[Senate Hearing 109-537]
[From the U.S. Government Publishing Office]



                                                        S. Hrg. 109-537
 
                    IMMIGRATION LITIGATION REDUCTION

=======================================================================

                                HEARING

                               before the

                       COMMITTEE ON THE JUDICIARY
                          UNITED STATES SENATE

                       ONE HUNDRED NINTH CONGRESS

                             SECOND SESSION

                               __________

                             APRIL 3, 2006

                               __________

                          Serial No. J-109-67

                               __________

         Printed for the use of the Committee on the Judiciary



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                       COMMITTEE ON THE JUDICIARY

                 ARLEN SPECTER, Pennsylvania, Chairman
ORRIN G. HATCH, Utah                 PATRICK J. LEAHY, Vermont
CHARLES E. GRASSLEY, Iowa            EDWARD M. KENNEDY, Massachusetts
JON KYL, Arizona                     JOSEPH R. BIDEN, Jr., Delaware
MIKE DeWINE, Ohio                    HERBERT KOHL, Wisconsin
JEFF SESSIONS, Alabama               DIANNE FEINSTEIN, California
LINDSEY O. GRAHAM, South Carolina    RUSSELL D. FEINGOLD, Wisconsin
JOHN CORNYN, Texas                   CHARLES E. SCHUMER, New York
SAM BROWNBACK, Kansas                RICHARD J. DURBIN, Illinois
TOM COBURN, Oklahoma
           Michael O'Neill, Chief Counsel and Staff Director
      Bruce A. Cohen, Democratic Chief Counsel and Staff Director


                            C O N T E N T S

                              ----------                              

                    STATEMENTS OF COMMITTEE MEMBERS

                                                                   Page

Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont, 
  prepared statement.............................................    91
Specter, Hon. Arlen, a U.S. Senator from the State of 
  Pennsylvania...................................................     1

                               WITNESSES

Bea, Carlos T., Chief Judge, U.S. Court of Appeals for the Ninth 
  Circuit, San Francisco, California.............................     7
Cohn, Jonathan, Deputy Assistant Attorney General, Civil 
  Division, Department of Justice, Washington, D.C...............    27
Martin, David, Professor of Law, University of Virginia, 
  Charlottesville, Virginia......................................    28
Michel, Paul R., Chief Judge, U.S. Court of Appeals for the 
  Federal Circuit, Washington, D.C...............................     2
Newman, Jon O., Senior Judge, U.S. Court of Appeals for the 
  Second Circuit, Hartford, Connecticut..........................    10
Roll, John McCarthy, District Judge, U.S. District Court for the 
  District of Arizona, Tucson, Arizona...........................    12
Walker, John M., Jr., Chief Judge, U.S. Court of Appeals for the 
  Second Circuit, New Haven, Connecticut.........................     5

                         QUESTIONS AND ANSWERS

Responses of Jonathan Cohn to questions submitted by Senator 
  Leahy..........................................................    40

                       SUBMISSIONS FOR THE RECORD

American Bar Association, E. Anthony Figg, Chair, Washington, 
  D.C., letter...................................................    44
American Intellectual Property Law Association, Michael K. Kirk, 
  Executive Director, Arlington, Virginia, letter................    46
Bea, Carlos T., Chief Judge, U.S. Court of Appeals for the Ninth 
  Circuit, San Francisco, California, prepared statement.........    48
Benson, Lenni B., Professor of Law, New York Law School, New 
  York, New York and Stephen Yale-Loehr, Adjunct Professor, 
  Cornell Law School, Myron Taylor Hall, Ithaca, New York, letter    52
Center for Gender & Refugee Studies, University of California, 
  Hastings College of the Law, Karen Musalo, Director, Stephen 
  Knight, Deputy Director, and Leena Khandwala, New Voices 
  Fellow, San Francisco, California, letter......................    56
Cohn, Jonathan, Deputy Assistant Attorney General, Civil 
  Division, Department of Justice, Washington, D.C., prepared 
  statement......................................................    60
Federal Circuit Bar Association, Kevin R. Casey, President-Elect, 
  Washington, D.C., letter.......................................    71
Human Rights First, Maureen Byrnes, Executive Director, 
  Washington, D.C., letter.......................................    73
Intellectual Property Owners Association, Marc S. Adler, 
  President, Washington, D.C., letter............................    75
Kozinski, Alex, U.S. Circuit Judge, U.S. Court of Appeals for the 
  Ninth Circuit, Pasadena, California, letter....................    77
Law professors and scholars who teach and study in the area of 
  immigration law, joint letter..................................    79
Law school deans and legal scholars whose areas of scholarship 
  include immigration law, joint letter..........................    88
Legal scholars in Pennsylvania whose areas of scholarship include 
  immigration law, joint letter..................................    94
Martin, David A., Professor of Law, University of Virginia, 
  Charlottesville, Virginia, prepared statement..................    99
Mecham, Leonidas Ralph, Secretary, Judicial Conference of the 
  United States, Washington, D.C., letters.......................   108
Migration Policy Institute, Doris Meissner, Muzaffar A. Chishti, 
  and Michael J. Wishnie, Washington, D.C., prepared statement...   115
Michel, Paul R., Chief Judge, U.S. Court of Appeals for the 
  Federal Circuit, Washington, D.C., prepared statement and 
  letters........................................................   132
Newman, Jon O., Senior Judge, U.S. Court of Appeals for the 
  Second Circuit, Hartford, Connecticut, prepared statement and 
  letter.........................................................   147
New York Times, New York, New York, April 7, 2006, article.......   159
Noonan, John T., Jr., U.S. Circuit Judge, and Kim McLane Wardlaw, 
  U.S. Circuit Judge, U.S. Court of Appeals for the Ninth 
  Circuit, San Francisco, California, letter.....................   160
People for the American Way, Ralph G., Neas, President and Tanya 
  Clay, Director, Public Policy, Washington, D.C., letter........   164
Posner, Richard A., U.S. Circuit Judge, U.S. Court of Appeals for 
  the Seventh Circuit, Chicago, Illinois, letter.................   167
Retired judges of the courts of appeals, joint letter............   170
Roll, John McCarthy, U.S. District Judge, U.S. District Court for 
  the District of Arizona, Tucson, Arizona, prepared statement...   172
Schroeder, Mary M., Chief Judge, U.S. Court of Appeals for the 
  Ninth Circuit, Phoenix, Arizona, letter........................   178
Thomas, Sidney R., U.S. Circuit Judge, U.S. Court of Appeals for 
  the Ninth Circuit, Billings, Montana, letter...................   181
Walker, John M., Jr., Chief Judge, U.S. Court of Appeals for the 
  Second Circuit, New Haven, Connecticut, prepared statement and 
  letters........................................................   184
U.S. Court of Appeals for the Federal Circuit, workload 
  calculations, table............................................   200


                    IMMIGRATION LITIGATION REDUCTION

                              ----------                              


                         MONDAY, APRIL 3, 2006

                                       U.S. Senate,
                                Committee on the Judiciary,
                                                    Washington, DC.
    The Committee met, pursuant to notice, at 10:04 a.m., in 
room SD-226, Dirksen Senate Office Building, Hon. Arlen 
Specter, Chairman of the Committee, presiding.
    Present: Senators Specter, Sessions, and Cornyn.

 OPENING STATEMENT OF HON. ARLEN SPECTER, A U.S. SENATOR FROM 
                   THE STATE OF PENNSYLVANIA

    Chairman Specter. Good morning, ladies and gentlemen. The 
Judiciary Committee will now proceed with our hearing on the 
subject of judicial review of immigration matters.
    The Senate is currently considering legislation on 
immigration reform. It follows extensive hearings and a markup 
by this Committee. We have on the floor now what we call the 
Chairman's mark or the Committee bill. We have proceeded under 
an expedited schedule where the Majority Leader wanted a bill 
on the floor on Tuesday of last week, and we had a very lengthy 
markup on Monday to complete action on the bill, except for the 
title on judicial review. And we kept that aside until we could 
make further inquiries to find out what we ought to be doing on 
judicial review and to hear from experts.
    My preference would have been to have approached the entire 
subject of immigration review with a more thorough analysis, 
which we have on the hearing process and on the so-called 
markup where the Committee sits down and goes over the text 
line by line to figure out what we ought to do. And there are, 
as you well know, very, very complex policy considerations on 
this bill at every turn. It is a highly emotional bill. There 
are those who want only border security, only enforcement, and 
there are others who want broader reform to accommodate the 11 
million people who are in this country as undocumented aliens.
    The Committee bill provides to accommodate the 11 million 
people for a number of reasons, the most prominent of which is 
there is no way to round them up, detain them, deport them, and 
they are here. They are undertaking important jobs, and there 
is a heavy controversy on whether they are taking jobs that 
other Americans would fill or whether they are taking jobs 
other Americans would fill if the pay was higher. So there are 
lots of controversies.
    With respect to judicial review, we are considering the 
consolidation of all of the circuit appeals to the Federal 
circuit. That has drawn some objections on grounds that it is 
preferable to have the matters remain in the circuit courts 
where there are generalists who are at work. There is a very 
substantial imbalance, as you know, with the Ninth and Second 
Circuits having many more appeals than the other circuits. 
There are some suggestions. Judge Becker has made a suggestion 
that there be created something like the Multidistrict Panel to 
reassign cases. Judge Newman I understand has a suggestion for 
temporary assignments. And with you judges here today who have 
had a lot of experience in the field, we will be able to shed 
some light on that.
    We have a second panel which will take up additional 
questions as to what ought to be done with immigration judges, 
whether there ought to be reforms there, the Board of 
Immigration Appeal, and we will be asking you those questions 
as well.
    We have a practice of swearing in all witnesses, so I hope 
you will not mind. If you will rise and raise your right hand. 
Do you solemnly swear that the testimony you will give before 
the Judiciary Committee will be the truth, the whole truth, and 
nothing but the truth, so help you God?
    Judge Michel. I do.
    Judge Walker. I do.
    Judge Bea. I do.
    Judge Newman. I do.
    Judge Roll. I do.
    Chairman Specter. Thank you. Our first witness will be the 
chief judge of the Federal Circuit, Judge Paul R. Michel. He 
has been on that court since 1988, appointed by President 
Reagan. In the interest of full disclosure, I will tell you 
that he was my chief of staff before he became a circuit judge. 
And in the interest of fuller disclosure, I will tell you he 
was an assistant district attorney in my office in 
Philadelphia. And in 1967, 1968, and 1969, he was, in my 
opinion, the most knowledgeable lawyer in America on 
constitutional procedure in the era of implementing Mapp and 
Miranda and lineups, et cetera.
    Judge Michel, you have a very extensive biography. It will 
be included in the record, but we appreciate your coming here 
today and look forward to your testimony.
    Under our Committee procedure, we have a 5-minute rule. To 
the extent you can accommodate that, we will--Senator Cornyn 
has just arrived. He used to be a judge. Senator Cornyn, would 
you care to make an opening statement?
    Senator Cornyn. Mr. Chairman, thanks for the opportunity, 
but I will pass.
    Chairman Specter. OK. Judge Michel, Chief Judge Michel.

 STATEMENT OF PAUL R. MICHEL, CHIEF JUDGE, UNITED STATES COURT 
      OF APPEALS FOR THE FEDERAL CIRCUIT, WASHINGTON, D.C.

