[House Hearing, 110 Congress]
[From the U.S. Government Publishing Office]



 
                EXECUTIVE OFFICE FOR IMMIGRATION REVIEW

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

                                HEARING

                               BEFORE THE

                      SUBCOMMITTEE ON IMMIGRATION,
                CITIZENSHIP, REFUGEES, BORDER SECURITY,
                         AND INTERNATIONAL LAW

                                 OF THE

                       COMMITTEE ON THE JUDICIARY
                        HOUSE OF REPRESENTATIVES

                       ONE HUNDRED TENTH CONGRESS

                             SECOND SESSION

                               __________

                           SEPTEMBER 23, 2008

                               __________

                           Serial No. 110-211

                               __________

         Printed for the use of the Committee on the Judiciary


      Available via the World Wide Web: http://judiciary.house.gov



                   U.S. GOVERNMENT PRINTING OFFICE
44-611 PDF                  WASHINGTON : 2009
----------------------------------------------------------------------
For sale by the Superintendent of Documents, U.S. Government Printing 
Office Internet: bookstore.gpo.gov Phone: toll free(866) 512-1800; DC 
area (202) 512-1800 Fax: (202) 512-2104  Mail: Stop IDCC, 
Washington, DC 20402-0001


                       COMMITTEE ON THE JUDICIARY

                 JOHN CONYERS, Jr., Michigan, Chairman
HOWARD L. BERMAN, California         LAMAR SMITH, Texas
RICK BOUCHER, Virginia               F. JAMES SENSENBRENNER, Jr., 
JERROLD NADLER, New York                 Wisconsin
ROBERT C. ``BOBBY'' SCOTT, Virginia  HOWARD COBLE, North Carolina
MELVIN L. WATT, North Carolina       ELTON GALLEGLY, California
ZOE LOFGREN, California              BOB GOODLATTE, Virginia
SHEILA JACKSON LEE, Texas            STEVE CHABOT, Ohio
MAXINE WATERS, California            DANIEL E. LUNGREN, California
WILLIAM D. DELAHUNT, Massachusetts   CHRIS CANNON, Utah
ROBERT WEXLER, Florida               RIC KELLER, Florida
LINDA T. SANCHEZ, California         DARRELL ISSA, California
STEVE COHEN, Tennessee               MIKE PENCE, Indiana
HANK JOHNSON, Georgia                J. RANDY FORBES, Virginia
BETTY SUTTON, Ohio                   STEVE KING, Iowa
LUIS V. GUTIERREZ, Illinois          TOM FEENEY, Florida
BRAD SHERMAN, California             TRENT FRANKS, Arizona
TAMMY BALDWIN, Wisconsin             LOUIE GOHMERT, Texas
ANTHONY D. WEINER, New York          JIM JORDAN, Ohio
ADAM B. SCHIFF, California
ARTUR DAVIS, Alabama
DEBBIE WASSERMAN SCHULTZ, Florida
KEITH ELLISON, Minnesota

            Perry Apelbaum, Staff Director and Chief Counsel
      Sean McLaughlin, Minority Chief of Staff and General Counsel
                                 ------                                

          Subcommittee on Immigration, Citizenship, Refugees, 
                 Border Security, and International Law

                  ZOE LOFGREN, California, Chairwoman

LUIS V. GUTIERREZ, Illinois          STEVE KING, Iowa
HOWARD L. BERMAN, California         ELTON GALLEGLY, California
SHEILA JACKSON LEE, Texas            BOB GOODLATTE, Virginia
MAXINE WATERS, California            DANIEL E. LUNGREN, California
WILLIAM D. DELAHUNT, Massachusetts   J. RANDY FORBES, Virginia
LINDA T. SANCHEZ, California         LOUIE GOHMERT, Texas
ARTUR DAVIS, Alabama
KEITH ELLISON, Minnesota
ANTHONY D. WEINER, New York

                    Ur Mendoza Jaddou, Chief Counsel

                    George Fishman, Minority Counsel


                            C O N T E N T S

                              ----------                              

                           SEPTEMBER 23, 2008

                                                                   Page

                           OPENING STATEMENTS

The Honorable Zoe Lofgren, a Representative in Congress from the 
  State of California, and Chairwoman, Subcommittee on 
  Immigration, Citizenship, Refugees, Border Security, and 
  International Law..............................................     1
The Honorable Steve King, a Representative in Congress from the 
  State of Iowa, and Ranking Member, Subcommittee on Immigration, 
  Citizenship, Refugees, Border Security, and International Law..     2
The Honorable John Conyers, Jr., a Representative in Congress 
  from the State of Michigan, and Chairman, Committee on the 
  Judiciary......................................................     4
The Honorable Lamar Smith, a Representative in Congress from the 
  State of Texas, and Ranking Member, Committee on the Judiciary.     5

                               WITNESSES

Mr. Kevin A. Ohlson, Director, Executive Office for Immigration 
  Review, U.S. Department of Justice
  Oral Testimony.................................................     7
  Prepared Statement.............................................     9
Mr. Lee Lofthus, Assistant Attorney General for Administration, 
  U.S. Department of Justice
  Oral Testimony.................................................    13
Ms. Susan B. Long, Co-Director, Transactional Records Access 
  Clearinghouse (TRAC)
  Oral Testimony.................................................    28
  Prepared Statement.............................................    30
Mr. Stephen H. Legomsky, The John S. Lehmann University 
  Professor, Washington University School of Law
  Oral Testimony.................................................    40
  Prepared Statement.............................................    41

                                APPENDIX

Prepared Statement of the Honorable Zoe Lofgren, a Representative 
  in Congress from the State of California, and Chairwoman, 
  Subcommittee on Immigration, Citizenship, Refugees, Border 
  Security, and International Law................................    51
Prepared Statement of the Honorable John Conyers, Jr., a 
  Representative in Congress from the State of Michigan, and 
  Chairman, Committee on the Judiciary...........................    52
Prepared Statement of Mary M. Schroeder, Judge, United States 
  Court of Appeals, Ninth Circuit................................    53
Prepared Statement of Dennis Jacobs, Chief Judge, United States 
  Court of Appeals, Second Circuit...............................    55


                         EXECUTIVE OFFICE FOR 
                           IMMIGRATION REVIEW

                              ----------                              


                      TUESDAY, SEPTEMBER 23, 2008

              House of Representatives,    
      Subcommittee on Immigration, Citizenship,    
   Refugees, Border Security, and International Law
                                Committee on the Judiciary,
                                                    Washington, DC.

    The Subcommittee met, pursuant to notice, at 10:17 a.m., in 
room 2141, Rayburn House Office Building, the Honorable Zoe 
Lofgren (Chairwoman of the Subcommittee) presiding.
    Present: Representatives Conyers, Lofgren, Sanchez, Smith, 
and King.
    Staff Present: Traci Hong, Majority Counsel; George 
Fishman; Minority Counsel; and Andres Jimenez, Majority 
Professional Staff Member
    Ms. Lofgren. The Ranking Member having arrived, the hearing 
of the Subcommittee on Immigration, Citizenship, Refugees, 
Border Security, and International Law is now able to come to 
order.
    On July 28, 2008, the Department of Justice's Office of 
Professional Responsibility and the Office of the Inspector 
General (I.G.) issued a report showing that three high-level 
Department of Justice officials--Kyle Sampson, Jan Williams, 
and Monica Goodling--violated Department of Justice policy and 
Federal law by considering political or ideological 
affiliations in soliciting and evaluating candidates for 
immigration judges (I.J.), which are Schedule A career 
positions, not political appointments.
    ``Further''--and this is a quote of the I.G.--``the 
evidence demonstrates that their violations were not isolated 
instances but were systematic in nature.''
    Based on this report, it appears Republicans credentials, 
rather than knowledge of and experience in immigration law, 
became the main criteria for hiring immigration judges and 
members of the Board of Immigration Appeals (BIA). All three 
named officials only considered candidates referred to them by 
the White House, Republican Members of Congress, Republican 
political appointees, the Federalist Society, the Republican 
National Lawyers Association, and individuals with Republican 
Party affiliations, while ignoring candidates sent to them by 
the Executive Office for Immigration Review.
    This politicization of EOIR occurred at a time when 
immigration courts and the Board of Immigration Appeals were 
also suffering from systemic problems created by former 
Attorney General Ashcroft's streamlining plan. By 2002, then-
Attorney General John Ashcroft promulgated a rule that 
established--and this is a quote--``the primacy of the 
streamlining system for the majority of the cases.'' The 2002 
streamlining regulation made single-member decisions and 
affirmance without opinions the norm, rather than the 
exception.
    At the same time, Attorney General Ashcroft also reduced 
the size of the BIA from 23 members to 11. Several analyses of 
the eliminated BIA members found that the selections had been 
ideological, and those with voting records most favorable to 
applicants or appellants were the ones chosen for reassignment.
    The result of the Ashcroft streamlining plan was a 
significant increase in the number of BIA decisions appealed to 
the Federal courts of appeal. The courts of appeal not only 
reversed the BIA at a higher rate, but also added 
uncharacteristically scathing comments about the poor quality 
of I.J. and BIA decisions.
    Moreover, even as the Administration and Congress dedicated 
more resources to the arrest and detention of deportable 
noncitizens, they failed to commit a similar level of resources 
to the immigration courts, which are responsible for 
determining whether certain noncitizens are, in fact, 
deportable.
    The failure to devote adequate resources to the immigration 
courts has led to increased caseloads at all levels of the 
removal process: at the immigration courts, the BIA, and, of 
course, the Federal courts. EOIR has been too long ignored, and 
the result has been politicization of the immigration courts, 
so-called streamlining, and inadequate resources.
    Now, I look forward to hearing from our witnesses today so 
we may begin to address these very serious problems in the 
administrative removal process, which is really at the heart of 
our immigration enforcement system.
    I would note that we have received informal input from the 
Federal circuits who are alarmed at the increased volume of 
appeals that is gridlocking the Federal courts and having an 
adverse impact on civil litigation generally. And they really 
believe it is a product of dysfunction in the immigration 
courts and the BIA.
    So wherever one lies on the immigration debate, I think it 
is certainly not in the national interest to gridlock the 
Federal appellate courts with matters that should be 
appropriately decided at a lower level and are not being 
properly decided.
    I will finally add that when then-Attorney General Ashcroft 
made his decisions, many of us, including myself, on the 
Judiciary Committee warned that it would be a disastrous 
result. Our comments were ignored. And once again, I am mindful 
of how unsatisfactory are the words, ``I told you so.''
    So, at this point, I would recognize our distinguished 
Ranking minority Member, Steve King, for any opening statement 
he may have.
    Mr. King. Thank you, Madam Chair.
    And I welcome the witnesses today.
    Politics in the hiring process at an executive agency is 
nothing new. However, it should not be done in violation of the 
law. The inspector general has already issued its report, which 
found some improper hiring practices at the Department of 
Justice.
    Instead of focusing on the conduct of a few former 
Department of Justice officials, I hope this hearing proves to 
be truly useful by shedding light on what we, in Congress, can 
do to ensure a credible and efficient immigration litigation 
system.
    In 2007, the roughly 220 U.S. immigration judges heard 
328,425 cases, and the Board of Immigration Appeals completed 
35,393 cases. They should be provided with the resources needed 
to perform their jobs effectively now that our immigration laws 
are being enforced more vigorously--not as vigorously as I 
would like, however. Anything less leaves EOIR open to 
criticism.
    In the same vein, Congress should work to implement 
immigration policy that reduces the workload of immigration 
courts instead of policy that increases their workload. It does 
no good to vilify an entire group of immigration judges and 
Board of Immigration Appeals members simply because a few were 
hired after their political affiliation was determined.
    Unfortunately, hiring scandals have occurred in the past. 
In 1995, during the Clinton administration, White males were 
blatantly discriminated against in the hiring process for 
immigration judges. In fact, plaintiffs were certified as a 
class of ``White, male applicants for employment not selected 
as immigration judges during 1994 and 1995.'' And they won 
their case against DOJ.
    It makes no more sense to impugn immigration judges hired 
during the Bush administration than to impugn those hired 
during the Clinton administration.
    In an effort to ensure quality decisions in the immigration 
litigation system, the Executive Office for Immigration Review 
is implementing 22 directives announced by the Department of 
Justice in 2006.
    In recent years, the Board of Immigration Appeals has come 
under fire from some Federal courts for its use of affirmances 
without opinion, AWOs, which are one-sentence decisions 
affirming the immigration judge's ruling. Use of AWOs became 
popular in an effort to streamline the overwhelming number of 
immigration cases, but critics think that the AWOs show a lack 
of diligence and willingness to examine all of the facts on the 
part of the immigration judges. Others disagree.
    In 2006, the Second Circuit held that, ``The BIA's members 
and the dedicated corps of immigration judges under the board's 
supervision should be applauded for their continuing diligence, 
their integrity and, as is shown in the records of nearly all 
immigration cases in this court, their earnest desire to reach 
and equitable results under an almost overwhelmingly complex 
legal regime.''
    And I will submit that the fear of being seen as too harsh 
toward alien litigants by the Federal courts, Members of 
Congress and nongovernmental agencies, that fear may have 
caused some immigration judges and BIA members to bend the law 
in favor of illegal immigrants and criminal aliens.
    We have witnessed this before. It is why Congress took 
action in 1996 to reduce the amount of discretion held by 
immigration judges. Maybe we would have a fairer process for 
the American people if ICE could appeal EOIR decisions made in 
favor of illegal immigrants and criminal aliens.
    The reversal rates show that most of the criticism is 
unfair. So far this year, 87 percent of BIA decisions that have 
been appealed were affirmed by Federal courts. The affirmance 
rates are even higher in the circuits with large numbers of 
cases. For instance, this year, the Ninth Circuit, large 
numbers of cases, has affirmed 81 percent of the BIA appeals.
    I look forward to the testimony of the witnesses here today 
to give this Congress guidance on changes that may be warranted 
to ensure fair and equitable disposition of immigration cases.
    I think we need to, though, advocate for a balance here and 
not overreact to a sample. Because the sample of what we have 
seen before in this hearing and some of the decisions and the 
advocacy that comes from the other side I think doesn't reflect 
the whole. So I urge our restraint in overreacting to something 
here.
    I am looking forward to the testimony of the witnesses.
    And I yield back the balance of my time.
    Ms. Lofgren. The Chairman of the House Judiciary Committee, 
Congressman Conyers, is recognized if he wishes to give an 
opening statement.
    Mr. Conyers. Thank you, Madam Chairwoman.
    I welcome the witnesses. And I want to report to you that 
this is the first oversight hearing on what you gentlemen have 
been supposed to have been doing for a long time. So a lot of 
the problem is that we in Congress haven't been doing our job. 
When the cat is away, the mice will play.
    So I want to just read you what the inspector general's 
report said, the part that really criticizes you. ``The 
evidence detailed above in the report demonstrates that Kyle 
Sampson, Jan Williams, Monica Goodling each violated Department 
of Justice policy and Federal law by considering political or 
ideological affiliations in soliciting and evaluating 
candidates for immigration judges, which are Schedule A career 
positions, not political appointments.''
    Now, I will insert my comments in here. There were 
political appointments made en masse. I am not talking about a 
couple political appointments; I am talking about a lot of 
them. And we found out about that now. And we regret it very 
much, because you have some explaining to do here today about 
that.
    And then the inspector general goes on to say, ``Further, 
the evidence demonstrates that their violations were not 
isolated instances, but were systemic in nature.''
    ``The evidence demonstrates further''--and I am quoting--
``that Goodling violated department policy and Federal law by 
considering political or ideological affiliations in selecting 
candidates even for the Board of Immigration Appeals.''
    So we hope you will find time, in your opening statements 
and other opportunities, to help us understand the depth of 
what went wrong and how that happened.
    Now, I know one of the excuses coming forward is that we 
need more money in the budget to hire more judges. And, of 
course, that is a function of the executive branch, as well as 
the Congress, not owning up to what the reality of this thing 
is. How can 215 immigration judges be expected to handle a 
caseload of 300,000 cases a year?
    And then, of course, to make insult to injury, the 
reduction of the Board of Immigration Appeals from 23 members 
to 11 members. What do you think that did? A crushing workload, 
an appellate mess, that has spilled over into the circuit 
courts as well.
    So if you notice some unhappiness in my presentation about 
what you have been doing, you are absolutely right. This is 
awful. And of course we plan to get to the bottom of it.
    And I hope that you feel free to comment on anything I have 
said here at the hearing or subsequently in writing afterward.
    Thank you, Madam Chairwoman.
    Ms. Lofgren. Thank you, Mr. Chairman.
    I would now invite the Ranking Member of the full 
Committee, Congressman Smith, to deliver any opening statement.
    Mr. Smith. Is that an open invitation?
    Ms. Lofgren. If you have an opening statement, now would be 
the time.
    Mr. Smith. Thank you, Madam Chair.
    I, too, was disappointed with the finding of the July 2008 
inspector general's report that senior Justice Department 
officials violated civil service laws in the hiring of several 
career employees, detailees and immigration judges.
    The Justice Department is responsible for enforcing the 
law, so it is regrettable when its officials abuse their 
positions of authority and violate the laws that they had 
promised to uphold.
    While the findings in the report are troubling, we must be 
sure not to let the actions of a few undermine the good work of 
the many. On the whole, immigration judges and members of the 
Board of Immigration Appeals carry out their duties in a highly 
professional manner. In fact, less than 10 percent of cases 
decided by immigration judges are appealed to the Board of 
Immigration Appeals. Understanding that immigration judges hear 
over 300,000 cases per year, such a low rate of appeals is 
impressive.
    I am pleased that, in response to the inspector general's 
report, the attorney general has already taken steps to guard 
against future abuses. And the mechanisms in place since April 
2007 help to ensure a lack of political influence in the hiring 
process.
    There is no government agency that is not deserving of at 
least legitimate criticism. The important thing is whether the 
criticism leads to constructive changes being implemented to 
address these concerns.
    In August 2006, then-Attorney General Gonzales announced 22 
new directives for the Executive Office of Immigration Review, 
and EOIR has made significant positive strides in implementing 
those directives.
    For example, newly appointed immigration judges and Board 
of Immigration Appeals members must pass a test on immigration 
law. In addition, the judges and board members are trained 
periodically on immigration subjects such as asylum 
adjudication and international religious freedom.
    Mechanisms have been put into place to notify EOIR 
management about any inappropriate conduct by immigration 
judges. And the Department of Justice has proposed a new 
regulation to increase the ability of judges to discipline 
attorneys who file frivolous lawsuits and to provide sanctions 
for gross misconduct on the part of counsel or litigants.
    EOIR continues to make progress on the implementation of 
those 22 directives, which will ensure a more streamlined and 
effective immigration litigation system.
    The number of immigration court cases in the United States 
is on the rise, due, in part, to a long-overdue increase in 
enforcement of our immigration laws. And Congress needs to 
respond with additional funding to hire judges and support 
staff to relieve the overwhelmed court system. This is just as 
important as hiring additional Border Patrol agents.
    However, more money is not the only answer. The number of 
immigration cases will eventually decrease with a consistent 
emphasis on immigration enforcement. If the laws against 
illegal hiring and employment, there will be fewer jobs 
available for illegal immigrants. There will be an increase in 
the number of illegal immigrants returning to their home 
countries on their own. There will be less of an incentive to 
come here in the first place. Finally, of course, there will be 
a decrease in the number of matters that come before the 
immigration courts.
    I thank you, Madam Chair, and I will yield back.
    Ms. Lofgren. The gentleman yields back.
    In the interest of proceeding to our witnesses and mindful 
of our busy schedules, I would ask that other Members submit 
their statements for the record within 5 legislative days. And, 
without objection, all opening statements will be placed in the 
record.
    And, without objection, the Chair is authorized to declare 
a recess of the hearing at any time.
    Today we will hear from two panels of witnesses to help us 
consider the important issues before us.
    It is my pleasure to introduce Lee Lofthus. Mr. Lofthus was 
appointed as assistant attorney general for administration in 
December of 2006. His responsibilities include department-wide 
financial reporting, budget formulation and execution, 
accounting operations, asset forfeiture, fund operations, 
support, procurement, and debt management support. He also 
oversees department-wide facilities management, human 
resources, business services and planning.
    He has served in several financial management positions 
during 20-plus years with the Department of Justice. He joined 
the department in 1982, and since that time has held senior 
management positions overseeing financial operations, financial 
policy, reportings and systems. He received his MBA in 1982 
from the American University in Washington, D.C.
    I would also like to introduce Kevin Ohlson. Mr. Ohlson has 
served as director of the Executive Office for Immigration 
Review, known as EOIR in the immigration world, since September 
2007. Before being appointed director, Mr. Ohlson also served 
as the deputy director of EOIR and as a member of the Board of 
Immigration Appeals.
    Mr. Ohlson is a graduate of Washington and Jefferson 
College and the University of Virginia School of Law. Mr. 
Ohlson is a member of the bar in both Virginia and the District 
of Columbia.
    Upon his graduation from law schools, he was commissioned 
as an officer in the U.S. Army, where he served as both a judge 
advocate and as a paratrooper. In 1989, he was appointed as a 
Federal prosecutor, but in 1990 he was recalled to active duty 
and was awarded the Bronze Star for his actions overseas during 
the Persian Gulf war.
    As you may know, your written statements will be made part 
of the record of this hearing in their entirety. We ask during 
the testimony that you summarize your written testimony in 5 
minutes or less.
    And to help you know about those time limits, we have a 
little machine there on the desk. When you have 1 minute 
remaining, the green light will turn yellow. And when your time 
is up, a red light will begin. And we don't ask you to stop 
mid-sentence, but we would ask you to sum up at that point.
    Now, it is my understanding that there has been a request 
that Mr. Ohlson testify first. Is that correct? And I am happy 
to accommodate that request. So, Mr. Ohlson, if you would 
begin.

