[House Hearing, 114 Congress]
[From the U.S. Government Publishing Office]

OVERSIGHT OF THE EXECUTIVE OFFICE FOR IMMIGRATION REVIEW

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

HEARING

BEFORE THE

SUBCOMMITTEE ON
IMMIGRATION AND BORDER SECURITY

OF THE

COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES

ONE HUNDRED FOURTEENTH CONGRESS

FIRST SESSION

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DECEMBER 3, 2015

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Serial No. 114-57

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Printed for the use of the Committee on the Judiciary

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Available via the World Wide Web: http://judiciary.house.gov

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COMMITTEE ON THE JUDICIARY

BOB GOODLATTE, Virginia, Chairman
F. JAMES SENSENBRENNER, Jr., JOHN CONYERS, Jr., Michigan
Wisconsin JERROLD NADLER, New York
LAMAR S. SMITH, Texas ZOE LOFGREN, California
STEVE CHABOT, Ohio SHEILA JACKSON LEE, Texas
DARRELL E. ISSA, California STEVE COHEN, Tennessee
J. RANDY FORBES, Virginia HENRY C. ``HANK'' JOHNSON, Jr.,
STEVE KING, Iowa Georgia
TRENT FRANKS, Arizona PEDRO R. PIERLUISI, Puerto Rico
LOUIE GOHMERT, Texas JUDY CHU, California
JIM JORDAN, Ohio TED DEUTCH, Florida
TED POE, Texas LUIS V. GUTIERREZ, Illinois
JASON CHAFFETZ, Utah KAREN BASS, California
TOM MARINO, Pennsylvania CEDRIC RICHMOND, Louisiana
TREY GOWDY, South Carolina SUZAN DelBENE, Washington
RAUL LABRADOR, Idaho HAKEEM JEFFRIES, New York
BLAKE FARENTHOLD, Texas DAVID N. CICILLINE, Rhode Island
DOUG COLLINS, Georgia SCOTT PETERS, California
RON DeSANTIS, Florida
MIMI WALTERS, California
KEN BUCK, Colorado
JOHN RATCLIFFE, Texas
DAVE TROTT, Michigan
MIKE BISHOP, Michigan

Shelley Husband, Chief of Staff & General Counsel
Perry Apelbaum, Minority Staff Director & Chief Counsel

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Subcommittee on Immigration and Border Security

TREY GOWDY, South Carolina, Chairman

RAUL LABRADOR, Idaho, Vice-Chairman

LAMAR S. SMITH, Texas ZOE LOFGREN, California
STEVE KING, Iowa LUIS V. GUTIERREZ, Illinois
KEN BUCK, Colorado SHEILA JACKSON LEE, Texas
JOHN RATCLIFFE, Texas PEDRO R. PIERLUISI, Puerto Rico
DAVE TROTT, Michigan

George Fishman, Chief Counsel

Gary Merson, Minority Counsel

C O N T E N T S

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DECEMBER 3, 2015

Page

WITNESS

Juan P. Osuna, Director, Executive Office for Immigration Review,
United States Department of Justice
Oral Testimony................................................. 2
Prepared Statement............................................. 4

OPENING STATEMENT

The Honorable Trey Gowdy, a Representative in Congress from the
State of South Carolina, and Chairman, Subcommittee on
Immigration and Border Security................................ 11

LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING

Material submitted by the Honorable Sheila Jackson Lee, a
Representative in Congress from the State of Texas, and Member,
Subcommittee on Immigraiton and Border Security................ 19
Prepared Statement of the Honorable John Conyers, Jr., a
Representative in Congress from the State of Michigan, and
Ranking Member, Committee on the Judiciary..................... 30
Prepared Statement of the Honorable Zoe Lofgren, a Representative
in Congress from the State of California, and Ranking Member,
Subcommittee on Immigration and Border Security................ 34
Material submitted by the Honorable Zoe Lofgren, a Representative
in Congress from the State of California, and Ranking Member,
Subcommittee on Immigration and Border Security................ 37

APPENDIX
Material Submitted for the Hearing Record

Questions for the Record submitted to Juan P. Osuna, Director,
Executive Office for Immigration Review, United States
Department of Justice.......................................... 54

OVERSIGHT OF THE EXECUTIVE OFFICE FOR IMMIGRATION REVIEW

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THURSDAY, DECEMBER 3, 2015

House of Representatives

Subcommittee on Immigration and Border Security

Committee on the Judiciary

Washington, DC.

The Subcommittee met, pursuant to call, at 9 a.m., in room
2141, Rayburn House Office Building, the Honorable Trey Gowdy
(Chairman of the Subcommittee) presiding.
Present: Representatives Gowdy, Smith, King, Buck,
Ratcliffe, Lofgren, Jackson Lee, and Conyers.
Staff Present: (Majority) George Fishman, Chief Counsel,
Subcommittee on Immigration and Border Security; Tracy Short,
Counsel, Subcommittee on Immigration and Border Security;
(Minority) Perry Apelbaum, Staff Director & Chief Counsel; Gary
Merson, Chief Counsel, Subcommittee on Immigration and Border
Security; Maunica Sthanki, Counsel; Micah Bump, Counsel; and
Rosalind Jackson, Professional Staff Member.
Mr. Gowdy. Good morning. The Judiciary Committee will come
to order. And the Chair is authorized to declare a recess of
the Committee at any time.
We welcome everyone to this morning's hearing on Oversight
of the Executive Office for Immigration Review. And
uncharacteristically, I am 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 would properly
introduce you.
Do you swear the testimony you are about to give is the
truth, the whole truth, and nothing but the truth, so help you
God?
The record will reflect that the witness answered in the
affirmative.
This morning's witness is Mr. Juan Osuna, who was appointed
as the Director of the Executive Office of Immigration Review
in May of 2011, served as acting director from December 2010 to
May 2011. Prior to that, Mr. Osuna was at the Department of
Justice as an associate deputy attorney general from May of
2009 until June of 2010. He was a deputy assistant attorney
general in the Civil Division, Office of Immigration
Litigation, from September of 2008 until May of 2009. He served
as chairman of the Board of Immigration Appeals. He also served
as acting chairman and acting vice chairman. He holds a
bachelor of arts from George Washington University, a law
degree from the Washington College of Law at American
University, and a master of arts degree in law and
international affairs from the American University School of
International Service.
Mr. Osuna, we welcome you. Things will be a little bit
different this morning, given the nature of the day. And I know
that my colleagues on both sides want to be here and many of
them will come, but they may come at unusual times. So we are
going to recognize you for your opening statement first, and
then the Members will do their opening statements, and then
we'll go to questioning.