    Judge Michel. Good morning, Mr. Chairman. Thank you for the 
opportunity to testify. It is a great pleasure for me 
personally to be back in this building and this room.
    I testify primarily in my capacity as the chief judge of 
the Court of Appeals for the Federal Circuit. I am also, as you 
know, a member of the Judicial Conference and, along with my 
friend Chief Judge John Walker and five other judges, a member 
of the Conference's Executive Committee. And indeed, I 
participated in the drafting of the two Conference letters 
which have been submitted to the Committee, and I agree with 
their content.
    However, rather than cover the policy aspects that are well 
covered in those two letters, I thought I could best contribute 
to the work of the Committee by concentrating on the capacity 
of the Federal Circuit to handle such a large increase in 
jurisdiction and caseload.
    If I might, I would like to first mention that I think that 
in many recent news articles and also in some of the letters 
sent by various people to the Committee, the notion that the 
Federal Circuit is a narrowly specialized court has been 
greatly overstated. I saw a news article published as recently 
as yesterday that said the Federal Circuit does patents and 
bankruptcy. Of course, it is entirely erroneous. We do no 
bankruptcy at all, and the patent cases make up a minority of 
our cases.
    I had sent the Committee a letter, and rather than spend 
more time on the extent to which we are not a narrowly 
specialized court, I might ask the Committee if the record 
could include my letter to the Committee of March 24th. It 
provides details about our actual jurisdiction.
    Chairman Specter. Without objection, your letter will be 
made a part of the record, Judge Michel.
    Judge Michel. Thank you kindly.
    Now, with respect to the workload, as the Committee knows, 
the present annual filings in the Federal Circuit Court of 
Appeals are about a thousand and a half. If the Chairman's mark 
were to be enacted into law, that would grow and become 
something on the order of 13,500, perhaps more, since the 
immigration petitions for review have been steadily 
increasing--so a huge, more than tenfold increase.
    At present, we have 15 judges, and just to make a 
comparison, the Ninth Circuit, which has something like a third 
of the present petitions for review, has 47 judges. We have 15. 
The Ninth Circuit has 85 staff attorneys. We have four. The 
Ninth Circuit has over 110 deputy clerks. We have 20. So when 
you multiply by a factor of 2 to 3 the Ninth Circuit resources, 
we would need essentially, as I indicated in my prepared 
testimony, to triple the size of our staff. That would also 
require the budget to be magnified at the level of 2 to 3 
times, and we would also need the equivalent of another 
courthouse in order to accommodate all those additional staff 
members.
    I should add that even with that very large-sounding staff, 
the Ninth Circuit, according to reports, has had great 
difficulty in carrying its one-third or so of the national 
immigration caseload. I also see that the caseload is rapidly 
rising, and there is a big difference between how it was 
measured last September versus now.
    Another way to focus on this is how long a ramp-up period 
we would need. Even if we were given triple the budget, triple 
the staff, double the space, we do not have the capacity to 
surge in a short period of time to absorb that kind of 
resource. For example, our computer system could not be 
expanded to support the staff of 400-plus or a caseload of on 
the order of 13,000 or 14,000. And certainly a transition 
period would be extensive, running into the order of a year and 
a half to 3 years, by my best estimate.
    Over the weekend, Senator, I tried to calculate the effect 
on the daily life of a member of our court if this increased 
caseload were given to us. I am down to 5 seconds, but, in 
essence, assuming that three-quarters of the immigration cases 
dropped off on the one-judge review, our workload would go from 
240 judge dispositions per year to 1,500, about a 7-time 
increase. And even counting the three additional judges 
provided for in the Committee mark, and assuming only 1 hour to 
do the one-judge review, which I think is probably not an 
accurate assumption, but even assuming that, the effect on the 
time allowed to do everything on a case, from reading the 
briefs, master the case, decide the case, write the opinion and 
so forth, which greatly decrease. Right now we do about a case 
a day. So we have 8 or 10 hours on average to do all the 
different aspects of adjudicating a case. At the assumption of 
a 75-percent dropoff rate and one-judge review, the 8 hours per 
case would drop to an hour and a half. And I think 
realistically we could not even learn the case by reading the 
briefs in an hour and a half. The briefs always consist of 
several hundred pages, the records often of thousands of pages. 
It is just not humanly possible, even with increased staff 
resources and three extra judges, to keep up with this kind of 
a caseload.
    So I think what would happen would be that the backlog 
would swell rapidly, and the risk would also be incurred that 
the quality of the dispositions, both in non-immigration cases 
and immigration cases, might not be what it should be or what 
it is presently.
    I thank the Committee for the chance to appear, and I would 
be happy to respond to questions when the time comes.
    [The prepared statement of Judge Michel appears as a 
submission for the record.]
    Chairman Specter. Well, Judge Michel, what you are saying, 
in essence, is that it would immediately overload, really swamp 
your Federal Circuit.
    Judge Michel. It would, Senator, under any set of 
assumptions that I have been able to make, because the combined 
one-judge review and panel caseload would be unsustainable even 
by 20 judges or 24 judges. It is hard to know the number of 
judges and assuming all the ratio of support staff that it 
would take. But it certainly could not be done by 15 judges.
    Chairman Specter. Well, when you say that you would need a 
new courthouse to accommodate the workload and the personnel 
you would have, that is something that cannot be provided 
overnight or very fast.
    Judge Michel. Exactly. The staff would have to swell from 
its present total of 140 by my calculation to approximately 
420. So we would need commercial office space or another 
building about the size of our present courthouse on Lafayette 
Park, where you yourself have visited, a nine-story modern 
office building. And it would take a lot of time to get such a 
building, if one is even available anywhere proximate to our 
courthouse. That is part of why we do not have the surge 
capacity. Even if handed all the money immediately, it would 
take time to get the office space, time to hire the staff. We 
would probably have to start an entire new computer system, 
which would have to be designed, built, tested, and 
implemented, which, again, would take probably years.
    Chairman Specter. Thank you very much, Chief Judge Michel. 
It is a bleak picture, but we want to know what the facts are 
so we can figure out what to do--try to figure out what to do.
    Our next witness is the chief judge of the Court of Appeals 
for the Second Circuit, Chief Judge John M. Walker, Jr. Judge 
Walker came to the circuit court in 1989. Prior to that he was 
district court judge in the Southern District of New York and 
has been chief judge since October 1st of the year 2000.
    Welcome, Chief Judge Walker, and the floor is yours.

 STATEMENT OF JOHN M. WALKER, JR., CHIEF JUDGE, UNITED STATES 
      COURT OF APPEALS FOR THE SECOND CIRCUIT, NEW HAVEN, 
                          CONNECTICUT.

    Judge Walker. Thank you, Mr. Chairman, Senator Cornyn, and 
members of the Committee. I thank you for the opportunity to 
appear here. As chief judge of the Second Circuit, I am 
responsible for one of the two courts that is bearing the brunt 
of the immigration appeal explosion right now, along with the 
Ninth Circuit. I do appear today in my individual capacity. I 
do not speak for the other judges in my court. And I do 
appreciate also the Committee's hard work on the very difficult 
issues relating to the whole issue of immigration reform, the 
national debate that is going on, but also, in particular, the 
impact of the proposed legislation on the adjudication of these 
disputes.
    For the past few years, I just wanted to give a little 
background. My court has been receiving immigration appeals at 
the rate of about 2,500 cases per year. Around a quarter of the 
cases that are filed nationally come to the Second Circuit. 
What we thought was a one-time bubble, as the BIA was ordered 
to clear its backlog in 2002, has now turned into a steady flow 
of cases, and most of these raise asylum issues. Over 90 
percent raise asylum issues. They are fact-intensive cases in 
which the petitioner is seeking to be relieved of the 
obligation to return to their home country by virtue of the 
fact that they claim persecution.
    To deal with this backlog that we had and that we currently 
have and are working on, in October 2005 a special non-argument 
calendar was set up for asylum cases, and we are adjudicating 
48 cases a week on the basis of this calendar, which we call 
the NAC, N-A-C. And we are doing it with three judges on each 
case. In the 6 months that it has been in effect, it is 
reducing our backlog, and we expect to eliminate it in no more 
than 4 years, maybe even 3 years. In this regard I want to 
publicly commend Circuit Judge Jon O. Newman, who is here 
today, who was the principal architect of the NAC Program.
    The principal reason, I think, for the current backlog in 
the Courts of Appeals, and the reason that we have higher 
expected numbers of cases being remanded are a severe lack of 
resources and manpower at the immigration judge and BIA levels 
in the Department of Justice. Only 215 immigration judges 
process filings of over 300,000 cases a year. That means a 
single judge has to dispose of 1,400 cases a year or nearly 27 
cases a well, or more than 5 each business day. Immigration 
judges simply cannot be expected to make thorough and competent 
findings of fact and conclusions of law under these 
circumstances. The BIA faces similar pressures. It has 11 
members currently and faces 43,000 filings a year. So each 
judge has to decide nearly 4,000 cases a year, a virtually 
impossible task.
    So I think there needs to be a substantial increase in the 
number of immigration judges and BIA members, and my testimony 
specifies in some detail the numbers that I think would be 
appropriate, basically doubling the numbers.
    Turning to Section 701 of the Chairman's original bill, 
which would take petitions for review out of the Regional 
Courts of Appeals and put them in the Federal Circuit, with all 
due respect, I believe that consolidating these appeals in the 
Federal Circuit would be a mistake for the following reasons.
    First of all, it will do nothing to improve the performance 
and productivity of the IJs and the BIA, which I think is the 
core problem in immigration adjudications, and which can only 
be addressed by additional resources.
    Second, as has been noted, it will swamp the Federal 
Circuit with petitions, a ninefold increase at least in its 
caseload, reducing the time for careful consideration, delaying 
dispositions and exacerbating the backlog.
    Third, it will run counter to the firmly accepted idea of 
our Nation's relying on generalist judges to adjudicate 
disputes, and it will also run afoul of the policy of the 
Judicial Conference, which disfavors specialized courts except 
in limited circumstances.
    It also, I think, runs the risk of politicizing the Federal 
Circuit, which could affect the reputations, not only of the 
Federal Circuit but of the judiciary as a whole, as the public 
and those responsible for nominations begin to view the Federal 
Circuit as determining primarily immigration cases, and then 
the views of the judges as pertains to immigration cases, and 
how they might dispose of such cases, would become paramount in 
the appointment process.
    Finally, I think that the centralization in the Federal 
Circuit would lose the benefits of having appeals heard in the 
community where the parties are located.
    Now, every circuit judge in the country today is 
available--if I could continue just for a few minutes, Mr. 
Chairman.
    Chairman Specter. Yes, you may, Judge Walker. Proceed.
    Judge Walker. At present, every circuit judge in the 
country, with the exception of those in the Federal Circuit 
today, is available to review immigration petitions. There are 
70 Federal judges available to dispose of these cases in the 
Second and Ninth Circuits alone, but even with the proposed 
expansion of the Federal Circuit to 15 judges, 15 judges would 
be responsible for the more than 12,000 petitions for review on 
top of that court's current caseload, and that current caseload 
is about 1,500 cases a year, as we have noted, as Judge Michel 
has noted.
    The Judicial Conference has long opposed the specialization 
of the Article III judiciary in favor of using generalist 
judges to decide cases, and this is a system that has served 
our Nation well throughout its history. The executive 
committee, just last Friday, confirmed that position, and is on 
record opposing the consolidation of immigration appeals in the 
Federal Circuit.
    At present, judges are not appointed to decide a specific 
class of cases generally. However, under the proposal, since 
the overwhelming majority, 90 percent of the docket of the 
Federal Circuit would be immigration appeals, that would 
change, and even if done with the best of motives, the 
appointment and confirmation of judges to the Federal Circuit 
would inevitably, I believe, tend to focus on how the nominee 
would be inclined to rule in immigration matters. Should this 
occur, the prestige of the Federal Circuit Court of Appeals, I 
think, would be impaired, as would the perception of 
impartiality that is so critical to the public's favorable view 
of the judiciary as a whole.
    Mr. Chairman, I am also troubled by the provisions of the 
proposed bill that provide that one judge decide whether the 
petitioner is entitled to Court of Appeals review. Currently, 
even under the more efficient NAC procedures of the Second 
Circuit, each alien's position receives the attention of three 
judges. But with the hastily administrative records that we are 
seeing, single-judge gatekeeping review would diminish, I 
think, the quality of review that these cases receive, and 
would not appreciably speed up the process, because all of 
these cases are so fact intensive, that the same staff attorney 
support would be required, as is the case today, and our NAC 
calendar is moving expeditiously in handling our backlog, and I 
don't think a single-judge review process would significantly 
improve that disposition rate.
    Again, I thank the Chairman and members of the Committee 
again, for bringing to light these issues, and in my view, 
again, the most single effective way to improve the functioning 
of judicial review of immigration proceedings is to give the 
Department of Justice the adequate resources to handle its 
caseload. I think the present structure of immigration review 
is really not the problem, and that the solution does not rely 
in changing it.
    Thank you, Mr. Chairman.
    [The prepared statement of Judge Walker appears as a 
submission for the record.]
    Chairman Specter. Thank you very much, Judge Walker.
    We now turn to Judge Carlos Bea of the Court of Appeals for 
the Ninth Circuit. Prior to coming to the Ninth Circuit, Judge 
Bea was on the Superior Court of California.
    May I add that the Ninth Circuit Chief Judge, Chief Judge 
Schroeder, has submitted testimony, as has Circuit Judge 
Kozinski of the Ninth Circuit, as has Judge Posner of the 
Seventh Circuit. We have also had the submission from the 
Judicial Conference of the United States.
    Thank you for joining us, Judge Bea, and we look forward to 
your testimony.

STATEMENT OF CARLOS T. BEA, CIRCUIT JUDGE, UNITED STATES COURT 
  OF APPEALS FOR THE NINTH CIRCUIT, SAN FRANCISCO, CALIFORNIA

