[House Hearing, 117 Congress]
[From the U.S. Government Publishing Office]


                     FOR THE RULE OF LAW, AN INDEPENDENT 
                               IMMIGRATION COURT

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

                                HEARING

                               BEFORE THE

              SUBCOMMITTEE ON IMMIGRATION AND CITIZENSHIP

                                 OF THE

                       COMMITTEE ON THE JUDICIARY

                     U.S. HOUSE OF REPRESENTATIVES

                    ONE HUNDRED SEVENTEENTH CONGRESS

                             SECOND SESSION

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                       THURSDAY, JANUARY 20, 2022

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                           Serial No. 117-50

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         Printed for the use of the Committee on the Judiciary
         
[GRAPHIC NOT AVAILABLE IN TIFF FORMAT]         


               Available via: http://judiciary.house.gov
               
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                    U.S. GOVERNMENT PUBLISHING OFFICE                    
47-087 PDF                 WASHINGTON : 2022                     
          
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                       COMMITTEE ON THE JUDICIARY

                    JERROLD NADLER, New York, Chair
                MADELEINE DEAN, Pennsylvania, Vice-Chair

ZOE LOFGREN, California              JIM JORDAN, Ohio, Ranking Member
SHEILA JACKSON LEE, Texas            STEVE CHABOT, Ohio
STEVE COHEN, Tennessee               LOUIE GOHMERT, Texas
HENRY C. ``HANK'' JOHNSON, Jr.,      DARRELL ISSA, California
    Georgia                          KEN BUCK, Colorado
THEODORE E. DEUTCH, Florida          MATT GAETZ, Florida
KAREN BASS, California               MIKE JOHNSON, Louisiana
HAKEEM S. JEFFRIES, New York         ANDY BIGGS, Arizona
DAVID N. CICILLINE, Rhode Island     TOM McCLINTOCK, California
ERIC SWALWELL, California            W. GREG STEUBE, Florida
TED LIEU, California                 TOM TIFFANY, Wisconsin
JAMIE RASKIN, Maryland               THOMAS MASSIE, Kentucky
PRAMILA JAYAPAL, Washington          CHIP ROY, Texas
VAL BUTLER DEMINGS, Florida          DAN BISHOP, North Carolina
J. LUIS CORREA, California           MICHELLE FISCHBACH, Minnesota
MARY GAY SCANLON, Pennsylvania       VICTORIA SPARTZ, Indiana
SYLVIA R. GARCIA, Texas              SCOTT FITZGERALD, Wisconsin
JOE NEGUSE, Colorado                 CLIFF BENTZ, Oregon
LUCY McBATH, Georgia                 BURGESS OWENS, Utah
GREG STANTON, Arizona
VERONICA ESCOBAR, Texas
MONDAIRE JONES, New York
DEBORAH ROSS, North Carolina
CORI BUSH, Missouri

          AMY RUTKIN, Majority Staff Director & Chief of Staff
               CHRISTOPHER HIXON, Minority Staff Director
                                 ------                                

              SUBCOMMITTEE ON IMMIGRATION AND CITIZENSHIP

                     ZOE LOFGREN, California, Chair
                    JOE NEGUSE, Colorado, Vice-Chair

PRAMILA JAYAPAL, Washington          TOM McCLINTOCK, California, 
J. LUIS CORREA, California               Ranking Member
SYLVIA R. GARCIA, Texas              KEN BUCK, Colorado
VERONICA ESCOBAR, Texas              ANDY BIGGS, Arizona
SHEILA JACKSON LEE, Texas            TOM TIFFANY, Wisconsin
MARY GAY SCANLON, Pennsylvania       CHIP ROY, Texas
                                     VICTORIA SPARTZ, Indiana

                     BETSY LAWRENCE, Chief Counsel
                    ANDREA LOVING, Minority Counsel
                           
                           
                           C O N T E N T S

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                       Thursday, January 20, 2022

                                                                   Page

                           OPENING STATEMENTS

The Honorable Zoe Lofgren, Chair of the Subcommittee on 
  Immigration and Citizenship from the State of California.......     2
The Honorable Tom Tiffany, a Member of the Subcommittee on 
  Immigration and Citizenship from the State of Wisconsin........     3
The Honorable Jerrold Nadler, Chair of the Committee on the 
  Judiciary from the State of New York...........................    11

                               WITNESSES

The Honorable Mimi E. Tsankov, President, National Association of 
  Immigration Judges
  Oral Testimony.................................................    13
  Prepared Testimony.............................................    16
Elizabeth J. Stevens, Of Counsel, Poarch Thompson Law, 
  Representing the Federal Bar Association
  Oral Testimony.................................................    23
  Prepared Testimony.............................................    25
Karen T. Grisez, Pro Bono Counsel, Fried, Frank, Harris, Shriver 
  & Jacobson LLP, Representing the American Bar Association
  Oral Testimony.................................................    33
  Prepared Testimony.............................................    35
The Honorable Andrew R. Arthur, Resident Fellow in Law and 
  Policy, Center for Immigration Studies
  Oral Testimony.................................................    44
  Prepared Testimony.............................................    46

          LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING

Articles submitted by the Honorable Tom Tiffany, a Member of the 
  Subcommittee on Immigration and Citizenship from the State of 
  Wisconsin for the record
  An article entitled, ``Del Rio Sector Encountering Migrants 
    from Around the World,'' U.S. Customs and Border Patrol......     6
  An article entitled, ``Border agents nab murderers, sex 
    offender, gang members in 2 days,'' Fox News.................     8
Reports submitted by the Honorable Pramila Jayapal, a Member of 
  the Subcommittee on Immigration and Citizenship from the State 
  of Washington for the record
  A report entitled ``Access to Counsel in Immigration Court,'' 
    American Immigration Lawyers Association.....................   114
  A report entitled ``Evaluation of the New York Immigrant Family 
    Unity Project: Assessing the Impact of Legal Representation 
    on Family and Community Unity,'' Vera Institute of Justice...   142
An article entitled ``In Philly immigration court, a judge is 
  replaced after delaying man's deportation,'' Philadelphia 
  Inquirer, submitted by the Honorable Mary Gay Scanlon, a Member 
  of the Subcommittee on Immigration and Citizenship from the 
  State of Pennsylvania for the record...........................   220
Items submitted by the Honorable Zoe Lofgren, Chair of the 
  Subcommittee on Immigration and Citizenship from the State of 
  California for the record
  Statement from the Advocates for Human Rights..................   226
  Statement from the American Immigration Lawyers Association 
    (AILA).......................................................   228
  Statement from the Asian Pacific Institute on Gender-Based 
    Violence.....................................................   232
  Statement from the Bipartisan Policy Center....................   236
  Statement from the Center for Gender & Refugee Studies (CGRS)..   240
  Statement from the Coalition for Humane Immigrant Rights 
    (CHIRLA).....................................................   267
  Statement from Human Rights First..............................   271
  Statement from Immigration Hub.................................   274
  Statement from Immigrant Legal Defense (ILD)...................   275
  Statement from the Innovation Law Lab and the Southern Poverty 
    Law Center (SPLC)............................................   278
  A report entitled ``Bearing Witness: A report of the Cleveland 
    Immigration Court Monitoring Project,'' Jobs With Justice 
    (JWJ)........................................................   323
  Statement from Kids in Need of Defense (KIND)..................   342
  Statement from The Leadership Conference on Civil and Human 
    Rights.......................................................   347
  Statement from the National Immigrant Justice Center (NIJC)....   350
  Statement from the National Immigration Forum..................   359
  Statement from the National Immigration Law Center (NILC)......   361
  Statement from the National Immigration Project of the National 
    Lawyers Guild (NIPNLG).......................................   365
  A report entitled ``Report on the Independence of the 
    Immigration Courts,'' New York City Bar Association's 
    Immigration and Nationality Law Committee....................   369
  Statement from the Niskanen Center.............................   397
  Statement from the Ohio Immigrant Alliance.....................   406
  Statement from the Round Table of Former Immigration Judges....   415
  Statement from the Tahirih Justice Center......................   427

                                APPENDIX

Items submitted by the Honorable Zoe Lofgren, Chair of the 
  Subcommittee on Immigration and Citizenship from the State of 
  California for the record
  An articles entitled, ``We Have Nothing to Fear but 
    `Sovereignty Fear' Itself *,'' Yale Journal on Regulation....   432
  A statement from The Alliance for Justice......................   433

