Transcripts For CSPAN Panelists Discuss The Immigration Court Cases Backlog 20170823

Good morning. Im the executive director of the center for Immigration Studies. A think tank in washington that examines and critiques the impact of immigration on the United States. The issue of Immigration Courts and the backlogs and Immigration Courts has broken somewhat into the general news. It seems like the thing that would be inside baseball for immigration experts but the backlog in Immigration Courts has grown dramatically. That has gotten the attention of mainstream media. There is a variety of issues here. What is causing this backlog . What kind of solutions there are. We have called this panel initially to discuss a paper that the center for Immigration Studies published on this issue. The causes for the backlog. The first presenter on the panel today is going to be the author of that paper. A former immigration judge now resident fellow in law and policy at the center for Immigration Studies. He has worked as a senior staff member and a couple of congressional committees, so here us seen the immigration issue from almost all sides. After mr. Arthur is finished we will have comments on his paper, outside for those who dont have it, and more general thoughts about the issue of the Immigration Courts. We have two people who are experts in this issue. First will be larry berman. As that suggests, he is an immigration judge and has been for 20 years. Our other commentor is going to be from the heritage foundation. He used to be in the Justice Departments civil rights division. He has worked on election law and a variety of legal issues and has the paper upcoming on the issue of Immigration Courts. Im looking forward to hearing from everybodys comments. We will have a q a after that. So art, if you want to start. Art thank you. Before i begin, i want to make one comment. Last week, juan passed. He was a good public servant. He died unexpectedly at a rather young age. I did want to note his passing before i began. On june 1 the Government Accountability Office Issued its longawaited report on the management. That revealed a significant decline in the ability of the Immigration Courts, the complete cases over the last two years. Ten years. The Immigration Court backlog, cases pending from previous years more than doubled between fy 2006 and fy 2015. The backlog rose from 212,000 cases when the median time was 198 days. To 437,000 pending cases at the start of fy 2015, when the median processing time was 401 days. To about 190 9000 and fy 2019 he even as the number increased over the whole time i 17 . Fewer cases decided. The other is called completed cases. Not actually cases completed on merit. Those were administratively closed. No decision was reached. Originallyns were 95 of the total in fy 2006. By 2015. Wn to they were pushed off to the side. If the number of judges increased and the number of cases decreased, why is the backlog growing . To the gl according is that it is taking longer for the judges to rendered decisions. The time between filing and making a Decision Group more than fivefold with a median initial completion time for cases increasing from 43 days in in fy6 up to 86 days 2015. This begs the question, why is totaking so much longer complete cases . According to gao, this is partially the result of a 23 increase in continuances. So you ask for an attorney, ask for continuance, your case gets continued. You ask for time to file an application, these are asked for continuance. There is also been an increase in the number of cases with multiple continuances. Significantly, the number of cases with four more 9 tinuances increased from in fy 2006 up to 20 . There are several reasons why the Immigration Courts are in this position. Several reasons why the court should begin to get a handle on and decrease the backlog in the next few years. The first is resources. There are too few people like larry for the number of cases. 334 Immigration Judges handling more than 610,000 cases or about 1800 cases or judge. When a judge as a docket that large, cases must he set out for an extended time in it becomes more efficient to grant a weaker motion to continue than it is to focus attention on cases that are ripe for decision. The good news is the attorney general has promised and recognized and has promised to the 105 new judges within next two years and in fact i turn a general Jeff Sessions has began to attorney general swearessions has again to in judges. Another is a surge of unaccompanied alien minors and members of family units that began in fy 2014. In the course of just one year fy 2014, the13 and number of miners increase by 126 and the number of aliens in family units increased by 160 . While the reasons have been advanced, the most significant was wordofmouth. Back to the home country saying, i came to the United States, they let me in, they released me. His of it was lies told by smugglers who said, if you come to the United States you are going to get a permission to remain. Smugglers want to make money. There is no way to do it than by promising potential clientele. These new cases stay in the dockets for two reasons. First, fewer decided to prioritize those new cases. They pulled judges off pending cases and put them on cases involving children and family members. Said there was a bunch of cases ripe for decisions that had to be pulled back. Cases involving children and family members are generally more complex. It has been my experience that most single adult males who come to work if they are caught and detained, they just come home. They take a voluntary departure. But when youre talking about a minor, they will ask to have a hearing. Depending on age, they have to grant multiple continuances in order to find a lawyer, so more the claims are complex. More complex than a silent claims, made by more complex than siloed claims made by adults. And aliens who arrive in illegally lead to multiple continuances as aliens requested a time to explore such relief and apply. That slows up the time. Aese are not the only to have backlog. Again your 2011, ice put in place prosecutorial discretion guidelines to prioritize certain cases for removal. Then they did something interesting, they told attorneys to go through other pending cases to find cases that were priorities said they could, you know, make sure cases that were not parties were not on the docket. That took attorney time that could haves been spent reviewing cases. This slowed the process even more. This effort reached its apex in 2014 when a memo from Homeland Security, secretary j johnson, policies for the removal of undocking hated