TESTIMONY OF JUAN P. OSUNA, DIRECTOR, EXECUTIVE OFFICE FOR
IMMIGRATION REVIEW, UNITED STATES DEPARTMENT OF JUSTICE

Mr. Osuna. Thank you, Mr. Chairman. Mr. Chairman,
Representative Lofgren, and other Members of the Subcommittee,
thank you for the opportunity to speak with you today about the
Department of Justice's Executive Office for Immigration
Review, or EOIR. EOIR's role in the removal process is to hear
the cases of individuals charged with violating our immigration
laws and to decide which of those individuals should be removed
from the United States and which are eligible for relief or
protection from removal. The agency carries its mission out
through our core of 250 immigration judges in 58 courts around
the country and our appellate tribunal, the Board of
Immigration Appeals. Each of our cases begins when the
Department of Homeland Security files a charging document with
one of our immigration courts.
Among the many challenges facing the immigration courts,
the largest is our growing pending caseload. There are more
than 450,000 cases pending in immigration courts around the
country. This is an all-time high. This backlog grew in recent
years due to budget cuts when the agency was severely limited
in hiring immigration judges and staff to replace those who
left the agency. While the immigration judge corps was
shrinking, enforcement continued and the courts would continue
to receive new cases, resulting in continuously increasing
caseloads. This was exacerbated by the border influx that began
in the summer of last year. From July 2014, the time EOIR
started tracking the southwest border crossers, until September
30, 2015, more than 100,000 cases had been filed in the
immigration courts nationwide.
We are taking steps to increase our capacity to adjudicate
cases through a vigorous hiring effort, and hiring immigration
judges is my first priority. I am pleased to report significant
progress on this front and greatly appreciate Congress' support
for our efforts by providing the funding necessary to augment
our judge corps. Over the past year, 23 new immigration judges
have entered on duty, and as of this week, the Attorney General
had selected another 37 individuals to serve as immigration
judges after a thorough and rigorous hiring process at EOIR and
within the Department.
These individuals are now undergoing the required
background and security checks before they can start hearing
cases. Many more immigration judge candidates are going through
the final stages of the review process at the Department before
they can be recommended to the Attorney General for selection.
These new judges will be arriving in immigration courts
throughout the country in the coming months, and they will have
a very, very positive effect on the pending caseloads, enabling
the courts to begin to correct the imbalance between the
incoming caseload and the number of judges available to
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
traditionally been the agency's highest priority. Not only do
these cases often involve individuals convicted of serious
crimes, but they also implicate the individual's liberty
interests.
In July of 2014, EOIR added the cases of unaccompanied
children and families who were not detained to the existing
priority caseload. This prioritization was in direct response
to the Administration's effort in the summer of 2014 and beyond
to address the factors that brought a high number of people
across the Texas border. EOIR is processing these cases as
quickly as possible, consistent with due process.
I want to touch on a few other initiatives that, in
addition to the hiring of new judges and staff, will help EOIR
improve the efficiency and effectiveness of the court system.
First, deployment of new video teleconferencing equipment into
the immigration courts is nearly complete. These VTC units are
important because they are a force multiplier, allowing
immigration judges to conduct hearings remotely, thereby
allowing them to save on travel costs and time and simply to
hear more cases. By February, every immigration courtroom in
the country will have a new VTC unit. We are taking steps to
enhance accessibility to the court system by increasing
efficiency and combating fraud. EOIR has its departmental
working group designed to fight Notarios and other unscrupulous
practitioners who undermine the integrity of the system. The
group's efforts have had a tangible positive effect, including
assisting the prosecution of a number of fraudsters and
Notarios around the country over the last few years.
While we help put unscrupulous practitioners out of
business, it is important that we also make it easier for
legitimate service providers to step in. On October 1, we
published three regulations designed to make it easier for
legal services to reach individuals who are in removal
proceedings, including many detained individuals. We expect
that these programs will help improve the quality of
representation in immigration court.
Finally, the EOIR continues to expand its highly successful
legal access program. This program, which is now active in 37
sites around the country, helps the court process function more
efficiently and effectively while providing information to
people facing removal.
Mr. Chairman, Representative Lofgren, these are some of the
initiatives that we have underway. They are positioning, as
well, for the agency to have a very positive 2016.
Thank you, and I am pleased to answer any questions.
[The prepared statement of Mr. Osuna follows:]
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Mr. Gowdy. Thank you, Director. I am going to recognize
myself for an opening, and then when my colleagues from
California and Michigan get here, we will recognize them. But
it may go to questioning from the gentleman from Iowa and Texas
before then. We are going to try to make it all 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 administrative authority for interpreting immigration
laws. As the delegates of the Attorney General, immigration
judges serve an important function in the administration of our
immigration system. They award asylum to those fleeing
persecution; they grant deserving aliens the privilege of
permanently residing in the United States, and they also order
to remove those aliens who have violated our laws and abuse the
generosity of this Nation.
Whether our law requires immigrants to return to their
native land or whether it affords them an opportunity to stay
in this country would depend upon the ability of immigration
judges to faithfully apply the law that Congress enacted to
their cases and to exercise their impartial judgment,
unhindered by political agenda. 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 administrative judges,
this Administration, and our fellow citizens has a vital
interest in ensuring justice in our immigration courts is
dispensed fairly, efficiently, and expeditiously. 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 for
all in the asylum program. Abuse and fraud, frankly, hurt
everyone, those legitimately entitled to relief and those who
depend upon a fair justice system. The average alien will wait
nearly 3 years before the judge renders a decision, and those
are the fortunate ones. According to the 2012 DOJ inspector
general report, over 21,000 cases were pending 5 years or more,
and over 6,200 cases were pending for 10 years or more. The
real effect of these delays is to penalize those awaiting
relief based on a valid claim to immigration benefits and
reward those who have no right to remain in the United States
with many years of continued unlawful presence.
Testimony before the Senate earlier this year indicated the
backlog had increased 100 percent over the last 5 years, and
the answer to the problem was alleged to be more immigration
judges. But the DOJ inspector general found from fiscal year
2006 to 2010, while the number of immigration judges increased,
case completions actually decreased.
So the Office of Inspector General found inefficiencies
persisted despite the addition of more immigration judges. The
inspector general also noted incomplete or exaggerated
performance reports and noted the absence of the data or an
objective staffing model to guide its resource planning and
deployment of immigration judges, 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 Accountability
Office released yesterday found derelictions in implementing
the necessary policies and procedures to address asylum fraud.
Lack of focus on rooting out fraud in the asylum program,
coupled with a backlog that allows people to stay in the
country unlawfully through a long backlog of cases until the
court date is a gap in our national security. The bottom line
is an inefficient and flawed adjudication process further
diminishes our capacity as a Nation to effectively deal with
our broken immigration system. And for that reason and others,
I look forward to today's questions and answers.
Again, I will recognize Ms. Lofgren and Mr. Conyers
whenever they come. But I will begin by recognizing the
gentleman from the great State of Texas for his questions, the
former United States Attorney, Mr. Ratcliffe.
Mr. Ratcliffe. Thank you, Mr. Chairman, for holding this
hearing.
Thank you, Director Osuna, for being here today. You know,
the 700,000 Texans that I represent who are certainly concerned
about the impacts of illegal immigration in this country and
what many see as an environment of lawlessness created by this
Administration when it comes to the enforcement of our
immigration laws and, frankly, the inefficiency of our
immigration system. And one of the things that highlights that
is a fact that was related by the Chairman, the fact that there