 
         FOR THE RULE OF LAW, AN INDEPENDENT IMMIGRATION COURT

                       Thursday, January 20, 2022

                        House of Representatives

              Subcommittee on Immigration and Citizenship

                       Committee on the Judiciary

                             Washington, DC

    The Committee met, pursuant to call, at 2:00 p.m., via 
Zoom, Hon. Zoe Lofgren [Chair of the Subcommittee] presiding.
    Members present: Representatives Nadler, Lofgren, Jayapal, 
Correa, Escobar, Jackson Lee, Scanlon, Buck, Biggs, and 
Tiffany.
    Staff present: John Doty, Senior Advisor and Deputy Staff 
Director; David Greengrass, Senior Counsel; Moh Sharma, 
Director of Member Services and Outreach & Policy Advisor; 
Cierra Fontenot, Chief Clerk; John Williams, Parliamentarian 
and Senior Counsel; Daniel Rubin, Communications Director; 
Merrick Nelson, Digital Director; Betsy Lawrence, Chief Counsel 
for Immigration; Joshua Breisblatt, Deputy Chief Counsel for 
Immigration; Anthony Valdez, Professional Staff Member/
Legislative Aide for Immigration; Ami Shah, Counsel for 
Immigration; Julie Rheinstrom, Counsel for Immigration; Yasser 
Killawi, Counsel for Immigration; Andrea Loving, Minority Chief 
Counsel for Immigration; Kyle Smithwick, Minority Counsel; 
Andrea Woodard, Minority Professional Staff Member; and Kiley 
Bidelman, Minority Clerk.
    Ms. Lofgren. The Subcommittee on Immigration and 
Citizenship will come to order, a quorum being present. Without 
objection, the Chair is authorized to declare a recess of the 
Subcommittee at any time.
    I want to welcome everyone to this afternoon's hearing 
``For the Rule of Law, An Independent Immigration Court.''
    I would like to remind Members that we have established an 
email address and distribution list dedicated to circulating 
exhibits, motions, or other written materials that Members 
might want to have as part of our hearing today.
    If Members would like to submit written materials, please 
send them to the email address that has been previously 
distributed to your offices, and we will circulate the 
materials to Members and staff as quickly as we can.
    I would also like to ask Members to, as well as witnesses, 
to mute your microphones when you are not speaking. This will 
help prevent feedback and other technical issues. You can 
unmute yourself any time when you want to seek recognition.
    I will now recognize myself for an opening statement.
    Today's hearing is, in a sense, a continuation of a hearing 
this Subcommittee held two years ago where we explored the 
crisis in our nation's immigration courts. Two years ago, we 
discussed at length the issues that plague the immigration 
court system. And today, we will focus on some possible 
solutions.
    The immigrations courts, I believe, can't be effective as a 
judicial institution as long as they are housed in the 
Department of Justice. Decades of bureaucratic and political 
meddling by the governing Administration have undermined and 
eroded public trust in the system. We should find new ways to 
ensure that immigration courts function as other courts do, 
where judges have the flexibility and resources to conduct full 
and fair hearings, due process is held in the highest regard, 
and parties on all sides have faith in the outcomes of the 
case.
    Unfortunately, this does not describe the system as we know 
it today. Immigration judges are saddled with crushing 
caseloads and, despite their best efforts, struggle to deliver 
just and timely decisions that are free from political 
influence. This political influence is born out of the Attorney 
General's broad authority to reshape immigration policy through 
rulemaking and a procedural mechanism known as self-
certification.
    Self-certification gives the Attorney General unilateral 
power to create new precedent or modify long-standing precedent 
by reconsidering decisions issued by the Board of Immigration 
Appeals.
    Although self-certification, this process has been used by 
every Administration since the Eisenhower Administration, it 
was invoked an unprecedented 17 times by the Trump 
Administration. The opinions that resulted dramatically 
restricted the ability of immigration judges to manage their 
docket and made it more difficult for immigrants to qualify for 
relief from removal.
    Thus far, Attorney General Garland has used the self-
certification process essentially to vacate or reconsider the 
decisions made by the prior Administration. Regardless of one's 
position on the issues, I hope we can agree that the use of 
this authority to bend immigration policy to reflect the will 
of whatever Administration is using it, undermines judicial 
independence and, I believe, the Rule of law.
    Like many of its predecessors, the Biden Administration has 
promised to improve the court system, the immigration court 
system. However, I have examined these issues for a long time 
under multiple Administrations, and I think it's clear that the 
flaws of the system can't be fixed by executive action alone. I 
believe Congress should Act to pass legislation to create an 
immigration court system independent of the Executive Branch.
    Over the past decade, as the problems that afflict the 
immigration courts have grown, support for the creation of an 
independent immigration court has also grown. Multiple 
nonpartisan organizations, including the American Bar 
Association, the Federal Bar Association, the American 
Immigration Lawyers Association, and the National Association 
of Immigration Judges have concluded that an article I 
immigration court is the best solution.
    Today we will hear from representatives of several of these 
organizations, who study this issue extensively, as to why they 
have reached this conclusion. An independent immigration court 
is important to the integrity of the system. Judges should have 
judicial autonomy to conduct fair and impartial hearings. They 
need the ability to prioritize adjudications and control their 
case docket. For the Rule of law, we must free them from 
whiplash that results in ever-changing policies and priorities 
of the Executive Branch.
    I look forward to hearing from all of our Witnesses today 
and thank them for their very thoughtful written testimony. It 
is my hope that this hearing will serve as a first step towards 
solving what is really a crisis in our immigration courts. I am 
committed to working with my friends and with my colleagues 
across the aisle to accomplish this objective.
    Now, I understand Mr. McClintock is unable to be with us 
today. We wish him well. Mr. Tiffany will offer his opening 
statement as the Ranking Member of the day.
    Mr. Tiffany, you are now recognized.
    Mr. Tiffany. Yeah, thank you, Madam Chair. Thank you to the 
Witnesses for attending today.
    First, I want to acknowledge why Representative McClintock 
is not able to be here today. His wife passed away unexpectedly 
around Christmastime.
    Ms. Lofgren. Oh, no.
    Mr. Tiffany. I hope you are keeping him and his family in 
your thoughts and prayers. It is very unfortunate. We miss Mr. 
McClintock here in Washington, DC.
    Ms. Lofgren. May I interrupt and say how sorry I am to hear 
that news. He and his family will be in all our prayers. I am 
so glad that you advised us of this.
    Mr. Tiffany. Yes. Thank you for that very much, Madam 
Chair.
    So, I appreciate the Chair holding this Subcommittee 
hearing today. I must note that the hearing continues the 
Immigration Subcommittee's steadfast refusal to acknowledge the 
southern border crisis that President Biden and Vice-President 
Harris created, allow to persist, and continue to encourage 
with their anti-enforcement and open borders policies.
    Remember, it was one year ago today when it was announced 
to the world by President Biden, we are going to open our 
southern borders and we are basically going to be a borderless 
country. It is unfortunate that our United States Government 
now, as a result of the Biden Administration's actions, has 
become the largest human trafficking operation in the world.
    Last year, this Subcommittee held only three hearings for 
things like amnesty, drastic increases of legal immigration, 
and other open border-related ideas. All the while the southern 
border has been lost. U.S. Customs and Border Protection 
impounded 1.7 million illegal aliens, an all-time high, on the 
southern border during fiscal year 2021. An estimated 400,000 
got-aways successfully evaded Border Patrol and disappeared 
into the United States.
    Despite my Democratic colleagues' best efforts to convince 
people not to believe their lying eyes, criminals and drugs 
continue to pour across our border to places as far north as my 
home State of Wisconsin. Every State is now a border state.
    I seek unanimous consent, Madam Chair, to enter two 
articles into the record entitled, ``Del Rio Sector 
Encountering Migrants from Around the World.'' This comes from 
the Border Patrol themself. ``Border Agents Nab Murderers, Sex 
Offenders, Gang Members in Two Days,'' an article from Fox 
News, if I may.
    Ms. Lofgren. Without objection, those will be made part of 
the record.
    [The information follows:]

    

                       MR. TIFFANY FOR THE RECORD

=======================================================================
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]

    Mr. Tiffany. Thank you very much.
    Border Patrol arrested murderers, a sex offender, and gang 
members in one part of the southern border in less than two 
days, the latest haul of criminals caught trying to enter the 
U.S. and get past overwhelmed agents. Border Patrol continues 
to encounter aliens from countries all over the world, 
including those of concern for terrorism along the southern 
border. During just one week in November 2021, Border Patrol 
encountered aliens from Syria, Tajikistan, Lebanon, Uzbekistan, 
Eritrea, among other countries, illegally crossing the border. 
That's just the Del Rio Sector.
    In May, I traveled to the Darien Gap in Panama to see 
firsthand the migration superhighway. There I encountered 
hundreds of migrants from Senegal, Pakistan, Iran, Iraq, 
Bangladesh, Syria, Haiti, and Cuba. Every one of these persons 
I spoke with told me they were coming because of the invitation 
from President Biden and his immigration policies. None 
indicated they were fleeing persecution. In fact, many had 
settled in other countries for 8 to 10 years, and they were 
established there.
    They wanted to come to the United States for economic 
reasons. By the time they get to our border, many have been 
coached on how to claim credible fear and seek asylum.
    You know who else was there? IOM, the International 
Organization for Migration. We give millions of dollars every 
year to the United Nations, United Nations only so that they 
can undermine our immigration policies through these refugee 
settlement businesses.
    According to the Department of Homeland Security, there 
were 104,171 Notices to Report issued to aliens between March 
21 and August 31 last year. Of those 104,171 issued in that 5-
month period, 47,705 did not check in within their required 60-
day window. That means almost half of the people that entered 
illegally during this period are unaccounted for: No vetting, 
no idea where they are, no efforts to find them.
    An Article I immigration court will not fix this. The 
Immigration Court was created by Congress as a component of the 
Department of Justice. They are housed in DOJ's Executive 
Office for Immigration Review. IJs are bound to apply the law 
to the facts of a case and provide due process to the parties 
before appearing--before appearing before them.
    The number of immigration judges, currently at 576, has 
nearly doubled since 2016. No court system is perfect, and the 
immigration courts have their share of challenges. Caseload and 
backload affect daily operations, as do actions of the 
Immigration Judge Corps.
    The Trump Administration tried to address immigration court 
concerns, including court technology, court case completion 
rates, and judicial productivity. For instance, it prioritized 
completion of proceedings, such as those where the alien is 
detained, credible peer reviews in cases with a regulatory or 
statutory deadline. It advanced work to replace the paper case 
filing and processing system with an online system, which is 
now fully operational and set to be mandatory next month.
    The Trump Administration also addressed judicial 
productivity by implementing GAO and Inspector General 
recommended performance metrics in case completion goals, and 
by issuing a precedential decision aimed at reigning in the 
abuse of case continuances.
    I have much more I would like to say, but I am going to go 
with my closing paragraph.
    Immigration courts, an article I court, is not the topic we 
should be focused on. This Subcommittee should be focused on 
securing our border and enforcing our immigration laws. This 
myth that we have that you will achieve independence of a court 
by moving it to a place where it's not under an elected 
officials is just that, a myth.
    I saw this numerous times when I was a State legislator in 
Wisconsin where it had happened decades ago and people tried to 
propose it again where, if we just got them out from underneath 
elected officials, we would have this magical moment where 
there would be no political influence. It is a myth, and we 
should not go down that route. Congress should retain its role, 
our rightful role in making sure that we, along with the 
Executive Branch oversee, that we oversee the immigration 
courts.
    I yield back.
    Ms. Lofgren. The gentleman yields back.
    I am now pleased to recognize the Chair of the Judiciary 
Committee, Chair Nadler, for any opening statement he may wish 
to offer.
    Chair Nadler. Thank you very much. Let me start off by 
extending my condolences to the McClintock family. I hope 
someone can convey that to them.
    With today's hearing, we take a close look at our nation's 
immigration court system, a system that bears little 
resemblance to other courts charged with the Administration of 
justice.
    The U.S. immigration court system is administered by the 
Executive Office for Immigration Review, also known as EOIR, an 
agency housed under the Department of Justice. Since its 
founding in 1983, EOIR has struggled with its quasi-judicial 
status. Simply put, because it lacks independence from the 
Executive Branch, the immigration court system is highly 
susceptible to political interference.
    This interference, from Administrations on both sides of 
the aisle, has greatly diminished the effectiveness of the 
immigration courts as well as the quality of justice served in 
such courts. Our country deserves an immigration court system 
that works. To be truly effective, the immigration courts 
should function just like any other judicial institution, where 
judges serve as independent, neutral adjudicators, free from 
political pressure.
    Unfortunately, under the current system, the opposite is 
the case. Immigration judges are subject to the whims of the 
executive. Unable to function as independent judicial officers, 
judges lack the autonomy to manage their dockets and, in some 
cases, to render fair and impartial decisions.
    Although these issues have been evident for decades, the 
need for an independent immigration court system could not have 
been clearer under the Trump Administration, which used EOIR as 
a pawn to advance its anti-immigrant agenda.
    As Chair Lofgren mentioned, ``the Attorneys General of the 
Trump era used the self-certification'' process 17 times to 
unilaterally change immigration policy or to limit judges' 
discretion. In contrast, under the Obama and Bush 
Administrations, both of which lasted 8 years, the self-
certification mechanism was used only four and ten times, 
respectively.
    The Trump Administration also targeted the National 
Association of Immigration Judges, or NAIJ, the recognized 
representative of immigration judges and a vocal critic of many 
of the Administration's policies that limited judicial 
discretion. It even went so far as to successfully petition the 
Federal Labor Relations Authority to strip the NAIJ of its 
union status.
    Fortunately, the Justice Department once again recognizes 
the NAIJ for collective bargaining purposes, and many of the 
policy changes implemented under the Trump Administration have 
now been reversed or enjoined by Federal courts.
    Policy whiplash is no way to run a court. A true court 
system must be defined by the separation of powers. It must 
prioritize judicial independence, due process, and the Rule of 
law. Because of these issues, nonpartisan groups, including 
those represented by several of our Witnesses today, have long 
called on Congress to pass legislation establishing an 
independent immigration court system. I look forward to hearing 
from our Witnesses today as to why this is so critical and how 
such a system should be structured.
    I thank the Chair, Ms. Lofgren, for her leadership on this 
issue, and for holding this important hearing. With that, I 
yield back the balance of my time.
    Ms. Lofgren. The gentleman yields back. I do not believe 
that the Ranking Member of the Full Committee is present to 
offer an opening statement. If he arrives, we will, obviously, 
welcome his statement.
    Now, is the time for me to introduce our Witnesses.
    First, I would like to introduce Judge Mimi Tsankov. Judge 
Tsankov is President of the National Association of Immigration 
Judges and is an immigration judge based in New York, and an 
adjunct professor at Fordham School of Law.
    Prior to her appointment as an immigration judge in 2006, 
Judge Tsankov served as assistant district counsel and an 
asylum officer for the legacy Immigration and Naturalization 
Service, and as a special assistant U.S. attorney for the 
Eastern District of New York.
    She earned her Bachelor's Degree from James Madison 
University, and a J.D. and Master's Degree in International 
Relations from the University of Virginia.
    I would now like to introduce Elizabeth Stevens. Elizabeth 
Stevens is of counsel to Poarch Thompson Law and is here today 
representing the Federal Bar Association. Previously, Ms. 
Stevens served in multiple capacities at the Department of 
Justice Office of Immigration Litigation, acting as Assistant 
Director of the District Court section.
    Ms. Stevens has been active with the Federal Bar 
Association for 21 years, holding various leadership positions, 
including chair of the Immigration Law Section's Board of 
Governors.
    She received her Bachelor's Degree from Georgetown 
University, and her J.D. Degree from George Mason University 
School of Law.
    Karen Grisez is Pro Bono Counsel at Fried, Frank, Harris, 
Shriver & Jacobson LLP, where she focuses on asylum, removal 
defense, and other immigration matters. She is here today 
representing the American Bar Association.
    She is the former Chair of the ABA's Commission on 
Immigration, and serves on the National Pro Bono Committee of 
the American Immigration Lawyers Association. She is Chair of 
the Board of Trustees of the Center for Migration Studies in 
New York, and a Member of the Board of Directors for the 
Capital Area Immigrants' Rights Coalition and the Washington 
Council of Lawyers.
    She received her Bachelor's Degree from the University of 
Maryland, and her J.D. from the Columbus School of Law at 
Catholic University.
    Finally, but not least, the Honorable Andrew Arthur, 
Resident Fellow in Law and Policy for the Center on Immigration 
Studies, and a former Immigration Judge serving at the York 
Immigration Court in York, Pennsylvania, from 2006 to 2015.
    Mr. Arthur also served as an Associate General Counsel for 
the former Immigration and Naturalization Service, as well as 
Counsel for the House Judiciary Committee, and Staff Director 
of the House Oversight Committee.
    He received his Bachelor's Degree from the University of 
Virginia, and his J.D. from the George Washington University 
School of Law.
    I welcome all our Witnesses. I would invite them now to 
take the oath before their testimony. Please turn on your 
audio.
    I ask that each of you raise your right hand while I 
administer the oath.
    Do you swear or affirm under penalty of perjury that the 
testimony you are about to give is true and correct to the best 
of your knowledge, information, and belief, so help you God?
    I will note that each of the Witnesses answered in the 
affirmative. We will now begin.
    Let me remind the Witnesses that your entire written 
statement will be made part of our record. We ask that you 
summarize the written statement in about 5 minutes. There is a 
clock on our screen, and when it hits zero, we ask that you sum 
up as promptly as possible so that we will have an opportunity 
to ask our questions.
    We will begin with you, Judge Tsankov. Please give us your 
wisdom.

