Transcripts For CSPAN3 Oversight Hearing On Executive Office Of Immigration Review Operations 20151223

Recently. This is just over an hour. Good morning. The committee will come to order. The chair is authorized to declare recesses. We welcome everyone to this mornings hearing on oversight of the executive office for immigration review. And uncharacteristically, im not going to begin by recognizing myself for an Opening Statement. I am going to introduce our witness and say welcome to him and ask if he would please rise so i can administer an oath. And then i will probably introduce you. May the record reflect that the witness answered in the affirmative. This mornings witness is mr. Juan osuna, appointed as executive director in may 2011, acting director from december 2010 to may 2011. Prior to that, mr. Osuna was the department of justice as an associate Deputy Attorney general from may 2009 to june of 2010. He was a Deputy Assistant attorney general in the civil division, office of immigration litigation from september of 2008 until may 2009. He served as chairman of the board of tkpwraeugz appeals. Served as acting chairman and acting advice. A law degree from the Washington College of law and American University and master of arts in law and International Affairs from the school of international service. Mr. Osuna. We welcome you this morning. I know my colleagues on both sides want to be here. Many of them will come but may come a at unusual times. We will recognize you for your Opening Statement first. And then the members will do their Opening Statements and then we will go to questioning. Thank you, mr. Chairman. Thank you for the opportunity to speak about the department of skwrus 2euss executive office of immigration review or uir. It is to hear the cases of individuals charged with violating Immigration Law sps to decide which should be removed from the United States and which are eligible for relief or protection from removal. The agency carries it out through or core of 250 judges throughout the country. Among the challenges facing the Immigration Courts, the largest is our growing pending caseload. More than 450,000 a cases pending in Immigration Courts. This is an all time high. While the immigration judge was shrinking, enforcement continued and they resulted in continuously increasing case loads. From july 2014, the time uir started tracking the Border Crossers until september 30th, 2015, more than 100,000 cases have been filed in the Immigration Courts nationwide. We are taking steps to increase our capacity to a adjudicate through a hiring effort. It is my first priority. I am pleased to report significant progress on this front and greatly appreciate congresss support for our efforts by providing. 23 new Immigration Judges have entered on duty. As of this week, the attorney general has another 37 to serve as Immigration Judges after a thorough and rigorous hiring process at uir and within the department. These are now under being the required checks before they can start hearing cases. Many more candidates are going through the final stages of the review before they can be recommended to the attorney general for selection. These new judges will be arriving in immigration throughout the country in the coming months and will have a positive were effect on the case loads, enabling the balance between incoming caseload and a number of judges available to a adjudicate it. Again, thank you for your support for these much needed resources. Within the Immigration Court system certain cases are prioritized for adjudication. Those cases involving individuals detained by the department of Homeland Security have been the agencys highest priority. Not only do the cases often involve individuals convicted of serious crimes, they implicate the individuals liberty interest. Eoir added the case of unaccompanied children and families to a priority caseload. This prioritization was in a direct response to the administrations effort to address the factors that brought a high number of people across the texas border. Were processing the cases as quickly as possible consistent with due process. I want to touch on what will help improve efficiency of the first deployment of new video tell conferencing equipment is nearly complete. These are important because theyre a force multiplier allowing the judges to conduct hearing remotely. By february every Immigration Courtroom in the country will have a new unit. We are taking steps to enhance accessibility to the court system. Increasing efficiency and combatting fraud. Eoir heads a Departmental Working Group designed to fight practitioners who undermine the integrity of the system. While we help put unscrupulous practitioners out of business, its important that we make it easier for legitimate Service Provider to step in. On october 1st we published things to make it easier to reach individuals, many of whom are detained individuals. We expect that these programs will help improve the quality of representation in Immigration Court. Finally, eoir continue to expand its highly accessible legal access program. The program is now active in 37 sites across the country. Mr. Chairman, representative lofgren, those are the initiatives that we have under way. Its positioning for the agency to have a positive 2016. Thank you and im pleased to answer any questions. Thank you, director. Im going to recognize myself for an opening and when think colleagues from california and michigan get here well recognize them. We may go to questioning from the gentleman from iowa and texas before then. Well try to make it work and be good stewards of your time in the process. Within the department of justice the executive office for immigration review is charged with overseeing the Immigration Courts and the board of immigration appeals which is the highest administration authority. As the delegates of the attorney general, the Immigration Judges serve an important function. They award asylum to those fleeing prosecution, and they also order or removed the aliens who violated our law. Whether our law requires aliens to return to their land or stay in this country will depend on the ability of the Immigration Judges to faithfully apply the law that congress enacted to their cases. Because of the relative obscurity of Immigration Courts, their labors largely go unnoticed and you could argue unappreciated by the american public. But their decisions affect real people, the immigrants and their family members alike and their effect on the immigration system is critical. Everyone, those who stand before the administration judges, this administration and our fellow citizens have a vital