 TESTIMONY OF KEVIN A. OHLSON, DIRECTOR, EXECUTIVE OFFICE FOR 
         IMMIGRATION REVIEW, U.S. DEPARTMENT OF JUSTICE

    Mr. Ohlson. Madam Chairwoman, Congressman King, other 
Members of the Subcommittee, it is my pleasure to be here 
today. It provides me with an excellent opportunity to testify 
about the steps we are taking as we transform the immigration 
court system. It also gives me the opportunity to answer any 
questions you may have about that process.
    A discussion of the transformation of the immigration 
courts really needs to begin with the topic of hiring. We now 
have a process in place that gives career officials at the 
Executive Office for Immigration Review much of the authority 
to screen, interview and recommend immigration judge 
candidates.
    Using that process, during the past year, we have been able 
to hire 18 top-notch immigration judges to augment the many 
truly outstanding judges we already have on the bench. What is 
more, there are an additional 16 immigration judge candidates 
in the pipeline, many of whom are simply waiting for their 
background investigations to be completed.
    But hiring is only the start. When these new immigration 
judges come onboard, we now provide them with 5 weeks of 
training, rather than just 1 or 2 weeks of training, as in the 
past. In addition, they now are required to take and pass a new 
immigration law exam before they can begin adjudicating cases.
    When the new judges come onboard, they are now subject to a 
formalized review process as part of their probationary period. 
This probationary period typically lasts 2 years. New 
immigration judges who are not capable of serving 
professionally and well will now be removed from the bench.
    But it is important to note that we also now are taking 
many other steps to ensure that all of our immigration judges, 
whether they are newly hired or long-term veterans, will 
succeed in their mission. For instance, a year ago we had a 
week-long training conference for all the immigration judges. 
Provided we have adequate resources, we plan to resume holding 
such training conferences on an annual basis in the future.
    So far this year, we have conducted a 2-day training 
program for all the judges in their home courts regarding 
asylum adjudications. We have launched a new Immigration Judge 
Benchbook that is full of reference materials. We have 
developed a comprehensive practice manual that incorporates 
best practices nationwide. We have begun distributing a monthly 
newsletter on regulatory, judicial and legislative 
developments. And we have expanded our online Virtual Law 
Library.
    In addition to these new hiring and training steps, we 
recently have launched a number of other important initiatives. 
For instance, we have placed supervisors with immigration 
judges in six field sites located around the country. We have 
implemented new, rigorous procedures for reporting and 
investigating allegations of judicial misconduct. We are 
working hard to reduce disparities in asylum grant rates among 
our immigration judges. We are completing a massive revision of 
our ethics manual.
    We have published new regulations that will improve the 
judicial process. We have launched digital audio recording to 
replace the antiquated analog recording system we currently 
have. We have started a new program to help ferret out fraud 
and abuse in the immigration court system. We have implemented 
performance work plans with regard to members of the Board of 
Immigration Appeals, and we have worked diligently to do the 
same with the immigration judges. And we have significantly 
enhanced our pro-bono program.
    As can be seen then, Madam Chairwoman, we have been very, 
very busy and very, very productive. And we have made these 
great strides largely due to the professionalism, dedication 
and hard work of our immigration judges, who, as has been 
noted, are on target to handle approximately 300,000 matters 
this year. That number is staggering, and our immigration 
judges deserve a tremendous amount of credit.
    And they also deserve to have all of the resources 
requested in the President's 2009 budget. If congressional 
appropriators match that number, it would be extremely helpful 
to us as we continue our vitally important mission of 
transforming the immigration court system.
    Thank you.
    [The prepared statement of Mr. Ohlson follows:]
                 Prepared Statement of Kevin A. Ohlson









    Ms. Lofgren. Thank you, Mr. Ohlson.
    Mr. Lofthus, were you going to provide testimony, or are 
you here as a resource person?
    Mr. Lofthus. I do have an opening statement.
    Ms. Lofgren. Well, we would love to hear it then, if you 
would turn on the mic and pull it forward.

