[Senate Hearing 112-936]
[From the U.S. Government Publishing Office]
S. Hrg. 112-936
IMPROVING EFFICIENCY AND ENSURING JUSTICE
IN THE IMMIGRATION COURT SYSTEM
=======================================================================
HEARING
before the
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
ONE HUNDRED TWELFTH CONGRESS
FIRST SESSION
__________
MAY 18, 2011
__________
Serial No. J-112-22
__________
Printed for the use of the Committee on the Judiciary
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COMMITTEE ON THE JUDICIARY
PATRICK J. LEAHY, Vermont, Chairman
HERB KOHL, Wisconsin CHUCK GRASSLEY, Iowa, Ranking
DIANNE FEINSTEIN, California Member
CHUCK SCHUMER, New York ORRIN G. HATCH, Utah
DICK DURBIN, Illinois JON KYL, Arizona
SHELDON WHITEHOUSE, Rhode Island JEFF SESSIONS, Alabama
AMY KLOBUCHAR, Minnesota LINDSEY GRAHAM, South Carolina
AL FRANKEN, Minnesota JOHN CORNYN, Texas
CHRISTOPHER A. COONS, Delaware MICHAEL S. LEE, Utah
RICHARD BLUMENTHAL, Connecticut TOM COBURN, Oklahoma
Bruce A. Cohen, Chief Counsel and Staff Director
Kolan Davis, Republican Chief Counsel and Staff Director
C O N T E N T S
----------
MAY 18, 2011, 10:02 A.M.
STATEMENTS OF COMMITTEE MEMBERS
Page
Cornyn, Hon. John, a U.S. Senator from the State of Texas........ 3
Grassley, Hon. Chuck, a U.S. Senator from the State of Iowa,
prepared statement........................................... 57
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont. 1
prepared statement........................................... 55
WITNESSES
Witness List..................................................... 27
Grisez, Karen T., Chair, Commission on Immigration, American Bar
Association, Washington, DC.................................... 9
prepared statement........................................... 28
Osuna, Juan P., Director, Executive Office for Immigration
Review, U.S. Department of Justice, Washington, DC............. 4
prepared statement........................................... 38
Wood, Hon. Julie Myers, President, ICS Consulting, LLC,
Arlington, Virginia............................................ 7
prepared statement........................................... 47
QUESTIONS
Questions submitted to Karen T. Grisez by:
Senator Cornyn............................................... 59
Senator Leahy................................................ 77
Questions submitted to Juan P. Osuna by:
Senator Cornyn............................................... 60
Senator Feinstein............................................ 64
Senator Grassley............................................. 67
Senator Klobuchar............................................ 76
Senator Leahy................................................ 79
Senator Sessions............................................. 81
Questions submitted to Hon. Julie Myers Wood by:
Senator Cornyn............................................... 62
Senator Grassley............................................. 75
ANSWERS
Responses of Karen T. Grisez to questions submitted by Senators
Cornyn and Leahy............................................... 83
[Note: At the time of printing, the Committee had not received
responses from Juan P. Osuna.]
Responses of Hon. Julie Myers Wood to questions submitted by
Senators Cornyn and Grassley................................... 88
MISCELLANEOUS SUBMISSIONS FOR THE RECORD
American Civil Liberties Union (ACLU), Laura W. Murphy, Director,
Washington Legislative Office, and Joanne Lin, Legislative
Counsel, Washington, DC, statement............................. 96
American Immigration Council (AIC), Washington, DC, statement.... 113
American Immigration Lawyers Association (AILA), Washington, DC,
statement...................................................... 103
Appleseed, Chicago Appleseed, and Texas Appleseed, public policy
law centers, Washington, DC, statement......................... 145
Associated Press, April 5, 2011, article......................... 129
Associated Press, April 5, 2011, article......................... 137
Associated Press, April 11, 2011, article........................ 139
Benson, Lenni B., Professor, New York Law School, New York, New
York, and Russell R. Wheeler, Brookings Institution and
Governance Institute, Washington, D.C., statement.............. 154
Constitution Project, The (TCP), Mason C. Clutter, Counsel, Rule
of Law Program, Washington, DC, May 16, 2011, letter........... 228
Dubovoy, Hugo, Baker & McKenzie LLP, Chicago, Illinois, May 25,
2011, letter................................................... 170
Hebrew Immigrant Aid Society (HIAS), Mark Hetfield, Senior Vice
President, Policy and Programs, May 16, 2011, letter........... 159
Human Rights First, statement.................................... 164
Human Rights Watch, statement.................................... 172
Katzmann Immigrant Representation Study Group and the Vera
Institute of Justice, ``The New York Immigrant Representation
Study,'' preliminary report.................................... 180
Kingsbury, Colby A., Partner, Baker & Daniels LLP, Chicago,
Illinois, May 16, 2011, letter................................. 182
Law, Anna O., Associate Professor of Political Science, DePaul
University, ``The Ninth Circuit's Internal Adjudicative
Procedures and Their Effect on Pro Se and Asylum Appeals,''
abstract....................................................... 119
Lutheran Immigration and Refugee Service (LIRS), Baltimore,
Maryland, statement............................................ 185
McConnell, Gregory A., Winston & Strawn LLP, Chicago, Illinois,
May 16, 2011, letter........................................... 189
National Association of Immigration Judges (NAIJ), San Francisco,
California, statement.......................................... 192
National Immigrant Justice Center (NIJC), Mary Meg McCarthy,
Executive Director, Chicago, Illinois, statement............... 204
National Immigration Forum, statement............................ 202
New York Times, The, May 3, 2011, article........................ 212
Physicians for Human Rights (PHR), statement..................... 215
Schrag, Philip G., Delaney Family Professor of Public Interest
Law, and Andrew I. Schoenholtz, Visiting Professor of Law, Co-
Directors, Center for Applied Legal Studies, Georgetown
University Law Center, Washington, DC, May 13, 2011, letter.... 219
Tahirih Justice Center, Jeanne Smoot, JD, MALD, Director of
Public Policy, Falls Church, Virginia, statement............... 225
University of Arizona, Nina Rabin, Co-Director, Immigration Law
Clinic, and Director, Bacon Immigration Law & Policy Program,
Tucson, Arizona, May 13, 2011, letter.......................... 232
Vera Institute of Justice (Vera), New York, New York, statement.. 235
Wheeler, Ellen M., Partner, Foley & Lardner LLP, Chicago,
Illinois, May 16, 2011, letter................................. 237
IMPROVING EFFICIENCY AND ENSURING JUSTICE IN THE IMMIGRATION COURT
SYSTEM
----------
WEDNESDAY, MAY 18, 2011
United States Senate,
Committee on the Judiciary,
Washington, DC.
The Committee met, pursuant to notice, at 10:02 a.m., Room
SD-226, Dirksen Senate Office Building, Hon. Patrick J. Leahy,
Chairman of the Committee, presiding.
Present: Franken, Blumenthal, Grassley, and Cornyn.
OPENING STATEMENT OF HON. PATRICK J. LEAHY,
A U.S. SENATOR FROM THE STATE OF VERMONT
Chairman Leahy. I am going to make a short opening
statement. I will put my whole statement in the record, and I
want to ask each of the witnesses to put their statements in
the record, but to summarize them orally so we can go to
questions.
It is an understatement to say that immigration in this
Nation has led to fierce debate, but we have no comprehensive
solution. I know President Bush tried. I agreed with President
Bush on his efforts to develop a comprehensive immigration
policy.
Just a week ago, President Obama went to the border to
renew the discussion, and he called for Congress to enact
comprehensive reform. I do not in any way underestimate how
difficult that would be, but I hope for the country that we can
achieve comprehensive reform.
The more we struggle to attract support on both sides of
the aisle for such a solution, the current system continues to
be hobbled by a complex immigration statute, and by
overburdened immigration courts. Today we are going to take a
look at the courts.
Immigration courts have not attracted much attention in the
immigration debate, but the decisions made by these judges
carry a great deal of weight. For an asylum-seeker with a valid
claim of persecution in her home country, denial of asylum may
be tantamount to giving her a death sentence.
Long delays in the immigration courts pose additional
burdens. A successful petitioner may not be able to reunite
with his or her family, or bring the children away from danger
to the United States during the pendency of the case.
In my home State, Vermont immigration and asylum advocates
assist hundreds of immigrants and asylum-seekers each year.
They work hard to overcome the challenges to winning a claim.