interest in ensuring justice in our Immigration Courts. That is one reason i am troubled that there are approximately 460,000 cases waiting for an immigration judge to make a decision. In addition i remain troubled by allegations of abuse, fraud in the asylum program. Abuse and fraud frankly hurt everyone, those legitimately entitled to relief and those depending on a fair justice system. The average alien will wait three years before the judge renders a decision. Those are the fortunate ones. According to 2012 Inspector General report over 20,000 cases were pending five years or more and 6,200 cases were pending for ten years or more. The real effect of these delays so to penalize those awaiting relief based on valid claimed immigration benefits and reward those who have no right to stay in the United States with many years of unlawful presence. The backlog has increased 100 over the last five years and the answer to the problem was alleged to be more Immigration Judges. But the d. O. J. Inspector general found from 2006 to 2010 while the number of Immigration Judges increased, case completions actually decreased. So the of Inspector General found that the inefficiency persisted. Also noted incomplete exaggerated reports and the absence of the data or an existing staffing model. Which begs the question as to whether or not additional Immigration Judges alone will solve the problem or if Something Else is required. Additionally a report by the government account about Office Release yesterday found derelictions to address asylum fraud. Through the backlog of cases until their court date is a gap in our National Security. The bottom line is in efficient and flawed adjudication process further diminishes our capacity as a station to deal with our broken system. I will look forward to todays questions and answers. Again, i will recognize mr. Lofgren whenever he comes. But the gentleman from the great state of texas, former United States attorney, mr. Radcliff. Thank you, mr. Chairman, for holding this hearing. Thank you, director osuna, for being here today. We are concerned about the impacts of illegal immigration in this country and what many see as an environment of lawlessness created by this administration which it comes to the enforcement of Immigration Laws and in efficiency of the immigration system. One of the things that highlights that is a fact that was related by the chairman, the fact a that there are approximately 459,000 immigration cases waiting for action right now were. And you know, it would appear that that type of backlog of cases really amounts to de facto amnesty because allows individuals in this country perhaps illegally to remain here without any repercussion as their cases are stuck in administrative limbo. So im anxious to hear your testimony today about plans to reduce that backlog. One of the cases that i want to ask you about in terms of contributing to a backlog is one of the judges in the houston Immigration Court, the judge mimi yam. Are you familiar with judge yam . Yes. All right. Over the past five years there were a total of 24 months in which judge yam failed to issue a single ruling. Were you aware of that . Not not those specifics but im aware of the issues there. And why dont you relate for us what the issues are there. Congressman, what i can tell you is that that particular judge is not hearing cases at the moment. It is unfortunate personnel issue that i cant get in to with you in this forum. But it is true that shes not hearing cases at this time. Well, whether shes hearing cases at this time or not, shes been paid as an employee of the United States government and there have been long periods where, while shes being paid to do that, shes been hearing cases but not ruling on cases. And to highlight that fact, she went as long as seven months without issuing a single decision and through may of this year shes issued a total of i think 15 decisions over the same period of time one of the judges right next door to her issued decisions in 700 cases. Can you see why in an oversight hearing like this the American People would be concerned about this type of inefficiency when it comes to ruling on our immigration cases . Congressman, again, because i cant get into the personnel issues, we cant get into the specifics here. What i can tell you though is that houston is actually one of the courts that we have targeted for adding significant number of new judges as part of the hiring that we are currently doing. As i mentioned in my Opening Statement, we have added 23 new judges over the past year. The attorney general as of this week had selected another 37. And we are in the process of hiring quite a few more. Houston is one of the Immigration Court locations at one of the courts that we are targeting for more judges because of the great need there. So, director, weve the backlog of cases is clearly well documented. I understand that your office has shifted many of its resources to address the cases who have crossed our southern border primarily on or after may 1, 2014. Would it be fair to say the docket is primarily devoted to hearing cases involving minors and family units who are apprehended at the u. S. Southern border as part of the surge . Congressman, those case are a priority of us along with the cases of detained individuals. For the reason i said earlier the detained individuals are the ones that committed serious crimes in the country therefore we move those to the top of the priority list, before all others. You are correct that last year we also added the priority list the cases of unaccompanied children and families and others that were crossing the southern border as part of our response to the influx. I would say that a great number of the adjudications in our courts are of those two large groups. It does not mean that we dont adjudicate other nondetained cases, that are pending in Immigration Courts around the country. We have to draw this line between making sure that those priority cases are taken care of first, but also not neglecting those cases of others that have been waiting for a long time for their hearings. I want to ask you about the timing in the few seconds left here. Director, do you think it would be fair for me to say that there are thousands, presently thousands of unlawful aliens who wont have a hearing before an immigration judge for perhaps the next five or six years . There are thousands of individuals that are waiting for their hearings. We prioritize those who need to have their hearings first because of compelling National Interests such as the need to get the ten cases heard first and adjudicated first and get criminal