
Decisional independence is critical. Judges have to be able
to base their decisions solely on the evidence and their honest
interpretations of the law without fear that they will lose
their jobs if they rule against their boss.
Immediately after the 2002 reforms, three things happened.
First, immigrants began losing a much higher percentage of BIA
cases. Second, after they lost, they began filing for judicial
review of the BIA decision at spectacularly increased rates,
which has caused huge problems for the courts. And third, the
courts began issuing numerous opinions not only reversing the
BIA, but, as you have said, uncharacteristically scathing
comments about the quality of the I.J. and BIA opinions, in
many cases. This was unprecedented.
All these problems almost certainly resulted directly from
a combination of the 2002 reforms and persistent under-
resourcing of EOIR. There just is no other plausible
explanation for the coincidence in timing. All of these
problems emerged immediately after these reforms went into
effect.
Moreover, there are all kinds of logical reasons to expect
that all of these reforms, including under-resourcing, would
have precisely the adverse effects that did occur. The details
on causation are in my written statement, at pages 7 to 9.
I would respectfully urge Congress to consider four steps.
First, invest the resources EOIR needs. It has a huge
caseload. Many of its cases are very complex. And, of course,
the consequences of error, especially in asylum, can be
potentially grave.
Second, minimize the case categories in which single board
members are allowed to hand down decisions on behalf of the
entire BIA. Three-member panels should once again be the norm.
Third, the BIA should rarely be allowed to decide removal
cases without giving at least basic reasons and never, in my
view, in asylum cases.
And fourth and finally, Congress should restore the
independence of the IJs and the BIA. It should consider taking
EOIR out of DOJ entirely. But short of that, I think there are
some modest steps that would go a long way. Congress should
specifically prohibit the reassignment of IJs or BIA members,
other than for misconduct. Congress should end the attorney
general's asymmetrical practice of allowing government
attorneys to file complains about adjudicators when they don't
like the results but not the other side's attorneys. And
finally, Congress should prohibit ex parte communications by
adjudicators with DOJ officials concerning pending cases.
These contradict the most elementary principles of
procedural fairness. And they are not even necessary, because
the A.G. already has the power to reverse himself or herself
whenever the attorney general disagrees.
I guess that is it for now. Thank you once again for the
privilege of testifying before you.
[The prepared statement of Mr. Legomsky follows:]
Prepared Statement of Stephen H. Legomsky
Madame Chairwoman and members of the subcommittee, thank you for
the opportunity to appear before you today. My name is Stephen H.
Legomsky. I am the John S. Lehmann University Professor at the
Washington University School of Law. For more than thirty years I have
devoted the majority of my professional life to the subject of
immigration law and policy. I have taught U.S. immigration law to law
students for approximately 25 years, am the author of the law school
textbook ``Immigration and Refugee Law and Policy'' (now in its fourth
edition), and have had the privilege of advising both Democratic and
Republican administrations and several foreign governments on
immigration policy.
I have been asked to provide a historical perspective on the
Executive Office for Immigration Review (EOIR) and to comment
specifically on the 2002 streamlining initiatives and their impact.
To understand the role and structure of the EOIR it is necessary to
describe briefly the system that was in place before its creation in
1983. For most of the first half of the twentieth century, deportation
cases were adjudicated by ``immigration inspectors.'' These individuals
worked for the predecessors to the former Immigration and
Naturalization Service (INS), and in addition to adjudication they
performed various law enforcement functions. There was a rough system
of appeals to a centralized office in Washington, DC. \1\ In 1940, in
order to improve the appellate part of the process, the Attorney
General created the Board of Immigration Appeals (BIA). He delegated to
the new Board the authority to hear appeals from the deportation
decisions of the immigration inspectors, as well as a few other
miscellaneous orders. \2\ BIA decisions were accompanied by written
opinions that set out the Board's reasons for affirming or reversing.
---------------------------------------------------------------------------
\1\ This system of hearings and appeals, as it functioned before
1952, is thoughtfully described by former INS examiner Sidney B.
Rawitz, in From Wong Yang Sung to Black Robes, 65 Interpreter Releases
453 (1988).
\2\ 5 Fed. Reg. 3503 (Sept. 4, 1940).
---------------------------------------------------------------------------
After passage of the Administrative Procedure Act (APA) in 1946,
there was disagreement over whether the APA procedures were meant to
apply to deportation proceedings. The issue was important, because the
APA philosophy was to assure independence for those who adjudicate
formal agency hearings, and the immigration inspectors who presided
over deportation hearings freely co-mingled adjudicative and
enforcement functions and reported to other enforcement officials.
After a vigorous tug of war among Congress, the executive branch, and
the Supreme Court, Congress finally settled the issue by enacting the
Immigration and Nationality Act (INA) in 1952. \3\ That statute, as
amended many times, is still the main law governing immigration and
nationality in the United States. Among other things, the Act assigned
the task of presiding over deportation hearings to ``special inquiry
officers,'' later re-named ``immigration judges.''
---------------------------------------------------------------------------
\3\ Pub. L. 82-414, 66 Stat. 163 (June 27, 1952).
---------------------------------------------------------------------------
The immigration judges clearly possessed greater independence than
their ``immigration inspector'' predecessors, but in many quarters
concern about their institutional independence lingered. They reported
to the INS, which was, after all, one of the two opposing parties in
the cases they heard. To alleviate that concern, the Attorney General
in 1983 created EOIR. \4\ The new agency initially housed both the
Chief Immigration Judge (who in turn coordinates the work of the
immigration judges) and the BIA. It now has a third component, the
Office of the Chief Administrative Hearing Officer (OCAHO). \5\
---------------------------------------------------------------------------
\4\ 48 Fed. Reg. 8039 (Feb. 25, 1983).
