[House Hearing, 111 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 ELEVENTH CONGRESS

                             SECOND SESSION

                               __________

                             JUNE 17, 2010

                               __________

                           Serial No. 111-111

                               __________

         Printed for the use of the Committee on the Judiciary


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






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                       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            DANIEL E. LUNGREN, California
MAXINE WATERS, California            DARRELL E. ISSA, California
WILLIAM D. DELAHUNT, Massachusetts   J. RANDY FORBES, Virginia
STEVE COHEN, Tennessee               STEVE KING, Iowa
HENRY C. ``HANK'' JOHNSON, Jr.,      TRENT FRANKS, Arizona
  Georgia                            LOUIE GOHMERT, Texas
PEDRO PIERLUISI, Puerto Rico         JIM JORDAN, Ohio
MIKE QUIGLEY, Illinois               TED POE, Texas
JUDY CHU, California                 JASON CHAFFETZ, Utah
TED DEUTCH, Florida                  TOM ROONEY, Florida
LUIS V. GUTIERREZ, Illinois          GREGG HARPER, Mississippi
TAMMY BALDWIN, Wisconsin
CHARLES A. GONZALEZ, Texas
ANTHONY D. WEINER, New York
ADAM B. SCHIFF, California
LINDA T. SANCHEZ, California
DANIEL MAFFEI, New York
JARED POLIS, Colorado

       Perry Apelbaum, Majority 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

HOWARD L. BERMAN, California         STEVE KING, Iowa
SHEILA JACKSON LEE, Texas            GREGG HARPER, Mississippi
MAXINE WATERS, California            ELTON GALLEGLY, California
PEDRO PIERLUISI, Puerto Rico         DANIEL E. LUNGREN, California
LUIS V. GUTIERREZ, Illinois          TED POE, Texas
LINDA T. SANCHEZ, California         JASON CHAFFETZ, Utah
ANTHONY D. WEINER, New York
CHARLES A. GONZALEZ, Texas
JUDY CHU, California

                    Ur Mendoza Jaddou, Chief Counsel

                    George Fishman, Minority Counsel










                            C O N T E N T S

                              ----------                              

                             JUNE 17, 2010

                                                                   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

                               WITNESSES

Mr. Juan P. Osuna, Associate Deputy Attorney General for 
  Immigration Policy, United States Department of Justice
  Oral Testimony.................................................     6
  Prepared Statement.............................................     8
Ms. Karen T. Grisez, Chair, Commission on Immigration, American 
  Bar Association
  Oral Testimony.................................................    26
  Prepared Statement.............................................    28
Mr. Russell R. Wheeler, President, The Governance Institute, 
  Visiting Fellow, The Brookings Institution
  Oral Testimony.................................................    40
  Prepared Statement.............................................    42
The Honorable Dana Leigh Marks, President, National Association 
  of Immigration Judges
  Oral Testimony.................................................    53
  Prepared Statement.............................................    55
The Honorable Mark H. Metcalf, former Immigration Judge
  Oral Testimony.................................................    62
  Prepared Statement.............................................    65

          LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING

Material submitted by 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................................    68

                                APPENDIX
               Material Submitted for the Hearing Record

Post-Hearing Questions submitted by 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.........................    85
Response to Post-Hearing Questions from the Honorable Mark H. 
  Metcalf, former Immigration Judge..............................    86

 
                         EXECUTIVE OFFICE FOR 
                           IMMIGRATION REVIEW

                              ----------                              


                        THURSDAY, JUNE 17, 2010

              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 10:13 a.m., in 
room 2141, Rayburn House Office Building, the Honorable Zoe 
Lofgren (Chairwoman of the Subcommittee) presiding.
    Present: Representatives Lofgren, Jackson Lee, Pierluisi, 
Chu, and King.
    Staff present: (Majority) Hunter Hammill, USCIS Detailee; 
Traci Hong, Counsel; Andres Jimenez, Staff Assistant; and 
George Fishman, Minority Counsel.
    Ms. Lofgren. This hearing of the Subcommittee on 
Immigration, Citizenship, Refugees, Border Security, and 
International Law will come to order.
    I would like to welcome our witnesses, Members of the 
Subcommittee and everyone who has joined us today to explore 
the Immigration Subcommittee's oversight of the Department of 
Justice's Executive Office for Immigration Review, otherwise 
known as EOIR.
    The last time we had an oversight hearing on EOIR in 
September of 2008, we had just learned about the Department of 
Justice's Office of Professional Responsibility and Inspector 
General's joint report on politicized hiring of immigration 
judges and other DOJ personnel that occurred from 2003 to 2007. 
I am pleased to hear that many of the steps have been taken to 
retool the hiring process to protect it from the possibility of 
politicized hiring in the future. I look forward to continued 
reports from the Department of Justice to ensure that we do not 
repeat that serious mistake in the future.
    Today I hope to hear more about efforts to address the 
continued lack of resources at EOIR, training and supervision 
of immigration judges, improvements already made to the Board 
of Immigration Appeals and any additional reforms that could 
further improve the immigration court system.
    At a time when resources dedicated to the apprehension of 
illegal immigrants have rapidly increased, there has not been a 
corresponding increase in resources necessary for the 
immigration courts to handle the influx of removal cases, and 
this has resulted in excessive backlogs and significant delays.
    The appropriations levels for Immigration and Customs 
Enforcement increased from 3.5 billion in fiscal year 2004 to 
5.4 billion in fiscal year 2010. The Customs and Border 
Protection went from 4.9 billion in fiscal 2004 to 10.1 billion 
in fiscal year 2010.
    These massive budget increases for immigration enforcement 
agencies mean many more cases for immigration judges, yet at 
the same time the number of immigration judges has hardly kept 
pace with the increased enforcement. In 2004 there were 215 
immigration judges, and today there are only 237. The backlog 
of cases has grown at an alarming rate from approximately 
160,000 in 2004 to more than 240,000 cases as of March of this 
year.
    Immigration judges do not even have the necessary and 
appropriate support staff to help deal with the increasing 
backlog. Unlike Federal court judges, who have two to three law 
clerks per judge, the average ratio of law clerks to 
immigration judges is one to four. On top of that, newly hired 
immigration judges are only provided 5 weeks of initial 
training, despite the fact that judges may be hired without any 
prior immigration law or administrative adjudication 
experience.
    It is clear that resources, training, supervision and other 
systemic issues at EOIR have been overlooked for far too long. 
I very much commend recent efforts to raise the total number of 
immigration judges by the end of 2010 to 280. However, I note 
that despite these efforts, there were only five more 
immigration judges on the bench by March of this year than 
there were one full year ago.
    I hope that with today's hearing we will be one big step 
closer to helping address some of these major issues in our 
immigration support system.
    And I would now recognize our Ranking Member, Steve King, 
for his opening statement.
    Mr. King. Thank you, Madam Chair.
    I want to thank all the witnesses for agreeing to testify 
today and coming before this panel.
    Today's subject is the Executive Office for Immigration 
Review, which houses this country's immigration supports. I 
look forward to hearing today's testimony relating to the 
challenges that immigration judges face under our current 
system.
    One of the most important functions carried out by 
immigration judges is to determine whether aliens receive 
asylum. This is obviously of great importance to the aliens 
involved, but it is also important to the American people. The 
United States provides refugee--excuse me--refuge to aliens who 
face persecution in their home countries, but we must ensure 
that our compassion is not taken advantage of by those who want 
to cheat our immigration system or to harm our Nation.
    These individuals know about the rampant asylum fraud and 
terrorists who are free to plot and carry out their crimes 
after applying for asylum. I therefore urge USCIS to finally 
release the Office of Fraud Detection and National Security's 
asylum fraud report that this Administration has kept under 
wraps for so long.
    Another issue crucial to the proper adjudication of asylum 
claims is the potential for political interference. The 
American Bar Association's Commission on Immigration recently 
issued a report that indicated that immigration judges have no 
statutory protection against removal without cause and that 
judges may be subject to removal or discipline based on 
politics or for improper reasons. I look forward to hearing the 
testimony relating to this report today.
    Because of increasing political pressure being brought to 
bear on immigration judges, we should be troubled about an 
immigration judge's recent grant of asylum to President Obama's 
favorite relative, his aunt, Zeituni Onyango. This is a public 
perception that--there is a public perception that favoritism 
played a role. The Boston Globe reported that the asylum 
decision unleashed a firestorm of criticism from those who felt 
Onyango received preferential treatment because of her 
relationship with the President.
    In order to better determine whether favoritism played a 
role, especially because Ms. Onyango was denied asylum in order 
to be deported in 2004 before her nephew became President--I 
believe he was actually a state senator at that time--this 
Subcommittee needs to hear from Ms. Onyango herself. The 
Subcommittee also needs to hear from Leonard Shapiro, the 
immigration judge who granted her asylum. In order to properly 
exercise our oversight authority, we should have access to Ms. 
Onyango's immigration file so we can learn the reasons why 
Judge Shapiro granted her asylum and reversed the earlier 
decision.
    In an effort to pursue transparency and to put to rest any 
speculation of favoritism, I personally invited Ms. Onyango and 
her attorney, Margaret Wong, to come here today to testify. I 
also requested the Chair formally invite Ms. Onyango, Judge 
Shapiro and submit a request to the Department of Homeland 
Security for Ms. Onyango's immigration file. Ms. Onyango and 
her attorney declined my invitation, however graciously they 
did decline, and all three of my requests to the Chair were 
denied.
    Madam Chair knows that she and the majority party have the 
authority to subpoena any of these potential witnesses and the 
Department of Homeland Security, who will only provide an 
information file at the request of the Committee majority. In 
other words there is no system in government that can provide 
oversight to this case if the majority is not willing to 
cooperate.
    I am forced to conclude that Chair Lofgren doesn't want the 
Committee or the country to learn whether President Obama's 
aunt used her relationship to unjustly receive asylum or 
whether Judge Shapiro was pressured by the Administration to 
grant asylum or whether Judge Shapiro believed he was under 
such pressure.
    There is a pattern of behavior in this Administration to 
influence and control such matters. For instance, there is a 
congressional testimony before the Subcommittee on Commercial 
and Administrative Law stating that the Obama administration 
laid out the exact terms and conditions of the Chrysler and 
General Motors bankruptcy. We also know that there are 
allegations of the Obama administration trying to influence the 
outcome of an election in Pennsylvania. And most recently, we 
have seen President Obama use his position to force BP into 
creating a new $20 billion escrow fund to pay claims against 
the company.
    Now, before I yield back my time, I want to bring up one 
more matter. Ranking Member Smith recently sent a letter to 
Attorney General Holder, expressing his concern regarding the 
standards that the Department of Justice's Office of 
Professional Responsibility uses to launch disciplinary 
investigations against immigration judges. Currently, OPR 
initiates investigations of misconduct merely because Federal 
appellate courts have issued decisions critical of the 
conclusions reached by the immigration courts.
    As Mr. Smith indicated in his letter, this practice makes 
no more sense than were Federal district court judges to be 
investigated for misconduct every time they were reversed on 
appeal by appellate courts or Federal appellate judges to be 
investigated every time they were reversed by the Supreme 
Court.
    It is extremely damaging to the morale of immigration 
judges to be subjected--let me try to ask consent to conclude 
my statement in less than a minute.
    Ms. Lofgren. That is granted to complete your statement for 
1 minute.
    Mr. King. Thank you, Madam Chair.
    It is extremely damaging to the morale of immigration 
judges to be subject to investigation based on nothing more 
than having reached conclusions that are later challenged by 
Federal courts.
    Even worse are the repercussions for the administration of 
justice in our immigration courts. Under its practice, OPR will 
usually investigate immigration judges only in cases where they 
deny relief that is later granted by Federal courts. The course 
of least resistance is therefore for immigration judges to 
grant relief in many cases despite their beliefs about the 
merits of the case.
    This approach results in the approval of fraudulent or 
baseless asylum claims, applications for relief. More broadly, 
immigration judges may feel pressure to reach decisions to 
satisfy the most extreme Federal appellate panels that might be 
assigned to review cases.
    So in conclusion, I look forward to hearing everyone's 
testimony and anticipate Associate Attorney General Osuna and 
all of the other witnesses to respond to the concerns I have 
laid out here.
    I thank you all for being here today, and I yield back the 
balance of my time. Thank you, Madam Chair.
    Ms. Lofgren. The gentleman's time has expired.
    Other Members are reminded that opening statements can be 
submitted for the record.
    Before turning to our first witness, I would like to 
briefly comment on the process used for selecting witnesses, 
since the Ranking Member has raised it. I did receive a letter 
from the Ranking Member after 5 o'clock on Thursday after 
Congress had recessed for the week. Unfortunately, I was by 
then on my way to a interparliamentary meeting, a bipartisan 
meeting with the Mexican House and Senate on drug violence in 
Mexico.
    Our process is that the minority is given great leeway in 
the selection of witnesses, if it is pertinent to the actual 
hearing. But the individual who the Ranking Member wished to 
invite declined to come, as did her lawyer. And I subsequently 
learned from media and a press release that you had written to 
the individual, and she had declined.
    So I do want to mention also that Section 208.6 of the 
Alien and Nationality Code does prohibit disclosure to third 
parties of information. I will read this.
    ``Information contained in or pertaining to any asylum 
application, records pertaining to any credible fear 
determination conducted pursuant to Section 208.30, and records 
pertaining to any reasonable fear determination conducted 
pursuant to 208.31 shall not be disclosed without the written 
consent of the applicant, except as permitted by this section 
or at the discretion of the Attorney General,'' and that the 
only section that could apply to us would be any United States 
government investigation concerning any criminal or civil 
matter, none of which is present here.
    So I did want to--we are guided by the rule of law, and 
including those laws that provide for confidentiality.
    Mr. King. Would the gentlelady yield?
    Ms. Lofgren. No, I think we will have plenty of time to 
discuss this in the course of the hearing.
    Let us turn now to Mr. Osuna, who will be----
    Mr. King. There is a statute that exempts Congress.
    Ms. Lofgren. We will get into that later. You raised the 
issue. I needed to address it, because I think your statement 
seriously distorted the situation. I needed to correct the 
record.
    Mr. King. Misinformed the panel.
    Ms. Lofgren. We will now have a statement from Mr. Osuna.
    Your full written statement will be made part of the 
record, and we would ask that your testimony consume about 5 
minutes. And welcome.
    Your microphone is not on, and actually, I would--before 
you do turn it on, I would like to tell the public I have known 
of you for many, many years, but not all of the audience may 
know that you are the Associate Deputy Attorney General at the 
U.S. Department of Justice, overseeing immigration policy, that 
from June 2009 to 2010 you have served as Deputy Assistant 
Attorney General, overseeing civil immigration related 
litigation in the Federal courts.
    We knew you, and I first met you when you were chairman of 
the Board of Immigration Appeals, the highest administrative 
tribunal on immigration law in the United States. You were 
appointed to that position by Attorney General Mukasey in 2008, 
after serving as active chairman for 2 years. You were first 
appointed to the BIA by Attorney General Reno in 2000.
    In addition to duties at the DOJ, you teach immigration 
policy at George Mason University School of Law. You hold your 
law degree from American University Washington College of Law 
and a master's degree in law and international affairs. You are 
a member of the Pennsylvania Bar Association, and you have had 
bipartisan support for your very professional work throughout 
your career.
    We appreciate your presence here today and welcome your 
statement.
    There is a problem with that microphone. Could the clerk 
help out here? Maybe one of the other microphones will work.
    Let us start again.