    Judge Bea. Thank you very much, Mr. Chairman. Good morning, 
Senator Cornyn. Good morning, Senator Sessions. Good to see you 
again. Like Judge Walker, I want to make quite clear that the 
opinions I am about to express are my own, and do not represent 
those of the Ninth Circuit, which as you might guess, are on 
both sides of this issue. I am here to support the Chairman's 
mark, Title VII of this bill.
    My personal experience, if you will allow me, is a little 
bit unusual. I am probably the only circuit court judge in the 
United States who went through a deportation hearing as an 
alien, was deported, and won at the Board of Immigration 
Appeals. So I have been there and seen it. And also, in private 
practice, as the Honorary Vice-consul of Spain, I did a lot of 
pro bono work with Basque shepherds, and went to the 
Immigration Court and also the Ninth Circuit, so I have a 
little bit of experience as a lawyer also.
    I think the overwhelming need that is addressed by this 
mark is a need for national uniformity, a national policy. One 
doesn't immigrate to Idaho or Texas, one immigrates to the 
United States. We have very important problems which are 
circuit splits, and they can be in such issues as what is an 
aggravated felony from one State and what is not; is an order 
of removal necessary when somebody comes back in the country by 
an immigration judge, or can you do it by having the agent 
enforce or reinstate the order of removal? That is an issue 
which is presently split.
    The Supreme Court cannot take enough cases to give us 
supervision in all areas. What happens with this lack of 
uniformity is that you get forum shopping. It is very clear, 
asylum cases, which I agree are 90 percent of our immigration 
cases, which by the way, in the Ninth Circuit, immigration 
loaded between 46 and 48 percent of our overall calendar.
    In asylum cases the Fifth Circuit in Texas and in New 
Orleans has had 125 percent rise over the last 5 years. But the 
Ninth Circuit has had a 590 percent rise over the last 5 years. 
Now, why is that? The Fifth Circuit grants 9 percent of the 
Board of Immigration denials by reversing them. The Ninth 
Circuit grants 33 percent. If I were representing one of my old 
clients, I would do everything in the world to have him given 
up and proceed in the Ninth Circuit rather than in the Fifth 
Circuit. That is the forum shopping which actually exists today 
as a practical matter.
    The review by a one-judge court is not so unusual. We 
presently have reviews of habeas cases by a one-judge court, 
the district judge, and if he does not grant it, we have a two-
judge court in the Ninth Circuit take a look for certificate of 
appealability. It is not a new function.
    The criticisms that we have had that I have heard about 
generalists, the idea being that it would politicize the regime 
of appointing judges, I don't think that the appointing for 
results, which was talked about, has worked so well in the 
Supreme Court of the United States, and I don't think it is 
working in an of the circuit courts either. Judges tend to be 
very, very independent once they become Article III judges. The 
idea that the court located in Washington could not give 
justice throughout the country, I think, overlooked something 
which is very important. The Federal Circuit is the only 
circuit under 28 U.S.C. 48(a), which can hold hearings in any 
of the other circuits and any of the other cities. So they can 
come out to San Francisco. We have got plenty of courtrooms 
where they can have hearings. Plus, one must remember that in 
our particular circuit, last year we had 4,700 terminations of 
determinations of immigration cases. We had, of those 4,700, 
only 9 percent actually reached three-judge panels. We 
determined the rest of them either by motions or by screening 
panels of three judges that we did not think were worthy of 
argument, somewhat like the non-argument calendar.
    The idea that Federal judges have no immigration 
experience, I don't think many of us have immigration 
experience. I think I am an exception because I had some trial 
practice immigration experience. Immigration is a very 
complicated area. It is somewhat like tax law because we keep 
passing immigration bills, and there are layers. For instance, 
in asylum, you have asylum, you have withholding of removal, 
and you have the Convention Against Torture. It is three 
different acts, three different layers you have to go through 
in practically every immigration case. And it is a little bit 
like tax. That is why we have a Tax Court, and that is why we 
could have a review court here in the Federal Circuit.
    The backlog of cases is just growing, and there is an 
incentive--the backlog is an incentive for appeals. I agree 
with everything that Judge Walker said about the necessity to 
beef up the BIA process and the BIA opinions, and I know that 
is going to be the subject of the second panel so I will not 
address that.
    Some of the letters say that the only way to handle an 
immigration case is to do it as it is being done now, an 
immigration appeal. Some of the letters say that the 
particularized determination, the compassion that is shown by 
regional circuit court judges cannot be duplicated in a 
centralized court. I don't think we have a corner on 
compassion, and I think we can do some of the things which the 
chairman's mark has indicated and improve the rendition of 
justice immensely.
    Thank you very much.
    [The prepared statement of Judge Bea appears as a 
submission for the record.]
    Chairman Specter. Well, thank you very much, Judge Bea.
    We now turn to Judge Jon Newman, on the Federal bench for 
33 years, 7 years on the district court in Connecticut, 26 
years on the Second Circuit, had been chief judge for 4 years. 
And, again, in the interest of full disclosure, Judge Newman 
and I were classmates at Yale--I will not mention the year--
squash partners, and long conversations at a midway point 
between the two apartments where we lived.
    I could tell you more but I will not.
    Judge Newman. Thank you.
    [Laughter.]
    Chairman Specter. But I will mention one additional 
relevant factor, and that is that Judge Newman was a member of 
the Senate family. He was chief of staff for Senator Ribicoff.
    Thank you very much for joining us, Judge Newman. We look 
forward to your testimony.

 STATEMENT OF JON O. NEWMAN, SENIOR JUDGE, UNITED STATES COURT 
    OF APPEALS FOR THE SECOND CIRCUIT, HARTFORD, CONNECTICUT

    Judge Newman. Thank you, Mr. Chairman, Senator Sessions, 
Senator Cornyn. It is a great pleasure to be here and have a 
chance to discuss this issue with you.
    I want to touch briefly on three aspects of the proposal: 
the transfer proposal, the Certificate of Reviewability 
proposal, and the proposal to increase the personnel throughout 
the administrative process.
    With respect to the transfer to the Federal Circuit, I 
think it is useful if you think of that proposal as 
comprehending two very distinct issues: the first is whether 
there should be centralization at all, as distinguished from 
leaving the cases in the regional circuits; the second issue is 
if you decide in favor of centralization, where do you 
centralize. Those are separate issues.
    Like others who have testified and written, I strongly 
oppose centralization. I say this with all respect to the 
Federal Circuit. I do not doubt that they are estimable men and 
women who could handle it. I don't think it is an issue of who 
has more or less compassion. But never in the history of this 
country have we put cases involving personal liberty in a 
specialized court. The country has been served well by two 
centuries of leaving those issues in the courts of general 
jurisdiction manned by men and women selected for their broad 
experience. The Federal Circuit judges were selected in large 
part for their expertise in technical matters.
    Whether centralization is needed for uniformity I seriously 
doubt. Of course, in any system that is adjudicating thousands 
of cases, there are going to be a handful of examples of 
different outcomes. But the basic issue arising in asylum cases 
is not technical construction of the immigration statute. It is 
the much more mundane issue of reviewing a finding by an 
immigration judge and the BIA that the witness, usually the 
alien, was not credible, and the issue is was the credibility 
finding supported by substantial evidence. That is the type of 
thing generalist appellate judges do all the time when we 
review bench findings of district judges. And I suspect that in 
the general run of patent cases--I used to try those as a 
district judge. I don't think there are many credibility issues 
that come up in a patent issue. But we review credibility 
findings all the time in asylum cases, and I think it's better 
to leave those in the generalist court.
    The other issue against centralization, of course, is 
volume. Judge Michel and Judge Walker have given you the 
numbers, and I will not repeat them, and you have more detail 
on that from Judge Posner. To put all that volume in one place 
is a prescription for a train wreck. You are just going to clog 
the court, or you are going to have to so expand it and gear up 
its personnel, its staff, and even its building, as Judge 
Michel says, and at a huge cost. Do you add judges? The current 
figures I have seen are it is $1 million every time you create 
a new judgeship: the judge, personnel, staff, support and all 
that.
    So I would strongly urge you not to centralize, to leave 
personal liberty cases among the regional courts where they 
have always been in the history of this country. If you are 
going to centralize, then I urge you to consider not putting 
them in the Federal Circuit, whose personnel were not selected 
for that, but to give serious consideration to an alternative 
centralization proposal, namely, a panel of immigration--a 
special panel on immigration appeals drawn from the existing 
complement of circuit judges throughout the country and/or 
district judges, if you like, modeled on the FISA Court, with 
which this panel is very familiar, or the old TECA Court, 
Temporary Emergency Court of Appeals. Those were courts to 
handle a group of cases drawn from the courts of appeal, 
selected by the Chief Justice, and there are other selection 
mechanisms which you could consider. It would provide one 
court. It would be based in Washington, if that is where the 
Department of Justice thinks it is better to litigate. And it 
can sit around the country if it wants, and it would provide 
flexibility.
    Your bill proposes adding three judges to the Federal 
Circuit. I think most people think three judges could not 
possibly handle this problem. But a panel drawn from the ranks 
of the sitting judges would, A, not cost you any money, which I 
think is a virtue; and, B, provide you flexibility. If the 
Chief Justice saw the volume needed judges, nine judges, 21 
judges in 1 year, 21 could be drawn. If in the next year the 
volume was down, only needed 15 or 11, you could adjust the 
volume. So it offers flexibility. It offers a primarily 
Washington-based court. It offers generalist judges. And it 
follows the pattern we have used in the past and avoids a 
specialized court.
    Just briefly on Certificate of Reviewability. We have never 
in the history of this country allowed one judge to cutoff 
appeal on an issue of personal liberty in a case that has not 
been fully reviewed by a prior judicial system. My guess is 
this proposal was modeled on the COA, the Certificate of 
Appealability, which applies from appeal on a district court 
denial of habeas corpus. But those cases, as this panel well 
knows, are cases that have been fully reviewed by the entirety 
of a State judicial system and by an Article III district 
judge. To permit a Certificate of Reviewability there made 
sense, although it is interesting that almost every circuit 
uses three judges even to review those. But there has been full 
review. We have never, never let one judge cutoff review on a 
case involving personal liberty that has not been fully 
considered by a full complement of judges.
    A last point on the personnel. That is the best part of the 
bill, if I may say so. You need more IJs. You need more BIA 
members. You need to go back to the so-called streamline 
proposal, which proved to be a disaster and burdened all of us 
with these thousands of cases, many with one-line affirmance 
opinions which are not the way to handle an administrative 
process. So you need more IJs. You need more BIA members. And 
you need the cohort of attorneys that your bill calls for, both 
in OIL and EOIR and the U.S. Attorney's Office to properly 
staff it. In short, you need a thoroughly financed, well-funded 
administrative system to handle these thousands of cases. You 
do not need to disrupt it by moving all the cases out of the 
hands of generalist judges. But if you are interested in 
centralization, then I urge you to centralize in a special 
panel drawn from the courts of appeals and not put into a 
specialized court.
    Thank you, Mr. Chairman.
    [The prepared statement of Judge Newman appears as a 
submission for the record.]
    Chairman Specter. Thank you very much, Judge Newman.
    Our final jurist on this panel is Judge John Roll from the 
United States District Court for the District of Arizona, where 
he has been a judge since 1991, and prior to that time was in 
the State court system of Arizona.
    Thank you for coming in today, Judge Roll, and we look 
forward to your testimony.

STATEMENT OF JOHN MCCARTHY ROLL, DISTRICT JUDGE, UNITED STATES 
  DISTRICT COURT FOR THE DISTRICT OF ARIZONA, TUCSON, ARIZONA