aliens out of the country or those who crossed the border last year. There are some who will have to wait because of the prioritization. Because of that prioritization, as youve encapsulated for us, in some cases right now thats five or six years. In some Immigration Courts the wait can be as long as five years, yes. Mr. Chairman, my time has expired. I yield back. Gentleman from texas yields back. We recognize the lady from great state of texas, ms. Jackson lee. Thank you very much, mr. Director. And thank you for your service. Id like to explore a line of questioning because i think its important to discern the responsibilities of your Office Versus the state department and how we can be helpful, the congress and particularly this committee. Let me follow the line of questioning like my colleague from texas, regarding the lengthy backlog and cite again the 450 cases of which are backlogged. And an individual on the document might have to wait for four years. Certainly i am from the Southern District of texas and i know the Immigration Courts there. This delay means that people with potential claims for immigration relief remain in limbo throughout the pendency. This affects children, Asylum Seekers and other immigrants hoping to obtain immigration relief and theyre in the legal system because theyre trying to go in to court. What solution do you propose to solve the Court Backlog and how can members of congress in particular help the elir office . I have series of questions. Ill let you briefly answer those before i go on to other questions. Thank you, congresswoman. Our main approach to making sure that we have this balance between the incoming caseload and the adjudicators is more Immigration Judges. We got into this situation because of a number of years, where there was severe immigration shortages. We lost a number of judges from 2011 to last year, during a time of budget cuts. We were not able to replace those judges who left the agency. You have the capacity for how many . We currently have thanks to Congress Appropriation for us this past year, we have 319 authorized positions. We are filling those as quickly as we can. Those judges will make a Significant Impact. Why dont you help us out. You have 319, but youre at a smaller number right now, is that correct . You have 250 judges. Thats correct. And i think you have some good news about those that have been approved. How many have been approved or added to that . Thats correct, congresswoman. In my Opening Statement i mentioned we added 23 over the past year and the attorney general approved 37 more as of this week. And several dozen more are in the final stages of the Selection Process at the department. And the president s asked that you mention that in your Opening Statement as well . The president has asked for another 55 Immigration Judges for fiscal year 16 and thats going to be a very significant step forward for us as well. And we ask for your support for that. And that will make a sizable difference as well . That will get us to about 385 384 Immigration Judges nationwide when all of those positions are filled if congress provides those positions, that is going to have a very, very Significant Impact and will enable us to begin to shorten the wait times in the most backlogged courts. And i would imagine though were not getting to personnel matter, youre going to ferret, sort of review your immigration julys to make sure that they are both hearing cases and ruling . I think thats an important oversight as well, will you engage in that . Exactly. So the process that we have for selecting Immigration Judges is designed to make sure that we select the best candidates that are representing the attorney general in these courtrooms. Let me move to a situation i think should be clear. First of all, refugees coming into the country are handled by the state department. But if i was online, one of those cases and i was seeking asylum, we know that you will have a hearing before the immigration judge. But that is not the final decision. Would you explain after that hearing before the immigration judge what then, what process goes forward to ensure that that person is not a National Security threat . Immigration judges are prohibited by law from actually granting asylum before unless that person is then sent for background and security checks by the department of Homeland Security. So if an immigration judge finds that somebody is legally eligible for asylum and merits i asylum in this country, that judge then has to suspend the case, send the case to the department of home land security for the required background and security checks. Those security checks are done with the fbi and through the interagency database check process. And only until that case comes back and dhs tells the judge the background is clear, this person is not a danger, can the judge go ahead and grant asylum. There are layers that are added to a judges original hearing that adds let me quickly ask you this question. Does your agency have a plan about addressing concerns about expedited review of prioritized cases such as those involving children and those who are detained criminally and would you like to highlight the new policy change that you that i understand you may be suggesting from 21 days to 90 days. For so for the ten cases we dont have a policy change. Were doing what weve always done on those, prioritizing those cases. We do have a change on the unaccompanied minor front. The commitment last year was to hold the cases, those hearings initially within 21 days of the case being filed in court. In consultation with our federal partners and after hearing from a lot of stakeholders over the last few months weve been considering a change so we decided to move that timeline,ed a just that timeline from 21 days from 10 to 21 days to 30 to 90 days. Thats for the unaccompanied children . Yes. Not impacting criminals. Thats correct. Thats important to clarify. You are doing that because stakeholder have to get all the facts together for the children. Thats right. We feel this change will provide the courts more flexibility of the challenging cases and provide the children more time to find Legal Counsel and that works for the efficiency of the Immigration Courts. It helps us in the long run to move these cases faster business actually providing more time initially for the kids to get counseled. I think all of us would appreciate it. Thank you, mr. Chairman. I will finish on this note. I think we all appreciate it that its not where the children are vulnerable. It is not that the children are within the purview of the courts or hhs in the instance of their detaining but