 TESTIMONY OF JUAN P. OSUNA, ASSOCIATE DEPUTY ATTORNEY GENERAL 
  FOR IMMIGRATION POLICY, UNITED STATES DEPARTMENT OF JUSTICE

    Mr. Osuna. Thank you. I apologize.
    Madam Chair, Congressman King, Members of the Subcommittee, 
thank you for the opportunity to appear before you today to 
speak about the progress that the Executive Office of 
Immigration Review has continued to make since its last 
appearance before you in 2008.
    The EOIR administers the Nation's immigration court system, 
composed of 58 immigration courts around the country, as well 
as the Board of Immigration Appeals. The department has taken 
significant steps to maintain and further improve the 
operations of the immigration court system, and we are doing so 
at a time of great challenge for the courts, as you alluded to 
in your opening statement, where there are now more than 
275,000 pending cases, the largest ever. Further, a large and 
growing proportion of that caseload is composed of aliens 
detained while they are waiting their hearings.
    Despite these challenges, I would like to share with you 
today some initiatives that the department and the EOIR 
currently have under way that are all designed to ensure the 
prompt review of priority cases, while giving each individual 
case the review that it merits.
    A well-functioning immigration court system starts with 
adequate resources. The department is fully committed to 
ensuring that the immigration courts have the appropriate 
number of immigration judges and support staff needed. An 
aggressive hiring initiative is currently under way which, by 
the time it is finished, will hire 47 immigration judges in 
calendar year 2010 alone. And we don't intend to stop there. If 
Congress approves the President's request for 2011, the hiring 
will have the effect of increasing the number of immigration 
judges to 301 by the end of 2011.
    I am pleased to report that for the current round of 
immigration judge hiring, we had the luxury of a large pool of 
qualified applicants to choose from. For the 28 immigration 
judge positions that were advertised in December 2009, the 
department received well over 1,700 applications. And those 
applications are now being vetted through a robust and rigorous 
election process.
    It is not enough to hire the most qualified individuals to 
serve as immigration judges. We must also make sure that they 
receive adequate training and get initial training and 
continuing training. Our chief immigration judge, who was 
appointed by the Attorney General last year, has made training 
a priority.
    EOIR now provides immigration judges with 5 weeks of 
initial training, and they are assigned an experienced mentor 
immigration judge throughout their first year hearing cases. 
They are also required to take and pass a new immigration law 
exam before they can actually begin hearing cases.
    In addition, the EOIR held a legal training conference in 
August 2009 and will do so again in July of this year. This 
weeklong conference covers many substantive legal issues that 
come before the immigration courts, as well as process issues 
such as handling immigrants with special needs and managing a 
courtroom.
    The department expects not only legally correct decisions 
from its immigration judges and board members, but also the 
demeanor and temperament necessary for delegates of the 
Attorney General.
    This year EOIR has increased the transparency of its system 
for addressing complaints about immigration judges. For 
example, EOIR's Web site now includes additional information 
about the complaint process, along with a flow chart and 
instructions for filing a complaint against an immigration 
judge.
    There have also been changes at the Board of Immigration 
Appeals. Over the past 2 years, the BIA has implemented the 
Attorney General's directives for change by enhancing the 
quality of its decisions while still keeping up with the 
appellate caseload.
    One example is the BIA's reduction in the use of 
affirmances without opinion, which have been criticized because 
they do not set forth the BIA's resources for its decisions. In 
2004 affirmances without opinion, or AWOs, comprised more than 
a third of the board's decisions. Today only 4 percent of the 
board's decisions are affirmances without opinion.
    This has been part of an overall effort to improve the 
overall quality of the board's decisions, and based on the 
feedback that we have received from Federal judges, the private 
bar and government attorneys, this has been a welcome and much 
noticed change.
    We believe that these changes at the BIA and in the 
immigration courts have been in part responsible for a welcome 
and declining caseload in the Federal courts of appeals for the 
past 2 years. While there may be a number of contributing 
factors for that decline, including probably changes in the 
courts themselves, we do believe that fewer AWOs and higher-
quality decisions have played a significant role.
    Madam Chair, Congressman King, Members of the Subcommittee, 
these are just some of the initiatives that we currently have 
under way. I also want to note that we do not view the 
immigration court system in isolation or as a standalone 
component. As you know, every removal case before an 
immigration judge begins with an enforcement action of the 
Department of Homeland Security. EOIR's caseload is therefore 
directly tied to DHS enforcement and detention initiatives.
    The department and EOIR are in regular and continuing 
contact with DHS in order to anticipate and respond to caseload 
trends, and this coordination allows our two departments to 
explore additional efficiencies and ways of handling the 
removal of adjudications smarter and more effectively, while 
ensuring that we are focusing resources on the highest priority 
cases.
    Thank you for the opportunity to speak with you today. I am 
pleased to answer any questions that you might have.
    [The prepared statement of Mr. Osuna follows:]
                  Prepared Statement of Juan P. Osuna