Let me give you an example that I am concerned about. The
Associated Press recently reported on an asylum-seeker who had
been jailed and tortured for supporting the political
opposition in Cameroon. Her husband died behind bars because of
his activism. Her brother and her mother were tortured.
This woman, who fled and had to leave behind two sons and a
20-month-old daughter, waited for 5 years for her case to be
resolved by the immigration courts. Five years, and, of course,
during that time, her children were separated from her.
By the time she completed all the steps to bring her
children to the United States, her daughter, who she had last
seen as an infant, had reached the age of 10.
The pace of justice in the immigration courts is too slow.
Courts operate under the Executive Office for Immigration
Review, or EOIR, within the Department of Justice. They have
struggled for years under heavy caseloads, insufficient
staffing, and technological weaknesses.
The Federal circuit courts have excoriated immigration
courts and the administrative appeals board for shoddy work,
including denial of due process, bias against immigrants, and
unreasoned opinions.
In the past Administration, the hiring of immigration
judges was politicized, something we all have acknowledged,
with candidates vetted for political affiliation, voting
records, and personal views on abortion. It had nothing to do
with immigration. The candidates for immigration judge
positions were not asked about their immigration expertise.
The courts have come a long way since that point. This
Administration revamped the personnel policies. They hired
immigration judges with higher qualifications and a diversity
of backgrounds.
Clerks and support staff have been added. Training and
technology have both improved.
I want to commend our witness, Juan Osuna, the Director of
EOIR, for his leadership in steering the ship onto a steady
course.
But now, new challenges have arisen that are not of the
courts' making. The heavy emphasis on enforcement by the
Administration has led to a sharp increase in caseloads. At the
same time, the Department of Justice faces budget cuts across
the board. The Department can no longer hire judges to keep up
with the caseload.
The case backlog rose 44 percent from the end of Fiscal
Year 2008 to the end of the calendar year 2010. And so the
example of the asylum-seeker from Cameroon has become all too
typical.
I called this hearing not to criticize the immigration
courts, but to have a constructive discussion about what they
can do to be improved, and to ask what the courts can do with
current resources to increase efficiency and improve the
quality of adjudication. How many new judges and more staff are
needed to bring the case backlog under control? What innovative
steps are being taken by nongovernmental entities, such as the
New York Immigrant Representation Study, launched by Judge
Robert Katzmann of the second circuit court of appeals? And,
how can bar associations, law firms, and nonprofit
organizations contribute?
These challenges are not partisan or ideological. We all
want the courts to operate fairly. We want them to serve the
interests of justice. So I hope we will discuss how best to
achieve these goals.
I am joined by the distinguished Ranking Member, Senator
Cornyn of Texas, a man who, with both his judicial experience
and just living in Texas, has a great deal of experience with
immigration issues, and I yield to him.
I will put my full statement in the record, and then we
will go to statements from the witnesses.
[The prepared statement of Chairman Leahy appears as a
submission for the record.]
OPENING STATEMENT OF HON. JOHN CORNYN,
A U.S. SENATOR FROM THE STATE OF TEXAS
Senator Cornyn. Well, thank you, Chairman Leahy, for
holding today's hearing, and, Senator Grassley, for allowing me
to serve as the Ranking Member during the hearing.
As a former State court judge and attorney general, I am
very familiar with the heavy workloads that judges and
prosecutors and defense lawyers carry day-by-day, and it is a
great privilege, I can tell you, to serve as a judge and a
great honor to decide cases and interpret the laws passed by
Congress, but there is no place, in my view, for making it up
as you go along. And we need to make sure we have immigration
courts that are enforcing the law as written by Congress and
not becoming policymakers unto themselves.
In previous immigration debates, we have focused on border
security, interior enforcement, temporary worker programs, and
what we need to do with the current population that is here
without the appropriate legal visas. However, we have not had
an in-depth discussion about restructuring and reform of the
immigration court system itself.
My staff and I are working on a proposed bill based, in
part, upon some of the recommendations that have been made by
the ABA and others, and, of course, we will look to learn from
you here today about other ways that we can improve the
legislation and reach out to colleagues and try to get good
bipartisan support.
Immigration courts are administrative tribunals under the
jurisdiction of the attorney general and the Department of
Justice. The effectiveness and efficiency of the court depends
on Department policy and procedures. It also depends on the
resources available to the Department of Justice to handle the
volume of removal proceedings initiated each year.
Of course, throwing resources and additional staff at a
broken system is not a solution. And whether we ultimately
decide to restructure the entire immigration court system, I
think there is plenty we can do in the interim to improve the
process.
It serves no one's interest to have cases languishing for
years before a decision is made. It also poses a potential
security risk by allowing criminal aliens to remain at large in
the United States while their cases are pending review for
years.
In the past, I have advocated for streamlining removal
proceedings and judicial review to limit potential abuses and
frivolous claims from clogging up the system. We should also
address the many loopholes in the law that allow ineligible
aliens to stay in the United States for significant periods of
time and do a better job of enforcing final removal orders.
Courts can issue numerous removal orders, but the orders
will have no effect if we continue to be lax in the enforcement
of current immigration laws. The government needs to do a
better job of locating aliens who have already shown a clear
disregard for the law and expediting their removal from the
United States.
Expedited removal is one administrative tool that could
help reduce the burdens on an already overwhelmed immigration
court system.
I join the chairman's concerns in fixing our broken
immigration system, but I personally do not believe the
American people will support that effort until we have shown
them that we are serious about enforcing the law. And if the
law needs to be changed, then it is within the power of
Congress, with the support of the American people, to change it
in a way that reflects our values and our self-interests,
frankly, in protecting our country against those who would come
here for purposes other than to contribute to our society in a
constructive way.
But immigration court reform, I think, is a critical
component of credible immigration reform and is absolutely
required if we ever hope to regain the public's trust in the
government to do its job.
We must also remember that building a better immigration
court system is not the only thing we need to change. As I
indicated earlier, we need effective border security and
interior enforcement to make the immigration court system truly
work.
We need credible immigration reform to remedy the flaws in
our immigration laws so that people can come here legally and
those who have violated our laws may be removed in a timely
manner.
I remain committed, Mr. Chairman, to credible immigration
reform and I am ready to engage on this issue when the
President makes it a priority.
I look forward to hearing the testimony today, as well as
your recommendations for immigration court reform.
Thank you again.
Chairman Leahy. Thank you. Thank you very much. I know that
the group of us who worked with President Bush included Senator
Cornyn. And, again, I do believe strongly in enforcement, but I
also believe strongly in having an immigration law that
reflects the reality of this country.
I will first call on Juan Osuna, the Director of the
Executive Office for Immigration Review, Department of Justice.
In 2009, he was appointed Deputy Assistant Attorney General for
the Office of Immigration Litigation, then continued his work
on immigration policy as an Associate Deputy Attorney General
at the Department of Justice.
From 2000 to 2009, he served on the Board of Immigration
Appeals, becoming its chairman in 2008. And as of yesterday, he
is the Director of EOIR. I offered him both congratulations and
condolences, whichever it might be at whichever time of day it
is.
But we are delighted to have you here, and, please, go
ahead, sir.
STATEMENT OF MR. JUAN P. OSUNA, DIRECTOR OF THE EXECUTIVE
OFFICE FOR IMMIGRATION REVIEW, U.S. DEPARTMENT OF JUSTICE,
WASHINGTON, DC
Mr. Osuna. Thank you, Mr. Chairman.
Mr. Chairman, Senator Grassley, Senator Cornyn, Members of
the committee, thank you for the opportunity to speak with you
today about the progress that the Executive Office for
Immigration Review continues to make.
The Executive Office, or EOIR, administers the Nation's
immigration court system, composed of 59 immigration courts
around the country, plus the Board of Immigration Appeals.
The Department of Justice and EOIR continue to take
significant steps to maintain and further improve the
operations of the court system and we are doing so at a time of
great challenge for the courts, which received more cases over
the past couple of years than anytime in its history.
A large and growing proportion of these matters are related
to aliens who are detained while they are awaiting their
hearings. These detained cases continue to be the priority for
EOIR, in large part, because they involve individuals who have
criminal convictions that may make them deportable from the
U.S.
We anticipate that this emphasis on the removal of criminal
aliens and others who pose a threat to the community will
continue as the enforcement programs of the Department of
Homeland Security continue to expand.
Despite the challenge of an increasing caseload, I would
like to share with you today some of the efforts that EOIR has
undertaken that are designed to ensure prompt review of
priority cases, while giving each individual case the review
that it merits.