   TESTIMONY OF LEE LOFTHUS, ASSISTANT ATTORNEY GENERAL FOR 
           ADMINISTRATION, U.S. DEPARTMENT OF JUSTICE

    Mr. Lofthus. Okay, thank you very much.
    Chairwoman Lofgren, Ranking Member King, and Members of the 
Subcommittee, thank you for the invitation to testify about the 
Executive Office for Immigration Review, or what we call it at 
the department, by its acronym, EOIR, at the Department of 
Justice.
    I have a brief statement about the department's support and 
funding for hiring of EOIR, and then I welcome any questions 
you may have.
    Let me start by saying I am a career government employee, 
and I have worked for the Department of Justice for going on 27 
years. My work has been dedicated to supporting the 
counterterrorism, law enforcement and litigation operations of 
the department through four different Administrations.
    My role at DOJ as the assistant attorney general for 
administration and the head of the Justice Management Division 
includes being the department's chief financial officer, 
developing our budget, and overseeing the management of 
personnel, planning, technology and other management programs 
across the department.
    I take very seriously the issues raised by the inspector 
general, as well as questions about the appropriate funding 
levels at EOIR. I want to ensure that EOIR has sufficient 
resources to accomplish its mission and that its hiring 
practices are consistent, fair and effective.
    EOIR and the department have worked to address the findings 
of the inspector general, and we are working hard to implement 
all the changes recommended and needed. We have also integrated 
hiring rules and laws into the transition briefing materials we 
plan to use for the incoming Administration.
    During fiscal year 2006, then-Attorney General Gonzales 
commissioned a review of EOIR. From that review, 22 steps for 
improving the office's operations were identified, two of which 
suggested that the department seek additional funding for new 
positions and information technology improvements. We have 
taken measures to address both those findings.
    The fiscal year 2007 President's budget request was the 
department's first opportunity to formally request additional 
resources to support those findings. During the same budget 
cycle, the department also requested additional resources for 
the Civil Division's Office of Immigration Litigation, commonly 
called OIL.
    EOIR has developed a budget request to increase the number 
of immigration judges and lawyers, and the department and OMB 
have supported those needs, and the Administration has 
requested them from Congress.
    After positive funding results in the fiscal year 2006 
emergency supplemental, a fiscal year 2007 appropriation, and 
the initial fiscal year 2008 marks, EOIR ultimately did not 
receive its requested funding when the 2008 omnibus was passed. 
But the department will continue to work with Congress to 
identify the resources needed to support EOIR's needs.
    Thank you, and I welcome any questions the Committee may 
have.
    Ms. Lofgren. Thank you very much, Mr. Lofthus and Mr. 
Ohlson.
    We will now begin questions by the panel, and I will begin.
    Mr. Lofthus, it is my understanding that there was no 
request made for additional personnel in the 2009 budget 
request. Is that correct?
    Mr. Lofthus. That is correct. There were----
    Ms. Lofgren. That is fine, because I have a whole list of 
questions. I just wanted to know if that was true.
    I would like to ask--Mr. Lofthus, I don't know if you can 
answer this, but if you can't, you can just tell me so. I have 
been looking--and we have been assisted by TRAC Statistics, as 
well as testimony we received in Ms. Sanchez's Subcommittee--
that there has been a massive expansion of enforcing of garden-
variety, low-level immigration violations that have tracked a 
decline, especially in the Southwest quadrant, of prosecutions 
of organized crime.
    It is pretty obvious it has happened at the same time. We 
have also had feedback privately from U.S. attorneys that they 
have really been pulled off organized crime and drug smuggling 
and the like to do massive expansions of these prosecutions of, 
you know, bus boys and gardeners.
    Has that been a policy decision that you have been involved 
in, in terms of resources? Or is that just something that you 
respond to as the MBA guy at the department in supporting a 
policy decision elsewhere?
    Mr. Lofthus. What we do when we look at resources across 
the department is we look at influencing workload factors. In 
this case, we look at what is going on at the Department of 
Homeland Security. We look at what is going on across the 
prosecution realm. But we basically get that input from our 
program offices and from our policy officials who are running 
their programs and responding to those types of needs.
    My goal is to make sure that our offices have the 
appropriate resources once those decisions are made.
    Ms. Lofgren. All right.
    Mr. Ohlson, you mentioned in your remarks the benchbook 
that you have put together to try to get some additional 
professionalism--maybe that is not the right way to put it, but 
I think it is--to upgrade performance.
    I am interested and, frankly, I think, from what I have 
heard, concerned about the development of that benchbook. The 
Office of Immigration Litigation, or OIL, had input into the 
development, but it is my understanding that outside lawyers 
did not.
    And that is kind of like asking the prosecutor to write the 
rules for the judge; it is a little bit one-sided. And if it 
ends up being the prosecutor's view instead of a more general 
view of the law overall, it is going to end up with still more 
appeals and more process problems.
    Do you have a plan to allow other outside immigration 
experts to review that and provide input to the department?
    Mr. Ohlson. Madam Chairwoman, our Immigration Judge 
Benchbook is an outstanding resource material for our 
immigration judges when they are on the bench.
    The primary individuals who worked on that Immigration 
Judge Benchbook were our most senior and the immigration judges 
who are recognized as being experts in this area, in terms of 
training, as well as----
    Ms. Lofgren. It was a simple question. Do you have a plan 
to allow others in the immigration world--AILA or law 
professors or the like--to provide input to the department?
    Mr. Ohlson. With something such as the Immigration Judge 
Benchbook, we are always completely open. We have continued 
meeting with AILA. I personally attend those meetings that we 
have on a semi-annual basis. We are open to input----
    Ms. Lofgren. Okay, very good.
    I am interested also in how one of the recent studies 
indicated that immigration judges were making diametrically 
opposed decisions on asylum on essentially the same fact 
situation. And the studies seem to indicate--and this is 
something we hear a lot, actually, anecdotally--that whether 
your asylum petition is granted really has more to do with who 
you land in front of than the actual facts of your case.
    And it has often been of concern to me that the immigration 
judges have to make it up each time. There is no general 
resource that is updated constantly for the American view of 
what is going on in a foreign nation that we accept as true.
    Is that part of your planning? I mean, you wouldn't want to 
put that in a published benchbook. It would have to be an 
electronic version of that that is constantly updated. Is that 
something you are looking at?
    Mr. Ohlson. We certainly would be open to that. We get 
country reports from the Department of State, and we are 
certainly willing to look into that. In terms of----
    Ms. Lofgren. All right. Thank you very much.
    I have a question on the inspector general's report. The 
inspector general really panned what was going on in the 
department. And we have got a new process now that you have 
talked about.
    Has the inspector general reviewed the questions that are 
now part of the hiring process?
    Mr. Ohlson. In terms of the questions that are posed to the 
individual?
    Ms. Lofgren. Yes.
    Mr. Ohlson. Those questions were developed by our career 
officials in the Office of the Chief Immigration Judge. And the 
Office of the Inspector General I don't believe has ever seen 
them. But it is really now--that part of the process is 
strictly run by career people.
    Ms. Lofgren. But is it true that one of the questions for 
the IGs is whether the applicant would follow a direction or 
order from the attorney general even if it was contrary to law?
    Mr. Ohlson. Not to the best of my knowledge, Chairwoman.
    Ms. Lofgren. Would you please look into that?
    Mr. Ohlson. Certainly.
    Ms. Lofgren. Thank you.
    I will now recognize the Ranking Member for 5 minutes for 
his questions.
    Mr. King. Thank you, Madam Chair.
    First, Mr. Lofthus--and thank you both for your testimony--
in your testimony I believe you said that you had been at 
Justice for 27 years?
    Mr. Lofthus. Yes, just going on.
    Mr. King. And in that period of time, you have seen a lot 
of things move through and change. And I am not sure what your 
vantage point was throughout all those 27 years, but I presume 
it was a gradual moving up through the ranks.
    Mr. Lofthus. Yes.
    Mr. King. And I am wondering what your title and your 
perspective was back in 1995. Do you recall?
    Mr. Lofthus. In 1995, I was--during that year, I became 
chief of finance for the Federal Bureau of Prisons.
    Mr. King. Okay. I would ask you then, from that standpoint, 
I wouldn't know how much insight you would have had into the 
circumstances where, under the Clinton administration's 
appointments, where they essentially put a hiring freeze on 
White males. Being one, you might have noticed that a little 
more closely. Do you recall those times?
    Mr. Lofthus. Only from a distance, because of my role at 
the time as the finance officer for the prisons I didn't have 
any direct exposure to that particular event.
    Mr. King. I would ask Mr. Ohlson, did you have--where were 
you in 1995?
    Mr. Ohlson. Congressman King, I was a Federal prosecutor at 
that time.
    Mr. King. Then did you have a vantage point that might have 
given you a little more insight into those circumstances?
    Mr. Ohlson. Since that time, I have served as the deputy 
director of the organization and as the director. And, as a 
result of settling that case, I have become aware of what was 
going on during that time, yes, sir.
    Mr. King. Do you recall how many plaintiffs were part of 
that class action suit?
    Mr. Ohlson. I am afraid I don't remember that number off 
the top of my head, Mr. King. I would be happy to get that 
number for you.
    Mr. King. Does 150 ring a bell?
    Mr. Ohlson. It was a very significant number, yes, sir.
    Mr. King. Do you know how many are the subject of this 
I.G.'s report, those that they said the evidence supported that 
they had violated policy and law?
    Mr. Ohlson. Yes, Congressman King. In the Office of the 
Inspector General report, it was approximately 40 immigration 
judges.
    Mr. King. Cases? Forty whats, I am sorry?
    Mr. Ohlson. Forty immigration judges who were hired during 
the process covered by the I.G.
    Mr. King. By three people taking action?
    Mr. Ohlson. That is correct, sir.
    Mr. King. If three people hired 40, and in 1995 and 1996 
there was a policy that brought at least--we will use this 
number--150 into the class action lawsuits.
    I lay that out as a comparison of the magnitude of what we 
are dealing with here today compared to what was taking place 
in the mid-1990's under the previous Administration. And I 
thank you for that, lending that clarity.
    Now, also, Mr. Ohlson, are you aware if any of the Federal 
circuits issue an automatic stay of removal if an alien appeals 
the case?
    Mr. Ohlson. I believe that may occur in the Ninth Circuit.
    Mr. King. Any other circuits that you are aware of?
    Mr. Ohlson. I am not aware. It may occur also in the Second 
Circuit.
    Mr. King. The Second and the Ninth. And then could you 
explain to this panel what the result of that is?
    Mr. Ohlson. Well, approximately 70 percent of the cases 
that are appealed up from the Board go to those two circuits. 
We are very happy to note that, over the last year, we have had 
about a 23 percent drop in the number of cases that are going 
from the Board of Immigration Appeals up to the circuit courts.
    There certainly has been the view on the part of some that 
it is because of those delays that people are appealing at a 
higher rate within the Second and the Ninth Circuits, sir.
    Mr. King. Do you have an idea about how much higher their 
rate might be if--have you analyzed this proportionally, from 
circuit to circuit, to see if that incentive that is there to 
appeal, what that has done to overburden the circuits in the 
Ninth, as you testified, and the Second, as I allege?
    Mr. Ohlson. There is a significantly increased percentage 
of cases that are appealed to the Second and Ninth Circuits 
where there are longer delays before they are adjudicated.
    Mr. King. And ``significant'' would mean?
    Mr. Ohlson. I would have to get you those numbers precisely 
to be accurate.
    Mr. King. I would ask you if you could produce those 
numbers, the percentage comparisons between the circuits.
    Mr. Ohlson. I would be happy to, Mr. King.
    Mr. King. I think that is essential data for us to look at 
to evaluate that practice.
    And then I would ask you also, of the 40 or so IJs that 
have been hired under the practice that has been brought into 
question and criticized by the I.G.--and I am going to say 
appropriately, given the testimony that I have seen here--of 
those 40, is there any evidence of any partisan bias in the 
decisions that they have made?
    Mr. Ohlson. I am familiar with the work of the 40 
individuals who have been hired. A couple of those individuals 
have not completed their probationary period. But I can tell 
you that my experience is the vast, vast majority are extremely 
dedicated and very successful on the bench.
    Mr. King. I thank you, Mr. Ohlson. And I thank you also, 
Mr. Lofthus. And I appreciate you all's testimony.
    And I yield back the balance of my time.
    Ms. Lofgren. The gentleman yields back.
    I would now invite the Chairman of the Judiciary Committee, 
Chairman Conyers, for any questions he may have.
    Mr. Conyers. Well, thank you, gentlemen.
    My opening statement contained about 20 or so questions. I 
would like you both to try to respond to them, send in your 
responses as soon as you can.
    Mr. Ohlson. I would be happy to, Mr. Chairman.
    Mr. Lofthus. Yes.
    Mr. Conyers. Have you ever been before a Judiciary 
Committee for oversight in this position before?
    Mr. Ohlson. I have not, sir. I am a career person in the 
Department of Justice. I have been with the department for 
approximately 20 years----
    Mr. Conyers. Okay. You haven't.
    Have you?
    Mr. Lofthus. Not Judiciary. Other Committees, but not 
Judiciary.
    Mr. Conyers. But on this subject?
    Mr. Lofthus. Not on this subject.
    Mr. Conyers. Do you happen to know--I am impressed that 
everything is moving forward, that everything is going pretty 
smoothly, now that the I.G. and lots of hearings, including in 
this Committee, have revealed the politicization of the 
Department of Justice and Immigration. And I am pleased with 
it.
    What about during the year of, say, 2000? How many 
immigration judges were appointed?
    Mr. Ohlson. In terms of having the number who were hired 
during that time, Mr. Chairman, I would have to----
    Mr. Conyers. Okay. All right. Let's take 2004, 2005, 2006, 
2007. Because that is the period of time the inspector general 
was critical about. As a matter of fact, he gave you, Mr. 
Ohlson, a pretty good--he didn't find you in violation of 
anything he was inspecting. As a matter of fact, you got 
promoted.
    Now we are going to be watching carefully--and I am not 
threatening you. But we have got to clean this mess up and keep 
it cleaned up. It is our fault that we didn't oversight you. 
You can't call up and say, ``Judiciary hasn't oversighted us in 
8 years, and now they wonder why we are wandering all over the 
lot, with Monica doing all this political stuff.''
    But we are not going back into those years just to harass 
you. We are trying to make sure it never happens again.
    Now, what is the deal on the budget. Everybody knows we 
need a lot more judges and a lot more appeal board members. 
What is the situation here? Tell me.
    2009, Department of Justice did not request any positions 
for judges or appeal board members.
    Mr. Lofthus. Mr. Conyers, let me address that question, 
because I think it is an excellent one.
    To really get the context of what is going on with the 
budget at EOIR, if you go back to the report with the 22 
recommendations, two of the recommendations said go forth and 
help this organization; it needs money for additional hiring, 
and it needs money for infrastructure, support for the judges 
and the activities of the court, information technology 
improvements.
    So, for three straight budgets, we worked and successfully 
worked with OMB to present budgets to the Hill that----
    Mr. Conyers. But there were no requests in 2009. Where is 
2009?
    Mr. Lofthus. Here is what happened. In 2007, we sought 
positions in our budget, meaning increases of 120 positions, 
including 22 judge positions. in 2008, we came back for another 
tranche of those positions, another 120, including 20 judges. 
We were successful back in 2007----
    Mr. Conyers. What about 2009?
    Mr. Lofthus. In 2009, what we did, because we knew we had 
gotten the money in 2007 and had a request for 2008, in 2009 we 
went after technology money.
    Mr. Conyers. You did not make any requests for judges.
    Mr. Lofthus. That is right, because we had an existing 2008 
request here and because we had been successful in 2007. So we 
had 2 straight years of requests for judges, and then we felt 
we needed to turn our attention to the infrastructure to 
support the judges, which was the DARS, digital audio recording 
system, and another I.T. system.
    So after 2 years of supporting the personnel increases, we 
wanted to turn our attention to the I.T.
    Mr. Conyers. So then you are the one that allowed 300,000 
cases to be handled by 215 immigration judges, because you 
didn't make any requests. You didn't expect us to come out of 
the clear, blue sky and give you some judges when there is no 
request made for them, did you?
    Mr. Lofthus. We had two----
    Mr. Conyers. Yes or no?
    Mr. Lofthus. We made two----
    Mr. Conyers. Yes or no?
    Mr. Lofthus [continuing]. Requests.
    Mr. Conyers. The 2009--hey, you must know something about 
the budget process. You don't go back and look at the years 
before to find out what happened and 2 years before to find out 
what happened. We are taking the current annual budget for 
2009.
    Mr. Lofthus. Sure.
    Mr. Conyers. So you can't say, ``Well, this is what 
happened in 2008, this is what happened in 2007, and although 
we need hundreds of judges, I am not going to ask for any.'' 
And then we come here today and give me this lame alibi, that 
you had made the request before and you wanted to turn it to 
something else. I find that almost unbelievable.
    Mr. Lofthus. Well, I think 2009 was requested in light of 
what we had done in 2007 and 2008. And unfortunately 2008 had 
not been completed or enacted when we made the 2009 request to 
the Hill. And when the 2008 omnibus was finished in the wee 
hours, when that finally was completed, there was not the money 
for our personnel increase. We would have liked that.
    I have to say, I share your concern----
    Mr. Conyers. Oh, thank you.
    Now, let me ask you something else. Are you making the ones 
for next year?
    Mr. Lofthus. Excuse me, sir?
    Mr. Conyers. Are you the person that makes the request for 
the coming budget?
    Mr. Lofthus. Absolutely. We will work with the department's 
officials, and we are going to work with the incoming 
transition group and the incoming Administration to put 
together a 2010 budget.
    Mr. Conyers. So we can expect the same kind of work that 
you have given us in the past, right? Even though you need 
hundreds of judges, after you work with everybody and it is 
late at night and everything is going crazy, you make no 
request. That could happen, right?
    Mr. Lofthus [continuing]. We made 2 years' requests. And I 
have to say, I am very concerned, as you are, that when that 
other----
    Mr. Conyers. Well, we never heard about you being concerned 
before this morning.
    Mr. Lofthus. When that second request was made and did not 
get fulfilled through the omnibus, that presents a problem for 
me and for Mr. Ohlson. We know that that didn't come through, 
and I need help in the 2009----
    Mr. Conyers. I will be watching to help you, and I will be 
watching to see how you perform.
    Thank you, Madam Chair.
    Ms. Lofgren. Thank you, Mr. Chairman.
    I now recognize Chairwoman Linda Sanchez for 5 minutes for 
her questions.
    Ms. Sanchez. Thank you, Ms. Lofgren, for your leadership on 
this issue and the fact that we are actually having an 
oversight hearing. Because I am appalled at some of the 
information that is coming out and some that isn't coming out, 
quite frankly.
    Mr. Lofthus, a fact sheet that is entitled ``EOIR's 
Improvement Measures: Progress Overview'' and dated September 
8, 2008, states that EOIR has hired 22 immigration judges and 
one new assistant chief immigration judge. Is that correct?
    Mr. Lofthus. I defer to Mr. Ohlson on----
    Ms. Sanchez. Mr. Ohlson?
    Mr. Ohlson. Over what time frame were we talking about, Ms. 
Sanchez?
    Ms. Sanchez. I don't know. I am specifically referring to 
the ``Progress Overview'' that is dated September 8, 2008.
    Mr. Ohlson. What we have done is, through the new hiring 
process that has been implemented since April of 2007, we have 
managed to bring onboard 18 new immigration judges, and we have 
16 in the pipeline.
    Ms. Sanchez. Okay. And yet, in something that is dated 
September 8 of this year, you are saying that EOIR has hired 22 
immigration judges.
    Mr. Ohlson. I would have to see the document, Ms. Sanchez.
    Ms. Sanchez. Okay. Because I would be interested in 