it is to give them more rights so decisions can be more adequate as to the ultimate resolution. Is that be the correct assumption . Were making the change because it helps the efficiency of our courts and it helps the by helping the kids, giving the kids more time to find counsel, it actually helps the Court Function more efficiently, thats correct. With that, mr. Chairman, i yield back. Thank you. General lees time has expired. She yields back. The chair will now recognize the gentleman from iowa. Mr. King. Thank you, mr. Chairman. Director, i appreciate your testimony. And the fact that youre here. We watch this grow over the years. Its not a big surprise to me to see these numbers grow the way they have. But i wonder if you can break this down for us a little bit. Im looking at numbers in your testimony that say that theres a 457,106 case, ill call it a backlog case. That has increased more than 298,171 since 2011. From that i cant exactly determine whether thats if i can matchup fiscal years. Can you tell me roughly how many additional cases have accrued on annual bases over the last four or five years . I dont know if i have those numbers exactly. What i can tell you is we started tracking, for example, the southwest Border Crossing cases beginning last summer. And we i can tell you that we have added 100,000 cases have been added to the Court Dockets from the summer of 2014 through this fall, primarily through the border. If i average those numbers thats 75,000 a year that so if its 100,000 thats been added over the last year that you can contribute, that is an accelerating number by probably more than acceleration of 25,000 additional a year. And ill just tell you ive been done i dont want to put words in your mouth. Thats just my math. Ive been down to the border a number of times. I recall standing on the banks of rio grand river at roma, texas, with my video camera. Couple of Border Patrol agents and watching as two coyotes drive around on the other side of the river until a shift change took place and then they pulled their inflatable raft out of the trunk of their car, inflated it, two coyotes helped load a pregnant lady in that raft and came across the river, docked the river in the weeds on excuse me, docked the raft in the weeds on the u. S. Side of the river. Helped her out, handed her two little bags of her possessions. She patiently stood there for the shift change to be complete so a Border Patrol agent could come along and pick her up. One could expect that she applied for asylum. Seems to me not that they fear enforcement, nor do they fear adjudication. They seem to welcome that. What is the percentage of asylum applicants that are granted asylum that are coming across our southern border, especially in the mccowen region . Congressman, thats a tough number to get and ill explain why. Because if the border crosser is an unaccompanied child, the law provides that that individuals asylum claim if they file one actually has to be heard by uscis at dhs. So the child comes to Immigration Court first. The judge does what hes going to do with that case in terms of hearing the pleadings. If the child then wish to apply for asylum, the judge then has to send that case over to uscis. Many cases are still pending at uscis. I dont have a number as to how many are being granted. You can actually go down through the records now and draw from those records the status of each one of them, put that in a spreadsheet and let this Congress Know the status of these asylum claims by children that you have selected from the question i asked. It could be done, couldnt it . I dont know if i can be done. Were certainly happy to look into it. Im going to ask you in on the record here if you would produce those records, not only for the children that apply for asylum. All the asylees that apply, id like to see the results of that, how many are pending, why, id like to see the ill put this in a formal letter so that its clear. I dont want to ask you to remember all of this. Id like to see the affect of the continuances that have been offered. The data im looking at the continues as, oigs report, 953 cases reviewed by the oig, 4,091 continuances, totaling 305. 47 days. It averages 92 days per continuation and 360 days per case. Every case that theres an asylum application by this gao report results in more than a year of continuances. Have you looked at how to come press that so that we can get that adjudicated in a quick fashion . We know if we dont send those back, those that need to go back, theyre going to keep coming. On the issue of continuances, congressman, we have looked at that. The continuances are actually a legal matter that is governed by the regulations. The standard under the regulations are that Immigration Judges are to grant a continuance if there is good cause shown. And there is much case law from the bia and from the federal courts as to what is good cause. Of course im out of time but i would just say our good cause is unlikely to be four different good causes in a row on average for each case lasting a year. I conclude my questioning. I thank you for testifying. I yield back the balance of my time. Thank you the gentleman from iowa. The chair will now recognize gentleman from michigan, mr. Conyers. Thank you, mr. Chairman. And i thank my colleague for letting me go in front of her. Mr. Chairman, can i put these in the record before Going Forward . Thank you for your kindness. I have a meeting. I would like to add to the record unanimous consent, mr. Chair a letter, a statement from the immigration excuse my, American Immigration counsel under funding of Immigration Courts under mines justice and a second document, executive office for immigration review unaccompanied children, prior to quota adjudication. Unanimous consent to put these items into the record. Without objection. Thank you. Youre more than welcome. I ask unanimous consent to put my Opening Statement in the record, mr. Chairman. Without objection. And we find that theres a problem that our Immigration Judges well, when it comes to immigrants, we sometimes confuse judicial discretion with judicial abuse. I think youre very sensitive to that, director. The too much of our proposals legislatively has sought to streamline the Immigration Court removal process by taking discretion out of the hands of the Immigration Court. And so some believe that many forms of relief granted to immigrants are without merit. And im not sure if thats the case. Do you have a view on that, sir, that you could relate to us . Congressman, on the issue of merit, of claims, thats what our judges are there for, to determine which cases are actually