\5\ OCAHO houses the ALJs who decide various cases arising under
the Immigration Reform and Control Act of 1996 (IRCA), Pub. L. 99-603,
100 Stat. 3359 (Nov. 5, 1986). These hearings involve either employer
sanctions or alleged violations of IRCA's anti-discrimination
requirements.
---------------------------------------------------------------------------
Throughout its history, EOIR has experienced steadily increasing
caseloads. Generally, the number of immigration judges expanded and the
resources increased, though not necessarily as rapidly as the demands
of their caseloads. The BIA was a different story. It remained at five
members (minus vacancies at various times) until 1994. In that year,
EOIR expanded to nine members, later to 12, \6\ and eventually to 23
member positions.
---------------------------------------------------------------------------
\6\ See 72 Interpreter Releases 772-73 (June 5, 1995).
---------------------------------------------------------------------------
As caseloads and membership increased, BIA procedures changed too.
Until 1988, the five-member BIA decided all cases en banc; i.e., all
five members participated in every decision. In 1985, the
Administrative Conference of the United States (a former U.S.
government agency charged with recommending administrative reforms),
concerned about present and future caseload increases, recommended that
the Board start deciding cases in three-member panels, reserving the en
banc procedure for exceptionally important cases. \7\ The Justice
Department strenuously opposed the recommended change. Persuaded three
years later by the demands of its increased caseload and the
inefficiency of requiring all five members to hear every case, however,
the Department ultimately adopted the ACUS recommendation and began
deciding cases in three-member panels. \8\
---------------------------------------------------------------------------
\7\ The reasons appear in the consultant's report, Stephen H.
Legomsky, Forum Choices for the Review of Agency Adjudication: A Study
of the Immigration Process, 71 Iowa L. Rev. 1297 (1986).
\8\ 53 Fed. Reg. 15660 (May 3, 1988).
---------------------------------------------------------------------------
From then until 1999, almost all cases were decided in three-member
panels. In the meantime, however, the caseload continued to mount and
backlogs began to grow. Apart from strictly workload concerns, the
Department worried that long delays in the appeal process would give
noncitizens in removal proceedings an incentive to file frivolous
appeals to the BIA in order to buy additional time in the United
States. In 1999, therefore, in order to boost productivity and thereby
speed the process, Attorney General Janet Reno issued a regulation
authorizing the Chair of the BIA to identify exceptional categories of
cases that could be decided by single members. \9\ Over the next two
years, the Chair designated several such categories. Whatever the
impact of that change on the quality of the resulting decisions, it was
clear that the new procedure noticeably improved the Board's
productivity. \10\
---------------------------------------------------------------------------
\9\ 64 Fed. Reg. 56135 (Oct. 18, 1999).
\10\ That was the finding of an important ABA study. Dorsey &
Whitney LLP, Study Conducted for the American Bar Association
Commission on Immigration Policy, Practice and Pro Bono, Re Board of
Immigration Appeals: Procedural Reforms to Improve Case Management
(July 22, 2003), section III.
---------------------------------------------------------------------------
Despite that success, Attorney General Ashcroft in 2002 announced
what turned out to be a highly controversial series of changes designed
to further ``streamline'' the BIA. \11\ The core of the new procedure
was called the `case management system.'' Among other things, the new
system made single-member decisions the norm rather than the exception
and simultaneously introduced the concept of the ``affirmance without
opinion'' (AWO).
---------------------------------------------------------------------------
\11\ 67 Fed. Reg. 54878 (Aug. 26, 2002).
---------------------------------------------------------------------------
As to the former, the new regulation requires all BIA decisions to
be rendered by single members rather than by three-member panels,
unless the case falls within one of six specific categories. The case
categories in which the regulation permits the Board to convene three-
member panels are (1) inconsistent rulings among immigration judges;
(2) a need for a precedential decision; (3) a decision ``not in
conformity with the law;'' (4) a ``major national impact;'' (5) an
immigration judge's finding of fact that was ``clearly erroneous;'' or
(6) a desire to reverse the immigration judge's decision. \12\
---------------------------------------------------------------------------
\12\ 8 C.F.R. section 1003.1(e)(6) (2008).
---------------------------------------------------------------------------
The AWO, also designed to save the time of the BIA members and
their staff, entails affirming the opinion of the immigration judge but
without giving reasons for the decision. The Attorney General's
regulation, in fact, expressly forbids the BIA from giving reasons for
any of its decisions whenever a single Board member ``determines'' that
the immigration judge reached the right result, that any errors by the
immigration judge were harmless, and that the issues are either
``squarely controlled'' by precedent or not ``substantial'' enough to
warrant a written opinion. \13\ The combination of the two changes
means that a large number of BIA decisions are both single-member and
without opinion.
---------------------------------------------------------------------------
\13\ 8 C.F.R. section 1003.1(e)(4) (2008).
---------------------------------------------------------------------------
The 2002 regulation contained another highly controversial element.
It provided that, within six months of the start of the new system, the
authorized size of the Board would be reduced from 23 members to
eleven. \14\ This marked the first time in the then 62-year history of
the BIA that any Attorney General had removed any member from the
Board. Coming at the same time that the Attorney General was justifying
the introduction of affirmances without opinion and the expanded use of
single-member decisions as ways to increase productivity and thereby
reduce the backlog, the decision to cut the number of BIA member
positions in half was puzzling. Perhaps more important, neither the
rule itself nor any other announcement specified concrete criteria for
determining which BIA members would be removed from the Board. \15\
When the Attorney General announced the names of the ``reassigned''
Board members, it was clear that the selections had been ideological;
those with the voting records most favorable to noncitizens were the
ones chosen for reassignment. \16\ Moreover, during the months between
the Attorney General's announcement that some members would be
reassigned and the announcement of actual names, the percentage of
cases in which particular members ruled in favor of the noncitizen
dropped precipitously. \17\ In 2006 Attorney General Alberto R.