are approximately 459,000 immigration cases waiting for action
right now.
And, you know, it would appear that that type of backlog of
cases really amounts to de facto amnesty, because a lot of
individuals that are in this country, perhaps illegally, to
remain here without any repercussion as their cases are stuck
in administrative limbo. So I am anxious to hear some of your
testimony today about your plans to reduce that backlog.
One of the cases that I want to ask about in terms of
contributing to a backlog is one of the judges in the Houston
immigration court, Judge Mimi Yam--are you familiar with Judge
Yam?
Mr. Osuna. Yes.
Mr. Ratcliffe. Good. Over the past 5 years, there were a
total of 24 months in which Judge Yam failed to issue a single
ruling. Are you aware of that?
Mr. Osuna. Not those specifics, but I am aware of the
issues there.
Mr. Ratcliffe. And why don't you relate for us what the
issues are there?
Mr. Osuna. Congressman, what I can tell you is that
particular judge is not hearing cases at the moment. It is an
unfortunate personnel issue that I can't get into with you in
this forum, but it is true that she is not hearing cases at
this time.
Mr. Ratcliffe. Well, whether she is hearing cases at this
time or not, she's been paid as an employee of the United
States Government, and there have been long periods where while
she's being paid to do that, she's been hearing cases but not
ruling on cases.
To highlight that fact, she went as long as 7 months
without issuing a single decision. And through May of this
year, she's issued a total of, I think, 15 decisions, where
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?
Mr. Osuna. Congressman, again, because I can't get into the
personnel issues, we can't 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 a 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, has selected another 37, and we are in the process of
hiring quite a few more. Houston is one of the immigration
courts that we are targeting for more judges because of the
great need there.
Mr. Ratcliffe. So, Director, the backlog of cases is
clearly well-documented. I understand that your office has
shifted many of its resources to address the cases across our
southern border, primarily after May 1, 2014. Would it be fair
to say that the docket is primarily devoted to hearing cases
involving minors and family units who were apprehended at the
U.S. southern border as part of the surge?
Mr. Osuna. Congressman, those cases are a priority for us,
along with the cases of detained individuals. And for the
reasons that I've stated earlier, detained individuals are
often the ones that have committed serious crimes in this
country; therefore, we move those to the top of the priority
list. We make the judges and staff available to hear those
cases first before all others. You are correct that last year
we also added to 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
don't 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.
Mr. Ratcliffe. I want to ask you about the timing in the
few seconds left here. Director, would it be fair for me to say
that there are presently thousands of unlawful aliens who won't
have a hearing before an immigration judge for perhaps the next
5 or 6 years?
Mr. Osuna. 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 detained cases heard first
and adjudicated first to get criminal aliens out of the country
or those who crossed the border last year. But there are others
that are going to have to wait for their hearings because of
the prioritization.
Mr. Ratcliffe. And because of that prioritization, as
you've encapsulated for us, in some cases right now, that's 5
or 6 years?
Mr. Osuna. In some immigration courts the wait can be as
long as 5 years, yes.
Mr. Ratcliffe. Mr. Chairman, I see my time has expired. I
yield back.
Mr. Gowdy. The gentleman from Texas yields back.
The Chair would now recognize the gentlelady from the great
State of Texas, Ms. Jackson Lee.
Ms. Jackson Lee. Thank you very much, Mr. Director, and
thank you for your service. I would like to explore a line of
questioning, because I think it's 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 a line of questioning of my colleague
from Texas regarding the lengthy backlog and to cite, again,
the 450,000 cases of which are backlogged, and an individual on
the nondetained immigration docket might have to wait up to 4
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 of the immigration court process. This
affects vulnerable populations such as children, asylum
seekers, and other immigrants hoping to obtain immigration
relief, and they are in the legal system because they are
trying to go into court. What solution do you propose to
resolve the staggering immigration court backlog, and how can
Members of Congress, in particular, help the EOIR office?
And I have a series of questions. I'm going to let you
briefly answer those, but I'd like to go onto some other
questions.
Mr. Osuna. 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 were severe immigration judge shortages. We lost a number
of judges from 2011 to last year during the time of budget
cuts. We were not able to replace those judges who left the
agency.
Ms. Jackson Lee. And you have a capacity for how many?
Mr. Osuna. We currently have, thanks to Congress'
appropriations 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.
Ms. Jackson Lee. Well, why don't you help us out. You have
319, but you're at a smaller number right now. Is that correct?
You have 250 judges?
Mr. Osuna. That's correct.
Ms. Jackson Lee. I think you have some good news about
those that have been approved? How many have been approved to
be added to that?
Mr. Osuna. That's correct, Congresswoman. In my opening
statement I mentioned that we have added 23 over the past year,
and the Attorney General has approved 37 more as of this week,
and several dozen more are in the final stages of the selection
process at the Department.
Ms. Jackson Lee. And the President asked that you mentioned
in your opening statement as well?
Mr. Osuna. The President has asked for another 55
immigration judges for fiscal year 2016. And that's going to be
a very significant step forward for us as well. And we ask for
your support for that.
Ms. Jackson Lee. And that would make a sizable difference
as well?
Mr. Osuna. That would get us to about 374 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 these wait times in the most backlogged courts.
Ms. Jackson Lee. And I would imagine that--we are not
getting into personnel matters--you are going to sort of review
your immigration judges to make sure that they are both hearing
cases and ruling? I think that's an important oversight as
well. Will you engage in that?
Mr. Osuna. 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.
Ms. Jackson Lee. 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 would
have a hearing before the immigration judge. But that is not
the final decision. Would you explain, after that hearing
before an immigration judge, what then, what process goes
forward to ensure that that person is not a national security
threat?
Mr. Osuna. Immigration judges are prohibited by law from
actually granting asylum before--unless that person is then
sent for background security checks by the Department of
Homeland Security.
So if an immigration judge finds that somebody is legally
eligible for asylum and merits asylum in this country, that
judge then has to suspend the case, more or less, send the case
to the Department of Homeland Security for the required
background 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.
Ms. Jackson Lee. So there are layers that are added to a
judge's original hearing that add to our security. Let me
quickly ask this question. Does your agency have a plan for
addressing concerns about their 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 are--that I understand that you may be suggesting from 21
days to 90 days?
Mr. Osuna. So for detention cases, we don't have a policy
change. We are doing what we have always done in those, we are
prioritizing those cases. We do have a change on the
unaccompanied minor front. We have been--our commitment
beginning last year was to hold those 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, we have
been considering a change. So we have decided to move that
timeline--adjust that timeline from 21 days--from 10 to 21 days
to 30 to 90 days.
Ms. Jackson Lee. Is that for the unaccompanied children?
Mr. Osuna. For unaccompanied children.
Ms. Jackson Lee. Not impacting criminal individuals?
Mr. Osuna. That's correct.
Ms. Jackson Lee. And I think that's important to clarify.
And you're doing that because stakeholders find it was
complicated to get all the facts together for the children?
Mr. Osuna. That's right. I mean, we feel that this change
would provide our courts with more flexibility for these
challenging cases, but also it would provide the children more
time to find legal counsel. And that works for the efficiency
of the immigration courts. It actually helps us in the long run
to move these cases faster by actually providing more time
initially for the kids to get counsel.
Ms. Jackson Lee. I think all of us would appreciate that--
thank you, Mr. Chairman. I will finish on this note. I think
all of us would appreciate that children are vulnerable and
children do need more legal protection and more time. And it's
not whether the children are not within the purview of the
courts or HHS, in the instance of their detaining, but it is to
give them more rights so that decisions can be more adequate as
to the ultimate resolution.
Would that be the correct assumption?
Mr. Osuna. Well, we're making the change because it helps
