[House Hearing, 115 Congress]
[From the U.S. Government Publishing Office]









        OVERSIGHT OF THE EXECUTIVE OFFICE FOR IMMIGRATION REVIEW

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

                                HEARING

                               before the

                            SUBCOMMITTEE ON
                    IMMIGRATION AND BORDER SECURITY

                                 of the

                       COMMITTEE ON THE JUDICIARY
                        HOUSE OF REPRESENTATIVES

                     ONE HUNDRED FIFTEENTH CONGRESS

                             FIRST SESSION

                               __________

                            NOVEMBER 1, 2017

                               __________

                           Serial No. 115-31

                               __________

         Printed for the use of the Committee on the Judiciary





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      Available via the World Wide Web: http://judiciary.house.gov 
      
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                       COMMITTEE ON THE JUDICIARY

                   BOB GOODLATTE, Virginia, Chairman
F. JAMES SENSENBRENNER, Jr.,         JOHN CONYERS, Jr., Michigan
    Wisconsin                        JERROLD NADLER, New York
LAMAR SMITH, Texas                   ZOE LOFGREN, California
STEVE CHABOT, Ohio                   SHEILA JACKSON LEE, Texas
DARRELL E. ISSA, California          STEVE COHEN, Tennessee
STEVE KING, Iowa                     HENRY C. ``HANK'' JOHNSON, Jr., 
TRENT FRANKS, Arizona                    Georgia
LOUIE GOHMERT, Texas                 THEODORE E. DEUTCH, Florida
JIM JORDAN, Ohio                     LUIS V. GUTIERREZ, Illinois
TED POE, Texas                       KAREN BASS, California
JASON CHAFFETZ, Utah                 CEDRIC L. RICHMOND, Louisiana
TOM MARINO, Pennsylvania             HAKEEM S. JEFFRIES, New York
TREY GOWDY, South Carolina           DAVID CICILLINE, Rhode Island
RAUL LABRADOR, Idaho                 ERIC SWALWELL, California
BLAKE FARENTHOLD, Texas              TED LIEU, California
DOUG COLLINS, Georgia                JAMIE RASKIN, Maryland
RON DeSANTIS, Florida                PRAMILA JAYAPAL, Washington
KEN BUCK, Colorado                   BRAD SCHNEIDER, Illinois
JOHN RATCLIFFE, Texas
MARTHA ROBY, Alabama
MATT GAETZ, Florida
MIKE JOHNSON, Louisiana
ANDY BIGGS, Arizona
          Shelley Husband, Chief of Staff and General Counsel
       Perry Apelbaum, Minority Staff Director and Chief Counsel
                                 ------                                

            Subcommittee on Immigration and Border Security

              JIM SENSENBRENNER, Jr., Wisconsin, Chairman
                 RAUL R. LABRADOR, Idaho, Vice-Chairman
LAMAR SMITH, Texas                   ZOE LOFGREN, California
STEVE KING, Iowa                     LUIS V. GUTIERREZ, Illinois
JIM JORDAN, Ohio                     PRAMILA JAYAPAL, Washington
KEN BUCK, Colorado                   SHEILA JACKSON LEE, Texas
MIKE JOHNSON, Louisiana              DAVID CICILLINE, Rhode Island
ANDY BIGGS, Arizona































                            C O N T E N T S

                              ----------                              

                            NOVEMBER 1, 2017
                           OPENING STATEMENTS

                                                                   Page
The Honorable Raul Labrador, Idaho, Chairman, Subcommittee on 
  Immigration and Border Security, Committee on the Judiciary....     1
The Honorable Zoe Lofgren, California, Ranking Member, 
  Subcommittee on Immigration and Border Security, Committee on 
  the Judiciary..................................................     3
The Honorable John Conyers, Michigan, Ranking Member, Committee 
  on the Judiciary...............................................     5
The Honorable Bob Goodlatte, Virginia, Chairman, Committee on the 
  Judiciary......................................................    13

                               WITNESSES

Mr. James McHenry, Acting Director, Executive Office for 
  Immigration Review, U.S. Department of Justice
    Oral Statement...............................................     7

                        OFFICIAL HEARING RECORD

Responses to Questions for the Record from Mr. James McHenry, 
  Acting Director, Executive Office for Immigration Review, U.S. 
  Department of Justice

    http://docs.house.gov/meetings/JU/JU01/20171101/106561/HHRG-
      115-JU01-20171101-SD005.pdf
              Additional Material Submitted for the Record

Statement of A. Ashley Tabaddor, President, National Association of 
    Immigration Judges. Submitted by the Honorable Raul Labrador, 
    Idaho, Chairman, Subcommittee on Immigration and Border Security, 
    Committee on the Judiciary. This material is available at the 
    Committee and can be accessed on the Committee Repository at:

        http://docs.house.gov/meetings/JU/JU01/20171101/106561/HHRG-
        115-JU01-20171101-SD003.pdf

Donald Trump promises `deportation force' to remove 11 million and 
    President Trump's Immigration Policy Takes Shape. Submitted by the 
    Honorable John Conyers, Michigan, Ranking Member, Committee on the 
    Judiciary. This material is available at the Committee and can be 
    accessed on the Committee Repository at:

        http://docs.house.gov/meetings/JU/JU01/20171101/106561/HHRG-
        115-JU01-20171101-SD002.pdf

New York City ICARE Juvenile Docket letter, National Association of 
    Immigration Judges, National Immigrant Justice Center, American-
    Arab Anti-Discrimination Committee, American Immigration Council, 
    American Immigration Lawyers Association, Hebrew Immigrant Aid 
    Society, Human Rights First, Kids in Need of Defense (KIND), 
    Lutheran Immigration and Refugee Service (LIRS), National 
    Immigration Law Center, Northern Illinois Justice for Our 
    Neighbors, Tahirih Justice Center, USC International Human Rights 
    Clinic, U.S. Committee for Refugees and Immigrants (USCRI) and 
    Women's Refugee Commission, and The Association of Pro Bono 
    Counsel. Submitted by the Honorable Zoe Lofgren, California, 
    Ranking Member, Subcommittee on Immigration and Border Security, 
    Committee on the Judiciary. This material is available at the 
    Committee and can be accessed on the Committee Repository at:

        https://docs.house.gov/meetings/JU/JU01/20171101/106561/HHRG-
        115-JU01-20171101-SD004.pdf

Statement from the Honorable Sheila Jackson Lee of Texas for the 
    hearing on Oversight of the Executive Office for Immigration 
    Review. Submitted by the Honorable Sheila Jackson Lee, Texas, 
    Member, Subcommittee on Immigration and Border Security, Committee 
    on the Judiciary. This material is available at the Committee and 
    can be accessed on the Committee Repository at:

        http://docs.house.gov/meetings/JU/JU01/20171101/106561/HHRG-
        115-JU01-State-J000032-20171101.pdf