Gonzales then restored four positions to the BIA. \18\ That move
brought the Board membership to its current total of 15 and in effect
enabled the Attorney General to replace four of the reassigned members
with individuals of his own choosing.
---------------------------------------------------------------------------
\14\ 67 Fed. Reg. at 54901 (Aug. 26, 2002).
\15\ The regulation referred only to ``traditional'' factors such
as the Attorney General's ``discretion,'' and to such other factors as
``integrity, . . . , professional competence, and adjudicatorial
temperament.'' Seniority, the Attorney General made clear, would not be
``a presumptive factor.'' 67 Fed. Reg. at 54878.
\16\ This was the conclusion of an empirical study by former House
Judiciary Committee staff counsel Peter J. Levinson, The Facade of
Quasi-Judicial Independence in Immigration Appellate Adjudications, 9
Bender's Immigration Bulletin 1154 (Oct. 1, 2004). Accord, ABA Study,
note 10 above.
\17\ Levinson, note 15 above.
\18\ 71 Fed. Reg. 70855 (Dec. 7, 2006).
---------------------------------------------------------------------------
Finally, partly in response to judicial criticisms described below,
Attorney General Gonzales convened a team to review and evaluate the
EOIR. At the same time he issued a public memorandum to the immigration
judges and the BIA communicating his expectations concerning the
quality of decisions and professional demeanor. \19\ He declined to
release the findings of his review team, but he did announce a series
of measures to enhance the professionalism of the adjudicators. \20\
One of those steps was to issue Codes of Conduct for immigration judges
and BIA members. \21\ To those who had hoped the Attorney General would
restore the independence of the immigration judges and the BIA, the
departmental announcement and accompanying Codes proved disappointing.
The Codes expressly authorize immigration judges and BIA members to
engage in ex parte communications with Justice Department personnel
concerning pending cases, \22\ thus exacerbating the likelihood of
departmental pressure on adjudicators to reach particular outcomes. In
addition, item 7 of the Attorney General's 22-point plan to improve
EOIR calls for the Justice Department's Office of Immigration
Litigation (OIL), which is the office that argues the government's side
in the courts of appeals, ``to report adjudications that reflect
immigration judge temperament problems or poor Immigration Court or
Board quality.'' \23\ There is no analogous provision for the
noncitizen or his or her attorney to report ``poor quality.'' \24\ The
same plan contemplates ``performance evaluations'' for immigration
judges and BIA members. \25\ Although the memorandum is not explicit, a
large number of OIL complaints of ``poor quality'' decisions by a
particular adjudicator would presumably be considered in the
preparation of the performance evaluation. Since OIL is more likely to
consider a decision to be of ``poor quality'' when the government loses
than when it wins, and since there is no analogous mechanism for the
noncitizen to file complaints of ``poor quality,'' the system further
encourages adjudicators to favor the government side.
---------------------------------------------------------------------------
\19\ 83 Interpreter Releases 122 (Jan.17, 2006).
\20\ 83 Interpreter Releases 1725 (Aug. 14, 2006).
\21\ See 72 Fed. Reg. 35510 (June 28, 2007).
\22\ Id. at 35511, 35512, Canon XV of each Code.
\23\ U.S. Dept. of Justice, Measures to Improve the Immigration
Courts and the Board of Immigration Appeals (Aug. 9, 2006).
\24\ Item 11, id., authorizes a review of the process for filing
complaints concerning ``inappropriate conduct'' but not complaints
concerning ``poor quality'' decisions.
\25\ Item 1, id.
---------------------------------------------------------------------------
In June 2008, Attorney General Michael B. Mukasey announced changes
designed to cut back on the number of affirmances without opinion. \26\
---------------------------------------------------------------------------
\26\ The proposed rule is in 73 Fed. Reg. 34654 (June 18, 2008),
amending 8 C.F.R. Sec. 1003.
---------------------------------------------------------------------------
The overall impact of the 2002 reforms is hard to gauge
conclusively. By several identifiable measures, the performance of EOIR
has badly deteriorated since the reforms were initiated. There are
logical reasons to attribute the deterioration to those reforms, though
cause and effect are of course difficult to prove scientifically.
Harder still is linking particular adverse performance measures to
particular components of the 2002 reforms. The following will describe
some of the recent trends:
First, immediately after the 2002 reforms went into effect, the
BIA, not surprisingly, decided a much higher percentage of its cases
through single-member dispositions; that trend coincided with the BIA
reversing a dramatically lower percentage of immigration judge
opinions, both in asylum cases specifically and in all removal cases
combined. \27\ Since the vast majority of appeals to the BIA are by
noncitizens challenging orders of removal, these changes in outcomes
mean that immediately after the 2002 reforms the probability of a
noncitizen prevailing on appeal to the BIA dropped markedly. Second,
immediately after the reforms there was a spectacular increase in the
number of petitions for review of BIA decisions filed in the courts of
appeals--both in absolute terms and as a percentage of BIA removal
orders. The massive impact of this increased caseload on the courts,
the U.S. attorneys, and on DHS itself is now a familiar problem that
has been thoroughly documented elsewhere. \28\ Third, the courts of
appeals have issued numerous opinions not only reversing the BIA, but
adding uncharacteristically scathing comments about both the quality of
the immigration judge and BIA opinions and the professional demeanors
of a small number of immigration judges. Often the criticism is a
combined one, chastising the immigration judge for an inexplicable
result and the BIA for affirming it without opinion. \29\
---------------------------------------------------------------------------
\27\ Jaya Ramji-Nogales et al, Refugee Roulette: Disparities in
Asylum Adjudication, 60 Stan. L. Rev. 295, 353, 357-59 (2007).