the efficiency of our courts, and it helps--by helping the
kids, giving kids more time to find counsel, it actually helps
the court function more efficiently. That's correct.
Ms. Jackson Lee. With that, Mr. Chairman, I yield back.
Thank you.
Mr. Gowdy. The gentlelady's time is expired. She yields
back. The Chair now recognizes the gentleman from Iowa, Mr.
King.
Mr. King. Thank you, Mr. Chairman.
Director Osuna, I appreciate your testimony and the fact
that you are here. We've watched this grow over the years that
it's 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.
I'm looking at numbers in your testimony. It says that
there's a 457,106 case, I'll call it a backlog case, and it has
increased more 298,171 since 2011. One, I can't exactly
determine whether that's--if I can match up fiscal years. But
could you tell me roughly how many additional cases have
accrued on an annual basis over the last 4 or 5 years?
Mr. Osuna. I don't know if I have those numbers exactly,
Congressman. What I can tell you is over the past--we started
tracking, for example, the southwest border crossing cases
beginning last summer, and 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.
Mr. King. And if I average those numbers, that's about
75,000 a year that--so if it's 100,000 that's been added over,
roughly, the last year that you can contribute, that, then, is
an accelerating number, but probably more than acceleration,
the 25,000 additional a year. I will just say, I've been down--
I don't want to put words in your mouth; that's just my math.
But I've been down the road a good number of times. I
recall standing on the banks of the Rio Grande River at Roma,
Texas, with my video camera, a couple of Border Patrol agents,
and watching as two coyotes drove around on the other side of
the river until a shift change took place. And then they pulled
the inflatable raft out of the trunk of their car, inflated it.
Two coyotes help 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, pick her up. One
could expect that she applied for asylum.
It seems to me that it's not that they fear enforcement,
nor do they fear adjudication. They seem to welcome that. And
so what is the percentage of asylum applicants that are granted
asylum that are coming across our southern border, especially
in the McAllen region?
Mr. Osuna. Congressman, that's a tough number to get in,
and I'll explain why. Because if you are--if the border crosser
is an unaccompanied child, the law provides that that
individual's 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 he's going to do with that case in
terms of hearing the pleadings. If the child then wishes to
apply for asylum, the judge then has to send that case over to
USCIS. Many of those cases are still pending in USCIS, is my
understanding. And I don't have a firm number as to how many of
those are being granted.
Mr. King. You can actually go down through those 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've selected from
the question I asked. It could be done, couldn't it?
Mr. Osuna. I don't know if it can be done. We are certainly
happy to look into it.
Mr. King. I want to ask you on the record here, if you
would produce the records, not only for children that apply for
asylum, for all the asylees that apply, I'd like to see the
results of that, the adjudication process, where it is, how
many are pending, why. And I'll put this in a formal letter so
that it's clear.
I won't ask you to remember all this, but I would like to
see the effect of the continuances that have been offered. And
the data that I'm looking at, at continuances are, the OIG's
report, 953 cases reviewed by the OIG, 4,091 continuances
offered or allowed for 953 cases, totaling 375,047 days in the
aggregate. So it averages 92 days per continuance and 368 days
per case. So every case that has an asylum application, by this
GAO report, results in more than a year of continuances.
Have you looked at how to compress that so that we can get
that adjudicated in a quick fashion? We know if we don't send
them back, those that need to go back, they are going to keep
coming.
Mr. Osuna. On the issue of continuances, Congressman, we
have looked at that. Continuances are actually a legal matter
that is governed by the regulation. 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.
Mr. King. Of course, I'm out of time. But I would just say
a good cause is--would be 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.
And I yield back the balance of my time.
Mr. Gowdy. Thank you, the gentleman from Ohio--from Iowa.
Excuse me.
The Chair will now recognize the gentleman from Michigan,
Mr. Conyers.
Mr. Conyers. Thank you, Mr. Chairman. And I thank my
colleague, Ms. Lofgren, for letting me go in front of her.
Ms. Jackson Lee. Mr. Chairman, can I just put----
Mr. Conyers. I'll yield.
Ms. Jackson Lee. Mr. Chairman, can I put these in the
record before you go forward? Thank you for your kindness. I
have a meeting.
I would like to add to the record by unanimous consent, Mr.
Chair, a letter, statement from the immigration--excuse me,
American Immigration Council, underfunding of immigration
courts undermines justice. And a second document, Executive
Office for Immigration Review, unaccompanied children priority
for adjudication. I ask unanimous consent to put these items
into the record.
Mr. Gowdy. Without objection.
[The information referred to follows:]
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Ms. Jackson Lee. Thank you, Mr. Chairman.
Mr. Conyers. You're more than welcome. I ask unanimous
consent to put my opening statement in the record, Mr.
Chairman.
Mr. Gowdy. Without objection.
[The prepared statement of Mr. Conyers follows:]
Prepared Statement of the Honorable John Conyers, Jr., a Representative
in Congress from the State of Michigan, and Ranking Member, Committee
on the Judiciary
The administration of our Nation's immigration courts is of utmost
importance because it is the gateway for immigrants to obtain crucial
protections from persecution, defend themselves against removal, and
have the opportunity to avail themselves of relief under the
Immigration and Nationality Act.
Unfortunately, there are fundamental problems with this system.
To begin with, immigrants in removal proceedings deserve
comprehensive due process protections.
Although this goal can only be achieved by the appointment of legal
counsel for all immigrants in removal proceedings, there currently is
no government funding, even for children.
Unless these individuals are able to obtain pro bono
representation, indigent children and other immigrants must defend
against removal without benefit of counsel.
This is an utterly daunting challenge for anyone given the fact
that these are adversarial proceedings with potentially dire
consequences, namely, deportation from the United States. Keep in mind
that the government, on the other hand, is represented in these
proceedings by an Immigration and Customs Enforcement attorney.
This is inherently inequitable and raises fundamental
constitutional due process concerns.
I know that the Department of Justice helps coordinate pro bono
representation and is expanding its Legal Orientation Programs, which I
very much appreciate. Nevertheless, I look forward to hearing from
Director Osuna whether these initiatives can be further improved and
expanded.
Another concern is that there is a significant dearth of judicial
resources, which is causing years-long delays in many cases and an
overwhelming immigration court backlog.
Studies indicate that each immigration judge has a docket of more
than 1,400 cases, which is an untenable workload.
As a result of this backlog, many immigrants must literally wait
years for their day in court. I am sure that we are all aware of the
adage that justice delayed is justice denied.
Accordingly, I hope we are able to have a productive discussion
today about what concrete and practical steps can be taken to reduce
this backlog, while continuing to ensure that immigrants in removal
proceedings receive a fair, full and impartial hearing.
Finally, we must undo efforts that have undermined the legitimate
exercise of discretion by Immigration Judges.
In recent months, I have been very pleased to work on a bipartisan
basis with Chairman Goodlatte on criminal justice reform. But, we need
to consider similar reforms to the Immigration Courts.
Unfortunately, when it comes to immigrants, the Majority often
confuses judidical discretion with judicial abuse. Nearly every piece
of legislation introduced by the Majority Members of this Committee has
sought to streamline immigration court removal proceedings by taking
discretion out of the hands of the Immigration Court.
They believe that many forms of relief granted to immigrants are
fraudulent and without merit. I do not agree.
Our Immigration Judges are in the best position to assess the facts
and law. And, it is an anathema to their judicial independence when we
restrict their discretion.
This is not justice and this is not how our courts should work.
Certainly, if there are legitimate concerns of abuse in the
exercise of discretion by Immigration Judges, we should investigate
these concerns and take appropriate action. But, we must acknowledge
that just because we disagree with a decision, it does not necessarily
constitute abuse.
In closing, I want to thank Director Osuna for his service to our
country and his dedication to ensuring that immigrants in removal
proceedings have a full and fair hearing before an impartial
immigration judge.
I realize that this is often a thankless task and it requires an
immense amount of perserverence and commitment.
Thank you for your work, and for your appearance before our
Committee today.
__________