 
        OVERSIGHT OF THE EXECUTIVE OFFICE FOR IMMIGRATION REVIEW

                              ----------                              


                      WEDNESDAY, NOVEMBER 1, 2017

                        House of Representatives

            Subcommittee on Immigration and Border Security

                       Committee on the Judiciary

                             Washington, DC

    The subcommittee met, pursuant to call, at 2:05 p.m., in 
Room 2141, Rayburn House Office Building, Hon. Raul R. Labrador 
[chairman of the subcommittee] presiding.
    Present: Representatives Labrador, Goodlatte, 
Sensenbrenner, King, Jordan, Buck, Johnson, Biggs, Lofgren, 
Conyers, Jackson Lee, and Cicilline.
    Staff Present: Joseph Edlow, Counsel; Maunica Sthanki, 
Minority Counsel; and Sabrina Hancock, Clerk
    Mr. Labrador. The Subcommittee on Immigration and Border 
Security will come to order. Without objection, the chair is 
authorized to declare recesses of the committee at any time.
    We welcome everyone to today's hearing on Oversight of the 
Executive Office for Immigration Review, and now I recognize 
myself for an opening statement.
    Today's oversight hearing focuses on a critical facet of 
U.S. Immigration policy. The Executive Office for Immigration 
Review, or EOIR, is the linchpin of Immigration law as it 
administers, among other components, the U.S. Immigration 
Courts and the Board of Immigration Appeals.
    The adjudication and appeals of immigration matters is of 
critical importance to the proper administration of justice in 
this country, and we must ensure that our immigration laws are 
interpreted as Congress intended.
    As a former immigration practitioner who regularly appeared 
in immigration court, I certainly understand and appreciate 
just how important it is that the courts are administered 
effectively, and in a way that maximizes docket management and 
minimizes fraud and delay.
    Unfortunately, EOIR has been plagued by management problems 
that have consistently hampered its ability to operate the 
courts.
    During the past administration, the Department of Justice's 
Inspector General's office found that the office engaged in 
nepotism and other inappropriate practices.
    These disturbing findings served as a distraction for EOIR 
making it impossible to focus on much-needed improvement.
    Additionally, a 2014 server crash paralyzed the courts 
nationwide for several weeks, again, necessitating the 
allocation of resources away from management and oversight of 
the agencies.
    The policies and practices instituted during the Obama 
administration served a decidedly political agenda throughout 
the Federal Government, and EOIR was not spared.
    Companion memos to those issued by the Department of 
Homeland Security and prosecutorial discretion and 
administrative closure policies raised, at a minimum, the 
specter of collusion between Department of Justice and the 
Department of Homeland Security.
    The prioritization of recent entrants, including the surges 
of unaccompanied minors and family units, likewise, were ill-
advised and poorly executed.
    Ignoring the irrefutable evidence of spikes and asylum 
fraud before the court, EOIR chose its focus based on political 
expediency rather than judicial prudence.
    It is against this backdrop that the incoming leadership 
must begin to restore this agency and where necessary, needs to 
overhaul it.
    Of utmost concern to this subcommittee is the current 
backlog of pending cases. I am appalled, but really not 
surprised, that the previous administration created conditions 
that ultimately resulted in a backlog of almost 630,000 pending 
cases nationwide. This number represents a 22 percent increase 
in fiscal year 2017, and is simply unacceptable. The Government 
Accountability Office's recent report on management practices 
at EOIR and the backlog identified several possible solutions, 
including reforming the hiring process for Immigration judges, 
and updating internal oversight practices to ensure better 
docket management.
    The GAO report noted that continuances were a contributing 
factor to the backlog. The report found that from 2006 through 
2015, the court saw 23 percent increase in the grants of 
continuances.
    I would never suggest that continuances be disallowed. They 
can be valuable for attorney preparation. I've experienced that 
myself for purposes, and are essential and critical evidence 
must still be collected. However, the rash of continuances used 
for the purposes of delay, constitute and abuse of process that 
must be stopped.
    The July 2017 memo from Chief Judge MaryBeth Keller, 
outlining EOIR continuance, is a tremendous step in curbing 
this abuse, but represents only one of the solutions to reduce 
the number of pending cases.
    The GAO report further noted the inefficiencies associated 
with the hiring of additional Immigration judges, as your 
written testimony acknowledged, the Trump administration, 
through its immigration principles, has called for the hiring 
of an additional 370 immigration judges.
    I remain concerned that EOIR must reevaluate hiring 
practices and processes to meet even a fraction of this goal.
    The time between an initial job posting to the actual 
onboarding of a judge must be reduced.
    Finally, I have long spoken about the need to modernize our 
immigration system. One of the key components must be the 
modernization of our immigration courts.
    EOIR currently lags behind other Federal courts in terms of 
basic items, such as filings and other similar items. This was 
never a priority for the previous administration as the U.S. 
immigration courts are one of the last remaining Federal 
adjudicative bodies relying on paper filings.
    Employing an e-filing system would drastically reduce the 
need for more filing space, and overall reduce the number of 
lost filings that could also lead to unnecessary delays.
    In addition, EOIR relies on other technology, such as video 
teleconference system, or VTC, but there are concerns that this 
equipment is either outdated in some locations, or not 
operational at all in others.
    With the challenges facing EOIR today, and the solutions of 
the new administration, I am hopeful that we can work together 
to bring real change to the agency and continue the goals of 
modernizing and reforming our immigration system.
    Before I recognize the gentlewoman from California, I would 
ask unanimous consent to place into the record, a statement 
from Judge Ashley Tabaddor, President of the National 
Association of immigration Judges.
    Without objection, the statement will be placed in the 
record.
    This material is available at the Committee or on the 
Committee repository at: http://docs.house.gov/meetings/JU/
JU01/20171101/106561/HHRG-115-JU01-20171101-SD003.pdf.
    Mr. Labrador. I now recognize our ranking member, Ms. 
Lofgren of California, for her opening statement.
    Ms. Lofgren. The last time the Immigration Subcommittee 
gathered for an EOIR oversight hearing, we heard testimony from 
the former EOIR Director Juan Osuna.
    In August of this year, Juan passed away suddenly, and I 
would like to take a moment to acknowledge his life and service 
to this country. Juan worked for 17 years as a Senior 
immigration legal adviser in the Justice Department for both 
Democratic and Republican administrations. He was a former 
Board of Immigration Appeals Judge and Former Associate Deputy 
Attorney General in charge of immigration policy at the 
Department of Justice. Juan had a remarkable career in public 
service, and he will be greatly missed, and I would like to 
extend my heartfelt condolences to his family over this loss.
    We are assembled here now to take a close look at the 
administration of our immigration court system. The Executive 
Office of Immigration Review currently employs 339 immigration 
judges in 58 courtrooms around the country.
    Immigration judges have a complex, often thankless task of 
making sophisticated legal decisions with decisive speed. 
Because there is no right to government-appointed counsel, 
immigration judges often have to act as a fact-finder and legal 
researcher to ensure that the result in each case is just, 
fair, and in accordance with legal precedent. The difficulty of 
this task is magnified by the severity of the consequences.
    Immigration Judge Dana Leigh Marks has once said that 
immigration proceedings are, quote, ``like death penalty cases 
heard in traffic court.'' This is particularly true for asylum 
seekers, children, and other vulnerable populations.
    Yet despite these difficulties, the Trump administration 
has taken steps towards imposing numeric and performance quotas 
on immigration judges. This could add an additional obstacle to 
the immigration judge juggling act by requiring faster case 
completions with fewer continuances and shorter evidentiary 
hearings.
    In his written testimony, our witness states that ``EOIR is 
transforming its institutional culture to emphasize the 
importance of completing cases.'' He claims that this will 
improve the efficiency of our court system, but I don't think 
it will do more, except increase the number of immigration 
removals, speedy deportations, and, also, increase appeals in 
our Federal court system.
    Much of the discussion today will focus on the immigration 
court backlog and ways that this can be reduced. I want to 
start by saying that Congress must fully fund hiring of 
immigration judges, law clerks, technology, and infrastructure.
    The immigration court backlog will not be fully remedied by 
policy shifts alone, it must include sufficient appropriations. 
But the immigration backlog is not one that happened overnight. 
There are reasons for the backlog.
    First, immigration enforcement, specifically funding for 
ICE and CBP, far outpace the funding for immigration courts.
    From 2002 to the present day, funding for immigration 
enforcement increased by over 400 percent. ICE and CBP went 
from a budget of $4.5 billion in 2002 to over $20 billion in 
2017. In contrast, EOIR's budget increased only 70 percent.
    This means that at the same time ICE and CBP are funneling 
cases into the immigration court system, the courts are not 
given requisite amounts of resources to adjudicate with speed 
and efficiency, and it's created a massive bottleneck and 
backlog, which we're seeing today.
    EOIR currently has approximately 640,000 cases pending, and 
in some courts, immigrants can wait 3 to 5 years to receive a 
final decision on their case.
    Immigration judges currently have an average caseload of 
close to 1900 cases. For perspective, the average caseload of 
U.S. District court judge is 440.
    Second, under both the Obama and Trump administration, EOIR 
implemented policy that prioritize cases at the southern border 
to the detriment of cases in the interior of the country.
    Under President Obama, EOIR implemented a rocket docket 
that expedited the cases of recent border crosses. These cases 
primarily consisted of children and families from Central 
America who were fleeing violence and seeking asylum. This EOIR 
implemented a last-in-first-out strategy, which meant that 
removal cases of immigrants who had been waiting for months or 
years were further delayed.
    Now, under the Trump administration, EOIR moved immigration 
judges from already backlogged courts to detention centers 
along the southern border. NewsPedia reports that many of these 
judges sat in empty courtrooms with little to do.
    In his written testimony, our witness states that the 
mobilized judges completed approximately 2,700 more cases than 
expected if they had not been detailed, but what he fails to 
mention is that these so-called surge of immigration judges, 
over 20,000 non-detained immigration court hearings were 
rescheduled.
    We all agree that our border must remain secure and 
immigration courts must ensure that those who enter our country 
seeking protection be afforded due process and a full and 
impartial hearing in a prompt manner, but this cannot come at 
the expense of immigration court backlogs in the interior of 
the country.
    And lastly, one of the primary reasons for the immigration 
court backlog is a continued lack of representation, 
particularly for children and other vulnerable populations.
    When a respondent, particularly a child, appears in 
immigration court without legal representation, an immigration 
judge will spend a considerable amount of time assessing the 
child and determining her legal options. This is precisely what 
a judge should do when a vulnerable child is presented in a 
courtroom without legal representation, but it, nevertheless, 
creates delays for other respondents.
    The National Association of Immigration Judges has 
explained that, quote, ``When noncitizens are represented by 
attorneys, immigration judges are able to conduct proceedings 
more expeditiously and resolve cases more quickly.'' This 
conclusion is supported by outside economic consulting firms, 
which found that government-funded counsel would actually save 
the country $38 million through expedited hearing process and 
reduced detention. That's why I'm proud to be the lead sponsor 
for the Fair Day in Court for Kids Act. My bill would provide 
government counsel to children, and, particularly, vulnerable 
individuals. This would help reduce the immigration court 
backlog, save the government money, and ensure that the due 
process rights of children are protected.
    I hope my Republican colleagues will join me in sponsoring 
this bill, and I look forward to a substantive discussion on 
our immigration court system today. And I yield back the 
balance of my name.
    Mr. Labrador. Thank you, Ms. Lofgren. I would now like to 
recognize the full committee ranking member, Mr. Conyers of 
Michigan, for his opening statement.
    Mr. Conyers. Thank you, Chairman Labrador. And I want to 
let my colleague from California know that I am a cosponsor of 
her legislation with great pride.
    Members of the committee and to our distinguished witness, 
I, too, want to note the passing of Juan Osuna who served as 
the director of the Executive Office of Immigration Review, and 
who testified before this subcommittee in that capacity.
    Mr. Osuna was a model public servant who devoted the last 
17 years of his life to the Department of Justice. He was of a 
consummate professional, known for his leadership and the 
ability to balance access to justice with court efficiency. And 
I'm sure he's deeply missed by the Department and those that 
work with him there.
    Now, turning to the focus of today's hearing, we have an 
important opportunity to consider the current challenges facing 
the Executive Office for Immigration Review, particularly under 
the current administration.
    To begin with, rather than the rule of law, is guiding 
immigration court policy under the Trump administration: the 
anti-immigrant ideology.
    Now, after all, since the earliest days of his campaign, 
now-President Trump has shown troubling disregard for that 
rule. He's attacked the judiciary, issued an unprecedented 
pardon of a sheriff convicted of criminal contempt of court, 
and fired the FBI Director during an ongoing investigation by 
that agency into his own campaign.
    Unfortunately, the Executive Office for Immigration Review 
appears to have not escaped this broad erosion of rule of law 
principles based on the administration's policies that threaten 
judicial independence, due process, and fundamental fairness 
within our immigration courts.
    First, media accounts report that the Trump administration 
could impose numerical and time-based case quotas on 
immigration judges.
    All of us, regardless of party, support commonsense 
measures for reducing immigration court backlogs, but quotas 
are not the solution. Their implementation would force already 
overstretched judges to hurry through lengthy dockets 
regardless of the circumstances of individual cases. Hearings 
would become lightning fast, fundamentally unfair, and devoid 
of due process. In short, a quota system would turn immigration 
courts into a forced march toward deportation.
    Secondly, the administration issued a memorandum 
effectively pressuring judges to deny motions for continuances, 
which often represent a vulnerable immigrant's only chance for 
obtaining counsel essential to protecting his or her rights.
    Together, with case quotas, this will force many 
respondents, even young children, to face Immigration and 
Custom Enforcement prosecutors without counsel, which all but 
ensures their unjust removal.
    Thirdly, the Executive Office for Immigration Review has 
moved to strip children in immigration proceedings of other 
vital protections. In a callous break with prior policy, the 
agent's office of general counsel issued an opinion concluding 
that immigration judges may revoke minors, unaccompanied alien 
child status, and associated legal safeguards. As with the 
first two measures, this will substantially increase removal of 
minors.
    The common denominators among these three measures are 
clear: far less due process and fairness; far more 
deportations, which is anything but the rule of law.
    Instead, these policies undermine that rule in the service 
of the President's anti-immigrant ideology, intended to drive 
immigrants out of the United States.
    Our task today must be to gain a greater understanding of 
how this administration's Executive Office for Immigration 
Review policies concretely advance that agenda and how they 
serve to further his mass deportation plan.
    I thank Acting Director McHenry for his appearance before 
the subcommittee and look forward to a substantive dialogue 
with him on these critical matters.
    I thank the chair, and yield back any time that may be 
remaining.
    Mr. Labrador. Thank you, Mr. Conyers.
    Without objection, other members' opening statements will 
be made a part of the record.
    We have a distinguished panel here today, a panel of one. 
And the witness' written statement will be entered into the 
record in its entirety.
    I ask that you summarize your testimony in 5 minutes or 
less. To help you stay within that time, there is a timing 
light on your table. When the light switches from green to 
yellow, you will have 1 minute to conclude your testimony.
    When the light turns red, it signals that your 5 minutes 
have expired. I will give you a little bit of leeway because 
you're the only witness, but don't go much beyond the 5 
minutes.
    And before I introduce our witness, I would like you to 
stand and be sworn in.
    Do you swear that the testimony you're about to give is the 
truth, the whole truth and nothing but the truth?
    Mr. McHenry. I do.
    Mr. Labrador. Let the record reflect that the witness 
answered in the affirmative.
    Thank you. Please be seated.
    Mr. McHenry was appointed Acting Director of the Executive 
Office for Immigration Review on May 30th, 2017.
    Prior to his appointment, he served as the Deputy Associate 
Attorney General in the Office of the Associate Attorney 
General. He was previously an administrative law judge for the 
Office of Disability Adjudication and Review in the Social 
Security Administration. Mr. McHenry has also worked as an 
attorney for the U.S. Immigration and Customs Enforcement.
    Mr. McHenry earned a bachelor of science from the 
Georgetown University School of Foreign Service, a master of 
art in political science from the Vanderbilt University 
Graduate School, and a juris doctor from the Vanderbilt 
University Law School.
    I now recognize Mr. McHenry for his statement.