\28\ See especially the fine empirical study by John R.B. Palmer,
The Nature and Causes of the Immigration Surge in the Federal Courts of
Appeals: A Preliminary Analysis, 51 New York L. School L. Rev. 13
(2006-07).
\29\ E.g., Recinos de Leon v. Gonzales, 400 F.3d 1185, 1187 (9th
Cir. 2005). Some of the harshest language has come from the Seventh
Circuit. See, e.g., Zhen Li Iao v. Gonzales, 400 F.3d 530, 533-35 (7th
Cir. 2005).
---------------------------------------------------------------------------
There are many possible explanations for the emergence of these
problems immediately following the 2002 reforms. The combination of far
more single-member decisions, the widespread use of affirmances without
opinion, and the threats or at least perceived threats to the job
security of the immigration judges and the BIA members could well be
responsible. The prevailing view among many immigration judges, BIA
members, and immigration practitioners that EOIR is badly under-
resourced very likely is also a large part of the explanation, as Judge
Walker, of the Court of Appeals for the Second Circuit, has suggested.
\30\ The Justice Department has denied that the increased rate of
appeals to the courts reflects a diminished quality of the BIA
decision-making. The Department has speculated that by speeding up its
decisions the BIA has reduced the amount of time that a noncitizen can
buy with a frivolous BIA appeal and, therefore, has increased the
incentive to delay removal by appealing to the courts. \31\ This last
theory seems highly unlikely, because since 1996 the filing of a
petition for review no longer triggers an automatic stay of removal;
special permission to remain pending review is required, and courts are
loathe to grant such permission in cases they consider frivolous.
Moreover, if anything, one would expect that, all else equal, someone
who had spent a lengthy period in the United States already (as was
true in the past when BIA appeals were taking longer) would have deeper
roots and therefore a greater incentive, not a lesser one, to further
prolong his or her future stay through a judicial appeal.
---------------------------------------------------------------------------
\30\ See Ramji-Nogales et al, note 22 above, at 383 (quoting Judge
Walker).
\31\ EOIR Fact Sheet (Sept. 15, 2004).
---------------------------------------------------------------------------
The most likely explanation is that the problems have stemmed from
a combination of the 2002 reforms and persistent under-resourcing of
the EOIR. For one thing, there is no other apparent explanation for the
coincidence in timing; all of these problems emerged immediately after
the reforms went into effect. For another, as the remainder of this
Statement will explain, there are logical reasons to expect all of the
reforms just described, as well as the continuing under-resourcing of
EOIR, to have precisely the adverse effects just discussed.
The prohibition on the Board giving reasons for its decisions seems
especially likely to have all these effects--a much lower chance of a
noncitizen winning a BIA appeal, a much higher probability that a
person who loses will seek judicial review, and a much higher number of
poorly thought out BIA decisions. First, while affirmances require no
giving of reasons unless they fall within one of the designated
exceptions, reversals always require opinions. And opinions with
defensible reasons take time to write. BIA members with staggering
caseload demands and so little time per case therefore have a real
incentive to affirm rather than reverse. The Attorney General's recent
introduction of performance evaluations for both immigration judges and
BIA members \32\--evaluations that will undoubtedly include judgments
about productivity--enlarge that incentive further. Moreover, a
reasoned opinion requires the Board member to consider the losing
side's argument with some care; without it, affirmance without adequate
attention becomes easier. In addition, the very process of writing an
opinion forces the writer to think through whether his or her
conclusion really is consistent with the evidence and the law. For all
these reasons, a decision without explanation naturally makes it easier
for the BIA to casually affirm an immigration judge's removal order and
easier to reach a conclusion without adequate thought. Once such a
decision is handed down, the appellant also has no way to know the
reasons for the decision, less confidence that the decision was
correct, and, therefore, a greater incentive to seek judicial review.
In turn, the reviewing court, not having an opinion to review, has to
spend time doing what the BIA should have done, has less confidence in
the BIA decision, and has a greater inclination to reverse and remand
to the BIA for further consideration or explanation. The cursory nature
of the BIA review might matter less if one could be confident that the
immigration judges were correct. But the immigration judges operate
under similar time pressures and resource shortages that inevitably
compromise their abilities to give their cases full consideration.
Finally, reasoned BIA opinions provide guidance not only to the
appellants whose cases they are deciding, but also (at least for
precedential decisions) to immigration judges and to DHS officials.
When precedential and other reasoned decisions are scarce, DHS
officials and immigration judges frequently have to guess at whether a
given decision will meet the BIA's approval.
---------------------------------------------------------------------------
\32\ See Press Release, Attorney General Alberto R. Gonzales
Outlines Reforms for Immigration Courts and Board of Immigration
Appeals (Aug. 9, 2006).
---------------------------------------------------------------------------
For similar reasons the increased reliance on single-member
decisions (not just decisions without reasons) can be expected to
decrease the attention a case will receive, increase the error rate,
and, therefore, increase the rate of further appeals to the courts.
