    [Senate Hearing 118-578]
    [From the U.S. Government Publishing Office]

                                                            S. Hrg. 118-578

                         PRESERVING DUE PROCESS AND THE
                       RULE OF LAW: EXAMINING THE STATUS
                       OF OUR NATION'S IMMIGRATION COURTS

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

                                    HEARING

                                   before the

                          SUBCOMMITTEE ON IMMIGRATION,
                         CITIZENSHIP, AND BORDER SAFETY

                                     of the

                           COMMITTEE ON THE JUDICIARY
                              UNITED STATES SENATE

                        ONE HUNDRED EIGHTEENTH CONGRESS

                                 FIRST SESSION
                                   __________

                                OCTOBER 18, 2023
                                   __________

                              Serial No. J-118-36
                                   __________

             Printed for the use of the Committee on the Judiciary

                   [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

                            www.judiciary.senate.gov
                                www.govinfo.gov
                                    ______

                       U.S. GOVERNMENT PUBLISHING OFFICE

    58-972                     WASHINGTON : 2025

                           COMMITTEE ON THE JUDICIARY

                       RICHARD J. DURBIN, Illinois, Chair
    SHELDON WHITEHOUSE, Rhode Island     LINDSEY O. GRAHAM, South Carolina,
    AMY KLOBUCHAR, Minnesota               Ranking Member
    CHRISTOPHER A. COONS, Delaware       CHARLES E. GRASSLEY, Iowa
    RICHARD BLUMENTHAL, Connecticut      JOHN CORNYN, Texas
    MAZIE K. HIRONO, Hawaii              MICHAEL S. LEE, Utah
    CORY A. BOOKER, New Jersey           TED CRUZ, Texas
    ALEX PADILLA, California             JOSH HAWLEY, Missouri
    JON OSSOFF, Georgia                  TOM COTTON, Arkansas
    PETER WELCH, Vermont                 JOHN KENNEDY, Louisiana
    LAPHONZA BUTLER, California          THOM TILLIS, North Carolina
                                         MARSHA BLACKBURN, Tennessee
                 Joseph Zogby, Chief Counsel and Staff Director
          Katherine Nikas, Republican Chief Counsel and Staff Director

          Subcommittee on Immigration, Citizenship, and Border Safety

                        ALEX PADILLA, California, Chair
    SHELDON WHITEHOUSE, Rhode Island     JOHN CORNYN, Texas, Ranking Member
    AMY KLOBUCHAR, Minnesota             CHARLES E. GRASSLEY, Iowa
    CHRISTOPHER A. COONS, Delaware       TED CRUZ, Texas
    MAZIE K. HIRONO, Hawaii              TOM COTTON, Arkansas
    CORY A. BOOKER, New Jersey           THOM TILLIS, North Carolina
    PETER WELCH, Vermont                 MARSHA BLACKBURN, Tennessee
                   Alyson Sincavage, Democratic Chief Counsel
                    Ryan Raybould, Republican Chief Counsel

                                C O N T E N T S

                                  ----------

                               OPENING STATEMENTS

                                                                       Page

    Padilla, Hon. Alex...............................................     1
    Cornyn, Hon. John................................................     3
    Durbin, Hon. Richard J.
        Prepared statement...........................................    32

                                   WITNESSES

    Gambler, Rebecca.................................................    12
        Prepared statement...........................................    34

    McKinney, Jeremy L...............................................     7
        Prepared statement...........................................    51
        Responses to written questions...............................    58

    Stimson, Charles D. ``Cully''....................................    10
        Prepared statement...........................................    62

    Tsankov, Hon. Mimi...............................................     9
        Prepared statement...........................................    83
        Responses to written questions...............................    91

                                    APPENDIX

    Items submitted for the record...................................    31

                         PRESERVING DUE PROCESS AND THE
                       RULE OF LAW: EXAMINING THE STATUS
                       OF OUR NATION'S IMMIGRATION COURTS

                                  ----------

                          WEDNESDAY, OCTOBER 18, 2023

                          United States Senate,
              Subcommittee on Immigration, Citizenship,
                                     and Border Safety,
                                    Committee on the Judiciary,
                                                        Washington, DC.
        The Subcommittee met, pursuant to notice, at 10:03 a.m., in
    Room 226, Dirksen Senate Office Building, Hon. Alex Padilla,
    Chair of the Subcommittee, presiding.
        Present: Padilla [presiding], Klobuchar, Hirono, Booker,
    Welch, Cornyn, Tillis, and Blackburn.

                OPENING STATEMENT OF HON. ALEX PADILLA,
              A U.S. SENATOR FROM THE STATE OF CALIFORNIA

        Chair Padilla. Good morning, everybody. I'd like to call to
    order this hearing of the Senate Judiciary Subcommittee on
    Immigration, Citizenship, and Border Safety.
        Before beginning today's hearing, I do want to take a
    moment simply to acknowledge the settlement between the Biden
    administration and the plaintiffs in the Ms. L family
    separation litigation that was announced earlier this week.
        While nothing can fully undo the harms that the zero-
    tolerance created, this settlement will provide critical
    safeguards against future family separation policy.
        It's not the specific issue at hand today, but I think
    relevant enough--noteworthy enough to reference in this
    morning's hearing as we begin.
        But we are gathered here for what is the second hearing of
    the Subcommittee this year. I want to thank Ranking Member
    Cornyn for prioritizing today's hearing, all the staff who made
    this hearing possible, and everybody's flexibility with the
    timing of the hearing, given other matters before the Senate
    today.
        We're here to examine the current state of our Nation's
    immigration courts, which are charged with adjudicating
    immigration cases by fairly, expeditiously, and uniformly
    interpreting immigration laws.
        Every day, judges like Judge Tsankov, who is here with us
    to testify today, hear cases in immigration court and determine
    whether to grant relief to respondents who qualify or to issue
    removal orders, which, in other words, is to deport non-
    citizens from the United States.
        It's no exaggeration to say that in many cases the outcomes
    of these hearings are a matter of life or death. Yet, as we'll
    hear today, there are mounting challenges that threaten non-
    citizens' right to due process and a meaningful opportunity to
    be heard by an independent arbiter.
        Today we'll hear about an immigration court system
    struggling to deliver timely and fair decisions, due, in large
    part, to a growing backlog of cases pending before the
    Executive Office for Immigration Reform, also known as EOIR.
        We'll hear about children without counsel, sometimes as
    young as 1 or 2 years old, who appear before immigration judges
    clutching toys, holding back tears, barely being able to reach
    a court microphone, but who are, nevertheless, under current
    law, largely expected to make their case for asylum alone.
        We'll hear about immigration judges who are asked to
    shoulder impossible workloads of tens of thousands of cases as
    they face shifting priorities and deadlines, all with little to
    no support staff.
        You know, sadly, these experiences are all too common,
    representative of a larger, outdated, and overburdened
    immigration court system that leads to years-long waiting times
    for removal cases and increasing threats to due process. The
    head of EOIR recently stated that the case backlog was, quote,
    ``The largest single issue facing the immigration courts
    today.''
        As of August of 2023, there were more than 2.6 million
    cases pending before the courts. The backlog means that some
    respondents must wait years to have their cases adjudicated.
        Now, I want to be clear, this is not a Republican or a
    Democratic issue. The backlog grew every year under President
    Obama. It grew every year under President Trump. And it
    continues to grow today.
        Additionally, because the immigration court system remains
    housed with the Department of Justice, political appointees
    from both Republican and Democratic administrations have
    interfered with the independence of the court.
        This means that with each new administration, the
    immigration courts and the attorneys appearing before them
    experience a whiplash of policy changes and political
    decisions.
        Under the prior administration, we witnessed explicitly
    political appointments and promotions of biased judges,
    overturned precedent that made it harder for victims of
    domestic violence and gang violence to qualify for asylum, and
    case dockets reshuffled to serve a political agenda.
        Now, unlike in criminal proceedings, respondents in
    immigration courts also lack the right to a Government-
    appointed counsel if they can't afford representation.
        Right now, less than half of all people with cases before
    the immigration courts have attorneys, and an estimated 80
    percent of detained respondents lack representation.
        And we know that legal representation has a direct and
    profound impact, not just on a respondent's likelihood to win
    their case, but in increasing the efficiency of the courts.
        But rather than guarantee representation, we force non-
    citizens, including children, to navigate through this complex
    labyrinth of constantly shifting laws, which even immigration
    lawyers have a hard time keeping up with.
        The result is that whether from excessive case backlogs,
    ongoing political influence, or the lack of guaranteed legal
    representation, our immigration courts risk denying immigrants
    due process. It's clear that our immigration court system is in
    desperate need of reform.
        Now, I can also anticipate some of what my colleagues will
    share during this hearing, ``But what about the border? ''
    Addressing challenges on our southern border, of course, has to
    be part of that solution, but it is not the whole solution.
        As we know, surging resources to enforcement agencies like
    Border Patrol and ICE, without providing necessary resources to
    EOIR for it to keep up, will only further increase the backlog
    of cases--a natural cause and effect of our immigration court
    system.
        Now, as you can see on the chart behind me----
        [Poster is displayed.]
        Chair Padilla [continuing]. The stark resource disparities
    between immigration enforcement agencies and the immigration
    courts over the course of the last 20 years, EOIR'S budget up a
    little bit. ICE and CBP budget up a big amount. The most
    effective change we can make in Congress to address the
    critical issues facing our courts is one of resources, but also
    one where we can pass legislation establishing Article I
    immigration courts.
        This, too, would go a long way to restoring judicial
    independence, due process, and the rule of law in an
    immigration system. But we also have to make smart investments
    in immigration courts, including funding for support staff for
    immigration judges, for legal counsel to boost representation,
    and for funding much-needed process and technological
    improvements with the courts.
        My hope for today's hearing is that my colleagues will come
    to the table with an open mind that we can put aside partisan
    talking points and that we can focus on what steps we can take
    together to fix our immigration courts.
        And to do that, I'm looking forward to hearing from all of
    our witnesses--from your personal experiences, and what steps
    you believe can be taken to improve the efficiency of our
    courts while preserving due process.
        And with that, looking forward to today's hearing, I now
    turn it over to Ranking Member Cornyn for his opening
    statement.