A well functioning immigration court system begins with
adequate resources, and the Department and EOIR are fully
committed to ensuring that the immigration courts have the
appropriate number of judges and staff needed to support our
mission within the confines of an admittedly difficult budget
climate.
During Fiscal Year 2010 and into the beginning of Fiscal
Year 2011, EOIR undertook a major hiring initiative that
resulted in the hiring of more than 50 new immigration judges.
While this initiative was cut short due to budgetary
restrictions on hiring and further reduced by attrition, we
were still able to net a sizable increase in the immigration
judge corps.
The number of immigration judges reached a record level of
272 in December 2010 and, as of today, stand at 268 judges
hearing cases nationwide.
We are very hopeful that Congress will support and approve
the President's Fiscal Year 2012 request for additional
appropriations for EOIR in order to allow us to continue our
successful hiring initiative.
We also recognize, however, that it is not enough to hire
the most qualified individuals to serve as immigration judges.
It is vital that we properly train new judges and that we
provide continuous training for judges as long as they are
hearing cases.
Conferences that EOIR held in 2009 and 2010 provided
continuing education on many substantive legal issues,
including asylum, adjustment of status, and many procedural
issues.
The current budget environment is making training a little
bit more challenging, but EOIR is turning to other established
methods of training to ensure that our immigration judges and
members of the Board of Immigration Appeals are always up-to-
date on this rapidly changing area of law.
The Department expects not only legally correct decisions
from its immigration judges and members of the BIA, but also
the demeanor and temperament appropriate for delegates of the
Attorney General.
This year, EOIR released a new ``Ethics and Professionalism
Guide for Immigration Judges'' and we are ensuring that any
allegations of misconduct against immigration judges receive
prompt and adequate review and resolution.
The Board of Immigration Appeals also continues to enhance
the quality of its decisions, while keeping up with the
appellate caseload. An indicator of the Board's success is the
Federal courts. There are approximately 530 fewer appeals from
BIA decisions into the Federal courts today as opposed to a
year ago, and overall, the number of BIA appeals to the Federal
courts are about half today as what they were at the high water
mark in 2006.
In addition, the Federal courts are affirming BIA decisions
at a higher rate. So far in 2011, the courts are affirming
almost 90 percent of the Board's decisions nationwide.
We believe that the good work of the immigration courts and
the BIA is worth noting and that with congressional support, it
can continue to improve.
Other programs, like the very successful legal orientation
program, are expanding and helping respondents in proceedings
better understand the system, while also helping to boost
efficiency.
We also have underway enhanced efforts to combat fraud,
hold bad attorney responsible and accountable, and enhance the
capacity of legitimate organizations to represent immigrants.
Chairman Leahy, Senator Cornyn, Senator Grassley, this
statement paints only a partial picture of the work that is
being done at EOIR. I want to note that I 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 a DHS enforcement action, and,
therefore, the Department of Justice and EOIR are in constant
contact with DHS and other agencies in order to anticipate and
respond to caseload trends.
This important coordination effort allows our two
departments to explore additional efficiencies and ways of
handling the administrative caseload more efficiently, while
ensuring that we are focusing those resources on the highest
priority cases.
Thank you for the opportunity to speak with you today. I
look forward to answering any questions you might have.
[The prepared statement of Mr. Osuna appears as a
submission for the record.]
Chairman Leahy. Thank you very much.
Our next witness, Julie Myers Wood, served as Director of
U.S. Immigration and Customs Enforcement during the last 3
years of the Bush Administration. Prior to that, she held
positions at a variety of government agencies, including
Department of Commerce, Department of Treasury, Department of
Justice.
It is good to see you again, Ms. Wood, and you are now
president of INC Solutions, LLC.
Please go ahead. Your full statement, of course, will be
made part of the record.
STATEMENT OF HON. JULIE MYERS WOOD, PRESIDENT,
ICS CONSULTING, LLC, ARLINGTON, VA
Ms. Wood. Thank you very much and good morning, Chairman
Leahy and Ranking Member Cornyn and Senator Grassley and
Members of the committee. It is great to see all of you again
and also nice to be here more unofficially than as a government
official.
But it is a pleasure for me to have the opportunity to talk
a little bit about what I saw when I was at ICE and ways I
think we can work to improve our immigration court system.
As a former assistant secretary at ICE, I did really have
an insider's view of how the immigration court system can
affect our overall immigration enforcement program.
Years of delay for individual hearings affects the American
public's ability to believe that we are getting enforcement
done and we are doing a good job, and can also lead
individuals, like the individual that Chairman Leahy
highlighted, can leave them in legal limbo for far too long.
So I think what Ranking Member Cornyn is doing in looking
at how can we address the immigration court system
independently kind of makes a lot of sense.
We should, however, not forget that the immigration court
is only one part of the larger system and I am fully in support
of the calls to reform our overall immigration system, and I
think a band-aid fix approach will not be enough. And so we
should look overall if we can make some changes and
improvement.
But given what we have and given the increasing number of
cases that are coming into immigration court, I think there are
several steps that can be taken now to improve efficiency and
improve justice in the system.
First, I would look to internal efficiencies and I think
that under Juan's leadership, the Department of Justice has
taken some significant steps to try to improve efficiency in
the immigration courts with the existing caseload.
But I think there is more to be done. I think we can look
to the model of the Federal criminal courts and look at some of
the things they do there in terms of performance metrics and
also in terms of supervisory judge roles to improve the
performance and the professionalism of the court.
It also makes sense to ensure that our judges are getting
enough training on the complicated cases so they can move them
along not only swiftly, but correctly, and not make kind of
incorrect or unwise decisions as they move forward.
But internal tweaks will only get us so far. And so we have
to look--are there external things that we can do differently
in this system that will not reduce our overall effectiveness
in immigration enforcement, and I think there are a number of
things that we can do.
First, I think the Agency has been looking at prosecutorial
discretion. What cases are in the courts now that should not
be? And I think that makes complete sense.
A lot of times, in my experience, we would spend 5 years or
a number of years litigating cases and, at the end of the day,
decide that this was a case that should not be brought. We
should decide that up front and keep that case out of
immigration court.
The same thing with voluntary departures. Many aliens are
eligible for voluntary departures. That should be encouraged at
the very beginning of the process so eligible aliens stay out
of the immigration court system.
There are also more mandatory methods that could be
effective. I think looking at expedited removal, can we expand
that, can we expand that to known smuggling routes, can we
expand that to aliens who are incarcerated in certain
instances, still within our current statutory authorities. I
think that could make a lot of sense and then careully could be
effective.
We should also look at stipulated removal and a program
called Rapid Prepack. One of the greatest pressures coming into
the immigration court system are criminal aliens coming through
the Secure Communities program. The Rapid Prepack program takes
criminal aliens who are in states that have early release laws
for citizens and essentially applies them also to non-violent
criminal aliens and allows them to stipulate to their removal,
saving them time in State prison and saving the government time
in putting them through removal proceedings.
That saved six states over $400 million to date and I think
it is a program worth expanding. But we cannot look at
efficiency kind of by itself without thinking of how are we
making sure that justice is being done. And one of the concerns
that I had when I served as assistant secretary are the number
of times when representation was really needed, but it was not
there.
We have many good immigration and ICE attorneys that are
looking hard to make sure they find the cases that warrant
representation or warrant merit, but it is hard to find that
when everybody is pro se.
So I think it makes sense to look at are there vulnerable
populations that would benefit through court-appointed
representation.
In addition, I think expanding the legal orientation
program would be helpful. I saw that that program really made a
difference in detention facilities, and, in fact, it has
reduced detention time by an average of 7 days. So it is
actually a cost-saving program. But right now, it is only in 27
facilities. So that is the kind of thing that I think could be
expanded and could be done in a cost-saving manner to make sure
that individuals get the attention they need.
As I mentioned, I think these things are really just kind
of arguing around the edges. We need overall reform and an
overall look at the system, and I would join the Chairman, the
Ranking Member's and Senator Grassley's efforts to do so.
Thank you very much, and I look forward to your questions.
[The prepared statement of Ms. Wood appears as a submission
for the record.]
Chairman Leahy. Thank you. I have to keep reminding myself
not to call you Ms. Myers anymore, but Ms. Wood, and thank you
very much for your comments. I do appreciate them and I
appreciate you being here.