                               __________

    Ms. Lofgren. Thank you very much, Mr. Osuna.
    I will begin the questioning, if I may. First, let me thank 
you for your efforts to bring down the AWO rate to 4 percent. I 
think all of us who know appellate court judges know that they 
were just totally swamped with appeals after the changes made 
by Attorney General Ashcroft.
    You know, it is amazing how unsatisfactory are the words 
``I told you so.'' You know, exactly what we said would happen 
happened, that if a case was incorrectly decided, it wasn't 
just going to go away. It would end up in the appellate courts, 
which in fact is exactly what happened, a more expensive place 
to decide. And so bringing that down and having the reasons are 
going to make a huge difference, and I do appreciate that.
    I am looking at your written testimony, which raised some 
questions for me about the reversal rate, which has dropped, 
according to testimony on page 5, from 17.5 percent down to 
11.2 percent in 2009, which is good. That speaks to the quality 
of the decision-making. Has that trend continued this year, the 
decrease that is? Do we know?
    Mr. Osuna. Yes, it has. My understanding is that the 
current reversal rate in the Federal courts is just about 10 
percent and actually not that there is a wide variety in the 
reversal rates among the Federal courts. Many courts have 
reversal rates as low as, you know, 3 or 4 percent. Others have 
higher reversal rates than the--I think about 17 percent. But 
the nationwide average is just about 10 percent right now.
    Ms. Lofgren. Now, in terms of reversal rates, I think some 
of us have read some of the scathing decisions from appellate 
courts about individual immigration judges, who from the record 
apparently never read the file, read the law or anything else 
when they made a decision. When you get that kind of 
information from a published decision, what is done with it?
    Obviously, you don't want to make a decision based on a 
difference of a legal opinion, but if it is clear that the 
judicial officer didn't read the file, didn't read the law, and 
didn't do his or her job, what process, rights do the 
immigration judges have in such a case?
    Mr. Osuna. I believe you are asking for what happens when 
the case is actually remanded back to the immigration----
    Ms. Lofgren. Correct.
    Mr. Osuna [continuing]. To the BIA----
    Ms. Lofgren. With a scathing little pithy remark from the 
appellate court.
    Mr. Osuna [continuing]. With some indication that it might 
not have been handled as well as it should have been.
    A number of things happen. First, nobody wants this case to 
go back to the courts, and so if the case requires additional 
fact-finding on a legal--in a case, it will be sent back to the 
immigration judge, typically, for additional fact-finding. If 
it can be decided on a legal basis at the BIA, it will 
certainly be decided in that way. And depending on what the 
nature of the decision was by the Federal court, the BIA may 
make some reference to it in its decision.
    In terms of what happens to the immigration judge himself 
or herself, the Office of the Chief Immigration Judge now has a 
training coordinator. In other words there is an assistant 
chief immigration judge, whose only portfolio is training, and 
training is defined somewhat broadly in that sense.
    So there was a process for the BIA to send a copy of the 
decision back to the Office of the Chief Immigration Judge. 
Then that training assistant chief immigration judge would take 
a look at it and decide whether there is additional training 
that needs to be done for the immigration judge or additional 
feedback needs to be sent back to the immigration judge, and 
any other measures that may be appropriate like----
    Ms. Lofgren. So we would have an opportunity to provide, 
you know, the five--I think some of the older judges didn't get 
the 5 weeks immigration law training. We could put them through 
that, for example.
    Mr. Osuna. Yes, the 5 weeks of initial--that is when a 
newly appointed immigration judge----
    Ms. Lofgren. Right. But the holdover judges didn't get 
that, and so we could put them through that, if they look like 
they needed it.
    Mr. Osuna. Yes, ma'am. If there is additional retraining 
that needs to be done, training is done in a couple of ways at 
the Office of the Chief Immigration Judge. First, there is the 
annual conference. That is a weeklong conference that is 
happening in a few weeks again. And that is the single best 
opportunity for immigration judges to learn not just about the 
law, but also about how to write decisions, how to handle a 
court room, things like that.
    There is also continuing training throughout the year that 
the Office of the Chief Judge is trying to put together, and is 
putting together, a lot of that being done by DVD to try to 
reach a large number of judges.
    And again, there is that individualized training that, if 
necessary, given a particular--given an immigration judge's 
decision in particular cases, can be done either by the chief 
immigration judge, assistant chief immigration judge or by an 
experienced mentor judge that can step in and assist the other 
judge who was the subject of that decision.
    Ms. Lofgren. Let me just ask one question, and then we will 
turn this over to the Ranking Member.
    There has been a suggestion that any place where there are 
a number of immigration judges, that there ought to be a chief 
judge appointed among them, somebody to kind of put some order 
to the calendar, do some additional supervision and the like. 
What do you think of that idea?
    Mr. Osuna. Well, I think that is an intriguing idea. There 
is a corps of assistant chief immigration judges, we call them, 
that have either regional portfolios or specific topical 
portfolios. Some of them are, for example, there is somebody 
who is assistant chief judge for training. There is another one 
who is assistant chief judge for professionalism and ethics 
reasons.
    And then there are judges that are responsible for regional 
immigration courts--typically, the largest courts. So, for 
example, there is one for Los Angeles, San Francisco, New York 
and Miami, to name some examples there. I think that that was 
one of the Attorney General's directives in 2006, the pilot 
experimenting with regional supervisors, and I think that has 
worked quite well.
    And perhaps there is room for some more of that, but I 
think that taking them to the field has worked quite well in 
terms of the supervision of immigration judges.
    Ms. Lofgren. Thank you very much.
    Mr. King, you are now recognized for 5 minutes.
    Mr. King. Thank you, Madam Chair.
    Thank you, Mr. Osuna, for your testimony. I would ask if 
you are familiar with the 5 USC 522(a)(b)(9). And I know that 
that is a hard question with that whole stack of Federal 
statute, but it says this, the conditions for disclosure. And 
here are the exceptions for unless disclosure of the record 
would be, and it starts with two officers or employees of any 
agency.
    Item number 9 says, ``to either house of Congress or to the 
extent of matter within its jurisdiction, any Committee or 
Subcommittee thereof--Congress--any Joint Committee of Congress 
or Subcommittee of any such Joint Committee.'' Are you familiar 
with that statute?
    Mr. Osuna. I have not been familiar with that statute, but 
I am now.
    Mr. King. And would it be your judgment that the Federal 
code would trump the regs of DHS?
    Mr. Osuna. Well, I would have to take a look at what code 
and the regs actually say. I have not studied that particular 
section of the code, and I----
    Mr. King. Generally speaking, from a statutory 
construction.
    Mr. Osuna. Generally speaking, a statute does trump the 
regs.
    Mr. King. Thank you. And that is my argument for access to 
these records. However confidential they should remain under 
certain circumstances, not confidential--they can't remain 
confidential from Congress, if we are to do any kind of 
legitimate oversight.
    So I would ask you how can the public and how can I be 
assured that there wasn't any pressure applied in the case of 
the asylum for President Obama's aunt that has been so well-
publicized? Do you know of any means that I as a representative 
of the public could determine that there was a balanced 
decision there based on the facts, if there isn't going to be 
a, let me say, a cooperative effort on the part of the majority 
or the Administration?
    Mr. Osuna. Congressman, I can tell you that that particular 
case was handled just like any other case is handled in the 
immigration court system. The normal rules in asylum cases 
applied in that case, which is that the applicant has the 
burden of proof.
    The immigration judge handled that case as he does the 
thousands of other cases that come before him every year. There 
is absolutely no indication that there was any kind of--
anything unusual in that matter other than the facts of the 
case, which, you know, obviously put it as a different and a 
high-profile matter.
    Mr. King. But it was reported in the news that she was 
adjudicated for deportation and didn't respond to that order, 
stayed in the United States for at least 8 more years until her 
nephew became President, and then appealed it before the court 
and had the decision reversed. So is that usual to have a 
decision reversed?
    Mr. Osuna. Well, it is actually not--that was subject to a 
motion to reopen process, which the regulations allow for a 
motion to reopen in particular cases. In asylum cases it is not 
unusual for a case to be reopened or somebody to seek reopening 
in a case even a few years later. The fact that she was not 
removed by the Department of Homeland Security meant that she 
was still in the country and so was therefore eligible to file 
a motion to reopen.
    Mr. King. Would you agree, though, that this raises a lot 
of questions of doubt, given that this is most likely the 
highest profile asylum case in the country right now?
    Mr. Osuna. Well, I don't think that the granting of the 
motion necessarily raises unusual questions, because again that 
is not atypical. I mean, that does happen in a system where 
there are a large number of people, and not every removal order 
is enforced immediately.
    Mr. King. But we have a public out there that thinks 
otherwise, and they don't have any facts to deal with other 
than what has been printed in the press, which indicates the 
opposite of that. And however comfortable you might be, I would 
ask you have you reviewed the file?
    Mr. Osuna. I have not reviewed the file.
    Mr. King. And so you are speaking generally again, no, not 
probably specifically of this case.
    Mr. Osuna. Yes, sir. I mean, I have not reviewed the file, 
because we, you know, we don't review asylum files. I mean, 
asylum files are subject to confidentiality protections, and it 
would be unusual if somebody in the department had reviewed 
that particular asylum file.
    Mr. King. I understand.