    Judge Roll. Thank you, Chairman Specter. Good morning, and 
good morning, Senator Sessions and Senator Cornyn. My name is 
John Roll. I am a district judge in Arizona. Beginning May the 
1st, I will be the chief judge for the district. I speak only 
for myself at this time. It is an honor to appear before this 
Committee, and it is certainly daunting to appear as a member 
of such a distinguished list of witnesses.
    I speak in favor of the Chairman's mark in this case. I 
believe that consolidation would be a good thing. I think it is 
appropriate. I realize you have received the letter from the 
Judicial Conference in opposition to the proposal of the 
consolidation. I would like to touch on just a few points in 
connection with that.
    The letter points out that subject-matter courts are only 
appropriate where national uniformity is crucial. It would seem 
that immigration is exactly such a topic.
    The written testimony that I have submitted points out 
several examples of inconsistencies, not only inter-circuit but 
intra-circuit, in connection with immigration issues. These 
include how circuits go about evaluating immigration judges' 
credibility determinations, derivative asylum issues, and 
retroactivity of deportation orders. There are conflicts inter-
circuit and intra-circuit as to these various matters, and 
there should be national uniformity.
    The letter from the Judicial Conference also refers to 
regional courts that have developed expertise, and I am certain 
that is true. But if one circuit were to handle all of the 
appeals from the Board of Immigration Appeals, they would have 
an expertise unmatched by any circuit that currently hears 
these matters.
    It has also been referred to in the letter the fact that 
litigants may find that their cases are decided in distant 
tribunals. I suspect that many litigants already feel that 
their cases are being decided in distant tribunals when they 
are heard in San Francisco, for instance, in the Ninth Circuit. 
But as has already been mentioned, 28 U.S.C. Section 48 would 
permit the Federal Circuit to go to the busiest cities and to 
conduct hearings in connection with those matters. It has also 
been mentioned that most of these cases are submitted on the 
briefs.
    Another reason that is a compelling reason for this 
particular consolidation is that it would help a severely 
overburdened Ninth Circuit Court of Appeals. The caseload in 
the Ninth Circuit is now approaching 17,000 pending appeals, 
several times what the average is for the other circuits. That 
represents 28 percent of all of the pending Federal appeals in 
the United States of the 12 geographical circuits. Its 
population is one contributing factor to this. The population 
in the Ninth Circuit is approaching 60 million people, one-
fifth of the United States. It consists of nine States, a 
territory, and a Commonwealth. The other circuits average four, 
and, of course, one of those nine States is California. This 
shows up in a number of different ways, and I will just pick 
two examples. One of them is the Ninth Circuit is the slowest 
circuit in the United States in decisional time. That is the 
time measured from the time of the filing of notice of appeal 
to the time of disposition. And that is the time that matters 
to the litigants.
    The Ninth Circuit now takes 16.6 months per case. The 
average for all of the circuits, even when you add in the Ninth 
Circuit, is 12.1 months. The next lowest circuit is 2.5 months 
faster than the Ninth Circuit Court of Appeals.
    Also, the Ninth Circuit is the most reversed circuit, and 
perhaps that would be understandable because of the volume of 
cases that the Ninth Circuit hears. But the Ninth Circuit is 
the most unanimously reversed circuit by the Supreme Court.
    Since the White Report was issued in 1998, the Ninth 
Circuit has unanimously been reversed by the Supreme Court 59 
times. I have included in my submission in conjunction with my 
written testimony, Attachment G, which lists those 59 unanimous 
reversals by the Supreme Court. I have included, as Attachment 
C, the list of Administrative Office records that show that the 
Ninth Circuit is the slowest circuit, and Attachment A reflects 
the caseloads among the various circuits.
    The Chairman's mark would result in about 6,500 cases--
assuming the pending cases were transferred--being removed from 
the Ninth Circuit Court of Appeals. This would be of benefit to 
a circuit that is severely overburdened.
    Thank you again for the opportunity to appear before you.
    [The prepared statement of Judge Roll appears as a 
submission for the record.]
    Chairman Specter. Thank you very much, Judge Roll.
    We now proceed to the questioning from the Senators, and 
our practice is to limit it to 5 minutes, but we will obviously 
have more than one round today as we go through the process.
    Judge Newman, would your suggestion be that the new court 
of Washington, presumably, would be full time for these circuit 
judges, or would they retain responsibilities in the circuit 
for regular assignment as well?
    Judge Newman. I think that would depend on how many were 
initially chosen. If only three were chosen, I think they would 
be pretty much full time. If a large panel were chosen along 
the models of FISA, then I think they could retain a 
substantial caseload in their own circuit.
    Chairman Specter. Don't we face a similar problem to that 
that Judge Michel has stated, a courthouse, computer system, 
staff, if we are going to put all these--
    Judge Newman. I don't think so. For example, if one, two or 
three judges were selected from the Second Circuit to staff 
such a panel, I would think they would use the staff resources 
of the staff attorneys office in New York who are already 
there, who are writing memos on these cases, scores of them 
every day. I don't think they would move to Washington. The 
judges could come to Washington for the hearing, or the hearing 
could be held elsewhere, or it could be done by closed circuit 
television, as we now do with lawyers all over the country. 
There are many flexible ways to handle the logistics of this.
    Chairman Specter. What do you think of Judge Becker's idea 
to reassign cases to have some--an analogy to the Multidistrict 
Panel, where you take a look at the Ninth Circuit is 
overburdened, the Tenth Circuit has very few, and we assign 
some cases there. What do you think of that?
    Judge Newman. Between circuits?
    Chairman Specter. Yes.
    Judge Newman. Well, of course, I think you would have to 
change the venue provisions. You would want to discuss--
    Chairman Specter. You have that in any event.
    Judge Newman. You would, you would. You would want to 
discuss with the bar whether the lawyers from one part of the 
country want to be transferred to another part of the country.
    Chairman Specter. Well, if you have it in Washington, they 
are going to be traveling.
    Judge Newman. They would, yes. Oh, I thought you meant just 
from the Ninth to the Tenth, and send them--
    Chairman Specter. No, no. Some administrator or panel would 
take a look at the imbalance. Say the Ninth Circuit was 
overburdened, say the Second Circuit was, another circuit is 
not.
    Judge Walker, you have your hand up.
    Judge Walker. There is an option here, and that would be 
using a panel like that to, in effect, allocate cases to the 
circuits on a pro rata basis. Every circuit has a--this does 
not address, of course, the uniformity question, but it does 
address the backlog unevenness that would occur, that is 
occurring now. And you could take into account the pro rata 
amount of decisions that each circuit is making in a general 
way on all their cases, and then simply assign the immigration 
cases to those circuits on that basis.
    Chairman Specter. You think that would be a practical way 
of handing it?
    Judge Walker. I think it would a practical way of handling 
it.
    Chairman Specter. I was--
    Judge Walker. I have one other comment if I could, and that 
is with regard to Judge Newman's, in effect, fall-back 
position, which would be this panel. It would have the virtue 
of creating a uniform body of law because it would be a 
separate panel that would be presumably subject to rules of 
precedence that would apply to that panel, so that 
notwithstanding--if I am a Second Circuit Judge, and I have 
ruled or our court has ruled in a certain way, when you are 
transferred to the panel, the immigration panel, you would be 
governed by rules of law that would apply to that panel, as if 
it were a separate court.
    Chairman Specter. I am going to want to explore with you, 
but not on the record at this moment, logistically how we would 
do that. I was struck by your comment that going to the Federal 
Circuit, you would be politicizing.
    I will ask you first, Judge Walker, and then Judge Michel, 
why do you think it would politicize matters, and then I will 
let the defense speak.
    Judge Walker. Well, I don't particularly think that it 
necessarily would. I just thought that--I do believe that there 
is always a risk when you take a highly politically charged 
issue and put it into--
    Chairman Specter. What is there political about the 
individual cases? There is a lot of politics involved on 
whether we are going to have a guest worker program, but when 
an individual matter comes to the circuit court, what is so 
political about that?
    Judge Walker. There's nothing terribly political about that 
itself. It would really be a question of--courts get 
reputations. Are they more or less inclined to favor one side 
rather than another. That would be the only issue that would 
come up.
    Chairman Specter. Chief Judge Michel, if you do draw this 
assignment, what do you think about Chief Judge Walker's 
concern about the politicization?
    Judge Michel. I really have no way to evaluate it. It 
depends on the Justice Department, the White House, and the 
Senate on confirmations. It seems to me it's hard to know.
    There is a danger if the court becomes a 90 percent plus 
immigration court, that immigration predictions will play a 
significant role in selection of judges. So there is some risk. 
How to quantify it, who knows?
    Chairman Specter. The red light went on during Judge 
Michel's answer. You are permitted to answer. The red light 
just governs the questioner.
    Senator Cornyn, under the early bird rule.
    Senator Cornyn. Thank you, Mr. Chairman.
    I would like to express my gratitude to the panel for being 
here and helping us figure this out. I think all of you have 
made a valuable contribution trying to figure this difficult 
issue out. It strikes me that probably no judge would like to 
sit, get up in the morning and go to work and decide 
immigration appeals from start to the end of the day, and do 
that day after day, 365 days a year for their entire tenure, 
and I think there is something to be said for avoiding judicial 
burnout. I would also tend to agree that there is virtue in the 
generalist judge who brings a variety of experience to decide 
individual cases.
    But here it strikes me we are trying to figure out how do 
we achieve the value of uniformity and predictability and the 
expertise that judges would bring to these appeals that would 
allow us to handle such a high volume, and to do it in a 
shorter period of time than is done now.
    Mr. Chairman, I am glad that we are also talking about the 
additional staff that would be necessary. These judges would 
not be the only ones looking at the case. In fact, every judge 
depends a lot on the staff to prepare the case for their 
review, and I think if we are going to make this massive 
immigration reform bill work, we are going to have to make sure 
at all levels, whether it is the Department of Justice or the 
judiciary, or through Department of Homeland Security, that the 
staff is there to process the huge caseload.
    Let me turn to--Judge Walker, you mentioned that you 
thought the alternative to the proposal before us would be to 
make sure that the Department of Justice has adequate 
resources. Would you see that as a complete solution, and if 
so, would you explain that, please?
    Judge Walker. Yes. Well, part of the backlog, the real 
reason for the backlog I think can be traced back to the 
streamlining decisions that have occurred in the Department of 
Justice, which are understandable given the huge backlog that 
they have, and that is, the idea that a single BIA judge can 
effectively decide an immigration appeal by affirming without 
opinion. So that streamlining procedure has led to a push on 
the part of the litigants to have their cases now decided in 
the Courts of Appeals, instead of in the administrative agency. 
So the Court of Appeals becomes the first effective review of 
the immigration judge's decision.
    With that, there has been this burgeoning of cases, and in 
addition, we're seeing, with the streamlining and the 
burgeoning of cases, that not only are more cases coming 
through the BIA at a faster rate, but more--but a higher 
percentage of the cases that are pushed through the BIA are 
being appealed than was the case before. So it's a ratcheting 
on two different levels, and that's what explain, in my view, 
this huge backlog and flood of immigration cases that amount to 
now 12,000 a year.
    So that if we go back, just to answer your question again, 
if we can go back to basics and see that the BIA and the IJs 
have sufficient resources, then the issue will basically be 
litigated at the agency level which is where it should be 
litigated.
    Senator Cornyn. That sounds to me like that would be a 
valuable thing to push the cases down to be decided at the 
lowest level of the administrative process they could be 
without the necessity of getting circuit court judges involved.
    But would you agree with me that if you could get greater 
uniformity of results, that would have a tendency to decrease 
the number of appeals, and thus, make the problem more 
manageable?
    Judge Walker. I think that to some extent, that is true. 
Also, I think though that the number of appeals depend upon the 
backlogs that have been generated, so that if you have--and 
that's the venue provision that we're talking about. Currently, 
the venue provision is tied to the place where the immigration 
judge renders his final decision. If it's the Ninth Circuit, 
then it's there. If it's the second Circuit--and a lot of these 
litigants have connections to the Ninth Circuit or reside in 
the Ninth Circuit or the Second Circuit. In the Second Circuit 
we have a huge number of immigrants of Chinese national origin, 
and they congregate in New York. So that is another reason why 
cases are coming to particular circuits.
    And then once they come to particular circuits, and the 
backlogs develop in the particular circuits, then that becomes 
a desirable place for future litigants to file their cases 
because they'll be at the end of the queue, and the longer 
they're at the end of the queue, the better off they are, 
because the name of the game for them is to remain in the 
country.
    Senator Cornyn. Mr. Chairman, I am intrigued by Judge 
Newman's idea of an analog to the FISA Court. It seems to me it 
strikes an interesting balance between the need for uniformity, 
yet sort of an alternative to dumping all of the cases on one 
court.
    If I may, Judge Bea, you had a comment, I believe on the 
question of--
    Judge Bea. Yes. I quite agree with what Judge Walker said 
regarding the attractiveness of the appeals process to the 
alien who wishes to stay here. The bigger the backlog you have, 
if the alien could be put at the back of the line, he can wait 
out changes in legislation such as are happening at the present 
time. Also there may be changes in his personal circumstances 
that would help him in getting a cancellation of removal.
    So while it is absolutely necessary to better the Board of 
Immigration Appeals--and I think on that we're all in 
agreement--let's not think that that's going to stop the 
appeals going to the Courts of Appeal. When there is greater 
uniformity and the sure prospect of a denial, that might help.
    Chairman Specter. Thank you, Senator Cornyn.
    Senator Sessions.
    Senator Sessions. Thank you, Mr. Chairman, for wrestling 
with this important issue as we deal with, I think, 300,000 
plus appeals a year. It is obvious that this is a massive 
undertaking and it needs to be given a great deal of thought. 
Weaknesses in any part of the system can allow problems to 
occur, increase appeals in a way that is not legitimate, and 
drive these numbers to an even greater degree.
    I guess, Judge Bea, you were saying that to the extent to 
which you had a system that rule promptly and consistently with 
predictability, and a litigant knows that their case, based on 
the consistent law of the circuit or the court, is inevitably 
weak and will not prevail, that they are less likely to appeal 
in the first place?
    Judge Bea. They should, that should work. When you know 
that your chances in the Fifth Circuit are going to be one 
third of what they are in the Ninth Circuit, then there is an 
incentive, obviously, to give up, or have your hearing in the 
Ninth Circuit. If there were uniformity of result or of appeal, 
then you would think that there would be less appeals from the 
Board of Immigration Appeals.
    Senator Sessions. There is still a fairly low standard for 
this certificate in the Chairman's mark. I mean, all the 
petitioner would need to do to establish a petition for review 
would be a prima facie case; is that right, Judge Walker? So it 
is still not an overly high standard to get a hearing, a full 
hearing.
    Judge Walker. My understanding is that that is true. If 
it's just--and I understand there's been debate about what the 
standard would be. I am not sure exactly what the Committee is 
thinking of at the moment, but if it's a prima facie case, 
that's true. The problem--
    Senator Sessions. That is the language in the mark.
    Judge Walker. That's currently the mark. But the problem 
is, as Judge Newman has pointed out, that these cases really 
don't--really turn on credibility issues, so they're fact 
intensive, and a prima facie case could be made out by the 
alien, but then you would have to assess credibility, and 
whether the IJ has really focused on credibility in reaching 
that determination, that there was no merit to the case. So 
that is going to require essentially the same investigation by 
the judge in reviewing the case as currently occurs.
    Senator Sessions. Judge Michel, on the caseload per 
circuit, per judge in a circuit, your circuit is one of the 
lower; is that correct?
    Judge Michel. Yes, it is, Senator, and we struggle to stay 
current and deal with the massive patent and trade and contract 
and personnel cases that we have in very large numbers.
    Senator Sessions. Is it the D.C. Circuit that is lower per 
judge than you are, or are you the lowest in the circuit?
    Judge Michel. They're very similar. They're very similar 
annual case filings, similar caseloads per judge.
    Senator Sessions. I thank you for your willingness to 
consider this, and respond appropriately.
    We are in a situation in our country that the immigration 
legal system is not working. As a result the immigration has 
become more and more illegal. In the whole system, there are a 
host different problems that arise in a whole series of 
different areas, and in almost each one of those areas we are 
not functioning well. So I would salute the Chairman for 
thinking creatively to try to make our court system be able to 
respond effectively. At some point if people oppose every 
single process reform necessary to make this system work, we 
are never going to make it work. And my observation has been 
that anytime someone comes up with an idea that might actually 
work in the real world and relieve the stress on the courts or 
the border or the workplace, that turns out to be 
controversial. So it is a difficult thing, and I look forward 
to studying this carefully.
    I do note, Mr. Chairman, that all of our circuits carry a 
pretty good number of immigration cases, and one of the 
principles I have observed as Chairman of the Courts 
Subcommittee is that most of our courts do not want to keep 
adding more and more judges and getting larger and larger 
because it impacts their collegiality and ability to function. 
And they would like to keep it slower. They complain about too 
many Federal laws creating too many causes of action. That 
stresses the courts.
    So I would think that from that point of view--Judge Roll, 
you might comment on it--it could relieve some pressure to make 
the circuits larger and larger. But with regard to the Ninth 
Circuit, do you think this would impact your view that the 
court still would be too large to function effectively if it 
took these cases out? In other words, one of the issues at the 
Ninth Circuit is the caseload is heavy. It is not the heaviest 
per judge in the country, but it is heavy. And how would this 
impact your view about division of the circuit?
    Judge Roll. Well, it wouldn't change it. I think that there 
would still be compelling reasons for a circuit split. I think 
that the best of all worlds would be the Chairman's mark 
coupled with S. 1845. And I say that because just this alone 
won't change some of the factors that are just present in the 
Ninth Circuit. You will still have a fifth of the population in 
the Ninth Circuit. That is going to generate significant 
caseload.
    The Ninth Circuit has 28 active circuit-authorized 
judgeships and needs seven more. That is why they have to have 
the limited en banc, which is structurally flawed, and Justice 
O'Connor pointed that out in her letter to the White Commission 
in the summer of 1998.
    If this were to be adopted, the Chairman's mark, along with 
the proposal to split the Ninth Circuit, it would result in a 
new Ninth Circuit consisting of California, Hawaii, and the 
islands that would have 60 percent of the judges and 60 percent 
of the caseload, and the new Twelfth Circuit would have 40 
percent of the caseload and 40 percent of the judges--a parity 
that was discussed at a previous hearing in October of last 
year concerning the disparity that might exist if just S. 
1845--
    Senator Sessions. Well, we better not go too much into all 
of that.
    Judge Roll. All right. Thank you.
    Senator Sessions. We could have a long discussion. But 
thank you for your perspective.
    Chairman Specter. Judge Newman, would you care to respond?
    Judge Newman. Yes, I just had a couple of words on the 
uniformity issue. Sure, there are some circuit splits, but 
there are examples of circuit splits on every issue you can 
mention. In the aftermath of Booker in the Supreme Court, the 
circuits were all over the lot. You could make the argument 
that any category of cases should be centralized in order to 
avoid uniformity. We have never gone down that road wholesale 
in this country. I don't think we should.
    Second, to think that straightening out circuit splits on 
the statute would decrease the appeals I think is an illusion, 
and I will tell you why. They do not appeal because they want 
the benefit of a construction of the statute. They appeal 
because they are challenging the credibility finding. That is 
the dominant issue in almost all the cases. And it does not 