immigrants. This limited cases that were supposed to be prioritized. Directing case loads, attorneys to join in on motions. Again, the attorneys had to review their files. They would file motions to administratively close in order to bring the case or word and have it decided. It was a mess. It clearicies made that the administration did not consider the removal of any except for the most serious criminal cases to be appropriate, placing those who were sworn to uphold the law in the vine. It also gave some aliens incentive to fight their cases. More as thoseven nonmeritorious cases continued. People who normally wouldve removal asked of for continuances hoping their case would be one of the ones that would be taken off the docket because it was not a priority. The new administration took a different tact. They made it clear they intend continue against all those who are removable and to expand attention. This offers more clarity and removes incentives for removable incentives that do not have relief to fight their cases. An fact, we have seen the number. 8 rders increased i27 between february 1, 2017 and 2017 compared to the same time in 2016. More people are being picked up who do not have relief and are being ordered removed by the courts. Two other factors increased accolade. Activist federal court judges further complicated the already igs mustssess that go through. A series of decisions and increase the number of aliens eligible for relief. Inhibit theons ability of ijs. Expected attorney general Jeff Sessions to more vigorously litigated before the federal courts than the last two and assessors did. Resulting in more decisions and guidance for the ijs to bring down the backlog. Finally, ijs need better guidelines. Some seek multiple continuances. Some attorneys seek multiple continuances for filing applications. There is little downtime for an immigration judge to grants continuances, because such orders can really be appealed. They are interlocked. However, there is tremendous reputational damage that can occur when a motion to continue his denied. In such a case, it is possible that the board of immigration appeals can find that the ij denied due process to any land evennying a continuance, in a case where multiple continuances have already been granted. On july 31, the good news is, and operating policies and putedures memorandum was out. I fully expect that attorney general Jeff Sessions will follow up on this and uses Certification Authority to issue a decision that will help to when judgeser should hand should not grant continuances. In summary, the Immigration Court backlog is too large. In the short run, i expected to increase as the Trump Administration seeks the removal of aliens who have little to fear from ice under the Prior Administration. In the long run however, i reduce thes will backlog to more manageable levels. Thank you. Thank you. First, a disclaimer. Which is important so i do not get fired. I am speaking for the National Association of Immigration Judges, of which i am an elected officer. My opinions expressed will be my own opinions and formed by many discussions with our members in all parts of the country. Behalf ofpeaking on the department of justice, that of his of immigration review, the chief judge, or anybody else in the government. That is important. What is the and i aj . The National Association of Immigration Judges. Were nonpartisan his focuses on is, transparent to the public, and judicial independence. We are opposed to interference [indiscernible] a just as much trouble with republican as democratic organizations. My opinion is the people of the top dont understand what we do and consequently the decisions they make are not helpful. The well, let me backtrack and talk about our organization. Immigration judges are the basic trial judges that here cases. Above us is the board of immigration appeals, who function as which they were an appellate court. Since 1966, we have been clearly designated as judges by congress. We are in the statute. We have prescribed jurisdictional powers. Congress even gave us power to enforce our decisions. Unfortunately, no administration has seen fit to give us this it is in the statute. The board of immigration appeals is not in the statute. It has no legal existence, really. Emanationntially can of the attorney generals limitless discretion over Immigration Law. The members of the board of immigration appeals are in some cases they have some expense. Generally, not very much. Of those a combination people who are well respected in other parts of the department of justice and deserve a wellpaid position. Often, they are staff attorneys who have basically moved up to become board members, skipping the immigration process. Very few have ever been made. Board members have been made because they are Immigration Judges. If they were, it was largely a coincidence. The administration of the executive office of emigration housed, is are basically an Administrative Agency. , but we do not have a cord. We operate in an Administrative Agency that is a lot closer to the department of Motor Vehicles than it is to eight District Court or even a bankruptcy court. An article one type court. Our supervisors come im not sure why judges need to provisos but they are called assistant chief Immigration Judges. Some of them have some experience. Some of them have no experience as judges or attorneys. They were staff attorneys working in the bowels of new york and gradually became temporary board members. Interestingly, when a court of appeals is short a judge, they bring up a district judge. New york used to do that by bringing up an immigration judge but i do not do that anymore. Appoint their staff attorneys as temporary board members. A fact that is very shocking when you tell it to federal judges. They cannot imagine a panel would be one member short and they would put their law farm on the panel. But that is what goes on. Untilp three judges, recently, the top judge of primary deputies had no courtroom experience that i am aware. The two of them have gone on, unfortunately when of them has gone on to be an sba member and the other has retired. Our direct supervisors or the assistant chief Immigration Judges. Some are at headquarters and littlenerally have very experience, others are in the field and they have some experience. Although for example the last two assistant Immigration Judges in 2016. Became judges so, they do not have vast experience. Although they may be hiring people with other forms of experience. This agency is not run by experienced judges and i think it is important to understand that. There is a severe misallocation of resources. Congress