knowing, of those 22, how many of them were hired through the 
revised process and how many were hired through the politicized 
process. If you could get me that information, that would----
    Mr. Ohlson. I would certainly be happy to. With the 18 to 
which I am referring, all of them have been hired through the 
new process.
    Ms. Sanchez. Okay. So there is a potential that in the 
progress report about improvement, they may be adding in judges 
that were hired under the old process, in which it was 
politicized.
    Mr. Ohlson. I would have to look at the document, ma'am.
    Ms. Sanchez. But wouldn't that stand to make sense? If 18 
were hired under the new process and the progress report says 
22 new judges have been hired, then, by simple arithmetic, the 
ones that were not hired in the new process were hired under 
the old process? Do you want to take a look at it?
    Mr. Ohlson. I don't believe so, because the last people we 
had come onboard through the old process was December 2006.
    Ms. Sanchez. Okay. I have actually got the document here.
    Ms. Lofgren. Maybe we can ask the clerk to bring it down to 
the witness, and he can take a look at it.
    Ms. Sanchez. You know, I am really concerned, after hearing 
the testimony, that, you know, there is this sort of rose-
colored glass vision that, you know, since the revised, you 
know, hiring has come into effect, you know, there isn't any 
problem with the immigration judges that are currently deciding 
cases.
    I am interested in knowing, of the new judges that have 
been hired, how many of them have an ICE, an INS or a law 
enforcement background. Do you know that?
    Mr. Ohlson. In terms of specific numbers, I don't. I do 
know that----
    Ms. Sanchez. Could you please provide that for this 
Committee?
    Mr. Ohlson. I would be happy to, Ms. Sanchez.
    Ms. Sanchez. Great. And I would be interested in knowing, 
conversely, how many of them have private practice, teaching or 
other types of immigration law background.
    Mr. Ohlson. We will be more than happy to get that 
information to you.
    Ms. Sanchez. Okay. And I would be interested in knowing how 
many of them have no background in immigration at all.
    Mr. Ohlson. Certainly.
    Ms. Sanchez. I think that would definitely be helpful, to 
know who is deciding cases that has no background in 
immigration law at all.
    Another question that I have: Is it true that Rex Ford, who 
was one of three immigration judges mentioned by name in the 
OIG report as having been involved in the ``coordinated 
efforts'' with two other immigration judges to identify 
candidates for the I.J. vacancies for Monica Goodling under the 
politicized hiring system, is also now participating in 
interviews for I.J. candidate positions in the new process? Is 
that correct?
    Mr. Ohlson. No, I don't believe that is correct, ma'am.
    Ms. Sanchez. Okay. Because you can see why that would be 
troubling.
    Mr. Ohlson. Certainly.
    Ms. Sanchez. Okay.
    Mr. Ohlson. The three people who do that are our assistant 
chief immigration judges. And Rex Ford is not an assistant 
chief immigration judge.
    Ms. Sanchez. Okay. I am particularly concerned--and 
Chairwoman Lofgren mentioned this--the background, in terms of 
who serves or who chooses who serves, is very troubling to me. 
And in looking at the lowest rates for approval of asylum 
cases, the lowest rates of approval tend to come from ICE, INS 
trial attorneys.
    So it would stand to reason that if you worked for ICE or 
INS, that probably you come in with a certain perspective when 
you are adjudicating cases. Would you not agree?
    Mr. Ohlson. What we are trying to do is we are trying to 
address the issue of asylum disparity very aggressively. Our 
goal is to ensure that whenever an alien comes before an 
immigration judge, he or she does not feel as if the case has 
been predetermined.
    Ms. Sanchez. But if the lowest asylum-grantee rate comes 
from ICE or INS trial attorneys, wouldn't it stand to reason 
that perhaps you need to balance the number of judges who come 
from that kind of background versus pro-bono work or private 
practice or teaching?
    Mr. Ohlson. We have a broad representation of backgrounds 
on the immigration judge bench, as it is now. And it is not 
always predictive of how they will decide asylum cases.
    Ms. Sanchez. But wouldn't you agree that if there is a link 
between the lowest rates of granting asylum cases and the type 
of the background of the judge deciding them, that there might 
be some kind of inherent bias or preconceived perspective that 
those judges are bringing to the table? Or is that totally 
crazy and outside the realm of possibility in your world?
    Mr. Ohlson. No, I don't think in anyone's world. But our 
goal is to have----
    Ms. Sanchez. I know what your goal is, but I am----
    Mr. Ohlson. And it is not only just a spoken goal. We are 
taking concrete steps to ensure that that is the case.
    Ms. Sanchez. In terms of streamlining, which is something 
that was developed in 2002, there was--item 12 of the former 
attorney general's 22-point plan to improve EOIR called for a 
revision of the 2002 streamlining regulations. And in March 
2007, then-EOIR director Kevin Rooney stated that the proposed 
rule would be issued in the spring of 2007. And the proposed 
rule was, in fact, issued in June of this year, of 2008.
    When do you expect to finalize the revised streamlining 
rule?
    Mr. Ohlson. I would expect the regulation to be out very 
soon, but we also have actually implemented the provisions 
without the regulation needing to be out there.
    What the goal is, when it comes to affirmances without 
opinion, as part of the streamlining, we have decreased that 
number from 34 percent of all their decisions down to 9 
percent.
    We have also increased dramatically the number of 
precedential decisions. A few years ago it was 12; we are up to 
about 50 a year now.
    Ms. Sanchez. Well, that is an improvement. But without the 
regulation, it is just sort of--you can choose to follow it or 
you cannot. I am interested in knowing when that will be 
finalized.
    Mr. Ohlson. The regulatory process sometimes is rather 
opaque, but we expect to have that finalized very soon.
    Ms. Lofgren. The gentlelady's time has expired.
    I have been a Member of the Judiciary Committee for almost 
14 years, and this is the first time we have ever had any 
oversight of this activity. So I think that merits a second 
round of questions. And I would permit the Ranking Member to 
begin the second round.
    Mr. King. And not in preparation of the gentlelady's 
generous offer, I would----
    Ms. Lofgren. Oh, I will be happy to begin then.
    I want to talk about, getting back to the inspector 
general's report, there were just a few people who were 
mentioned by name in that report. And Mr. Garry Malphrus was 
one of them mentioned as a politicized appointee. The inspector 
general also noted that he was involved in politicized 
appointments of others, on page 88, 89, 97, 98, and 108 to 111, 
if you want to reference the report. I was feeling surprised to 
see that he was recently named to the Board of Immigration 
Appeals.
    Was the fact that Mr. Malphrus was originally hired through 
the politicized process and, according to the I.G., 
participated in this illegal scheme of appointment taken into 
consideration when he was appointed?
    Mr. Ohlson. I am not privy to any discussions that occurred 
within the office of the deputy attorney general or the 
attorney general. It was a career process that was used in 
selecting Mr. Malphrus for the Board of Immigration----
    Ms. Lofgren. Well, on that point, I believe it is true that 
Board of Immigration Appeals members are required to have 7 
years of experience in immigration law, as opposed to IJs that 
merely requires 7 years of legal experience.
    Did, to your knowledge, Mr. Malphrus have at least 7 years 
of experience in immigration law?
    Mr. Ohlson. I am not sure that it is required that they 
have 7 years of immigration law experience.
    Ms. Lofgren. Do you know what his experience is in 
immigration law?
    Mr. Ohlson. He has served as an immigration----
    Ms. Lofgren. How long? Only through this politicized 
process?
    Mr. Ohlson. He was appointed in 2004-2005.
    Ms. Lofgren. Okay.
    I want to talk about the appointment process and how it 
might lead to a particular result.
    How long does the new hiring process take?
    Mr. Ohlson. It actually takes a significant period of time, 
particularly when you factor in----
    Ms. Lofgren. Approximately how long?
    Mr. Ohlson. Going forward, if we don't count the background 
investigation----
    Ms. Lofgren. Count the whole process. I mean, is it a year? 
Is it 6 months?
    Mr. Ohlson. If you include the background investigation, it 
will probably take at least a year.
    Ms. Lofgren. So I would just like to make this suggestion, 
that that really means that we are going to hire government 
lawyers for the most part. It is very difficult in the private 
sector to be on hold for a year if you are in a law firm. And I 
think that that is something that needs to be, obviously in the 
new Administration, reviewed. Because I think that skews it 
toward--it is going to be OIL or ICE, instead of anybody who 
knows a different angle on immigration law.
    I am also interested in what efforts have been made to 
reach out to the broad spectrum of immigration expertise in 
this country for EOIR.
    Mr. Ohlson. In terms of hiring?
    Ms. Lofgren. Yes.
    Mr. Ohlson. We actually put out the ad in a number of 
publications, minority publications and so forth, around the 
country. We try to aggressively recruit individuals from a 
diverse background.
    Ms. Lofgren. When you say ``try to aggressively recruit,'' 
what does that consist of, I mean, other than an ad?
    Mr. Ohlson. We have, as I mentioned, I put on our DOJ Web 
site, we put on OPM's Web site, we----
    Ms. Lofgren. I see. I mean, in my experience, you know, 
looking at it, the prosecutors generally are the ones--the OIL 
people are taking a look, they know in advance when the 
openings are in. And, you know, they have a right to apply; I 
wouldn't say otherwise. But you end up with kind of a skewed 
process.
    And unless there is a real effort to include a different 
perspective, you end up with, you know, a prosecutor as the 
prosecutor, a prosecutor as the judge, and an immigrant who 
doesn't have a lawyer, and it doesn't always lead to a result 
that is a just result or at least providing the appearance of a 
just result. And I am concerned that that is still going on.
    Mr. Ohlson. We would certainly be receptive to any ideas 
you have along those lines, Madam Chairwoman.
    Ms. Lofgren. Now, the former chief judge of the U.S. Court 
of Appeals for the Second Circuit, the Honorable John Walker, 
testified before the Senate Judiciary Committee in 2006. I was 
glad that they had a look at this. In his opinion, at least 30 
people should be on the BIA. And in his judgment, the number of 
immigration judges should be doubled to about 400, given the 
workload. And that was certainly before the surge that we have 
had in prosecutions and arrests.
    Do you think those are the kinds of numbers that are, in 
fact, necessary to deal with the caseload that we have here?
    Mr. Ohlson. If you look at the Board of Immigration 
Appeals, they are currently capable of adjudicating 35,000 
cases a year, and they are receiving approximately 30,000. So 
they are----
    Ms. Lofgren. But some would argue they are not capable, 
given what the circuit courts are seeing and the scathing 
comments made by the real judges about the quality of these 
decisions.
    Mr. Ohlson. Well, I would note that we have about an 87 
percent affirmance rate within the circuit courts, which is 
extremely high. And I think our members of the Board of 
Immigration Appeals are doing a truly outstanding job.
    Ms. Lofgren. I see that my time has expired. I will turn to 
Mr. King for any additional questions he may have.
    Mr. King. Thank you, Madam Chair.
    Let's say first to Mr. Lofthus, you know, you were 
excoriated earlier for not coming to this Congress and pressing 
us for authorization and funding for more IJs. I don't exactly 
know how many. But I heard that and I would characterize that, 
and I would ask you if you agree with my characterization.
    And I would point out for your benefit that the House 
hasn't passed a single appropriations bill for 2009, for fiscal 
year 2009. We have had one come to the floor of the House of 
Representatives, and that was the milcon, military 
construction, appropriations bill.
    Now, we could discuss the reasons for that. But I will just 
submit that that is just dysfunctional. And Congress has never 
been this dysfunctional. There has never been a time that we 
have gone this far, in the history of this country, and not 
passed an appropriations bill.
    There is a reason that this Congress is structured the way 
it is, that we have appropriations Subcommittees and Committees 
and that bills come to the floor, that we have authorization 
Committees and that bills come through the Subcommittee and the 
Committee to the floor.
    The reason for that is so that every Member of Congress has 
an opportunity to weigh in and perfect legislation so that when 
it does arrive at the President's desk it is the voice of the 
people of the United States of America run through the filter 
of the United States House of Representatives and the United 
States Senate.
    What we are seeing instead--we are here discussing how we 
run this country by omnibus spending bills, by stacks of 3,600 
pages, by my memory, and $912 billion in one stack that comes 
out in the print at 11 o'clock at night and comes to the floor 
for debate and passage without amendment the following day.
    That means that the effect is the American people will go 
to the polls again on November 4 and they will put up their 
votes, and whatever the party affiliation is of the members of 
House of Representatives, they will vote for speaker. Whether 
it be the Democrats or whether it be Republicans, those votes 
will be exactly down party lines.
    And then whoever is elected the speaker will have the 
authority to suspend Committee process, effective Committee 
process, and bring bills to the floor with the assent of the 
Rules Committee, which is approved by the speaker.
    And so we look back on how this happens--the energy bill 
would be a perfect example of that. No Committee action, a bill 
that might set the destiny of this country for a generation or 
more, no amendments, only 3 hours of debate on the floor, no 
way to perfect the legislation.
    So, whatever Members of this Judiciary Committee hear, or 
Justice Approps over on the appropriations side, might have 
wanted to do to help you and provide you more judges to work 
with, we haven't had a process to do that. And you haven't had 
the opportunity to make the request that could be acted upon by 
anyone other than the speaker of the House and those that she 
might authorize to do this.
    This is not a representative form of government. And it 
troubled me that you have to sit there and listen to that when 
there was no avenue for anyone to help you, except the people 
who are wielding the gavel at the speaker's level.
    So I am hopeful that one day soon we will get back to an 
open Congress, a functional Congress, one that takes advantage 
of the wisdom and the expertise of 435 members of the House, 
100 members of the Senate, so that we can provide the filter to 
receive input, build those kind of coalitions and those 
consensus, and be able to move through to provide effective 
government. It is just simply not possible for a small group of 
people to make all the right decisions, no matter how smart 
they might be.
    So then I would just take you to this. Mr. Ohlson, I have 
the information, it has arrived in front of me, that I had 
asked of you earlier, the rate of appeals for BIA decisions. So 
it won't be necessary for you to provide it unless the other 
Committee Members would be interested.
    But I would just say this, that the I.J. appeals rate is 10 
percent, the BIA appeals rate is 30 percent. And when you look 
at the two circuits that I mentioned in the previous 
questioning, the Ninth Circuit and the Second Circuit, those at 
the Ninth--and I think Mr. Lofthus has actually testified--that 
is an automatic stay if it is appealed from the BIA to the 
Ninth Circuit. They have the highest rate of appeals, at 42 
percent.
    And if I am correct on the Second Circuit having an 
automatic stay, they have the second highest rate of appeals; 
that is 36 percent. That is compared to the average of 30 
percent. If you go to the more conservative circuits, for 
example, the 11th, you will see a 9 percent rate of appeals.
    I mean, I would think that the reflective appeals out of 
I.J. on up through the BIA to the circuit at 10 percent, that 
would be something we might want to look at as being more the 
norm that we should like to see.
    Ms. Lofgren. Would the gentleman yield?
    Mr. King. I would yield.
    Ms. Lofgren. I think the premise is incorrect. There is no 
automatic stay in law in this appeals.
    Mr. King. The practice then--reclaiming my time. I will 
ask, then, Mr. Ohlson.
    Are you aware of the practice in the Ninth Circuit? Do they 
grant stay for every appeal, or don't they?
    Mr. Ohlson. Essentially, yes.
    Mr. King. Okay. Then let me just correct that to the 
practice in the Ninth Circuit and the practice that I allege 
exists in the Second Circuit has yielded the highest percentage 
of appeals. And so, that is the standard that we need to be 
looking at.
    And I think--I will ask you this. Will you, then, put 
together for this Committee the data that will show us the 
percentage of appeals and how many stays are granted for each 
of the circuits and, in print, the statistical data and the 
text of the practice that you have testified exists in the 
Ninth, that I allege in the Second, and any exceptions that 
might exist in the other districts, so that we have a real 
perspective on what is going on here? And I would ask you if 
you would do that.
    And I would yield back the balance of my time.
    Ms. Lofgren. The gentleman's time has expired. And, as we 
have said before, we are all entitled to our own opinions but 
not entitled to our own facts. So we will find out and we will 
have in the record----
    Mr. King. Will the gentlewoman yield?
    Ms. Lofgren. Of course.
    Mr. King. I would submit that I have characterized this 
accurately, and the witness has testified that the result is 
that there is a stay of deportation----
    Ms. Lofgren. Recalling my time----
    Mr. King. That is the witness's testimony.
    Ms. Lofgren. And I think the witness is incorrect, but we 
will find out. As we look at it, we will actually get the 
facts. And we will not have a disagreement; we will have the 
facts.
    With that, I would like to thank this panel for its 
testimony.
    Without objection, Members of the Subcommittee will have 5 
legislative days to submit questions to you, which we will 
forward and ask that you answer as promptly as you can so they 
can be made part of the record.
    I would also like to just note that, in January of this 
year, Chairman Conyers and I wrote to the attorney general 
regarding a very wrong decision, the matter of ``A.T.,'' a 
Board of Immigration Appeals decision that denied political 
asylum to a victim of female genital mutilation, a decision 
that was at odds with all the precedence and morally incorrect, 
from my point of view.
    We want to publicly thank the attorney general for 
overturning the BIA decision and reaffirming the proud 
tradition of asylum for that egregious behavior. And I don't 
always agree with Attorney General Mukasey, but I do feel 
obliged to publicly acknowledge his very honorable decision 
today.
    And we do thank you for appearing today. And we will ask 
you to relinquish your seats, as we ask up our second panel of 
distinguished witnesses.
    And as we are doing this, I will introduce our witnesses.
    I am pleased to welcome Professor Susan Long. Professor 
Long is co-director of the Transactional Records Access 
Clearinghouse at Syracuse University. Professor Long's 
specialties are in the fields of statistics, data and 
measurement. And she is currently a faculty member in the 
department of finance at the Martin J. Whitman School at 
Syracuse University.
    Professor Long has served as an expert witness in 
litigation, on information technologies, and with respect to 
public disclosure, and on the use of statistical evidence in 
evaluating government policy. She has also published articles 
on data-warehousing and data-mining tools in the legal 
profession.
    I am also pleased to introduce Dr. Stephen Legomsky. Dr. 
Legomsky is a professor at the Washington University School of 
Law in St. Louis. He is the author of ``Immigration and Refugee 
Law and Policy,'' which has been adopted as the required text 
for immigration courses in 163 U.S. law schools.
    Dr. Legomsky founded the Immigration Law Section of the 
Association of American Law Schools and chaired the Refugee 
Committee of the American branch of the International Law 
Association. He has been a consultant to President Clinton's 
transition team and to the first President Bush's Commission on 
Immigration, as well as to the U.N. high commissioner for 
refugees and to several foreign governments on migration, 
refugee and citizenship issues.
    He is an elected member of the American Law Institute and 
has been a visiting fellow at Oxford University and a visiting 
fellow at Cambridge University. He has had teaching or research 
appointments in the United States, Mexico, New Zealand, 
Switzerland, Germany, Italy, Austria, Australia, Suriname and 
Singapore.
    And we are very honored to have both of you as witnesses 
today.
    Now, as mentioned before, your entire written statements 
will be made part of the record. And we will have 5 minutes of 
testimony, which we will follow by questions.
    So all those bells and whistles are calling us to the floor 
to vote, but we have 13 minutes. So I think that is time to get 
both of your oral testimonies in, and then we will return for 
questions.
    So, Professor Long, could you begin your 5 minutes of oral 
testimony? And your full statement will be made part of the 
record.