           STATEMENT OF THE HONORABLE MIMI E. TSANKOV

    Judge Tsankov. Thank you so much. Good afternoon.
    My name is Mimi Tsankov and I am President of the National 
Association of Immigration Judges. Members of the Subcommittee, 
thank you for this opportunity to testify today.
    I am an immigration judge, as you heard, seated in New 
York. I have been on the bench for about 15 years. Today, what 
I want to do is share my experience at the court with you. I am 
seeking your support in bringing about an immigration court 
that is reformed.
    Let me walk you through some of the difficulties that have 
been really challenging the average judge over the past decade.
    There are almost 580 immigration judges hearing cases at 
the roughly 70 courts around the country. Generally, judges are 
on the bench almost every day, all day. It seems like no matter 
how hard we work, that backlog we are facing just keeps 
growing. Each judge's piece of the 1.6 million case backlog is 
approximately 2,700 cases.
    We have reached this part--this point in large part because 
our courts are housed, as you heard, within the Department of 
Justice. We answer to a political leader, the Attorney General, 
who is also the nation's chief prosecutor. Because of that, the 
DOJ's control over the court has yielded extreme pendulum 
swings and our apolitical judges are reeling as they navigate 
their judicial responsibilities on the one hand and heavy 
political scrutiny.
    That ping-pong between one Administration's priorities and 
another's reduces judicial effectiveness. That is because the 
priority for one attorney general may be completing the oldest 
cases and, for another, it might be recent arrivals requiring 
travel to the border. Our inability to complete cases is a 
function of those shifting priorities. Whatever isn't a 
priority just gets shoved to the back of the line, and my part 
of the backlog grows.
    That backlog pressure, it has repercussions for the judges 
who are viewed as attorney employees by the Department of 
Justice. Amid those political swings, I may be staring down a 
possible poor performance rating, not because I don't know how 
to do my job but because the agency I work for has shifted its 
priorities. Suddenly court resources are de-prioritized, the 
budget for interpreters dries up, plans for our new IT system 
improvement get put on the back burner, training conferences 
are canceled, staffing levels stagnate, filings stack up 
unfiled, and space needs aren't addressed.
    Repeatedly, according to the DOJ Office of Inspector 
General, the agency has mismanaged its resources. Simply put, 
the immigration court is treated as a stepchild within the 
Department of Justice.
    These problems are compounded for judges like me since I 
preside over a family unit docket. With many young, 
unrepresented juveniles, it takes extra time to ensure that 
these vulnerable respondents understand their rights. It is 
difficult.
    DOJ has tried to implement solutions over the years. For 
example, in an effort to modernize the court, back in 2001 the 
DOJ said we need to move away from paper files and got a 
digital filing system that the public can use to interact with 
the court, much like PACER at the U.S. Courts. DOJ didn't 
implement an off-the-shelf product like PACER, it embarked on a 
two-decade project to build its own bespoke system.
    The final nationwide roll-out of ECAS, as you heard, will 
be next month. However, I am not sure that the system is in 
fact complete. Now we have years' worth of paper files that 
need to be digitally scanned to even operate within our new 
ECAS system. That is no small task.
    What I am trying to explain is that DOJ's solution has 
exacerbated our problems. What is worse is that the DOJ has 
undermined the integrity of the court. Politicization has led 
to infringement on judicial independence. Every Administration 
imposes its political will on the court. This is not a 
political statement but a statement of fact. This can be 
applied to every Administration I have worked for in both 
parties.
    Today the mission of the DOJ simply does not align with the 
mission of a court of law. Courts are supposed to be 
independent from all external pressures, including political 
priorities. We are not. We need an independent article I 
immigration court. It is a good government solution. It would 
legitimize the integrity of immigration court outcomes, and it 
would support the Rule of law.
    We need to shed the politically tinged system we currently 
operate in and start functioning as the judges we are supposed 
to be.
    Thank you for your attention. I am happy to answer any 
questions.
    [The statement of Judge Tsankov follows:]
    
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    Ms. Lofgren. Thank you very much for that testimony, Judge.
    We will now turn to Ms. Stevens for her testimony.

               STATEMENT OF ELIZABETH J. STEVENS

    Ms. Stevens. Chair Nadler, Chair Lofgren, Ranking Member 
Tiffany, and Members of the Subcommittee, good afternoon. I am 
honored to represent the Federal Bar Association and to be 
asked to address one of our organization's highest priorities, 
the creation of an independent article I immigration court.
    I have spent considerable time immersed in immigration law 
and policy, both as an Assistant Director of the Office of 
Immigration Litigation of the Justice Department, and as Chair 
of FBA's Immigration Law Section.
    The FBA has determined, after significant research and 
consideration of alternatives, that an independent article I 
immigration court, similar to the Tax Court, will best improve 
the adjudication of immigration cases without making changes to 
substantive immigration law. article I courts have a long, 
successful history. An article I immigration court will ensure 
decisional independence and promote timely decision making and 
efficient adjudication.
    No simple band-aid can fix the current broken system and 
its ever-growing trial level backlog. Only through major 
surgery can the system be restored to full and proper 
functionality. Let this be the Congress that addresses this 
problem and solves it.
    Unlike other elements of immigration law, there is a broad 
consensus that the current system for adjudicating immigration 
claims is dysfunctional and deserves systemic overhaul. The 
current system undermines efficient adjudication, denies due 
process, politicizes an important adjudicative function, and 
deprives immigration judges of effective authority and 
autonomy.
    This is not a partisan issue; it is a good government 
issue. It has nothing to do with substantive immigration law or 
broad immigration policy. Whatever the immigration laws are, 
and whatever the policies that inform them, it is past time to 
lift the courts that apply them from halfway there, not-quite 
courts to true courts under article I.
    Let me walk you through some of the problems the FBA has 
identified with the current adjudication structure.
    The Executive Office for Immigration Review is a top-heavy 
bureaucracy, not a true court system. Headquarters programs are 
largely duplicative of functions performed elsewhere within the 
Government, and drain resources that should be devoted to 
adjudication.
    Immigration judges have little control over their dockets 
and cannot use the contempt authority authorized by Congress. 
Individuals wait an average of 1,938 days from receiving the 
first charging document to a hearing on their applications.
    An article I court would not duplicate or add jobs, nor 
would it require significant numbers of political appointments. 
Though it will not singlehandedly fix the backlogs, an article 
I court should help us improve the current backlogged system 
through administrative efficiencies and docket control.
    The current system does not fit the general view of what 
Americans consider due process. The Department of Justice does 
not view immigration judges as independent judicial officers. 
The potential for political influence means that they cannot 
ensure due process or decisions made solely according to law.
    A broad perception exists that the immigration courts 
merely rubber stamp DHS actions. Because of this perception, 
individuals may not pursue relief for which they might be 
eligible; It also leads to more petitions for review in the 
circuit courts, as the hope of impartial review in the federal 
court system postpones finality and undermines the authority of 
immigration determinations.
    There is ample precedent for Congress to establish an 
independent article I immigration court. Congress has 
successfully done this in other areas of law that involve 
executive policy making, priority setting, and impartial 
adjudication. For example, the Tax Court and the Court of 
Appeals for the Armed Forces also started off as internal 
components of civilian or military bureaucracies. In response 
to concerns about fairness and impartiality, Congress 
reassigned the adjudicative functions to independent article I 
courts with no impact on the agencies' other processes.
    Some propose creating a separate executive agency or 
placing immigration courts within the regular article III 
federal court system. The former would simply relocate, but not 
eliminate, the bureaucratic problems. The Judicial Conference 
of the United States opposes the latter. The best option is an 
independent article I immigration court.
    Thank you again for the opportunity to testify today. The 
FBA looks forward to collaborating with you on this issue. I 
look forward to answering your questions.
    Thank you.
    [The statement of Ms. Stevens follows:]
    