With three member-panels there is less chance of one person missing an
immigration judge error. The chance that one individual with a strong
ideology (in either direction) will reach an extreme result that the
Board as a whole would not have countenanced is reduced. The members
are able to deliberate. There will be more confidence that the appeal
was adequately considered. There is opportunity for a dissenting
opinion that can help guide the future development of the law. Since
many of the BIA cases are argued pro se (i.e., by unrepresented
noncitizens), and therefore without legal briefs, there is a particular
need for some exchange of ideas. And the enormity of the interests at
stake--especially in cases of long-term lawful permanent residents with
family and other roots in the community, or in asylum cases where an
erroneous result can lead to death, torture, or other persecution--
combined with the ever expanding categories of cases in which Congress
has withheld judicial review, makes the fairness and thoroughness of
the administrative appellate process critical.
Apart from single-member decisions and affirmances without
opinions, the events of 2002 and the subsequent changes announced in
2006 also brought home to both immigration judges and the BIA how
fragile their job security can become when they rule in favor of the
noncitizen and against the government. The reassignments that followed
the 2002 announcement are the clearest threat to job security. The
combination of allowing OIL to file compaints about ``poor quality''
decisions, withholding the same right from noncitizens and their
attorneys, and performance evaluations that likely reflect those
complaints send additional signals to immigration judges and BIA
members that ruling in favor of the government and against the
noncitizen is the safest way to secure one's job. I have written
elsewhere about the great dangers that this insecurity poses for the
decisional independence of the immigration judges and the members of
the BIA, and I respectfully refer the subcommittee to that writing for
fuller treatment of the independence issue. \33\ For present purposes,
a summary will suffice.
---------------------------------------------------------------------------
\33\ Stephen H. Legomsky, Deportation and the War on Independence,
91 Cornell L. Rev. 369 (2006).
---------------------------------------------------------------------------
The clearest benefit of judicial independence is procedural
fairness. People who adjudicate cases need every incentive to reach
their decisions honestly. They must base their findings of fact solely
on the evidence before them and their legal conclusions solely on their
honest interpretations of all the relevant sources of law. They must
not be encouraged to base their decisions on which outcome they think
is favored by the person who is in a position to fire them. No one
would want his or her case to be decided by someone who knows in
advance that a decision in their favor could be hazardous to the
adjudicator's job. Decisional independence is also essential to
protecting unpopular individuals, minorities, and points of view. It is
necessary as well to fostering public confidence in the integrity and
accuracy of the justice system.
To sum up: The main components of the 2002 EOIR reforms were making
single-member BIA decisions the norm; introducing BIA affirmances
without opinion; and eliminating the job security, and therefore
eroding the decisional independence, of both immigration judges and the
BIA. The last measure was reinforced by the asymmetrical complaint
procedure, and the performance evaluation provisions, of the 2006
Justice Department announcement. Immediately following the 2002
reforms, several things happened: The BIA began to affirm immigration
judge removal orders with greater frequency; a much higher percentage
of those whom the BIA ordered removed filed petitions for review with
the courts of appeals; and the courts began issuing a stream of
opinions chastising immigration judges and the BIA for both poor
quality work and, on several occasions, unprofessional conduct of
selected immigration judges. There is no way to prove cause and effect
conclusively, but both the absence of plausible alternative
explanations and the presence of logical reasons to expect the reforms
to produce these results make it highly likely that these serious
problems are the product of the 2002 reforms and insufficient
resourcing of EOIR.
These problems suggest several reforms. First, in my view, EOIR
resources need to be substantially increased to reflect the realities
of their large caseloads, the complexities of many of the cases, the
often lengthy hearing transcripts and other record evidence that must
be reviewed, and the grave consequences of error. Both the number of
adjudicators themselves (immigration judges and BIA members) and their
staff support needs to increase. Second, the categories of cases in
which single Board members may hand down decisions on behalf of the
entire BIA should be minimized; three-member panels should once again
be the norm for the vast majority of the Board's cases. Third, the BIA
should never be permitted to decide an asylum case, and should rarely
be allowed to do so in other removal cases, without providing at least
basic reasons for its decision. The reasons need not be elaborate, but
they should provide enough clarity to show that the arguments of the
losing side were seriously considered and to give the opposing parties,
and the reviewing court, enough information to understand the basis for
the decision. For this purpose, it will often be enough to incorporate
by reference the reasoning of the immigration judge, as long as the
opinion leaves clear which parts of that reasoning formed the basis for
the affirmance if there were multiple parts. Fourth, the decisional
independence of the immigration judges and the BIA should be restored.
This means not only prohibiting the ``reassignment'' of immigration
judges or BIA members other than for misconduct, but also ensuring that
any performance evaluation system that could affect an adjudicator's
job security be based on data that are fair and symmetrical. In
particular, either complaints of ``poor quality'' decisions should not
be part of the record, or they should be invited from both sides rather
than solely the government side. In addition, the provisions in the
Codes of Conduct that authorize the adjudicators to confer ex parte
with Justice Department officials concerning pending cases should be
stricken. Such ex parte communications contradict the most basic
principles of procedural fairness. Moreover, the Attorney General
already possesses the power to reverse BIA decisions with which he or
she disagrees; \34\ in addition to being inappropriate, therefore, ex
parte pressures by the Justice Department are not even necessary. Given
the events of the past several years, it seems doubtful that even these
reforms would provide adequate reassurance to the immigration judges
and the BIA members if the reforms are announced by the Department of
Justice itself. Adjudicators would be well aware that those policy
reforms could be reversed at any time. The above mechanisms for
restoring decisional independence should therefore be enacted into law
by Congress.
---------------------------------------------------------------------------
\34\ 8 C.F.R. section 1003.1(h) (2008).
---------------------------------------------------------------------------
Thank you once again for the privilege of testifying before you.