mayor tore kwrous and which are not. They do a good job of that every day around the issue of courts in the country. On the issue of discretion, i trust our judges to exercise discretion in the best way possible and we believe that they that that is appropriate to vest them with that authority. Thank you. I tend to agree with you. I realize that this is a thankless task, to ensure that immigrants in removal proceedings have a full and fair hearing before an impartial immigration judge. And so its in that spirit that i come to these hearings. And you know, the delay in hiring Immigration Judges is often cited as a reason for the Immigration Court backlog. What are the challenges that you might give us this morning with reference to the hiring of Immigration Judges . Congressman, we have a very robust and multilayer process for hiring Immigration Judges. It takes a long time. But we feel that it is necessary to do this carefully because these individuals, as you know, are exercising the attorney generals authority in Immigration Courtrooms around the country every single day. They are literally making life and death decisions so we need to make sure that we are selecting the best candidates to serve as Immigration Judges. That requires multiple layers of review at uir and at the department of careful vetting to make sure that we are getting the best of the best. That unfortunately takes some time. We have been able to streamline the process to some extent over the last few months to make it go a little bit faster. But we think the process helps to make sure we select the best individuals. In my Opening Statement i did mention that we have added 23 new judges over the past year and the attorney general has selected 37 new judges as of this week who are now going through the required background and security checks before they can begin hearing cases. So we are adding judges as quickly as we can and they will make a significant difference. In your testimony, finally, you include a chart on immigration judge hiring. And in the Second Quarter of 2015 where you did not hire any Immigration Judges, can you explain why eoir did not hire any during that period . There were judges in process at that time. What the chart shows is the actual number of people entering on duty. Judges entering on duty in this particular quarter. So the hiring process was going on during that Second Quarter. They just had not entered on duty as of that time. You will see at the Third Quarter shows 18 new judges entering on duty. Those were the ones that were in the process in the prior two quarters. Uhhuh. Thank you, sir. I thank the chairman. The chair will now recognize the gentleman from colorado. Thank you, mr. Chairman. I yield my time to the gentleman from texas. Gentleman from texas is recognized. Thank you, mr. Chairman. Thank you the gentleman from colorado for yielding his time so i can follow up on a question, director osuna, that i didnt have time to ask. In my prior line of questioning. That is this, what is official policy for granting a continuance in an immigration case . Continuances are governed by regulation, congressman. Regulations provide that a judge may grant a continuance for good cause. That good cause standard has been filled out, outlined and defined through Court Decisions over a number of years. So that is a standard. Immigration judges refer to that standard, follow the circuit law and bia law on what is good cause. It depends on the individual case. We know that standard is established by case law and precedent. But the i specter general report from 2012 cited frequent and lengthy continuances as the primary factor in this backlog that weve been talking about of now almost half a million cases. Youre aware of that fact . Im aware of the Inspector General report, yes. And the fact that they cited that as a primary factor. Im aware they cited it. I cant remember what ranking they gave it but i do remember they did cite it. Okay, well, to that point, the Inspector General actually recommended that your office and i want to quote this so i make sure i get it right, recommended that your office, quote, analyze the reasons for the continuances and develop guidance that provides Immigration Judges with standards and guidelines for granting continuances to avoid these unnecessary delays, end quote. Do you remember that from the ig report . I remember that. Can you tell me what youve done to comply with that recommendation . Sure. Continuances, again, are governed by legal standards. What weve done is two things. Number one is we do provide regular training for judges on continuances. We provided Legal Training just a few months ago on a number of issues. And provide information on what the courts have said about that legal standard. Secondly, this is more of a management issue, but our assistant chief judges, which are the supervisory judges that have supervision over particular courts, do monitor the continuance issue and the oldest cases that are pending on Court Dockets. And they take action as appropriate. Sometimes it is not appropriate to, you know, to take any action because it is the number of continuances is actually appropriate in a particular case. But where there appears to be something, you know, an outlier issue with somebody granting continuances for, you know, other than the good cause standard, then that is treated as a management issue. So is this having an impact on the number of continuances . I dont have an answer for you on that, congressman. So then let me ask you this question. If during an immigration case the department of Homeland Security provides sufficient evidence to find that an individual in question is not entitled to admission to the United States, whats the role of the immigration judge . If i understand your question, i think that if the department of Homeland Security finds somebody not entitled to admission. Well, that would be thats a legal determination that the judge would have to make. But certainly dhs as a party in the courtroom would have a Significant Impact on to that, on that decision. The judges responsibility is to find that somebody is removable from the country or not remove rabble. If they are not removable the evidence submitted be i the dhs goes a long way to proving that because that is dhs burden. Well, if the determination is made, the judges role is actually to sustain the dhs charge of removability, isnt that right . The judges role is to determine whether somebody is removable and dhs evidence coined to that factor that legal determination is obviously very relevant if not determinative in the Immigration Judges decision. That is not the end of the