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    Ms. Lofgren. Thank you very much for your testimony.
    We will now turn to Ms. Grisez for your testimony.

                   STATEMENT OF KAREN GRISEZ

    Ms. Grisez. Good afternoon. Thank you, Chair Lofgren, Chair 
Nadler, today's Acting Ranking Member Tiffany, and Members of 
the Subcommittee. My name is Karen Grisez, and I am pro bono 
counsel for the law firm of Fried, Frank, Harris, Shriver & 
Jacobson in Washington, DC. I am also a former Chair of the ABA 
Commission on Immigration.
    The ABA appreciates this opportunity to share our views on 
the Rule of law and the need for an independent immigration 
court.
    Due process and judicial independence are integral 
components to the Rule of law, as well as core concerns of the 
ABA. As currently constituted, the immigration courts lack many 
of the basic structural and procedural safeguards necessary to 
ensure fair and impartial adjudication, to the detriment of 
both the Government and those who are going through the system.
    The location of the EOIR within the Department of Justice 
and, consequently, under the direct authority of the sitting 
Attorney General, is central to our due process concerns. Over 
the course of many Administrations, we have witnessed the 
adoption of policies and procedures that undermine immigration 
judges' duty to perform as neutral arbiters of facts and law, 
and by prioritizing expeditious case processing overdue 
process, as well as segregating case categories in reaction to 
changing enforcement priorities.
    In addition, the role of the Attorney General as the 
ultimate decision maker within the Executive Branch has led to 
a dizzying back and forth instructions of law that impairs 
finality and diminishes confidence in the integrity of the 
adjudication system. Even brief consideration of the basic 
hallmarks of due process--notice, an opportunity to be heard, a 
hearing before an impartial tribunal, and the opportunity to be 
represented by counsel, reveal important flaws in the current 
system.
    Notice frequently contains a place-holder date as opposed 
to a real hearing date in immigration court because of the 
limitations on the technology of the system. The EOIR automated 
system available to litigants to check on the current status of 
a hearing date often do not reflect current hearing schedules.
    Judges are assigned and reassigned to different dockets for 
administrative convenience. Additionally, notices of hearing 
are often mailed out too late to inform respondents of their 
new hearing date or are mailed to outdated addresses because 
submissions are not timely filed in the court case file.
    The scope of the opportunity to be heard is controlled by 
the immigration judge, which is particularly concerning with 
regard to place a response. Regardless of practice annual 
guidelines, the judge controls how long will be allowed to find 
counsel; how much time will be allowed to identify witnesses 
and obtain corroborating evidence, often requiring translation; 
how long will be allowed for the hearing; how many available 
witnesses will be allowed to testify and by what means.
    Many asylum applicants whose cases involve life or death 
consequences are allowed only 2 to 4 hours to present their 
complete cases, even when interpretation is required. Due 
process violations can only be raised on appeal if they are 
reflected on the record, and only if the respondent is actually 
able to take an appeal.
    The need for an impartial tribunal may be the most 
compelling reason for an independent court. Other witnesses 
have already talked about control by the Attorney General in 
many other ways, but the hiring process, too, is completely 
under control of the Attorney General in a non-transparent 
process. The performance of immigration judges is evaluated not 
by the quality of their opinions, but by how quickly they can 
complete their cases.
    Opportunity to be represented by counsel is also an issue. 
The statute provides opportunity for counsel, but at no expense 
to the Government. So, there is no right to appointed counsel 
for the indigent, except in rare circumstances. Access to legal 
information is also very limited.
    To address these issues, the ABA conducted a study, issued 
a report, and has come to the conclusion an article I court is 
the best solution for a variety of reasons: Independence, 
fairness and perception of fairness professionalism, and 
increased efficiency.
    We examined an independent article I court, independent 
agency, and a hybrid model, and concluded for reasons that we 
can discuss further, that article I is the most preferable 
model for a variety of reasons. We urge Congress to 
expeditiously pass legislation to create an article I 
immigration court to enhance the Rule of law and strengthen due 
process in our removal adjudication system.
    [The statement of Ms. Grisez follows:]
    
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    Ms. Lofgren. Thank you very much for that testimony.
    We will now turn to Mr. Arthur for his testimony. You are 
now recognized.

            STATEMENT OF THE HONORABLE ANDREW ARTHUR

    Judge Arthur. Madam Chair, Chair Nadler, and Ranking Member 
Tiffany, Members of the Subcommittee, thank you for inviting me 
today.
    The 580 or so immigration judges play a crucial role in our 
system of justice and national security to face numerous 
challenges, as you have just heard. For decades, the 
immigration courts were largely forgotten, inadequately 
staffed. IJs were left without needed guidance and oversight 
from the Executive Branch.
    They have also struggled to do their jobs through the flaws 
in the immigration laws and poorly reasoned judicial opinions 
that suffered under various Executive Branch priorities and 
policies that have swelled their dockets by encouraging foreign 
nationals to enter and remain in the United States illegally.
    In fiscal year 2021, Border Patrol apprehended 1.659 
million migrants along the southwest border, an all-time high. 
Those migrants have overwhelmed limited DHS resources, resulted 
in many being released with nothing more than a notice to 
report to an ICE office near their destinations in the United 
States.
    A federal bipartisan panel during a lesser surge in 2019, 
determined that similar releases were the major
    ``pull factor'' drawing family migrants to enter the United 
States illegally with great danger to all and prominently 
children.
    Largely as a result of surges at the southwest border in 
recent years, IJs now face a crushing backlog of almost 1.6 
million cases, not counting hundreds of thousands of others 
that are administratively closed. That backlog is bad for our 
system of justice.
    Here is one example: Congress has mandated that most asylum 
cases be adjudicated within 180 days. In October, the 
immigration courts were handling more than 623,000 asylum 
claims. Few will be decided in 2 years, let alone 180 days.
    Some have called for abandoning the EOIR system and 
creating an independent article I court outside the Executive 
Branch. That won't resolve the issues that the IJs face, which 
are driven largely by a lingering lack of resources and the 
backlog which, again, in turn is driven by the crisis at the 
border and exacerbated by the aforementioned flawed statutes 
and policies.
    Moreover, any restructuring would be complex and costly, 
absorbing resources that would be better directed toward 
including EOIR and providing it with more funding.
    The arguments favoring restructuring are less compelling 
than they appear. While I served as an immigration judge, 
attorneys general from both parties, my independent judgment 
was never impinged upon, and I had a relatively high level of 
autonomy over my dockets. I strove to run my court in a 
professional manner and expected the same of the parties who 
appeared before me.
    The arguments against an independent immigration court on 
the other hand are significant. First and most crucially, this 
plan would have serious constitutional implications. 
Immigration decisions are closely tied to the foreign policy of 
the United States. The Supreme Court and the Ninth Circuit have 
both found that. That has been recognized as solely within the 
sway of the Executive Branch.
    I can ratify this and elaborate with more real-world 
examples from my own experience if you are interested, but the 
problem is far from theoretical. Creating an independent 
immigration court would largely remove congressional oversight 
of immigration decision making, which matters to me as a former 
staffer.
    Finally, an article I court would be left to fight for 
resources. Immigration is contentious, and Congress, with the 
power of the purse, could easily starve an immigration court 
whose decisions it did not agree with of funding. IJs need 
additional resources, which the Administration has promised to 
seek. While more judges will help, they already need extra 
support staff, including law clerks. I would ask this body to 
move to providing that.
    That said, IJ candidates should be fully vetted before they 
are hired and trained in both immigration law and courtroom 
procedure before they hear cases. While IJs need bright line 
rules to follow, the Attorney General should not overturn 
settled law. Moreover, a recent proposed letter which IJs would 
be required to adjudicate asylum cases in which no asylum 
application has been filed would further burden the courts and 
should be rejected.
    Congress should, however, consider creating an article I 
circuit court for immigration. That would help IJs by bringing 
uniformity to interpretations of the immigration laws and 
alleviate burdens on the 11 circuit courts that currently hear 
aliens' petitions for review. Reviews of the IJs decisions 
accounted for 85 percent of administrative agency appeals 
before the circuit courts in 2019, more than 5,000 cases.
    I thank you for the opportunity to appear today, and I look 
forward to your questions.
    [The statement of Judge Arthur follows:]
    