probably has given us plenty of money, but we miss use it. Administration, the number of Senior Executives has doubled. Maybe they needed some more administration depth but i doubt it. The assistant chief Immigration Judges are proliferating. I think there are 22 of them now. These are people who may be in generally do they not really move the ball when it comes to adjudicate in cases. Somehow the federal courts are able to function without all of these intermediary and supervisory judges and they think we would function better without them as well. To give you a few examples, i could give you thousands of examples of you want to stick around, but art was talking about the juvenile surge. I think it was approximately 30,000 juveniles can across the border. To appear to be tough, i guess, they were prioritized. The official line is, were going to give them their asylum hearings immediately. I do not link i do not know what kind of asylum hearing a sixyearold would have but we would do it quickly and discourage people from coming to our country. And in fact, what actually happened is the juvenile docket is essentially a meet and greet. The judges are not first of all, i am not allowed to be a juvenile judge. Youve now judges are carefully selected for people who get along well with children, i guess. Really what they do is they just see the kids periodically. Meantime, children are following their asylum cases with the Asylum Office or their in special juvenile status. Various things. Wasteddge time is being on that. Another example is the current surge. Docket. Really busy were talking about cases being scheduled in 2021. The backlog for me is infinite. I cannot give you a mirror tearing on the docket unless i take another case of my docket. My docket is filled through 2020 and i was assisted to and i not put any more on. So they are just piling up in the ether somewhere. As busy as i am, they sent me to the border. Of these border details are politically oriented. First of all, we could probably be doing them by tele video but they want to do them by person. You would think they would send the number that were needed by 10 on my last detail of business days, too weak detail, two days i had no cases scheduled at all. Having two cases off the docket which almost never happens, that would be useful because i could work on motions and decisions. But when i am in louisiana, i cannot really work on my regular stuff. So, i am just reading email and hanging out there. The reason for that is because there has been no attempt to fly with the attorney general request that we rush judges to the border, at the same time a sure there is enough work or not to send more judges than really necessary to do the work. I assume the people who run our agency want to make the attorney general happy so they send as many judges to the border as possible. One particularly bizarre example was in san antonio. The judges were doing a detailed to one of the outlying detention as a ladies fight tele video. They wanted to rush judges to the borders said they assigned a bunch of judges that had their own dockets to take over the occupied tele video on one weeks notice. That meant the judges in san antonio could not reset is this. You have to give at least 10 days notice of a hearing by regulation. So we have judges taken away from their regular dockets to do that. Judges who normally wouldve done that who were already on the border, san antonio is cloudy pretty close to the border had nothing else to do. Those are extreme cases, but that happens all too much. It is because of political interference. It has nothing to do with party. Weve had the same problem with democratic and republican administrations. It comes from political decisions in a mating the process and people who do not really understand what they are managing. Just attempting to placate the guy on the top. So, that is basically what has been happening. Am i ever my 10 minutes or . Yes. I you can have a couple more minutes this way. Go over some possible suggestions. Let judges be judges. Immigration judges who control their own dockets. We should be able to supervise our own assistance. The authority we were given in 1996 and finally get some regulations to implement. The overhead needs to be reduced. There are too many positions at headquarters and to pick too few positions in the field. When it was originally set up, the idea was that each judge would need to really go assistance to docket cases, find files, make copies. At one point last year, were down to less than one legal assistant for judge. And inngton where i am, los angeles, it was even worse. That, the judges are looking for files, the judges making copies, the judge does not have the evidence that has been filed. There is nothing more annoying than to start a hearing and find that evidence was filed that i do not have. The case has to be continued. I have to have a chance to find the evidence and review it. It would be nice if our management were more experience than they are. At least have some more court experience. Filing an Electronic System like other courts apples supper generally, that is one thing that acting her that acting director mckinney has said would take priority. Generally does not have the kind of expertise the to. Ral courts would prefer consequently, i think a lot of the bad appellate law that are was referring to is caused by bia reallyat the does not have any respect in the court system. Are not getting it. They are not getting it from the court of appeals and they are not getting it from the Supreme Court either. The bia also remans way too many cases. Up. We make a we send it we dont care what they do. They could reaffirm, they could reverse. We dont want to see it back. This happens all the time. Case, ifined the they remand the case, they dont ever have to take responsibility. That is why they try to make us do it, isom. I assume. Backlog with the problem began, the attorney general first of all subjected us to annual appraisals, evaluations. Which previously had been waived due to our judicial function. So, that is a waste of time. Thingswere punished for because a court of appeals would say that you made a mistake. It is justrude or crazy. Or could bepunished punished for not granting continuances. No judge was ever punished for granting a continuous. So it is no surprise as i pointed out, continuances have been granted at a much greater level. In fact, too great a level. But when in doubt, we continue it because of we do not do that we are subject to punishment and we dont really want that. An article one quart, like the bankruptcy court, a Specialized Court could be in the