Our last witness, Karen Grisez, is the chair of the
American Bar Association's Commission on Immigration. She
oversaw the completion of the Commission's comprehensive 2010
study on immigration adjudication, which is the study here. It
is the most significant report of its kind, in more than a
decade.
Ms. Grisez is an attorney with the Washington, DC, office
of Fried Frank, where she also serves as a public service
counsel and advises attorneys in their pro bono work, including
a large number of asylum cases.
So, Ms. Grisez, again, we will put your full statement in
the record. The report has been very helpful to my staff and to
this committee.
Why do you not, in the time that you have, please tell us
what you would like us to remember especially from this
hearing.
STATEMENT OF MS. KAREN T. GRISEZ, CHAIR, COMMISSION ON
IMMIGRATION, AMERICAN BAR ASSOCIATION, WASHINGTON, DC
Ms. Grisez. Good morning. Thank you, Mr. Chairman, Senator
Grassley, Ranking Member Cornyn. I very much appreciate the
opportunity to be with you all this morning to share the views
of the ABA on ways to improve efficiency and justice in the
immigration court system and to offer whatever I may have to
share from my personal experience in the handling of matters in
immigration court and supervising other lawyers in doing so.
The ABA has a special interest in the efficiency and
fairness of removal proceedings. The Commission, as you have
heard, released a report last year making several
recommendations for improving the removal adjudication system.
I want to focus my remarks this morning on only a few of
those recommendations that would boost efficiency, while also
improving justice for those going through the system.
I want to begin by commending Director Osuna on all the
recent improvements that have been made at EOIR. We very much
appreciate his efforts to improve the agency's performance and,
at the same time, we echo his concerns about the implications
of DHS' increased enforcement efforts and the spike in NTAs on
EOIR's ability to keep up with the caseload.
Increased caseloads, as you know, without increased
resources can only lead to burgeoning backlogs. We recommend,
therefore, an increase in the hiring of IJ packages sufficient
to bring caseloads down to a level comparable to those of other
Federal administrative adjudication systems and, at a minimum,
Congress should approve EOIR's Fiscal Year 2012 budget request.
An additional recommendation we have to increase the
productivity of the immigration court without more judges is to
hire more law clerks to support the judges at a ratio of one
clerk to one judge, where now the average is more like one
clerk to four judges.
With enough new judges to bring caseloads down to
manageable levels, we should also then expect formal written
decisions rather than oral decisions hurriedly dictated
immediately at the conclusions of hearings. This would improve
quality of the decisions, increase confidence in them, and
decrease both appeals and time-consuming remands.
Another important area of concern for the ABA is access to
counsel. We also favor a system in which every person in
removal proceedings, whether detained or not, would have access
to a legal orientation program. The LOPs provide critical
information about removeability and eligibility for various
forms of relief, but equally important is the information that
they provide to individuals who have no relief.
Far too often, I see people pursuing appeal after appeal
afer appeal every time a judge asks them, ``Do you accept my
decision or do you want to appeal?'' I am one of the screeners
that assists the DOJ in the BIA pro bono project and I
constantly see people, pro se people pursuing appeals to the
BIA, aggravated felons, with no relief under the law, and their
appeal is ``I want another chance. I'll never do it again.''
And where the cases may be sympathetic and there may be a
lot of equities, there is no legal relief and those cases
should not be in the system under the current law.
Chairman Leahy. (Off microphone.)
Ms. Grisez. Yes. And the sooner, Mr. Chairman, the sooner
persons get access to the LOP, the sooner they can make those
decisions about abandoning when that is the appropriate avenue.
We had a case in my firm where an associate was appointed
to a ninth circuit appeal, and that individual, after several
years of detention, had never spoken to a lawyer before. On
review of the case, the lawyer found that while the individual
was correct about a procedural defect in the conduct of his
hearing below, he ultimately had no relief. He was not eligible
for anything.
So after counseling, that individual withdrew his appeal
and accepted deportation, but that could have happened several
years earlier if he had seen a lawyer earlier.
We have three recommendations today on conserving
immigration court resources. First, only those cases that
actually need an adversarial process and where the Government
has an intent to remove the person should be in the immigration
court system. If there is no intent to remove or the person is
prima facie eligible for relief, that latter category of cases
could be handled administratively.
Then, the use of pre-trial conferences, already authorized
by the regs, should be more extensively used to narrow issues
and preserve hearing time.
Third, the last point is on asylum applications. We
strongly favor moving defensive applications in removal
proceedings in the first instance to the asylum offices of
USCIS, where they can be adjudicated more quickly by specially
trained officers. And, finally, elimination of the 1-year
deadline. That is consuming a lot of adjudicatory resources,
both at the asylum office level and later in immigration court.
And our recommendation is that the time should be spent on the
merits, ascertaining the need for protection and not only
assessing when the person entered or whether they have
appropriate proof of their date of entry.
So with that, Senator, I will conclude my opening comments
and am happy to take your questions.
[The prepared statement of Ms. Grisez appears as a
submission for the record.]
Chairman Leahy. Well, thank you very much. And I thank all
three of you for your comments. To many, this is probably not
seen as the most exciting of issues. Except for those who are
in the immigration court system in one way or the other. Then
it is a vital system and I think it is extraordinarily
important not only for our country, but for our system of
justice in the United States.
Now, Mr. Osuna, let me ask you. Using DOJ's data, the
Transactional Records Access Clearinghouse, or TRAC, found the
immigration courts case backlog reached an all-time high of
267,000 cases at the end of calendar year 2010, and, of course,
that backlog is going to be difficult to reduce if you receive
400,000 new cases in Fiscal Year 2011.
Assuming the enforcement policies remain the same, how does
the White House coordinate budget policy so that we can ensure
that there is adequate funding and staffing to keep up with
these 400,000 new cases coming in?
Mr. Osuna. Yes, Mr. Chairman. One of the real positive
aspects of the last couple of years in my experience has been
that there is an awareness at all levels, both within the
Department, at DHS, at OMB, and at the White House, about this
crucial link between enforcement and adjudications.
It is critically important that we look at the system not
by agency, agency-by-agency or even department-by-department,
but as a process; that the removal process begins with an
enforcement action and goes potentially all the way up into the
Federal courts.
The White House and OMB have been fully engaged and fully
supportive of making sure that those links are maintained in
the appropriations process and enhanced; that if there are
enhancements to DHS enforcement programs, that there is some
sort of assessment and a link made to what is going to be
required in the immigration court system.
Chairman Leahy. Well, when you look at what is required,
you must have in mind what you think, in an ideal world, is the
number of immigration judges you need. How many additional
judges would you need?
Mr. Osuna. Well, I think what we are looking at--it is a
difficult question, to one extent, because we do not know
exactly what we are going to see with enforcement patterns in
the future.
It is likely that if enforcement patterns continue at DHS
the way they are, that we will be facing a substantial increase
in immigration court proceedings in 2011 and 2012.
I think, at a minimum, we are looking at a hiring
initiative comparable to the one that we just undertook for the
last year and a half, which was roughly about 50 new
immigration judges. But that is a very rough number that would
depend a lot on a lot of other factors.
It is possible that even with an additional 50 judges, for
example, that these enforcement patterns could be such that it
might not be enough.
On the other hand, if the Congress does pass some sort of
comprehensive immigration reform bill that has a wide effect on
the system, that will also be a game-changer in many ways for
the immigration courts.
Chairman Leahy. Is it safe to say, assuming things stay the
same, you are going to need more?
Mr. Osuna. Absolutely.
Chairman Leahy. And, Ms. Grisez, let me ask you. Statistics
from the Department of Justice show the asylum grant rate in
immigration courts is approximately 50 percent, coming up from
a low of 16 percent in 1996.
Let me play the devil's advocate a little bit. Does this
show the immigration courts are getting it right, or do we have
to worry about asylum-seekers in the system?
Ms. Grisez. Well, Senator, it is difficult to say what the
right----
Chairman Leahy. Is your microphone on?
Ms. Grisez. There, sorry. It is difficult to say what the
right number is and I would never say that there should be a
uniform percentage of what the approval rate should be.
Two different things are going on. One is the asylum office
has gotten better and as the asylum office adjudications are
improving, fewer cases are making their way into the
immigration court system than formerly were.
Another thing is that fewer asylum-seekers, in the first
instance, are coming to the United States. So those going into
the system from the expedited removal process and coming
straight into court for adjudication have also been reduced.