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    Ms. Lofgren. Thank you. Thank you, Mr. Arthur. Thanks to 
each one of our Witnesses for their thoughtful testimony.
    This is now the time when the Members of the Subcommittee 
can ask questions under the 5-minute rule. I will begin with 
myself.
    First, Ms. Stevens, we heard in your opening statement and 
from our other witnesses concerns about the Executive Branch's 
influence on the court system. Under the article I model 
proposed by the Federal Bar Association, the President would 
have the authority to appoint the appellate level immigration 
judges who would then select the trial level immigration 
judges.
    Given the power of the President to appoint appellate 
judges, explain how the FBA's proposal would protect against 
political influence, if you may.
    You need to unmute. You are muted.
    Ms. Stevens. Thank you, Chair Lofgren, for that question. 
That is an excellent question that goes to the core of the 
FBA's presentation.
    In the FBA's model proposal, we proposed that appointments 
to the appellate level be staggered so that every 5 years only 
one-third of the appellate judges would be appointed. That will 
limit the specific political--limit the ability of any specific 
Administration to select all the judges on the system. We 
believe that would go a long way towards limiting political 
issues. Thank you.
    Ms. Lofgren. Thanks for that answer.
    Ms. Grisez, the American Bar Association has been an 
outspoken advocate for immigration court reform for over a 
decade that we have been talking. Now, there are various 
options for changing the immigration courts, everything from an 
article I court to a separate agency, and the like.
    Can you explain why the ABA chose specifically to endorse 
an article I court system as opposed to the various other 
alternatives that we could devise?
    Ms. Grisez. Yes. Thank you, Madam Chair.
    There are a number of reasons. Going back to the core 
principles, the core values of the ABA, focused on fairness and 
due process in adjudication, the notion is that the article I 
courts would provide the most court-like system, the most 
independence, the most freedom from Executive Branch control, 
and ability to recruit, with the prestige of a true independent 
court, the best qualified pool of candidates.
    Ms. Lofgren. Thank you for that answer.
    Judge Tsankov, Federal Judges, both article III and article 
I, have job protections. article III judges have lifetime 
tenure. article I judges have fixed terms. I would like you to 
explain what kind of job protections immigration judges 
currently enjoy. How would that change if the courts were 
independent from the Department of Justice?
    Judge Tsankov. Thank you for that question.
    Currently, the immigration judges have the same types of 
federal protections that any federal employees have. They can 
only be fired for cause. If they have engaged in some sort of--
if they are deficient in doing their job or engage in some sort 
of problematic conduct.
    However, the vast majority of the immigration judges that 
are currently seated are probationary judges. Those judges can 
be removed at will, except in certain circumstances such as EEO 
type based reasons.
    Now, if we were to transport our current system into the 
article I context, we would have the independence. The 
political influence that could impact the firing of 
probationary judges or any of the other judges, that would be 
eliminated.
    Ms. Lofgren. Let me just ask if you have given--Judge 
Tsankov, there would need to be a transition period. Have you 
thought, or any of the other Witnesses, thought about how that 
transition from the current system to an article I court would 
work, and how, what are the complications that we need to be 
alert to? Any of you?
    Judge Tsankov. I would probably defer. I know you mentioned 
my name, but I would defer on that question to my colleagues 
who have been, who are really the experts in creating those 
types of courts.
    Ms. Lofgren. Ms. Stevens, do you want to give it a try?
    Ms. Stevens. Chair Lofgren, I would be happy to give that a 
try. In our proposal, in our model legislation we have proposed 
a transitional period of 3 to 5 years where the current 
immigration judges and board Members would be pulled into the 
article I system. That would require a term, especially for the 
appellate level, for them to have presidential appointment and 
Senate confirmations so that they could appoint new immigration 
judges to those particular areas, keeping in mind very serious 
issues needing confirmation under the appointments clause. 
Thank you.
    Ms. Lofgren. Thank you very much. I see my time has 
expired. So, I will turn now to Mr. Tiffany for his questions.
    Mr. Tiffany. Yeah, thank you very much, Madam Chair.
    First, Ms. Stevens, did I hear your comment correctly that 
the backlog of cases is not affected by the number of cases or 
the amount of illegal immigration?
    Ms. Stevens. Thank you for that question, Congressman 
Tiffany. I do not believe that was part of my statement.
    The backlog is significantly affected by new cases being 
filed. It also has a significant impact from cases being 
remanded, and motions to reopen, and motions to reconsider, 
where immigration judges have to take a look at a case three, 
four, five, six, seven, times, or the Board of Immigration 
Appeals has to take a look at the cases many times.
    There's a number of reasons for the backlog, including the 
push me/pull you of Administrations saying, ``Do this. No, do 
that first.'' Thank you.
    Mr. Tiffany. Yeah, thank you for that. I will go back and 
re-listen to that testimony. I appreciate your answer.
    Mr. Arthur, would securing our borders in conjunction with 
requiring immigration judges to meet case completion goals help 
our backlog issues?
    Judge Arthur. Let me break that into two parts, if I could, 
Mr. Tiffany. The first one has to do with the border.
    In recent filings with the court in Texas v. Biden, DHS 
revealed the fact that it had apprehended I think 176,000 
migrants at the southwest border in December, and that 51,000 
of those individuals had been issued NTAs or had been paroled. 
Logically, they would be amenable to removal proceedings.
    On an annual basis, that would be 600,000 new cases. So, 
that will give you an idea to quantify how much the border 
would affect it.
    With respect to case completion goals, I will note that 
Congress actually, again, created one. Asylum applications are 
supposed to be completed within 180 days. That is the entire 
process, that is not just the immigration court process.
    So, again, case completion goals are a tricky issue. I 
never had any problems meeting mine. If it was coupled with 
some sort of assistance to the judge, then completing cases 
more quickly definitely would cut back on the backlog.
    Mr. Tiffany. You alluded to the nexus between the role of 
foreign policy and immigration. I find that to be a pretty 
compelling message, keeping this with the Executive Branch, 
that there is this nexus. I mean, you have foreign migrants 
coming into our country, and the Executive Branch clearly has 
purview over foreign policy to a large extent.
    Could you talk about that a little bit more, the importance 
of keeping, keeping this in the Executive Branch within the 
Department of Justice?
    Judge Arthur. Thank you, Mr. Tiffany. Yeah, and I note that 
I have a number of immigration experts here. One of the key 
components of immigration is something called reciprocity. We 
treat foreign--other countries treat our citizens the way that 
we treat their foreign nationals. For that reason there must be 
a certain amount of Executive Branch oversight over the process 
to ensure that those individuals are being properly treated.
    We have things in the law like serious non-political crimes 
which is a bar to asylum. If an immigration judge were to find 
that something is a serious non-political crime that had a huge 
impact in a country, I mean, take the regrettable bombings 
during the Troubles in Northern Ireland and we were to find 
that those were not--or that they were political crimes and, 
therefore, not a bar to asylum, that would have a serious 
impact on our foreign policy with the U.K.
    I am going to have to dance around a specific case that I 
had, but there were two individuals who were accused of 
participating in the killing of an individual who was the 
father of a head of State abroad. That is a situation in which 
if an immigration judge were to grant those two people asylum 
it would have significant impact on our foreign policy with 
that country.
    I could speak in camera to staff if they are interested in 
the facts of that case, but it was a very significant case.
    Mr. Tiffany. I want to get this last question really 
quickly. Are you aware of any effort by EOIR under this or 
prior Administrations to tell immigration judges how they 
should Rule in a particular case in a manner that is 
inconsistent with the law of precedent?
    Judge Arthur. No. I think that, of course, from my 
testimony you can see the memo that was put out by EOIR with 
respect to prosecutorial discretion. No, I have never seen 
anyone--and, again, I served under both President George W. 
Bush and President Barack Obama.
    Mr. Tiffany. I yield back, Madam Chair.
    Ms. Lofgren. The gentleman's time has expired.
    We will now be pleased to recognize Chair Nadler for his 
questions.
    Chair Nadler. Thank you. Ms. Stevens, the Federal Bar 
Association supports the establishment of an article I 
immigration court and has even drafted model legislation for 
that purpose.
    Did the FBA explore other restructuring options? If so, can 
you please explain why the FBA concluded that an article I 
structure is the best solution?
    In particular, why not make it a regular article III court 
with lifetime appointments, independence, and appeals to the 
circuit courts or the Supreme Court?
    Ms. Stevens. Thank you very much for that question, Chair 
Nadler.
    The FBA looked at several different types, including making 
the immigration courts a separate administrative agency outside 
of the Department of Justice. Continuing, we identified the 
Department of Justice in its current fashion. Also, the article 
III question.
    First, I would like to say that the article III question 
has been addressed by the article III courts themselves. They 
recommended time and again in 1982 and again in 2016 that any 
independent immigration court should be located outside of the 
article III courts.
    This has there are two real reasons for that. One of them 
is that there is the possibility of having the Administration, 
the article I courts, make the primary decision, but it is then 
reviewed in an article III situation. So, there is the 
possibility of separate review.
    The reason that we want a true court system is to really 
provide efficiencies within the system itself. If it is an 
article I court like the Tax Court, you have the perception 
that it is indeed independent. That is so important.
    The perception of independence is similar to the creation 
of the Tax Court back in the 1920s. The very reason the Tax 
Court was taken out of the Department of the Treasury and the 
IRS at the time, or whatever it was called at the time, are the 
same reasons: The perception of fairness, of impartial 
adjudication, and the ability to judges to be secure in their 
appointments and, not have to worry about political impact.
    Chair Nadler. Thank you.
    Ms. Stevens. Thank you.
    Chair Nadler. Judge Tsankov, Ms. Grisez, and Ms. Stevens, 
all of you and the organizations you represent have been 
calling for the creation of an independent immigration court 
system for many years. You have stood by this position under 
both Democratic and Republican Administrations.
    Judge Tsankov, in your view is there any reason this would 
be a partisan issue?
    Judge Tsankov. It is a nonpartisan issue from my 
perspective. It is a good government problem--solution. It is a 
Rule of law issue that needs to be addressed. Both parties 
really support good governance and Rule of law concerns.
    Chair Nadler. Okay, thank you.
    Judge Tsankov. Thank you.
    Chair Nadler. Thank you. Ms. Grisez, one of the problems 
with immigration courts that was identified by the American Bar 
Association in its 2017 and 2019 reports is a lack of adequate 
resources. In the last two years Congress has appropriated 
hundreds of millions of additional dollars to EOIR and, yet 
problems with the immigration court system persist, and many 
have worsened.
    In your opinion, why hasn't the increase in funding 
improved court efficiency? Why is the hiring of more 
immigration judges not enough to solve the problems with the 
court system?
    Ms. Grisez. Thank you for that question, Chair Nadler.
    I would say that the resources are one problem with the 
current immigration court, and one of the reasons that it has 
been unable to keep up with or make a dent in the backlog, but 