judicial or executive branch to give us independents. To ensure that we have judges and appellate judges who are appointed in a transparent way. Nonprivated by a heart. The government or anybody else i am way over my 10 minutes so i will be sure to babble on about it later if you want me to. Thank you, larry. Legal fellow at the heritage foundation. I was asked to take a look at arts paper which is a very good courts. Emigration i will talk a little bit about that and a little bit about a couple other recommendations on the issue. But, we need to understand the numbers. Of has done a very good job going through the huge backlog of cases in the Immigration Courts. How they increased significantly during the obama administration. Did the backlog of cases increase, but most significantly, the time needed in amplete cases went up huge amount. It is important for all of you and for those watching this on cspan to understand that the Immigration Courts are not article three federal courts. They are administrative courts within the department of justice. We have similar courts another executive agencies. For example, with they get into disputes about Social Security benefits. They end up before a Social Security judge and administration. So, we have two levels within the department of justice. We have the Immigration Judges that act as trilevel judges and hear cases and then we have the court of appeals, the bia. So you have two levels of courts. It is important for everyone to understand that aliens have very extensive Due Process Rights in those courts. The last time i looked at the manual, it was describing the procedures for the Immigration Court, it was over 200 pages. Not only do they have all of the kind of rights that we would expect u. S. Citizens to have, from the ability to be represented by counsel, the right to see the evidence against him, etc. There is a whole extensive set of Due Process Rights and that is important for people to understand. These are not king records at all. These are not kangaroo courts at all. That is important for everyone to understand. Has come up with a recommended set of solutions, all of which i agree with. More solutions are needed. More staff. The attorney general has taken good steps toward that. It is not just that they need new stuff, but Something Else the attorney general said is important which is the speed of the process of approving individuals who are going to be judges. In this very important process. One of the points art makes in his paper which is very important is the change in border policy and its effects. Ofause the whole point having an administration who makes it very public they are actually going to enforce Immigration Laws, which the priority administration maker they are not going to do, is that it has a determinant affect. Looking at the number of people trying to cross illegally the border since the trap administration has dropped dramatically. I think the last time i saw the numbers they were about over 60 down. That is important because the less people you have trying to get into the country illegally, the longterm effect is to lower the number of cases in court. One thing we have not talked about today but which is important, is that we also have had the significant problem of unenforced removal orders. Process has been completed and there is actually a final decision by an the boardn judge and of immigration appeals and a thosel order is issued, go over to the department of Homeland Security for enforcement. As of may 2017, the number of unenforced removal orders was 953,000. A huge number. Why . Because the priority ministration did not really want to enforce these removal orders and so they let them pile up at dhs. That is something this administration has got to do something about. Dd deterrent effect is something very important. Another number i found was that 20092013, 95 of aliens deported were criminal aliens. So in essence, people knew if you got into the country illegally, must you are not removed by the administration. The change in the policy from this administration, the change in enforcement sank, if youre in the country illegally youre not given immunity, that is important, again, to reducing the backlog in the courts. Either way, the Prior Administration was not even very good at doing that. You know, it said its priority was removing criminal aliens. The last numbers i saw were that the large numbers of what ice considers level one and level two offenders ice has this categorization system depending upon how serious the crimes are you have committed. I am not talking about immigration crimes. Talking about other crimes committed while people are illegally in the country. Level one and level to worst offenders. Commentrs, it rate this drug dealers. Ice released 36,000 criminally convicted aliens. Aliens. D criminal people have been convicted of serious crimes since 2013 according to another study cas dead, there is at least 124 criminal aliens and 135 killings after ice refused to remove it. Thatf the other problems the continualt is and constant continuances given in these cases. Heres the point. That helpse changes deter illegal aliens from coming into the country and staying in the country are going to help the situation in the court. At the other point that needs to be made is that illegal aliens and im going to use that term because it is the correct legal term used by the u. S. Supreme court they should not be given more rights than u. S. Citizens. Yet, there are number of examples of that including in the Immigration Court that need to be changed. Example, as judge berman said, federal Immigration Law actually gives Immigration Judges the ability to impose civil sanctions to enforce their imposerders, to sanctions on attorneys, for a frivolous file claim, etc. But that ability is dependent upon the attorney general of the United States issuing regulations outlining how those enforced. Uld be unfortunately, no attorney general has ever should those regulations. Us tot is important for have an orderly court system unless Immigration Judges are given the ability to do that these same way federal judges have the ability to do that when citizens like me for example, appear in a federal court. That is something that needs to be fixed and then immediately. This isproblem and something that, again, shows givenliens should not be that a rights, moral rights, better conditions than u. S. Citizens. If i file a lawsuit, a civil lawsuit against the federal government in a federal trial article three court, and i lose, i of course have the right to appeal the case to the court of appeals for whatever circuit i am in. Aliens certainly