 STATEMENT OF JAMES McHENRY, ACTING DIRECTOR, EXECUTIVE OFFICE 
  FOR IMMIGRATION REVIEW, UNITED STATES DEPARTMENT OF JUSTICE

    Mr. McHenry. Thank you, Mr. Chairman, Representative 
Lofgren, and other distinguished members of the subcommittee.
    Thank you for the opportunity to speak with you today about 
the Department of Justice's Executive Office for Immigration 
Review, or as we affectionately call it, EOIR.
    This is my third stint with the agency during my government 
career, and I have a deep respect for EOIR's mission.
    I began my legal career as a judicial law clerk at EOIR for 
immigration judges, and then I returned to the agency several 
years later as an administrative law judge.
    I am honored to now serve as its Acting Director and to be 
able to appear before you to discuss some of the challenges and 
opportunities it currently faces.
    At EOIR, our primary mission is to adjudicate immigration 
cases by fairly, expeditiously, and uniformly interpreting and 
administering the Nation's immigration laws.
    We do that under delegated authority from the Attorney 
General by conducting immigration court hearings, 
administrative hearings, and appellate reviews.
    The last several years have raised significant challenges 
for EOIR as policy changes and docket management practices have 
contributed to a pronounced increase in pending immigration 
cases. EOIR's pending caseload currently is approximately 
640,000, which is an all-time high. The caseload has almost 
tripled since fiscal year 2009, and doubled since fiscal year 
2012.
    Addressing this caseload is a top priority for the agency. 
And EOIR has formulated a multi-front plan to achieve our goal 
of expeditiously reducing the number of pending cases while 
maintaining due process.
    We are actively implementing a number of initiatives 
towards that goal that I'm happy to talk about today.
    First, we're increasing our adjudicatory capacity by hiring 
more immigration judges. We've hired 61 new judges since 
January 1, and we're in the process of filling up to 42 
additional positions utilizing a new streamlined hiring process 
announced by the Attorney General earlier this year.
    Second, we are maximizing our existing adjudicatory 
capacity by addressing both docket inefficiencies and unused 
courtroom capacity. For example, earlier this year, we issued 
guidance to assist immigration judges with fair and efficient 
docket management practices related to continuances.
    We have also implemented a policy of ``no dark courtrooms'' 
by expanding our use of video teleconferencing, and by rehiring 
retired immigration judges on a part-time basis to hear cases 
as needed, when permanent immigration judges are unavailable.
    Third, we are transforming EOIR's institutional culture and 
improving its infrastructure by focusing on reorienting the 
agency towards its core mission of adjudicating cases, and by 
upgrading our infrastructure to switch from a paper-based to an 
electronic-based system. We are committed to piloting an 
electronic filing system in 2018.
    Fourth, we are working with our Federal partners, 
particularly at the Department of Homeland Security, to ensure 
that any influx, sudden influx of new cases, does not undermine 
our efforts.
    Fifth, we are reviewing all of our internal regulations and 
policies to evaluate ways in which our own guidance may be 
utilized more effectively in the disposition of pending cases.
    All these initiatives are beginning to yield some signs of 
progress. For instance, in fiscal year 2017, our judges 
completed approximately 20,000 more cases than they did the 
prior fiscal year and the most cases overall since fiscal year 
2012. But we know that more challenges lie ahead of us.
    There are two other EOIR programs that I would like to 
mention for the subcommittee, for they are also integral to the 
overall success of the agency.
    First, we have expanded our Fraud and Abuse Prevention 
program, and in June, I issued a directive reminding all EOIR 
employees of their responsibility to report suspected fraud and 
abuse, particularly in regard to applications for relief or 
protection in immigration proceedings. EOIR has no tolerance 
for misrepresentations or fraud in our system.
    Second, we have reinvigorated our strategic planning and 
analytics division, which has been underutilized in the past 
few years. None of our efforts can be successful without solid 
data analysis, and we are pleased to have a robust analytics 
division to aid us in our policy development and 
implementation.
    Mr. Chairman, Representative Lofgren, I am proud of EOIR 
and proud of its employees, and I am also proud to highlight 
some of the progress that we have made.
    However, we are also cognizant that more work needs to be 
done. Nevertheless, we are confident that with the continued 
support of the Department of Justice and Congress, we will 
continue to make significant strides in 2018 in reversing some 
of the negative trends of the recent past.
    Thank you again, and I am pleased to answer any questions 
you may have.
    Mr. McHenry's written statement is available at the 
Committee or on the Committee Repository at: http://
docs.house.gov/meetings/ju/ju01/20171101/106561/hhrg-115-ju01-
wstate-mchenryj-20171101. pdf.
    Mr. Labrador. Thank you, Mr. McHenry. We will now proceed 
under the 5-minute rule with questions.
    I will begin by recognizing myself for 5 minutes.
    Mr. McHenry, how many immigration judges do you anticipate 
hiring and onboarding in the upcoming fiscal year?
    Mr. McHenry. It's hard to say for the entire fiscal year. 
We have 19 that are currently in the pipeline, and we're in the 
process of hiring up to 42 additional ones. So that would be a 
total of 61. Beyond that, it will be depend on factors, such as 
availability, retirements, and things like that. But at least 
61 by the spring of next year.
    Mr. Labrador. What step is EOIR taking to begin the process 
of converting to an e-filing system?
    Mr. McHenry. We have had several meetings with our Office 
of Information Technology, and I have made it clear, in no 
uncertain terms, that e-filing and electronic case system is an 
absolute priority for the agency.
    We have begun piloting--well, we have begun developing a 
process to pilot an electronic filing system next year, but 
it's more than just an electronic filing system; it's an 
overall electronic case management system.
    We're in the process of developing the prototype for it now 
and soliciting additional feedback, but I am confident that we 
will have a pilot of some type in one or more immigration 
courts by 2018.
    Mr. Labrador. Okay. Judge Keller's memorandum of July 2017 
provided the framework for continuances in immigration court. 
How is EOIR able to enforce that memorandum and ensure that 
immigration judges are not overtly ignoring it when ruling on 
continuances?
    Mr. McHenry. The memorandum, by its own terms, it's an 
operating policies and procedures memorandum, doesn't direct a 
determination in specific cases. It does remind judges, 
however, of considerations they should keep in mind regarding 
docket efficiencies when entertaining certain types of 
continuance requests.
    That memorandum was issued at the end of July, so we've 
just come upon about a 3-month window since it went into 
effect, and we're just now getting the data to analyze it.
    Once we review the data and see what it shows, then we'll 
take appropriate steps, if necessary, to go back and revisit 
it.
    Mr. Labrador. Do you have any preliminary findings from the 
data you've looked at so far?
    Mr. McHenry. We had a couple of initial findings, but there 
seem to be some data quality issues, and that's why we're going 
back and double-checking them.
    Mr. Labrador. Okay. Much of today's hearing focuses on the 
backlog, which as previously stated, stands at about 630,000 
pending cases. To what extent do you believe that the 
reallocation of resources and judges to so-called priority 
dockets of unaccompanied minors and family units beginning in 
2014 contributed to the backlog?
    Mr. McHenry. I don't believe there's any question that it 
contributed to the backlog in a significant way. A measurement 
of the precise magnitude is perhaps a little difficult to come 
by, but it's clear, especially unaccompanied alien children 
cases, they typically take longer to resolve than other cases, 
other immigration cases for various reasons. So by putting them 
to the front of the line, you put cases that take longer to 
resolve first and then you continue cases that otherwise might 
have been resolved in their place. So it's had a significant 
impact, as I said, though, I'm not sure that we can----
    Mr. Labrador. So it's almost the opposite of triage. That 
we actually put the ones that takes the longest in the 
beginning instead of taking care of the ones that we could 
handle right away.
    Mr. McHenry. It was a system that was counterproductive, I 
think, to its stated goal of trying to resolve the cases more 
quickly.
    Mr. Labrador. Does EOIR still prioritize these cases?
    Mr. McHenry. We changed our priorities for the third time 
in 3 years in January of this year. That was before I became 
Acting Director, so I can't speak entirely to the process that 
drove that.
    Currently, our priorities regarding unaccompanied children 
are only those who are in the custody of the Department of 
Health and Human Services. Other unaccompanied alien children 
are no longer considered a priority. But I can say that within 
the agency, within EOIR as a whole, myself, my senior 
management team, are reviewing our overall priorities in 
general and looking at whether that priorities memo, the last 
one that we issued, is still the best statement of how we look 
at cases.
    Mr. Labrador. As EOIR is considering instituting certain 
performance metrics for immigration judges, including possible 
case completion goals, how would you expect such metrics to 
impact the current backlog?
    Mr. McHenry. Well, EOIR already operates under a number of 
performance metrics, some of those are established by the 
Immigration and Nationality Act. Some of those have been 
developed by the Government Performance and Results Act, or 
GPRA. Those results have been positive so far, the goals that 
we do have. We would anticipate if we develop new goals, and 
we've been recommended to do those by the GAO, the Office of 
the Inspector General, by Congress. If we develop those new 
goals, we would expect the judges to be able to comply with 
those as well. We feel our judges are professional enough that 
they can understand the importance of adjudicating cases, while 
at the same time, maintaining due process in each individual 
case.
    Mr. Labrador. So according to tract data, the average 
number of days that a case is pending before the immigration 