But as Director Osuna said, more people in immigration
court and certainly more non-detained people in immigration
court have been getting counsel over the recent years. So that
is one of the factors that may be contributing to the current
grant rate.
But at the same time, this is all in the context of people
coming from different situations, from different countries,
different dynamics, all over the world. So the grant rate
should never be stable. It should be justice. It should be the
right result in every particular case, regardless of----
Chairman Leahy. You may have a major civil war, even a
genocidal operation in one part of the world which may
dramatically spike the numbers, just to give one example.
Ms. Grisez. Yes, Your Honor. At any given time----
Chairman Leahy. Senator Cornyn is the only one who has been
a judge. My time is up, but I have one more question.
Ms. Wood, we have all talked about the importance of
counsel. Ms. Wood, you know Asa Hutchinson, former
Undersecretary of Homeland Security, former Member of the House
of Representatives. Both of you have spoken in public about the
efficiencies you gain when the attorneys are available to
represent detained immigrants in deportation proceedings.
Now, you were in a position where, as an official, you were
charged with removing immigrants. Did counsel help ICE? Did it
help? How could it be more efficient?
Ms. Wood. Absolutely. And when I was a Federal prosecutor,
some of the hardest cases that I tried were cases that were pro
se cases.
It was hard for the judge to decipher kind of what was
going on. It was hard to make sure, as an officer of the court,
that the defendant was able to present their case
appropriately, and it was very difficult. And I saw absolutely
the same thing at ICE in civil immigration proceedings.
Chairman Leahy. Thank you. I think anybody who has been a
prosecutor will say that you actually have an easier time if
you have good counsel on the other side.
Ms. Wood. Absolutely. Absolutely. And you have a duty. The
ICE attorneys feel that they are officers of the court under
the Rules of Professional Responsibility. They have a duty to
make sure that justice is done. And so they are looking to see
are there some sort of issues, and sometimes, particularly with
mentally incompetent individuals or unaccompanied minors that
do not have representation, it is really hard to figure out is
there--is there something there that could allow them to adjust
or is there not. And so counsel definitely helped and aided
those cases.
Chairman Leahy. Judge Cornyn.
[Laughter.]
Senator Cornyn. I thought Ms. Grisez calling you Your Honor
was a nice touch, actually.
Chairman Leahy. Actually, I appreciate it very much.
Ms. Grisez. It was really that I was just so eager to speak
with Senator Cornyn.
[Laughter.]
Chairman Leahy. We will start the clock again for Senator
Cornyn, because I do not want to take his time, but I know,
having spent years in courtrooms before I came here, I at least
twice in my first 6 months as a very, very junior Member of one
of the committees referred to the chairman as his honor, and I
considered it a compliment to him. So I took it as a
compliment.
Senator Cornyn.
Senator Cornyn. Thank you, Mr. Chairman.
The average time it takes to dispose of an immigration
case, the national average, I believe, is 467 days. Mr. Osuna,
you can correct me if I am wrong, but those are the numbers
that I have.
In California, it is 639 days, and I am glad to say in
Texas it is 253 days, although I do not think that is anything
to be proud of, in particular.
You have talked a lot about the resources that you need and
whether counsel are appointed and the problems of trying to
litigate cases with pro se parties.
But let me talk to you just briefly about the streamlining
of judicial review as a general matter, and I would like to get
the views of all three witnesses.
We know that multiple layers of review can sometimes catch
mistakes that are made and certainly, if you are talking about
a death penalty case, you want to make sure you have the
maximum sort of review and opportunities for people who are
wrongly convicted to raise those issues.
But in fairly routine matters that take 30 minutes before a
trial judge, and you can correct me if I am wrong, but I am
advised that an asylum case would take maybe an hour, depending
on the nature of the evidence produced, but many of these cases
are really not in dispute in terms of the facts of the matter.
It is a question of getting somebody the due process that
is required and getting him in front of the judge. But the
multiple layers, a hearing before an immigration judge, a
review by the Board of Immigration Appeals, a possible review
by the circuit court of appeals, what sort of opportunities do
you see--and I would like each of the witnesses to respond to
this--for streamlining judicial review that would not sacrifice
basic fairness and the rule of law, but which would give more
certainty and perhaps cut down on some of the logjam which we
find not only before the immigration judges, but before the
circuit courts?
Mr. Osuna. Let me just start with a little bit of overview.
In terms of the multiple levels of appeals, 90 percent of
immigration judge decisions never get appealed beyond the
immigration judge stage.
In other words, the immigration judge decision in 90
percent of the cases--in fact, it is more than that, it is
about 92 percent these days--ends right there.
In detained cases, cases tend to move very, very quickly,
for the most part, nationwide. Detained cases, the appeal rate
there is even smaller than the national average. I am not sure
what it is, but it is about half the regular appeal rate,
meaning that it is close to 4 or 5 percent of the nationwide
average of 8 to 10 percent.
So I think it is an important big picture or item to talk
about, because, again, the vast majority of cases never go
beyond the immigration judge stage.
The Agency does focus, as we mentioned, on detained cases
and I have begun to talk about the system more in terms of
bifurcated system between detained and non-detained, because
that is really what it has turned into.
Because of enforcement patterns, because of everything
else, the focus of the agencies, not just at ICE, but also at
the EOIR, is on the adjudication of detained cases.
The Department has set this as a priority. What that means
for EOIR is that resources and immigration judge docket time
and immigration judges themselves are being shifted into the
detained dockets, for obvious reasons. Those are the
individuals that are detained at cost to the government. There
is a liberty interest there, and often those individuals are
the ones that have criminal convictions that we should be
moving relatively quickly through the system.
In terms of changes, the Department is not in a position to
support----
Senator Cornyn. Mr. Osuna, may I make a suggestion that--I
am going to ask you to followup, since time is limited here, in
writing with some of your suggestions and I am really earnest
in my request to get your advice and support on this, but I
want to give the other witnesses a chance to answer this
question, and I hope we get a couple of rounds and we can come
back to some other issues.
Ms. Wood.
Ms. Wood. Certainly, I would agree with Juan that the
majority of cases kind of do not get appealed. I think one of
the really important things is reducing the cases that go into
the immigration courts at the core level to begin with.
Then I think looking to see----
Senator Cornyn. And how do you do that?
Ms. Wood. How do you do that? By expanding, by looking at
kind of a potential expansion of expedited removal.
Senator Cornyn. Is that within the Secretary's discretion
to expand the category of cases that are subject to expedited
removal?
Ms. Wood. It is. By statute, right now, the Agency would
have up to 2 years--if an individual had been in the country,
up to 2 years. Right now, they are doing if an individual has
been in the country up to 14 days and 100 miles from the
border.
You could certainly target like certain smuggling routes
where it is easy to see that people have only been in the
country kind of a certain amount of time or you could look in
certain detention facilities, people who are convicted of State
and local crimes, where it is also easy to show that they have
been in the country for a short period of time, and that might
be a good category.
Also, stipulated removal. I know the ninth circuit had a
case that had limited somewhat stipulated removal, U.S. v.
Ramos, but there are things that can be done kind of in that
area and that is within the Agency's discretion.
Also, cases that are appropriate for voluntary departures
and prosecutorial discretion, just weeding those out up front.
And so the goal would be, at the end of the day, there are not
a lot of successful appeals because cases that would be
successful appeals, you are not getting into the system kind of
in the first place. So you are making the right decision.
So I would really focus there and then perhaps look at
whether the BIA kind of legal advisor pro bono program could
make sure they are matching people up with education to see
whether or not an appeal is worth their time.
Senator Cornyn. Ms. Grisez. With the chairman's permission.
My time is over, but please go ahead.
Ms. Grisez. Thank you. The response, I think, is very much
what Ms. Wood has indicated, that we should never be
sacrificing protection for people, the protection of life and
liberty, by eliminating layers of judicial review.
The right thing to do is get the decision right in the
first instance.
Senator Cornyn. If I could just interject here. Of course,
we recognize the different layers of judicial review, given the
severity and gravity of the charges and the potential sanction,
and, certainly, we are not going to give the same level of
judicial review for people running stop signs and the like, not
that we are talking about those kind of cases.
But are you suggesting that we could not streamline
judicial review, and appellate review in particular, without
sacrificing the ability to litigate these cases fairly and in
accordance with the law?
Ms. Grisez. Well, I do not think that it should be that
access to the Federal courts for review should be reduced
beyond what it already is. There were already substantial
restrictions on judicial review in connection with the IIRIRA
in 1996. Now, the cases that are still amenable to judicial
review are those where the stakes are very high and people who
are dissatisfied with their results below.