Mr. Conyers. We find that there's a problem that our
immigration judges face, when it comes to immigrants. We
sometimes confuse judicial discretion with judicial abuse. And
I think you're very sensitive to that, Director Osuna.
Too much of our proposals, legislatively, have 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 I'm not sure if that's the case.
Do you have a view on that, sir, that you could relate to
us?
Mr. Osuna. Congressman, on the issue of merit of claims,
that's what our judges are there for, to determine which cases
are actually meritorious and which are not. And they do a great
job of that every day in immigration courts around the country.
On the issue of discretion, again, I trust our judges to
exercise discretion in the best way possible. And we believe
that that is appropriate to vest them with that authority.
Mr. Conyers. 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 it's 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 other challenges that you might give us this
morning in reference to the hiring of immigration judges?
Mr. Osuna. Congressman, we have a very robust and multi-
layered 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 General's 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 EOIR and at the
Department and 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 that the process actually helps to make sure that 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
begin hearing cases. So we are adding judges as quickly as we
can and selecting good people, and they will make a significant
difference.
Mr. Conyers. In your testimony, 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 during that period?
Mr. Osuna. There were judges in process at that time. What
the chart shows is the actual number of people entering on
duty; in other words, judges entering on duty within that
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 that the third quarter shows 18 new judges
entering on duty. Those were the ones that were in process in
the prior two quarters.
Mr. Conyers. Thank you, sir. And I thank the Chairman.
Mr. Gowdy. The Chair would now recognize the gentleman from
Colorado.
Mr. Buck. Thank you, Mr. Chairman. I yield my time to the
gentleman from Texas.
Mr. Gowdy. The gentleman from Texas, you're recognized.
Mr. Ratcliffe. Thank you, Mr. Chairman. Thank the gentleman
from Colorado for yielding his time so I can follow up on a
question, Director Osuna, I didn't have time to ask in my prior
line of questioning, and that is this: What is the official
policy for granting a continuance in an immigration case?
Mr. Osuna. Continuances are governed by regulation,
Congressman. The regulations provide that a judge may grant a
continuance for good cause. And that good cause standard has
been filled out, has been outlined and defined through court
decisions over a number of years.
So that is the standard. Immigration judges refer to that
standard, follow the circuit law and the BIA law on what is
good cause and it depends on the individual case.
Mr. Ratcliffe. Okay. So we know that the standard is
established by case law and precedent, but the inspector
general report from 2012 cited frequent and lengthy
continuances as the primary factor in this backlog that we have
been talking about, of now almost a half million cases. You are
aware of that fact?
Mr. Osuna. I'm aware of the inspector general report, yes.
Mr. Ratcliffe. And the fact that they cited that as a
primary factor?
Mr. Osuna. I'm aware that they cited it. I can't remember
what ranking they gave it, but I do remember that they did cite
it.
Mr. Ratcliffe. 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 your
office, ``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.'' Do you remember that from the IG report?
Mr. Osuna. I remember that, sir.
Mr. Ratcliffe. Okay. Can you tell me what you've done to
comply with that recommendation?
Mr. Osuna. Sure. Continuances, again, are governed by legal
standards. What we've done is two things. Number one, is that
we do provide regular training for judges on continuances. We
provided a legal training just a few months ago on a number of
issues, and provided 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 take any action, because
the number of continuances is actually appropriate in a
particular case. But when there appears to be something, an
outlier issue with somebody granting continuances for, other
than the good cause standard, then that is treated as a
management issue.
Mr. Ratcliffe. So is this having an impact on the number of
continuances?
Mr. Osuna. I don't have an answer for you on that,
Congressman.
Mr. Ratcliffe. All right. So then let me ask you this
question. Depending on the immigration case, the Department of
Homeland Security provides sufficient evidence to find an
individual in question is not entitled to admission to the
United States, what's the role of the immigration judge?
Mr. Osuna. If I understand your question, I think that if
the Department of Homeland Security----
Mr. Ratcliffe. Finds somebody is not entitled to admission.
Mr. Osuna. Well, that's 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 that decision. The
judge's responsibility is to find that somebody is removable
from the country or not removable. If they are removable, the
evidence submitted by DHS goes a long way to proving that,
because that is DHS's burden.
Mr. Ratcliffe. Well, if the determination is made, the
judge's role is actually to sustain the DHS charge of
removability. Isn't that right?
Mr. Osuna. The judge's role is to determine whether
somebody is removable. And DHS's evidence going to that fact,
that legal determination, is obviously very relevant if not
determinative in the immigration judge's decision.
That is not the end of the discussion in immigration court,
because if a judge finds somebody is removable from a country,
then he has to consider or she has to consider whether that
person is eligible for some sort of relief from removal.
Mr. Ratcliffe. 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?
Mr. Osuna. I'm aware of the 33, yes.
Mr. Ratcliffe. All right. And does that concern you?
Mr. Osuna. Congressman, those cases, immigration judges
held bond hearings, as anybody--or most people that are not
detained mandatorily are entitled to request. The law provides
that immigration judges are to determine two things in a bond
proceeding: Number one, is the person a flight risk? Are they
going to show up for their hearings or are they going to
abscond? Number two, and more importantly, are they a danger to
the community? Are they a danger to others? If the judge finds