matter how you read the statute. You are always going to have a 
credibility finding by the IJ, and the alien and his lawyer are 
going to say it is not supported by substantial evidence.
    Third, to the extent you are worried about lack of 
uniformity, if instead of putting these cases in the Federal 
Circuit you went to some sort of a special immigration panel 
drawn from the sitting judges of the Article III courts around 
the country, they could resolve any disputes by either a full 
en banc procedure or a mini-en banc procedure following the 
Ninth Circuit model; or if you wanted, you could even have a 
special panel that only resolved disputes, which was the 
proposal Chief Justice Burger made many, many years ago to 
resolve inter-circuit disputes.
    So there are ways to resolve statutory conflicts without 
moving all these cases wholesale to one court. But if you want 
to centralize, please centralize in a court drawn from the 
existing cadre of personnel. We have never done it differently 
in the history of this country on issues of liberty, and to do 
it into one court and overburden it will cost you a lot of 
money and create a huge logjam.
    Thank you.
    Chairman Specter. As we begin the second round, I am glad 
to see the clock is reset at five.
    Judge Newman, following up on that idea, the thought of 
having a court below the Supreme Court resolve circuit splits 
has never taken hold. But there might be a little narrower 
ground here on uniformity by utilizing a special panel, perhaps 
of five circuit judges, to resolve the split, so that if we did 
not go to the Federal Circuit, we would be able to maintain the 
uniformity factor. Do you think that is a practical way to 
handle it?
    Judge Newman. Yes, I think that is one of the ways to 
handle it. If you want to centralize all the cases in the 
court, then I would suggest, as I said, centralize them all in 
a broad panel drawn from the existing ranks, staff with--
    Chairman Specter. Well, I am thinking--
    Judge Newman. If you just want to do uniformity, if that is 
the focus, then authorize the Chief Justice to designate a 
panel of five, seven, whatever number seems appropriate, to 
resolve inter-circuit conflicts.
    Chairman Specter. Well, I am thinking about the possibility 
of reassigning among the circuits in order to have it spread 
out better, but then to solve this issue of uniformity, where 
we are looking to the Federal Circuit or one circuit to have 
uniformity, to create a special panel of five judges to sit en 
banc or seven.
    Judge Michel, I was surprised to find that after an 
immigration judge decides a case and the Board of Immigration 
Appeals affirms, the Attorney General has the authority to set 
that aside. We questioned Attorney General Ashcroft on that 
subject at substantial length, and the best answer that the 
Department of Justice could give was that it is very 
infrequently used.
    Do you think that it is sound to leave with the Attorney 
General the authority to overrule the immigration judge upheld 
by the Board of Immigration Appeals?
    Judge Michel. Well, Senator, there is an analogue in trade 
law, where the President can overrule the decisions of the 
International Trade Commission for broad reasons of world 
economics or foreign policy.
    Chairman Specter. Well, that is the President, and that is 
a foreign policy implication.
    Judge Michel. Well, it seems to me the Attorney General has 
the responsibility for the employees of the Justice Department 
who make up the immigration judges and the immigration board. 
So it doesn't seem to me particularly anomalous. It is 
apparently not used often. There is some dispute about the 
extent to which it should be reviewable by an Article III court 
of appeals. But it doesn't seem to me that it is a big factor 
in these 43,000 decisions and the 30-plus-percent appeal rate 
that is now flooding all of the Federal appeals courts.
    Chairman Specter. But you would not let the Attorney 
General overrule the circuit court?
    Judge Michel. Certainly not.
    Chairman Specter. OK. Well, I want to come to the 
composition of the immigration judges, which is very much on 
our minds, and I want to start with you, Judge Roll, on this 
question. We are considering having, first of all, a 
substantial increase in the number of immigration judges, about 
214 now, to go up by 100 over 5 years. And our thinking to give 
them greater independence is to have them appointed by the 
Director, a newly created position, on consultation with the 
Attorney General where they have to meet minimum standards and 
be ranked by the Merit Systems Protection Board and be fireable 
for cause subject to review by the Merit Systems Protection 
Board.
    Considering your experience in this field, do you think 
that would be an improvement on the selection and composition 
of immigration judges?
    Judge Roll. Mr. Chairman, I think that the immigration 
judges have an enormous caseload that they attempt to address, 
and they do the best that they can under very difficult 
circumstances. I think anything that could be done to increase 
their number, to increase the pool of individuals, the 
qualifications, all of that would be useful. But there are 
obviously--
    Chairman Specter. But how about the issue of giving them a 
little more independence from the Attorney General?
    Judge Roll. Rather than venture an opinion on that, and I 
think that it may certainly have something to commend itself, I 
would rather defer to the other members of the panel as far 
as--
    Chairman Specter. Judge Bea, what do you think about a 
little more independence for the immigration judges?
    Judge Bea. I am always in favor of independence for judges.
    [Laughter.]
    Chairman Specter. I am, too.
    Judge Bea. And I think it is a very good idea. As someone 
who has been before immigration judges, I quite agree they are 
overburdened, they have too much work, we need more of them. 
But nothing helps more, I think, for a judge to know that he is 
not beholden to any particular district attorney or U.S. 
Attorney or Attorney General. I think it would help. And I 
don't know what the position of the administration is on this 
bill, but it makes a lot of sense to me.
    Chairman Specter. Senator Sessions, round two.
    Senator Sessions. Well, it is an executive function 
primarily to enforce the laws and determine these matters and 
make decisions, and having been in the Department of Justice 
quite a long time, you realize you are an executive branch 
function. Ultimately, we do provide judicial review to make 
sure that the executive has conducted themselves properly in 
handling the laws that are passed. So I am not confident that 
this is the correct way to do this, to remove it from the 
executive branch. And then we want to know, well, why don't you 
fix it? Why isn't it working? And nobody is responsible. 
Everybody blames somebody else. At least when the executive has 
the responsibility and the authority, you can hold them 
accountable.
    Well, I don't know, Mr. Chairman. I will just wrap up and 
say I think uniformity would be good, and we could attain that 
by this court. I believe we could enhance the speed of 
disposition, which in itself the delays can encourage appeals 
for the reason Judge Bea suggested. Many times a delay could be 
advantageous to someone. And the Ninth Circuit, who is doing 
most of the cases, has the biggest backlog and the longest 
delay of any other circuit.
    I do think that a good case has been made that we need more 
immigration judges that when the cases hit the Federal courts, 
they are more and better prepared and more thoughtfully put 
out.
    With regard to liberty, I take very seriously liberty in 
the United States, but I think these are somewhat different 
than what we would normally consider liberty cases. A person 
wants to come into the United States, they do not have the 
constitutional right to enter the United States, and it is not 
really a denial of liberty to say you do not quality to be able 
to come into the United States. But they certainly are matters 
of great import and need to be treated with great care.
    Thank you for this panel.
    Chairman Specter. Thank you very much, Senator Sessions.
    With respect to the Board of Immigration Appeals, there has 
been a lot of dissatisfaction expressed from the one-line 
opinions and the reduction of number. The Chairman's mark 
increases the number to 23, and provides for three-judge 
panels, and opinions to be written.
    Judge Walker, what is your evaluation of the current system 
with respect to placing an additional burden on the circuit 
courts which have to review them?
    Judge Walker. Mr. Chairman, if the one-line orders are 
removed from the picture and the streamlining process is 
eliminated so that three-judge panels are deciding it, and more 
resources are given to the BIA, then the Courts of Appeals will 
have much more confidence in the BIA's determination, and it 
will shift the first review from the Courts of Appeals, as it 
presently is now, back to the BIA, which is where it belongs. 
So I totally applaud this effort on the part of the Chairman, 
on the part of you, to give the BIA adequate resources and ask 
them to do their job of deciding these cases and doing so by 
written opinion. It will make a big difference to the Courts of 
Appeals.
    Chairman Specter. You talk about more confidence. If you 
have an opinion, do you have better analysis, do you have 
more--
    Judge Walker. We don't have confidence, frankly, that the 
BIA has really looked at the case. I mean, even though they've 
reviewed, they're told--they affirm without order, but we look 
at the numbers, the drastic numbers that they have to deal 
with, 4,000 cases per judge under the current system per year, 
which, as I pointed out, is a huge number per day, 80 per week 
or something of that sort, and so one really gets the sense 
that we are the first line of review for these cases.
    Mr. Chairman, if I could also point out the issue, or speak 
to the issue that you mentioned about the independence of the 
IJs. I am not sure that a lack of independence is a problem. I 
don't have the specific numbers here, but I was surprised to 
learn that a large number of cases result in asylum being 
granted by the asylum officer before it even gets to the IJ, 
and then after it gets to the IJ, a high percentage, about, as 
I recall, some 30 percent are granted asylum by the IJs. We 
never see those cases. So a high percentage of cases--and I 
think that it would be useful to get these figures--result in 
asylum being granted before the cases ever come into 
litigation.
    The cases that we see, of course, are the ones where the IJ 
is denied asylum, usually based on a finding of lack of 
credibility on the part of the petitioner, and that the BIA has 
summarily affirmed. And then it comes to us, and we just review 
the record to see whether the IJ had substantial evidence for 
the credibility determination. That's the way these cases break 
down. But there are a whole lot of other cases that we never 
see, and I think we need to factor into this. And if that's the 
case--
    Chairman Specter. On those cases which you do not see, do 
you think you should see them?
    Judge Walker. No. I'm not saying we should see them. 
Nobody's appealed them. I'm saying we don't see them because 
the IJs have granted asylum, and they don't come to us when the 
IJs have granted asylum.
    Chairman Specter. Do you sense that the decisions on 
asylum, for example, are decided by and large correctly by the 
immigration judge?
    Judge Walker. Generally speaking, I think they do a good 
job, yes. I mean the only time it is an issue is when we can't 
really tell how they went through the process, but in my view, 
the IJs are doing a good job of the cases that I see. When 
they're denying asylum, I think that in most cases that is a 
correct decision.
    My point goes to the question of independence. It seems to 
me that the IJs are exercising independence if they are 
granting asylum in some cases and denying asylum in other 
cases. They're looking at the cases as any judge would, taking 
an independent look at the facts, and deciding it under the 
law.
    I don't see, and I would never suggest, frankly, based on 
anything that I've seen, that the Attorney General is 
overbearing in terms of the way the IJs are deciding the cases, 
that somehow pressure is being put on the IJs to come out a 
certain way.
    Chairman Specter. Judge Bea, would you try to comment on 
that?
    Judge Bea. In my own particular case, I had about a 12-page 
BIA decision, which was marvelously well reasoned and came to a 
terrific result.
    Chairman Specter. You won that case.
    Judge Bea. I won that case. Now, that doesn't happen 
anymore, and the result is we get the one-line affirmance. And 
instead of having a three-judge panel that has analyzed the 
issues and gone to the one issue on which the case turns, and 
then you can check the record to see if that is correctly 
decided, we get a one-line affirmance and we have to take a 
look at the whole record below, and sort of fish through to see 
if there are any issues worthy of appeal.
    The cost is in time and delay, and I'm very conscious of 
the fact that 46 to 48 percent of our cases in the Ninth 
Circuit are immigration cases. If those were reassigned either 
to the Federal Circuit, or under Judge Newman's proposal, to a 
panel, that would be a sea change as far as the Ninth Circuit 
would be concerned.
    Chairman Specter. Judge Newman, we hear complaints from 
time to time about various judges not Article III judges, who 
may be following the administration wish on Social Security 
cases or on immigration cases, and there has been a periodic 
push to have more independence along these judicial lines, so-
called judicial lines, where they are not independent. It seems 
to me, when we are taking a look at rewriting the immigration 
laws, this is a chance for us to take a look and make some 
changes to the immigration judges. Do you think some 
modification would be desirable to grant greater independence 
to the immigration judges?
    Judge Newman. I'm not certain. I think Judge Walker makes a 
very strong point, that taking the administrative process as a 
whole, that is to say, the asylum officer, then the IJ, then 
the BIA, the outcomes are sufficiently varied. There's a very 
substantial grant of asylum along with the cases of denial.
    I think the outcomes of the whole process are such that it 
would not be entirely fair to suggest that that process is 
tilted against the asylum applicant. There are some individual 
cases that are, frankly, outrageous, and they're being 
reversed, but as a total process, I think it's working 
reasonably well.
    This isn't--as Senator Sessions pointed out, this is an 
executive branch function. The Attorney General has this 
discretion, and whether that discretion should be exercised 
through IJs and BIAs that are structured within the Department, 
or structured outside the Department, it seems to me, frankly, 
is an executive branch decision that I, as an Article III 
judge, ought not to get into. I think that's an executive 
branch choice, appropriate for the Senate to get into it. I 
don't think I ought to, but I do think the outcomes do not cry 
out for a fundamental change.
    Chairman Specter. Judicial review is not an executive 
function.
    Judge Newman. No. To the extent it is review--and that's 
why I think everyone on this panel agrees that beefing up the 
capacity of the administrative process, giving them the number 
of personnel, and then giving the Department the number of 
attorneys to properly represent the interests of the United 
States, that is appropriate for us because we will get better 
reasoned decisions.
    Chairman Specter. Well, the Board of Immigration Appeals is 
a level of judicial review.
    Judge Newman. Well, it is, but it's within the Department 
of Justice.
    Chairman Specter. Well, it is now, but should it stay 
there?
    Judge Newman. I really hesitate, as a member of the 
judicial branch, to advise the executive branch how it should 
be organized.
    Chairman Specter. How about advising the congressional 
branch, Article I?
    [Laughter.]
    Judge Newman. I think you have plenty of knowledge, 
experience and expertise to make those judgments yourself.
    Chairman Specter. That is the first time in years that I 
have disagreed with you, Judge Newman.
    [Laughter.]
    Judge Newman. I am so concerned about Article III judges 
maintaining their independence as an Article III branch, and 
one way to do that is to not meddle even with advice, invited 
as it is, in the affairs of the executive branch. If we have a 
case, we will rule, but I don't think we ought to be telling 
them how to structure the executive branch, at least that's my 
view. I don't quarrel with anyone else doing it, I just prefer 
not to.
    Chairman Specter. Well, but the Congress is wrestling with 
the problem as to what is fair, what is just, what is 
appropriate?
    Judge Newman. And you are the political branch, and it's 
quite appropriate for you to do it. We're not.
    Chairman Specter. But you have had the experience. We have 
not. You have seen these cases. We have not seen these cases.
    Judge Newman. We have told you our view of the cases. Our 
view of the cases, as Judge Walker says, is that right now the 
totality of the administrative process, that is, asylum 
officer, IJ and BIA, is handling these cases without a 
pronounced tilt either way.
    Chairman Specter. Judge Bea.
    Judge Bea. I would agree with what Judge Newman said. I 
think when you get into the trial record, which we have to in 
reviewing the IJ's decision, because in a one-liner from the 
BIA, we look at the last reasoned decision which is the IJ. I 
haven't been able to see any particular tilt. I agree with 
Judge Newman that once in a while you get a bizarre result, and 
that's why there's an appeal process. But I'm only speaking 
toward my general favor of judicial independence, whether it's 
Article III judges or any judge.
    Chairman Specter. Aside from the asylum cases, what are the 
other principal issues which the immigration judge considers 
and BIA considers?
    Judge Bea. Well, besides the asylum cases you have the 
removal cases which are caused by a person being removed 
because of a prior aggravated offense--prior aggravated felony. 
The question is, is this person, who is a legal permanent 
resident, removable because he has committed a crime which is, 
by Federal definition, a removable offense?
    And then there is--but I have to agree that right now we're 
doing almost nothing but asylum cases. Now, asylum cases also 
break down not only into credibility issues, but what is 
persecution? Is it persecution to have discrimination but not 
incarceration? Is it discrimination to have a particular 
controlled birth policy, which now we have legislation on that 
issue? Those are the issues we are principally involved with.
    Chairman Specter. Senator Sessions, do you have any further 
questions for this panel?
    Senator Sessions. I thank the judges for their thoughts 
about this process, because, as I see it, it's a classic 
executive branch matter. They must comply with the laws passed 
by Congress. They must follow the law in how they determine 
whether a person should enter or not be allowed to enter this 
country. They must not abuse their discretion in making 
credibility choices or other matters, but you give some 
deference to the administrative procedures in making those 
decisions. And it is from that that these appeals are all 
coming.
    I mean we have had the process of administrative review and 
then a final decision is then made that the applicant does not 
qualify for the immigration benefit they desire, and now they 
are appealing on the basis either the law was not followed or 
the judge who made the decision, abused discretion in some 
fashion. I think that is the proper way to do this because now 
we can blame the President if it is not working. Somebody is 
accountable. He can be blamed, I think, for not asking for 
enough judges. That is one thing he can be blamed for, and if 
he is not responding effectively to a backlog or we are not 
getting adequate opinions.
    So I think I am dubious about making a change from the 
Department of Justice. It seems to me that is the normal way we 
would do these things, and we should probably leave it right 
there.
    Chairman Specter. Thank you very much, Senator Sessions.
    One final question, Judge Michel. Senator Sessions thanked 
you for your consideration of the Chairman's mark. Are you 
considering that? I know you are a good soldier, but I would be 
interested in your own thinking as to whether it is a wise 
idea, and part of that is the impact on the Federal Circuit on 
your other jurisdiction.
    Judge Michel. Right. Senator, the flip side of Judge 
Walker's comment about judges for the Federal Circuit being 
selected on the basis of how the selector would predict they 
would rule on immigration decisions and asylum grants would be, 
I fear, could you get good contract lawyers, good personnel 
lawyers, good patent lawyers, good claims lawyers, good fifth 
Amendment taking lawyers? We have many cases like that. Tax 
lawyers, could you get lawyers interested in serving on the 
Federal Circuit if the diet, which Senator Sessions and Senator 
Cornyn pointed out, was 90 percent plus immigration cases? I 
would be very worried that you could not get top lawyers in any 
of those varied areas with the diet being 90 percent plus 
immigration cases.
    The other thing I would like to say to the Committee is 
that there is a underlying premise, as I sense it, in the idea 
of a certificate of reviewability that there are shortcuts 
here, and I agree with what all of my fellow judges have said, 
but I want to reinforce one aspect of it.
    My own experience in personnel cases, which for most of the 
quarter century life of our court have actually been our 
largest single caseload, not patent cases, personnel cases. 
They all turn on credibility. They are all reviewed under the 
substantial standard of review, just like the immigration cases 
are. And in every case the only way that a single judge or a 
panel of judges can make a reasoned, intelligent, reliable 
decision, is to read the testimony, read the opinion, if there 
is one, of the fact finder, read the primary documents in the 
record. It is a laborious painstaking process. There are no 
shortcuts. I think it's entirely illusory to think that these 
12,000, 13,000, soon to be 14,000 cases per year can be handled 
on a shortcut basis either by staff or by judges. You have to 
read the whole file.
    Chairman Specter. Thank you very much, Judge Michel, Judge 
Walker, Judge Bea, Judge Newman and Judge Roll. We will just 
take a moment or two to thank the panel, and then call Panel 
No. II, Mr. Cohn and Mr. Martin.
    [Pause.]
    Chairman Specter. The Judiciary Committee will now resume 
with Panel No. II, and our first witness is Mr. Jonathan Cohn, 
the Deputy Assistant Attorney General in the Civil Division. 
Mr. Cohn is a graduate of the University of Pennsylvania, 
bachelor degree, summa cum laude; Harvard Law, magna cum laude; 
and was primary editor of the Harvard Law Review.
    Thank you very much for joining us, Mr. Cohn, and we look 
forward to your testimony.