                 OPENING STATEMENT OF HON. JOHN CORNYN,
                 A U.S. SENATOR FROM THE STATE OF TEXAS

        Senator Cornyn. Thank you, Mr. Chairman. You and I get
    along very well together. We've done a lot of important work
    together, but I couldn't disagree more about the priorities
    that you've discussed in your opening statement.
        Just since President Biden has been in office, there've
    been roughly 7 million people across our border. Many of them
    turned themselves in, claiming asylum. Others are released on
    humanitarian parole in huge numbers. There've been a million
    and a half got-aways, is what the Border Patrol calls them.
        Of course, if you're evading law enforcement, it tells me
    that maybe you're doing something you might not should be
    doing, like smuggling fentanyl and other drugs into the United
    States.
        The administration has the audacity to claim that all of
    the illegal drugs that come into our country come across the
    ports of entry. That's just not true.
        They have no idea what's happening between the ports of
    entry with all of the got-aways that come across. And, of
    course, there's a fact that 108,000 Americans died of drugs
    mainly that crossed the southern border, certainly the
    fentanyl. The 71,000 Americans who are dead as a result of
    fentanyl poisoning from last year alone. Those came across the
    border from Mexico, made out of chemical precursors from China.
        And then really the untold story of the status quo under
    the Biden administration is the 300,000 children who've been
    placed with sponsors in the interior of the United States.
        And, as The New York Times has documented recently in an
    investigative story, 85,000 wellness calls were made by the
    U.S. Government to these sponsors 30 days after the child was
    placed with a sponsor, and there was no answer.
        And so the Biden administration cannot tell you what the
    status of those children is. We do know that, as documented in
    some of these investigative stories, that some of these
    children have been in--put into forced labor, dangerous jobs
    that they should not be performing.
        We don't know whether they're being trafficked for sex. We
    don't know whether they're being neglected, abused.
        The Biden administration can't tell you because they don't
    frankly care. And if they did care, they would actually do
    something about it.
        So I just hold a very different view that this particular
    matter, as important as it is, and I agree it's important--
    independence of the courts is something that's near and dear to
    my heart, having served on the State court bench for 13 years.
        But the courts can only do so much when the Biden
    administration has opened the spigot at the border, and, as you
    know, there's roughly, according to one count, 2.6 million
    cases pending.
        Our immigration judges can't do their job just being
    flooded with this--these huge numbers. And so what does the
    Biden administration do? Well, they end up basically taking
    cases off of the docket on the back end, which make the numbers
    actually look better, but do not actually enforce U.S. law.
        So I agree with you that, that some of the measures people
    like to talk about, like physical infrastructure, is not an
    end-all be-all. It is a piece of the puzzle. Certainly
    technology and boots on the ground are important.
        But policy changes are important, too. As I suggested,
    there are people who literally come to the United States and
    turn themselves in and claim asylum, knowing that they can beat
    the system, that they will be--if they are given a Notice to
    Appear at all, it may be for years in the future. And who knows
    whether they decide to show up or not for that hearing.
        There's no consequences associated with not showing up
    unless, of course, they happen to get arrested for a crime in a
    local jurisdiction and somebody actually checks to see what
    their immigration status should be.
        But we also know that there are, in addition to the 2.6
    million cases pending, in about 1.3 million cases, these
    migrants are given a Notice to Appear, or--not a Notice to
    Appear, a Notice to Report, I guess it's called, to an ICE
    facility in the interior of the United States. And then to
    start the process once they turn themselves in.
        Again, you know, you might ask yourself how many people
    will, if they haven't complied with our laws otherwise, why in
    the world would you think that they're going to turn themselves
    in to ICE so they can get in the line for an immigration
    hearing where roughly 80 percent of the people can't qualify
    for asylum?
        And to me, one of the tragedies of this is, I believe that
    asylum should be available to people who can meet the standard.
    But we have literally millions of people in line waiting for a
    hearing in an immigration court, clogging the courts,
    overburdening the courts when only 15, maybe 20 percent can
    qualify.
        So that means that the 15 to 20 percent who can qualify
    can't get to court on a timely basis, because of the other 80
    percent that are in line.
        So this is an unmitigated disaster. And while I do, as I
    said earlier, believe in the importance of independence of the
    courts, and will listen closely, I just think this is a--this
    is not the top priority.
        If you look at the public polling on President Biden's
    approval rating on how he's dealing with what's happening at
    the border now--which happens to be 1,200 miles of my State--I
    think about 28 percent, if I'm recalling correctly, approve--28
    percent.
        I keep hoping that something will bring my Democratic
    colleagues, including the administration, to the table so we
    can engage in practical problem solving. That's what needs to
    happen.
        So thank you for giving me the opportunity to express my
    views, and look forward to hearing from the witnesses and
    asking some questions. Thank you.
        Chair Padilla. Thank you, Senator Cornyn. While I would
    normally turn to Senator Durbin for opening remarks at this
    point, he could not be here today. Instead, he has shared a
    statement for the record with me that I will enter into the
    record, without objection.
        [The prepared statement of Chair Durbin appears as a
    submission for the record.]
        I also see that the Ranking Member is unable to join us
    this morning, and so we'll proceed to our witness introductions
    and to hear their testimony.
        After I introduce and swear in the witnesses, they'll each
    have 5 minutes to make their opening remarks, and we'll then
    begin our first round of questions, and during which each
    Senator will have 5 minutes. And I ask that colleagues try to
    remain within their allotted time. We'll have a second round if
    there's interest and time allows.
        Introductions.
        I will start now with Mr. McKinney. Jeremy McKinney is the
    founder of McKinney Immigration Law. He's also the immediate
    past president of the American Immigration Lawyers Association
    and a recognized expert in immigration law, particularly on the
    topic of the immigration court system and the need for an
    independent immigration judiciary.
        He previously taught immigration law at Elon University
    School of Law as an adjunct professor, and served on the North
    Carolina State Bar's Specialization Committee. He is a former
    captain and trial counsel in the North Carolina Army National
    Guard, as well as a U.S. Army veteran. We appreciate your
    service, sir.
        I'd also like to introduce Judge Mimi Tsankov. An
    immigration judge and the president of the National Association
    of Immigration Judges. She was appointed to the bench in 2006
    and is seated today at the New York Federal Plaza Immigration
    Court in Manhattan. She previously presided at immigration
    courts in New York, Colorado, and California.
        She has served as an Immigration and Naturalization Service
    assistant district counsel, a special assistant U.S. attorney,
    and as an asylum officer. Judge Tsankov is actively involved
    with the legal and non-legal community, and serves in various
    leadership roles at the Federal Bar Association, the American
    Bar Association and Judicial Division, National Conference of
    Administrative Law Judges.
        She also has an ABA Presidential appointment to the United
    Nations Department of Global Communications in her capacity as
    president of the NAIJ. She's appearing today in her capacity as
    the president of NAIJ and not as a representative of the
    Department of Justice. Just wanted to make that abundantly
    clear.
        We also have Mr. Stimson with us, and I will turn now to
    Ranking Member Cornyn to introduce him.
        Senator Cornyn. We're pleased to have Charles ``Culley''
    Stimson here, who's the deputy director of the Edwin Meese III
    Center, manager of the National Security Law Program, and
    senior legal fellow and senior advisor to the president of the
    Heritage Foundation.
        Mr. Stimson writes, lectures, and testifies on a wide range
    of--wide range of policy issues, such as law of armed conflict,
    terrorist detainee policy, military commissions, criminal law,
    and the death penalty, of course, immigration, and the war on
    drugs. We're pleased to have you here today, Mr. Stimson. Thank
    you. Look forward to your responses and your statement. Thank
    you.
        Chair Padilla. Welcome, Mr. Stimson.
        And finally, we're joined by Rebecca Gambler, Director in
    the U.S. Government Accountability Office's Homeland Security
    and Justice Team, where she leads GAO's work on border
    security, immigration, and elections issues. Ms. Gambler joined
    GAO in 2002 and has worked on a wide range of issues related to
    Homeland Security and Justice.
        Prior to joining GAO, Ms. Gambler worked at the National
    Endowment for Democracy's International Forum for Democratic
    Studies. Ms. Gambler has an M.A. in national security and
    strategic studies from the United States Naval War College, an
    M.A. in international relations from Syracuse University, and
    an M.A. in political science from the University of Toronto.
    She was a Fulbright fellow to Canada and has a B.A. in
    political science from Messiah College. Thank you for being
    here, as well.
        At this point, let me ask each of you to stand and raise
    your right hands.
        [Witnesses are sworn in.]
        Chair Padilla. Thank you. Please be seated. Let the record
    reflect all witnesses have responded in the affirmative.
        And with that, we'll begin with witness testimony. Mr.
    McKinney, please begin.