it is not the only reason.
    The structure is a reason, the political influence that we 
have talked about is a reason, and the constant shifting in 
policies, procedures, dockets, judges getting reassigned, all 
contribute to the inability for the judges, even new judges, as 
you heard from an earlier Witness, to keep up.
    The biggest thing that I would say, though, from the ABA 
perspective is that the immigration court system can't be 
looked at as a vacuum, and reforms to the immigration court, 
including the article I recommendation, isn't the only thing 
needed to fix the system.
    If you look at our reports, the 2010 and 19, they look at 
the immigration system as a whole, and all the other factors, 
so the inputs that go in, what cases get in removal proceeding 
to begin with, who makes decisions about charging, what is the 
opportunity for considering whether the Government would 
actually remove someone, the prosecutorial discretion question, 
the functioning of the board, all the way up.
    So, resources are one issue, but the inputs and the 
operational concerns are another. A big one that I would point 
out is that access to counsel. The court system would be more 
efficient if people had lawyers, judges didn't have to conduct 
three or four master calendars, there weren't appeals and 
motions to reopen, to remedy due process violations that 
occurred in the first hearing, and the like. So, there are a 
multiplicity of factors.
    Ms. Lofgren. Thank you so much. The gentleman's time has 
expired. I understand that Mr. Buck is next in order, but I 
don't see his camera on. Mr. Buck, are you waiting? If not, we 
will--
    Mr. Tiffany. Madam Chair?
    Ms. Lofgren. Yes.
    Mr. Tiffany. Madam Chair, you can go to Mr. Biggs, if you 
would like.
    Ms. Lofgren. Okay. I will recognize Mr. Biggs for his 
questions.
    Mr. Biggs. Thank you, Madam Chair. I appreciate that. Madam 
Chair, over the past year, I and many other Members of this 
Committee have written to you and Chair Nadler requesting that 
we have a hearing with Secretary Mayorkas, so that we can ask 
him directly about the border crisis that he created.
    We have yet to hear back from you, and I just want to give 
a little flavor. At the Van Horn station just yesterday, they 
only had four agents on duty in one shift. Three of them were 
attending illegal aliens who were hospitalized. The fourth was 
the only agent that was monitoring the border, not just the 
line but also the interior that went there.
    So, that is just one flavor. I have some videos. I am not 
going to play those. Instead, Democrats on this Committee have 
pushed tirelessly for amnesty for millions of illegal aliens. 
This push for amnesty is one of the many factors that have led 
millions of aliens to enter our country illegally. They believe 
that if they get here President Biden will allow them to stay, 
and Congressional Democrats will give them amnesty. I have been 
down to the border, talked to people. That is what they tell 
me.
    Since January 2021, CBP has reported more than 1.7 million 
encounters at the southwest border, and this number does not 
include the hundreds of thousands of got-aways. According to 
CBP, Yuma sector experienced a nearly 2,400 percent increase in 
encounters during several months last year. The facts are 
clear: There is a crisis at the southern border, and the Biden 
Administration continues to ignore it.
    This Committee should be conducting proper oversight, but 
it is not, and the majority refuses to call Secretary Mayorkas 
to testify. We are here today having a hearing that is very 
similar to one that we did just a year ago. We should be having 
a hearing with Secretary Mayorkas as the Witness, so that he 
can answer questions from the Members of this Committee.
    He has managed to testify before the House Homeland 
Security Committee, the Senate Homeland Security and 
Governmental Affairs Committee, the Senate Appropriations 
Committee, the House Appropriations Committee, and the Senate 
Judiciary Committee--some of these committees more than once. 
We are the Committee of jurisdiction, and he hasn't been before 
us.
    Mr. McArthur--sorry, sorry, sorry. Mr. Arthur, will 
changing the immigration court to article I court solve the 
crisis at the southern border?
    Mr. Arthur. It will not. The number of migrants who are 
being apprehended down there is so large, you would also have 
to double the size of the immigration court at this point to 
address it.
    Mr. Biggs. Mr. Arthur, the Immigration Nationality Act 
requires DHS to detain aliens who enter the country illegally 
while any potential claims for relief they may make are pending 
before an immigration judge. Is that the law?
    Mr. Arthur. That is section 235 of the INA. 235b, yes.
    Mr. Biggs. Is DHS detaining aliens as required by law?
    Mr. Arthur. No. Again, I reference the discovery in Texas 
v. Biden, and I believe that they said it was 50,000-plus 
individuals encountered at the southwest border who were 
released in the month of December.
    Mr. Biggs. They have been told to just simply check in, and 
these are the 50,000 roughly that did not bother to check in at 
all. Is that right?
    Mr. Arthur. No. These are individuals who were apprehended. 
This particular report doesn't list notices to report, which 
would be that 60-day check in. We did have information that had 
been handed over to Senator Johnson in the other, from 
Secretary Mayorkas that indicated that I believe just short of 
half of individuals who had been released on notices to report 
had failed to check in.
    Mr. Biggs. So, I am hearing troubling reports that DHS is 
simply paroling agents--excuse me, paroling aliens into the 
country instead of detaining them. Are these reports accurate?
    Mr. Arthur. Yes. Actually, in the month of December, 18,270 
migrants or individuals encountered at the southwest border 
were paroled. On top of that, DHS released an additional 32,836 
on their own recognizance.
    Mr. Biggs. Is that the way parole is supposed to work, 
according to the law?
    Mr. Arthur. It is not. Parole, under section 212b(5) of the 
INA is supposed to be on a case-by-case basis based on an 
individual determination. Only for significant public benefit 
or--I can't remember the other factor, but no, it is supposed 
to be very narrowly provided.
    Mr. Biggs. Are you familiar with Secretary Mayorkas' 
directive to limit ISIS enforcement of immigration law?
    Mr. Arthur. I am familiar with his September 30, 2021, 
guidelines, yes.
    Mr. Biggs. So, it has come to my attention there is about a 
million aliens with final orders of removal on ISIS's non-
detain docket. What is happening? Is ISIS removing those 
individuals?
    Mr. Arthur. There are three priorities that are listed in 
Secretary Mayorkas' memo--individuals who pose a risk to the 
national security, spies, and terrorists; individuals who pose 
a risk to public safety, and those are individuals with serious 
criminal offenses; and the third one are threats to border 
security, and those are individuals who enter the United States 
illegally after November 1, 2020. I don't know why they picked 
that date.
    No, if they don't fit within one of those three categories, 
they would not be priorities for enforcement action, which 
would include even questioning, let alone removal.
    Mr. Biggs. Thank you. My time has expired.
    Ms. Lofgren. The gentleman's time has expired.
    We will turn now to Ms. Jayapal.
    Ms. Jayapal. Thank you, Madam Chair. Let me return our 
hearing to the topic of the fairness in the immigration court 
system. The mission of our immigration court system is to 
(adjudicate immigration cases fairly, expeditiously, and 
uniformly, interpreting and administering the Nation's 
immigration laws.
    However, unlike our civil and criminal court systems, 
immigration courts aren't independent. They are housed within 
the Department of Justice, and they are overseen by the 
Attorney General, who can change the fundamental operations of 
the court and the interpretation of laws and policies governing 
people's access to justice and immigration benefits.
    As Judge Tsankov pointed out in her responses to Chair 
Nadler, having an independent court that is not subject to 
political whims is basic for good governance and is bipartisan, 
not partisan.
    Ms. Stevens, in your experience monitoring the courts and 
representing individuals, how does the design of the 
immigration court system impact the functioning of the courts 
and an individual's ability to pursue their case?
    Ms. Stevens. Thank you much for that question, 
Representative Jayapal. The immigration courts are housed 
within the Department of Justice. When you go into a court, you 
have the immigration judge sitting there, and you have DHS 
counsel sitting on one side with their computer and their 
telephone and their full big bin of cases, and on the other 
side you have this one person trying to talk to all of them, 
possibly with an interpreter, possibly not.
    It feels, as you walk in, that even if they are represented 
by counsel that DHS and the judge are there together, and you 
are just kind of coming in. This really does impact the ability 
of an individual to accept the judge's decision and leads to 
additional motions to reopen, motions to reconsider, and 
appeals, hoping that they finally will get an independent 
arbiter, regardless of how good the immigration judge is.
    Thank you.
    Ms. Jayapal. Yes. It really hurts court efficiency when 
people don't believe that they are getting a fair shake.
    In the criminal justice system, everyone is provided an 
attorney if they can't afford one. Ms. Grisez, as an 
experienced pro-bono attorney, how would expanding appointed 
counsel into the immigration system impact an individual's 
access to justice?
    Ms. Grisez. Thank you for that question, Representative 
Jayapal. It would impact access to justice in a lot of ways, 
and one of the big ways is starting before people would even 
enter the courtroom.
    Right now, the Office of Legal Access Programs within EOIR 
does fund a legal orientation program, but it is not present in 
all detention centers. It is not universal, and it doesn't 
exist for non-detained people, and it doesn't exist for 
children. There are groups of people that either find a lawyer 
on their own or a pro-bono lawyer or they don't.
    So, for your question, I like to think about what the 
immigration system would look like for pro se people, where 
everyone would have access to LOP, everyone would have a 
lawyer, people would understand what the charges against them 
are, what has to happen at a master calendar with pleadings, 
what is the impact of the concessions they make or the 
applications for relief that they indicate they are going to 
file, and that there would be predictability from one hearing 
to the next on what they would expect.
    If an objection is made on the record, it is preserved for 
the ruling, and a ruling made by one judge would carry over to 
another judge. It is understanding, knowing decisions, respect 
for the process, and ability to accept the decision even if it 
is negative.
    Ms. Jayapal. Well, let's
    Ms. Grisez. I am sorry.
    Ms. Jayapal. No. Let's go to that, actually, because I 
think you are pointing out that it is not just success in 
receiving immigration relief, but we have seen in New York City 
where the Vera project has provided universal counsel to 
detained individuals, that when people have competent counsel 
and understand that they are not eligible for benefits under 
U.S. law, they are much more likely to accept removal as well.
    Let me ask you to respond to that point that you were just 
beginning on.
    Ms. Grisez. Yes.
    Ms. Jayapal. Would you agree that expanded counsel--access 
to counsel could actually help improve court efficiency?
    Ms. Grisez. Yes. I can give you one good example. A lawyer 
in my firm was appointed to represent someone at the 9th 
Circuit, by the 9th Circuit pro-bono panel, the first time the 
individual ever had a lawyer. They were persisting from the 
immigration court to the BIA to the circuit in asserting a 
legal claim that was based on a fact but didn't influence his 
eligibility for relief.
    Once he got a lawyer who told him, ``Your claim is not 
going to work, it is not allowed under the statute, you are 
going to stay detained through the whole 9th Circuit process, 
and you are going to lose,'' he dissolved his claim, accepted 
deportation, and left. That could have happened years earlier 
if he got a lawyer earlier in the process.
    Ms. Lofgren. The gentlelady's time has expired.
    Ms. Jayapal. Madam Chair, I do have a unanimous consent 
request to enter into the record, a September 2016 report by 
the American Immigration Council, Access to Counsel in 
Immigration Court; and a 2017 report by the Vera Institute of 
Justice evaluating the impact of legal representation on family 
and community unity.
    Ms. Lofgren. Without objection, those will be entered into 
the record.
    [The information follows:]
      