discussion in Immigration Court because if a judge finds somebody is removable from the country, then he has to consider or she has to consider whether that person is eligible for some sort of relief on removal. So 121 convicted criminal aliens released by the Obama Administration between 2010 and 2014 have been charged with homicide related crimes. Were you aware of the fact that 33 of those individuals were released on bond at the discretion of your office after committing the original crime . Im aware of the 33, yes. All right. Does that concern you . Congressman, those cases, Immigration Judges held bond hearings. As anybody or most people that are not detained mandatorily are entitled to a request. The law provides that Immigration Judges are to determine two things in a bond proceeding. Number one, is a person a flight risk, are they going to show up for their hearings or are they going to obscond. Number two, are they a danger to the community, to these. If the judge finds they are a flight risk, he or she may set a high bond or no bond at all. If they are community, particularly judges dont release them or set a very high bond, they dont release them. So the 33 individuals that you mentioned, i have i had no reason to think the judges made the wrong decision in those cases. Did you go back and review of those cases . Im aware of some of them. I didnt review every single case. Okay. Chair, my time has expired. Ill yield back. The gentleman from texas yield back. The chair recognizes the gentlelady from california. Thank you, mr. Chairman and mr. Osuna. Im sorry i was late. I was at a meeting also on an immigration matter. I would ask unanimous consent to put my full statement in the record. Without objection. I would just note that we have ramped up expenditures on Immigration Enforcement over the past decade, substantially. We have increased the funding or the Border Patrol and for i. C. E. , thats more than quadrupled, the expenditures there. But our funding for the Immigration Courts has lagged far behind. Weve added 70 increase for courts and quadrupling of expenditures for at the border. And i think, you know, no system is perfect. Im not going to say having worked as a lawyer in this system many, many years ago, but you cant just keep jamming more into the system group need to ramp up the capacity in the Immigration Courts. And were making some baby steps forward on that now, but i am concerned given the demographics of the Immigration Judges, we are facing a tidal wave of retirements among the ranks of the judges. Those are funded positions but were going to have to go out and hire people and train people. So i think weve got a picture that is going to be very problematic to manage. Mr. Osuna is an old hand at this. He was here during the bush administration, during the Obama Administration. He knows what hes doing. But im hoping that he will let this committee know if he needs additional assistance because its in everybodys interest that this work well and that the immigration judge system and the court system works well. I just wants to mention one other thing and i know its not entirely actually it isnt up to you, but i have continuing concerns and i raise this issue when the attorney general was here about the due process implications of children appearing in Immigration Court without counsel. I dont see how an 8yearold who speaks no english can appear without counsel and possibly represent themselves and meet the due process expectations in our constitution. So i throw that out there. I know that efforts are being made to coordinate with pro bono lawyers. But i think ultimately litigation will resolve this issue for us. And we need to be prepared to respond. If i may, mr. Chairman, perhaps in addition to doing my Opening Statement i can directly to my questions and we will be able to expedite the conclusion of this hearing. Yes, maam. I had a question about the asylum applications and the oneyear filing deadline. Because of the backlog, and i think this rocket docket actually aggravated that because all the resources were put forward and all the other cases ended up being delayed. Weve got a problem. And its my understanding that in august of this last year human rights first and the law firm of akin gump requested an er memorandum to instruct Immigration Judges that administrative delays can constitute and exceptional circumstance to the oneyear filing deadline. Id like unanimous consent to enter this letter in the record. Without objection. Doesnt it seem to me, and doesnt it seem to you, that if the delay is not caused by the applicant but by the administrative delay in the courts, that that shouldnt be an adverse finding for the applicant themselves . Congresswoman, thank you for your question. I am aware of this issue. I can tell you that we are looking at it and we have heard from the stakeholders on this issue. I would note that the law does provide some exceptions to the oneyear deadline as you know. Right. That judges consider on a casebycase basis every day. And what we do see is respondents filing motions to advance their cases to earlier Court Hearing times in order to address this issue. So that does happen. But, to your point, i understand the issue. Were working on it. And we have heard from the stakeholders on their concerns. Two other questions. I think when we when we we want speedy resolution of matters but you can go so fast that you end up causing delay. And ill give you an example of a young person who fled Gang Violence in honduras. He got death threats. He fled. He has an asylum case to be heard. He was released from detention. He was placed with a family. But it moved so fast that the notice was sent to where he had been. He never got it. And so by the time he lined up with a pro bono attorney, he had been ordered, removed in absentia but he never knew about the hearing. So now theres a motion to reopen the hearing. It causes more work for everyone. And im wondering, if weve given some thought to how we might make sure how we might ensure theres actual notice received by people when weve accelerated these cases not only in terms of fairness for the individuals involved but also for the system because you got to spend a lot of time and effort on the motions to reopen as well. That could be resolved. Thank you, congresswoman. We in the prior discussion with representative jackson lee, i did mention that we have decided to make a change as to the initial timeline. As you recall last year we committed to holding the first hearing for unaccompanied child from 10 to 21 days after the case is filed. We have been pondering changing that for the exact reason that