TESTIMONY OF SUSAN B. LONG, CO-DIRECTOR, TRANSACTIONAL RECORDS 
                  ACCESS CLEARINGHOUSE (TRAC)

    Ms. Long. Madam Chair and Members of this Subcommittee, my 
name is Susan Long, and I am co-director of the Transactional 
Records Access Clearinghouse at Syracuse University, commonly 
known as TRAC.
    I wish to thank you for the invitation to come today to 
testify about the results of TRAC's research on the functioning 
of the immigration court system and its administration by the 
Executive Office for Immigration Review.
    Since its founding in 1989, TRAC has sought to provide the 
American people with comprehensive information about the 
activities of Federal enforcement and regulatory agencies. To 
give you one small indicator of the scope of TRAC's activities, 
TRAC publishes around 100,000 reports each month on a large 
range of topics. These reports are based upon TRAC's ever-
expanding data warehouse, with more than a terabyte of data, 
roughly equivalent to over 500 million printed pages of 
information.
    TRAC's series of focus studies on the immigration courts 
began in 2005. The problems faced by our immigration court 
system are not new. TRAC's analyses of hundreds of thousands of 
immigration court records covering the last quarter-century, 
supplemented by extensive examination of budgets, staffing, 
workload and other agency documents, along with interviews with 
stakeholders, show that our immigration court system has been 
troubled for a very long time.
    These conclusions are further reinforced by the criticisms 
from the Federal appellate courts and the reports of other 
analysts and immigration stakeholders.
    Two years ago, the Bush administration made a commitment to 
end this sorry history. However, our careful examination since 
then shows that this promise has not been kept.
    Our findings: One, the most recent covering the period 
through the end of fiscal year 2007, continue to show 
inexplicable asylum grant rate disparities among judges in the 
immigration courts.
    Two, despite the fact immigration judge caseload has 
repeatedly been cited as a chief problem, there are still fewer 
immigration judges today than there were in 2006 when the 
attorney general announced his 22-point plan for reforms, as 
result only partially explained by the illegal hiring process 
used by the Justice Department in EOIR.
    Further, a central reform promised was for DOJ to seek 
budget increases to increase the available number of 
immigration judge positions. Regrettably, there has been no 
actual increase in the number of immigration judge positions 
since the A.G.'s proposals were announced. And DOJ did not even 
seek funding for increasing immigration judge positions, as we 
heard earlier testimony on, in the fiscal year 2009 budget.
    Three, despite the fact that judicial conduct and quality 
were the stated reasons for conducting the 2006 comprehensive 
review of the immigration court system, over 2 years later EOIR 
has failed to implement key improvement measures, as directed 
by the A.G., to enforce the oversight and training of judges.
    Four, and despite the hope that the Gonzales reforms would 
usher in increased transparency and accountability into the 
immigration courts, the Justice Department and EOIR has 
repeatedly and needlessly sought to veil the implementation of 
improvements, including decisions that amount to substantial 
policy changes.
    My prepared statement outlines each of these points at more 
length and provides full references to TRAC's research studies 
where these and other findings are laid out in detail.
    I would be happy to answer any questions the Committee may 
have.
    [The prepared statement of Ms. Long follows:]
                  Prepared Statement of Susan B. Long





















    Ms. Lofgren. Thank you, Professor Long.
    Now we will turn to you, Professor Legomsky, for your 5 
minutes of oral testimony.