have the same right. They lose their Removal Court before an immigration judge and have the ability to appeal that before the immigration board of appeals. It is a u. S. Citizen, have to put the cost of my appeal. Fee onto pay the filing the court of appeals. I have to pay for the cost of the records that will be sent from the trial court up to the court of appeals. I have to pay the cost of the transcript if that is necessary going up to the court of appeals. Judger, as a immigration testified before a House Judiciary Committee meeting, this was judge former judge he said youmann, know, why are there so many appeals . How many appeals are there . One second, i have that number here. Almost all of the cases that are heard at the ij level overwhelmingly are appeals. That is not the way it works in the federal courts. You would sit there and go, why is it 99 of cases . Thetrial level appeal to the i8. That is because there is no cost to the illegal alien. Is very low to file an appeal. It is 110 according to the testimony before the House Judiciary Committee. However, the majority of cases wave that fee by the Justice Department and the bia. Not charge alien is for copies of the records are copies of the transcripts. All of these costs are paid for by the department of justice and that means american taxpayers. So american taxpayers are subsidizing the appeals cost of all of these cases, something that does not happen if an ordinary u. S. Citizen is involved in a federal lawsuit against the federal government and has to appeal his case. So, there is absolutely nothing to stop the filing of frivolous and meritless cases. Testimonyhe judges before the House Judiciary Committee was that the vast majority of these cases were frivolous appeals filed with the intention of simply delaying the removal of this particular alien. And that is something that needs to be fixed. Be waived. Hould not the rules should be the exact same as in the federal court system. That is the fair thing to do and that is something that needs to be changed. The other thing that is not mentioned that i think needs to the u. S. His court of the u. S. Supreme court has said in numerous cases and i will start with a 1950 case involving the right of an alien to enter the country. Heres what the Supreme Court said. Rule may be concerning deportation of person to have gained entry into the United States because it is not within the province of any court unless expressly authorized by law to review the determination of the federal branch of the government to exclude a given alien. More apparently, the court emphasized this that the Due Process Rights of any such subject to the procedures of comments. Or does that mean . It means that illegal aliens do not have Constitutional Rights and the only Due Process Rights they have a those that congress immigrationm in law. In a 100 of the authority for determining our Immigration Laws is given to congress. In a second case from 1953, oshaughnessy versus the court made it clear that when he was talking about traditional standards of due process, which they said do have to be given to illegal aliens who the government is attempting to the depart, that only is attempting to deeper, that only requires an administrative tribunal. In other words, that does not have to go to court. They do have to be given the right to appear before an admission of which is the system we have. Immigration judges and a board of immigration appeals. Now, congress in the Immigration Law, some years ago limited the appeal rights. Of illegal aliens, once they have completed the twostep u. S. Ss of only going to courts of appeal. They cannot appeal to the federal District Courts, which is usually what you would expect to have happened. They can only appeal to the courts of appeal. There is no reason for them to have that right. That is flooding the federal courts with meritless cases. The last numbers i pulled from the u. S. Administration office of the u. S. Courts is that over 80 of the appeals in the federal court of appeals system that are Administrative Agency appeals, in other words appeals made by federal agencies, are cases. The vast majority are also from liz, meritless cases. But there are enough of them inre that as art points out his paper and in the discussion this morning, you have federal judges interfering with the decisions of the executive branch on a lance which the Supreme Court has basically said. Inthat Supreme Court case 1953, the u. S. Supreme court said that the due process of requires only an opportunity at some time to be that before such officers are given the authority to act. The aliens claim so, i think one thing that ought to be done is at the very least what judge berman has said needs to happen witches these appeals need to be taken away from all of the federal court of appeal federal courtne that only deals with immigration appeals. Federalto the court of claims. There is already a president here. There is already a president said here. A there is already precedent here. the Due Process Rights there are extensive and frankly, the federal courts do not need to be flooded with deeds decisions and i think that is actually the final change that needs to be made. Thank you. Thank you. Since i am putting for the i will ask the first question. Are there changes in asylum law that could address, in other words, similar, changes to the border would reduce the demand on the Immigration Courts, are there changes in Immigration Law that would do something similar . These two, a current judge and former judge need to answer that. But i would point out the last numbers i saw estimated upwards of 80 to 90 of the asylum claims are fraudulent claims so theres very clearly a problem there. Our association does not make recommendations as to the law. We want to efficiently and fairly enforce whatever the law there is. I would always say it might be nice to clarify some things. For example, the law on aggravated felony right now is insane. There is no theft in virginia nymore for example because the virginia statute includes robbery as well and cant be theft and therefore cant be a aggravated felony. We dont care what the law is, we just want it to be enforceable and make sense and want it to be uniform. I think thats a very important point that goes directly to your question and that actually sort of aggravated the increase in credible peer claims we saw on the border as well as unaccompanied alien minors and families. The law just isnt very clear on im afraid of the gangs. If youre afraid of the gangs youre a member of a particular social Group Eligible for asylum or arent you . If youre a victim of Domestic