          STATEMENT OF JEREMY MCKINNEY,  ATTORNEY  AND  NORTH
           CAROLINA BOARD-CERTIFIED SPECIALIST IN IMMIGRATION
           LAW;  IMMEDIATE PAST PRESIDENT,  AMERICAN IMMIGRA-
           TION LAWYERS  ASSOCIATION;  AND FOUNDER,  MCKINNEY
           IMMIGRATION LAW, GREENSBORO, NORTH CAROLINA

        Mr. McKinney. Thank you, Chairman Padilla, Ranking Member
    Cornyn, and the Members of the Subcommittee. Thank you for
    inviting me to testify today.
        My name is Jeremy McKinney. I'm the immediate past
    president of the American Immigration Lawyers Association, or
    AILA, the National Bar Association of 17,000 immigration
    attorneys. For the past 25 years, I have practiced regularly
    before the immigration courts.
        Let's paint the picture. My office is in Greensboro, North
    Carolina, and my immigration court is in Charlotte. My clients
    typically travel from 2 to 5 hours to appear in court.
        I want to tell you about two children, a brother and sister
    from Central America, that I represented in immigration court
    proceedings. They were sold by their father into domestic
    servitude and then abused by the people who bought them.
        The children escaped and reached the U.S. It became my job
    to prove they qualify for asylum.
        This meant that I need to tell their stories. The brother
    was so young, he struggled to articulate the horrors he had
    experienced, while his older sister bore the deep scars of
    trauma--so severe that she attempted to take her own life while
    her immigration proceedings were pending.
        They ultimately won asylum, but not before they faced a
    bewildering array of legal challenges. Their Notices to Appear
    lacked any hearing date, leaving them confused about when to
    appear. Immigration judges frequently order people removed for
    not appearing.
        Before filing their asylum applications, I had to send a
    copy to USCIS to trigger biometrics appointments for ICE's
    criminal, and security background checks. Some judges have
    ordered people removed for not having their biometrics done,
    even though it's typically beyond their control.
        So errors at any of these stages could have resulted in
    them losing their asylum case--a devastating consequence, and
    really a matter of life or death.
        Prior to hearing, I tried to contact the ICE attorney to
    narrow down the legal issues. But the ICE attorney never
    responded, which is unfortunately common. In fact, ICE has
    recently instructed their attorneys that they don't even need
    to appear in court.
        Ultimately, these siblings won their case because at the
    time, fear of persecution on account of kinship and domestic
    abuse was recognized as a valid basis for asylum.
        But years later, after they won, the Attorney General
    changed asylum law using his unusual power to override
    immigration court decisions and try to block kinship and abuse
    cases. This was reversed by Attorney General Garland.
        Each hurdle posed significant challenges that were rather
    typical for anyone navigating our immigration court system.
    These children could not have navigated it if they had not been
    represented by an attorney.
        It begs the question, if they had been unrepresented, like
    most people in immigration court, would they still be here
    today?
        This is the short and simple truth. Immigration courts are
    not real courts. The Executive Office for Immigration Review,
    or EOIR, is an arm of the Department of Justice headed by a
    political appointee, the Attorney General.
        The AG has total authority over EOIR, including the power
    to hire judges and readjudicate any case they decide. In an
    appeal, the AG represents the Government in seeking to deport
    the person, instead of remaining the neutral decisionmaker.
        The courts, as such, are not fair, and yet they exercise
    enormous power over the people appearing before them. Because
    immigration courts are part of the Department of Justice, they
    are exceptionally vulnerable to interference from the executive
    branch.
        Every--I want to be clear--every administration has
    interfered with the courts. This undermines the court's
    integrity and many of the executive branch's manipulations of
    judges and their dockets simply backfire.
        When we curtail a person's right to a full and fair
    hearing, I can say, as a lawyer, you increase, not decrease
    litigation, and that increases wait times.
        In AILA's view, the only way to restore integrity and
    fairness to the immigration court system, is for Congress to
    create an independent immigration court pursuant to Article I
    of the Constitution. And within this system, the Federal
    Government should fund legal representation for those facing
    removal who cannot afford counsel.
        The process should match the high stakes. But until this
    time comes, we have specific recommendations and commonsense
    reforms to ease the backlog and improve fairness: expanding
    electronic filing, directly accepting filing fees, setting
    clear standards from when a hearing is in person or virtual.
    And EOIR must require ICE to appear at hearings, and--in no
    other court is opposing counsel allowed to skip out on trial.
        While there's symptomatic problems, AILA wants to recognize
    the good things that the current EOIR leadership is doing to
    ease backlogs and restore IJ discretion, but much work needs to
    be done.
        ALA stands ready, sir, to work with your Subcommittee and
    the administration to make immigration courts fair and
    independent. Thank you for your time.
        [The prepared statement of Mr. McKinney appears as a
    submission for the record.]
        Chair Padilla. Thank you very much. Judge Tsankov.

         STATEMENT OF HON. MIMI TSANKOV, PRESIDENT, NATIONAL
          ASSOCIATION OF IMMIGRATION JUDGES,  NEW YORK,  NEW
          YORK

        Judge Tsankov. Good morning, Members of the Subcommittee.
    Thank you for the opportunity to testify today.
        As Senator Padilla said, I am an immigration judge seated
    in New York, and I've been on the bench for almost 17 years.
        I want to highlight today how the many challenges the court
    system is facing has led us to have over 2.6 million cases now
    waiting to be heard. I also want to explain why the only real
    solution is to create an independent Article I immigration
    court.
        Let me walk you through some of the difficulties that I've
    observed.
        There are about 700 immigration judges at the roughly 70
    courts around the country, and that works out to be about 3,700
    cases per judge.
        Each day I start my first trial at 8:30 in the morning, and
    I generally hold four hearings a day before I leave for the
    day. We're short staffed in New York City, much like the rest
    of the country, so I share a legal assistant with another
    judge. And staffing shortages, as you heard, do cause delays. I
    have very limited judicial law clerk support, and that
    restricts the help I can get resolving complicated questions of
    law, another cause for delay.
        With the recent high levels of migration at the border
    related to migrants bypassing the lawful pathways rule, many
    judges are being pulled from their home court dockets to handle
    border matters.
        These special assignments, brought on by real need,
    nevertheless wreak havoc on our home court dockets. Cases
    languish and are rescheduled to new dates far into the future.
        The consequence is a ballooning backlog. In Charlotte,
    North Carolina for example, the judges are resetting cases into
    2027.
        This summer I volunteered to work at the border in Laredo,
    Texas, on a detained docket where I handled credible fear
    review cases. I worked long hours and weekends hearing cases,
    and during that time, my home docket sat idle. My cases needed
    to be rescheduled to the end of my docket up to a year down the
    road.
        We have reached this point, in large part, because our
    courts are housed within the Department of Justice, and that
    control over the courts has resulted in extreme pendulum swings
    across subsequent administrations. Our judges must navigate
    their judicial responsibilities on the one hand, and heavy
    political scrutiny on the other. And these swings have
    significant operational impact.
        The ever-shifting political priorities result in dockets
    being shuffled and reprioritized. For the respondents who've
    been waiting years for their day in court, it's disheartening.
    Justice delayed is justice denied.
        As long as I can remember, the court has been poorly
    resourced. The budget for interpreters dries up. Plans for
    critical IT system improvements get put on the back burner.
    Training conferences are canceled. Staffing levels stagnate.
    Space needs aren't addressed.
        For example, we have years' worth of paper files sitting in
    our hallways waiting to be scanned. These are not just my
    views. Both the GAO and the Inspector General have released
    numerous reports critical of EOIR management.
        We know that the stakes are very high for those in
    proceedings before us, especially the many unrepresented
    individuals. Finding counsel is difficult and pro bono
    providers are overwhelmed. All of this results in court delays.
        Now, this administration has enhanced access to pro bono
    attorneys, but many vulnerable respondents, including children,
    remain unrepresented. I've decided many children's cases in the
    past. It is heartbreaking to see a young, unrepresented child
    in court, and I can tell you we need to take more time to
    address those cases properly.
        Only an independent Article I immigration court can fix the
    problems that plague the immigration court. This is not a
    political solution, it's a good Government solution. It
    maintains the Presidential prerogative to enforce immigration
    laws while separating out case adjudication. It would reduce
    the backlog because it would eliminate the DOJ bureaucracy. The
    judges would be responsible for managing their own resources
    and dockets like they do in Federal and State courts around the
    country.
        Of course, it is not the only fix that's needed to repair
    our system. But if Congress takes the necessary steps to remove
    the court from the executive branch, an independent court would
    begin the process of healing this broken system.
        An Article I court would ensure judicial independence,
    protect due process, and help us fulfill our mission as judges.
    Thank you for your attention. I'm happy to answer any
    questions.
        [The prepared statement of Judge Tsankov appears as a
    submission for the record.]
        Chair Padilla. Thank you, Judge. Mr. Stimson.

       STATEMENT OF CHARLES D. ``CULLY'' STIMSON, DEPUTY DI-
        RECTOR, EDWIN  MEESE III CENTER  FOR LEGAL AND JUDI-
        CIAL STUDIES,  AND MANAGER,  NATIONAL  SECURITY  LAW
        PROGRAM, THE HERITAGEFOUNDATION, WASHINGTON, DC