    Mr. Osuna. We don't with other cases.
    Mr. King. Have you by any chance read Arizona immigration 
law?
    Mr. Osuna. I have.
    Mr. King. Good man. I congratulate you for that, as have I. 
I won't ask you any questions about it. I just wanted to ask 
that question.
    And I will just conclude with this. Are you aware that the 
average asylum grant rate has increased from 38 percent in 2005 
to 47 percent in 2009, or at least the general trend? And could 
you speak to what that might mean?
    Mr. Osuna. Yes, I am aware of that. The asylum rate has 
gone up in the immigration courts as well as at the Department 
of Homeland Security asylum offices. And there could be a 
number of reasons for that. I think one reason could be that 
there has generally an increase in the--or I should say an 
improvement in the advocacy provided in asylum cases in certain 
cases--in certain areas.
    And immigration judges report that. Asylum officers report 
that. I saw it at the BIA. So I do think that the advocacy has 
improved its least in those types of cases, not in every case. 
And that could be one reason for the increase.
    Mr. King. Were the light not red, I would perhaps take the 
other side of that argument. But I will thank you for your 
testimony and yield back the balance of my time.
    Ms. Lofgren. The gentleman's time has expired.
    The gentlelady from Texas is recognized for 5 minutes.
    Ms. Jackson Lee. First, let me thank the Chairwoman and the 
Ranking Member for holding this hearing. And I am delighted to 
have been able to come in and to hear part of the questioning 
of the Chairwoman and, of course, the Ranking Member.
    Mr. Osuna, let me just ask a basic question. We have been 
deliberating. We have almost gone to the goal line on 
comprehensive immigration reform over a number of years. And I 
have served on this Subcommittee for a number of years.
    Beside the resource infusion that would help the executive 
or judicial part of immigration reform, would that be a 
valuable approach to get regular order in terms of who can stay 
and who cannot as it relates to your responsibilities in 
governing--let us say governing, regulating the immigration 
policies of America?
    Mr. Osuna. Congresswoman, yes. I think comprehensive 
immigration reform is something that the President has said is 
he is fully behind. The Attorney General fully supports it. The 
Administration supports a comprehensive approach to our 
immigration issues.
    In terms of what it would mean for the Department of 
Justice and the immigration court system, it would be a game 
changer. It would be a significant development that would mean 
that a lot of this caseload goes away, frankly.
    Depending on what happens with a path to citizenship, a 
path to legalization, whatever we would eventually call it, we 
could see a large number of these people that are currently 
pending hearings before immigration judges drop out of the 
system and get some sort of regular status. The exact 
parameters are unclear but, yes, it would be game changing.
    Ms. Jackson Lee. Before your comments become headlines--
drop out of the system, go underground--what you mean is there 
would be an administrative process, regular order that would 
allow thousands of good intentioned, well-meaning, possibly 
workers who are in this country, families, children to access a 
process that would be government instructed that would allow 
them to legally make an application. At least, that is the 
present construct. Is that what you are saying?
    Mr. Osuna. That is exactly right.
    Ms. Jackson Lee. They wouldn't get lost. They wouldn't go 
to the street. They would have to get in a system. Otherwise, 
they would all then still fall in the eligibility of 
deportation if they were not somewhere trying to determine 
whether they could stay.
    Mr. Osuna. Yes, ma'am. And thank you for the clarification. 
Dropping out of the system than, you know, being taken out of 
the immigration court system and being given the opportunity to 
regularize their status.
    Ms. Jackson Lee. So high school students or students who 
are valedictorians in some of my schools in Texas, who now face 
the unfortunate posture of maybe not going to some of the 
prominent schools around the Nation even with their credentials 
because they are not of status, they would have the right 
opportunity to seek the American dream fairly.
    Mr. Osuna. That is correct.
    Ms. Jackson Lee. Let me just comment and make the fact that 
you have read this law. Let me just say this. I am glad you 
clarified the President's aunt, since thousands every day, 
which is one of the reasons that some of the court systems are 
clogged. I know the asylum system has its own track. But in any 
event, appeal--this goes on every day. Some are denied and some 
are not, but the idea is that you make your legitimate case. 
You have the opportunity to be heard.
    The disappointment, of course, is that many people do not 
have resources, not a question of favoritism. So we lose those 
individuals, who ultimately, tragically, find themselves in 
deportation or other unfortunate circumstance, such as the 
Haitian teacher that I helped, who was pulled out of the 
classroom of a school system that she was loved by, because she 
missed by 5 minutes an appointment, because she was taking her 
baby to the doctor's office. Those are the kinds of human 
tragedies that we need to fix.
    On the Arizona law, would you just comment on the inequity 
of a patchwork type of immigration policy--the Arizona law, the 
Chicago law, that Texas law, the Georgia law? Would you comment 
on how that affects having a real system of immigration reform?
    Mr. Osuna. Congresswoman, the Attorney General has stated 
his concerns about the Arizona law. He believes that there are 
potential civil rights and other problems with the law, 
including whether it diminishes the trust that police 
departments have with the communities that they serve.
    Ms. Jackson Lee. But a patchwork----
    Mr. Osuna. And the department is looking at the law, so it 
would be premature to get into a lot of the details on that. 
However, I do think that, as the President has indicated, we 
don't want a patchwork of laws. Immigration policy, immigration 
law is a national priority. It is a Federal priority, and it 
should remain that way. Not to say that there is not room for 
some involvement by states, but it is something we want to 
avoid.
    Ms. Jackson Lee. Thank you, Madam Chair. I think it is long 
overdue for comprehensive immigration reform, and the Arizona 
law is an abomination. I yield back.
    Ms. Lofgren. The gentlelady's time has expired.
    The gentleman from Puerto Rico is recognized for 5 minutes.
    Mr. Pierluisi. Thank you. I will be brief.
    One thing that bothers me is that I understand that a lot 
of immigration judges, when they are hired or when they were 
hired, they had no prior immigration law experience. This is a 
very particular field of the law, and it shocks my conscience 
that that hasn't been a requirement in the past and that it 
shouldn't be a requirement in the future. So I would like your 
comments on that, and then I will cover another point.
    Mr. Osuna. Yes, sir. There are a number of requirements 
that we look for for immigration judge positions. Certainly, 
knowledge of immigration law is an important one, and it is one 
that is desirable to have in anybody that is applying for one 
of these positions. However, I should note that it is not the 
only requirement that we look for or that we should look for.
    One of the more important requirements that the department 
looks for in these candidates is an assessment and an ability 
to demonstrate that they know how to act like a judge, that 
they have the judicial demeanor, that they can handle a 
courtroom, that they handle parties coming before them 
respectfully and appropriately, because you may have an 
immigration law expert, but they may not know how to handle 
themselves in a courtroom.
    So while immigration law experience is certainly important 
and is at the top of the list in terms of what we look for, it 
is not the only requirement. And I would mention again this 
assessment of judicial demeanor is just as important.
    Mr. Pierluisi. I agree with you that their are other 
requirements, and particularly just having the judicial 
temperament and so on, but I urge the department to look for 
immigration experience. There must be a lot of competent 
lawyers out there, who would be interested in becoming 
immigration judges, who have not only the immigration 
experience, but other matters you would like them to have.
    The second area I want to cover it is continuing legal 
education. You already mentioned the 5-week training program 
and the yearly meeting or conference you have for immigration 
judges. But I wonder, I mean, shouldn't you have a formal 
continuing legal education program with the minimum hours or 
credits that you require of immigration judges on a yearly 
basis, on a permanent basis?
    Mr. Osuna. I think that continuing education throughout the 
year is very important, and I agree with you on that. It is not 
just the annual conference and the initial training that is 
important, but continuing training opportunities is important.
    That is one of the issues that the current Assistant Chief 
Immigration Judge for training with the training portfolio is 
looking at. And we started with making training available 
through these electronic means as a way of trying to reach the 
various immigration courts around the country, but the agency 
is looking at other training opportunities, other training 
mechanisms, that could make some sense and that are appropriate 
throughout the year.
    Mr. Pierluisi. And lastly, I see in the materials I have 
been reviewing that at least it is being reported that 
immigration judges face a higher level of stress and pressure 
than Article I judges and other Federal judges. And I wonder 
where does that come from? Does it come from the load that they 
have, the caseload? Does it come from actually the lack of 
training or experience in the area? Does it come from the 
nature of the cases themselves? Could you give me some 
additional light on that?
    Mr. Osuna. It is a combination of factors. I think that 
certainly the caseload is a significant factor in terms of the 
burdens placed on immigration judges, which is why hiring of 
new judges is such a priority for the department this year and 
next year.
    I think it also does come from the nature of the cases. 
These are often life-and-death decisions, and immigration 
judges take their jobs very, very seriously. They know the 
stakes involved in this case not just for the immigrants that 
have come before them, but also for the government.
    So I think the combination of a lot of cases with, you 
know, tough conditions and the nature of the case leads to 
these kinds of stressful situations.
    Mr. Pierluisi. Thank you.
    Ms. Lofgren. The gentleman yields back.
    The gentlelady from California is recognized for 5 minutes.