Violence in your home country, are you an individual a member of a particular social group or arent you . Unfortunately the law on this is the dogs breakfast. Its time for the attorney general to step in and issue by certification bright line rules for judges to follow in these cases. We need to be clear what being a member of a particular social group is just by way of explanation, in order to receive asylum you have to show a percent execution on race, religion, nationality, enof a particular social group or political opinion. Four are clear, im a christian or im not, im jewish or im not. But unfortunately, membership in a particular social group has become a catchall that it never was meant to be. So consequently, numerous claims are made that have to be heard all the way to the end that at the end of the day never are going to be successful. Its crucial for that reason the attorney general issue guideline for certification and also crucial the department of justice argue these cases vigorously before the federal circuit court. I think that part of the problem we saw in the last administration is that and i dont ever want to accuse another attorney of, you know, not vigorously litigating but, you know, there were cases that probably could have been argued a little harder. There were arguments that could have been made in defense of certain decisions that simply werent. I expect attorney general sessions is going to vigorously litigate cases in order to provide more bright line rules so judges like judge berman dont have to issue a decision that goes up on appeal that then goes up on another appeal but then possibly gets certiary for the Supreme Court and bright line rules are crucial. As a quick followup, it struck me the very existence of that, quote, particular social group, unquote, category, is itself basically an invitation for activist judges and whatever the attorney general does that would affect the Immigration Judges and the board of immigration appeals if it ends up going to the federal courts, then the judges just make up anything they want which is what theyve been doing with this particular social group. Pretty much anybody can be defined as a particular social group. My point here is, is it worth simply excising that from the 1980 refugee act because even though its in the Refugee Convention it also was put into our law and there have been proposals abroad to simply eliminate that as grounds for asylum. I dont think it should be the attorney general to make a decision like that. I think Congress Needs to act. For example, not too many years ago the big dispute was whether coercive planning family in china was grounds for asylum or not. Congress got involved and said yeah, we dont want that. Thats a ground for asylum and for some reason they called it political opinion. They changed the statute and its definitive. Thats problem answered. If the attorney general changes it, all the circuits will do their own thing with that and it could go on forever. Congress really needs to do some of these things. Any questions . Up here in the front. Wait for the mike, please. Him im a Congressional Correspondent for the hispanic outlook and cover immigration and higher ed, and i wanted you to elaborate a little bit more about particular privileges or considerations of u. A. M. s, the unaccompanied minors, and particularly the minor part. And i want to make a point that in with educational institutions, one is considered a dependent to almost 26 years old, as with insurance. But if that minor has a child, they are no longer considered a dependent so its almost impossible for a child to have a child and still be considered a minor. However, i think among the u. A. M. s theres a considerable proportion of these minors under 18 years old that do indeed have children. Im just curious about that whole concept of a minor. True. It is an interesting thing when we hear about unaccompanied alien minors we think of 6yearold children. But the question becomes if youre a 6yearold how did you get here from guatemala if youre unaccompanied . In a lot of these cases the parents are complicit, im a father and love my son and never would put my son in the hands of a person whose main stock and trade is moving heroin over the United States border. And weve actually seen ice take action against parents who have paid smugglers to bring their kids to the United States. Thats a crucial issue. The other thing is that most of the u. A. M. s, the unaccompanied alien minors are minors in name, under the age of 18 but most of them are 17 years old. I can remember being a Trial Attorney in baltimore where judge berman and i both served as Trial Attorneys and i would get 17yearolds who were arrested at the orchards, they would pick apples and they were Migrant Workers and soon as they were apprehended would file for special immigrant juvenile status which judge berman alluded to earlier. Its sort of a misnomer in this instance. Ive seen plenty of cases involving younger kids, generally with parents. The number of cases in which there is a very young child of tender years who makes it to the United States independently, those are few and far between and very rare. Theres normally a parent in the United States who paid the smuggler to bring the child here, lets bring the parent forward and the parent can make the claim on behalf of the child. [inaudible question] its very difficult for me as a lawyer to argue the mancipation which age emancipation should be. Its important to keep in mind these people are individuals who have made their way to the United States and who are generally just on the cusp of adulthood. Might also point out minors are handled very solicitly by the law and the regulations. Unaccompanied minors are not even prosecuted by the department of Homeland Security, theyre under h. H. S. So and the wilbur force act is very lenient. You can be an unaccompanied minor even if you have relatives here. Let me point out quickly on this issue where a change of policy is very important. And if you want to understand this issue, all you need to do is read a federal District Court decision issued two years ago by judge andrew hainen, judge in brownsville, texas and he issues a decision in the case a woman smuggler, a woman who had been caught before for smuggling was caught at the border with a young girl, i think the girl was like 11 or 12, very young. She was the smuggler was convicted of a felony but the judge castigated the administration. Why . Because what did they do when the smuggler was caught at the border. They took the child, delivered her to her illegal parent in virginia, the illegal parent had paid a Mexican