                       MS. JAYAPAL FOR THE RECORD

=======================================================================
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]

    Ms. Lofgren. I see Mr. Buck, who is now recognized for his 
questions. I think you are muted, Ken.
    Mr. Buck. Thank you. My constituents wish I would stay that 
way sometimes, but I appreciate the warning.
    Mr. Arthur, I am going to direct my questions to you. I am, 
obviously, concerned about the folks that are using the asylum 
process as an excuse, but I wanted to get your thoughts on 
those that are actually coming to this country with legitimate 
asylum claims and the backlog that they have to go through to 
be heard in this process.
    So, it just seems to me that when we have a lax system 
where we are allowing people to be released on their own 
recognizance basically, and come back on their own word, we 
have this tremendous backlog. The problem is that when someone 
has a legitimate asylum claim, they are in limbo until that 
claim is decided in their favor, and then they are given legal 
status and they can actually try to make a life for themselves 
in this country.
    So, your thoughts on the effects of just basically an open 
door policy for folks to use asylum as an excuse to get in.
    Mr. Arthur. Yeah. Thank you for that, Mr. Buck, because 
this is one of those subjects that doesn't get discussed 
enough. Between Fiscal Years 2008 and Fiscal Year 2019, fourth 
quarter, about 83 percent of all migrants apprehended at the 
border who claimed a credible fear if returned were found to 
have a credible fear. At the end of the day, only about 14 
percent of that 83 percent--I am sorry, 17 percent of that 83 
percent actually received asylum.
    The focus in the system really needs to be on that 17 
percent of individuals who are found to have credible fear, so 
that we can adjudicate their asylum quickly. It is very 
important to our system of justice for a variety of reasons, 
and it goes to who we are as a people as well.
    If you are granted asylum, you can start to put your life 
in order. You can start to put down roots in the United States. 
More importantly, or as importantly, you can also petition for 
your family Members who are abroad. It is not a big surprise--
it is actually quite logical, unfortunately--that individuals 
who are political dissidents, for example, their family Members 
will also be threatened.
    So, the more quickly that we can grant them asylum, the 
more quickly we can get those family Members out of harm's way. 
So, absolutely, getting rid of the bad cases and getting to the 
good cases is absolutely crucial.
    Mr. Buck. Well, one of the things I want to complement you 
and your organization for is it is really important that when 
we have legitimate asylum cases that we welcome people to this 
country, that we are a compassionate country, and we should 
demonstrate that across the world. One of the ways we 
distinguish ourselves from our adversaries, like China, Russia, 
Iran, and other countries, is we are good people. We are a 
government and a people that want to make sure that we show our 
humanity and our values.
    So, the asylum system is important, and it is important 
that we get it right and it doesn't get clogged up with people 
who are coming here for economic reasons. They want to jump the 
line. They don't want to wait their turn for various types of 
visas, and they actually hurt the process for those that are 
seeking asylum.
    The Center for Immigration Studies has it right in a lot of 
ways when it talks about the fact that we don't want to have as 
broad immigration as we have right now, but we want to make 
sure that we are more welcoming to those who are coming to this 
country for legitimate reasons and really should be welcomed by 
the people of the United States. I appreciate your stand on 
that.
    Has there been anything else that you want to comment on, 
other questions that were asked that you didn't have a chance 
to respond to?
    Mr. Arthur. Thank you for that, Mr. Buck. As I listened to 
my colleagues, my former colleague Judge Tsankov, and to Ms. 
Stevens and Ms. Grisez, one of the things that I really heard 
was that a lot of the issues that we are talking about are 
administrative issues. We need to make sure that cases are done 
quickly. We need to make sure that the electronic filing system 
is good, and that actually goes to the question that you asked, 
because one of the issues with asylum is asylum fraud.
    John Morton, who had previously been the Director of ICE, 
actually did a massive case involving something called 
Operation Jakarta in which individuals from Indonesia falsely 
claimed asylum. I think it was more than 1,000 individuals that 
were involved.
    We want to get the bad cases out of the system, and we want 
to cut down on them. Electronic filing will enable that because 
it will enable USCIS EOIR to match up very similar claims in 
which people are basically just submitting the same claim over 
and over again hoping to get asylum.
    Mr. Buck. My time has expired. I appreciate your answer, 
and I want to yield back.
    Mr. Arthur. Thank you, Mr. Buck.
    Ms. Lofgren. Thank you very much, Congressman Buck.
    I would now like to yield to Mr. Correa for his questions.
    Mr. Correa. Thank you, Chair Lofgren. First, let me say 
thank you very much for this hearing. Very important. As I 
listened to the discussion of immigration today, I would say 
this issue is not about immigrants, but rather it is about 
Americans and our history.
    Judicial discretion independence--I have heard a lot of 
discussion today about foreign policy also viewed in the 
context of refugees, people coming into the country. I want to 
focus a little bit different, and that is the folks that have 
been here in this country that have made a life, that have 
become good taxpayers, good, productive Members of our society, 
that are parents to American citizens, people that are front-
line workers right now.
    I am going to ask each of our Witnesses here today a quick 
question, and I hope you can answer it. One of the issues that 
is very near to my heart right now are deported veterans, 
people with a green card that join the military, go off and 
fight, come back after God knows how many tours of duty, after 
seeing God knows how many things they shouldn't see happen to 
their fellow soldiers, they come back and same thing happens to 
them that happens to a lot of other soldiers--PTSD, they go to 
a bar, get drunk, get in a fight, get a conviction and 
deportation.
    Under judicial independence or discretion, Ms. Stevens, 
would these deported veterans possibly have a shot to stay in 
the U.S., if a judge was to weigh the merits of a soldier 
versus a mistake?
    Ms. Stevens. Thank you for that question, Representative 
Correa. That is a very interesting aspect. The immigration laws 
are not kind to people who have convictions.
    Mr. Correa. Even a soldier who has fought for this country, 
laid it all on the line, who has done more than most American 
citizens probably have.
    Ms. Stevens. He would have had the opportunity, while he 
was a soldier, to apply for naturalization, if possible.
    The immigration judges do have some ability under the 
immigration laws to use some discretion.
    Mr. Correa. So, there is some remedy there.
    Ms. Stevens. There is some ability to use discretion under 
the current system.
    Mr. Correa. Ms. Grisez. Ms. Grisez.
    Ms. Grisez. Well, Representative Correa, thank you for the 
question. The move to an article I court wouldn't solve the 
problem that you point out, which is a real and serious 
problem. The ABA has other policy on the restoration of 
discretion to immigration judges of broader--
    Mr. Correa. Thank you. Ms. Tsankov. Ms. Tsankov, would 
there--
    Ms. Tsankov. The one thing that I would say is if those 
individuals are lawful, permanent residents, depending upon the 
nature of the crime, if it is a brawl, then potentially they 
could apply for some sort of cancellation or removal or some 
other form of relief.
    Mr. Correa. So, judicial discretion independence here would 
or wouldn't help them? Maybe. Maybe not.
    Ms. Tsankov. It just depends. We just--
    Mr. Correa. Mr. Arthur. Mr. Arthur.
    Mr. Arthur. Yeah. Thank you, Representative. Actually, for 
what it is worth, I advised Attorney General Janet Reno on not 
this case but--
    Mr. Correa. Yes or no. Yes or no. Help me out here. I am--
    Mr. Arthur. No, it wouldn't. Once the decision is made to 
put the person--
    Mr. Correa. So, there wouldn't be any amnesty for these 
immigrants under this proposed independence of the courts.
    Mr. Arthur. There would be no latitude by which the court 
could not Rule that way, sir.
    Mr. Correa. Thank you very much.
    Coming back to the issue of foreign policy, Ms. Stevens, 
how would these independent courts affect our Nation's foreign 
policy?
    Ms. Stevens. Thank you very much for that question, sir. 
The establishment of an independent article I court would not 
remove the ability of the executive to make decisions on 
foreign policy, and policy decisions is in the immigration 
context. The visa system, everything else, that is not part of 
the things that immigration courts take a look at. They are 
only looking at deportation.
    So, authority over visa issuance, admissions into the 
United States, national security, and related cases, is not 
going to be removed from the executive. That actually would be 
well within the power of DHS, and DHS is the party before the 
immigration court and can bring those concerns to any 
independent immigration judge.
    Thank you.
    Mr. Correa. Chairwoman Lofgren, I have so many other issues 
I want to talk about, but it seems like my time is running out. 
So, with 12 seconds left, I yield the remainder of my time. 
Thank you.
    Ms. Lofgren. The gentleman yields back.
    I would like to recognize the gentlelady from Texas, Ms. 
Escobar, for her questions.
    Ms. Escobar. Thank you, Madam Chair. I appreciate the 
opportunity to have this conversation with our Subcommittee, 
and many thanks to the panelists who have shared their advocacy 
and their recommendations with us.
    I know some of my colleagues love to say that they have 
been to the border. I am the only representative on this 
Committee who actually lives in and represents a border 
community. While some of my colleagues want to convince the 
American people that we can address our immigration challenges 
simply by hardening the border and utilizing cruelty as a 
policy, the truth is that the prior Administration tried that 
and it only made things worse. That, and decades of 
congressional inaction, have created the current situation we 
face today.
    What we need is a holistic approach, significant and 
multifaceted reform, and we need some honesty in this 
conversation. Honesty, so that we can tackle our great 
challenges strategically and together.
    We know that housing our immigration court and the 
Department of Justice means that our immigration system is 
subject to the political will of presidential Administrations. 
As detailed in today's hearing, at best, this creates an 
inconsistent immigration system with unreliable efficiency, 
accessibility, and fairness.
    Under the worst-case scenario, as we saw during the prior 
Administration, it leaves room for highly partisan forces to 
try to use the courts to execute a political agenda.
    Our immigration system is broken. While creating an 
independent immigration court will not solve everything, it is 
a key component to this multifaceted approach, multifaceted 
reform, that is needed. It will ensure that our courts are non-
partial, well-staffed, and out from under the influence of 
whichever party happens to be in the White House.
    Refusing to establish an independent immigration court will 
result in us continuing to throw good money after bad while 
backlogs pile up, applicants languish in massive lines or 
incarceration, and families endure the uncertainty of their 
future in the United States.
    I would like to ask Ms. Tsankov, Ms. Stevens, and Ms. 
Grisez, how would creating an article I court allow it to 
address the backlog of non-detained cases? If all of you have a 
response to that, that is great. If only a couple of you or one 
of you has a response, I am interested in it, please.
    Ms. Tsankov. I am happy to give it a go. Under an article I 
structure, that intense, politically driven docket shuffling, 
which furthers shifting priorities, and which change from one 
Administration to the next, that would be avoided.
    An independent court would enable the judges to ensure that 
they control their dockets and that court resources are 
prioritized. That goes for making sure there are enough 
interpreters, nimble and agile IT systems, appropriate staffing 
levels, and all those factors that we need to ensure that we 