STATEMENT OF JONATHAN COHN, DEPUTY ASSISTANT ATTORNEY GENERAL, 
    CIVIL DIVISION, DEPARTMENT OF JUSTICE, WASHINGTON, D.C.

    Mr. Cohn. Thank you, Mr. Chairman, and members of the 
Committee. Thank you for allowing the Department to testify 
here today.
    I think we can all certainly agree that the immigration 
system is in dire need of change, and thus, the Department 
looks forward to working with the Committee in developing the 
most appropriate and effective solutions.
    Today, on behalf of the Department, I would like to address 
two particular sets of potential reforms. First, the provisions 
that were in Title VII-A of the Chairman's mark, which would 
help reduce immigration litigation in the Federal Courts 
nationwide, and second, Title VII-B of the mark, which would 
effectively render the Executive Office for Immigration Review, 
or EOIR, an independent agency, unaccountable to the executive 
branch.
    The Department strongly supports most of VII-A and commends 
the Chairman for including it in his original mark. We cannot, 
however, support VII-B, because it would undermine the 
executive branch's ability to control the border and effectuate 
immigration policy.
    If I may, I will start with VII-A. By way of background, 
since 2001, there has been a 603 percent increase in the number 
of immigration appeals filed by aliens in the Federal Courts, 
often without a serious argument, and simply to achieve delay. 
This flood tide of cases presents a critical problem for the 
Department, the courts and the rule of law.
    First, the cases impose and intolerable drain on resources, 
requiring attorneys throughout the Department to put aside 
other critical work, and instead turn to writing immigration 
briefs.
    Second, the cases impose delay on the courts because of the 
growth in litigation. The Second Circuit, for example, now 
takes over 2 years to decide the average immigration appeal. As 
a result, illegal aliens can remain in the country, and aliens 
warranting relief, have to wait longer for legal status. The 
delay is not good for them either. Moreover, delay creates an 
increased incentive for illegal immigration because aliens know 
that by simply filing an appeal, however meritless, they can 
often stay in the country for years.
    Finally, there is even greater incentive to file frivolous 
appeals, thereby perpetuating an endless loop of more delay, 
more illegal immigration, and more litigation. The loop doesn't 
end, it just gets worse.
    But Title VII-A would help break this loop, and stem the 
flood tide of immigration appeals. Most importantly, Section 
707 would require an illegal alien to obtain a certificate of 
reviewability before he could pursue an appeal. This is 
precisely the same mechanism that exists in the habeas context 
as the result of a bill that the Chairman and Senator Hatch 
wisely introduced 11 years ago. It makes sense in the 
immigration context too. It would help reduce unnecessary 
litigation while simultaneously leaving the courthouse doors 
open to every single alien. No one, absolutely no one, would be 
precluded from raising his legal and constitutional claims. We 
support VII-A.
    We cannot, however, support VII-B. First and foremost, the 
provisions in VII-B largely insulate adjudicators and EOIR from 
any executive branch oversight or supervision. Immigration 
judges would be able to decide who stays and who goes without 
any prospect for review by the Attorney General, the Nation's 
chief law enforcement officer.
    This is a problem because we can all agree that controlling 
one's borders is a quintessential and critical element of 
sovereignty. It is inextricably intertwined with foreign 
policy, the economy and domestic security. Without question, 
the power to decide immigration cases and develop policy 
through case-by-case adjudication, should not be transferred to 
unaccountable agency officials.
    Finally, such a transfer is bad timing for two reasons. 
First, it is premature because it would short circuit the 
Attorney General's comprehensive review of EOIR, which has been 
enthusiastically welcomed by the Federal Courts; and second, it 
would give rise to additional litigation as it would allow, and 
effectively require, the Secretary of Homeland Security to 
challenge erroneous agency decision I Federal Court.
    Once again, thank you very much for the opportunity to 
testify. I look forward to any questions that the Committee 
might have.
    [The prepared statement of Mr. Cohn appears as a submission 
for the record.]
    Chairman Specter. Thank you very much, Mr. Cohn.
    We now turn to Professor David Martin, professor of 
international law at the University of Virginia Law School; 
bachelor's degree from DePauw University and a law degree from 
Yale, where he was editor-in-chief of the Yale Law Journal, 
quite a distinction.
    Thank you for coming in, Professor Martin, and we turn to 
you now.