     TESTIMONY OF STEPHEN H. LEGOMSKY, THE JOHN S. LEHMANN 
   UNIVERSITY PROFESSOR, WASHINGTON UNIVERSITY SCHOOL OF LAW

    Mr. Legomsky. Well, thank you very much, Madam Chair.
    I have been asked to provide a historical perspective on 
EOIR, with specific attention to the 2002 reforms that you have 
already described and their impact. The written statement 
spells out the history in more detail, so I am going to jump 
right up to 2002 when those reforms were announced. And I think 
three of those reforms are most relevant to today's hearing.
    First, instead of the BIA deciding the vast majority of its 
cases in three-member panels, single members now decide all 
cases that don't fit within a few specific exceptions.
    Second, the BIA was forbidden to give any reasons for its 
decisions any time one board member believes that the 
immigration judge reached the right result and that the issues 
are either squarely controlled by precedent or, in the opinion 
of that member, not substantial enough to justify a written 
opinion.
    And third, despite his expressed desire to boost 
productivity, Mr. Ashcroft simultaneously announced a reduction 
in the size of the BIA from 23 authorized member positions, 
some of which were vacant, to 11. To accomplish that, he 
reassigned the generally most liberal board members to either 
I.J. positions or non-adjudicative positions.
    The BIA was created, I might add, in 1940, and this was the 
first time any attorney general had ever removed any BIA member 
for any reason.
    Attorneys General Gonzales and Mukasey have since 
introduced some further changes, also described in the written 
statement. But one of those changes was to expressly authorize 
DOJ officials to talk with I.J.s and board members ex parte 
about pending cases.
    Another recent change was to authorize OIL, which is the 
office that argues the government's side in the courts, to 
report any I.J. or BIA decisions that, in their opinion, were 
of ``poor quality.'' Similar reports from the opposing party 
are not authorized.
    The effect of all of these last few changes--reassigning 
liberal adjudicators, authorizing ex parte communications with 
DOJ, and allowing one side but not the other to file complaints 
about the decisions--does put real pressure on adjudicators to 
reach decisions in favor of the government.
    Decisional independence is critical. Judges have to be able 
to base their decisions solely on the evidence and their honest 
interpretations of the law without fear that they will lose 
their jobs if they rule against their boss.
    Immediately after the 2002 reforms, three things happened. 
First, immigrants began losing a much higher percentage of BIA 
cases. Second, after they lost, they began filing for judicial 
review of the BIA decision at spectacularly increased rates, 
which has caused huge problems for the courts. And third, the 
courts began issuing numerous opinions not only reversing the 
BIA, but, as you have said, uncharacteristically scathing 
comments about the quality of the I.J. and BIA opinions, in 
many cases. This was unprecedented.
    All these problems almost certainly resulted directly from 
a combination of the 2002 reforms and persistent under-
resourcing of EOIR. There just is no other plausible 
explanation for the coincidence in timing. All of these 
problems emerged immediately after these reforms went into 
effect.
    Moreover, there are all kinds of logical reasons to expect 
that all of these reforms, including under-resourcing, would 
have precisely the adverse effects that did occur. The details 
on causation are in my written statement, at pages 7 to 9.
    I would respectfully urge Congress to consider four steps.
    First, invest the resources EOIR needs. It has a huge 
caseload. Many of its cases are very complex. And, of course, 
the consequences of error, especially in asylum, can be 
potentially grave.
    Second, minimize the case categories in which single board 
members are allowed to hand down decisions on behalf of the 
entire BIA. Three-member panels should once again be the norm.
    Third, the BIA should rarely be allowed to decide removal 
cases without giving at least basic reasons and never, in my 
view, in asylum cases.
    And fourth and finally, Congress should restore the 
independence of the IJs and the BIA. It should consider taking 
EOIR out of DOJ entirely. But short of that, I think there are 
some modest steps that would go a long way. Congress should 
specifically prohibit the reassignment of IJs or BIA members, 
other than for misconduct. Congress should end the attorney 
general's asymmetrical practice of allowing government 
attorneys to file complains about adjudicators when they don't 
like the results but not the other side's attorneys. And 
finally, Congress should prohibit ex parte communications by 
adjudicators with DOJ officials concerning pending cases.
    These contradict the most elementary principles of 
procedural fairness. And they are not even necessary, because 
the A.G. already has the power to reverse himself or herself 
whenever the attorney general disagrees.
    I guess that is it for now. Thank you once again for the 
privilege of testifying before you.
    [The prepared statement of Mr. Legomsky follows:]
               Prepared Statement of Stephen H. Legomsky
    Madame Chairwoman and members of the subcommittee, thank you for 
the opportunity to appear before you today. My name is Stephen H. 
Legomsky. I am the John S. Lehmann University Professor at the 
Washington University School of Law. For more than thirty years I have 
devoted the majority of my professional life to the subject of 
immigration law and policy. I have taught U.S. immigration law to law 
students for approximately 25 years, am the author of the law school 
textbook ``Immigration and Refugee Law and Policy'' (now in its fourth 
edition), and have had the privilege of advising both Democratic and 
Republican administrations and several foreign governments on 
immigration policy.
    I have been asked to provide a historical perspective on the 
Executive Office for Immigration Review (EOIR) and to comment 
specifically on the 2002 streamlining initiatives and their impact.
    To understand the role and structure of the EOIR it is necessary to 
describe briefly the system that was in place before its creation in 
1983. For most of the first half of the twentieth century, deportation 
cases were adjudicated by ``immigration inspectors.'' These individuals 
worked for the predecessors to the former Immigration and 
Naturalization Service (INS), and in addition to adjudication they 
performed various law enforcement functions. There was a rough system 
of appeals to a centralized office in Washington, DC. \1\ In 1940, in 
order to improve the appellate part of the process, the Attorney 
General created the Board of Immigration Appeals (BIA). He delegated to 
the new Board the authority to hear appeals from the deportation 
decisions of the immigration inspectors, as well as a few other 
miscellaneous orders. \2\ BIA decisions were accompanied by written 
opinions that set out the Board's reasons for affirming or reversing.
---------------------------------------------------------------------------
    \1\ This system of hearings and appeals, as it functioned before 
1952, is thoughtfully described by former INS examiner Sidney B. 
Rawitz, in From Wong Yang Sung to Black Robes, 65 Interpreter Releases 
453 (1988).
    \2\ 5 Fed. Reg. 3503 (Sept. 4, 1940).
---------------------------------------------------------------------------
    After passage of the Administrative Procedure Act (APA) in 1946, 
there was disagreement over whether the APA procedures were meant to 
apply to deportation proceedings. The issue was important, because the 
APA philosophy was to assure independence for those who adjudicate 
formal agency hearings, and the immigration inspectors who presided 
over deportation hearings freely co-mingled adjudicative and 
enforcement functions and reported to other enforcement officials. 
After a vigorous tug of war among Congress, the executive branch, and 
the Supreme Court, Congress finally settled the issue by enacting the 
Immigration and Nationality Act (INA) in 1952. \3\ That statute, as 
amended many times, is still the main law governing immigration and 
nationality in the United States. Among other things, the Act assigned 
the task of presiding over deportation hearings to ``special inquiry 
officers,'' later re-named ``immigration judges.''
---------------------------------------------------------------------------
    \3\ Pub. L. 82-414, 66 Stat. 163 (June 27, 1952).
---------------------------------------------------------------------------
    The immigration judges clearly possessed greater independence than 
their ``immigration inspector'' predecessors, but in many quarters 
concern about their institutional independence lingered. They reported 
to the INS, which was, after all, one of the two opposing parties in 
the cases they heard. To alleviate that concern, the Attorney General 
in 1983 created EOIR. \4\ The new agency initially housed both the 
Chief Immigration Judge (who in turn coordinates the work of the 
immigration judges) and the BIA. It now has a third component, the 
Office of the Chief Administrative Hearing Officer (OCAHO). \5\
---------------------------------------------------------------------------
    \4\ 48 Fed. Reg. 8039 (Feb. 25, 1983).
    \5\ OCAHO houses the ALJs who decide various cases arising under 
the Immigration Reform and Control Act of 1996 (IRCA), Pub. L. 99-603, 
100 Stat. 3359 (Nov. 5, 1986). These hearings involve either employer 
sanctions or alleged violations of IRCA's anti-discrimination 
requirements.
---------------------------------------------------------------------------
    Throughout its history, EOIR has experienced steadily increasing 
caseloads. Generally, the number of immigration judges expanded and the 
resources increased, though not necessarily as rapidly as the demands 
of their caseloads. The BIA was a different story. It remained at five 
members (minus vacancies at various times) until 1994. In that year, 
EOIR expanded to nine members, later to 12, \6\ and eventually to 23 
member positions.
---------------------------------------------------------------------------
    \6\ See 72 Interpreter Releases 772-73 (June 5, 1995).
---------------------------------------------------------------------------
    As caseloads and membership increased, BIA procedures changed too. 
Until 1988, the five-member BIA decided all cases en banc; i.e., all 
five members participated in every decision. In 1985, the 
Administrative Conference of the United States (a former U.S. 
government agency charged with recommending administrative reforms), 
concerned about present and future caseload increases, recommended that 
the Board start deciding cases in three-member panels, reserving the en 
banc procedure for exceptionally important cases. \7\ The Justice 
Department strenuously opposed the recommended change. Persuaded three 
years later by the demands of its increased caseload and the 
inefficiency of requiring all five members to hear every case, however, 
the Department ultimately adopted the ACUS recommendation and began 
deciding cases in three-member panels. \8\
---------------------------------------------------------------------------
    \7\ The reasons appear in the consultant's report, Stephen H. 
Legomsky, Forum Choices for the Review of Agency Adjudication: A Study 
of the Immigration Process, 71 Iowa L. Rev. 1297 (1986).
    \8\ 53 Fed. Reg. 15660 (May 3, 1988).
---------------------------------------------------------------------------
    From then until 1999, almost all cases were decided in three-member 
panels. In the meantime, however, the caseload continued to mount and 
backlogs began to grow. Apart from strictly workload concerns, the 
Department worried that long delays in the appeal process would give 
noncitizens in removal proceedings an incentive to file frivolous 
appeals to the BIA in order to buy additional time in the United 
States. In 1999, therefore, in order to boost productivity and thereby 
speed the process, Attorney General Janet Reno issued a regulation 
authorizing the Chair of the BIA to identify exceptional categories of 
cases that could be decided by single members. \9\ Over the next two 
years, the Chair designated several such categories. Whatever the 
impact of that change on the quality of the resulting decisions, it was 
clear that the new procedure noticeably improved the Board's 
productivity. \10\
---------------------------------------------------------------------------
    \9\ 64 Fed. Reg. 56135 (Oct. 18, 1999).
    \10\ That was the finding of an important ABA study. Dorsey & 
Whitney LLP, Study Conducted for the American Bar Association 
Commission on Immigration Policy, Practice and Pro Bono, Re Board of 
Immigration Appeals: Procedural Reforms to Improve Case Management 
(July 22, 2003), section III.
---------------------------------------------------------------------------
    Despite that success, Attorney General Ashcroft in 2002 announced 
what turned out to be a highly controversial series of changes designed 
to further ``streamline'' the BIA. \11\ The core of the new procedure 
was called the `case management system.'' Among other things, the new 
system made single-member decisions the norm rather than the exception 
and simultaneously introduced the concept of the ``affirmance without 
opinion'' (AWO).
---------------------------------------------------------------------------
    \11\ 67 Fed. Reg. 54878 (Aug. 26, 2002).
---------------------------------------------------------------------------
    As to the former, the new regulation requires all BIA decisions to 
be rendered by single members rather than by three-member panels, 
unless the case falls within one of six specific categories. The case 
categories in which the regulation permits the Board to convene three-
member panels are (1) inconsistent rulings among immigration judges; 
(2) a need for a precedential decision; (3) a decision ``not in 
conformity with the law;'' (4) a ``major national impact;'' (5) an 
immigration judge's finding of fact that was ``clearly erroneous;'' or 
(6) a desire to reverse the immigration judge's decision. \12\
---------------------------------------------------------------------------
    \12\ 8 C.F.R. section 1003.1(e)(6) (2008).
---------------------------------------------------------------------------
    The AWO, also designed to save the time of the BIA members and 
their staff, entails affirming the opinion of the immigration judge but 
without giving reasons for the decision. The Attorney General's 
regulation, in fact, expressly forbids the BIA from giving reasons for 
any of its decisions whenever a single Board member ``determines'' that 
the immigration judge reached the right result, that any errors by the 
immigration judge were harmless, and that the issues are either 
``squarely controlled'' by precedent or not ``substantial'' enough to 
warrant a written opinion. \13\ The combination of the two changes 
means that a large number of BIA decisions are both single-member and 
without opinion.
---------------------------------------------------------------------------
    \13\ 8 C.F.R. section 1003.1(e)(4) (2008).
---------------------------------------------------------------------------
    The 2002 regulation contained another highly controversial element. 
It provided that, within six months of the start of the new system, the 
authorized size of the Board would be reduced from 23 members to 
eleven. \14\ This marked the first time in the then 62-year history of 
the BIA that any Attorney General had removed any member from the 
Board. Coming at the same time that the Attorney General was justifying 
the introduction of affirmances without opinion and the expanded use of 
single-member decisions as ways to increase productivity and thereby 
reduce the backlog, the decision to cut the number of BIA member 
positions in half was puzzling. Perhaps more important, neither the 
rule itself nor any other announcement specified concrete criteria for 
determining which BIA members would be removed from the Board. \15\ 
When the Attorney General announced the names of the ``reassigned'' 
Board members, it was clear that the selections had been ideological; 
those with the voting records most favorable to noncitizens were the 
ones chosen for reassignment. \16\ Moreover, during the months between 
the Attorney General's announcement that some members would be 
reassigned and the announcement of actual names, the percentage of 
cases in which particular members ruled in favor of the noncitizen 
dropped precipitously. \17\ In 2006 Attorney General Alberto R. 
Gonzales then restored four positions to the BIA. \18\ That move 
brought the Board membership to its current total of 15 and in effect 
enabled the Attorney General to replace four of the reassigned members 
with individuals of his own choosing.
---------------------------------------------------------------------------
    \14\ 67 Fed. Reg. at 54901 (Aug. 26, 2002).
    \15\ The regulation referred only to ``traditional'' factors such 
as the Attorney General's ``discretion,'' and to such other factors as 
``integrity, . . . , professional competence, and adjudicatorial 
temperament.'' Seniority, the Attorney General made clear, would not be 
``a presumptive factor.'' 67 Fed. Reg. at 54878.
    \16\ This was the conclusion of an empirical study by former House 
Judiciary Committee staff counsel Peter J. Levinson, The Facade of 
Quasi-Judicial Independence in Immigration Appellate Adjudications, 9 
Bender's Immigration Bulletin 1154 (Oct. 1, 2004). Accord, ABA Study, 
note 10 above.
    \17\ Levinson, note 15 above.
    \18\ 71 Fed. Reg. 70855 (Dec. 7, 2006).
---------------------------------------------------------------------------
    Finally, partly in response to judicial criticisms described below, 
Attorney General Gonzales convened a team to review and evaluate the 
EOIR. At the same time he issued a public memorandum to the immigration 
judges and the BIA communicating his expectations concerning the 
quality of decisions and professional demeanor. \19\ He declined to 
release the findings of his review team, but he did announce a series 
of measures to enhance the professionalism of the adjudicators. \20\ 
One of those steps was to issue Codes of Conduct for immigration judges 
and BIA members. \21\ To those who had hoped the Attorney General would 
restore the independence of the immigration judges and the BIA, the 
departmental announcement and accompanying Codes proved disappointing. 
The Codes expressly authorize immigration judges and BIA members to 
engage in ex parte communications with Justice Department personnel 
concerning pending cases, \22\ thus exacerbating the likelihood of 
departmental pressure on adjudicators to reach particular outcomes. In 
addition, item 7 of the Attorney General's 22-point plan to improve 
EOIR calls for the Justice Department's Office of Immigration 
Litigation (OIL), which is the office that argues the government's side 
in the courts of appeals, ``to report adjudications that reflect 
immigration judge temperament problems or poor Immigration Court or 
Board quality.'' \23\ There is no analogous provision for the 
noncitizen or his or her attorney to report ``poor quality.'' \24\ The 
same plan contemplates ``performance evaluations'' for immigration 
judges and BIA members. \25\ Although the memorandum is not explicit, a 
large number of OIL complaints of ``poor quality'' decisions by a 
particular adjudicator would presumably be considered in the 
preparation of the performance evaluation. Since OIL is more likely to 
consider a decision to be of ``poor quality'' when the government loses 
than when it wins, and since there is no analogous mechanism for the 
noncitizen to file complaints of ``poor quality,'' the system further 
encourages adjudicators to favor the government side.
---------------------------------------------------------------------------
    \19\ 83 Interpreter Releases 122 (Jan.17, 2006).
    \20\ 83 Interpreter Releases 1725 (Aug. 14, 2006).
    \21\ See 72 Fed. Reg. 35510 (June 28, 2007).
    \22\ Id. at 35511, 35512, Canon XV of each Code.
    \23\ U.S. Dept. of Justice, Measures to Improve the Immigration 
Courts and the Board of Immigration Appeals (Aug. 9, 2006).
    \24\ Item 11, id., authorizes a review of the process for filing 
complaints concerning ``inappropriate conduct'' but not complaints 
concerning ``poor quality'' decisions.
    \25\ Item 1, id.
---------------------------------------------------------------------------
    In June 2008, Attorney General Michael B. Mukasey announced changes 
designed to cut back on the number of affirmances without opinion. \26\
---------------------------------------------------------------------------
    \26\ The proposed rule is in 73 Fed. Reg. 34654 (June 18, 2008), 
amending 8 C.F.R. Sec. 1003.
---------------------------------------------------------------------------
    The overall impact of the 2002 reforms is hard to gauge 
conclusively. By several identifiable measures, the performance of EOIR 
has badly deteriorated since the reforms were initiated. There are 
logical reasons to attribute the deterioration to those reforms, though 
cause and effect are of course difficult to prove scientifically. 
Harder still is linking particular adverse performance measures to 
particular components of the 2002 reforms. The following will describe 
some of the recent trends:
    First, immediately after the 2002 reforms went into effect, the 
BIA, not surprisingly, decided a much higher percentage of its cases 
through single-member dispositions; that trend coincided with the BIA 
reversing a dramatically lower percentage of immigration judge 
opinions, both in asylum cases specifically and in all removal cases 
combined. \27\ Since the vast majority of appeals to the BIA are by 
noncitizens challenging orders of removal, these changes in outcomes 
mean that immediately after the 2002 reforms the probability of a 
noncitizen prevailing on appeal to the BIA dropped markedly. Second, 
immediately after the reforms there was a spectacular increase in the 
number of petitions for review of BIA decisions filed in the courts of 
appeals--both in absolute terms and as a percentage of BIA removal 
orders. The massive impact of this increased caseload on the courts, 
the U.S. attorneys, and on DHS itself is now a familiar problem that 
has been thoroughly documented elsewhere. \28\ Third, the courts of 
appeals have issued numerous opinions not only reversing the BIA, but 
adding uncharacteristically scathing comments about both the quality of 
the immigration judge and BIA opinions and the professional demeanors 
of a small number of immigration judges. Often the criticism is a 
combined one, chastising the immigration judge for an inexplicable 
result and the BIA for affirming it without opinion. \29\
---------------------------------------------------------------------------
    \27\ Jaya Ramji-Nogales et al, Refugee Roulette: Disparities in 
Asylum Adjudication, 60 Stan. L. Rev. 295, 353, 357-59 (2007).
    \28\ See especially the fine empirical study by John R.B. Palmer, 
The Nature and Causes of the Immigration Surge in the Federal Courts of 
Appeals: A Preliminary Analysis, 51 New York L. School L. Rev. 13 
(2006-07).
    \29\ E.g., Recinos de Leon v. Gonzales, 400 F.3d 1185, 1187 (9th 
Cir. 2005). Some of the harshest language has come from the Seventh 
Circuit. See, e.g., Zhen Li Iao v. Gonzales, 400 F.3d 530, 533-35 (7th 
Cir. 2005).
---------------------------------------------------------------------------
    There are many possible explanations for the emergence of these 
problems immediately following the 2002 reforms. The combination of far 
more single-member decisions, the widespread use of affirmances without 
opinion, and the threats or at least perceived threats to the job 
security of the immigration judges and the BIA members could well be 
responsible. The prevailing view among many immigration judges, BIA 
members, and immigration practitioners that EOIR is badly under-
resourced very likely is also a large part of the explanation, as Judge 
Walker, of the Court of Appeals for the Second Circuit, has suggested. 
\30\ The Justice Department has denied that the increased rate of 
appeals to the courts reflects a diminished quality of the BIA 
decision-making. The Department has speculated that by speeding up its 
decisions the BIA has reduced the amount of time that a noncitizen can 
buy with a frivolous BIA appeal and, therefore, has increased the 
incentive to delay removal by appealing to the courts. \31\ This last 
theory seems highly unlikely, because since 1996 the filing of a 
petition for review no longer triggers an automatic stay of removal; 
special permission to remain pending review is required, and courts are 
loathe to grant such permission in cases they consider frivolous. 
Moreover, if anything, one would expect that, all else equal, someone 
who had spent a lengthy period in the United States already (as was 
true in the past when BIA appeals were taking longer) would have deeper 
roots and therefore a greater incentive, not a lesser one, to further 
prolong his or her future stay through a judicial appeal.
---------------------------------------------------------------------------
    \30\ See Ramji-Nogales et al, note 22 above, at 383 (quoting Judge 
Walker).
    \31\ EOIR Fact Sheet (Sept. 15, 2004).
---------------------------------------------------------------------------
    The most likely explanation is that the problems have stemmed from 
a combination of the 2002 reforms and persistent under-resourcing of 
the EOIR. For one thing, there is no other apparent explanation for the 
coincidence in timing; all of these problems emerged immediately after 
the reforms went into effect. For another, as the remainder of this 
Statement will explain, there are logical reasons to expect all of the 
reforms just described, as well as the continuing under-resourcing of 
EOIR, to have precisely the adverse effects just discussed.
    The prohibition on the Board giving reasons for its decisions seems 
especially likely to have all these effects--a much lower chance of a 
noncitizen winning a BIA appeal, a much higher probability that a 
person who loses will seek judicial review, and a much higher number of 
poorly thought out BIA decisions. First, while affirmances require no 
giving of reasons unless they fall within one of the designated 
exceptions, reversals always require opinions. And opinions with 
defensible reasons take time to write. BIA members with staggering 
caseload demands and so little time per case therefore have a real 
incentive to affirm rather than reverse. The Attorney General's recent 
introduction of performance evaluations for both immigration judges and 
BIA members \32\--evaluations that will undoubtedly include judgments 
about productivity--enlarge that incentive further. Moreover, a 
reasoned opinion requires the Board member to consider the losing 
side's argument with some care; without it, affirmance without adequate 
attention becomes easier. In addition, the very process of writing an 
opinion forces the writer to think through whether his or her 
conclusion really is consistent with the evidence and the law. For all 
these reasons, a decision without explanation naturally makes it easier 
for the BIA to casually affirm an immigration judge's removal order and 
easier to reach a conclusion without adequate thought. Once such a 
decision is handed down, the appellant also has no way to know the 
reasons for the decision, less confidence that the decision was 
correct, and, therefore, a greater incentive to seek judicial review. 
In turn, the reviewing court, not having an opinion to review, has to 
spend time doing what the BIA should have done, has less confidence in 
the BIA decision, and has a greater inclination to reverse and remand 
to the BIA for further consideration or explanation. The cursory nature 
of the BIA review might matter less if one could be confident that the 
immigration judges were correct. But the immigration judges operate 
under similar time pressures and resource shortages that inevitably 
compromise their abilities to give their cases full consideration. 
Finally, reasoned BIA opinions provide guidance not only to the 
appellants whose cases they are deciding, but also (at least for 
precedential decisions) to immigration judges and to DHS officials. 
When precedential and other reasoned decisions are scarce, DHS 
officials and immigration judges frequently have to guess at whether a 
given decision will meet the BIA's approval.
---------------------------------------------------------------------------
    \32\ See Press Release, Attorney General Alberto R. Gonzales 
Outlines Reforms for Immigration Courts and Board of Immigration 
Appeals (Aug. 9, 2006).
---------------------------------------------------------------------------
    For similar reasons the increased reliance on single-member 
decisions (not just decisions without reasons) can be expected to 
decrease the attention a case will receive, increase the error rate, 
and, therefore, increase the rate of further appeals to the courts. 
With three member-panels there is less chance of one person missing an 
immigration judge error. The chance that one individual with a strong 
ideology (in either direction) will reach an extreme result that the 
Board as a whole would not have countenanced is reduced. The members 
are able to deliberate. There will be more confidence that the appeal 
was adequately considered. There is opportunity for a dissenting 
opinion that can help guide the future development of the law. Since 
many of the BIA cases are argued pro se (i.e., by unrepresented 
noncitizens), and therefore without legal briefs, there is a particular 
need for some exchange of ideas. And the enormity of the interests at 
stake--especially in cases of long-term lawful permanent residents with 
family and other roots in the community, or in asylum cases where an 
erroneous result can lead to death, torture, or other persecution--
combined with the ever expanding categories of cases in which Congress 
has withheld judicial review, makes the fairness and thoroughness of 
the administrative appellate process critical.
    Apart from single-member decisions and affirmances without 
opinions, the events of 2002 and the subsequent changes announced in 
2006 also brought home to both immigration judges and the BIA how 
fragile their job security can become when they rule in favor of the 
noncitizen and against the government. The reassignments that followed 
the 2002 announcement are the clearest threat to job security. The 
combination of allowing OIL to file compaints about ``poor quality'' 
decisions, withholding the same right from noncitizens and their 
attorneys, and performance evaluations that likely reflect those 
complaints send additional signals to immigration judges and BIA 
members that ruling in favor of the government and against the 
noncitizen is the safest way to secure one's job. I have written 
elsewhere about the great dangers that this insecurity poses for the 
decisional independence of the immigration judges and the members of 
the BIA, and I respectfully refer the subcommittee to that writing for 
fuller treatment of the independence issue. \33\ For present purposes, 
a summary will suffice.
---------------------------------------------------------------------------
    \33\ Stephen H. Legomsky, Deportation and the War on Independence, 
91 Cornell L. Rev. 369 (2006).
---------------------------------------------------------------------------
    The clearest benefit of judicial independence is procedural 
fairness. People who adjudicate cases need every incentive to reach 
their decisions honestly. They must base their findings of fact solely 
on the evidence before them and their legal conclusions solely on their 
honest interpretations of all the relevant sources of law. They must 
not be encouraged to base their decisions on which outcome they think 
is favored by the person who is in a position to fire them. No one 
would want his or her case to be decided by someone who knows in 
advance that a decision in their favor could be hazardous to the 
adjudicator's job. Decisional independence is also essential to 
protecting unpopular individuals, minorities, and points of view. It is 
necessary as well to fostering public confidence in the integrity and 
accuracy of the justice system.
    To sum up: The main components of the 2002 EOIR reforms were making 
single-member BIA decisions the norm; introducing BIA affirmances 
without opinion; and eliminating the job security, and therefore 
eroding the decisional independence, of both immigration judges and the 
BIA. The last measure was reinforced by the asymmetrical complaint 
procedure, and the performance evaluation provisions, of the 2006 
Justice Department announcement. Immediately following the 2002 
reforms, several things happened: The BIA began to affirm immigration 
judge removal orders with greater frequency; a much higher percentage 
of those whom the BIA ordered removed filed petitions for review with 
the courts of appeals; and the courts began issuing a stream of 
opinions chastising immigration judges and the BIA for both poor 
quality work and, on several occasions, unprofessional conduct of 
selected immigration judges. There is no way to prove cause and effect 
conclusively, but both the absence of plausible alternative 
explanations and the presence of logical reasons to expect the reforms 
to produce these results make it highly likely that these serious 
problems are the product of the 2002 reforms and insufficient 
resourcing of EOIR.
    These problems suggest several reforms. First, in my view, EOIR 
resources need to be substantially increased to reflect the realities 
of their large caseloads, the complexities of many of the cases, the 
often lengthy hearing transcripts and other record evidence that must 
be reviewed, and the grave consequences of error. Both the number of 
adjudicators themselves (immigration judges and BIA members) and their 
staff support needs to increase. Second, the categories of cases in 
which single Board members may hand down decisions on behalf of the 
entire BIA should be minimized; three-member panels should once again 
be the norm for the vast majority of the Board's cases. Third, the BIA 
should never be permitted to decide an asylum case, and should rarely 
be allowed to do so in other removal cases, without providing at least 
basic reasons for its decision. The reasons need not be elaborate, but 
they should provide enough clarity to show that the arguments of the 
losing side were seriously considered and to give the opposing parties, 
and the reviewing court, enough information to understand the basis for 
the decision. For this purpose, it will often be enough to incorporate 
by reference the reasoning of the immigration judge, as long as the 
opinion leaves clear which parts of that reasoning formed the basis for 
the affirmance if there were multiple parts. Fourth, the decisional 
independence of the immigration judges and the BIA should be restored. 
This means not only prohibiting the ``reassignment'' of immigration 
judges or BIA members other than for misconduct, but also ensuring that 
any performance evaluation system that could affect an adjudicator's 
job security be based on data that are fair and symmetrical. In 
particular, either complaints of ``poor quality'' decisions should not 
be part of the record, or they should be invited from both sides rather 
than solely the government side. In addition, the provisions in the 
Codes of Conduct that authorize the adjudicators to confer ex parte 
with Justice Department officials concerning pending cases should be 
stricken. Such ex parte communications contradict the most basic 
principles of procedural fairness. Moreover, the Attorney General 
already possesses the power to reverse BIA decisions with which he or 
she disagrees; \34\ in addition to being inappropriate, therefore, ex 
parte pressures by the Justice Department are not even necessary. Given 
the events of the past several years, it seems doubtful that even these 
reforms would provide adequate reassurance to the immigration judges 
and the BIA members if the reforms are announced by the Department of 
Justice itself. Adjudicators would be well aware that those policy 
reforms could be reversed at any time. The above mechanisms for 
restoring decisional independence should therefore be enacted into law 
by Congress.
---------------------------------------------------------------------------
    \34\ 8 C.F.R. section 1003.1(h) (2008).
---------------------------------------------------------------------------
    Thank you once again for the privilege of testifying before you.