Especially in a system that we know is not yet perfect,
that opportunity for review should not go away. My view would
be that we should be increasing protections on the front end,
LOP for everyone, access to counsel, better trained, better
resourced immigration judges will produce better results there;
then, at the BIA, what is already happening, moving away from
affirmances without opinions to lengthier decisions, more
three-member panel review than one, and that is a place that we
think we should return to grater levels of consideration at the
BIA.
And then with those measures correctly in place and the
decisions better, you will have fewer appeals, and we are
already starting to see that. In the second and the ninth
circuits, under the prior so-called streamlining reforms at the
board, the rates of appeal in the circuit court were up so high
that more than half of the caseload in the ninth circuit was
immigration matters and more than 40 percent in the second
circuit.
With the changes that have happened at the board, those
rates are coming back in line. Reversal rates are decreasing
and rates of appeal are decreasing. So I think it illustrates
that protections on the front end, getting it right below is
the way to solve the problem of appeals, not cutting off the
level of appeals when there are still infirmities in the system
below.
Senator Cornyn. Thank you.
Chairman Leahy. Thank you.
Senator Blumenthal.
Senator Blumenthal. Thank you, Mr. Chairman.
On the subject of getting it right below, you have the good
luck or misfortune of having three former prosecutors on the
panel today and I want to ask a question that focuses on what
happens below, what happens in the process leading to the
judicial part of the system.
And we are here to evaluate the court system, but,
obviously, in any judicial system, the judicial actors have a
responsibility to make sure that the folks on the ground, the
policing element get it right.
In Connecticut, for example, we have had a number of
instances where the tactics or conduct of the ICE agents in
their raids and other activities have been questioned.
I wonder if members of the panel, beginning with you,
Director Osuna, could comment on what responsibilities the
immigration judicial element have to supervise what is
happening on the ground in policing and how well they are doing
it.
Mr. Osuna. A lot of this has to do with ICE policy that I
will probably not be able to talk about, but I would just say,
generally, this, Senator. Certainly, the Fifth Amendment due
process protections apply immigration court, as they do in most
administrative proceedings, and immigration judges do see or
hear cases once in a while where there may have been something
that crossed the line at the enforcement stage.
I think it is fairly rare, in my experience, that they see
those instances, but when they do, the due process protections
do apply and they will take appropriate action when the
particular case--when that happens.
Senator Blumenthal. To some extent, though, the assertion
of due process rights often depends on an advocate who knows
the law. And as Ms. Wood's testimony indicates, 84 percent of
all the individuals who come before the immigration courts are
unrepresented by counsel and may be completely unaware of these
rights and come from countries where the rights do not exist in
the first place.
Mr. Osuna. Yes. And by the way, and I certainly share the
sentiments that good counsel and adequate counsel make all the
difference, not just for the immigrants, but also for the
system. The 84 percent number, I should note, is in the
detained context.
People that are detained while they are awaiting their
hearings, 84-85 percent of those individuals do not have
counsel. In the non-detained context, as Ms. Grisez mentioned
earlier, it has improved, to some extent. And if cases go to
the merits, most of those are actually--especially, for
example, in Hartford, in your state, I think upward to 90
percent of people that go to merits hearings in the non-
detained context in the Hartford immigration court are
represented by counsel.
Adequate counsel is critical. There is no getting around
that. And we have seen some improvements in the non-detained
context, but we still have a long way to go on the detained.
Senator Blumenthal. Any other members of the panel want to
comment on that question?
Ms. Wood. I would just agree with kind of Juan's comments
and say, also, that in my experience, individuals that had
things that have happened to them that are not--that maybe are
not appropriate have also challenged those in Federal court and
other places.
So there are also other opportunities, and often those
cases are cases that are of great interest to counsel, pro bono
groups and the like.
Ms. Grisez. Senator, one thing I think that is important
here is the interagency work that is going on and will continue
to go on, I am sure, between the Department of Justice and the
Department of Homeland Security, because when you are talking
about immigration policing and the enforcement side, that is in
a different agency, as you understand, from where the
immigration judges are.
So the immigration judges do not oversee ICE or the----
Senator Blumenthal. I do understand and that is the reason
why I asked the question.
Ms. Grisez. Right.
Senator Blumenthal. And I think especially revealing was
the preface to Director Osuna's answer, which was that he could
not speak to ICE policy.
If we were talking about the FBI, there is no way that a
Department of Justice official would say, ``Well, I can't speak
to what Federal agents are doing.''
And that is the reason really for the question. Who is
supervising? Who is exercising authority to make sure that
those ICE agents comply with the Fifth Amendment and other
constitutional guarantees?
Ms. Grisez. So I think the answer is right. The immigration
judges, in a limited sense, when someone raises those issues,
in some cases, will deal with them. Some immigration judges
will not touch constitutional issues and they do not think they
have jurisdiction over them, and they will leave that for the
appellate process.
But, again, that plays back into your point that if you
have a pro se person who does not know where the violations are
or someone has not been able to have access to a lawyer, those
claims are not getting made, and that is, I think, where a huge
number of the problems occur, not just constitutional
violations, but others are in proceedings that move very
quickly, no lawyer, nobody to spot the problems.
Senator Blumenthal. Thank you, Mr. Chairman. And thank the
witnesses here today for your excellent work on these issues.
Thank you.
Chairman Leahy. Thank you very much.
We are now going to recognize Senator Grassley. I have to
go to the Appropriations Committee. Senator Franken, thank you
very, very much for coming to take over.
Senator Franken. My honor.
Senator Grassley. I ask permission to put a statement in
the record before I ask questions.
Chairman Leahy. Without objection.
[The prepared statement of Senator Grassley appears as a
submission for the record.]
Senator Grassley. Director, currently, the Office of
Professional Responsibility at DOJ initiates investigations of
immigration judges whenever a Federal appellate court issues a
decision critical of the conclusions reached by the judge.
To me, this practice is the equivalent of investigating a
Federal district judge for misconduct every time the judge is
reversed by an appeal to the circuit court. It is extremely
damaging to the morale of immigration judges to be subject to
an investigation based on nothing more than having reached
conclusions that are later challenged by a panel of Federal
circuit judges.
Even worse are the repercussions for the administration of
justice in our immigration courts. Under its practice, the
Office of Professional Responsibility will usually investigate
immigration judges only in cases where they deny relief that is
later granted by a Federal court.
Consequently, the course of least resistance for
immigration judges is to grant relief in many cases, despite
their belief that the case might be without merit.
Immigration judges will naturally feel pressure to reach
decisions that satisfy the most extreme appellate panel that
might be assigned to their cases. This pressure will naturally
result in immigration judges approving baseless asylum claims
and applications for relief, and I believe that General Holder
should end this practice.
But I want to ask your judgment. I understand the concept
of an annual performance review. I understand OPR investigating
a judge when a complaint is lodged. But why does OPR
independently and on its own investigate immigration judges
when the Federal courts reverse a decision and say that the
judge should have ruled in favor of the alien?
How is that not intimidation? The Judges Union certainly
thinks so. What do you say?
Mr. Osuna. Without getting too much into the OPR mechanics
there, I do not think it is quite accurate to say that OPR
investigates any time that a Federal tribunal or appellate
court reverses an immigration judge.
In my experience, though, peer investigations are quite
rare. They happen only in certain instances where OPR deems it
appropriate. But it is not in every case where an appellate
court reverses an immigration judge's decision.
I do not believe that immigration judges are granting more
asylum cases because of OPR investigations. I think there are
other reasons for that. It was mentioned earlier that perhaps
in the merits non-detained asylum context, representation is
better. And, in fact, in my experience, from what I hear from
immigration judges, that is the case in many cities, that
representation of immigrants--of asylum-seekers in merits
hearings is better.
I think that is probably more of an explanation as to why
immigration judges are granting more cases these days.
Senator Grassley. You could disagree with my
characterization of it, but the Judges Union certainly thinks
that is the case. And this came up in the House Judiciary
Committee hearing on immigration courts last June.
So have you done anything to look into whether judges do,
in fact, feel intimidation?
Mr. Osuna. In my experience, immigration judges are not
being intimidated into granting more asylum cases by OPR, by
the possibility of an OPR investigation.
Senator Grassley. So in other words, you feel that the
union is completely wrong in their characterization. Well, let
me move on.