        Mr. Stimson. Chairman Padilla, Ranking Member Cornyn, and
    Members of the Committee, thank you for the honor of testifying
    today.
        My testimony today will rely on my experiences as an
    assistant U.S. attorney, a criminal defense lawyer, and 30
    years in the Navy JAG Corps, where I retired as a captain and
    served for 5 years as a military trial judge.
        First, I want to make three interrelated points.
        First, unlike all Federal and most State court judges,
    immigration judges cannot dismiss a case for failure to state a
    claim.
        Second, immigration judges cannot render judgment on the
    pleadings, even in patently frivolous cases.
        And third, even though Congress passed a law 26 years ago
    giving immigration judges contempt authority, no administration
    has actually implemented that rule. Which means immigration
    judges don't have contempt authority.
        The bottom line is this. Immigration judges, wherever
    they're housed, must have these common judicial tools to manage
    their crushing caseloads.
        Let me put a finer point on it. You've heard that there's
    over 2.6 million cases pending before the courts. That's up
    from 876,000 in 2019. If Congress does nothing, it deprives
    immigration judges of the common judicial tools, their
    caseloads will climb into the millions.
        But if you give them 12(b)(6) authority, and the ability to
    render a judgment on the pleadings and then arm them with
    contempt authority, their caseloads, by some estimates, would
    be cut by 75 percent. This is not and should not be a partisan
    issue. This is a good governance issue as the judge said, pure
    and simple.
        My first point, summary judgment. We all know that it's a
    bedrock principle of civil litigation in both Federal and State
    courts that a plaintiff must plead a viable legal claim. But
    that's not the case in immigration court. Whereas all State and
    Federal courts have tools they can use to dispose of meritless
    cases at the early stages of litigation, the immigration courts
    do not. That makes no sense at all.
        Immigration judges are handcuffed managing tens of
    thousands of patently meritless cases from filing to final
    judgment. On average, an immigration case takes 3-plus years,
    from filing to final judgment. By contrast, Federal judges are
    empowered by 12(b)(6) to dismiss claims that are inadequately
    pleaded or legally baseless. The courts in all 50 States also
    have this authority.
        To determine whether a claim is legally baseless, the court
    assumes that the facts alleged are true. The court then
    considers whether those facts satisfy the elements of a viable
    claim. If the facts, as pleaded, do not give rise to a viable
    claim, then the court can dismiss the case. Courts need not
    wait for a motion to dismiss a meritless case, but in most
    cases, they must give the party whose claims are dismissed an
    opportunity to be heard.
        My second point, judgment on the pleadings. Federal Civil
    Procedure 12(c) gives Federal district courts the power to
    grant judgment to a party based solely on the pleadings.
    Typically, this tool is used when the parties agree on the
    underlying facts of a case, but disagree about their legal
    effect. Alternatively, as with a dismissal under 12(b)(6), a
    court may assume that the facts alleged are true and consider
    whether they give rise to a viable claim.
        The courts then apply the law to those facts to determine
    whether a party is entitled to early judgment. Typically, a
    party must move for judgment on the pleadings before a court
    can enter an early judgment.
        Immigration judges lack both of these tools to prune their
    dockets. This means that when a plainly meritless case--and
    there are a lot of them--comes before them, they have no choice
    but to retain it, manage it, hold hearings on it, and only
    after the judicial process is exhausted, enter the inevitable
    judgment.
        The result is judicial gridlock. Meritorious cases stall
    behind a tsunami of baseless ones. Here's a fact. In FY22, EOIR
    granted only 14 percent of asylum claims.
        In my written testimony, I propose legislative tweaks to
    existing immigration statutes that would add 12(b)(6) and
    judgment on the pleading of this authority to immigration
    judges.
        My third point, contempt power. In 2019, the ABA wrote,
    quote, ``Immigration courts are facing an existential crisis,''
    and are, quote, ``irredeemably dysfunctional,'' unquote.
        And it's only gotten worse. Twenty-six years ago, Congress
    passed a law giving immigration judges civil contempt
    authority, but it delegated it to the U.S. Attorney General to
    draft the implementing regulations. No administration has done
    so.
        As a result, as you've heard, litigants before the
    immigration courts, Government attorneys and private counsel
    alike, can't be held accountable to the judge with respect to
    matters such as timelines, docketing dates, or even court
    orders.
        Counsel who often carry other cases before non-immigration
    judge courts put a priority on cases where the court has actual
    power to enforce its own orders, with either civil or criminal
    contempt.
        Counsel who appear before immigration judges know these
    judges can only wag their fingers and raise their voices if
    counsel defies a court order, but nothing more.
        As a result, immigration court judges are treated as
    second-class judges, taking a backseat to all other judges who
    have the contempt power over parties and lawyers who knowingly
    violate court orders.
        In summary, immigration judges need the same tools that all
    judges have. First, to trim their dockets of meritless cases,
    and then to manage their existing caseloads and control their
    courtrooms. Thank you.
        [The prepared statement of Mr. Stimson appears as a
    submission for the record.]
        Chair Padilla. Thank you. Ms. Gambler.

          STATEMENT OF HON. REBECCA GAMBLER, DIRECTOR, HOME-
           LAND  SECURITY  AND JUSTICE,  U.S. GOVERNMENT AC-
           COUNTABILITY OFFICE, WASHINGTON,  DC