 STATEMENT OF DAVID A. MARTIN, PROFESSOR OF LAW, UNIVERSITY OF 
              VIRGINIA, CHARLOTTESVILLE, VIRGINIA

    Mr. Martin. Thank you very much, Mr. Chairman, Senator 
Sessions. I appreciate the invitation to be here and address 
these important questions. I have taught and written about 
immigration law and constitutional law for 25 years, and I have 
also served as General Counsel at the Immigration and 
Naturalization Service for two and a half years in the mid 
1990's, and that afforded me some close inside acquaintance 
with how review affects the operations of the agencies.
    The Committee is right to be concerned about the current 
system for administrative and judicial review of immigration 
decisions. it has been under stress in recent years with some 
of the difficult consequences that Mr. Cohn, in his testimony, 
has talked about.
    But it would be unwise, in my opinion, to consolidate all 
judicial appeals in the Federal Circuit. The Nation and the 
agencies involved actually benefit from the involvement of the 
general jurisdiction courts and the consideration of 
immigration issues. They have been finding ways to adapt to the 
new caseload. Their efforts should be allowed time to mature.
    Also, I believe that the single-judge screening mechanism 
provided by Section 707, would risk denying court consideration 
in cases where careful review should be provided. It might also 
prove counterproductive, ultimately creating more work for the 
court or courts involved, as Judge Michel suggested in the 
earlier panel.
    The remedies should focus instead on restoring sound 
functioning by the Board of Immigration Appeals and the 
immigration judges. This requires both additional resources and 
the return, in essence, to a system of administrative and 
appellate review that operated before the 2002 streamlining 
regulations.
    Let me turn to the issue of consolidation. Two main 
arguments are offered in support of consolidation, one having 
to do with a risk of forum shopping, and the other the 
important desirability for uniformity and consistency in 
administration. Forum shopping, I would submit, is not a 
significant issue after amendments adopted by the Congress in 
1996, that require that review be had in the circuit with 
jurisdiction over the place where the immigration judge issued 
the initial ruling. That initial venue is largely determined by 
where the Department of Homeland Security files the case.
    As to consistency and uniformity, the focus on a few well-
known circuit splits obscures the vast range of complex issues 
on which there is no real dispute, or where courts have 
properly deferred to administrative interpretations. I was very 
much involved in the internal process in implementing the 1996 
changes, presenting a lot of complex issues. We worked hard in 
resolving those questions. I have been pleased to see over the 
years that most of those resolutions that we achieved have 
simply been accepted and have not been challenged.
    It is only a small number of instances that the circuits 
have split, but these differences are probably beneficial for 
the overall health of the system, because circuit splits serve 
the purpose of helping to signal when there are ambiguities in 
the law, significant constitutional issues, or difficulties in 
reconciling the many policy objectives our immigration laws 
serve.
    Ultimate resolution by the Supreme Court benefits from the 
efforts of seasoned judges from different circuits to analyze 
the issues afresh. If all appeals went only to the Federal 
Circuit, a prematurely uniform resolution of truly difficult 
questions might impede this valuable percolation process. I 
would add that Congress is also quite capable of resolving 
circuit splits over statutory interpretation. It did so in the 
REAL Id Act passed last year. I addressed one of the specific 
splits in the circuits, that over standards for reviewing 
credibility determinations that has been invoked in some of the 
testimony. And Section 705 of the Chairman's mark would resolve 
another oft-invoked split over reinstatement of removal.
    With regard to the certificate of reviewability, like the 
Judicial Conference and several of the judges here, I urge the 
Committee not to adopt that procedure. The individuals involved 
in standard removal cases deserve at least one opportunity for 
full consideration by Article III judges. We should at least 
gain more experience with the full impact of the current 
judicial management measures that the circuits have adopted 
before undertaking so sharp a departure from our usual approach 
to court access where individual stakes may be quite high, and 
constitutional claims may be implicated.
    Furthermore, screening mechanisms of this kind ordinarily 
presuppose the availability of robust review of the initial 
decision elsewhere. With the 2002 changes at the BIA, 
unfortunately, this is not the case in many of the cases in 
immigration law.
    The Department of Justice has analogized this procedure to 
the certificate of appealability and the habeas framework, but 
that is provided for a screening of appeals from a full 
decision by a district court judge and its collateral review 
after full direct review has been available earlier. At issue 
here is the only opportunity for direct judicial review of 
immigration decisions. So I agree with the Judicial 
Conference's conclusions on that point.
    If I might have just 30 seconds to finish up.
    Chairman Specter. Go ahead, Professor Martin.
    Mr. Martin. Thank you very much. The Federal Judicial 
Conference, the U.S. Judicial Conference suggested in its 
response to Section 707, and I quote, ``Streamlining both the 
administrative and appellate review of immigration cases raises 
concerns about whether the process would provide a meaningful 
review.''
    As that letter indirectly suggests, the current stresses on 
the system for judicial review could best be addressed by 
restoring sound functioning of the adjudication and appeals 
system at the administrative level, and Title VII of the 
Chairman's mark contains many promising provisions to this end.
    The most useful investment that Congress could make in 
solving the problems would be additional resources for the 
immigration courts and the Board of Immigration Appeals. Also 
restoring the Board to the size of 23, or perhaps at some 
point, to even more members.
    Section 712 of the Chairman's mark would also make very 
important changes in the procedures set up by the 2002 
regulations. Particularly, it would greatly limit the occasions 
in which single-member decisions, affirmances without opinion, 
or other summary dispositions would be permitted. I think this 
would reduce litigant frustration that has contributed to the 
striking increase in appeals, and for those appeals that are 
still taken, as the judges said, such administrative treatment 
should foster prompt resolution by the courts and help assure 
proper deference to administrative decisions.
    Thank you.
    [The prepared statement of Mr. Martin appears as a 
submission for the record.]
    Chairman Specter. Thank you very much, Professor Martin.
    Mr. Cohn, in your testimony and in your written statement, 
you say the provision in Title VII-B would insulate 
adjudicators in the Executive Office of Immigration Review from 
executive branch oversight or supervision. Where you have 
immigration review by the immigration officer or the Board of 
Immigration Appeals, isn't that essentially a judicial 
function?
    Mr. Cohn. Mr. Chairman, it is not essentially a judicial 
function. As the Supreme Court has recognized, the execution of 
the immigration laws is the quintessential sovereign function, 
is, in fact, the quintessential executive branch function.
    When you look at the types of cases that come before the 
IJs and the BIA, it makes sense why the AG should have review 
of their decisions. We were talking about fundamental decisions 
that affect foreign policy and national security.
    Chairman Specter. Well, those decisions, foreign policy and 
national security, are involved in the decision by the circuit 
courts when they review what has been done. Obviously, you are 
not making any claim that the judicial review by the circuit 
would be subject to executive control under Article II. And 
when you have judicial review, it is pretty hard, it seems to 
me, to say it is anything but judicial review where you have an 
immigration judge--you call him a judge--where you have a Board 
of Immigration Appeals--you call it an appeal. It seems to me 
those are essentially judicial functions.
    Now, maybe it is working our fine and does not need to be 
altered. But you have already stated your opinion. I just have 
a question about--
    Mr. Cohn. If I may, though, some decisions are not reviewed 
by the Federal courts. For instance, most forms of relief are 
discretionary--asylum, adjustment of status, cancellation. And 
under the INA, the Federal courts do not and cannot review the 
discretionary determinations. Those are properly left to the 
executive branch.
    Chairman Specter. But the circuit courts of appeal review 
them.
    Mr. Martin. No, they don't. Under 242(a)(2)(B)(ii), they do 
not have jurisdiction to review those discretionary 
determinations.
    Chairman Specter. Well, if there is an asylum appeal, is 
that discretionary?
    Mr. Martin. There are some factual and legal elements in 
the asylum case which are reviewable, and there is a carve-out 
for the discretionary--
    Chairman Specter. Well, wait, wait--
    Mr. Martin [continuing]. Determination for asylum.
    Chairman Specter. Asylum cases are discretionary and 
reviewable.
    Mr. Martin. There is a carve-out in 242(a)(2)(B)(ii) for 
asylum, but for instance, adjustment of status for 
cancellation, those final discretionary determinations are 
currently unreviewable. And those determinations would be made 
by the IJs and the Board without any oversight by the Attorney 
General if Title VII-B were enacted.
    And let's look at a couple of examples because this gives 
life to the point, give some life to the argument. Over the 
past 5 years, the Attorney General, back when Ashcroft was the 
Attorney General, he heard a couple cases involving claims for 
discretionary relief. One involved a terrorist. Another 
involved a child abuser who killed a baby by shaking it. In 
those cases, the Board granted discretionary relief, but the 
Attorney General stepped in and reversed it.
    Being opposed to terrorists and child abuse, I think that 
the Attorney General made a wise decision in stepping in and 
reversing those discretionary determinations.
    Chairman Specter. How do you account for the decisions by 
the Board of Immigration Appeals?
    Mr. Martin. Even hard-working, committed civil servants 
sometimes make mistakes, and that is why you want to have--
    Chairman Specter. How about the Attorney General making 
mistakes?
    Mr. Martin. And that is why you want the decision--
    Chairman Specter. How about the Attorney General making 
mistakes?
    Mr. Martin. If the Attorney General makes a mistake, he is 
directly accountable to the President, who is accountable to 
the American people, and political action should be taken. And 
that is precisely why these very sensitive determinations 
should remain in the hands of accountable executive branch 
officials and not immigration judges and unaccountable Board 
members.
    Chairman Specter. Mr. Cohn, the Department of Justice has 
no objection to adding more Board of Immigration Appeals 
personnel and to having three of those in the Board make the 
decision and writing opinions?
    Mr. Cohn. Both of those matters are currently being 
reviewed by the Attorney General as part of his top-to-bottom 
comprehensive review, which has been warmly welcomed by the 
Federal judges and the immigration bar as a whole. At this 
point we think it is premature to preempt that review and take 
action in that regard. He is considering both the issue of 
whether to cut back on the use of AWOs, affirmance without 
opinions, and also considering whether the size of the Board 
should be changed.
    Chairman Specter. Well, just one follow-up question. My red 
light is on. You say it would be premature, but the Congress is 
considering immigration reform. Are you suggesting that it is 
beyond our purview to make a judgment on those questions just 
because the Attorney General has not finished his top-to-bottom 
review?
    Mr. Cohn. Oh, absolutely not. Mr. Chairman. It is 
definitely your prerogative to act now. I was just suggesting 
that it might make sense to hold back just a little bit. The 
review is shortly going to be completed, and if the Attorney 
General does not take reforms that measure up to what this 
Committee would like to see, then at that point it makes sense, 
I believe--
    Chairman Specter. Mr. Cohn, I do not know how to hold back 
a little. I wanted to hold this bill back a little and was 
put--not on the fast track, but on the speed track. So if the 
Attorney General has something to tell us, it would be very 
useful if he would do so before we make an independent 
judgment, although we prize our independence, too.
    Senator Sessions?
    Senator Sessions. Well, Mr. Cohn, are you saying that the 
Department of Justice may request more immigration judges but 
have not yet done so?
    Mr. Cohn. Oh, there are two issues. One is the question of 
resources, and we have requested more immigration judges.
    Senator Sessions. When did you do that? Is that part of 
this year's budget request or last year's?
    Mr. Cohn. Yes, in this year's budget request. We have also 
requested more attorneys for my office, the Office of 
Immigration Litigation. We are currently overwhelmed by the 
flood tide of cases, and the President requested roughly $10 
million more to cover 114 new positions, including 86 new 
attorneys. What I was referring to earlier is the composition 
of the Board, the number of Board members, and for that, the 
Attorney General is reviewing that issue and has not made a 
determination on that.
    Senator Sessions. What Board members are you referring to 
there?
    Mr. Cohn. Sure. Within the--
    Senator Sessions. I mean, what precisely do you mean? What 
Board are you talking about?
    Mr. Cohn. The Board of Immigration Appeals. That is the 
body in the Department of Justice that reviews the decisions of 
the immigration judges.
    Senator Sessions. All right. Well, first, I think it has 
been slow coming to this. Obviously, we have got a problem and 
sometimes the fact that you have insufficient resources 
exacerbates the problem in a lot of different ways. For 
example, is it correct that it is a 600-percent increase in 
appeals since 2001?
    Mr. Cohn. Absolutely, Senator.
    Senator Sessions. I mean, that is an incredible number, 6 
times the number of appeals just since 2001. We are not seeing 
that many more people come into our country. So obviously, 
there is just more litigation.
    Mr. Cohn. Much more litigation, and there are two reasons 
for it. The first is there is increased enforcement, and the 
second is the appeal rate has risen. The rate at which aliens 
challenge the decisions of the Board of Immigration Appeals in 
the Federal courts has increased dramatically since 2002. In 
2002, the rate of appeal was only 10 percent nationwide, and 
this past year, it reached 30 percent. That is a tremendous 
increase in the rate of appeal.
    What is interesting is the conventional wisdom, as 
Professor Martin noted, is that the reason for the increase in 
appeals is the increase in the affirmances without opinions, 
the AWOs. But that conventional wisdom is actually erroneous. 
The rate of appeal, again, in 2002 was 10 percent, but back 
then 31 percent of all Board decisions were AWOs. Now, only 20 
percent of Board decisions are AWOs, yet the appeal rate has 
risen to 30 percent. That is directly contrary to the 
conventional wisdom that Professor Martin--
    Senator Sessions. Well, are they winning more on appeal? 
Does that indicate that there are more errors made? What is the 
reversal rate?
    Mr. Cohn. The reversal rate is extremely low, Senator. If 
you look at cases that are terminated on the merits, the 
Department of Justice prevails in 86 percent of those cases 
nationwide. Oftentimes, people point to the Seventh Circuit, 
which reversed us last year 39 percent, but the Seventh Circuit 
is an outlier in that regard, and they have only 2 percent of 
the total number of appeals. Eighty-six percent is the 
nationwide number, and that understates the rate of success of 
the Board for a couple reasons. First of all, it does not take 
into account the procedural victories. If you take those into 
account, the rate of success is over 90 percent. Also, it does 
not take into account the very large number of cases that never 
make it to Federal court. In 2005, there were 265,000 decisions 
by immigration judges in removal cases, and there were only 560 
or so reversals by the Federal courts.
    So if you look at those numbers, it is unfair to suggest 
that the Board is making erroneous decisions systematically. In 
fact, I think those numbers show the Board, despite the large 
volume, is doing a very fine job.