In 2008, a Department of Justice attorney wrote a memo
saying that only 19 percent of those ordered to be removed
after appeal to the Federal court were actually tracked down by
ICE and deported. Of the 8,000 aliens that appealed to the U.S.
Court of Appeals, the Justice Department prevailed in 7,200
cases. Of the 7,200 cases with removal orders, only 1,375 were
actually deported.
The conclusion is that the government is winning these
cases, but ICE is not removing aliens, begging the question--
what is the point?
So my question to you is, we have a process. People
undocumented get an ample chance to appeal orders to leave the
country. But at the end of the day, another branch of
government ends up ignoring what the immigration judge, the
Board of Immigration Appeals, and the Federal courts have
decided.
Does that concern you?
Mr. Osuna. I think that removal orders, once the process
has been completed, should be enforced promptly. I think that
that goes to the integrity of the process and it is necessary
for the process to have the legitimacy in the eyes of the
public.
I do think that ICE does the best it can with its resources
to try to enforce removal orders, but, certainly, that is an
important part of making sure that the process does have
meaning.
Senator Grassley. I hope I will have time for a couple more
questions on a second round.
Senator Franken [presiding]. Absolutely, or you can do it
now.
Senator Grassley. If I could do it now, I would.
Senator Franken. Sure. Go ahead.
Senator Grassley. Also, for you Director. On April 26,
Attorney General Holder vacated a BIA decision to deport a
alien from Ireland who was attempting to avoid deportation
based on his civil union in New Jersey with a U.S. citizen.
The BIA held that the alien should be deported specifically
because DOMA does not recognize same-sex marriage.
With an appeal pending in the Third Circuit, the attorney
general vacated the BIA decision and ordered the Board to
consider whether the appellant could be considered a spouse
under New Jersey law and whether he would be considered a
spouse under immigration law, if not for DOMA.
While the attorney general has the authority to vacate and
overrule BIA decisions, this authority has rarely been used.
So my question to you is, does it concern you that the
attorney general's interference in this matter, while within
his authority, intrudes upon the independent judgment of BIA?
And as the branch of DOJ that oversees the immigration court
system in the BIA, were you or any of your staff consulted
about the AG's decision to step in and did you recommend
against it, given the importance of BIA's maintaining its
independence?
Mr. Osuna. Senator, it does not concern me. The attorney
general does have, of course, the authority to certify and
vacate any decision from the BIA. As you noted, it is an
authority that is rarely granted and I think the attorney
general certainly steps in when he deems it appropriate.
It does not concern me that that authority exists, because
in my experience, it has not been used in an inappropriate way
that would impinge on the independence of the BIA.
Senator Grassley. But does it not concern you that there is
interference when the courts have not decided that the DOMA law
is unconstitutional?
Mr. Osuna. Well, the attorney general took that action in
that case because he felt that there were other issues apart
from the constitutionality of DOMA that had to be fleshed out
at the administrative level rather than in the Federal court in
the third circuit.
I think the attorney general's decision lays those out in
terms of the possible hardship of that issue and whether the
civil union is even--should be even recognized as a marriage.
So I think that the attorney general felt that there were
additional factual and legal issues that needed to be fleshed
out by the BIA, possibly the immigration judge in that case,
and that is why he took that action in that particular case.
Senator Grassley. And my last question. Does not the fact
that immigration appeals to the circuit court have declined
significantly in the past few years indicate that the Board of
Immigration Appeals is doing a better and more thorough job of
handling its caseload?
Then, last, I am concerned about increasing the sizes of
the Board and the impact that would have on efficiency. Are
there any discussions underway at the Department about
increasing the size of the Board of Immigration Appeals?
Mr. Osuna. I wholeheartedly agree that the drastic decrease
in the number of cases going to the appellate courts is an
indicator that the BIA is doing a much better job than it used
to do a few years ago, and that has been a deliberate effort
for the last couple of years.
And I am sorry, the second--the size of the Board. We are
under discussions for a number of procedural issues at the BIA
to deal with the streamlining of reforms that were put in place
and whether there are any additional reforms available.
So far in discussions with the Department, we have not
discussed increasing the size of the BIA.
Senator Grassley. Thank you very much. Thank you, Mr.
Chairman, for your courtesy.
Senator Franken. You are welcome. Thank you.
Ms. Grisez, last year, the Advocates for Human Rights, a
Minnesota-based immigration advocacy organization, submitted a
comprehensive report to the United Nations on our Nation's
immigration court system. One of their conclusions was the
following quote: ``The U.S. immigrant detention system
contravenes the United States' obligations to protection of
family unity. Family unity cannot be considered in mandatory
detention cases, and the United States routinely fails to
consider family unity when making discretionary detention
decisions.''
Do you agree with that conclusion and if so, why?
Ms. Grisez. Well, Senator, it is certainly true that under
the current law, 236(c), providing for mandatory detention in
certain cases, people are going to be detained in a way that
disrupts family unity. There is no question about that.
The other problem I think is that detention has an effect
not only on the conduct of the proceedings, but actually the
outcome, because detention can cause breadwinners, obviously,
to lose their income. Because of the delays in processing, it
can cause people to lose their homes.
People, when they lose their jobs, can lose their
insurance. They then lose medical care. So in some cases, the
fact of detention itself has a coercive effect on the person in
proceedings to actually abandon their claim and agree to
depart, because the family cannot tolerate the economic impacts
and emotional and psychological impacts of detention.
So I would certainly agree that although there are some
cases where people absolutely need to be detained, there are
others where detention is not necessary to secure the person's
appearance and family unity and the health, economic and
otherwise, of the family unit would be better maintained if
persons were free from detention until the conclusion of their
proceedings.
Senator Franken. How long is a typical detention?
Ms. Grisez. Well, we heard earlier some statistics that an
average is near a year. There are cases that are much longer,
there are cases that are--if someone agrees to deportation
right away and does not pursue any forms of relief, it can be
less than 30 days.
So how long a case takes really depends on the facts and
circumstances of the individual case.
Senator Franken. Thank you.
Ms. Grisez, also, the American Bar Association's report
cited a recent study published in the Stanford Law Review that
found that in the three largest immigration courts, a quarter
of the judges granted asylum at rates that were more than 50
percent different from the overall courts' average grant rate.
The same study found that female judges grant asylum at a
rate 44 percent higher than male judges. To what do you
attribute these disparities and what do you think we need to do
to fix them?
Ms. Grisez. Well, Senator, I would not be troubled by minor
variations from judge to judge or from court to court, because
there are a lot of different factors that go into that.
The caseloads are different, the sending countries in some
courts are different, whether the population in a certain court
is in proceedings because of criminal convictions or otherwise,
all of those things are a factor.
But what concerns me is the disparity, for example, where
the grant rate ranges from 8 percent to 93 percent.
Senator Franken. This is within the same court.
Ms. Grisez. Right. But even within the same court, judges
can be all over the map and that suggests to me, again, that
some of the improvements that are already underway with more
careful hiring, better training, closer supervision, should
help bring the grant rates closer together, but there should
never be a standard, a goal or a quota where every judge should
be granting X percent of their cases.
Senator Franken. No. But what accounts for the disparity
and how should that be addressed? Is there any way to address
that?
Ms. Grisez. Well, there are temperamental differences among
individuals and, in the past, there has been a situation where
much of the immigration hiring has come out of the previous
trial attorney corps or others involved with law enforcement or
prosecution.
So one possible explanation for the grant rates is folks
that come from a prosecutorial or enforcement background, not
the only explanation.
Senator Franken. Well, we have sentencing guidelines in
courts that were adopted to address the same kind of situation
where you could be--depending on which judge you got, in the
same court, you would get widely disparate sentences. And so
there seemed to be--sentencing guidelines were made in order to
put some kind of fairness in there so that you were not
randomly getting a hanging judge or getting a judge that was
going to let you go.
So I was just wondering, maybe, Mr. Osuna, do you have any
opinion on doing something parallel to some kind of guidelines
that could make these disparities less apparent?
Ms. Osuna. Let me just review a little bit about what has
been done about disparities and then talk about other
possibilities.
When you look--and I agree with the characterization that
there is such--with factually difficult and factually diverse
cases, you do have to allow for some disparity, a few
percentage points. That is not unique to the immigration court
system. That is not unique to any court system.
However, I also agree that with similar cases in the same
court, with similar fact patterns and similar countries with
regard to asylum, wide disparties of 80 percentage points are
troubling and should be looked at.