        Ms. Gambler. Good morning, Chair Padilla, Ranking Member
    Cornyn, and Members of the Subcommittee. I appreciate the
    opportunity to testify at today's hearing to discuss GAO's work
    on the immigration courts.
        Within the Department of Justice, the Executive Office for
    Immigration Review, or EOIR, is responsible for conducting
    immigration proceedings. EOIR is facing an extremely large case
    backlog and that backlog is growing.
        As of July 2023, EOIR had a backlog of nearly 2.2 million
    pending cases. This is more than 4 times the number of pending
    cases at the start of Fiscal Year 2017.
        EOIR officials have identified resource shortages and
    increasing caseloads as contributing to the backlog. The
    effects of the case backlog are significant. Some respondents
    wait years to have their cases heard, and we've reported that
    the backlog can contribute to immigration judges being able to
    spend less time considering cases.
        GAO has issued numerous reports on the immigration courts,
    and today I'd like to focus my remarks on GAO's most recent
    report on EOIR management issues.
        In particular, I'll discuss our findings on, one, EOIR's
    workforce planning practices, two, the performance appraisal
    program for its judges, and three, EOIR's electronic filing
    system.
        First, over the years, EOIR has taken some steps to improve
    its workforce planning. For example, in recent years, EOIR
    filled its previously vacant human resource officer position
    and signed a contract with the Office of Personnel Management
    for strategic workforce planning support.
        While these are positive steps, significant gaps remain in
    EOIR's workforce planning efforts. Specifically, the agency has
    not yet developed a strategic workforce plan, which is a
    recommendation that GAO first made in 2017. This plan should
    include a determination of needed critical skills and
    competencies, strategies to address those skill and competency
    gaps, and a way to monitor and evaluate the agency's progress.
        EOIR also has not had an agency-wide strategic plan since
    2013. Setting an agency strategic direction is an important
    first step in establishing an effective workforce planning
    practice. EOIR officials have told us that they are drafting an
    updated strategic plan, but they haven't provided a schedule
    for completing it. We recommended that EOIR develop such a
    schedule with target timeframes.
        Second, regarding performance appraisals for judges, EOIR
    has a program that evaluates how immigration judges perform
    their duties using performance plans.
        However, EOIR has not evaluated its overall judge
    performance appraisal program, and some judges we interviewed
    raised concerns about the program, including that performance
    plans are not specific enough, or that expectations for the
    frequency of meetings between judges and their supervisors are
    not realistic in large courts with many judges.
        We recommended EOIR implement a process to periodically
    evaluate the performance appraisal program for judges.
        Finally, regarding EOIR's electronic filing system. The
    agency historically relied upon a paper-based system for filing
    case documentation.
        However, in 2018, EOIR began implementing an e-filing
    system at immigration courts, and as of November 2021, all
    courts have access to it. The system consists of several
    applications that are available to different types of
    stakeholders in the court system. For example, judges and court
    staff used the judicial tools application to access case
    information and create decisions on cases.
        Court staff that we interviewed expressed overall positive
    views of the e-filing system.
        However, court staff also told us they experienced system
    outages and delays while using the judicial tools application.
    While EOIR headquarter officials were aware of these issues,
    EOIR does not have a process to regularly assess whether the
    application is meeting the needs of its users.
        We recommended that EOR develop and implement a process to
    regularly reassess whether judicial tools is meeting the needs
    of its users.
        In closing, as EOIR continues to face a significant and
    growing backlog of immigration cases, effective management
    practices are critical to ensuring that EOIR is well positioned
    to fulfill its mission to adjudicate cases efficiently and
    effectively.
        We have reported that EOIR is facing management challenges
    and continues to need improvement in areas such as workforce
    planning.
        Our recommendations are intended to help position EOIR to
    address those challenges, and we'll continue to monitor actions
    to implement them.
        This concludes my oral statement and I'd be pleased to
    answer any questions.
        [The prepared statement of Ms. Gambler appears as a
    submission for the record.]
        Chair Padilla. Thank you very much. Thank you, to all of
    our witnesses.
        We'll now turn to questions from the Committee. To begin
    with, I want to explore the importance of legal representation.
    Representation rates in immigration court have been low for
    years. According to EOIR data, just 44 percent of the 5.6
    million people who appeared in immigration courts between 2002
    and 2022 had an attorney.
        And currently, out of more than 2 million immigrants with
    cases pending before the immigration courts, fewer than half
    have representation. These rates are even lower for immigrants
    in detention.
        However, attorneys have a significant impact in every stage
    of removal proceedings. Individuals with representation are
    more likely to show up for their court cases, and are
    significantly more likely to be successful in obtaining relief
    in immigration court.
        In fact, since 2001, EOIR data shows that only 6 percent of
    immigrants who were unrepresented were successful in winning
    their cases. Whereas having representation makes detained
    individuals more than 10 times more likely to prevail.
        Question's for Mr. McKinney. Can you just elaborate further
    on why having an attorney makes such a difference in outcomes
    for individuals, and how having representation impacts court
    efficiencies generally?
        Mr. McKinney. Thank you for the question, Chairman Padilla.
    As our written testimony indicates, there's a 2016 study from
    the American Immigration Council that indicates that
    represented respondents in immigration courts are 5 times more
    likely to gain relief.
        TRAC, a non-partisan organization whose numbers we all rely
    on, points out that those that apply for asylum affirmatively
    and then had to defend that asylum application immigration
    court, they saw their approval rates go to almost 76 percent
    because they were nearly all represented.
        Now, I do want to point out that that's still--that 76
    percent only still represents a very small number of total
    grants in our system.
        But the point is, is that representation ensures due
    process. But it also makes the system more efficient. When all
    the parties know the rules and know how to present a case,
    cases move faster.
        Chair Padilla. Thank you. And that's certainly my take,
    which should not be misinterpreted. The goal here isn't simply
    to grant more for the sake of granting more.
        The point here is true due process and an added benefit of
    improved efficiency of the court.
        Now I do want to go back to Mr. Stimson's testimony, his
    argument--or recommendations about contempt authority, ability
    to dismiss, the reference to 12(b)(6).
        Judge Tsankov, interested in your response to those
    statements and recommendations, and Mr. McKinney after that.
        Judge Tsankov. The first--I'll take the first one, which
    was the discussion about dismissal for failure to state a
    claim, and the statement of 75 percent of the cases would be
    reduced--removed from the docket.
        I'm not quite sure where that number 75 percent has come
    from, but to me, that seems like a very large number and a very
    large percentage that I can't quite imagine how that could
    happen.
        But let me explain what's the concern. Most of the people
    that appear before us don't have representation. So how a judge
    would be able to get them in a position so that they could
    state their claim and then the judge simply decide the case
    without them having had an adequate opportunity to present
    their claim, not quite sure how we would be able to do that.
        Fortunately, the administration has put in place--and we
    could consider expanding it--opportunities for pretrial
    conferences because at those pretrial conferences, the
    Department of Homeland Security can certainly say, we support
    this case and it won't require a full and complete hearing.
        But the vast majority of the cases that I see that appear
    before me have sufficient documentation within them, and the
    Department has security questions they want to ask, I would
    need to put it, at least, for a hearing. Thank you.
        Chair Padilla. Mr. McKinney?
        Mr. McKinney. I appreciate Mr. Stimson's comments and
    reading his written testimony, I found myself agreeing with
    much of it, if Immigration court was a real court. But it's
    not.
        Most of these respondents are unrepresented, the rules of
    evidence, Senator Padilla, literally do not apply. The rules of
    evidence do not apply in immigration court.
        I had this actually happen to me a couple of years ago on a
    gender-based claim. The immigration judge dismissed it without
    hearing testimony. As I indicated in my earlier remarks, I
    appealed. I won that appeal. That case is still pending. It's
    been pending now for 6 years.
        So curtailing a person's right to a full and fair hearing
    does not speed things up. It slows things down.
        Chair Padilla. Thank you. I'll have further questions in
    the next round, but at this point, Senator Cornyn.
        Senator Cornyn. Mr. McKinney, you say that immigration
    courts are not real courts. You are, I'm sure, aware of the
    fact that the executive branch agencies employ administrative
    law judges across broad, broad sectors of the Federal
    Government. For example, the Department of Labor houses the
    Office of Administrative Law Judges. The Office of
    Administrative Law Judges also do similar work at the Drug
    Enforcement Administration, among others.
        If immigration courts aren't real courts and lack the basic
    due process and independence that you think is necessary, does
    that raise your concerns? Does your concerns apply equally to
    the other functions that these administrative laws, the other
    subject matter areas that they operate in?
        Mr. McKinney. Well, thank you so much for the question,
    Senator Cornyn. I don't want to claim to be an expert in those
    other fields. But from my review in working on this issue, it--
    other--in other settings, administrative law judges simply have
    more power to act like judges.
        Senator Cornyn. They're not--they're not independent
    though.
        Mr. McKinney. They're not--they are--in some cases, they
    are not fully independent----
        Senator Cornyn. But, none of the cases are they fully
    independent. They're part of the executive branch. Right?
        Mr. McKinney. Correct. Ultimately there is--ultimately it's
    the administration that is in control that is running the
    Federal Government.
        Senator Cornyn. Judge, do you--I don't know how you handle
    what comes at you, and the volume that comes at you. I can't
    imagine having to do that day in and day out. It just seems
    overwhelming.
        And maybe we need to look at some of the inputs that cause
    people to end up in front of you. But right now, if somebody
    is, let's say, detained at the border and claims asylum, how
    long will it take them to get a hearing in your court?
        Judge Tsankov. In my court, if the case--if they had been
    issued a Notice to Appear, and they would probably get a
    hearing within maybe 5 months for their initial master calendar
    hearing, at which time I'd provide them with some information
    about their rights, then they'd want to probably find some--
    have some time to seek representation.
        Senator Cornyn. And so, do you agree--I think somebody
    mentioned the typical time period for adjudication of these
    immigration cases could be up to 3 years?
        Judge Tsankov. I think that's fair.
        Senator Cornyn. And I've seen actually some reports in New
    York newspapers that some immigration courts have backlogs of
    up to 10 years. Is that accurate?
        Judge Tsankov. I can't--I can say that I agree that there
    are some courts, because it's a different distribution of cases
    around the----
        Senator Cornyn. Right.
        Judge Tsankov [continuing]. Country and different numbers
    of judges, some of them do have very extensive delays.
        Senator Cornyn. I noticed that according to the Executive
    Office for Immigration Review adjudication statistics for the
    third quarter, that the median asylum grant rate is 12 percent.
    The mean court asylum grant rate is 16 percent.
        So, and I noted in your court, if I'm reading this
    correctly, the grant rate is roughly 30 percent. But my
    question is really about the 70 percent in your court, or the
    86 percent in courts across the country, that are clogging the
    system.
        That people who ultimately will have no legitimate legal
    basis to claim asylum that are--that are impeding access to the
    courts by people who actually have legitimate claims.
        I think we all agree that people with legitimate claims
    should be heard and should be granted asylum. So--but don't the
    people who don't qualify make that hard?
        Judge Tsankov. When the system is as overburdened as it is,
    it takes time to find and get to those cases that are
    meritorious. But we do re--we are required by the Constitution
    to provide due process even to those individuals that don't
    have ultimately a meritorious claim.
        Senator Cornyn. Well, I understand that, and it is--I'm not
    criticizing you, by any means. I'm just saying that the current
    system, for lack of a better word, there's really no system.
    It's just helter-skelter. But it does create a situation where