    Ms. Sanchez. Thank you, Madam Chair.
    My questions are similar to that of the gentleman from 
Puerto Rico, and they are on the quality and the diversity of 
immigration judges. There was this exhaustive study that the 
Attorney General did on improving the immigration courts and 
the Board of Immigration Appeals. And you did this in 2006, and 
it resulted in 22 recommendations.
    But recommendation number three called for all judges 
appointed after December 31st, 2006, to pass a written 
examination demonstrating familiarity with the key principles 
of immigration law. Have you implemented this?
    Mr. Osuna. Yes, ma'am. That has been implemented.
    Ms. Sanchez. And what--have every immigration judge, then, 
appointed after December 31st actually taken this written exam 
and passed it?
    Mr. Osuna. I am trying to remember what the dateline was on 
that, but every immigration--I can't remember exactly the date 
as to when that directive was implemented, but as of today 
every immigration judge that has been appointed so far this 
year, and I believe most of last year, was required to take 
that immigration law exam and to pass that immigration law exam 
before she or she could start hearing cases.
    Ms. Sanchez. Do you know what the initial pass rate was for 
appointed judges?
    Mr. Osuna. I am sorry. I have the information here. EOIR 
began testing new immigration judges in April 2009 and new BIA 
members in August 2008. I don't know the pass rates, but I 
believe that every immigration judge that was appointed, that 
has been appointed recently has passed the exam.
    Ms. Sanchez. I guess the initial pass rate is interesting 
to us to hear about people who do not know about the 
immigration law before they become judges, and I would be very 
interested in knowing that.
    You mentioned that there is training, this 5-week period, 
but do they have to go through 5-week period before they 
practice as an immigration judge?
    Mr. Osuna. Yes, ma'am. I am trying to recall what the 
training actually entails. The first week of training, I 
believe, is in the immigration judge's new home court, 
observing other immigration judges, trying to get a sense for 
the caseload. The second week, I think, is spent at EOIR 
headquarters on intensive sessions on the law and process that 
they will face. And the remaining 3 weeks are spent in a 
combination of other immigration courts and their home court, 
trying to get up on both the law and the caseload process that 
they will face.
    They are all required to go through the 5-week training. 
Every immigration judge appointed is required to go through the 
5-week training before they can actually start adjudicating 
cases.
    Ms. Sanchez. Okay. Then I would like to talk about the 
diversity of the immigration judges. There has been some 
criticism about the way immigration judges are selected and 
that many to come from ICE or prosecutors of immigration cases, 
and fewer come from private bar, nonprofit and nongovernmental 
organizations or from academic institutions.
    And so if they did come from these areas, then you might 
have a more diverse population to select from and people who 
might be more familiar with the immigration experience. So let 
me ask what type of criteria you used to select immigration 
judges.
    Mr. Osuna. We have heard that criticism about the lack of 
diversity, and it is something that the department is taking 
quite seriously. I would only ask you to take a look at the 
judges that will be appointed this year. When they are finally 
appointed, there--again, there are 47 total hires that will 
happen this year, and most of them are in the final stages of 
selection right now.
    I think that when you see that list and when you see where 
they come from, you will see that they come from quite diverse 
backgrounds, not just the government. And frankly, a lot of the 
government immigration judges--or judges that are appointed 
from the government have been some of the best judges that have 
been appointed. However, you will see that also quite a few 
will come from the private sector, from NGOs, from other 
administrative tribunals that deal with similar types of cases.
    So the department has tried to broaden the diversity of 
this, of this corps. And again, what we try to look for are 
people that we are confident we can see in an immigration 
courtroom, handling cases appropriately with the complexity of 
the law the way it is.
    While I don't have those numbers for you in terms of the 
actual breakdown, because it is a little premature for that, I 
would invite you to take a look at the corps that will be 
appointed this year. And I think that you will see that it is 
going to be quite a diverse corps.
    Ms. Sanchez. And how about the ethnic diversity?
    Mr. Osuna. It will be diverse both in terms of background, 
work experience, as well as ethnicity.
    Ms. Sanchez. Do you have any figures?
    Mr. Osuna. I am sorry. I don't. And the only reason for 
that is just because they are still in the final selection 
process, so it is a little premature to get into that, but I am 
happy to come back with you later in----
    Ms. Sanchez. Thank you.
    Ms. Lofgren. The gentlelady's time has expired.
    And all time has expired for questioning of you, Mr. Osuna. 
We do thank you for being here. Your testimony has been very 
helpful. And without objection, the Members of our Subcommittee 
will have 5 legislative days to submit additional questions to 
you, which we will forward. And if that occurs, we would ask 
that you answer as promptly as you can.
    In terms of follow up from the questions, we know that you 
are going to send us the percentage who passed the test and, 
when the selections have been made, a picture of, you know, the 
nature of the new hires.
    I would just like to say before we bring up our second 
panel that we do appreciate our immigration judges. It is a 
hard job, and the caseload is huge. It is much bigger than 
administrative law judges face and other parts of the Federal 
Government. The amount of support staff--we need additional 
judges, but they don't have much support either.
    And so we are hoping that with your leadership, we can get 
them the kind of support they need and the numbers they need to 
bring the caseload numbers down so they have time to judge and 
give dispassionate justice. That is all we can ask. And with 
your leadership, I am sure that we are moving in the right 
direction. So thank you very much.
    And we will call up our second panel at this point.
    Mr. Osuna. Thank you, ma'am.
    Ms. Lofgren. If the second panel could step forward, we 
will introduce you now. As we transition and the new witnesses 
step forward, I will begin the introductions.
    First, I am pleased to welcome Karen Grisez.
    And you will correct my pronunciation of your name, if that 
is incorrect.
    She is chair of the ABA Commission on Immigration and is 
special counsel for public service in the Washington, D.C., 
office of Fried, Frank, Harris, Shriver & Jacobson. In that 
role she manages the intake and placement of all pro bono 
matters for the firm.
    Her practice focuses on political asylum, deportation 
defense and other immigration matters. She is the former co-
chair of the Immigration Litigation Committee of the ABA 
Section of Litigation and is a trustee of the American 
Immigration Council. She also serves on the board of directors 
of the Capital Area Immigrant Rights Coalition. She received 
her bachelor of arts summa cum laude from the University of 
Maryland, and her Juris Doctor degree from the Columbus School 
of Law at Catholic University.
    Next, I am pleased to introduce Russell R. Wheeler. Mr. 
Wheeler is president of the Governance Institute, a think tank 
with a special interest in interbranch relations, and a 
visiting fellow in the Brookings Institution's government study 
program. From 1991 to 2005, he was deputy director of the 
Federal Judicial Center, the United States Federal court 
systems research and continuing education agency.
    He is also an adjunct professor at American University's 
Washington College of Law and serves on the academic advisory 
committee of the American Bar Association's standing committee 
on Federal judicial improvement, the advisory board of the 
University of Denver's Institute for the Advancement of the 
American Legal System and the Supreme Court Fellows Commission.
    He is the United States representative to and chairs the 
board of the Justice Studies Center of the Americas created by 
the Organization of American States 10 years ago to help the 
hemisphere's judicial system adapt to changing procedural 
norms. And he is a graduate of the University of Chicago and of 
Augustana College.
    Next, I would like to introduce the Honorable Dana Leigh 
Marks. Judge Marks has served as an immigration judge in San 
Francisco since January 1987. She is currently serving her 
fourth 2-year term as president of the National Association of 
Immigration Judges, the recognized collective bargaining unit 
for the 237 member corps of immigration judges nationwide. 
Judge Marks is a member of the International Association of 
Refugee Law Judges and a member of the National Association of 
Women Judges.
    Prior to taking the bench, Judge Marks worked for 10 years 
in private immigration law firms with broad business 
immigration, family visa work, and asylum caseloads. She was an 
active leader, who held several offices with the Northern 
California chapter of the American Immigration Lawyers 
Association while in private practice. She also served as lead 
counsel and orally argued the landmark case of INS versus 
Cardoza-Fonseca.
    Judge Marks is a Phi Beta Kappa graduate of the University 
of California at Berkeley, where she majored in sociology. She 
received her Juris Doctor from Hastings College of Law and was 
admitted to the California bar in 1977.
    And finally, I would like to introduce the Honorable Mark 
Metcalf. Mr. Metcalf is a former immigration judge on the court 
in Miami, Florida. He is a former state and Federal prosecutor 
and private practitioner. Mr. Metcalf worked at the Justice 
Department from 2002 to early 2008, serving as Special Counsel 
for Election Reform, Special Counsel of the Domestic Section of 
the Criminal Division, and as senior counsel to three Assistant 
Attorney Generals.
    He is publishing a book, I understand--``The Broken 
Court,'' about America's immigration court. Mr. Metcalf 
received both his bachelors and his Juris Doctor from the 
University of Kentucky. And I was pleased to find out before we 
started that he also at one time worked for our colleague, Hal 
Rogers.
    So give Hal our best.
    And we will begin with the testimony. We ask that you 
summarize your written testimony. The full statement will be 
made part of the written record.
    And we will begin with you, Ms. Grisez.
    Could you move the microphone up a little bit closer? And 
we will have a better chance of hearing you. And I don't think 
it is on.