court is 691. It seems that it is meaningless for ICE to 
apprehend individuals and place them into removal proceedings 
if they will then be in limbo for over 2 years before there is 
final disposition of their case.
    What is EOIR doing to reduce this average number of days 
pending?
    Mr. McHenry. On data, I think, I don't have it in terms of 
days, I have it in terms of months, of the average pending non-
detained case is approximately 21 months. But we are trying to 
reduce that. As I mentioned, we're looking at docketing 
efficiencies, we're looking at instituting specialized dockets 
to try to consolidate cases, achieve efficiencies of scale. 
We're also committed to no more dark courtrooms. Whenever we 
have a judge who is absent, we're going to have, either by VTC 
or rehired--retired immigration judge, be able to hear those 
cases in their absence. Together, that should start to bring 
the average down.
    Mr. Labrador. Thank you very much.
    I now recognize the gentlelady from California, Ms. 
Lofgren.
    Ms. Lofgren. Thank you, Mr. Chairman. It's good news that 
we're making progress on the electronic case filing system. So 
that would be, I think there's unanimous support here for that 
success.
    I do have some concerns, however, about some of the other 
proposals. I wanted to raise an issue, first, about the--what I 
understand is disbanding the juvenile court docket in New York 
City.
    It's my understanding that almost the highest amount of pro 
bono service was provided to children in New York. And I'd like 
to ask unanimous consent, Mr. Chairman, to enter into the 
record a letter from Kids in Need of Defense, Safe Passage 
Project, and The Legal Aid Society of New York, and The Door 
about the closure of this docket. Can you explain the decision 
in this case? Or am I incorrect?
    This material is available at the Committee or on the 
Committee repository at: https://docs.house.gov/meetings/JU/
JU01/20171101/106561/HHRG-115-JU01-20171101-SD004.pdf.
    Mr. McHenry. My understanding is that occurred in January 
of this year. I was not at EOIR at the time, so I can't speak 
to what was the driving force behind it. I do know, as I 
alluded to a moment ago, we issued a new priorities memo about 
the same time that limited the types of unaccompanied alien 
child cases that were considered priorities. So I assume that 
had something to do with it, but I can't speak to it directly.
    Ms. Lofgren. You know, in immigration removal proceedings, 
we all know that the government doesn't provide lawyers. And I 
think it was one Supreme Court decision that described 
immigration law as close to the complexity of tax law. I think 
they described it as ``bugs on the page.'' That's problematic 
for an adult, but for a child, it's very challenging. There are 
children, some as young as 3 or 4, representing themselves in 
immigration court.
    In 2016, Assistant Chief Immigration Judge Jack Weil made 
the claim that he was able to teach 3- and 4-year-olds to 
represent themselves in immigration court. Do you believe it's 
possible for a 3- or 4-year-old to represent themselves in 
immigration court?
    Mr. McHenry. I can't speak for Judge Weil directly.
    Ms. Lofgren. No, but I asked what you think.
    Mr. McHenry. But our judges don't teach the law. That's not 
their role. Their role is to adjudicate the case.
    Ms. Lofgren. No, I understand that. But do you think a 3- 
or 4-year-old has the legal capacity to understand the 
consequences of their statements, the validity of immigration 
claims?
    Mr. McHenry. As the parent of a 4-year old, I can say no.
    Ms. Lofgren. Thank you. I have 2-year-old twin grandsons, 
so heading towards 4.
    Thinking about the need to get representation for these 
kids--I won't ask you to comment on my bill--but you're going 
to have continuances because judges have an obligation to 
uphold due process and fairness. And I'm just wondering whether 
you might be willing to revisit the decision in New York and to 
take a look about how we could enhance representation of 
children, not only for fairness to them, but for efficiency in 
the system?
    Mr. McHenry. I will look into that.
    Ms. Lofgren. I would like to talk also about the hiring 
issues. In your testimony, you talk about streamlining the 
hiring process. And it reminded me of the concern that we had 
here in 2008 when the Bush administration went on a hiring 
spree, and the Department of Justice found that Monica Goodling 
and others violated the Federal law and committed misconduct 
when they considered political and ideological affiliations 
when selecting immigration judges, and the EOIR's hiring 
process was reformed to prevent that from ever happening again.
    Have you changed those standards that were implemented 
following that hiring scandal to expedite, or are they 
basically the same and you're moving through them quicker?
    Mr. McHenry. The process is very similar. It's still 
conducted according to merit systems principles.
    The new process, however, has specific deadlines that each 
component has to meet. That's one of the things that makes it 
faster and more streamlined.
    Ms. Lofgren. I'd like to just close with this: We remember 
when John Ashcroft was Attorney General. And streamlined 
measures at the Board of Immigration Appeals, which resulted in 
lack of opinions, which caused a flood of appeals to the Court 
of Appeals. And I'm concerned--and as a matter of fact, the 
immigration judges have written to us indicating their concern 
that these metrics are going to result in the same kind of 
flood of appeals to the court of Appeals. And that rather than 
making the process more efficient, the change--and this is a 
quote from their letter--``will encourage individual and class 
action litigation creating even more backlogs.''
    We certainly do need to have efficiency in the system, but 
I am concerned, as are the judges, that having these metrics is 
going to backfire on us.
    And I would ask unanimous consent, Mr. Chairman, to place 
in the record a letter from the--a statement from the National 
Immigrant Justice Center, letter from 13 immigration groups--
and did you put the letter from the judges in the record 
already?
    Mr. Labrador. Yes.
    Ms. Lofgren. Okay. Then I will not ask for that.
    Mr. Labrador. All right.
    Ms. Lofgren. Unanimous consent?
    Mr. Labrador. Without objection.
    This material is available at the Committee or on the 
Committee repository at: https://docs.house.gov/meetings/JU/
JU01/20171101/106561/HHRG-115-JU01-20171101-SD004.pdf.
    Ms. Lofgren. Thank you. And I yield back.
    Mr. Labrador. The chair now recognizes the chairman of the 
full committee for his statement.
    Chairman Goodlatte. Thank you, Mr. Chairman. I apologize 
for being late, but I do appreciate your holding this hearing 
on a very important subject.
    The Executive Office for Immigration Review is charged with 
the administration of the U.S. immigration courts and the Board 
of Immigration Appeals. As a component of the Department of 
Justice, EOIR has the task of adjudicating immigration cases, 
and ultimately interpreting the immigration laws enacted by 
Congress.
    I am pleased that today, we can conduct our critical 
oversight role and hear more about the future of our 
immigration court system.
    Just as in any other court matter or appeal, the onus is on 
the trier of fact to ensure that the law is applied correctly, 
and that justice ultimately prevails.
    Over the past several years, this committee has engaged in 
review, both in an oversight capacity, and in the form of 
legislative action of the Obama administration's failed 
immigration policies. The politicization of the immigration 
courts and the clear bias by former individuals in top 
administration jobs, have led to a degradation of the courts.
    The U.S. immigration courts, and, to a lesser extent, the 
BIA, are often thought of as a policy mechanism of whatever 
administration is in office. This was unfortunately illustrated 
by guidance aimed at ensuring that immigration judges were 
playing their role in carrying out the Obama DACA initiative.
    While politics certainly played a role, mismanagement of 
the agency and the apparent lack of any meaningful guidance on 
docket control has resulted in an explosion of pending cases, 
some with hearing dates more than 5 years from now.
    The allocation of resources to so-called priority dockets 
have left the typical non-detained alien without resolution, 
but with almost certain ability to receive work authorization 
in the United States.
    Rampant continuances or postponements of both initial and 
merit hearings have further escalated this backlog, which has 
reached epic proportions.
    As we know, the GAO identified several sources for the 
backlog. I am eager to hear about EOIR plans to hire additional 
immigration judges to implement best management practices and 
to potentially set some metrics for case completion.
    Make no mistake, immigration judges must be autonomous and 
without bias while hearing cases and rendering decisions. But 
they must also be mindful of all components of the 
administration of justice.
    Needless changes of venue or continuances made in bad faith 
for the purpose of delay are detrimental to our system and 
should not be tolerated.
    It may turn out that legislative action is the best 
recourse to ensure that no matter what administration is in 
charge and what their principles may be, EOIR will have clear 
statutory parameters under which to function. I look forward to 
hearing from our witness on that issue.
    There is no question that Congress must take action to 
reform many facets of immigration law in an attempt to ensure 
national security and streamline the process. But those actions 
will mean little if EOIR continues to lag behind the rest of 
the system.
    Resource allocation must be prioritized to ensure that 
detailed judges have full dockets and incoming judges have 
courtrooms waiting. EOIR plays a vital role within the U.S. 
immigration system and the time has long past to make necessary 
reforms.
    I'm encouraged by the steps taken in the past 10 months to 
address some of the issues already raised, and I look forward 
to hearing more about that.
    Mr. McHenry, welcome. Thank you for your work. And I'll 
start with a question on the extent to which additional 
immigration judges in courts along the border accelerate 
removal proceedings, especially for those aliens referred 
following a positive credible fear determination. What's your 
opinion on that?
    Mr. McHenry. I haven't seen a specific proposal, and we 
would have to take into consideration a number of logistical 
factors, staffing, personnel, things like that. If the idea 
would be to send them to detention facilities, we would also 
have to coordinate that with the Department of Homeland 