Ms. Lofgren. I think we are going to see if we can get our
questions in before we go to vote, since only about 50 of our
colleagues have shown up yet. And I will begin.
Professor Long, in your testimony, you indicated several
indices of poor judicial performance and even patterns of
misconduct within the immigration court system. And one of the
things you mentioned is a series of Federal appellate court
rulings that sharply criticized the immigration courts.
Can you just briefly describe what some of these criticisms
were and how prevalent these decisions were?
Ms. Long. Well, basically, court of appeals judges were
seeing several things. Number one is that the judges were not
ruling and treating those who appeared before them with proper
respect. Number two, that prejudices of the judges appeared to
be getting in the way of the decisions, so that often there was
not sufficient support in the record to support the decisions
being made.
Ms. Lofgren. I wonder if either one of you or both of you
could provide a sample of some of the opinions to the
Subcommittee subsequent to this hearing, so we can get a flavor
systematically of what the circuit courts are concerned about.
Now, Professor Legomsky, you indicated concern about the
independence of the judiciary. And it appears that the system,
as it is operating now, really is weighted toward the
prosecution, according to your testimony.
I mean, other than the ex parte communications, why would
that be, in terms of the current----
Mr. Legomsky. Well, I think that the affirmances without
opinion are strongly weighted toward the government side. For
one thing, it is only affirmances of the I.J. that can be
handed down without giving reasons, not reversals.
So if you put yourself in the position of a BIA member who
is tremendously backlogged--and I agree that the fault lies not
with the BIA members but with the under-resourcing--they are
tremendously backlogged, they are probably going to be judged
on their productivity, because there are performance----
Ms. Lofgren. So if you say ``no,'' you don't have to write
an opinion.
Mr. Legomsky. Exactly. So if you have a choice between
deciding ``yes'' and having to write an opinion and saying
``no'' and you don't, there is a tremendous bias toward not
having to do it.
In addition to that, so many of the people who appear
before the BIA are not represented by counsel. They are not in
a position to identify with clarity any mistakes that the
immigration judge, who is also under tremendous time pressure,
might have made. The government, in contrast, is represented by
counsel, and so the system is biased in that respect as well.
Ms. Lofgren. In terms of the ex parte communication,
ordinarily at a judicial proceeding that is a big no-no. Would
moving the court system into some more independent environment
help address that issue?
Mr. Legomsky. I think it would. It would certainly
eliminate any job insecurity that might result from worrying
whether your boss is going to fire you for going against the
boss.
The point I would emphasize here is that what makes
immigration judges and BIA members not unique, because there
are some other judges in this position, but certainly
distinctive is that the cases they are deciding are cases in
which there are two opposing parties and one of the opposing
parties is your boss. So there is a tremendous pressure to not
anger the person who holds the authority to non-renew your
contract.
Ms. Lofgren. That obviously makes a lot of sense.
Mr. Legomsky. Oh, I am sorry, can I make one other point on
that, as well?
Ms. Lofgren. Of course.
Mr. Legomsky. At a time when the INS, the former INS, was
in the Department of Justice, there was at least some benefit
to keeping EOIR within Justice, because then the attorney
general could maintain policy coherence, having INS and EOIR in
the same department. I don't think that was ever a large
consideration, but at least there was some benefit.
Now that the INS doesn't exist and the EOIR is under a
whole different department, I am not sure that even that
benefit exists. So my recommendation would be that EOIR either
be made into a separate article from immigration court or
otherwise be given the independence that it needs.
Ms. Lofgren. I remember when the Republicans were in the
majority, there was a proposal that Bill McCollum of Florida
was pursuing. And it sort of dribbled away, but the Republican
majority was very interested in pursuing that at the time. And
it might be something we would look at next year.
Mr. King, I would invite you, since we still have time to
get over there but only if we are prompt, to do your questions
at this point.
Mr. King. Well, thank you, Madam Chair. And I will keep my
word and not use any more time than you did.
And I will direct my first question--well, first, to
Professor Legomsky, I mean, isn't it true that the government's
side of this, all the way through the appeals process, from the
I.J. to the BIA to the circuit and potentially to the Supreme
Court, that if they lose at any level, what is the recourse of
the government?
Mr. Legomsky. If the government loses at the I.J. level, it
has the same right to appeal to the BIA that the immigrant
does.
If the government loses at the BIA level, it is true that
the government has no right to appeal to the courts, but it
doesn't need to do that because the attorney general can
unilaterally reverse the decision.
Mr. King. And then, in your analysis of this in making your
recommendation to this Committee, did you evaluate or make
recommendations as to statutory changes that Congress might
make to reduce the number of appeals as an alternative to
expanding the number of judges?
Mr. Legomsky. I am sorry, I am not certain that I
understand.
Mr. King. Let me try again. There are certain parameters
that allow for appeal. If Congress would narrow those
parameters, they would theoretically reduce the number of
appeals. In fact, that goes beyond theory; it would be a fact
that it would reduce the number of appeals.
So have you evaluated those parameters and made any
recommendations on what we might do to narrow them so that we
could reduce the number of appeals, rather than increasing the
number of judges?
Mr. Legomsky. I understand now; I am sorry. In order to
answer that question, I have to explain that Congress has
already dramatically narrowed the number of cases in which it
is even possible to file an appeal. Asylum cases today----
Mr. King. I don't----
Mr. Legomsky. It would be very difficult to find any
additional categories, I think.
Mr. King. Oh, I would submit I could probably do that,
Professor. But I would just illustrate that. I don't know that
there is a limit to how narrow we might be able to make it, as
a matter of public policy. But I do agree that we need more
judges and we need to have a legitimate evaluation system that
moves quickly.