    there's backlog because of the sheer volume.
        Mr. Stimson, you know, years ago, maybe 2 years ago now,
    maybe less, 30--in a town, little sleepy town in south Texas,
    Del Rio, Texas, 15,000--it's 35,000 people, 15,000 Haitian
    migrants showed up and claimed asylum. They'd been living in
    South America for the past previous few years. And so clearly
    they had transited a safe third country.
        Would eliminating the ability of individuals to transit a
    safe third country to qualify for asylum in the United States,
    would that help address some of the--just the sheer volume that
    we're seeing these days and act perhaps as a deterrent that
    would discourage people without legitimate claims from showing
    up at the border?
        Mr. Stimson. Thank you for your question, Senator Cornyn.
    Yes, of course. And I would add that 12(b)(6) and judgment on
    the pleadings is due process, as I explained at length in my
    written testimony.
        And so the notion that a case with no merit whatsoever
    needs to languish for 3 years in a court system where people
    with legitimate asylum claims--who we can all agree need to
    have their cases heard and they need to be granted asylum--it's
    not fair to them.
        And so, 12(b)(6) and judgment on the pleadings is part of
    the due process that we afford in all State and Federal courts.
        Chair Padilla. Thank you. Senator Hirono.
        Senator Hirono. Thank you, Mr. Chairman, for holding this
    hearing.
        Before I proceed with my opening, I just would like to
    clarify a few things. For example, according to the Cato
    Institute, U.S. citizens were 89 percent of those convicted of
    fentanyl trafficking in 2022--93 percent of fentanyl seizures
    happened at legal crossings or interior checkpoints.
        In other words, none of the fentanyl coming into our
    country are not by so-called illegal immigrants, but by U.S.
    citizens.
        Also, this whole notion of all these people who don't even
    qualify for asylum clogging the system, the fact is detained
    individuals with attorneys, with attorneys--that is the
    critical point here--that people who have attorneys are 10.5
    times more likely to be granted relief. So it is when they have
    attorneys that they can proceed with their asylum claims.
        Our immigration system is complicated enough as it is. How
    are people who have language issues and other issues even
    supposed to come forward with their legitimate asylum claims if
    they can't even figure out what's supposed to happen?
        So this idea that there are all these people clogging the
    system, you know, we should be more concerned, I would say,
    with providing lawyers for these claimants.
        And I particularly want to focus on what happens to
    unaccompanied children who don't have lawyers. And I've
    witnessed immigration proceedings and led a bipartisan
    congressional delegation to border facilities in Texas.
        While there, I saw that the Government is always
    represented by counsel in these proceedings. Or maybe not if
    they don't bother to even show up anymore.
        But there is no guarantee that children will also have a
    lawyer. And this is alarming because children are some of the
    most vulnerable people in our immigration system.
        I've heard from advocates, including Mr. McKinney today,
    who've shared stories of children going through the process,
    including a 4-year-old child whose attorney had to describe the
    immigration process using a comic book. As a 4-year-old, the
    child wasn't able to sign his name to the documents and instead
    had to make a squiggle mark.
        Or a 2-year-old who was so young that when the lawyer
    visited her, the child was in a playpen. When the 2-year-old
    saw the lawyer, she tried to give the attorney her teddy bear.
    The attorney tried to use a cartoon book to explain what was
    happening, but eventually had to use toys instead.
        Were it not for the many volunteer attorneys who
    represented them, these children or these babies often would've
    been expected to represent themselves in court with the rest of
    their lives hanging in the balance.
        It is objectively ludicrous. Not to mention, I would say,
    inhumane. These are just the stories we're aware of. Nearly
    half of all unaccompanied children go into the immigration
    court without a lawyer. For every child who is lucky enough to
    be represented by an attorney, another is left to fend for
    themselves.
        But setting aside the principles of due process, fairness,
    or even the fact that giving children an attorney is just a
    humane thing to do, the data itself supports the idea that
    children should be given lawyers. And that's why we should
    increase the chances of children being granted relief by
    providing them attorneys at an earlier point.
        It reduces waste by streamlining proceedings. It presents
    clear materials to the court, and ensures that children show up
    for their hearings. Children cannot represent themselves in
    court. It's that simple. And to give the judges more authority
    to just basically toss out hundreds of thousands of cases, is
    not the answer.
        And that's why I have introduced the Fair Day in Court for
    Kids Act, which would provide unaccompanied children with legal
    representation when they go through the process earlier in the
    process.
        So Mr. McKinney, why is having an attorney so crucial for
    unaccompanied children?
        Mr. McKinney. Thank you, Senator Hirono, and thank you for
    your efforts in this arena. Briefly put, because many, most of
    these children have viable claims before the immigration courts
    and/or other agencies, from what I see, unaccompanied children
    have often been neglected, abused, or abandoned by one or both
    biological parents, and could qualify for relief, called
    Special Immigrant Juvenile Status, in this country.
        But navigating that often requires a State custody
    proceeding as a prerequisite to seeking that relief. If you're
    unrepresented, the children--child's not going to know about
    this. And not to mention the asylum claims coming from our
    hemisphere right now, it's just horrific. So we need to do more
    to make sure those kids are represented.
        Senator Hirono. So I heard the number 300,000 unaccompanied
    children are in the system. It's just pretty horrifying to me
    that they are expected to go through a very complicated,
    complex--I'm repeating myself--system without lawyers. Thank
    you, Mr. Chairman.
        Chair Padilla. Thank you. Senator Blackburn.
        Senator Blackburn. Thank you, Mr. Chairman. And thank you,
    to each of you, for being here.
        I think everyone's been horrified by what we have seen in
    Israel over the last few days, and we've also recognized that
    there is a direct threat to the Homeland when you look at what
    is happening at that southern border. And I had pulled some
    numbers.
        Border agents apprehended 19 Iranians and 17 Syrians since
    last Monday. That's absolutely astounding. That is since last
    Monday.
        And there are over 260 individuals on the Terrorist Watch
    List that have been apprehended at the southern border. And
    there can be no doubt that President Biden's open border has
    created the perfect storm for terrorists because it makes for
    easy entry.
        So, Mr. Stimson, I want to come to you on that, given that
    you've had a role previously in your life over at DOD. And when
    you look at these persons, the thousands of persons of interest
    that have come to the border, when you look at the ones that
    are on the Terrorist Watch List, when you look at individuals
    that are in that unknown got-away category, I--I want you to
    talk for a little bit about what you see as the concern on the
    stark rise of individuals coming across that border that are on
    that Terrorist Watch List.
        I--when you look at the fact that in 2019, we had zero come
    across, and then in 2021, the number upped, and it's upped
    again. If you'll address that, please.
        Mr. Stimson. Thank you, Senator Blackburn. You're referring
    to my time as Deputy Assistant Defense Secretary----
        Senator Blackburn. Yes.
        Mr. Stimson [continuing]. In charge of detainee policy in
    the Bush administration. And I've been in the room in the same
    facility as Khalid Sheikh Mohammed, the mastermind of 9/11, and
    the formerly held CIA detainees who are now currently housed at
    Gitmo.
        They have a saying, ``We have''--``You have watches, we
    have calendars.'' They take a long view of how they're going to
    destroy this country. And I'm gravely concerned with this
    porous border. We don't know what we don't know. We don't know
    how many we didn't catch who came to this country.
        We've seen this rise of anti-Zionism and anti-Semitism in
    this country, after the Hamas savages did what they did to the
    people and children and women in Israel.
        And so there's no doubt in my mind--this is based on my
    hunch, I have no classified information or access to that
    anymore in my current job--that there are bad actors in this
    country, and they came through the border. And so I think we
    should be open-eyed and clear-eyed about that going forward.
        Senator Blackburn. Well, and I think that Director Wray's
    warning potential Hamas attacks on the Homeland should be
    something that causes us all pause as we look at what is
    happening here.
        I want to touch with you on the trafficking of children at
    the southern border and the crisis that that has presented us
    with.
        I have been appalled that this administration removed DNA
    testing at the border--45-minute test. And when we did it, we
    found that a third of the children were being trafficked. And
    now we find out that the children that DHS has in cus--or
    should have had in custody out of the 335,000, they've lost
    85,000 of those children. They do not know where they are. They
    don't know if they are dead or alive, and/or if they're being
    placed into sex trafficking, labor, gangs, things of that
    nature.
        We also know that DOJ indicated that over a 10-year period,
    46 percent of the UACs disappeared before their hearings, and
    they failed to fulfill that Notice to Appear. And that's over
    half of the almost 50,000 children given Notices to Appear that
    have gone missing before their court date. So isn't it
    possible, or even likely that a number of these children who
    have failed to appear in court have been trafficked or
    exploited?
        Mr. Stimson. I think it's hard to disagree with that
    statement. And, you know, I, like everyone here to the left and
    my right, think that young kids in any court proceeding,
    whether it's criminal or otherwise, should have an attorney,
    especially one trained in forensic speaking at a child
    appropriate level.
        The question is, who pays? And I think we have differences
    of opinion on that. But I think the fate of many of these
    children is not good.
        Senator Blackburn. Thank you.
        Chair Padilla. Thank you.
        Senator Blackburn. Thank you, Mr. Chairman.
        Chair Padilla. Thank you. I do want to acknowledge other
    Members have come and gone, with other Committees in meetings
    this morning. So not sure whether or not Senator Tillis,
    Senator Booker, Senator Klobuchar, or others will return.
        But in the meantime, we do have additional questions. We'll
    start with the second round here.
        Now, over the years, Attorneys General from both parties
    have used a procedure called self-certification to influence
    and change immigration law.
        The Trump administration used self-certification a record
    17 times, including to restrict asylum eligibility and strip
    immigration judges of authority to decide when to put an end or
    to pause a case.
        In fact, former Attorney General Barr even used self-
    certification to reopen a 14-year-old asylum case, and, as if
    that wasn't concerning enough, self-referred and immediately
    reviewed a case relevant to oral arguments taking place before
    the Supreme Court, just 5 days later.
        After the Biden administration took office, Attorney
    General Garland has used self-certification to vacate or
    reverse decisions that did not fit with its policy objectives.
        Question for Judge Tsankov. Can you discuss how self-
    certification cases can affect non-citizens trying to navigate
    the process, and also how self-certification impacts your work
    as a judge?
        Judge Tsankov. Thank you for that question.
        So as we know, immigration judges decide their cases based
    on precedent decisions. And the precedent that we follow is
    issued by the Board of Immigration Appeals, any Attorney
    General decisions, and the Federal courts.
        So when a new Attorney General comes into office, they have
    the authority to certify cases to themselves and essentially
    rewrite the presiding law that we then all apply.
        One Attorney General might interpret a clause expansively,
    another restrictively. So the IJs are then bound by that new
    precedent.
        Now, this creates uncertainty throughout all of the
    parties--throughout the entire system, and all of the parties
    that are appearing before us.
        It also creates incentives to appeal unfavorable rulings,
    because an unfavorable ruling today, based on the law as it
    stands today, might be more favorable a few years down the road
    when a new Attorney General is appointed. This results in
    remands, which burdens the court and expands the backlog.
        Chair Padilla. Thank you. I also want to bring in Ms.
    Gambler here for a minute on issues of management and the
    backlog.
        Now, thanks in large part, to persistent under-resourcing,
    as compared to other immigration enforcement agencies, the
    courts have long struggled to keep up with the number of cases
    referred to them by DHS.
        The court backlog has grown consistently since 2007, as
    you've laid out. It doubled under the previous administration,
    and further increased during the COVID-19 pandemic, while many
    courts were physically closed.
        Despite a record couple of years of case completions under
    the current administration, the court backlog is now a little
    over 2 million cases and growing. I want to afford you an