Drug Cartel to smuggle her daughter into the United States. In other words, this illegal alien parent in virginia had paid a drug cartel to smuggle her young daughter across the United States and what andrew hainen, the judge, said, he pointed out all the dangers of this, all the people who have been killed by the cartels, young women who had been raped and otherwise assaulted and what did the government do . They delivered the child to her parent in virginia. Now, i certainly agree that this unaccompanied minor, although they were accompanied by a human smuggler, should be reunited with her parents. But as the judge pointed out, rather than then removing the child and the parent from the United States, they did absolutely nothing about it. Yeah, they prosecuted the smuggler but they simply delivered the child. So what did the judge say . He said the u. S. Government was completing this criminal conspiracy and encouraging more parents who are illegally in the United States to pay these drug cartels, they are the ones that provide the personnel who do this work, they were completing this criminal conspiracy and encouraging more parents to engage in this kind of extremely risky behavior and what should have happened in that case and what should be the policy of the United States government is that yeah, the child is reunited with their parent who is illegally in the United States but then they are both removed from the United States and sent back to their home countries. A question on that . Thank you. From bloomberg radio. Judge berman, for people who dont follow closely what you o for a living, how often does somebody come before you, first of all, you would classified to use a colloquialism as weve heard as a bad haul bring and what do you do a big hombre and say my life is threatened by the taliban, my whole family is under threat, what do you do about it . Depends what theyre applying for. The referral of removal, Saddam Hussein could have qualified for that if he could show he would be tortured if he returned to iraq. Theres no bad hombre exclusion for that. Most other things, bod hombre i assume is somebody who committed serious crimes and would make you ineligible for asylum withholding removal. Really somebody like that can only apply to deferal of removal under the convention against torture but they have a right to do it. Let me give you an example what i saw on my docket a number of years and then i stopped seeing. I was a judge in work, pennsylvania, with the detained court and i would often see often have dock either that would have 40 of my morning cket of 20 people would have drunk driving conditions or would have been arrested for Domestic Violence. And you know, in most of these drunk driving cases we werent talking about a person blowing a. 08. The highest i could remember anyone ever blowing was a point 32. How in the world that individual was able to be alive, that fella actually admitted to me he had drunk a case of beer, his wife called and needed to be picked up at 10 00 in the morning and he went and got her. But then those cases disappeared from my docket. They just werent being picked up and werent priorities under the priority memos that went ut in 2011 and 2014. Its very difficult for me, im a private citizen now, but was very difficult for me as a judge not to look at the cases and not look at a person blowing more than a. 15, more than a. 20 and not say that was a person that merited bond so i generally would deny them. The vast majority of individual has no relief in the United States and once they were caught they would go home and generally just ask for an order of removal and i would remove them just then. The Immigration Laws of the United States dont define bad hombres. Quite frankly if you enter the United States illegally, you are removable from the United States, without a visa or permission. If you come over with a visa and overstay you are removable as a judge. Its not up to me to decide whether its the right or wrong thing to do. The one thing ill tell you is it you allow individuals who enter the United States illegally to remain in the United States illegally, as unmolested as jonathan sandwig said likely would happen to individuals who simply entered the United States illegally. Youre going to get more of them and this docket will swell. Thats what were talking about today. Why is the backlog so high . Because we werent enforcing the Immigration Laws against people we created perverse incentives for people to smuggle their children to the United States and we created perverse ways to enter the United States illegally. The smuggling fee went way down because people would just simply come across the border and claim credible fear. This was a problem for the smuggling gangs and they didnt have anybody to smuggle because quite frankly, you didnt need a smuggler. These are the perverse incentives that regrettably have been in place. You pull drunk drivers off the streets and pull individuals who have committed Domestic Violence out of jails and put them in Immigration Court and if theyre eligible for relief, i as a judge will grant you relief. If youre not eligible for relief, then Congress Said you should be removed. The other half of the question, fear of the table, theyre after me, my family. Absolutely. It was very easy. You ask a question whether you have any fear of being returned to colombia, whether you have any fear of being returned to guatemala. Its incumbent upon me as an immigration judge to ask those questions. Let me make one other thing very clear, its incumbent upon every employee of the United States government to enforce the torture convention from the president of the United States to the guy that put somebody on the airplane. Thats an obligation that exists. And generally individuals were given the opportunity i mean, i dont even say generally, always individuals were given an application for asylum, withholding removal and protection under article 3 convention under i58 and if they asked for one or advanced to fear, i would hear their case. There are protections in place. Its not that we grab people off the street and put them on a plain. Thats what Larry Bourbon does, there are protections in the american law and are in fact enforced. I had a quick question for either of the current or former judges, theres an old soviet joke i remember i used to hear when i was a student in the soviet union was that the factory workers say well, yeah, we pretend to work and they pretend to pay us. Is there a certain amount of that in the immigration judge for Immigration Judges where youre sort of going through the emotions and court of kabuki Law Enforcement