Security. So in the absence of a specific proposal, I'm not 
sure I can give a broad opinion.
    Chairman Goodlatte. The GAO noted that a strategic 
workforce plan was needed at EOIR in order to better anticipate 
workforce concerns, including the eventual replacement of 
immigration judges eligible for retirement.
    As 39 percent of immigration judges are currently eligible 
for retirement, has a workforce plan been created and 
implemented at the agency?
    Mr. McHenry. We completed the plan, actually, just before I 
became the Acting Director. And we've set up a staffing 
committee subsequently that's doing a top-to-bottom review of 
all positions within immigration courts. So that plan is in 
motion.
    As to the immigration judge retirements, that's been a 
common issue that we've heard in the past. With the number of 
actual retirements averages fewer than 10 per year over the 
past decade. So the number hasn't quite gotten to a critical 
point.
    Even if it were greater, we believe, under the new 
streamlined hiring plan, we're able to replace those judges 
within 6 months that wouldn't have a strong negative effect as 
it has in the past.
    Chairman Goodlatte. Thank you.
    Going back to my first question. What would you--I think we 
all agree that you need more judges. Do you agree with that?
    Mr. McHenry. Yes.
    Chairman Goodlatte. Okay. So how would you deploy those 
judges?
    Mr. McHenry. We would look at a variety of factors. We 
would look at where the dockets are the most critical, where we 
have the largest dockets, but we also have to be mindful of 
space, personnel, logistical issues, things like that. We 
maintain sort of a running review of different locations around 
the country. We have cases broken down by Zip Code, by 
location. But we have to consider all of those factors in 
making determinations as to where we're going to deploy the 
next judges.
    Chairman Goodlatte. Thank you.
    Thank you, Mr. Chairman.
    Mr. Labrador. Thank you, Mr. Chair. And the chair will now 
recognize the gentleman from Michigan, the ranking member of 
the full committee, Mr. Conyers.
    Mr. Conyers. Thank you very much, Mr. Labrador.
    Mr. McHenry, I understand that you're the chief 
administrator for immigration court system, and that you were 
recently appointed to this position under the Trump 
administration.
    Now, as you and all of us are aware, President Trump has 
repeatedly promised to deport all 11 million undocumented 
immigrants. You're aware of that, I presume?
    Mr. McHenry. I've heard that reported.
    Mr. Conyers. You've heard it, yeah.
    This committee has marked up legislation that would 
unfortunately implement President Trump's vision for mass 
deportation. And these plans often involve expediting removal 
hearing, streamlining immigration court procedures and denying 
legal representation.
    Now, under your watch, do you believe that the immigration 
court system will implement a mass deportation agenda?
    Mr. McHenry. Our judges adjudicate immigration cases that 
are brought to us by the Department of Homeland Security. So I 
would defer any questions about their enforcement actions to 
them. I can't speak for that agency.
    Our judges adjudicate the cases that are brought in front 
of them. They adjudicate them in a professional and dedicated 
manner, based on the facts and the evidence that are before 
them. And they ensure that due process is met.
    Mr. Conyers. Well, I'm not asking them. I'm asking you what 
you think about it?
    Mr. McHenry. About? I'm sorry.
    Mr. Conyers. Well, the plans of the President are such that 
I want to know if you believe the immigration court system will 
implement a mass deportation agenda?
    Mr. McHenry. I can't speak fully, and I'm not entirely sure 
what mass deportation agenda means in this context.
    Mr. Conyers. Deporting all 11 million undocumented 
immigrants.
    Mr. McHenry. Our immigration judges aren't involved in the 
actual deportation or removal of aliens. They make 
determinations as to whether an alien or someone is removable 
in the first instance, and then they make a second 
determination whether that person is entitled to relief or 
protection from removal.
    Mr. Conyers. Well, that gets us right back to where we 
began. That's what they do, is determine removal. That's two 
steps you mentioned.
    Mr. McHenry. But they do also determine relief and 
protection from removal as well.
    Mr. Conyers. Yes. But I'm asking you about President 
Trump's promise, or threat, to deport all 11 million 
undocumented immigrants. And all I want to know is that, do you 
believe that the immigration court system might implement a 
mass deportation agenda?
    Mr. McHenry. Again, it's not the role of the immigration 
courts to implement any particular agenda. They adjudicate the 
cases that are brought to them by the Department of Homeland 
Security and issue decisions, either based on removability, or 
based on protection and relief from removal.
    Mr. Conyers. You don't think they're influenced by 
President Trump's public position on this question?
    Mr. McHenry. I have confidence that our judges apply the 
law in each particular case to the facts and evidence of that 
case, and they make their best decisions based on the evidence 
before them.
    Mr. Conyers. Well, do you believe that President Trump's 
promise or threat has any bearing or influence upon them at 
all?
    Mr. McHenry. I can't speak to the mindset of all of our 
judges. As I said, I do have confidence that they carry out 
their duties to the best of their abilities, the best of their 
understanding of the law, based on the facts and the evidence 
of each case that comes before them.
    Mr. Conyers. Well, do you believe that the policies 
implemented by the Executive Office for Immigration Review may 
lead to mass deportation?
    Mr. McHenry. Our policies are not outcome-determinative, 
and they are not implemented with any specific outcome in a 
particular case in mind.
    Our policies are essentially outcome-neutral. We're trying 
to resolve more cases, but we're not trying to reach any 
particular outcome one way or the other.
    Mr. Conyers. Well, I know, but you mean they may be 
neutral, but the policies may lead to mass deportation anyway, 
or they could. Or you may think that they wouldn't. I mean, in 
other words, I'm not asking you how they operate, but if there 
was implemented such a--such a policy, would this lead to mass 
deportation?
    Mr. McHenry. I'm not sure I understand which policy in 
particular.
    Mr. Conyers. The policies that I've just mentioned, that 
President Trump has repeatedly promised to deport 11 million, 
all 11 million undocumented immigrants.
    Mr. McHenry. I haven't seen a specific proposal as to how 
that would impact EOIR.
    Mr. Conyers. Well, I didn't say you did see it----
    Mr. Labrador. The gentleman's time has expired.
    Mr. Conyers. I ask for consent for one additional minute, 
sir.
    Mr. Labrador. Without objection, but I think you've asked 
him the same question, like, seven different ways and he's 
answered your question, so I'm not sure what else you want the 
gentleman to do but----
    Mr. Conyers. So could I get a minute?
    Mr. Labrador. You can get an additional 30 seconds, yes.
    Mr. Conyers. 30 seconds. Well, thank you very much.
    Mr. Labrador. It's already 2 minutes over the time.
    Mr. Conyers. Do you, Mr. McHenry, believe that the policies 
implemented by the Executive Office for Immigration Review will 
protect the due process rights of immigrants?
    Mr. McHenry. All the processes, or all of the policies that 
EOIR has implemented, at least since I've been Acting Director, 
due process is certainly a significant consideration.
    Mr. Conyers. Is it fair for me to assume that you've said 
yes?
    Mr. McHenry. Yes.
    Mr. Conyers. Okay. Last question. In recent Executive 
Office for Immigration Review announcements, the minimum 
qualifying experience required to apply has been changed from 7 
years of relevant legal experience to 7 years of litigation in 
government-instituted proceedings.
    Can you think of any kinds of legal examples, of any kinds 
of legal experiences that would qualify as litigation in 
government-instituted proceedings?
    Mr. McHenry. With respect, Congressman Conyers, I believe 
that's a misreading of the advertisement that we sent out. The 
advertisements, I actually had occasion to look at this, 
because we got an inquiry to our Public Affairs Office on that 
very point not too long ago. The advertisement actually says a 
full 7 years of experience in either litigation or 
administrative proceedings at the Federal, State, or local 
level. It doesn't require, and it's not limited to proceedings 
that were just initiated by the government. That's one example 
that's given in the advertisement, but it's not the only 
example.
    Mr. Labrador. All right. The gentleman's time has expired. 
Thank you.
    Mr. Conyers. I thank you very much, Mr. Chairman.
    Mr. Labrador. And I recognize Mr. King, the gentleman from 
Iowa.
    Mr. King. Thank you, Mr. Chairman. Mr. McHenry, thank you 
for your testimony.
    I'm just listening to the gentleman from Michigan in his 
discussion about the alleged effort to round up and deport 11 
million people. I still haven't heard anyone advocate for that 
that seems to be for it. I make that point, but I'm also, I'm 
looking at the overruns here, I'll call it, the 691 days, the 
average wait for resolution, and 630,000 pending cases, and 
your intent to hire at least 61 new judges by spring.
    And I'm wondering what your opinion would be if we were 
able to, and in short order, by spring--we won't get it done 
that soon--but build a 2,000 mile wall, 30 feet high. And if we 
were able to do that successfully, what would that, how would 
that impact your caseload over the longer term?
    Mr. McHenry. Ultimately, I can't answer that. It's----
    Mr. King. I know.
    Mr. McHenry [continuing]. Speculative and a bit of a 
hypothetical at this point. Moreover, DHS, the Department of 
Homeland Security would have primary responsibility for the 
wall and for border crossers. So a lot of it would depend on 
their actions and I would have to defer to them.
    Mr. King. But I don't think it takes Department of Homeland 
Security to answer the question, if we build an impermeable 
wall all the way down to hell and all the way up to heaven, 
what would happen to your caseload?
    Mr. McHenry. Again, I can't speak to that.
    Mr. King. Sure, you can.
    Mr. McHenry. It's a little too speculative for me to speak 
to.
    Mr. King. But if you had no one crossing the border--I 
guess I have to put this in some different terms. If no one 
crossed the border, yet, all done, then what happens to your 
caseload?
    Mr. McHenry. Well, the other factors would have----
    Mr. King. Well, excuse me. I want to rephrase that. If no 