you mentioned. That it actually helps Court Efficiency to provide more time at the beginning. So we have decided to change that and we will be instructing our courts to hold that first hearing from 30 to 90 days after the case is filed rather than the 21 days. We do strongly think that that will help with a lot of these kids getting counsel and thereby helping the efficiency of the court. Final question. Eor lags behind other Court Systems in terms of filing documents electronically. Now all the federal courts and all the courts in california you can file your documents electronically. Its a convenience not only to the bar but its a convenience for the court. We now you still have to get paper filing. Im not i assume thats a resource issue. But what steps can be taken to bring eor up to modern standards in terms of Electronic Filing . Electronic filing is one of the things that i feel strongly we need to move towards. We actually have taken some steps on that. We were able to secure some internal funding. I believe it was about 18 months ago to begin the first step of this, which was electronic registering of attorneys practicing before our Immigration Courts. That will be one of the foundations for a system that we hope will eventually allow us to file an exchange documents electronically. Do you have a timeline for that . I dont have a timeline, but we are we do have a plan. Its an aggressive plan. I think 2016 were going to see some progress on that. And we hope that we eventually will get to the point where people will be notified electronically. Thank you. Thank you, mr. Chairman. Director, i want to ask you about the Inspector General for the department of justice but by friend from texas line of questioning prompted me to go further there. Im going way back in time to a period where wasnt all that knowledgeable even back then, so im less knowledgeable now. But if memory serves, the government and the defendant can consent to a bond. It doesnt necessarily have to be adjudicated by a judge, does it . Or is immigration different . Youre talking about a bond, sir . Bond. The bond process, what i think happens is that makes the first determination on bond when they are detaining an individual. And in some instances that individual can then request a redetermination by an immigration judge. Well, you had a line of questions with the former u. S. Attorney in texas about the 33 who were charged with homicide, i assume. Well, homicide is not a charge in south carolina. Murder, some form of murder. Im wondering whether or not the government consented to bond in those cases and whether or not youve had a chance to look at that. I believe in the majority of cases the the judge made the determination on bond and the department of Homeland Security did not appeal that determination. All right. In the area of appeal, i think you mentioned the standard for continuance is good cause. Right. Can you cite me to any opinions of record where a judge was reversed for granting a continuance . I cant cite you any particular cases but i do know from my experience when i was on the board of immigration appeals many years ago that judges would get reversed for granting too many continuances when the dhs appealed that decision. Well, good cause is probably hard to define, despite the efforts of courts to do so. What would be a reason not to grant a continuance . It depends on the individual case. But, for example, if a judge has granted a couple of continuances already for the individual to get counsel, and the individual has made no reasonable efforts to secure counsel, a judge can very well and often do say, you know, ive given you a couple of chances here. Its time to move on. And judges make those decisions every day. Thats a fairly frequent occurrence. Speaking of frequency, is the first continuance fairly much for free . Do you get the first continuance just simply by asking for it . Again, it depends on the context. In detained cases, its not that way and nondetained cases it can be, in some courts, depending on what the situation is. All right. You mentioned the factors that the Court Considers in either detaining somebody or setting bond. Flight risk and a danger to the community, which prompts me to want to ask about folks who abscond. I dont have that for you, mr. Chairman, some fail to appear. The size of the bond is designed to make sure that they appear, but sometimes dont. Im with you, director. I used to live it, but, but from where i sit, the number of folks who fail to appear would be a pretty serious issue. Im assuming you dont try them in their absence. Well, actually, they do. There is a process for if somebody has received have to prove they got notice. If they got notice of the hearing. There is the law does provide and our judges every day hold hearings in absentia. What happens, comes forward, presents evidence of the individuals ability, the judge considers whether the person got out with notice f. The answer is yes, then the judge will order an absentia order and it will be enforced by dhs. All right, if somebody fails to appear, what is the mechanism by which you compel their appearance . Judges issue bench warrants . No. Our judges dont have that authority. We dont have anything like the Martial Service or anything like that. The judge will consider if the person got adequate notice, they will issue an absentia order if appropriate and then dhs has the responsibility of picking them up and actually removing them. Of your backlog, what percentage would you say are folks who absconded or failed to appear after a bond was set and a trial date was set . If they have received a final removal order in absentia or otherwise they are not included in the 450,000 case load. Those are out of the system. Theres a final removal order. Unless they file a motion to reopen later to come back in and the judge grants that, in absentia nods or any remove order is not included in that number. All right. Given your background and your expertise, what percentage of folks who abscond are tried in their absence . Sorry, sir, you are asking how many folks that fail to appear, are tried in their absence . Given in absentia orders . Yes. I dont have that number for you. I just dont. What other tools do you have other than trying someone in their absence . If theres a failure to honor a court date, what other tools do you have . You dont have a bench warrant. Theres no presumption that is lodged against that. Theres no evidentiary presumption, i would assume. Can the judge consider the evidence of flight as some evidence of guilt or consciousness of wrongdoing if they dont show up . No. What the judge will consider is