[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
         
         
         
         
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]         
         
         
         
         
                                     

                         U.S. GOVERNMENT PUBLISHING OFFICE 

20-274 PDF                     WASHINGTON : 2016 
-----------------------------------------------------------------------
  For sale by the Superintendent of Documents, U.S. Government Publishing 
  Office Internet: bookstore.gpo.gov Phone: toll free (866) 512-1800; 
         DC area (202) 512-1800 Fax: (202) 512-2104 Mail: Stop IDCC, 
                          Washington, DC 20402-0001       
         
         
      
         
         
         
         
         
         
         
         
         
         
         
         
         
         
         
         
         
         
         
         

                       COMMITTEE ON THE JUDICIARY

                  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.]

                            A P P E N D I X

              Additional Material Submitted for the Record

[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT] 






                                 [all]