that they are a flight risk, he or she may set a high bond or
no bond at all. If they are a danger to the community,
typically judges don't release them, or set a very high bond.
Typically, they don't release them.
So the 33 individuals that you mentioned, I have no reason
to think that judges made the wrong decision in those cases.
Mr. Ratcliffe. Did you go back and review those cases?
Mr. Osuna. I am aware of some of them. I didn't review
every single case.
Mr. Ratcliffe. All right. Mr. Chairman, my time has
expired. I yield back.
Mr. Gowdy. The gentleman from Texas yields back.
The Chair will now recognize the Ranking Member, gentlelady
from California, Ms. Lofgren.
Ms. Lofgren. Thank you, Mr. Chairman, and Mr. Osuna. I'm
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.
Mr. Gowdy. Without objection.
[The prepared statement of Ms. Lofgren follows:]
Prepared Statement of the Honorable Zoe Lofgren, a Representative in
Congress from the State of California, and Ranking Member, Subcommittee
on Immigration and Border Security
Our immigration courts, under the Justice Department's Executive
Office for Immigration Review, are part of a broken immigration system.
I say this with all due respect to today's witness, Director Juan
Osuna. I know Director Osuna, and he is a thoughtful government
official with a deep knowledge of immigration law, and its impact on
individuals and families.
The Immigration Courts are simply overwhelmed. The EOIR caseload
has more than doubled between 2010 and 2015. Today, more than 457,000
immigration removal cases have been pending for an average of 635 days.
Many individuals wait several years for their day in court. This means
we are neither efficiently removing those who should be deported, nor
are we affording timely hearings for those who do merit immigration
relief.
I am afraid that Members of Congress bear some responsibility for
this immigration court backlog. We have continuously underfunded EOIR
far below what is necessary. By contrast, resources for immigration
enforcement, including CBP and ICE, have more than quadrupled -- from
$4.5 billion in 2002 to $18.7 billion in fiscal year 2015. However,
funding and staffing for the Immigration Courts has lagged far behind,
increasing by only 70 percent in that same timeframe. The number of
immigration judges has gone up only slightly from 230 in 2006 to 247 at
the end of FY 2015. EOIR's resources are simply not commensurate with
resources devoted to enforcement. I ask my colleagues on this Committee
and the Appropriations Committee to adequately fund the Immigration
Courts. The integrity of our immigration system depends on functional
immigration courts able to efficiently process and adjudicate cases.
The immigration court backlog has been exacerbated by the EOIR
decision to prioritize cases involving migrants who had recently
crossed the southwest border--including unaccompanied children. As a
part of the ``rocket docket,'' EOIR is scheduling unaccompanied
children cases before all others. This has resulted in dire
consequences for newly arrived children and has negatively affected the
overall backlog of cases. I am also troubled by the reluctance from
some judges to reopen in absentia removal orders entered as part of the
rocket docket proceedings and issued to children who simply did not
understand their legal obligations. I understand that EOIR is working
toward extending the ``rocket docket'' timeframe, and I am hopeful they
will also create sound policy with regard to motions to reopen.
There is good work being done in our immigration courts, but every
day children, some as young as 3 and 4 years old, appear before
immigration judges and in opposition to trained ICE prosecutors without
legal representation. Immigration law is often compared to tax law in
its staggering complexity. And we should not permit children--often
with limited or no English and rudimentary educational levels--to
defend themselves against government lawyers. In every other area of
law in this country, we recognize that children in court proceedings
need increased protections because of their unique vulnerabilities and
reduced capacity to understand legal procedures and the consequences of
their actions. Immigration proceedings should be treated no
differently.
The vulnerabilities of immigration children are heightened by the
fact that many have been victims of violence other severe traumas. A
majority of recently-arrived unaccompanied children are eligible for
legal protection that would allow them to lawfully remain in the United
States. But without representation how likely is it that a child is
able to tell her story and prevail in an adversarial court of law?
I am troubled by the position DOJ has taken in the case, J.E.F.M v.
Holder. In that case, advocates argued that deportation proceedings
against pro se child respondents violated due process and the INA
requirement of a ``full and fair hearing.'' In response, DOJ argued
that children in immigration courts simply tell the judge they are
afraid and they automatically get asylum. This simply is inaccurate and
in fact, during the last six months of 2014, 94% of the unaccompanied
children ordered removed did not have an attorney or accredited
representative. I am concerned about DOJ's misrepresentation in federal
court, and I hope the Director is able to clarify DOJ's position in
today's hearing.
The lack of representation raises serious Constitutional concerns
of due process. It is a blight on our country and antithetical to our
values. Congress can ensure children's access to due process and
protection while concomitantly increasing docket efficiency by: (1)
expanding government funding for pro bono legal services and direct
representation for children; and (2) ensuring that the child's best
interests is a primary consideration in all custody and removal
proceedings. In the absence of universal government funded
representation, a robust mix of government-funded and pro bono
representation is needed to fill the enormous representation gap that
currently exists.
I look forward to hearing from Director Osuna about EOIR's efforts
to coordinate pro bono representation, expand its Legal Orientation
Program and the Legal Orientation Program for Custodians of
Unaccompanied Alien Children, and other initiatives that make the court
perform its mission more efficiently and ensure that those who come
before it and merit relief have the help they need to make their case.
And we in Congress, as well as the Administration, can and must do
more.
I thank Director Osuna for his leadership of EOIR and look forward
to his testimony at today's hearing.
__________