    opportunity to share what steps could EOIR take to help address
    the backlog.
        Ms. Gambler. Thank you, Chair. We think it's critically
    important for EOIR to address the recommendations that GAO has
    made to it over the years. Those recommendations are really
    designed to help improve the management and thus help EOIR
    improve the efficiency of court operations.
        And there's a particular recommendation that I would like
    to highlight that, that is long-standing.
        And that is the need for EOIR to develop a strategic
    workforce plan. That is important because that type of
    workforce planning efforts helps an agency identify what gaps
    and skills they need to have in their workforce, how they're
    going to fill any skill and competency gaps they have, and then
    monitor progress in doing that.
        A strategic workforce plan also helps an agency be
    positioned then to speak with Congress about what the resource
    needs are and how the agency will go about meeting those
    resource needs.
        So this is a long-standing recommendation that GAO has made
    to EOIR--we made it back in 2017. It's actually a priority
    recommendation, and we think it's critically important that
    EOIR take action to address that and work on getting a
    strategic workforce plan in place.
        Chair Padilla. Okay. And in the spirit of trying to address
    the backlog, you know, I keep coming back to the recommendation
    Mr. Stimson has offered. The reference to the, whether it's 30-
    to-70, the 20-to-80, the ratio of successful versus
    unsuccessful claims. It can change over time. It changes region
    to region, across the country.
        But to suggest that, well, it's just simply a clogged
    system. You know, if you can quickly, easily just remove cases
    without merit and be able to focus the system on those that
    have more merit.
        Question, actually, for Judge Tsankov, you're a natural
    judge. You deal with this. Are unsuccessful cases all
    meritless, frivolous? Are there maybe a percentage that are
    sort of close calls and tougher to distinguish? How could you,
    with the magic wand just get rid of 70, 80 percent? Or is there
    a true due process here that we need to keep in mind?
        Judge Tsankov. Senator Padilla, you raise such a good
    point, and the way you've articulated, I think, is very, very
    helpful.
        As the judge, you have to look at all of the evidence
    that's been provided. Now, for example, a case may end up being
    denied because a respondent filed their application for relief
    a year and 1 day later than the application was required to be
    filed. You know, you must file within 1 year of arrival. But
    they want to make a valid argument as to why they missed that
    deadline.
        You, as the judge, might in the end decide it's not valid,
    but they have the right to make that--to present that argument.
    And those are, you know, they're sincere, sincere arguments
    that have to be addressed. That is the way that we run our
    system. Thank you.
        Chair Padilla. Thank you. Senator Cornyn.
        Senator Cornyn. Mr. McKinney, I mean, the story you told
    about the two young children from South America, right, is
    certainly heartbreaking. How did they get here? Did their
    parents have to pay money for them to make their way to the
    border, to the United States?
        Mr. McKinney. Honestly--it's Central American, Senator
    Cornyn.
        I honestly don't remember, but I would concede this point,
    I assume so. I--I assume----
        Senator Cornyn [continuing]. These--the cartels----
        Mr. McKinney [continuing]. Not--and I don't----
        Senator Cornyn [continuing]. The cartels don't----
        Mr. McKinney [continuing]. And not the parents----
        Senator Cornyn [continuing]. The cartels don't work for
    free. Do they?
        Mr. McKinney. No.
        Senator Cornyn. I mean, they're the ones who are
    participating in the smuggling of people to the border,
    including these unaccompanied children.
        Mr. McKinney. Yes, as----
        Senator Cornyn. The parents--or somebody's paying money to
    get them here. My point is, it is heartrending to consider the
    circumstances of those children. But let's say of the 300,000
    children that are currently in the United States unaccompanied,
    are taxpayers supposed to pay the tab?
        Mr. McKinney. For their representation, Senator?
        Senator Cornyn. Yes.
        Mr. McKinney. It's AILA's position that the Federal
    Government should provide representation----
        Senator Cornyn. That's the taxpayer. Right?
        Mr. McKinney. That is the taxpayer where, where the
    respondent is indigent. So we don't carve out children,
    although we appreciate and believe that all children should
    have representation. To us, to the American Immigration Lawyers
    Association, the key distinction is indigency.
        Senator Cornyn. Well, if the parents or an adult pays a
    human smuggler $5,000 to get them to the border, I guess you
    could say the child is indigent and taxpayers should pay for a
    lawyer. But it seems a little--a little odd to me that the
    taxpayers should be on the hook for that.
        Let me just ask Ms. Gambler. I think there's just a lot of
    confusion about the numbers of people showing up at the border
    and what the different status is. You authored an excellent
    report called, ``The Notice to Report in Parole + ATD
    Processes.'' What's ATD?
        Ms. Gambler. That stands for Alternatives to Detention,
    Senator.
        Senator Cornyn. Okay. So let me just see if I can
    summarize, and you can tell me if I'm close or I'm off the
    target. So people--there are people who show up and they claim
    asylum at the border. Correct?
        Ms. Gambler. Right. At the border, they could be making a
    claim to fear.
        Senator Cornyn. And there's another category of people who
    show up who make no claim--credible claim of fear, but who are
    being released into the interior of the United States under
    something called parole. Is that correct?
        Ms. Gambler. That's right. According to our report, for a
    period of time, the Department of Homeland Security was
    processing some individuals who were encountered at the border
    under a program called Parole + ATD. So they were--those
    individuals were paroled into the United States and placed into
    the Alternatives to Detention program, which is a program to
    monitor individuals who are not being detained, and who will be
    in immigration proceedings.
        Senator Cornyn. And those are--those are people who haven't
    made an asylum claim at that point. Correct?
        Ms. Gambler. They--it--I think it was for individuals who
    were being--for whom DHS was making the decision to parole them
    into the country as sort of their processing pathway.
        Senator Cornyn. Yes, yes. And they're given an--are they
    told to appear at an ICE office or something for a legal
    proceeding? Or are they just released into the countryside?
        Ms. Gambler. So when we issued that report, Senator, we
    were looking at the use of the Parole + ATD program for family
    units. And under that program, the head of the family, the head
    of household, was enrolled in the Alternatives to Detention
    program. And then the members of the family were instructed to
    report to an ICE field office at a later date to be further
    processed and get that Notice to Appear to be enrolled in
    immigration proceedings.
        Senator Cornyn. So those people haven't even started the
    process in the judge's court yet.
        Ms. Gambler. For individuals who have not yet reported to
    an ICE office or for whom ICE has not yet issued a Notice to
    Appear, they have not been charged and thus are not in
    immigration proceedings.
        Senator Cornyn. And you're aware of the fact that the Biden
    administration has said, if you come from 4 Central American
    countries, up to 30,000 people will be admitted each month from
    those 4 countries under sort of a preferential pro--under a
    parole program. Right?
        Ms. Gambler. We are aware of that, but those----
        Senator Cornyn. That's----
        Ms. Gambler [continuing]. Parole programs were not the
    subject of our review.
        Senator Cornyn [continuing]. 360,000 people a year,
    potentially. Right?
        Ms. Gambler. Right. We're aware of those programs, but
    those weren't the subject of our review.
        Senator Cornyn. Right. Well, and that's really my point.
    There's a whole lot of different sort of buckets to look at
    here. Some people claiming asylum who get a Notice to Appear in
    front of the judge's court, people who show up and are told to
    go report to ICE in the interior of the United States, and then
    to begin that process, even though they haven't claimed asylum
    at the time they're at the border.
        And so the numbers that we've heard about overwhelming the
    immigration judges, their dockets, don't even include those
    people who have not been given a Notice to Appear. The ones
    that you wrote your report about.
        Ms. Gambler. That's right. Individuals who have not been
    issued to--a Notice to Appear, which is the charging document,
    would not be in formal removal proceedings.
        Senator Cornyn. And eventually they'll end up, if they show
    up, which many of them do not, if they show up and actually do
    report to an ICE office, then you'd have to add those numbers
    on top of the numbers that we've talked about earlier that will
    be added to the judges and other judges' immigration court
    dockets. Right?
        Ms. Gambler. That's right. Once they're issued a Notice to
    Appear, then they would be formally placed in removal
    proceedings and be part of the pending caseload for EOIR.
        Senator Cornyn. Thank you very much. Thanks for your
    indulgence, Mr. Chairman. Thank you.
        Chair Padilla. Every chance I get. Senator Welch.
        Senator Welch. Thank you, Mr. Chairman. I'm going to thank
    the panel of witnesses, as well.
        We'll start with you, Judge Tsankov. The backlog is--the
    numbers are enormous right now, and Senator Cornyn was pointing
    out that it doesn't even include some folks who, because of the
    special program, don't go to court. But what effect would it
    have if Congress increased funding for border enforcement
    without meaningful increase for the judicial function?
        Judge Tsankov. I think that would just grow the backlog
    further. Because the more cases that are placed in proceedings,
    if you don't have a judge there to schedule the hearing within
    a few months, or, you know, within a year, the cases really
    are--the docket's just going to expand.
        And I also think that it has a severe impact on the quality
    of due process that we're providing. Because if parties can't
    actually have their case heard in an expeditious manner, I
    don't think they have confidence in the system----
        Senator Welch. Mm-hmm.
        Judge Tsankov [continuing]. That their cases will be heard
    and treated fairly.
        Senator Welch. Can you just outline for me, since I haven't
    been in immigration court, from start to finish, how long a
    case takes once it does get on the docket, or get on your
    schedule?
        Judge Tsankov. So I have about maybe 3,700 cases or so on
    my docket.
        And the case will initially be scheduled through a round
    robin by the court administrator onto my docket, or one of the
    other 40 or so judges at my court.
        And they'll be scheduled for a master calendar hearing.
    It's usually the intake day where maybe 40, 50, 80, 90, 100
    people will come into the courthouse and I'll provide them with
    information about their rights and advise them they can seek
    representation.
        The case will then--they frequently will say, I'd like some
    additional time to have representation. We reset their case to
    another hearing, usually about 4 months or 5 months away. And
    at that hearing, they're usually represented.
        Sometimes--unfortunately, this happens quite often--
    sometimes people do retain outside counsel. The attorney will
    then handle the pleadings by paper and tell the court, here's
    the application for relief, do away with that second hearing,
    just schedule me for my merits hearing, which we then do.
        And so--and if it's in the fast format like that, I'd say
    it might take a year and a half. If it's in a slower format,
    with a few delays to seek representation, maybe that's 2\1/2\
    to the 3 years.
        Senator Welch. So then, when you actually have the hearing,
    how long does the hearing take?
        Judge Tsankov. The actual hearing--it depends on how--well,
    let's say it--I always set hearings for about an hour and a
    half. Many cases can be finished in that period of time, and I
    find that's efficient to do 4 trials.
        But if they need more time, I just reset--I code it a 13,
    and reset it to another day for additional testimony.
        Senator Welch. Okay. But the average actual ``in court
    before you'' time, once you get to the hearing, is about an
    hour and a half?
        Judge Tsankov. I'd say that's, that's fair.
        Senator Welch. Mr. McKinney, you do a lot of this. Does
    that sound about right?
        Mr. McKinney. Thank you, Senator. Yes, it does sound
    right--right on the money. The immigration judges in Charlotte
    typically schedule hearings for about 90 minutes. That takes
    care of most of my cases.
        But there are several cases with more complex issues, legal
    issues that require additional time----
        Senator Welch. Okay. Let me ask you----
        Mr. McKinney [continuing]. And they drag on.
        Senator Welch. Let me move to another question. You know,
    there's a--it takes a long time. You come in here and the
    backlog means that people are here for a long time, and you
    have been dealing with clients who have to be in this limbo
    period.
        And some folks think it's really important to let people
    get to work right away. A lot of folks who oppose that or are
    apprehensive that that's just encouraging more people to come
    in and put the additional burden on.
        Just--can you tell me what challenges your clients face to
    just make it through the day and the week and the month, and
    what, if anything, you'd recommend that would help in that
    interim between when they arrive and when they get their
    hearing?