whether the person actually is removable from the country under the law. Thats really the end of the inquiry. Once that is done, the removal order is issued and then the person is, you know, can be picked up at any time by i. C. E. And deported. Let me ask you one more question, and im going to let the congresswoman follow up. I assume doj Inspector General is still Michael Horowitz . It is. I got to tell you, from where we sit, hes a pretty good balls and strikes caller. Hes a fair guy. All my dealings with him, hes been kind of straight down the middle. So when i see that he has concluded that even as the number of judges increases, the disposition number of those judges decreases, that catches my attention. Because it makes me think maybe Something Else is going on and its not just more judges. I dont want to minimize if thats the explanation, then thats the explanation. But when mr. Horowitz says it may not be the full explanation, what else could be going on . Mr. Chairman, i do think that the single biggest reason for the case load is the shortage of judges over the last few years. I dont think that you can lose as many judges as we did at a time when enforcement was going up, and not have that be a Significant Impact on the caseload and on wait times. We have taken a look at this issue repeatedly. We have kicked the tires. We have looked under the hood. We have tried to see what else is going on. One thing we do hear quite a bit from all of our judges and from i. C. E. Trial attorneys as well is that the complexity of the law has gotten the law has gotten much more complex over the last ten years. Cases that used to be fairly simple are now complicated. Let me give you an example. It used to be fairly straightforward to determine whether somebody is an aggravated felony under certain provisions. Because of Supreme Court precedent and other decisions, in many instances, the Drug Trafficking area is one, for example, it is actually much more complicated these days than it was ten years ago to determine whether somebody is deportable as an aggravated felony for certain offenses. So that is one area that we have concluded a judge may have spent an hour on a case ten years ago and that same type of case now may take four hours because the law has gotten more complicated. We have taken a look at other issues as well but we are convinced that hiring the requisite number of judges is actually going to make a difference. Let me actually give you an example from actually within the agency and thats the board of immigration appeals. The bia is doing very good decisions these days, very legally excellent decisions providing guidance to the courts and their case load is stable. In fact, it has actually decreased slightly over the last few years. The lesson that we took from that is that the board has actually had unlike the Immigration Courts a balance between the incoming case load and the adjudicators necessary to adjudicate that case load. V\ thats the lesson we have drawn. Thats why hiring is such an important priority for us for the Immigration Courts, because we are convinced that that is how we will address this case load. I recognize the gentle lady from california. Thank you, mr. Chairman. Just a couple of followup questions if you could get back to us on it if you dont know now. I would like to know what the failure to appear rate is on various categories. I had, looking at some of the data, its very low if individuals are represented by counsel. There are different outcomes if someone isnt and so if you are able to make those distinctions, i think that would be helpful. I would like to know among the 30 who committed homicides or were charged with homicides, how many of them was a zedaeus case releases or not and how many of them were cubans and with the change in status between the United States and cuba, theres apt to be last time we looked at it, the vast majority of the zedaeus cases were cubans and if they are removable to cuba because of our new relationship with cuba, were going to have very different outlook in terms of the criminal issues in zedaeus. I just wanted to clarify for the chairman and others in terms of notice, because theres no requirement that the person receive actual notice. I mean, what youre looking at in the court is was something mailed to the person. That person could have moved, he might never have lived there. We had a case a number of years ago of a legal permanent resident who failed to file the removal condition on her marriage who was active duty navy in a uniform who got, was mailed a notice, never got it because she was deployed to kuwait and was found deportable in absentia because it was something she never heard of. I think its important to note that its not like the criminal courts or the civil courts youre not getting somebodys a server handing you the notice. Its just in the mail and you may or may not even know whats going on. Thank you, mr. Chairman. Thank you, gentlelady. We recognize the gentleman from texas for any concluding remarks he may or may not have. He is indicating that he is done. So this concludes todays hearing. I want to thank you for attending. I want to tell you again that the fact that folks may have been in and out or not able to come is no reflection of the seriousness with which they take this hearing. Flyout days are always troublesome. But thats on us and not on you. You were here like you were supposed to be. Without objection, all members will have five legislative days to submit additional written questions for the witness or additional materials for the record. With that, we thank you for your testimony this morning and your willingness to answer our questions. We will be adjourned. Thank you, mr. Chairman. [ chatter ] [ chatter ] coming up tonight on cspan 3, American History tv features programs about the civil war. Next, the 150th anniversary of robert e. Lees surrender at appomattox. At 10 20, we visit the camp sumpter civil war prison. Then we talk to historian leslie gordon. American history tv was live this past spring from Appomattox Courthouse National Historical Park in virginia where a confederate general robert e. Lee surrendered his army to ulysees grant. Well hear from the two living historians at the parks events commemorating the surrender at appomattox. My name is robin snyder, im currently the acting superintendant at Appomattox Courthouse National Historical Park. It is my distinct honor on behalf of the National Park service and the United States Postal Service to welcome each of you here today on this historic day in our nations history. This courthouse village stands not just as the symbol of wars bu