one can cross the border, now what happens to your caseload?
    Mr. McHenry. There are other factors we would still have to 
consider. Some of our caseload is driven by interior cases. 
Individuals come in----
    Mr. King. Does it go up or does it go down?
    Mr. McHenry. Again, I can't speak to it----
    Mr. King. Can you, can you--all right. How many judges does 
it take, then, to deplete this caseload down to a reasonable 
time?
    Mr. McHenry. We've run several estimations, and we've asked 
for additional judges. I think up to a total of 700 is where it 
really starts to turn around.
    Mr. King. Judges?
    Mr. McHenry. Yes.
    Mr. King. It's not a surprise to me to hear a number like 
that. It's actually not very often we get someone that lays out 
a proposal to get there. And then, how many judges does it take 
to maintain the current flow?
    Ms. Lofgren. Could the gentleman restate--I didn't hear 
what you said in terms of the number. I'm sorry, Mr. King.
    Mr. King. I've forgotten.
    Ms. Lofgren. You said the number of judges, and I didn't 
hear what you said.
    Mr. McHenry. Yeah, we currently have authorization for 384. 
The next budget request brings it up to 449. The President has 
outlined a policy that would add 370. That gets to 
approximately 700.
    Ms. Lofgren. Thank you.
    Mr. King. Now if I could go back to where I was. And that 
would be the question of, if you get up to that number that's 
the number that you said it takes to deplete your caseload down 
to a reasonable turnover time.
    How many judges does it take to maintain it at the current 
level that cases are coming in the door?
    Mr. McHenry. I don't know that I have the analytics or the 
data on that in front of me.
    Mr. King. That's curious. How many judges does it take to 
get this under control, about how many does it take to maintain 
it are two separate questions that I would think would answer 
before you would have the answer to the first question.
    Mr. McHenry. Well, we're actually, because we're focused on 
reducing it and bringing it down to a manageable level, we 
haven't studied sort of maintaining the status quo. That may be 
part of it.
    Mr. King. I see. And when you're evaluating the applicants, 
I listened to the gentlelady from California talk about the 
Monica Goodling case, and I recall her testifying here before 
this committee in this room. And I would ask the question: Do 
you, when you evaluate the applicants, do you examine their 
bios carefully?
    Mr. McHenry. We look at their resumes. They typically 
have----
    Mr. King. And that's it?
    Mr. McHenry. Yeah, they typically have to submit a resume.
    Mr. King. If they don't put it on the resume, then do you 
go beyond that?
    Mr. McHenry. I think the last ad required a resume. I know 
in prior ads, we required law school transcripts. Going back a 
few years, I think we've also required letters of 
recommendations but our most----
    Mr. King. What about professional affiliations or NGO 
affiliations?
    Mr. McHenry. Those have never been required, to my 
knowledge.
    Mr. King. Never required. So you could have someone there 
whose job is to bring about a legitimate adjudication that 
maybe had a long history with LULAC or MALDEF or La Raza or 
ACLU or SPLC, and you wouldn't know that?
    Mr. McHenry. Our immigration judges, I think, represent a 
wide variety of careers. I mean, we run some numbers on that 
because it's an issue that comes up. And I think the vast 
majority of them have worked for many different organizations, 
entities, and government agencies throughout their careers.
    Mr. King. You know, if I were to request that information 
in a more precise fashion, would you be able to deliver that?
    Mr. McHenry. I think all of the biographies of most of them 
are online currently.
    Mr. King. Then I just, in my concluding question here is, 
as the attorney advisers, can you tell me how they are chosen?
    Mr. McHenry. Which----
    Mr. King. Attorney advisers, those that might be chosen to 
write or give an opinion?
    Mr. McHenry. Are you talking at the Board of Immigration 
Appeals level, or at the immigration court level, or at some 
other agency or some other component of EOIR?
    Mr. King. Why don't you tell me both of them?
    Mr. McHenry. Our judicial law clerks are typically hired 
through the honors program every fall. Those go to the 
immigration courts. They typically serve for 2 years and then 
go onto some other career.
    Mr. King. Okay. That's how you choose. But how do the 
case--how are the cases chosen? Is it a random selection 
process? How are they assigned?
    Mr. McHenry. The cases at which level?
    Mr. King. At the board level.
    Mr. McHenry. There are panels and teams that are assigned. 
I don't have the specific mechanics in front of me though.
    Mr. King. But you don't either testifying that it's a 
random selection process?
    Mr. McHenry. Well, they do--they're required by regulation 
to have screening panels, so there are panels that look at the 
cases on the front end to determine if they're subject to 
summary dismissal or something like that.
    Mr. King. I'll follow up with that in written request. And 
I thank you, Mr. McHenry. And I yield back the balance of my 
time.
    Mr. Labrador. Thank you.
    The chair will now recognize Mr. Cicilline for 5 minutes.
    Ms. Lofgren. May I ask unanimous consent to put in the 
record the letter from the Association of Pro Bono Counsel?
    Mr. Labrador. Without objection.
    This material is available at the Committee or on the 
Committee repository at: https://docs.house.gov/meetings/JU/
JU01/20171101/106561/HHRG-115-JU01-20171101-SD004.pdf.
    Mr. Labrador. The gentleman is now recognized. The chair 
recognizes Mr. Cicilline.
    Mr. Cicilline. Thank you, Mr. Chairman.
    I'm sure, sir, that you are aware that there is tremendous 
disparity in the asylum grant rates by our immigration judges. 
As recently as 2006, the Government Accountability Office 
confirmed this disparity noting that, for example, the grant 
rate in the New York Immigration Court was 52 percent, while 
the grant rates at the Omaha, Atlanta, and Bloomington, 
Minnesota, courts were less than 5 percent.
    The GAO additionally found that this disparity persisted, 
even holding constant various case and judge characteristics. 
These jurisdictions with grant rates of 2 and 15 percent have 
earned the name ``asylum-free zones,'' and include Houston, 
Dallas, Charlotte, Atlanta, and Las Vegas. The asylum denial 
rate in Atlanta, for example, is 98 percent. Almost no one is 
granted asylum.
    I understand that you were an ICE trial attorney in 
Atlanta, and some of your colleagues at both DOJ and DHS are 
also former ICE trial attorneys from Atlanta. There have been 
reports that the goal of EOIR, and possibly even the goal of 
DHS, is to replicate the Atlanta model for the rest of the 
country with the goal of driving down asylum grant rates to 
minuscule percentages.
    Do you think that the Atlanta courts with a 98 percent rate 
of asylum denial is the model that other immigration courts 
should be following? And is there any discussion, overtly or 
implicitly, in suggesting that model be followed?
    Mr. McHenry. I'm not sure that we have a model, sort of a 
one-size-fits-all for any of our immigration courts----
    Mr. Cicilline. It's not a one-size-fits-all. My question 
is, is that model of that rate of denial is something that you, 
as the leader of the office, are promoting, or there's an 
active effort to use that as a standard?
    Mr. McHenry. As I mentioned a moment ago, the policies that 
we've implemented are not driven by any particular outcomes. 
They're designed to be outcome-neutral. We're not looking to 
make one court like any other court. In fact, it would be 
inappropriate for us to start going into specific cases to tell 
judges which cases they should deny or which ones they should 
grant.
    Mr. Cicilline. Well, I mean, you don't think that that rate 
of 98 percent denial that the Atlanta courts follow ought to be 
a model followed by other immigration courts?
    Mr. McHenry. No. As I indicated, we don't believe there's 
one standard model, whether it's a court that grants a lot of 
cases or a court that denies a lot of cases. We're not--our 
role is not to go in and pick and choose which cases should be 
granted, or which ones should not.
    Mr. Cicilline. No, I recognize you don't pick and choose. I 
guess my question is, does it concern you--this is a second 
question--that that kind of disparity exists?
    Mr. McHenry. We've looked at this, because this concern has 
been raised before, but it's difficult to compare sort of 
apples and oranges once you start looking at specific or 
individual cases. Cases that may look the same on the surface 
turn out not to be the same down below.
    Mr. Cicilline. Yeah. Well, thank you very much. I mean, it 
is not so difficult to do--courts do this all the time. They do 
an analysis of sentencing, and they do an analysis of charging 
and they are able to control for the different jurisdictions 
and different judges. There's lots of good ways to do that. So 
I would urge you to look at this disparity and pay close 
attention to it, because I think it undermines confidence in 
the system.
    The second thing I want to discuss with you, and I 
apologize if someone mentioned this while I was out of the 
room, but this report that we have been hearing, that the 
Department of Justice plans to use a numeric and time-based 
completion quotas to evaluate the performance of immigration 
judges with the idea, I presume, that someone would either be 
rewarded or disciplined for failing to complete a certain 
number of cases in a particular period of time.
    I take it that you will publicly reject that idea, and that 
is not the plan to actually use the number of cases and the 
time it takes as a method of deciding whether or not a judge is 
doing his or her job?
    Mr. McHenry. As I mentioned earlier, EOIR already operates 
under a number of performance metrics. Some of them are set by 
the Immigration Nationality Act. Others we've developed----
    Mr. Cicilline. Do any of those metrics involve the number 
of cases you complete and how long it takes you to complete 
them?
    Mr. McHenry. Yes. The Immigration Nationality Act, Section 
235, requires credible fear reviews to be conducted within 7 
days. There's also a time limit for asylum applications in 
Section 208.
    Mr. Cicilline. Other than requirements by statute of 
meeting a certain deadline, are there other evaluations of 
immigration court judges that relate to how quickly or how many 
cases they resolve?
    Mr. McHenry. We've developed standards under the Government 
Performance and Results Act that also looks at similar 
measures. And, in fact, for detained cases----
    Mr. Cicilline. Similar to what? What do you mean, similar 