TESTIMONY OF KAREN T. GRISEZ, CHAIR, COMMISSION ON IMMIGRATION, 
                    AMERICAN BAR ASSOCIATION

    Ms. Grisez. There. Now, is that better?
    Ms. Lofgren. Much better, thank you.
    Chairwoman Lofgren, Ranking Member King and any other 
Members of the Subcommittee, who may rejoin us, my name is 
Karen Grisez, and I chair the American Bar Association 
Commission on Immigration. The ABA appreciates the opportunity 
to share our views on EOIR's efforts to improve the immigration 
courts and the Board of Immigration Appeals, as well as the 
challenges that EOIR faces as immigration enforcement continues 
to rise.
    The ABA has a particular interest in the fair and efficient 
administration of the immigration adjudication system. The 
commission recently released a report that examines the removal 
adjudication system from start to finish and makes 
recommendations for several reforms.
    Ultimately, the ABA supports fundamentally restructuring 
the system to create an independent body for adjudicating 
immigration cases such as an Article I court. However, we also 
recommend a number of incremental reforms that could be made 
within the existing structure to produce significant 
improvement. I would like to take my few minutes this morning 
to highlight several of those important recommendations.
    First, the immigration courts remain overburdened and under 
resourced, as has already been discussed this morning. 
Immigration judges in recent years have completed an average of 
more than 1,200 proceedings and issued 1,000 decisions per 
judge per year. This is far more than adjudicators and other 
administrative agents.
    A lack of adequate staff support for the judges compounds 
the problem, and in particular the ratio on the average of only 
one law clerk per four immigration judges.
    The immigration cases, particularly asylum claims, are very 
complex, and the time that is allowed for the judges to 
adjudicate them is grossly inadequate. We recognize DOJ's 
request for 21 additional judge teams for fiscal year 2011, but 
that seems to be from their request primarily directed to 
address expanding enforcement levels and new cases coming into 
the court system, resulting from initiatives like Secure 
Communities.
    However, because the current staffing levels are already 
inadequate, even with the existing addition of 21 new teams, 
the caseload per judge may not improve and could indeed get 
worse. We would urge Congress at a minimum to improve the DOJ's 
request, but also consider increasing the number of requested 
immigration judges and also the proportion specifically of law 
clerks to judges.
    In addition to increasing the resources available to the 
immigration courts, the caseload could also be reduced by being 
more strategic about which cases go into the removal 
proceedings to start with. Working with DHS to address this 
issue would help ensure faster processing in the cases of 
people we most want to remove, such as those who are a threat 
to public safety or national security.
    I have three examples to highlight briefly. First, in cases 
where noncitizens with no criminal histories are out of status 
and appear prima facie eligible for an immigration benefit, we 
recommend that they should not be issued NTAs in the first 
instance, but should be allowed to pursue their application 
through administrative adjudications at CIS, complete with 
background checks, complete with all of those same safeguards 
that exist now, but not in the adversarial court system.
    Similarly, we believe that prosecutorial discretion, widely 
used in the criminal justice context, should be increased in 
the immigration proceedings, particularly where it is apparent, 
due to serious health issues or other concerns, that the 
respondent actually will not ultimately be removed, and the 
case would result in a stay for a deffered action. These cases 
should not be going through the court system and should be 
addressed through the use of discretion.
    Third, we have a recommendation on improving efficiency and 
asylum processing by moving the cases of newly arriving aliens, 
who seek asylum at the border or ports of entry and must have 
their claims adjudicated before an immigration judge in 
expedited removal proceedings after a credible fear interview, 
we ask that those cases be in the first instance actually 
evaluated by asylum officers and only referred to immigration 
court if they cannot be readily approved.
    All three of these recommendations would decrease 
adversarial adjudications without sacrificing quality or 
security.
    Our last point has to do with Legal Orientation Program. 
The vast majority of detained aliens are not receiving the 
Legal Orientation Program, even though the statistics are clear 
about the 13 days decreased time per case for those persons who 
have had access to LOP.
    So our encouragement to the Congress is that more people 
should be having access to LOP, and particularly those detained 
persons, so that people with no good claims for relief will 
have sufficient information not to pursue those claims. 
Detention time and costs will be shortened with the increased 
availability of referrals to pro bono counsel for people with 
identified meritorious claims. Thank you.
    [The prepared statement of Ms. Grisez follows:]
                 Prepared Statement of Karen T. Grisez



                               __________

    Ms. Lofgren. Thank you. Very helpful.
    Mr. Wheeler?

  TESTIMONY OF RUSSELL R. WHEELER, PRESIDENT, THE GOVERNANCE 
     INSTITUTE, VISITING FELLOW, THE BROOKINGS INSTITUTION

    Mr. Wheeler. Chairwoman Lofgren, Ranking--can you hear me?
    Ms. Lofgren. We are having problems with these microphones 
today. Maybe the clerk can help you on that.
    Mr. Wheeler. I have a green light.
    Ms. Lofgren. Oh, there you----
    Mr. Wheeler. That better?
    Chairwoman Lofgren, Ranking Member King and other Members 
of the Subcommittee who may appear. In all the attention to 
immigration courts, which is where the road stops for most 
people in removal proceedings, there has been little effort to 
try to apply to those courts lessons that have been learned 
from other Federal courts and state courts, judicial branch 
courts, as it were, courts in the third branch.
    Now, those courts and executive branch courts, like the 
immigration courts, derive their authority from different 
sources, but I have to tell you, looking at the immigration 
court, in many ways it looks to me very much like a mid to 
large size state court--state trial court--or perhaps the U.S. 
bankruptcy courts more than the adjudicatory agencies in the 
executive branch.
    And on that basis, my suggestion has to do with the 
characteristics of excellent courts that legal and judicial 
organizations have developed over the years, and scholars as 
well. By excellent courts I mean courts whose judges manage and 
decide cases impartially and efficiently and courts that are 
accountable for the effective use of the resources allocated to 
them.
    It is worth considering whether adopting some of these 
characteristics might improve the operation of the immigration 
courts, although obviously that is not going to solve the 
entire problem, especially the problem of resources. Now, I am 
not the first to suggest this idea of importing standards from 
third branch courts to immigration courts.
    To become an excellent court--I am quoting here from the 
International Consortium on Court Excellence--``proactive 
management and leadership are required at all levels, not just 
at the top, and performance targets have to be determined and 
detained. Well-informed decision-making about achieving high 
performance requires sound measurement of key performance areas 
and reliable data.''
    Now, that statement points first to a point that you made, 
Chairwoman Lofgren, about the crucial role of a chief trial 
court judge in forging consensus, monitoring performance and 
encouraging innovation. Now, there is a chief district judge, 
chief judge in every district court, and every bankruptcy court 
and almost every multi-judge state trial court. And at the 
best, these local chief judges, in the words of the ABA's 
Committee on Standards of Judicial Administration, ``set an 
example in the performance of judicial administrative 
functions, emphasizing the importance of tact, the ability to 
listen, attention to the interests of others, and 
persuasiveness.''
    At the Federal Judicial Center, we found as long ago as 
1977 that the best-performing district courts were 
characterized by chief judges who had exceptional personal 
skills and the ability to forge compromises.
    Now, the Executive Office, as Mr. Osuna said, assigns eight 
assistant chief immigration judges to from four to 11 of the 
over 50 immigration courts. Six are resident in the courts. 
That means that most of the courts do not have a resident chief 
judge.
    I have no doubt that these assistant chief judges are 
committed to the effective administration of the immigration 
courts, and no doubt they possess the characteristics that I 
described for other chief judges. But without knowing more, I 
just have to ask whether or not it might benefit the 
immigration courts to establish a system of chief judges in 
every court similar to that that prevails in the third branch 
courts.
    And also I'm just a little concerned about the orientation 
of the assistant chief judges. They are listed on the EOIR Web 
site right above instructions for filing complaints about 
judges. I don't dismiss the stories about rude and worse 
immigration judges, but too much emphasis on supervision and 
discipline inevitably fosters the view of immigration judges as 
bureaucrats who need to be supervised and disciplined rather 
than professionals, most of whom will perform well in an 
environment of consensus leadership.
    Now, a second lesson that comes from the third branch court 
improvement efforts is the importance of performance 
measurement, which has a bad rap in the immigration courts 
partly because of the well-taken view of the immigration judges 
that they, like administrative law judges, should not be 
subject to performance measurement by the agency in which they 
work, and perhaps a little too much emphasis on productivity to 
the exclusion of other judicial virtues.
    But a flaw in design and implementation is not a flaw in 
the basic concept. And my statement and those of Judge Marks is 
they both can include examples of well-designed performance 
measures court-wide and individual judge-wide, which encourage 
excellence and transparency.
    Now, these suggestions I have made our unrefined, but I 
appreciate the chance to express them today, and I will try to 
answer any questions you may have.
    [The prepared statement of Mr. Wheeler follows:]
                Prepared Statement of Russell R. Wheeler