have well-resourced courts that can address that backlog.
    Ms. Escobar. Thank you.
    Ms. Stevens?
    Ms. Stevens. Thank you for that question. The FBA believes 
that allowing the judges to control their own dockets, and 
other administrative efficiencies, will help decrease that. The 
most important thing is going to be increasing respect for the 
decisions and diminishing the number of times that an 
immigration judge has to look at the case by decreasing the 
number of appeals.
    Thank you.
    Ms. Escobar. Ms. Grisez?
    Ms. Grisez. Yes. One thing that I would say is that 
limiting the constantly changing priorities and creating 
separate dockets for separate populations, pushing other cases 
to the back burner, and moving judges from one docket to the 
other, and disrupting the reliability of prior rulings and 
causing cases to be revisited, would all improve the backlog 
situation.
    As we have heard before, cutting down on appeals and 
cutting down on motions to reopen, after some of these errors 
infect the trial-level proceedings, would be a big contribution 
to backlog reduction.
    Ms. Escobar. I appreciate that. I have only got about 40 
seconds left. Ms. Tsankov, would making IJs and the BIA an 
article I court allow it to be more innovative?
    Ms. Tsankov. Absolutely. Once the judges and the board have 
control over their resources, they can be more nimble. They can 
purchase the types of resources that will enable them to 
efficiently manage their dockets.
    Ms. Escobar. Thank you so much. The point of these 
questions is to demonstrate that we don't have to keep throwing 
good money after bad. If we create these reforms, we actually 
can create a more efficient system, a fairer system, and deal 
with those backlogs that both parties--even my colleagues 
across the aisle--would like to solve.
    Thank you so much, Madam Chair. I yield back.
    Ms. Lofgren. Thank you.
    Now, I recognize the other gentlelady from Texas, Ms. 
Sheila Jackson Lee.
    Ms. Jackson Lee. Thank you very much, Madam Chair. I am 
traveling at this moment to the airport, but this is a very 
important hearing and I want to be able to speak accordingly on 
this very important issue, and to at least put my imprint on 
what I think is a continuing rising crisis, because people are 
speaking at each other, in particular, to those who believe 
that the greatest crisis in America is because people are 
fleeing oppression and want to seek a legal way of entering the 
United States.
    So, let me raise questions that I would appreciate 
succinctly if our Witnesses could answer. One, in terms of 
immigration court, what would that do to the level of 
proficiency and expertise? So, my question is about, would 
there be a superior level of understanding of immigration law 
and a broader capacity for discretion and/or compassion?
    Secondarily, venture to guess how many courts would we need 
to open, and would we need to focus on areas like the Southern 
District, which, as you know, is enormously bogged down in 
immigration cases? Would you prioritize in the court, or would 
there be a structure for asylum cases to be moved forward on 
humanitarian and legal grounds?
    I will start with those three questions, please, and how we 
would design the court. To Mimi Tsankov and Elizabeth and 
Karen, would you go forward, please, at this time? Certainly 
Judge Arthur. Would you go forward, please, with those 
questions?
    Ms. Tsankov. So, if I understood those multiple questions 
correctly, what you are trying to understand is, how can we 
ensure that the matters that are pending on our dockets are 
going to be addressed efficiently and with compassion. The 
question about compassion is one that I believe underscores 
every interaction by a judge with the parties appearing before 
them.
    There should never be a moment, no matter what the decision 
is that is being issued, that doesn't reflect the humanity that 
the judges know is at the core of our immigration system.
    The second part of your question is, how would you do that 
as a judge? How would you ensure that you are working on the 
cases in an effective manner? I believe that if you, as the 
judge, can control your docket, as an article I judge role 
would give you that ability to do, you can prioritize the cases 
in the manner that you think are going to meet the needs of 
your docket and those parties that are appearing before you.
    So, I do believe that that additional control that you 
would have as a judge would give you the power to achieve some 
of the goals that you are hoping to see in a new system. I 
would like to pass it along to my other colleagues as well.
    Ms. Stevens. Good afternoon, and thank you very much for 
those questions, Representative Jackson Lee. The FBA believes 
that moving the immigration courts to an article I system where 
judges have at least a 15-year term will recruit people into 
the system for adjudication that are more prepared to be 
immigration judges, that have a better background in 
immigration law, or in actually running a courtroom.
    We believe that it will help with better training and more 
focused training. We also believe that a court system will be 
far more agile in being able to open up new courts in areas 
that need an additional court or judges. That is part of the 
whole system that was created in our model bill and could 
easily be imported into any piece of legislation.
    Thank you. I accede to Ms. Grisez.
    Ms. Grisez. Thank you. Representative Jackson Lee, I would 
say there are a number of ways where the--
    Ms. Jackson Lee. If you could talk about asylum cases as 
well. Thank you.
    Ms. Grisez. Yeah. A number of ways where the article I 
process would help, starting with the selection of judges, 
trying to develop a more diverse pool and not leaning as 
heavily as we historically have towards government lawyers, and 
in particular ICE prosecutors, the tenure, as Ms. Stevens 
talked about, is another important factor, and training.
    You can't exactly teach compassion, but you can teach 
opportunity to be heard and fairness and cultural competence. 
So, in all those ways, I think article I would help.
    Asylum prioritization, that is a question for the judges 
and their ability to control their docket, but I would mention 
again the ABA's recommendation that some asylum cases could and 
should be diverted to the affirmative asylum system as some of 
the children's cases are now, to reduce some of that workload 
that currently lands in the immigration court.
    Ms. Lofgren. The gentlelady's time has expired.
    We will turn now to Ms. Scanlon for her questions.
    Ms. Jackson Lee. Thank you.
    Ms. Scanlon. Thank you. Sorry. Doing this from the road.
    Well, before coming to Congress, I was pro-bono counsel for 
a large national law firm like Ms. Grisez, and so I spent 
decades working on immigration cases and with our immigration 
system.
    So, I know the system has been underfunded and 
dysfunctional for decades, but we have seen actions by 
particularly the most recent Administration, but by successive 
Administrations, that have politicized and further dismantled 
our immigration system and compounded the preexisting problems. 
Nowhere has that been more true than in efforts to eliminate 
due process protections and undermine the independence of our 
immigration courts.
    The Trump Department of Justice implemented rules to 
restrict immigration judges' independent authority, imposed 
very strict and most would say unreasonable case quotas, and 
circumvented hiring processes to appoint more partisan judges 
and took away cases from judges they felt were too sympathetic 
to immigrants appearing before them.
    Although the U.S. has always derived its moral authority 
and its international stature from being a Nation of laws, 
these efforts to constrain immigration judges really impacted 
their ability to apply the law and to ensure due process.
    Nowhere was this politicization more evident than when the 
Sessions Department of Justice intervened in a deportation base 
before an immigration judge in Philadelphia, which I represent. 
That judge ordered a short extension to ensure that a teenager 
who was facing deportation could be located and notified of his 
opportunity to have his day in court.
    The Sessions DOJ reassigned the case to a judge who 
promptly ordered deportation without ever locating the child or 
allowing him to present his case. So, while this may seem an 
extreme event, it is important that we insulate our legal 
proceedings from the corrosive effects of executive overreach.
    So, I am really concerned about how the article I proposal 
could help insulate our immigration courts from such 
politicization.
    Ms. Grisez, I know you have had a great deal of experience 
with the courts over time. Can you provide some examples of how 
this executive interference with judicial independence has 
impacted the immigration judges' ability to comply with the 
Rule of law and make impartial adjudications?
    Ms. Grisez. Well, thank you Representative Scanlon. One big 
place where I see this is in the need for speed, or a report 
that some of the Members may be aware of that was prepared by 
Appleseed some years ago called Assembly Line Injustice, right? 
The idea that you have to go quickly, quickly, quickly, 
evaluations based on case completion numbers, case processing 
times, and nobody is reviewing immigration judges on the 
quality of their decision-making or their reasoning. So, that 
is one big area.
    Another place where I would say the move to the article I 
would help would be in improving standards for what the 
immigration judges need to do in the conduct of their cases.
    I can say, not in cases I have represented but in cases I 
have witnessed, I read a transcript from someone seeking 
representation where the judge asked the respondent in 
proceedings, besides your name and so forth, ``Were your 
parents born in the United States?'' Then, the answer was no, 
and then moved to a deportation order. Then dictated a decision 
on the record that said, ``I conducted a full colloquy with the 
respondent about all available forms of relief.'' Okay. That 
just isn't right.
    Contrast it with the judge that I have seen when an 
unrepresented person asked for a continuance to get a lawyer, 
the judge taking plenty of time to make sure that unrepresented 
respondent knew that by taking that continuance and pursuing 
his right to counsel, he would lose the ability to get a work 
permit by stopping the clock.
    I think that a move to article I, more standardization in 
hiring and training, would help smooth that out and lead to 
more even, more predictable results.
    Ms. Scanlon. Thank you. I mean, we have certainly seen the 
gross disparities in results in terms of the percentage of 
folks who have asylum granted or not. Certainly it would be 
easy to meet your docket requirements if you say denying 90 or 
91 percent of the claims in front of you--the national average 
is far below that--about 50 percent of people are granted, 
because they are actually illegal claims.
    Madam Chair, just before my time expires, I would seek 
unanimous consent to introduce into the record an article from 
The Philadelphia Inquirer dated August 1, 2018, entitled ``In 
Philly Immigration Court, a Judge is Replaced After Delaying 
Man's Deportation.''
    Ms. Lofgren. Without objection, that is made a part of the 
record.
    [The information follows:]

   

                       MS. SCANLON FOR THE RECORD

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    Ms. Scanlon. Thank you. I yield back.
    Ms. Lofgren. The gentlelady yields back.
    We have recognized all the Members who have had an 
opportunity to attend this hearing. I would like to ask 
unanimous consent to put statements from 24 organizations into 
the record. Without objection, that is so ordered.
    [The information follows:]

    

                       MS. LOFGREN FOR THE RECORD

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    Ms. Lofgren. I would like to note that we have 5 
legislative days to submit additional written questions for the 
Witnesses or to submit additional material for the record, and 
that is without objection.
    I would like to thank, once again, each one of our 
Witnesses who presented testimony and who provided written 
testimony. A lot of people don't realize that Witnesses are 
volunteers, and they do this just to help the Congress find its 
way and to hear diverse points of view. So, we do appreciate 
each one of you taking the time to provide that information as 
well as all the Members who participated.
    Seeing no further business before the Committee, without 
objection, this hearing is now adjourned.
    [Whereupon, at 3:41 p.m., the Subcommittee was adjourned.]

    

                                APPENDIX

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