    Senator Sessions. Tell me about this, though. It takes 27 
months--I saw on page 3 of your testimony--to process a BIA 
appeal. What does that mean? Does that mean from the time that 
the Board of Immigration Appeals rules or the time the appeal 
is filed is 27 months?
    Mr. Cohn. It is from the time the appeal is filed. An alien 
has 30 days to file the appeal, and then once he files it, it 
took on average 27 months for the Second Circuit to decide the 
case. And that is a problem, as you know, because that delay--
    Senator Sessions. Now, wait a minute, 27 months from the 
time he appealed from the BIA, the immigration judge's ruling, 
or from the time the appeal from the initial determination?
    Mr. Cohn. It is calculated from the time the alien appeals 
the BIA's decision to Federal court.
    Senator Sessions. Well, that is an extraordinary number 
there. I mean, during this time what if this person was not 
supposed to be here, clearly, and they have just filed an 
appeal because they know it is going to take on average 27 
months, and they get to stay here 2 more years. Is that what is 
happening out there? Is that driving some of the increase in 
appeals?
    Mr. Cohn. In our view, that is absolutely what is 
happening. If I were an attorney--
    Senator Sessions. Now, let me ask you this: To the extent 
to which this is in your responsibility, the Department of 
Justice, I can blame the President. But I cannot blame the 
President about this, can I? I mean, this is the time it leaves 
the executive branch for 27 months to the judicial branch. They 
have lifetime appointments.
    Mr. Cohn. Yes, Senator. This is not the President's fault 
at all.
    Senator Sessions. I can't even cut their pay.
    Mr. Cohn. That is exactly right, Senator.
    Senator Sessions. So we need--I believe this system is 
broken. It is not working effectively, and these delays 
indicate part of it, and the longer the delays occur, would you 
not agree, the more likely people will appeal for frivolous, 
unsound reasons, but simply to get the delay.
    Mr. Cohn. Absolutely.
    Mr. Martin. Senator?
    Senator Sessions. Should we have--did you want to--
    Mr. Martin. If I could just comment on part of that, if 
that would be all right, the delay factor, clearly it has been 
a situation in immigration appeals that the chance for delay 
can bring about some additional appeals. But that factor 
operates no differently after 2002 than it did before 2002. I 
don't think that can really account for the change in the 
appeal rate from 10 percent to 25 or 30 percent of BIA 
decisions being appealed to the courts in that period of time.
    Mr. Cohn suggested I was somewhat saddled with the 
conventional wisdom as to why that change had taken place. 
Actually, in my testimony, I offer a more complete explanation 
or analysis of why that change has occurred. But it is really 
worth reflecting that the change--there is a marked change 
around the time of the regulatory changes in 2002 in the way 
that the BIA, the Board of Immigration Appeals, deals with 
their appeals.
    I think, as I suggested in my testimony, we should look 
very closely at undoing some of those procedures and augmenting 
the resources of the Board, and I think that would over time 
have an impact on reducing the appeal rate and allowing the 
courts also to get much more on top of their overall caseload. 
They have been making headway along those lines.
    Mr. Cohn. If I may, if it is possible, I would like to 
respond to a point the professor made about delay. He says 
delay cannot account for the increase in appeals, there was 
delay before, but a few points.
    First of all, the delay in the courts has increased. In 9 
of the 11 circuit courts, there has been a significant increase 
in the delay in the past few years.
    In the Second Circuit, as I noted, there is an increase of 
roughly 170 percent. There has been a tremendous increase in 
delay, and that gives rise to the incentive for aliens to file 
these frivolous appeals just to get delay.
    The second point, before 2002, the Board provided a lot of 
delay because of their backlog. But the backlog is gone. There 
isn't so much delay. It takes months instead of years for the 
Board to decide cases. So aliens who want delay can't rely on 
the Board anymore. They have to file their appeal, however 
meritless, in the courts of appeals, and that is why delay 
matters.
    Finally, it is interesting to note that the appeal rate did 
not rise precipitously after streamlining the AWOs. It rose 
recently perhaps as a result of the conventional wisdom 
catching on. The more that advocates and judges and Members of 
Congress speak of the problems with the Board, which really 
don't exist, there is more reason for aliens and their 
attorneys to think that there is relief in the circuit courts. 
They are not winning in the circuit courts, but they hear the 
conventional wisdom, and they think that is a reason to appeal.
    Chairman Specter. Thank you, Senator Sessions.
    Senator Sessions. Sorry to go over, Mr. Chairman.
    Chairman Specter. Professor Martin, what is your view of 
the Chairman's mark to increase the number of Board of 
Immigration Appeals to 23 and have the requirement that they 
sit in panels of three and write opinions?
    Mr. Martin. I would favor that change. I think that that is 
necessary, given the volume of immigration appellate business. 
And I think there may be some instances in which a single-
member disposition may be appropriate, but it would be a very 
short list of very discretely identified circumstances, such as 
was the case under the 1999 regulations, much more carefully 
designed, had a much more limited use of summary dispositions. 
So I would favor that.
    If I might also address the independence question that you 
raised earlier with Mr. Cohn, if that would be OK?
    Chairman Specter. Go ahead.
    Mr. Martin. It is clearly important to have immigration 
judges and Board members act independently in the individual 
decisions that they make. Nobody disputes it would be improper 
for someone from the Justice Department or the private bar to 
call up the decisionmaker and influence the way in which it 
should come out.
    There are parts of the Chairman's mark that I think would 
help to make sure that there is adequate insulation along those 
lines. For example, a stated term of reasonable length for--
    Chairman Specter. Do you think there is adequate 
insulation, as you put it, available now?
    Mr. Martin. Well, I do. In general, I think that is the 
case, and I think the reaction from the judges, when you posed 
a similar question to them, reflects that there is not a major 
problem with undue influence or a skewing of results under the 
current structure of the Board.
    Chairman Specter. Professor Martin, if the Attorney General 
does not like the result reached by the immigration judge and 
affirmed by the Board of Immigration Appeals, why wouldn't it 
be a better process to have him take the appeal to the circuit 
court rather than simply disagreeing with those two judicial 
decisions?
    Mr. Martin. Well, I think that is the second part of 
overall independence. The decisional independence by the judges 
when they make their decision, or the Board, there is a very 
limited procedure now, as the Chairman knows, for the Attorney 
General in a formal procedure to take referral or certification 
of the case and issue the final decision, essentially become 
the highest level of administrative appellate review. That is a 
formalized--
    Chairman Specter. The Attorney General personally.
    Mr. Martin. The Attorney General personally, that is right. 
And I think--
    Chairman Specter. Well, is that--
    Mr. Martin. --that is appropriate--
    Chairman Specter. Is that more desirable than having the 
circuit court, if the Government wins, the individual goes to 
the circuit court. If the Government loses, why shouldn't the 
Government go to the circuit court?
    Mr. Martin. Well, I do think there is a limited range of 
issues. This certification process has been sparingly used. 
There is a limited range of issues where there are difficult 
questions of both policy and law that are involved in a 
decision by the BIA or ultimately by the Attorney General. To 
have the possibility on a limited range of occasions for the 
Attorney General to take certification, to decide that matter, 
to draw upon his own perspective on foreign policy 
implications, national security implications, I think that is 
appropriate. But the Attorney General has to write an opinion, 
has to give formal reasons, and the Attorney General's decision 
in that way is subject, as it should be, to court of appeals 
review.
    Chairman Specter. Well, if the matter involves foreign 
policy and national security, those issues are decided by the 
circuit courts if the appellate process goes in favor of the 
Government.
    Mr. Martin. That is true, and I think it is a close 
question as to whether that structure for more independence 
from the Attorney General would be superior to what we have 
now.
    I just want to point out that the current system does not 
involve, in my mind, undue influence by the enforcement branch 
in this field, and the way in which the Attorney General can 
issue a precedent decision on a very limited range of occasions 
structures and confines any role that the Attorney General has.
    Chairman Specter. What would you think of having the 
immigration judges ranked by the Merit Systems Protection Board 
and dischargeable only for cause and reviewed by the Merit 
Systems Protection Board?
    Mr. Martin. Well, I think I am not deeply familiar with the 
ranking system by the Merit Systems Protection Board. There 
certainly have been issues of--occasional issues of quality of 
performance by certain individual judges, so that might be 
appropriate.
    I do think it is a good system to have a stated term of 
years with removability only for cause. I would want to think 
more carefully about whether that should ultimately be 
reviewable in the Merit Systems Protection Board rather than 
leaving a bit more discretion to the Attorney General to decide 
whether or not good cause has been shown for removal. But it is 
very rare to remove an immigration judge.
    Chairman Specter. Thank you, Professor Martin.
    Senator Sessions, you have the last word.
    Senator Sessions. Thank you. Well, that question of the 
executive branch taking itself--it really would be taking 
itself to court because the bureau of appeals is an executive 
branch/Department of Justice entity and so is the Attorney 
General, so they are suing one another in court. In our scheme 
of Government, often misunderstood, they are heads that make 
final decisions, so this simply says that the Attorney General, 
Mr. Cohn--I want to get this straight. You talked about 
Attorney General Ashcroft had overruled the BIA's final 
decision, right? But you indicated that was the final decision, 
but his decision then is subject to appeal to the courts to 
make sure he conducted his process in a fair and objective way, 
followed the law, and acted within his discretion. Is that not 
right?
    Mr. Cohn. That is right, Senator.
    Senator Sessions. So what you are talking about is you 
always need to look for a final decision of the executive 
branch, and it simply allows the Attorney General to make that 
branch as an accountable officer who has a name, who has a 
responsibility to the public, who can be held account and the 
person who appoints him can be held accountable. But these 
judges have got terms and outside of the Department of Justice 
and the whole political process, they are not answerable to 
anybody if we go with the suggestion we have heard here. Would 
you agree that that would be a problem, Mr. Cohn?
    Mr. Cohn. I could not agree more with you. That is 
absolutely correct. That would be a problem if you had 
unaccountable immigration judges and Board members deciding 
these matters, which involve quintessential sovereign 
functions. The keys to our borders should not be handed over to 
unaccountable officials.
    Senator Sessions. And just for the record, I don't know if 
you mentioned this, but the streamlining procedures that allow 
one judge to make the decision and can affirm without opinion, 
those were--that procedure was established in 1999. Is that 
right?
    Mr. Cohn. That is right, Senator.
    Senator Sessions. That was when Attorney General Janet Reno 
was the Attorney General of the United States.
    Mr. Cohn. Yes, that is right, Senator. They were revised in 
2002, but the original streamlining was in 1999, and it is 
important to note, again, that the year before Attorney General 
Ashcroft changed the procedures, 31 percent of all Board 
decisions were AWOs, which is higher, about 50 percent higher, 
than what it is today.
    Mr. Martin. Could I address that?
    Senator Sessions. Go ahead.
    Mr. Martin. Because the 1999 regulations did provide for 
AWOs, affirmances without opinion. But it allowed them in a 
much more limited range of circumstances. It was much more 
carefully crafted to focus only on truly frivolous 
substanceless appeals. The rate was high because the Board was 
trying initially to clear out a lot of the old weak appeals, 
and they were able to do that at a high level at that time.
    It is very different under the current situation where a 
much wider range of cases can be resolved, to the frustration 
of many judges, as we saw in the earlier panel.
    Senator Sessions. With regard to this asylum question, my 
time is about out, and I do not want you to go over, if you can 
avoid it. But you have worked on that a lot, I think, Mr. 
Martin and Mr. Cohn. Is there any way we can draft the statute 
so asylum is clearer and have clearer standards so that it is 
easier to review on appeal and can result in less appeals and 
less decisions being made based on the length of the 
chancellor's foot or how he may feel that day? Do you think we 
could do better with that?
    Mr. Cohn. You definitely could, Senator, and one way to 
reduce the rate of appeal, of course, is this Certificate of 
Reviewability I have because that would allow the courts to 
eliminate the frivolous appeals expeditiously, thereby reducing 
the incentive that aliens have to file the frivolous appeals. 
And some judges have suggested that particular cases are 
difficult to decide, and they have to look at the entire 
record. And some might be, and in those cases they can grant 
the Certificate of Reviewability. But many cases are not very 
difficult to decide. In some cases, the alien makes no argument 
at all in his brief and just files a brief to get delay. 
Sometimes he files the brief out of time. It is untimely, there 
is no jurisdiction, but there is still a delay. It does not 
require three judges to see that a brief has no argument or is 
filed out of time.
    And in some cases, even when there is a timely brief with 
an argument, it is clear the argument is meritless. For 
instance, in one recent case, an alien claimed he was going to 
face persecution back in Mexico because he hurt his elbow and 
could not work a manual labor job. Well, of course, he admitted 
that he is currently in the United States working a manual 
labor job as a fence builder, so that claim is facially 
frivolous. Nonetheless, it does take time. It delays his 
proceedings. He can remain in the country longer.
    Senator Sessions. Mr. Martin, any final comments? My time 
is about up.
    Mr. Martin. Thank you. I will be brief.
    I take it that at least a part of your question was about 
whether the asylum provisions themselves could be rewritten to 
make the standards crisper and cleaner. I think that is 
unlikely to work. Many countries around the world, democratic 
countries, are struggling with this. A lot of them face 
difficulty asylum caseloads. The best I think we have been able 
to do is develop a body of case law that has provided much--
some clearer guidelines along the way, and those issues have 
gradually been settling in over time. I think we have made a 
lot of progress in improving the efficiency of the asylum 
system.
    So I think that is the way to do it, and I think we can 
continue. It is an important commitment to this country from 
our earliest days to provide asylum. And as frustrating and 
difficult as that can be, I believe we can structure a system 
that adequately protects individuals and still allows for 
efficient resolution of the claims.
    Chairman Specter. Thank you, Senator Sessions. Thank you, 
Mr. Cohn. Thank you, Professor Martin.
    Without objection, we will introduce the written statement 
of Senator Leahy, who could not be here because of a prior 
commitment. This hearing was scheduled just a week ago today. 
And also the statements of Chief Judge Schroeder of the Ninth 
Circuit, Judge Kozinski of the Ninth Circuit, Judge Posner of 
the Seventh Circuit, and the Judicial Conference of the United 
States.
    Thank you all.
    [Whereupon, at 12:18 p.m., the Committee was adjourned.]
    [Questions and answers and submissions for the record 
follow.]
    [Additional material is being retained in the Committee 
files.]

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