    Ms. Lofgren. I think we are going to see if we can get our 
questions in before we go to vote, since only about 50 of our 
colleagues have shown up yet. And I will begin.
    Professor Long, in your testimony, you indicated several 
indices of poor judicial performance and even patterns of 
misconduct within the immigration court system. And one of the 
things you mentioned is a series of Federal appellate court 
rulings that sharply criticized the immigration courts.
    Can you just briefly describe what some of these criticisms 
were and how prevalent these decisions were?
    Ms. Long. Well, basically, court of appeals judges were 
seeing several things. Number one is that the judges were not 
ruling and treating those who appeared before them with proper 
respect. Number two, that prejudices of the judges appeared to 
be getting in the way of the decisions, so that often there was 
not sufficient support in the record to support the decisions 
being made.
    Ms. Lofgren. I wonder if either one of you or both of you 
could provide a sample of some of the opinions to the 
Subcommittee subsequent to this hearing, so we can get a flavor 
systematically of what the circuit courts are concerned about.
    Now, Professor Legomsky, you indicated concern about the 
independence of the judiciary. And it appears that the system, 
as it is operating now, really is weighted toward the 
prosecution, according to your testimony.
    I mean, other than the ex parte communications, why would 
that be, in terms of the current----
    Mr. Legomsky. Well, I think that the affirmances without 
opinion are strongly weighted toward the government side. For 
one thing, it is only affirmances of the I.J. that can be 
handed down without giving reasons, not reversals.
    So if you put yourself in the position of a BIA member who 
is tremendously backlogged--and I agree that the fault lies not 
with the BIA members but with the under-resourcing--they are 
tremendously backlogged, they are probably going to be judged 
on their productivity, because there are performance----
    Ms. Lofgren. So if you say ``no,'' you don't have to write 
an opinion.
    Mr. Legomsky. Exactly. So if you have a choice between 
deciding ``yes'' and having to write an opinion and saying 
``no'' and you don't, there is a tremendous bias toward not 
having to do it.
    In addition to that, so many of the people who appear 
before the BIA are not represented by counsel. They are not in 
a position to identify with clarity any mistakes that the 
immigration judge, who is also under tremendous time pressure, 
might have made. The government, in contrast, is represented by 
counsel, and so the system is biased in that respect as well.
    Ms. Lofgren. In terms of the ex parte communication, 
ordinarily at a judicial proceeding that is a big no-no. Would 
moving the court system into some more independent environment 
help address that issue?
    Mr. Legomsky. I think it would. It would certainly 
eliminate any job insecurity that might result from worrying 
whether your boss is going to fire you for going against the 
boss.
    The point I would emphasize here is that what makes 
immigration judges and BIA members not unique, because there 
are some other judges in this position, but certainly 
distinctive is that the cases they are deciding are cases in 
which there are two opposing parties and one of the opposing 
parties is your boss. So there is a tremendous pressure to not 
anger the person who holds the authority to non-renew your 
contract.
    Ms. Lofgren. That obviously makes a lot of sense.
    Mr. Legomsky. Oh, I am sorry, can I make one other point on 
that, as well?
    Ms. Lofgren. Of course.
    Mr. Legomsky. At a time when the INS, the former INS, was 
in the Department of Justice, there was at least some benefit 
to keeping EOIR within Justice, because then the attorney 
general could maintain policy coherence, having INS and EOIR in 
the same department. I don't think that was ever a large 
consideration, but at least there was some benefit.
    Now that the INS doesn't exist and the EOIR is under a 
whole different department, I am not sure that even that 
benefit exists. So my recommendation would be that EOIR either 
be made into a separate article from immigration court or 
otherwise be given the independence that it needs.
    Ms. Lofgren. I remember when the Republicans were in the 
majority, there was a proposal that Bill McCollum of Florida 
was pursuing. And it sort of dribbled away, but the Republican 
majority was very interested in pursuing that at the time. And 
it might be something we would look at next year.
    Mr. King, I would invite you, since we still have time to 
get over there but only if we are prompt, to do your questions 
at this point.
    Mr. King. Well, thank you, Madam Chair. And I will keep my 
word and not use any more time than you did.
    And I will direct my first question--well, first, to 
Professor Legomsky, I mean, isn't it true that the government's 
side of this, all the way through the appeals process, from the 
I.J. to the BIA to the circuit and potentially to the Supreme 
Court, that if they lose at any level, what is the recourse of 
the government?
    Mr. Legomsky. If the government loses at the I.J. level, it 
has the same right to appeal to the BIA that the immigrant 
does.
    If the government loses at the BIA level, it is true that 
the government has no right to appeal to the courts, but it 
doesn't need to do that because the attorney general can 
unilaterally reverse the decision.
    Mr. King. And then, in your analysis of this in making your 
recommendation to this Committee, did you evaluate or make 
recommendations as to statutory changes that Congress might 
make to reduce the number of appeals as an alternative to 
expanding the number of judges?
    Mr. Legomsky. I am sorry, I am not certain that I 
understand.
    Mr. King. Let me try again. There are certain parameters 
that allow for appeal. If Congress would narrow those 
parameters, they would theoretically reduce the number of 
appeals. In fact, that goes beyond theory; it would be a fact 
that it would reduce the number of appeals.
    So have you evaluated those parameters and made any 
recommendations on what we might do to narrow them so that we 
could reduce the number of appeals, rather than increasing the 
number of judges?
    Mr. Legomsky. I understand now; I am sorry. In order to 
answer that question, I have to explain that Congress has 
already dramatically narrowed the number of cases in which it 
is even possible to file an appeal. Asylum cases today----
    Mr. King. I don't----
    Mr. Legomsky. It would be very difficult to find any 
additional categories, I think.
    Mr. King. Oh, I would submit I could probably do that, 
Professor. But I would just illustrate that. I don't know that 
there is a limit to how narrow we might be able to make it, as 
a matter of public policy. But I do agree that we need more 
judges and we need to have a legitimate evaluation system that 
moves quickly.
    So I want to put that part into the record, and I want to 
thank the witnesses for their testimony. I yield back the 
balance of my time and head over to vote.
    Ms. Lofgren. I will thank both witnesses.
    And we will keep the record open for 5 days if there are 
additional questions. We would ask that you respond promptly.
    And we thank you very much for your very useful testimony.
    This hearing is adjourned.
    [Whereupon, at 11:46 a.m., the Subcommittee was adjourned.]