Ms. Lofgren. I would just note that we have ramped up
expenditures on immigration enforcement over the past decade
substantially. We have increased the funding for the Border
Patrol and for ICE that's more than quadrupled the expenditures
there. But our funding for the immigration courts has lacked
far behind. We've got a 70 percent increase for courts and the
quadrupling of expenditures at the border.
And, I think no system is perfect, I'm not going to say,
having worked as a lawyer in this system many, many years ago.
But you can't just keep jamming more into the system. You need
to ramp up the capacity in the immigration courts. And we're
making some baby steps forward on that now, but I am concerned,
given the demographics of the immigration judges, we're facing
a tidal wave of retirements among the ranks of immigration
judges.
Now, those are funded positions, but we're going to have to
go out and hire people and train people. So I think that we've
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
he's doing, but I'm hoping that he would let the Committee know
if he needs additional assistance, because it's in everybody's
interest that this work well, and that the immigration judge
system and the court system works well.
I just want to mention one other thing. And I know it's not
entirely--actually, it isn't up to you, but I have continuing
concerns, and I raised this issue when the Attorney General was
here, about the due process implications of children appearing
in immigration court without counsel.
I don't see how an 8-year-old, 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 go directly to my questions, and we
will be able to expedite the conclusion of this hearing.
Mr. Gowdy. Yes, ma'am.
Ms. Lofgren. I had a question about the asylum application,
the 1-year filing deadline because of the backlog. And I think
the rocket docket actually aggravated that, because every and
all resources were put forward and all of the other cases ended
up being delayed. We've got a problem.
And it's my understanding that in August of this last year,
Human Rights First, and the law firm of Akin Gump, requested a
hearing memorandum to instruct immigration judges that
administrative delays can constitute an exceptional
circumstance to the 1-year filing deadline. And I'd like
unanimous consent to enter this letter in the record.
Mr. Gowdy. Without objection.
[The information referred to follows:]
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Ms. Lofgren. Doesn't it seem to me, and doesn't it seem to
you, that if the delay is not caused by the applicant but by
the administrative delay in the courts, that that shouldn't be
an adverse finding for the applicant themselves?
Mr. Osuna. 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 1-year deadline, as you know----
Ms. Lofgren. Right.
Mr. Osuna [continuing]. That judges consider on a case-by-
case 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. We're working on it, and we
have heard from the stakeholders on the concerns.
Ms. Lofgren. Two other questions. I think when we want
speedy resolution of matters, but you can go so fast that you
end up causing delays. And I'll 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, 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
even knew about the hearing. So now there's a motion to reopen
the hearing. It causes more work for everyone.
And I am wondering if you've given some thought to how we
might ensure that there's actually notice received by people
when we've accelerated these cases, not only in terms of
fairness for the individuals involved, but also for the system
because you've got to spend a lot of time and effort on the
motions to reopen as well that could be resolved.
Mr. Osuna. Thank you, Congresswoman. 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 an unaccompanied child from 10 to 21 days after the case is
filed.
We have been pondering changing that for the exact reason
that you mention, that it actually helps court efficiency to
actually 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.
Ms. Lofgren. Final question. EOIR 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. It's a convenience not only
to the bar, but it's a convenience for the court. You still
have to get paper filing. I assume that's a resource issue. But
what steps can be taken to bring EOIR up to modern standards in
terms of electronic filing?
Mr. Osuna. Electronic filing is one of the things that I
feel strongly that we need to move towards. And 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 would be one of the foundations for a system that we
hope will eventually allow us to file and exchange documents
electronically.
Ms. Lofgren. Do you have a timeline for that?
Mr. Osuna. I don't have a timeline, but we do have a plan.
It's an aggressive plan. I think 2016 we're going to see some
progress on that. And we hope that we eventually will get to
the point where people will be able to file electronically.
Ms. Lofgren. Thank you.
Thank you, Mr. Chairman.
Mr. Gowdy. The gentlelady yields back.
The Chair will now recognize himself.
Director, I wanted to ask you about the inspector general
for the Department of Justice, but my friend from Texas' line
of questioning prompted me to want to go a little further
there. I'm going way back in time to a period where I wasn't
all that knowledgeable even back then.
So I'm less knowledgeable now. But if memory serves, the
government and the defendant can consent to a bond. It doesn't
necessarily have to be adjudicated by a judge, does it, or is
immigration different?
Mr. Osuna. You are talking about a bond, sir?
Mr. Gowdy. Bond.
Mr. Osuna. The bond process, what I think happens is that
ICE actually 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.
Mr. Gowdy. 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. I'm just wondering
whether or not the government consented to bond in any of those
cases, or whether or not you've had a chance to look at that?
Mr. Osuna. I believe in the majority of cases the judge
made the determination on bond and the Department of Homeland
Security did not appeal that determination.
Mr. Gowdy. All right. In the area of appeal, I think you
mentioned the standard for continuance is good cause.
Mr. Osuna. Correct.
Mr. Gowdy. Can you cite me to any opinions of record where
a judge was reversed for granting a continuance?
Mr. Osuna. I can't 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.
Mr. Gowdy. 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?
Mr. Osuna. It depends on the individual case. But, for
example, if a judge had 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, I've given you a couple
of chances here; it's time to move on. And judges make those
decisions every day. That's a fairly frequent occurrence.
Mr. Gowdy. Speaking of frequency, is the first continuance
fairly much for free? I mean, do you get the first continuance
just simply by asking for it?
Mr. Osuna. Again, it depends on the context. In detained
cases, it's not that way, and nondetained cases it can be in
some courts, depending on what the situation is.
Mr. Gowdy. 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 cause me to
want to ask about folks who abscond. What percentage of folks
fail to appear for their court date after a bond is set?
Mr. Osuna. I don't have that number for you, Mr. Chairman.
Some do fail to appear. The size of the bond is designed to
make sure that they appear, but, you know, some sometimes
don't.
Mr. Gowdy. I'm with you, Director. I used to live it. But