                               __________
    Ms. Lofgren. Thank you very much.
    Judge Marks?

    TESTIMONY OF THE HONORABLE DANA LEIGH MARKS, PRESIDENT, 
           NATIONAL ASSOCIATION OF IMMIGRATION JUDGES

    Judge Marks. Do I pass the microphone test?
    Ms. Lofgren. Yes, you did, but I didn't.
    Judge Marks. Thank you.
    Good morning, Chairwoman Lofgren, Representative King and 
distinguished Members of the Committee, who may come and go. 
Thank you for the opportunity to testify before you today.
    I am the elected president of the National Association of 
Immigration Judges, which is the certified representative and 
collective bargaining unit for approximately 237 immigration 
judges presiding in the 50 states and U.S. territories. The 
NAIJ is an affiliate of the International Federation of 
Professional and Technical Engineers, which in turn is an 
affiliate of the AFL-CIO.
    In my capacity as president, the opinions offered represent 
the consensus of our members, but do not represent the official 
position of the United States Department of Justice.
    The NAIJ has long been on record explaining why far-
reaching structural reform and reorganization of the 
immigration court system is needed, and we would welcome the 
opportunity to discuss this important issue in depth at the 
appropriate time. However, in light of the focus of this 
hearing, I will limit my comments to actions which can be taken 
immediately that would greatly improve the efficiency of our 
courts in their current structure.
    Because of your oversight responsibility, you are already 
aware that the proceedings before the immigration courts rival 
the complexity of tax law cases, with consequences that can 
implicate all that makes life worth living and even threaten 
life itself. Despite the stakes of these proceedings, we 
operate with scarce resources at a pace that would make a 
traffic court judge's head spin.
    While the average Federal district court judge carries a 
docket of 400 cases, the average immigration judge completed 
over 1,500 cases last year. Eighty-five percent of the 
respondents in detained settings appear without attorneys to 
represent them, and a high percentage of the cases that we hear 
do involve detained respondents. Fairness and efficiency are 
crucial to our mission.
    I would like to make four short-term recommendations. 
First, the immediate hiring of more immigration judges is 
essential to alleviate the backlogs and stress caused by 
overwork, which lead to many problems that undermine the 
optimal functioning of our system. One obvious solution to this 
problem is now under way--hire more permanent full-time judges. 
And we commend EOIR for its rededication to this task and the 
promising effort it is currently making in this regard.
    However, we also strongly advocate an additional approach 
to address this long-standing problem--the institution of 
senior status. In the past EOIR has never re-hired retired 
immigration judges on a part-time or contractual basis, and the 
time is ripe to do so.
    In the National Defense Authorization Act for fiscal year 
2010, Congress facilitated part-time reemployment of Federal 
employees on a limited basis, with receipt of both annuity and 
salary. The creation of a senior status for immigration judges, 
perhaps using reemployment under these provisions, would 
provide an immediately available pool of highly trained and 
experienced judges, who could promptly address pressing 
caseload needs in a cost efficient manner.
    The benefits would be enormous. The immigration judge corps 
would not lose the expertise and talent of retired judges. 
Their institutional memory, depth of knowledge of immigration 
law and procedure, and their hands-on judicial experience would 
be particularly valuable during this period of rapid expansion 
and assimilation of new judges.
    Creating senior status for retired immigration judges could 
provide the immigration court with trained judges, who could 
comprise a rapid response team available to address unexpected 
caseload fluctuations or to assist in the training and 
mentoring of new judges. We firmly believe this would be an 
extremely effective way to keep the immigration judge workforce 
nimble and responsive to the agency's changing needs.
    Our second short-term recommendation is the development of 
a principled methodology for budget requests and resource 
allocation. This can be achieved in two ways. Previously, 
Congress recognized the lack of a defensible fiscal linkage 
between the Department of Justice and the Department of 
Homeland Security and the fact that this has caused a chronic 
disconnect between enforcement activity and the lack of 
proportional increases in the resources for the immigration 
courts to use to respond. Such a linkage is imperative.
    In addition to this critical tool, the NAIJ endorses 
implementation of the case weighting system modeled after the 
one employed by Federal district courts. This approach would 
provide insight into how to maximize the resources which are 
allocated to EOIR and help it plan effectively and proactively 
in the face of changing caseload dynamic. This type of 
analytical approach would be an invaluable tool to identify the 
level of resources needed by local immigration court as well as 
to clarify the needs of our system as a whole.
    We also advocate incorporation of a study of other factors, 
which have been found by the Federal judiciary to influence 
their workload, such as the economies which can be achieved 
through automation, technology, flexible work schedules and 
program improvement.
    Third, increased support services and resources are 
necessary, particularly an improved ratio of law clerks to 
immigration judges. I will briefly sum up.
    Ms. Lofgren. Actually, I am going to ask you to submit for 
the record, because we are going to have votes in a few 
minutes. I hope to get all the questions in before we do. And 
ordinarily, I would say go ahead, but we are going to call on 
Judge Metcalf at this point so that we can go to our questions.
    Judge Marks. I understand caseload pressures.
    [The prepared statement of Judge Marks follows:]
          Prepared Statement of the Honorable Dana Leigh Marks




                               __________

    Ms. Lofgren. Thank you very much. Very helpful to justice.

          TESTIMONY OF THE HONORABLE MARK H. METCALF, 
                    FORMER IMMIGRATION JUDGE

    Judge Metcalf. Thank you, Madam Chair.
    Madam Chair, Ranking Member Mr. King and distinguished 
Members, thank you for this opportunity to testify today. As a 
youth I served in this, the finest deliberative chamber in the 
world. I briefed bills and attended hearings for my boss and 
your colleague, Harold Rogers of Kentucky. I am a grateful son 
of this great House.
    Under President Bush I served in several challenging and 
rewarding positions at the Justice Department, among them 
special counsel at the Domestic Security Section and as a judge 
on the immigration court in Miami. In these two positions, I 
learned the risks posed by porous borders, lax enforcement of 
our immigration laws, and the institutionalized ineffectiveness 
of our immigration courts. In the next few minutes I will 
summarize for you.
    America's immigration courts big reform, Madam Chair. From 
1996 through 2008, the U.S. allowed 1.8 million aliens--some 
here legally, some not--to remain free up on their promise to 
appear in court; 736,000--41 percent of the total--never 
showed. From 1999 through 2008, 42 percent of aliens free 
pending court--put differently, 582,000 of them--did the same.
    In the shadow of 9/11, court evasion exploded. From 2002 
through 2006, 50.3 percent of all aliens summoned to court 
disappeared. Dodging court produced deportation orders 
numbering in the hundreds of thousands. In 2002 602,000 orders 
lay backlogged. By end of 2008, 558,000 still remained 
unenforced. Millions may in fact lie fallow and unreported.
    The present court system, one without authority, one 
diminished by abuse, is broken. An about-face is needed. Rule 
of law is the answer. The Constitution directs that Congress 
shall establish a uniform rule of naturalization. Numerous 
proposals embrace different means to bring order to a sometimes 
orderless system.
    A specialty court, an Article I court under the 
Constitution, is in my opinion the surest means to protect 
those fleeing persecution, while balancing this Nation's 
fundamental interest in sovereign borders and authentic legal 
processes.
    The reason is simple, ma'am. Disorder prevails. Immigration 
courts cannot enforce their own orders. Forty-eight different 
classes of homeland security officials may order alien 
offenders arrested and removed. Immigration judges, the 
system's sole judicial officers, cannot.
    Absent judicial authority is the common thread that finds 
expression in every aspect of the court's work. Absent 
authority equals enfeebled courts, no-show litigants, 
unenforced orders, listless caseloads, tardy relief, and annual 
reports that mislead Congress and the public.
    An example is revealing, ma'am. Cases that routinely take 
less than 3 hours to try offered require more than 5 years to 
complete through final appeal. Empowered courts solve these 
problems.
    Absent authority does more than inhibit rule of law. It 
obscures the work of highly effective jurists. In 2006, the 
court's busiest year on record, 233 judges completed 407,000 
matters. All work of DOJ's trial and appellate lawyers combined 
equaled only 289,000. By comparison, Federal district and 
circuit courts with 1,271 judges, ma'am, completed 414,000 
matters.
    The ability of America's immigration judges is unmatched by 
authority equal to the challenges in their courtrooms. As cases 
are completed, judges lose control of their judgment, 
especially those authorizing deportation. Instead, Immigration 
Customs Enforcement, what we know as ICE, takes over these 
orders and leaves them unenforced.
    Meanwhile, few aliens choose to appeal.
    Ms. Lofgren. We can hear you over the bell. We are used to 
it.
    Judge Metcalf. Thank you, ma'am.
    Not more than 9 percent in 2008 appealed. And instead, they 
walked from court and they disappeared. ICE's August 2009 
announcement that it would not remove aliens who skipped court 
or disobeyed orders to leave the U.S. assures that others will 
do the same. But while many will disappear, many others will be 
summoned to court and risk removal years after convictions for 
minor offenses. Courts able to extend second chances to the 
deserving are needed.
    Most troubling, though, is lack of accountability. The 
court's annual reports are a pretense of candid audit. Reports 
consistently understate the dynamics of those who evade court 
and in doing so fail to sound the needed alarm. Reports 
misrepresent failures to appear by merging dissimilar 
populations, adding detained aliens with non-detained aliens, 
and in turn drive down this important statistic.
    In 2005 and 2006, for example, court numbers stated 39 
percent of aliens summoned to court never showed. Actually, 59 
percent of aliens, all who were outside custody, vanished. The 
real number----
    Ms. Lofgren. Judge Metcalf, we are going to ask, because 
they do have a vote, but your full statement is made part of 
the record. And I am going now to Mr. King, if I can, for 
questions. And we appreciate very much your testimony.
    Judge Metcalf. Thank you, Madam Chair.
    [The prepared statement of Judge Metcalf follows:]
                 Prepared Statement of Mark H. Metcalf



                               __________

    Ms. Lofgren. Mr. King is recognized for 5 minutes.
    Mr. King. Thank you, Madam Chair.
    First, I ask unanimous consent to introduce reporting of a 
study on the U.S. asylum system GAO report.
    Ms. Lofgren. Without objection.
    [The information referred to follows:]
    
    
    