        Mr. McKinney. A key part of the resource problem and
    representation problem, to your point, Senator, is at the very
    beginning.
        Now the law provides that an asylum seeker cannot obtain
    employment authorization for 6 months. There are also extensive
    delays within USCIS right now regarding the issuance of work
    permits for those parolees.
        Senator Welch. So how long does it take for somebody to get
    that period? Is it 6 months or does it actually take a lot
    longer?
        Mr. McKinney. It is, as of late, it's getting down to about
    6 months, but it has, over the last year, been much, much
    longer, Senator.
        Senator Welch. Okay. So what would help there?
        Mr. McKinney. The administration stepping up its efforts to
    get these applications processed and get those cards issued.
    Because that's a win-win, not just for the asylum seeker or the
    respondent, but also for those local communities that are
    supporting these numbers.
        Senator Welch. Okay. Thank you. I yield back. Thank you,
    Mr. Chairman.
        Chair Padilla. Thank you, Senator Welch. Senator Cornyn.
        Senator Cornyn. Mr. Kinney, I just wanted to ask you, maybe
    in your individual capacity or on behalf of the Immigration
    Lawyers Association that you represent, what would be your
    position if Congress said, ``If you transit a safe third
    country, that you can't qualify for asylum in the United
    States'' ? Because the whole premise, it seems to me, of asylum
    is that you have a credible fear of persecution based on some
    classification or some condition. And if you're living or
    transiting through a safe third country, it would seem
    logically that you would not be able to prove you have a
    credible fear at that location. What's your view?
        Mr. McKinney. Thank you, Senator. That is already part of
    the law. So when I've met with, to your point earlier with
    Haitians that have lived in Brazil, when Brazil extended a
    lifeline to Haiti about 10 years ago or so, we've had several
    Haitians go from Haiti to Brazil, but encounter their own
    problems there and then make it to our shores requesting
    relief.
        So----
        Senator Cornyn. They lack the credible proof----
        Mr. McKinney [continuing]. The fact that they lived in
    Brazil was already a problem. It's a problem for temporary
    protective status. It's a problem for asylum. Re--settling in a
    third country creates a major, major obstacle to asylum relief.
        Senator Cornyn. Assuming that that is being enforced.
        Mr. McKinney. And that's why we have our courts, Senator.
    Because they do just that.
        Senator Cornyn. Well, if you're lucky enough to wait around
    10 years, or 3, or 4, or 5 years to get a hearing. Thank you
    for that.
        Chair Padilla. And that's sort of a good reminder of the
    point of the hearing today.
        Yes, a lot of elements to our immigration system working,
    not working, that's an ongoing debate and frustration. The
    focus today have been on this court's process, and we can talk
    about the inputs, we can talk about the backlogs, and the wait
    times, etc.
        We have focused a lot on the need for additional capacity.
    We've talked a lot about the need--the judges' workload. And I
    just want to remind us that from Fiscal Year 2014 to Fiscal
    Year 2023, we actually more than doubled the number of judges
    from 249 to more than 650. Thanks, in large part, to EOIR's
    repeated asks to Congress for additional judges.
        But at the same time, EOIR has been criticized for failing
    to hire sufficient numbers of support staff for those judges.
    And from today's testimony we hear that that support staff is
    also desperately needed.
        Judge Tsankov, just briefly, I've asked a lot of very long
    questions, but just briefly, why are support staff so critical
    to you, your role, and your job, and the efficiency of the
    courts?
        Judge Tsankov. I could not do my job without the few
    support staff that I do have. They're phenomenal working so
    hard. I sometimes get messages from them at 8 o'clock at night.
        We need our legal staff, legal assistants to notify the
    parties when hearings are scheduled to make sure that the
    hearing notices get sent out to Mr. McKinney, so he comes to
    court on that day at the right time.
        We need them to, when Mr. McKinney files documents before
    the court, to make sure that those documents get put in the
    right file, so I see them when I hold my hearing a few months
    down the road.
        We need them to send out their judicial orders. You know,
    we have a lot of paper files, so that means that those orders
    have to be sent out by mail. They take care of all of that.
        We also need them to be there to answer the phone when
    unrepresented litigants call with questions, ``How do I file
    this document? ''
        We also need our judicial law clerks to assist us with
    legal research on the very difficult questions. Not maybe the
    cases that are just--that take 90 minutes, but the ones that
    are highly complex with novel questions of law. So we need
    them.
        Chair Padilla. These are great examples, and descriptive of
    what true courts should be.
        We've talked earlier in the hearing about the independence
    or the need to strengthen the independence of immigration
    courts.
        We referenced how both Democratic and Republican
    administrations have used immigration courts to influence
    immigration law and implement--change or implement immigration
    policy and priorities.
        You know, we've heard over the years the creation of
    accelerated or dedicated or rocket dockets to prioritize
    certain types of cases. The imposition of case quotas. We've
    talked already about self-certification.
        Judge, back to you. Why are immigration courts so
    vulnerable to political interference? And how would truly
    independent immigration courts address some of these concerns?
        Judge Tsankov. I think that the source of the challenge
    that we have, in terms of this vulnerability regarding
    independence, is the fact that we're housed within the U.S.
    Department of Justice. Successive Attorney Generals have the
    authority to recertify cases to themselves. It changed the law.
    All of that results in expanded case dockets.
        But in addition, when the Attorney General has that power
    to essentially implement the law enforcement agenda of the
    executive branch, that impacts our dockets, and creates
    concerns in terms of lengthy delays for hearings that need to
    be handled in an expeditious manner and due process provided to
    them.
        But also, it causes real challenges for perceptions about
    fairness in our system.
        And so, the other thing that we see quite often is that
    each new administration has different docketing priorities. And
    that shuffling of the docket results in judges being, in one
    administration, sent to the border and their home court dockets
    languish for extended periods of time.
        So it's the docket shuffling and the issue with the
    changing caselaw that I think is the most problematic for our
    court.
        Chair Padilla. Thank you. Now before moving to close
    today's hearing, I do want to end with one last question to put
    to the human element back, front and center--question for Mr.
    McKinney. We talked about the backlogs, causes of the backlogs,
    recommendations how to address the backlogs. What impact does
    the backlog, as it exists today, have on you and your clients?
        Mr. McKinney. It's significant, Senator. Because I think
    everyone here involved, all the stakeholders involved are
    searching to strike the right balance.
        Speeding up leads to conveyor belt judges--I mean, excuse
    me, conveyor belt justice. Judges are not machine operators and
    my clients are not cogs. If we go too fast, you end up with
    respondents that are unrepresented with too few resources to
    put on a meaningful case. If we go too slow, the evidence gets
    stale and witnesses disappear.
        And that's why the immigration court system that we have,
    EOIR, needs to be given sufficient resources to meaningfully
    and fairly dispose of this huge backlog that we're facing.
        Chair Padilla. Thank you, thank you.
        Before I begin our close of today's hearing, I do want to
    take a moment to respond to the statistics on the number of
    people who qualify for asylum. We've heard a lot of different
    numbers today, but I want to enter into the record data from
    EOIR that shows that in Fiscal Year 2022 and 2023, immigration
    judges granted asylum in actually more than 40 percent of
    cases.
        And I also just want to reaffirm the bedrock principle of
    due process and the fact that seeking asylum is legal under the
    law--not automatically granted, but it is lawful to seek
    asylum.
        Also, everyone who comes to claim asylum deserves a fair
    shot to prove whether they qualify under the laws, including
    safe third country provisions.
        However, the only country with which the U.S. has a safe
    third agreement currently is Canada.
        So before we conclude, I also want to submit a couple of
    documents into the record, including statements from the
    Federal Bar Association, KIND, and the AFL-CIO. We will do so,
    without objection.
        [The information appears as submissions for the record.]
        Chair Padilla. Others can be submitted. The deadline for
    submitting statements will be 1 week from today. The record
    will close 1 week from today.
        And so, as we move to conclude this hearing, I want to,
    again, thank Senator Cornyn, as well as today's witnesses, for
    being with us. Did you have any closing statements here before
    I--okay.
        So the testimony heard today paints a picture of an
    immigration court system that is at risk of failing both the
    non-citizens in the removal proceedings, as well as the
    American people having an independent judiciary, one that
    delivers timely and fair decisions to all those who come before
    it, is a bedrock principle of our American democracy.
        Yet, as we heard today, by failing to come together to help
    relieve our overburdened immigration courts, Congress is
    guaranteeing immigration courts continue to see mounting cases,
    extended wait times, and a lack of due process. There's a clear
    need for reform.
        Over the last several years, I've been encouraged to see
    the Biden administration take several steps to reduce case
    backlogs, to return autonomy to immigration judges, and to
    provide counsel for non-citizens in removal proceedings.
        But administrative action alone is not enough. As we know,
    in many instances, an efficient and fair American immigration
    court can truly be the difference between life and death.
        Just look at the mass exodus of Venezuelans fleeing severe
    economic hardship and repression in their home country. Based
    on a disappointing decision by this administration, the fate of
    Venezuelans who risk being deported to a country our own
    Government has labeled unsafe, now hangs in the balance of our
    immigration courts.
        It's our moral responsibility to give these courts the
    resources that they need. But to begin with, it's clear that
    fixations on solely our southern border won't solve our
    problems. Yes, it's part of the overall process, but that alone
    will not solve our problems.
        And avoiding the problem at hand by investing in other
    immigration enforcement agencies won't cut down the backlogs.
        For years, funding for ICE and CBP has grown dramatically
    while the immigration courts have remained underfunded and
    understaffed. The results--backlogs continue to grow. It's not
    that complicated. It's simple cause and effect.
        It's clear we must surge resources to hire support staff
    for immigration judges, and invest in technology and resources
    needed to bring our courts into the 21st century.
        And in order to limit further political interference in our
    immigration courts, again, by both Republican and Democratic
    administrations, we also have to begin to think about more
    comprehensive reforms.
        We can create an independent immigration arbiter by
    establishing Article I immigration courts--just as Congress has
    established independent courts for specialized areas of Federal
    law, like the U.S. Tax Court.
        And finally, we cannot have a truly fair immigration court
    system until every respondent has a right to legal
    representation. Not only will universal representation give
    immigrants the best chance to receive fair adjudication, as
    we've heard today, it also increases attendance rate at
    hearings and increases efficiency in court proceedings. And
    it's the right thing to do.
        Now, I don't suggest that any of this will be easy. Years'
    worth of inaction in Congress has created the uphill battle
    before us. But preserving those inherently American principles
    of fairness, timeliness, and independence in our court systems,
    relies on our ability to come together, Republicans and
    Democrats, to improve this system for everyone.
        I look forward to working with my colleagues to do just
    that. Once again, I want to thank you all for being here. And
    with that, this hearing is adjourned.
        [Whereupon, at 11:40 a.m., the hearing was adjourned.]
        [Additional material submitted for the record follows.]

                                A P P E N D I X

    Submitted by Chair Padilla:

      American Bar Association (ABA), statement.......................    94

      American Federation of Labor and Congress of Industrial
        Organizations (AFL-CIO), statement............................   100

      Federal Bar Association (FBA), statement........................   102

      Kids in Need of Defense (KIND), letter..........................   104

      Transactional Records Access Clearinghouse (TRAC) Immigration
        Court Asylum Decisions, graph.................................   109

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                  Responses of Jeremy L. McKinney to Questions
                         Submitted by Senator Klobuchar

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                  Responses of Hon. Mimi Tsankov to Questions
                         Submitted by Senator Klobuchar

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