So I want to put that part into the record, and I want to
thank the witnesses for their testimony. I yield back the
balance of my time and head over to vote.
Ms. Lofgren. I will thank both witnesses.
And we will keep the record open for 5 days if there are
additional questions. We would ask that you respond promptly.
And we thank you very much for your very useful testimony.
This hearing is adjourned.
[Whereupon, at 11:46 a.m., the Subcommittee was adjourned.]
A P P E N D I X
----------
Material Submitted for the Hearing Record
Prepared Statement of the Honorable Zoe Lofgren, a Representative in
Congress from the State of California, and Chairwoman, Subcommittee on
Immigration, Citizenship, Refugees, Border Security, and International
Law
On July 28, 2008, the Department of Justice's Office of
Professional Responsibility and the Office of the Inspector General
issued a report showing that three high-level Department of Justice
officials, Kyle Sampson, Jan Williams, and Monica Goodling,
violated Department of Justice policy and federal law by
considering political or ideological affiliations in soliciting
and evaluating candidates for [Immigration Judges], which are
Schedule A career positions, not political appointments.
Further, the evidence demonstrates that their violations were
not isolated instances but were systemic in nature.
Based on this report, it appears Republican credentials, rather
than knowledge of and experience in immigration law, became the main
criterion in hiring Immigration Judges and members of the Board of
Immigration Appeals. All three named officials only considered
candidates referred to them by the White House, Republican members of
Congress, Republican political appointees, the Federalist Society, the
Republican National Lawyers Association, and individuals with
Republican party affiliations, while ignoring candidates sent to them
by the Executive Office for Immigration Review (EOIR).
This politicization of EOIR occurred at a time when the Immigration
Courts and the Board of Immigration Appeals (BIA) were also suffering
from systemic problems created by former Attorney General Ashcroft's
``streamlining'' plan.
In 2002, then-Attorney General John Ashcroft promulgated a rule
that ``establishe[d] the primacy of the streamlining system for the
majority of the cases.'' The 2002 streamlining regulation made single
member decisions and affirmance without opinions (AWO) ``the norm
rather than the exception.''
At the same time, Attorney General Ashcroft also reduced the size
of the BIA from 23 members to 11. Several analyses of the eliminated
BIA members found that ``the selections had been ideological; those
with the voting records most favorable to noncitizens were the ones
chosen for reassignment.''
The result of the Ashcroft streamlining plan was a significant
increase in the number of BIA decisions appealed to the federal courts
of appeals. The courts of appeals not only reversed the BIA at a higher
rate, but also ``add[ed] uncharacteristically scathing comments'' about
the poor quality of IJ and BIA decisions.
Moreover, even as the Administration and Congress dedicated more
resources to the arrest and detention of deportable non-citizens, both
failed to commit a similar level of resources to the immigration
courts, which is responsible for determining whether certain non-
citizens are in fact deportable. The failure to devote adequate
resources to the immigration courts has led to increased caseloads at
all levels of the removal process, at the immigration courts, the BIA,
and the federal courts.
EOIR has been too long ignored and the result has been
politicization of the immigration courts, so-called ``streamlining,''
and inadequate resources. I look forward to hearing from our witnesses
today so that we may finally begin to address these very serious
problems in the administrative removal process, which is the heart of
our immigration enforcement system.
Prepared Statement of the Honorable John Conyers, Jr., a Representative
in Congress from the State of Michigan, and Chairman, Committee on the
Judiciary
The Executive Office for Immigration Review (EOIR), which is part
of the Justice Department, houses the Immigration Courts and the Board
of Immigration Appeals (BIA). These are not an independent judiciary,
but are administrative law judges appointed and employed by the
Department of Justice.
EOIR's role in ensuring fairness is especially important, given
that less than half of those brought before the courts are represented
by attorneys.
This is the first oversight hearing that I can recall since 2002.
Since then, EOIR has been weakened by politicized hiring by many of the
same culprits who we are familiar with from the US Attorney hiring
scandal. The system has also felt the stress of a continuing lack of
resources and manpower.
First, the politicization of the Justice Department.
We are all by now intimately familiar with the havoc wreaked by the
former inhabitants of the Office of the Attorney General, as Kyle
Sampson, Monica Goodling, and others tried to change the Justice
Department into an extension of the Bush White House political office.
People were blacklisted or driven from office, while
attorneys who were willing to insert partisan politics into the
Department's work were rewarded and promoted. Politics did not
just taint the treatment of presidentially-appointed federal
prosecutors, but extended to the immigration courts as well.
Republican credentials, rather than an expertise in
immigration law, became the main criteria in hiring immigration
judges and BIA members. Politicization of these positions
clogged the entire system, creating major bottlenecks and
wreaking havoc on the immigration courts' workload. The
qualified candidates that EOIR forwarded to the Attorney
General's office for consideration were simply ignored, while
the AG's staff desperately sought Republican loyalists who they
could shoehorn into judgeships whether they knew anything about
immigration or not.
And at the BIA, the number of appellate judges was cut from
23 members to 11 since our last oversight hearing. Independent
analysis shows that the members with the voting records most
favorable to the non-citizens were the ones chosen for
demotion. Not surprisingly, the percentage of reversals
plummeted. And there was a significant increase in the number
of appeals to the federal circuit courts, which suffered an
immigration backlog as well.
So, today, I am interested in hearing not just how DOJ is
planning to prevent future politicization, but also to learn
``who was watching the store?''
Additionally, I want to know how the witnesses expect 215
Immigration Judges to handle a caseload of over 300,000 cases a year.
That's 27 cases disposed of every week, without taking any
vacation or sick days, and without taking the time to issue
written opinions.