                               __________

    Mr. King. Thank you, Madam Chair.
    And again, I thank the witnesses for your testimony here. 
And I am really interested in things that all of you--each of 
you said.
    I believe, though, given the time constraints that we are 
under, I would like to turn to the Honorable Judge Metcalf and 
ask you when in your statement when you say ``immigration 
judges,'' there are 48 different classes Of Homeland Security 
officials that may order alien offenders arrested and removed, 
but immigration judges, the system's sole judicial officers, 
cannot.
    Now, that speaks to their lack of authority to get a 
response from the ICE authorities and follow-through on the 
deportation orders, for example. So what kind of authority 
specifically would you grant the judges in order to get some 
response to their orders?
    Judge Metcalf. Jurisdiction over ICE.
    Mr. King. Could you expand on that a little bit?
    Judge Metcalf. Yes, sir. An Article I court is a statutory 
court that has judicial imperative, and you can award this same 
authority by regulation. But what happens is this. As a judge--
--
    Ms. Lofgren. Your microphone isn't on. Could you turn it so 
we can hear?
    Judge Metcalf. Yes, ma'am.
    Ms. Lofgren. Very good. Thank you very much.
    Judge Metcalf. Thank you, Ms. Lofgren, Madam Chair.
    As a judge, I would order relief to men and women who 
deserve relief. And USCIS would see that the order was 
enforced. Now, sometimes it was tardy, and sometimes relief was 
delayed, but relief eventually found its place in their lives.
    However, many aliens, when ordered removed, would say, 
``Judge, I am going to appeal.'' Or they would say that through 
their attorney. They would walk from the courtroom and 
disappear. They never appealed. And even if they did appeal, 
orders of the court to remove themselves from the United States 
were never enforced by ICE.
    Mr. King. Would you think that possible or likely in the 
case of President Obama's aunt?
    Judge Metcalf. Sir, I really--all I can say about that 
situation is this. An order was issued, denying her relief. ICE 
never enforced it, for whatever reason. But her case is not 
different from millions of other orders that have been issued 
by the court that have never been enforced or honored by ICE. 
Her case is really no different.
    Mr. King. Let me submit that since we don't have access to 
her case, we don't know there aren't other circumstances 
involved. But generally speaking, I do understand your point. 
And you have 1.8 million cumulative effect of those who have 
ignored orders. And presumably, most of them are still in the 
United States?
    Judge Metcalf. That is correct, sir.
    Mr. King. And I want to add broadness a little bit, that I 
do go down to the border, and I meet with our enforcement 
officers down there. I am watching a rotation effect where they 
pick up unique individuals, take them into the station and 
print them, take photographs of them, take them back to the 
port of entry. Instead of catch and release, it is catch and 
return.
    We have records that show that as high as 27 different 
encounters of voluntary return of an individual, unique 
individual. And I am hearing law enforcement officers tell me 
that they have open and shut cases sometimes of multiple 
hundreds of pounds of marijuana, for example, but they can't 
get prosecuted, because we don't have the ability to do so. Do 
you have some familiarity that and you would like to address 
that subject?
    Judge Metcalf. Yes, sir, in several respects--first of all, 
as a special counsel of domestic security; also as a legal 
advisor to the joint support operations in the Kentucky Army 
National Guard. That is rear enforcement of our drug policies 
and our--then you are talking about forward enforcement of our 
drug policies and our illegal immigration rules.
    In both cases we simply do not have enough resources. In 
the case of courts, their feet and their resources are meager. 
In the cases of the agents you speak about, two things stand 
out. Number one, in observing when I was on the bench in Los 
Angeles, California, at the Lancaster detention facility, one 
of the judges observed to me while I was there that the 
immigration courts have become play courts. In other words they 
issued rules that were never enforced. The result of this----
    Mr. King. Just a minute. The clock is ticking.
    Judge Metcalf. Excuse me.
    Mr. King. Sorry to interrupt, but I just want to conclude 
this with this so that the panels----
    Judge Metcalf. Pardon me.
    Mr. King. When I see the resources down there and people 
doing their job with a badge and a gun and not seeing the 
follow-through on the judicial side of this from a prosecution 
and a court system that can follow through on those orders, we 
are putting people's lives at risk without the deterrent effect 
of that comes from enforcing the law.
    I will support all the tools we need to enforce the law, 
and I thank you all for your testimony. And I regret that this 
is such a short time to ask you all questions to do honor to 
what you have done here today.
    Madam Speaker--Madam Chair--excuse me.
    Ms. Lofgren. The gentleman's time has expired.
    Mr. King. I didn't mean to do that to you, but I do yield 
back.
    Ms. Lofgren. The gentleman's time has expired.
    I will just quickly go through a couple of questions, if I 
can, before we rush to the floor to vote.
    I was very interested, Ms. Grisez, on your suggestion that 
additional discretion needs to be used to ease the burden. And 
I was thinking back to a hearing that we had on military and 
immigration law and a young woman, who was active duty Navy. 
And she married a U.S. citizen, and she was also applied to 
naturalize within a year, as she could under our new 
provisions.
    She was told by the lawyer, the Navy lawyer, don't file to 
remove the condition on your marriage, because you have already 
filed to naturalize, and you don't need to, which is what she 
did. She got a notice to appear, which she didn't receive, 
because she had been deployed to Kuwait.
    And when I think about that case, it took forever. And the 
resources that were expended by, you know, the courts and by 
ICE, and for an active duty member of the American Armed 
Forces, and what we could have done with those judicial 
resources in terms of actually removing people who needed to be 
removed--is that the sort of thing you are thinking about?
    Ms. Grisez. Yes, Madam Chair. There are a number of 
examples, and that is one of them. We aren't talking 
specifically about the military context, but cases where 
persons who don't timely seek removal of the conditions and 
then end up being put in removal proceedings are a good example 
of the types of cases that we are talking about, because when 
you play that out, what happens if a notice to appear is issued 
is that the person then comes into immigration court, and they 
can seek review of the decision.
    This is in cases where it has been denied. They can seek 
review of the denial of the removal of condition. But in the 
case where people never filed, and they are put into 
proceedings specifically because of that, and their permanent 
residence is deemed to have ended, so they are in the United 
States with no status, the procedure is then that if they still 
have the existing marital relationship, then they have to 
adjust status in the immigration court before an immigration 
judge.
    And that is a good example of the type of cases where if 
you can see on the face that there is a bona fide marital 
relationship, particularly if there are children or joint tax 
returns, those kinds of cases where there may be a late filing, 
maybe even not a good excuse for filing late, it still seems 
not a good use of judicial resources to do that in a contested 
adversarial proceeding.
    Let me ask you, Judge Marks--and thank you so much for your 
testimony. And if you could, express our appreciation to the 
immigration judges for the very hard work that they do. It is a 
very tough job.
    Judge Marks. Your comments would be very much appreciated.
    Ms. Lofgren. And we know that. And we are trying to get 
more resources for you.
    But here is a question--well, two questions. One, we are 
hiring more judges. I agree that we actually need to hire more 
than are currently on the plate. And the Attorney General, I 
think, has been pretty supportive of that.
    We could do a lot, it seems to me, with additional 
clerkship--I mean, the idea that the judges are there with so 
little clerk support. How much bang for our buck, if you will, 
would we get by augmenting the ranks of the clerkship?
    Judge Marks. It would be a tremendous improvement. 
Immigration judges spend on average 36 hours a week on the 
bench. That leaves us 4 hours a week to read the materials 
submitted to us in cases, to read new legal developments, to 
read he parties' briefs, as well as changes in country 
conditions. If we had sufficient judicial law clerks to be able 
to help summarize, organize, draft proposed decisions, help us 
wade through some of the complexities of the law--is this crime 
an activated----
    Ms. Lofgren. Right.
    Judge Marks [continuing]. Felony, some of the technical 
issues that take very close scrutiny of competing state 
statutes, comparing them with Federal statutes--it would be 
absolutely----
    Ms. Lofgren. Well, I was recently at the law school 
graduation at my alma mater. And I looked out at those hundreds 
of young people, thinking, ``Where are these people going to 
get jobs?'' And I think a lot of them would maybe be interested 
in a year working for the immigration courts. It would be good 
for them----
    Judge Marks. We do our best to use----
    Ms. Lofgren [continuing]. And it would be good for us.
    A final question. I was very interested--I don't want to 
misquote him, but it seemed to me that the Ranking Member was 
responding to Judge Metcalf's suggestion that we have full 
Article I judges, that we elevate the immigration court. What 
would the reaction be among the immigration judges to changing 
the status?
    Judge Marks. Well, thank you. The fourth point that I 
didn't get to was the fact that we believe there are structural 
reforms that need to be made. There are some modest legislative 
reforms that could be made without going to Article I, but the 
consensus of the immigration judges is that independence from 
the Department of Justice is a more appropriate structural 
position for the court to be in at this time.
    We have grown beyond the traditional administrative 
agency----
    Ms. Lofgren. Right.
    Judge Marks [continuing]. Academic rationale that put us in 
the Department of Justice in the first place.
    Ms. Lofgren. Well, my time has expired. And I have a minute 
and 20 seconds to get to the floor. So I will thank you.
    Judge Marks. Thank you.
    Ms. Lofgren. And perhaps Mr. King and I don't always agree 
on these issues, but this may be something we could work on on 
a bipartisan basis.
    As noted with Mr. Osuna, the written testimony will be part 
of the record. Members of the Subcommittee will have an 
opportunity to submit additional questions within 5 legislative 
days. And if that occurs, we will forward them to you. We ask 
if that occurs, for you to promptly respond.
    And I would like to thank you again for coming here. It has 
been very, very helpful, really very helpful to see the full 
picture. And not everyone realizes witnesses are volunteers for 
their country to help us understand the law and the 
administration of the law better. And you have helped us in 
that regard today. So thank you very much. And this hearing is 
adjourned.Thank you.
    [Whereupon, at 11:41 a.m., the Subcommittee was adjourned.]
                            A P P E N D I X

                              ----------                              


               Material Submitted for the Hearing Record

   Post-Hearing Questions submitted by 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


Response to Post-Hearing Questions from the Honorable Mark H. Metcalf, 
                        former Immigration Judge




                                 
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