and the law isnt being enforced and end up in your lap and does that affect morale the way weve seen. . I think that happens, especially judges that have been on the bench a long time and saw how it used to be and then youre ready for a hearing and the government administratively closes or terminates the case for no particular reason, doesnt save time because you were prepared to the case and you set the time aside on your docket. Yeah, that can get to people. It lowers morale. A lot of what ive been talking about has lowered morale. Judges being punished for trying to be efficient and punished for trying to move cases. Theyre never punished for continuing, theyre never punished for granting relief that maybe shouldnt be granted. Thats not good for morale. Nobody really likes that. Nobody likes to have a job where theyre not really doing what theyre supposed to be doing. A couple more. Here at the mike. My question has to do with the u. V. s, i dont know anybody is familiar with that or not. Talk into the mike. My question has to do with the uvisa, almost known as the crime victim visa. My concern here, and this is both a statement and a question, my concern is that the number of uvisas, the total backlog including family derivatives has risen from 13,645 at the end of fiscal 2010 to the current backlog reported by c. I. S. To be 168,000. We estimate that it will be a uarter of a million by january 2019. In view of this, currently it appears, and this is coming from other people, it appears that the 10,000 yearly cap, which is supposed to be mandated by congress, it appears that the current or Previous Administration has failed to asbide by the congressional cap because theyre giving immigrants that are applying for uvisas, green cards and deferred status. So i guess my question is at some point this trajectory is going to completely swamp the entire immigration system and it just continues. At what point does the president or Congress Step in and decide to implement the law so theres a 10,000 cap per year which means there would be an astronomical, were talking hundreds of thousands of cases and how would this impact on our immigration system . I tonight know theres a court angle. We dont adjudicate uvisas which is part of the problem. What happens is the alien admits hes removable and then the Attorney Says but hes applying for a uvisa. I want a continuance because it takes forever to get this thing approved or disapproved by d. H. S. At the moment we have to continue those cases because if we dont were cutting off a line of possible relief and but once again, its perverse incentives art was talking about. Theres no reason not to file these things though most of them never will be granted because it gums up the system. The more the system is gummed up, the more people will file. Thats what happened with asylum. If everybody applies for asylum and cant be adjudicated right away, they get to stay and get a work authorization. They might as well be citizens except its individuals that are filing for appeals, are they being accompanied with prelegal counsel . You cant talk without the mike. And we actually we need to wrap up so lets take two more questions, yours and yours. I can answer that after. Im from rockville, maryland, and you know theres been lots of cases that have been happening in our city. I am a legal immigrant and im very concerned and cannot understand why an illegal alien is here and why the laws havent been enforced but you all have done a fantastic presentation to educate me on why we have the problem that we have. And its appalling to think it takes so much to get an illegal out of our community. And no wonder we have the big numbers. What im hearing in the press is that these people have rights and theyre not illegal and they dont even want to use the word illegal in our community. The legislators are saying its undocumented, we dont have anybody illegal. I would like to have everybody know what illegal is and i got a little education from yall. My question is have you all followed the rockville issues, i understand there were two students who were given a scholarship and they were actually deported so my thought was oh, my gosh, how did they deport these two when im hearing this process of how long it takes to get somebody out of the country when theyre illegals. Him they already had removal orders against them they had not appealed and had become final. At that point d. H. S. Can just pick them up. An important on that we talked about final orders of amoval. I only issued one because a guy refused to come out of his jail cell and show up and i didnt have a choice. Explain why, because you were in a jail. It was a detained court and he was in a jail and he refused to come down the challah and i issued a order of removal and he never appealed this. In a trial court a significant percentage of individuals never show up for court and theyre ordered removed in absentia and finally when the day comes and the government goes to enforce the order against them they file a motion to reopen and say i never got notice of the hearing or ineffective assistance of council and shouldnt have been orderly removed. Again, its 23 of new cases that the courts are hearing that blow up the system even more. One last question. Yeah. The mike right there. Short question with short answers. Back in 2008, the executive office that makes the rules for Immigration Courts added a rule very similar to rule 11 in the District Courts which requires attorney who ghosts materials submitted by a proceed say a pro se participant in the court, an immigrant. That the attorney make an appearance. That is file an appearance notice. Now, the Western District just made a preliminary injunction so that this rule is not the rule as of today. My question is during the period between 2008 and when this preliminary injunction was issued, was the rule enforced that you cannot ghost a submission to an Immigration Court without making an appearance saying who you are . How would the judge know its been ghosted . That really is the biggest issue. The court only knows what the court is told and for that reason, you know, if there is we have a big problem notarios, people who are notary republics in the United States who hold themselves out as attorneys and end up filing frivolous asylum applications or other petitions. Thats a problem and one we have to crack down on. Thank you, everybody. Thanks for the panelists for the audience, all of our work s online at cis. Org, including arts paper and the video of this will be posted as well. Hope to see you next time. Thank you. [captions Copyright National cable satellite corp. 2017 snsm [