When coupled with the crushing workload of the shrunken BIA,
these statistics make me wonder how any immigration enforcement
is done in this country.
In conclusion, throughout the hearings that we have held this year,
we have heard a lot in the last year about immigration judges.
Some have even suggested that the immigration judges are some
kind of cabal of liberals, bent on using every ounce of
discretion we give them to allow dangerous aliens remain in the
country.
That is not borne out by the facts.
They are hardworking, but they are swamped.
Most of them, before the Bush Administration swung
into action, were experts in the immigration field,
devoted to neutrally applying our laws.
They deserve better than to be starved of resources
and litmus tested for partisan credentials.
Prepared Statement of Mary M. Schroeder, Judge,
United States Court of Appeals, Ninth Circuit
My name is Mary M. Schroeder and I am a Judge of the United States
Court of Appeals for the Ninth Circuit. From December 2000 through
November, 2007, I served as the Chief Judge of the Circuit, the
nation's largest federal circuit that handles approximately half of the
entire workload of the Country in petitions for review of the decisions
of the Board of Immigration Appeals. My colleagues in the Second
Circuit handle roughly thirty percent, as our two Circuits contain the
most important ports of entry to this Country. My home chambers are in
Phoenix Arizona, where I practiced law and served on the Arizona Court
of Appeals before being appointed to the federal bench. As an Arizonan,
I am familiar on a daily basis with controversies surrounding
immigration in our nation.
I wish to thank you for having this hearing and for asking me to
present my views today on the important subject of the administration
of justice in the immigration field.
Immigration cases in our court are appeals from final orders of
deportation or removal. For years they constituted less than 10% of our
total caseload. Beginning in approximately 2002, however, when the
Executive Branch shrank the pool of available immigration judges and
members of the Board of Immigration Appeals, our appeals ballooned
dramatically. Over a course of a few years, we went from 900 petitions
for review filed in 2001, to more than 6,000 in 2005. The principal
reason for this dramatic increase was the effort to ``streamline''
immigration appeals to the BIA with one judge, rubber stamp orders
affirming the immigration judge decisions with blanket approval. This
practice meant that to obtain any meaningful appellate review,
litigants had to appeal to the Court of Appeals.
This ``streamlining'' in turn increased the number of issues for us
to decide exponentially, because there was no administrative appellate
review to determine which were the dispositive issues. Thus every
single issue decided by the immigration judge in each streamlined case
would have to be reviewed to determine its validity or our jurisdiction
to review it. Therefore, without meaningful BIA review, both the number
of appeals to our court and the number of issues to decide in each
appeal multiply.
The immigration load threatened intolerable delay in the processing
of our remaining civil case load until our court determined that the
immigration crisis in the Executive Branch should not result in the
failure of our court to keep up with important cases in other areas,
particularly in intellectual property and technology, criminal
sentencing, and death penalty review. The result has, however, been a
delay in the processing of immigration cases that can best be
redressed, in my view, by Congress addressing the need for efficient
administration review of deportation cases.
The current situation is not fair to anyone. Aliens in the United
States who may qualify for relief from deportation should have their
fate decided promptly, and those who do not have any plausible
justification for remaining in the country lawfully should understand
their position as well. Families should not live in uncertainty and
fear for years on end. Employers should know the status of their
employees caught up in deportation proceedings, and the public has a
right to know that immigration laws are being enforced.
As expressed in the platforms of both political parties, there is
everywhere a sense that we need overall comprehensive immigration
reform. I can not speak to the policies that Congress should enact. My
only concern is with the administration of justice in the court system.
As a resident of Arizona, I know that the lack of coherent, efficient
immigration law enforcement has an impact on all of our courts, state
and federal, in this key border state. The lack of coherent national
policy has resulted in local law enforcement officials taking
immigration enforcement into their own hands, and it has also
multiplied border related prosecutions in both state and federal
courts. I have been on panels with the Chief Justice of Arizona, Ruth
McGregor, the Chief Federal District Judge of Arizona, John Roll, state
Superior Court judges and federal magistrate judges. All express acute
frustration with the current situation. Our U.S. Attorney in Arizona,
Diane Humetewa, has also spoken of the need for resources at every
level of the system, from the immigration courts, prosecutors, trial
courts, to the Court of Appeals.
The first step to fair and efficient administration of our laws
lies in the Immigration Court and the Board of Immigration Appeals. At
the present time, those bodies are completely the creation of
regulations, and are subject to potentially abusive practices in hiring
and firing.
During the time that I was Chief Judge of the Ninth Circuit we made
it a point to meet periodically with judges of the Immigration Court
and the Board of Immigration of Appeals. Our then Clerk of Court, Cathy
Catterson, and I traveled to Washington and met more than once with the
Department of Justice in an effort to encourage more resources for
administrative review of deportation orders, and to offer our support
of the courts in obtaining those resources and in improving the quality
of the judges occupying those positions. We did not meet with a great
deal of success.
While I no longer speak for the judges on our Court, I do speak
from considerable experience. What is needed is a codification of the
administrative processes, through legislation that statutorily
establishes an immigration court and a board of immigration appeals as
permanent bodies, and that also establishes tenure and standards for
those who occupy those significant opinions. The future lives of many
families and individuals as well as the quality of life for all of us
in this country depend to a great degree on whether we succeed in
achieving an independent, fair and efficient system of immigration law
enforcement.
I thank the Committee for having this hearing that has been
inspired by the Department of Justice's report on some of the
shortcomings in the current system.
Prepared Statement of Dennis Jacobs, Chief Judge,
United States Court of Appeals, Second Circuit