This has been dealt with by EOIR in terms of management
initiatives. What the office of the chief immigration judge has
done is to take a look at those outlying judges, the ones that
have very high or very low rates, and not to tell them that
they are granting too many cases or denying too many cases,
because you definitely do not want to do that with an
independent adjudicator, but see what else is going on in the
case, see what else is going on with the judge, see if there is
some legal deficiency, some temperament deficiency, some
remedial training that needs to be done.
Those judges are then mentored. They are given some
specific targeted attention and the evidence that we have--and
I think the organization that published that study in the
Stanford Law Review actually has reported recently or in the
past year or so, I believe, that the disparities have gotten
better. In other words, they have narrowed, to some extent, and
I attribute that to the management initiatives of the chief
immigration judge that have dealt with this.
I think that we have to be very careful to mandate a system
or a pattern of a grid that has been suggested in the past,
that if a certain fact pattern falls into a certain part of a
grid, then it is a grant of asylum, and if it does not--I would
be opposed to that, because, again, in my experience, these are
just way too diverse to really deal with it in those terms.
Senator Franken. Thank you. Thank you for that answer.
I would like to turn to the Ranking Member. Do you have any
further questions, Senator Cornyn?
Senator Cornyn. I do, Mr. Chairman. Thank you.
First, for you, Ms. Wood. Do you agree with the statement
that lengthy wait times for removal proceedings allow illegal
aliens to buildup equities for relief or establish qualifying
relationships or employment to get relief from removal, and it
also allows criminal aliens to remain in the United States and
removable aliens to continue working while awaiting a decision
in their case?
Ms. Wood. I do.
Senator Cornyn. And is that another reason why it is
important for us to get these numbers down? Because the longer
justice is delayed, whatever the outcome may be, it basically
works in favor of the alien who is seeking to stay here, even
though they came into the country in violation of the law. Is
that correct?
Ms. Wood. Certainly, it works against kind of entire
immigration enforcement system; to wit, the longer you stay, if
you do not show up for your final immigration court hearing and
you abscond and then you build equities in the community for 20
more years, you are more likely to, at the end of the day, be
able to stay, that is unfair to people who are playing by the
rules and people who are waiting in lines outside the country.
So it is very important to try to figure out how can we
make our removal orders more enforceable. And I think to its
credit, I do think ICE is trying to look at how can they keep
better track of people during the lengthy appeals process. That
is a challenge.
At times, they have not had their people's addresses and
other things. But having some sort of monitoring or other ways
to keep track of people, so that when they know when they are
finally ordered removed, if they have gone through an appeals
process, the Agency can actually locate them and encourage them
to go home. If they do not go home, assist them home more
directly, makes a lot of sense.
Senator Cornyn. As I indicated in my opening statement, I
really think that the problem Congress and the Federal
Government have is a credibility problem when it comes to our
immigration system. And until such time as we regain the
public's confidence with more uniformity, more predictability,
less gaming of the system, then it is going to be hard for us
to do the sorts of things I think we need to do to fix our
immigration system. So I think that is an important point.
Ms. Grisez, on the point we were talking about earlier
about appointment of counsel, I just want to ask you, do you
believe that every alien should be entitled to an attorney
prior to expedited removal? For example, aliens who walk across
the border and who get turned around.
I guess what I am trying to do is test your--at what point
you think the charges are sufficiently serious that it would
warrant taxpayer expense to providing them a lawyer.
Ms. Grisez. I do not believe, Senator, that the ABA has a
policy (off microphone.) I do not believe the ABA has policy
favoring the appointment of counsel as part of the expedited
removal process.
Our policy is that there should be a triage type of system
where everybody coming in to removal proceedings, but that
means Section 240 full removal proceedings, which, in the case
of expedited removal, would be after passage of credible fear,
that those persons should have access to a legal orientation
program with appointment of counsel for vulnerable populations,
such as mentally ill and children, and those cases where there
has been identified eligibility for relief and the person is
otherwise unable to find paid counsel or have pro bono counsel.
Senator Cornyn. Thank you for that clarification. I
appreciate it.
Mr. Osuna and Ms. Wood, I want to ask you about the effect
of the Supreme Court's decision in the Zadvydas case that I
know you are familiar with. And for those who are not familiar
with it, it limits the length of time that an alien may be
detained.
Usually, if the alien is not removed within 6 months, he or
she must be released, unless the alien is a national security
threat or subject to mandatory detention as an aggravated
felon.
In your experience and in your observation, Mr. Osuna, what
effect does Zadvydas have on current immigration proceedings?
Mr. Osuna. Well, I am not sure it has much effect on the
proceedings themselves. Our immigration judges will hear bond
appeals for people that are detained, whether they are--and
usually it happens before removal proceedings are concluded.
Lately, there is some case law from the Ninth Circuit that
may expand that a little bit. But I am not sure that I see much
effect in terms of the Zadvydas decision itself on the court
system as it exists.
There are implications for detention beyond that, but
nothing necessarily on the immigration court system.
Senator Cornyn. I guess I would broaden my question and say
I am not just focusing on the immigration court system. I am
talking about on our ability to detain and remove aliens who
are ordered, in effect, by the Supreme Court to have to be
released in the community unless they are designated a national
security threat or an aggravated felon.
Ms. Wood, do you have any observations?
Ms. Wood. I think the Zadvydas decision has made it very
difficult for the Agency sometimes to detain individuals who
should be detained and also creates somewhat of a disincentive
for countries that are non-cooperating in terms of getting
cooperation to return people home.
It is incredibly unfair that if you happen to be an
immigrant from a country who is cooperative on removal, then
you are likely to be detained, you are likely to be removed.
But if you are an immigrant from a different country, you are
likely to get a removal order or not and then be released out
into the community and be able to kind of go on with your life.
So the Zadvydas fix that you have looked at over a number
of years I do think makes a lot of sense and would be very
helpful for the Agency as a whole.
Senator Cornyn. If the chairman will allow me just to ask a
quick followup on that.
Senator Franken. Absolutely.
Senator Cornyn. This is something I am not sure most people
really understand and appreciate, that part of our success in
enforcing our own immigration laws is the willingness of the
country of origin to accept those people to come back.
Are there countries that are sort of notorious for not
allowing that or for being particularly difficult in accepting
their own citizens for removal proceedings?
Ms. Wood. There absolutely are countries that have been
kind of historically difficult. China and India are among the
countries that are the most difficult. And it is hard, because
although there are some methods in the law which theoretically
the Agency could use to try to convince those countries to
cooperate, obviously, our dealings with China and India are so
much broader than repatriation of Chinese or Indian nationals.
And so often it is very difficult for the Agency to push
forward with something to help. That is an issue that we worked
on very closely with Secretary Chertoff. I know that this
Administration has worked on it.
And it is really troubling, because at the end of the day,
you have a system that treats people from different countries
differently and that is not what our country is about.
Senator Cornyn. To put a point on it, actually, the alien
can benefit from his or her own country refusing to accept them
back because the Supreme Court has said in Zadvydas, you cannot
detain these people more than 6 months.
Ms. Wood. That is right. And, you know, as a practical
matter, you would not want to be in a position where the Agency
had to detain people for really, really long periods of time if
there was no reasonable likelihood of removal. But this sharp
cutoff and having no alternatives does make it very difficult
and I think hurts our negotiations with foreign countries, as
well.
Senator Cornyn. Mr. Chairman, this morning, I noticed in
the news clips that 513 individuals, I believe, were detained
coming across the border in two trucks, which has to be a world
record, including people from some of the countries that Ms.
Wood mentioned, and this is coming across the U.S.-Mexico
border, people from countries all over the world, because of
the well known pathways and human smuggling routes into the
United States.
Thank you very much.
Senator Franken. Thank you, Senator.
Before I gavel this hearing out, I ask unanimous consent to
place in the record a report by the Katzmann study group, named
for Judge Katzmann of the Second Circuit, on representation of
immigrants.
[The report appears as a submission for the record.]
Senator Franken. I also place in the record a large number
of submissions from pro bono attorneys, law school clinic and
legal aide providers, making suggestions for improvements in to
the immigration courts. Without objection, I so order.
[The information appears as a submission for the record.]
Senator Franken. I would like to thank all of you for your
testimony today. The record will be held open for 1 week for
questions and other materials.
This hearing is adjourned.
[Whereupon, at 12:22 p.m., the hearing was adjourned.]
[Additional material submitted for the record follows.]
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