from where I sit, the number of folks who fail to appear would
be a pretty serious issue. I'm assuming you don't try them in
their absence?
Mr. Osuna. Well, actually, they do. There is a process for
if somebody has received----
Mr. Gowdy. You have to prove they got notice.
Mr. Osuna. They got notice of the hearing.
Mr. Gowdy. Okay.
Mr. Osuna. The law does provide, and our judges every day
hold hearings in absentia. What happens at that hearing is the
Department of Homeland Security comes forward, presents
evidence of the individual's removability. The judge considers
whether the person got adequate notice. If the answer is yes,
then the judge will order an in absentia order, and that order
can be enforced by DHS.
Mr. Gowdy. All right. If somebody fails to appear, what is
the mechanism by which you compel their appearance? Do judges
issue bench warrants?
Mr. Osuna. No, our judges don't have that authority. We
don't have anything like the marshals service or anything like
that. The judge will consider if the person got adequate notice
that they will issue the in absentia order if appropriate, and
then DHS has the responsibility of picking them up and actually
removing them.
Mr. Gowdy. 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?
Mr. Osuna. If they have received a final removal order in
absentia or otherwise, they are actually not included in the
450,000 caseload. Those are out of the system. There is a final
removal order. Unless they file a motion to reopen later to
come back in, and the judge grants that, in absentia orders or
any removal orders are not included in that number.
Mr. Gowdy. All right. Given your background and your
expertise, what percentage of folks who abscond are tried in
their absence?
Mr. Osuna. Sorry, sir. You're asking how many folks that
don't----
Mr. Gowdy. Failure to appear are tried in their absence.
Mr. Osuna. Actually get an absentia order?
Mr. Gowdy. Yes.
Mr. Osuna. I don't have a number for you.
Mr. Gowdy. What other tools do you have other than trying
someone in their absence? If there's a failure to honor a court
date, what other tools do you have? You don't have a bench
warrant. There's no presumption that is lodged against that--
there's 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 don't show up?
Mr. Osuna. No. What the judge will consider is whether the
person actually is removable from the country under the law.
And that's really the end of the inquiry. Once that is done,
the removal order is issued and then the person can be
removed--can be picked up at any time by ICE and deported.
Mr. Gowdy. Let me ask you one more question, and I'm going
to let the Congresswoman follow up.
I assume DOJ inspector general is still Michael Horowitz?
Mr. Osuna. It is.
Mr. Gowdy. I'll tell you, from where we sit, he is a pretty
good balls-and-strikes caller. He's a fair guy. All my dealings
with him, he's 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. It makes me think maybe something
else is going on, and it's not just more judges. I don't want
to minimize--I mean, if that's the explanation, then that's the
explanation. But when Mr. Horowitz says that may not be the
full explanation, what else could be going on?
Mr. Osuna. Mr. Chairman, I do think that the single biggest
reason for the caseload is the shortage of judges over the last
few years. I don't 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've kicked
the tires. We've looked under the hood. We have tried to see
what else is going on. One thing that we do hear quite a bit
from all of our judges and from ICE trial attorneys as well is
that the complexity of the law has gotten--the law has gotten
much more complex over the last 10 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 10 years ago to determine
whether somebody is deportable as an aggravated felony for
certain offenses. So that is one area that we have concluded--
you know, a judge may have spent, you know, an hour on a case
10 years ago and that same type of case now may take 4 hours
because the law has gotten more complicated.
We have taken a look at other issues as well, but we're
convinced that hiring the requisite number of judges is
actually going to make a difference. Let me actually give you
an example from within the agency, and that's 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 caseload is stable. In fact, it has
actually decreased slightly over the last few years. The lesson
we took from that is that the board has actually had, unlike
the immigration courts, a balance between the incoming caseload
and the adjudicators necessary to adjudicate that caseload.
That's a lesson we've drawn, and that's 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
caseload.
Mr. Gowdy. I recognize the gentlelady from California.
Ms. Lofgren. Thank you, Mr. Chairman.
Just a couple of follow-up questions if you can get back to
us if you don't know now. I would like to know what failure to
appear rate is on various categories. Looking at some of the
data, you know, it's very low if individuals are represented by
counsel. There are different outcomes if someone isn't. 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 homicide or
were charged with homicide, how many of them was the Diaz case
releases or not, and if they were the Diaz case releases, how
many of them were Cubans, and with the change in status between
the United States and Cuba, there's apt to be--I mean, the last
time we looked at it, the vast majority of the Diaz cases were
Cubans. And if they are removable to Cuba because of our new
relationship with Cuba, we're going to have a very different
outlook in terms of the criminal issues and the Diaz.
And then I just want to clarify for the Chairman and others
in terms of notice, because there's no requirement that the
person receive actual notice. I mean, what you're looking at in
the courts is was something mailed to the person. I mean, 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, 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. So I think it's important to note that it's not like the
criminal courts or the civil courts, that you're not getting,
you know, a server handing you the notice. It's just in the
mail. You may or may not even know what's going on.
Thank you, Mr. Chairman.
Mr. Gowdy. I thank the gentlelady.
I would recognize the gentleman from Texas for any
concluding remarks he may or may not have. And he is indicating
that he is done.
So this concludes today's 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. Fly-out
days are always troublesome, but that's on us and not on you.
You were here like you were supposed to be.
Without objection, all Members will have 5 legislative days
to submit additional written questions for the witness or
additional written materials for the record. With that, we
thank you for your testimony this morning and your willingness
to answer our questions, and we will be adjourned.
Mr. Osuna. Thank you, Mr. Chairman.
[Whereupon, at 10:05 a.m., the Subcommittee was adjourned.]

A P P E N D I X

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Material Submitted for the Hearing Record

Questions for the Record submitted to Juan P. Osuna, Director,
Executive Office for Immigration Review, United States Department of
Justice*
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*Note: The Committee did not receive a response to these questions
at the time this hearing record was finalized and submitted for
printing on March 21, 2016.

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