measures?
    Mr. McHenry. In terms of completing cases, moving cases 
more efficiently, that sort of thing.
    Mr. Cicilline. So are you telling me, sir, that you 
currently evaluate, in part, the performance of immigration 
judges based on the number of cases and the period of time of 
which it takes them to resolve those cases?
    Mr. McHenry. It's not part of the individual judge's 
performance work plan currently, but it is numbers that we do 
track because we keep that data to make the process better.
    Mr. Cicilline. You intend to make it part of the 
performance plan of individual judges?
    Mr. McHenry. That's something I can't get into, but that 
still requires some additional discussions with the union, so 
it's not appropriate for me----
    Mr. Cicilline. It's something you're pursuing?
    Mr. McHenry. It's something that we're looking at again in 
consultation with the union.
    Mr. Cicilline. So, Mr. Chairman, I would just ask an 
indulgence for one moment. The National Association of 
Immigration Judges explains that this sort of effort would be, 
and I quote, a huge, huge, huge encroachment on judicial 
independence. It's trying to turn immigration judges into 
assembly line workers.
    And I would ask, again, that you reject publicly the idea 
that you would use simply the numbers of cases or the amount of 
time it takes to complete immigration work as a measure of the 
quality of a judge's work. I think it turns our judicial system 
and proceedings such as this on their head.
    And with that, I yield back.
    Mr. Labrador. Thank you.
    Just a follow-up question, Mr. McHenry. There is a split in 
the circuits, right, as to asylum law and all these different 
areas, so wouldn't that yield different results in different 
areas?
    Mr. McHenry. Well, there are a number of reasons for the 
discrepancy in the rates. Not only are there differences in 
circuits, but many asylum applications are denied for reasons 
that are unrelated to the merits. An individual may be denied 
asylum, but granted withholding of removal or some other form 
because they didn't file for asylum on time, or because there's 
some criminal ground.
    There are a number of explanations for the disparities, but 
it becomes difficult to sort of get down to that level of 
granularity without essentially re-deciding each case.
    Mr. Labrador. All right. Thank you.
    I now recognize the gentleman from Arizona.
    Mr. Biggs. Thanks, Mr. Chairman.
    Thank you, Mr. McHenry, for being here.
    The Trump administration is considering expedited removal 
procedures to increase those who can be immediately removed 
from the United States without first appearing before an 
immigration judge. In the past, this group has included illegal 
aliens caught within 100 miles of the border, and within 2 
weeks of entry.
    Reports say that could be expanded nationwide and to aliens 
who cannot prove they have been in the United States for at 
least 2 years. Do you think such a policy would be beneficial 
in eliminating the number of new cases that come before a 
court?
    Mr. McHenry. Expedited removal is a policy that's 
undertaken by the Department of Homeland Security. I'd have to 
defer to them on any questions about it.
    Mr. Biggs. You don't--you can't make any assessment on 
whether that might decrease, because the number of people that 
would be in that pool that would normally come before a court--
you don't know--you can't assess whether that would actually 
decrease your----
    Mr. McHenry. It would be speculative for me to say, because 
there are a number of exceptions to expedited removal that are 
already enshrined in the statute. And we'd have to take into 
account all of those before giving any sort of impact on our 
caseload.
    Mr. Biggs. You said in your opening statement that--and I'm 
going to give a rough quote, because I was trying to get it 
while you were saying it--that you were concerned that the new 
influx doesn't overwhelm our capabilities. And I wondered what 
you meant by that, and if you would expand on that, please?
    Mr. McHenry. I don't want to speak for the Department of 
Homeland Security, but my understanding is they have their own 
adjudicatory backlog concerns, so we have to make sure that we 
don't get swamped by any sudden influx of new cases that they 
bring to us.
    Mr. Biggs. Okay. And you talked about fraud in your opening 
statement and in your--and in your summary--or excuse me, in 
your document that you provided to us. Please tell me a little 
more about fraud, and more specifically, how you are dealing 
with fraud?
    And with the amount of backlog that you have, I am 
interested in the number of fraud complaints being below--looks 
like it's below 200. Explain to me what that--how that impinges 
on the backlog?
    Mr. McHenry. Well, we've--the Fraud and Abuse Prevention 
program was set up in the mid-2000s. And we've sort of tried to 
revitalize it or reinvigorate it in the past few months. The 
number of referrals that are coming in from the field has gone 
up, I think, over 100 percent.
    I also issued a memo earlier this year to remind all the 
employees, all of our employees, including immigration judges, 
that they do have a duty and a responsibility to report fraud 
misrepresentations where they see them. So we are starting to 
see an increase. Some of those are still in investigations, so 
I can't really speak to them directly. But it looks like we're 
trying to ensure that our employees are focused on that.
    In terms of the backlog, obviously, any misrepresentations 
undermine the integrity of the system. They cause cases to have 
to be delayed to investigate allegations, things like that. The 
more that we can root out fraud, the more efficient our system 
is going to be.
    Mr. Biggs. And I get the impression that you're not 
satisfied with a very--basically a fraction of a point of fraud 
detection and apprehension?
    Mr. McHenry. I wouldn't say that we have a specific target 
in mind, but we do know anecdotally there are a number of 
instances that are out there, a number of instances have been 
reported in the past few years. So we are marshaling all of our 
efforts to make sure we can root it out as much as possible 
throughout our proceedings.
    Mr. Biggs. So after an order of final removal is issued, 
what's the process for removal?
    Mr. McHenry. I would defer that to the Department of 
Homeland Security. They're responsible for actually executing 
the order of removal.
    Mr. Biggs. And so you would not know how many individuals 
are currently present in the U.S. without a final order--or 
excuse me, with a final order for removal?
    Mr. McHenry. I would not.
    Mr. Biggs. Okay. What penalty occurs for those who commit 
fraud in the system?
    Mr. McHenry. It would depend on the nature of the fraud. I 
mean, it could be anything from a criminal penalty to a 
sanction to the denial of an application, to a permanent 
ineligibility for most benefits.
    Mr. Biggs. And in the criminal--in the field of criminal 
law, everybody has a certain period of time before they--their 
case has to actually be adjudicated and completed.
    So, for instance, if you're in custody, it may be 90 days; 
if you've been in custody but you've been released, it's 120; 
and if you've never been in custody, maybe 150 days, depending 
on the State and the rules that govern.
    What's the rule for immigration cases? Do you have any 
deadline for somebody who has to make an appearance and 
actually adjudicate the case?
    Mr. McHenry. For a typical removal case, there's nothing 
like the Speedy Trial Act or something like that.
    Mr. Biggs. Thanks, Mr. Chairman.
    Mr. Johnson [presiding]. The gentleman yields back.
    The chair recognizes Ms. Jackson Lee from Texas for 5 
minutes.
    Ms. Jackson Lee. Let me thank the witness and thank the 
chairman and the ranking member. This is an important hearing.
    But I think, as some of my colleagues know, periodically, 
I've taken just a moment--and I guess it will be just a brief 
moment--to reassert, even as we discuss these vital issues, 
that in light of the indictments on Monday, October 30, we are 
not really focusing on the institutions that are important to 
stabilizing our government.
    So I hope that I will place on the record the concern that 
many of us have that we've not begun to look at the questions 
of obstruction of justice, collusion in the 2016 election with 
Russia, and, frankly, the beginning of the Mueller special 
counsel work is not ending, but it is beginning, and to ensure 
that we discuss any prohibition or any stopping of the 
administration attempting to fire Director Mueller.
    So I wanted to place that on the record even as we 
questioned the witness. And, Mr. McHenry, thank you so very 
much for your presence here today.
    I introduced legislation dealing with the need for 
immigration judges, and continuing to do so. At that time, I 
asked for 75 new judges. Did I hear you correctly that you are 
seeking to--or I think they're not immigration judges, you're 
looking to do sort of attorney advisers for 61? What was the 61 
number that you were trying to do?
    Mr. McHenry. We have 19 immigration judges currently in the 
hiring pipeline, and we've had three advertisements since July 
for up to 42 additional positions that we're in the process of 
also filling. So we expect or anticipate getting 61 additional 
immigration judges on board by the spring of next year.
    Ms. Jackson Lee. So we are speaking of judges?
    Mr. McHenry. Yes.
    Ms. Jackson Lee. Permanent immigration judges?
    Mr. McHenry. Yes.
    Ms. Jackson Lee. And so my number 75 was not unrealistic. I 
would encourage you to raise that number and the administration 
to raise that number.
    Now, we have a different perspective on how--what we 
perceive this court to do. Do you seek judges who adhere to due 
process and the recognition that immigrants have a right to 
present their case fully?
    Mr. McHenry. We expect all judges that we hire, after we 
train them, that they will respect the due process rights and 
apply the law as they see fit to the case and facts before 
them. We advertise and we hire from a wide range or wide 
variety of backgrounds when we select immigration judges.
    Ms. Jackson Lee. Well, you were asked by a colleague of 
mine whether or not you distinguish, or you weed out, 
individuals who may have differing legal backgrounds, whether 
they were on the defense side of the immigrant bar, whether 
they were individuals from the ACLU or various other advocacy 
groups. Do you do that? Do you weed them out?
    Mr. McHenry. No, ma'am, we do not. We--all of our hiring is 
conducted according to merit systems principles. We don't 
require any information regarding any organizations or anything 
like that that individuals belong to. We evaluate them based on 