                            A P P E N D I X

                              ----------                              


               Material Submitted for the Hearing Record

 Prepared Statement of the Honorable Zoe Lofgren, a Representative in 
Congress from the State of California, and Chairwoman, Subcommittee on 
Immigration, Citizenship, Refugees, Border Security, and International 
                                  Law
    On July 28, 2008, the Department of Justice's Office of 
Professional Responsibility and the Office of the Inspector General 
issued a report showing that three high-level Department of Justice 
officials, Kyle Sampson, Jan Williams, and Monica Goodling,

        violated Department of Justice policy and federal law by 
        considering political or ideological affiliations in soliciting 
        and evaluating candidates for [Immigration Judges], which are 
        Schedule A career positions, not political appointments. 
        Further, the evidence demonstrates that their violations were 
        not isolated instances but were systemic in nature.

    Based on this report, it appears Republican credentials, rather 
than knowledge of and experience in immigration law, became the main 
criterion in hiring Immigration Judges and members of the Board of 
Immigration Appeals. All three named officials only considered 
candidates referred to them by the White House, Republican members of 
Congress, Republican political appointees, the Federalist Society, the 
Republican National Lawyers Association, and individuals with 
Republican party affiliations, while ignoring candidates sent to them 
by the Executive Office for Immigration Review (EOIR).
    This politicization of EOIR occurred at a time when the Immigration 
Courts and the Board of Immigration Appeals (BIA) were also suffering 
from systemic problems created by former Attorney General Ashcroft's 
``streamlining'' plan.
    In 2002, then-Attorney General John Ashcroft promulgated a rule 
that ``establishe[d] the primacy of the streamlining system for the 
majority of the cases.'' The 2002 streamlining regulation made single 
member decisions and affirmance without opinions (AWO) ``the norm 
rather than the exception.''
    At the same time, Attorney General Ashcroft also reduced the size 
of the BIA from 23 members to 11. Several analyses of the eliminated 
BIA members found that ``the selections had been ideological; those 
with the voting records most favorable to noncitizens were the ones 
chosen for reassignment.''
    The result of the Ashcroft streamlining plan was a significant 
increase in the number of BIA decisions appealed to the federal courts 
of appeals. The courts of appeals not only reversed the BIA at a higher 
rate, but also ``add[ed] uncharacteristically scathing comments'' about 
the poor quality of IJ and BIA decisions.
    Moreover, even as the Administration and Congress dedicated more 
resources to the arrest and detention of deportable non-citizens, both 
failed to commit a similar level of resources to the immigration 
courts, which is responsible for determining whether certain non-
citizens are in fact deportable. The failure to devote adequate 
resources to the immigration courts has led to increased caseloads at 
all levels of the removal process, at the immigration courts, the BIA, 
and the federal courts.
    EOIR has been too long ignored and the result has been 
politicization of the immigration courts, so-called ``streamlining,'' 
and inadequate resources. I look forward to hearing from our witnesses 
today so that we may finally begin to address these very serious 
problems in the administrative removal process, which is the heart of 
our immigration enforcement system.

                                

Prepared Statement of the Honorable John Conyers, Jr., a Representative 
in Congress from the State of Michigan, and Chairman, Committee on the 
                               Judiciary
    The Executive Office for Immigration Review (EOIR), which is part 
of the Justice Department, houses the Immigration Courts and the Board 
of Immigration Appeals (BIA). These are not an independent judiciary, 
but are administrative law judges appointed and employed by the 
Department of Justice.
    EOIR's role in ensuring fairness is especially important, given 
that less than half of those brought before the courts are represented 
by attorneys.
    This is the first oversight hearing that I can recall since 2002. 
Since then, EOIR has been weakened by politicized hiring by many of the 
same culprits who we are familiar with from the US Attorney hiring 
scandal. The system has also felt the stress of a continuing lack of 
resources and manpower.
    First, the politicization of the Justice Department.
    We are all by now intimately familiar with the havoc wreaked by the 
former inhabitants of the Office of the Attorney General, as Kyle 
Sampson, Monica Goodling, and others tried to change the Justice 
Department into an extension of the Bush White House political office.

          People were blacklisted or driven from office, while 
        attorneys who were willing to insert partisan politics into the 
        Department's work were rewarded and promoted. Politics did not 
        just taint the treatment of presidentially-appointed federal 
        prosecutors, but extended to the immigration courts as well.
          Republican credentials, rather than an expertise in 
        immigration law, became the main criteria in hiring immigration 
        judges and BIA members. Politicization of these positions 
        clogged the entire system, creating major bottlenecks and 
        wreaking havoc on the immigration courts' workload. The 
        qualified candidates that EOIR forwarded to the Attorney 
        General's office for consideration were simply ignored, while 
        the AG's staff desperately sought Republican loyalists who they 
        could shoehorn into judgeships whether they knew anything about 
        immigration or not.
          And at the BIA, the number of appellate judges was cut from 
        23 members to 11 since our last oversight hearing. Independent 
        analysis shows that the members with the voting records most 
        favorable to the non-citizens were the ones chosen for 
        demotion. Not surprisingly, the percentage of reversals 
        plummeted. And there was a significant increase in the number 
        of appeals to the federal circuit courts, which suffered an 
        immigration backlog as well.
          So, today, I am interested in hearing not just how DOJ is 
        planning to prevent future politicization, but also to learn 
        ``who was watching the store?''

    Additionally, I want to know how the witnesses expect 215 
Immigration Judges to handle a caseload of over 300,000 cases a year.

          That's 27 cases disposed of every week, without taking any 
        vacation or sick days, and without taking the time to issue 
        written opinions.
          When coupled with the crushing workload of the shrunken BIA, 
        these statistics make me wonder how any immigration enforcement 
        is done in this country.

    In conclusion, throughout the hearings that we have held this year, 
we have heard a lot in the last year about immigration judges.

          Some have even suggested that the immigration judges are some 
        kind of cabal of liberals, bent on using every ounce of 
        discretion we give them to allow dangerous aliens remain in the 
        country.
          That is not borne out by the facts.
                  They are hardworking, but they are swamped.
                  Most of them, before the Bush Administration swung 
                into action, were experts in the immigration field, 
                devoted to neutrally applying our laws.
                  They deserve better than to be starved of resources 
                and litmus tested for partisan credentials.

                                

            Prepared Statement of Mary M. Schroeder, Judge, 
             United States Court of Appeals, Ninth Circuit
    My name is Mary M. Schroeder and I am a Judge of the United States 
Court of Appeals for the Ninth Circuit. From December 2000 through 
November, 2007, I served as the Chief Judge of the Circuit, the 
nation's largest federal circuit that handles approximately half of the 
entire workload of the Country in petitions for review of the decisions 
of the Board of Immigration Appeals. My colleagues in the Second 
Circuit handle roughly thirty percent, as our two Circuits contain the 
most important ports of entry to this Country. My home chambers are in 
Phoenix Arizona, where I practiced law and served on the Arizona Court 
of Appeals before being appointed to the federal bench. As an Arizonan, 
I am familiar on a daily basis with controversies surrounding 
immigration in our nation.
    I wish to thank you for having this hearing and for asking me to 
present my views today on the important subject of the administration 
of justice in the immigration field.
    Immigration cases in our court are appeals from final orders of 
deportation or removal. For years they constituted less than 10% of our 
total caseload. Beginning in approximately 2002, however, when the 
Executive Branch shrank the pool of available immigration judges and 
members of the Board of Immigration Appeals, our appeals ballooned 
dramatically. Over a course of a few years, we went from 900 petitions 
for review filed in 2001, to more than 6,000 in 2005. The principal 
reason for this dramatic increase was the effort to ``streamline'' 
immigration appeals to the BIA with one judge, rubber stamp orders 
affirming the immigration judge decisions with blanket approval. This 
practice meant that to obtain any meaningful appellate review, 
litigants had to appeal to the Court of Appeals.
    This ``streamlining'' in turn increased the number of issues for us 
to decide exponentially, because there was no administrative appellate 
review to determine which were the dispositive issues. Thus every 
single issue decided by the immigration judge in each streamlined case 
would have to be reviewed to determine its validity or our jurisdiction 
to review it. Therefore, without meaningful BIA review, both the number 
of appeals to our court and the number of issues to decide in each 
appeal multiply.
    The immigration load threatened intolerable delay in the processing 
of our remaining civil case load until our court determined that the 
immigration crisis in the Executive Branch should not result in the 
failure of our court to keep up with important cases in other areas, 
particularly in intellectual property and technology, criminal 
sentencing, and death penalty review. The result has, however, been a 
delay in the processing of immigration cases that can best be 
redressed, in my view, by Congress addressing the need for efficient 
administration review of deportation cases.
    The current situation is not fair to anyone. Aliens in the United 
States who may qualify for relief from deportation should have their 
fate decided promptly, and those who do not have any plausible 
justification for remaining in the country lawfully should understand 
their position as well. Families should not live in uncertainty and 
fear for years on end. Employers should know the status of their 
employees caught up in deportation proceedings, and the public has a 
right to know that immigration laws are being enforced.
    As expressed in the platforms of both political parties, there is 
everywhere a sense that we need overall comprehensive immigration 
reform. I can not speak to the policies that Congress should enact. My 
only concern is with the administration of justice in the court system. 
As a resident of Arizona, I know that the lack of coherent, efficient 
immigration law enforcement has an impact on all of our courts, state 
and federal, in this key border state. The lack of coherent national 
policy has resulted in local law enforcement officials taking 
immigration enforcement into their own hands, and it has also 
multiplied border related prosecutions in both state and federal 
courts. I have been on panels with the Chief Justice of Arizona, Ruth 
McGregor, the Chief Federal District Judge of Arizona, John Roll, state 
Superior Court judges and federal magistrate judges. All express acute 
frustration with the current situation. Our U.S. Attorney in Arizona, 
Diane Humetewa, has also spoken of the need for resources at every 
level of the system, from the immigration courts, prosecutors, trial 
courts, to the Court of Appeals.
    The first step to fair and efficient administration of our laws 
lies in the Immigration Court and the Board of Immigration Appeals. At 
the present time, those bodies are completely the creation of 
regulations, and are subject to potentially abusive practices in hiring 
and firing.
    During the time that I was Chief Judge of the Ninth Circuit we made 
it a point to meet periodically with judges of the Immigration Court 
and the Board of Immigration of Appeals. Our then Clerk of Court, Cathy 
Catterson, and I traveled to Washington and met more than once with the 
Department of Justice in an effort to encourage more resources for 
administrative review of deportation orders, and to offer our support 
of the courts in obtaining those resources and in improving the quality 
of the judges occupying those positions. We did not meet with a great 
deal of success.
    While I no longer speak for the judges on our Court, I do speak 
from considerable experience. What is needed is a codification of the 
administrative processes, through legislation that statutorily 
establishes an immigration court and a board of immigration appeals as 
permanent bodies, and that also establishes tenure and standards for 
those who occupy those significant opinions. The future lives of many 
families and individuals as well as the quality of life for all of us 
in this country depend to a great degree on whether we succeed in 
achieving an independent, fair and efficient system of immigration law 
enforcement.
    I thank the Committee for having this hearing that has been 
inspired by the Department of Justice's report on some of the 
shortcomings in the current system.

                                

           Prepared Statement of Dennis Jacobs, Chief Judge, 
             United States Court of Appeals, Second Circuit






                                 