the resume, interviews, writing samples, things like that.
    Ms. Jackson Lee. And, Mr. McHenry, this is not a personal 
offense. Can I take you at your word? Because obviously, we 
come from different sides of the aisle and may have a different 
perspective. But I think your answer is more than a credible 
answer.
    I know that you're a member of the bar, so am I, and not 
the drinking bar. And I hope that you would really be saying to 
me what is fact and truth and how you will implement that 
process. Is that--am I to understand that?
    Mr. McHenry. Again, all----
    Ms. Jackson Lee. Is that your accurate and true 
representation of what occurs and will occur?
    Mr. McHenry. All of our hiring is conducted according to 
merit systems principles, so we don't consider things like 
race, religion, political opinion, things like that.
    Ms. Jackson Lee. And, therefore, you do not attempt to 
exclude because of race, religion, or other aspects?
    Mr. McHenry. No, we don't screen out any particular 
candidates one way or the other.
    Ms. Jackson Lee. Let me raise this question with you, if I 
might. And I want to read this story. I know that we went down 
this line of questioning before, but I think this is important.
    The former majority leader, Senator Reid, often talked 
about an experience that he had in immigration court. Some of 
us had this experience where we saw the unaccompanied children. 
I was actually at the border with my colleague, Congresswoman 
Lofgren, and we saw children who were fleeing persecution.
    But in this instance, the child was 5 years old, clutching 
a doll as she appeared before the judge. She was barely tall 
enough to see over the microphone. The judge asked her a series 
of questions to which she had no response.
    Finally, after several non-responses, the judge asked her 
the name of her doll. She responded, Baby Baby Doll. That 
concluded the hearing. Baby Baby Doll. So do you think in the 
hiring of judges that that would be an effective way to run a 
courtroom of the judges that you might be hiring?
    Mr. McHenry. I can't speak to that specific example. I'm 
not familiar with that case or that incident. But I do know 
that our judges, once they are hired, they receive--they 
undergo a rigorous training program that includes training on 
handling different types of cases, including juveniles, 
unaccompanied alien children, things like that.
    Ms. Jackson Lee. Well, that's a 5-year-old. And do you 
believe that in that instance, putting aside the very fine way 
in which you're going to be hiring judges, if you were in the 
back of the room, would that be an appropriate way--we haven't 
called the judge's name so we're not going to be citing who the 
judge was. But the point is, would that be an appropriate way 
for a 5-year-old to be handled in a proceeding?
    Mr. McHenry. As I said, I can't comment on the specifics of 
that because I don't know the context or the background or any 
other factors. As I said, I do know our judges are trained to 
handle these types of cases.
    Ms. Jackson Lee. But common sense would say, if you just--
not on the facts, and that's an answer that we as lawyers 
give--common sense, if you just were in the back of the room 
and that was the end of the case, would you argue that that 
child needed at least representation or better understanding of 
what was going on?
    Mr. McHenry. Well, the issue of children and representation 
is in litigation, I can't comment on that specifically. As I 
said, in that particular case, I'm not familiar enough with the 
example. I would need to know more about the context and the 
facts.
    Ms. Jackson Lee. Just one more point on that. Would you 
think that this approach that may be being proposed by the 
administration of quotas, meaning that judges have a cycle of 
which they have to meet, and meet certain numbers of processing 
cases, would that be effective if a child was in the courtroom?
    Mr. McHenry. I'm not sure I understand the question.
    Ms. Jackson Lee. If the judge has to run through his or her 
cases, and a child happens to come before it as a petitioner in 
the courtroom unrepresented, so I'm not obviously--or 
represented, is that quota still going where you have to run 
through these cases or allowing a child to understand what was 
happening in the courtroom?
    It takes a little bit more time, doesn't it? Under this 
quota system, is the judge going to be allowed to take the time 
necessary to give a fair hearing to an immigrant or defense, or 
petitioner's position?
    Mr. McHenry. I have confidence that our judges can 
efficiently and effectively move cases and dispose of those 
cases while maintaining due process in individual cases, yes.
    Mr. Johnson. The gentlelady's time has expired.
    Ms. Jackson Lee. That is an adherence that you--that's a 
commitment that you're making based on your testimony?
    Mr. McHenry. I believe our judges are professional enough 
to be able to expeditiously adjudicate cases in conjunction 
with the mission of EOIR while maintaining due process.
    Ms. Jackson Lee. We will be watching. Thank you very much.
    Mr. Conyers. Mr. Chairman, may I have unanimous consent to 
enter into the record two documents that, one, ``Donald Trump 
Promises Deportation Force to Remove 11 Million People''; and 
the second, ``President Trump's Immigration Policy Takes 
Shape'' prioritizing almost all undocumented immigrants for 
deportation?
    Mr. Johnson. Without objection.
    This material is available at the Committee or on the 
Committee repository at: http://docs.house.gov/meetings/JU/
JU01/20171101/106561/HHRG-115-JU01-20171101-SD002.pdf.
    Mr. Conyers. Thank you, sir.
    Ms. Jackson Lee. Mr. Chairman----
    Mr. Johnson. Yes.
    Ms. Jackson Lee [continuing]. I want to put a question on 
the record for answer in writing, please.
    Mr. Johnson. Without objection.
    Ms. Jackson Lee. The question is, and I'll just--it's just 
very brief, the media is reporting that the Department of 
Justice--and I used this previously, but this is the specific 
question--the Department of Justice plans to use numeric and 
time-based case completion quotas to evaluate immigration judge 
performance, and that's obviously for compensation or to 
maintain that judge.
    And so I'd like our Director to answer the question, 
whether that is accurate and whether that will mean that judges 
will be dismissed or disciplined because they take extra time 
to hear the cases of those who need extra time, whether it's a 
child, whether it's an elderly, whether it's a disabled, or any 
kind of petitioner before the court.
    I'd like to know how that matches with your 
recommendation--not your recommendation, but your agency's work 
juxtaposed with the Department of Justice's representation 
about quotas and numeric time-based completion of their work?
    Mr. Johnson. Thank you. Mr. McHenry, you can answer that in 
writing at a later time.
    The gentlelady yields back. And the chair will yield myself 
the remaining time of the hearing here.
    Mr. McHenry, there's been some discussion back and forth 
about handling of minors' cases, juvenile cases. There is, in 
fact, a set of rules and procedures that would apply to those 
types of cases, correct?
    Mr. McHenry. Well, we have--I mean, they are both--
depending on the exact facts of the particular case, there's 
both law and regulations that would govern it. We also have an 
operating policies and procedures memorandum that details--
gives additional guidance to the judges on how to handle 
juvenile cases.
    Mr. Johnson. Thank you.
    As a result of the fraud and abuse prevention program that 
you've discussed today, do you anticipate, with regard to 
asylum cases, that we'll see a further decline in asylum grant 
rates as a result of these efforts?
    Mr. McHenry. Again, I can't speculate because each asylum 
case is determined based on the evidence and the facts before 
it, so I can't speculate to what the future rates will hold.
    Mr. Johnson. There was a recent report issued by the 
Government Accountability Office that found that EOIR failed on 
numerous procedures across the agency to adequately prevent 
asylum for all in the adjudication process. We've talked a lot 
about that today. And they recommended regular fraud risk 
assessments across the asylum claims in the courts.
    You may have referenced this already this morning, but many 
of us had to come in and out. Have you consulted the GAO's 
specific representations that they issued in that report?
    Mr. McHenry. I have. My understanding is my general 
counsel's office, they've completed one of the first risk 
assessments and we're still reviewing the results of that.
    Mr. Johnson. So none of that has been implemented yet, is 
that--you're in the process of implementing risk assessments. 
Is that right?
    Mr. McHenry. My understanding is it has been conducted, at 
least the initial one, but we're still reviewing the results of 
what came back.
    Mr. Johnson. Could you get to us later a quick summary of 
what you find with that? I'm sure a lot of us would be 
interested in it.
    This is--personally, you were a former judge. And do you 
agree that judges face greater difficulties in assessing an 
individual's statements being true or not when they're not 
recorded electronically? Isn't that--wouldn't that be of 
benefit to the judges to have electronically recorded 
statements?
    Mr. McHenry. Speaking as a judge, every judge I know wants 
as much evidence as they can possibly get.
    Mr. Johnson. And it is easier to determine, is it not, 
whether someone is being consistent in their statements if you 
have an electronic recording of what they've said prior?
    Mr. McHenry. I think that's typically correct, yes.
    Mr. Johnson. And you've testified earlier that those 
efforts are underway, that you're--I think the words you said--
ramping up, or someone said ramping up the technology in what 
you're able to do in these proceedings?
    Mr. McHenry. In terms of our electronic filing and our 
electronic case adjudication, yes.
    Mr. Johnson. Does that also extend to the recording of 
statements? Is that something you're working on?
    Mr. McHenry. That's something that DHS would handle. We 
don't--we record our hearings, of course, but individual 
statements or anything that occurs outside of the hearing, I'd 
have to defer to DHS for that.
    Mr. Johnson. Okay. Well, there's no further questions, and 
we want to thank you for attending today. This concludes the 
hearing.
    Without objection, all members have 5 legislative days to 
submit additional written questions for the witness, or 
additional materials for the record.
    With nothing further, the hearing is adjourned.
    Mr. McHenry. Thank you.
    Mr. Johnson. Thank you.
    [Whereupon, at 3:33 p.m., the subcommittee was adjourned.]

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