[House Hearing, 116 Congress]
[From the U.S. Government Publishing Office]
COURTS IN CRISIS: THE STATE OF JUDICIAL
INDEPENDENCE AND DUE PROCESS IN U.S.
IMMIGRATION COURTS
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HEARING
BEFORE THE
SUBCOMMITTEE ON
IMMIGRATION AND CITIZENSHIP
OF THE
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED SIXTEENTH CONGRESS
SECOND SESSION
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JANUARY 29, 2020
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Serial No. 116-72
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Printed for the use of the Committee on the Judiciary
[GRAPHIC NOT AVAILABLE IN TIFF FORMAT]
Available via the World Wide Web: http://judiciary.house.gov
__________
U.S. GOVERNMENT PUBLISHING OFFICE
40-776 PDF WASHINGTON : 2021
=======================================================================
COMMITTEE ON THE JUDICIARY
JERROLD NADLER, New York, Chairman
ZOE LOFGREN, California DOUG COLLINS, Georgia,
SHEILA JACKSON LEE, Texas Ranking Member
STEVE COHEN, Tennessee F. JAMES SENSENBRENNER, Jr.,
HENRY C. ``HANK'' JOHNSON, Jr., Wisconsin
Georgia STEVE CHABOT, Ohio
THEODORE E. DEUTCH, Florida LOUIE GOHMERT, Texas
KAREN BASS, California JIM JORDAN, Ohio
CEDRIC L. RICHMOND, Louisiana KEN BUCK, Colorado
HAKEEM S. JEFFRIES, New York JOHN RATCLIFFE, Texas
DAVID N. CICILLINE, Rhode Island MARTHA ROBY, Alabama
ERIC SWALWELL, California MATT GAETZ, Florida
TED LIEU, California MIKE JOHNSON, Louisiana
JAMIE RASKIN, Maryland ANDY BIGGS, Arizona
PRAMILA JAYAPAL, Washington TOM McCLINTOCK, California
VAL BUTLER DEMINGS, Florida DEBBIE LESKO, Arizona
J. LUIS CORREA, California GUY RESCHENTHALER, Pennsylvania
MARY GAY SCANLON, Pennsylvania, BEN CLINE, Virginia
Vice-Chair KELLY ARMSTRONG, North
SYLVIA R. GARCIA, Texas Dakota
JOE NEGUSE, Colorado W. GREGORY STEUBE, Florida
LUCY McBATH, Georgia
GREG STANTON, Arizona
MADELEINE DEAN, Pennsylvania
DEBBIE MUCARSEL-POWELL, Florida
VERONICA ESCOBAR, Texas
Perry Apelbaum, Majority Staff Director & Chief Counsel
Brendan Belair, Minority Staff Director
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SUBCOMMITTEE ON IMMIGRATION AND CITIZENSHIP
ZOE LOFGREN, California, Chair
PRAMILA JAYAPAL, Washington, Vice-Chair
J. LUIS CORREA, California KEN BUCK, Colorado,
SYLVIA R. GARCIA, Texas Ranking Member
JOE NEGUSE, Colorado ANDY BIGGS, Arizona
DEBBIE MUCARSEL-POWELL, TOM McCLINTOCK, California
Florida DEBBIE LESKO, Arizona
VERONICA ESCOBAR, Texas KELLY ARMSTRONG, North Dakota
SHEILA JACKSON LEE, Texas W. GREGORY STEUBE, Florida
MARY GAY SCANLON,
Pennsylvania
David Shahoulian, Chief Counsel
Andrea Loving, Minority Counsel
C O N T E N T S
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January 29, 2020
OPENING STATEMENTS
Page
The Honorable Zoe Lofgren, California, Chair, Subcommittee on
Immigration and Citizenship, House Committee on the Judiciary.. 1
The Honorable Ken Buck, Colorado, Ranking Member, Subcommittee on
Immigration and Citizenship, House Committee on the Judiciary.. 3
WITNESSES
The Honorable A. Ashley Tabaddor, President, National Association
of Immigration Judges 5
Oral Statement................................................. 5
Prepared Statement............................................. 8
Mr. Jeremy McKinney, Second Vice President, American Immigration
Lawyers Association 23
Oral Statement................................................. 23
Prepared Statement............................................. 25
Ms. Judy Perry Martinez, President, American Bar Association
Oral Statement................................................. 38
Prepared Statement............................................. 40
The Honorable Andrew. R. Arthur, Resident Fellow in Law and
Policy, Center for Immigration Studies 52
Oral Statement................................................. 52
Prepared Statement............................................. 54
LETTERS, STATEMENTS, ETC. SUBMITTED FOR THE HEARING
A letter from 11 Democratic Members of the House Committee on the
Judiciary to Comptroller General Gene Dodaro of the U.S.
Government Accountability Office, dated November 14, 2019;
Submitted by the Honorable Veronica Escobar.................... 139
Report of the Proceedings of the Judicial Conference of the
United States, dated September 13, 2016; an Executive Office
for Immigration Review (EOIR) resource on Adjudication
Statistics, New Cases and Total Completions; an EOIR resource
on Adjudication Statistics, Total Asylum Applications; an EOIR
resource on Adjudication Statistics, Current Representation
Rates; Submitted by the Honorable Kelly Armstrong.............. 150
Human Rights First report on Immigration Court Appearance Rates;
Submitted by the Honorable Mary Gay Scanlon.................... 188
Joint Administrative Complaint Regarding El Paso Service
Processing Center Immigration Court Judges from the American
Immigration Council and the American Immigration Lawyers
Association and Statements from the following organizations:
American Immigration Council; Center for Gender & Refugee
Studies; Coalition for Humane Immigrant Rights; The
Constitution Project at the Project on Government Oversight;
Florence Immigrant & Refugee Rights Project; Human Rights
First; Human Rights Initiative of North Texas; Kids in Need of
Defense; the HMA Law Firm PLLC; National Immigrant Justice
Center; National Immigration Forum; New York City Bar; New York
Legal Assistance Group; Refugees International; Round Table of
Former Immigration Judges; Young Center for Immigrant
Children's Rights; Joint Statement of Innovation Law Lab,
Southern Poverty Law Center, Las Americas Immigrant Advocacy
Center, Santa Fe Dreamers Project, and Catholic Legal
Immigration Network, Inc.; Submitted by the Honorable Pramila
Jayapal........................................................ 196
APPENDIX
Statement from the American Federation of Labor and Congress of
Industrial Organizations (AFL-CIO); Submitted by the Honorable
Zoe Lofgren.................................................... 316
Statement from Tahirih Justice Center; Submitted by the Honorable
Zoe Lofgren.................................................... 318
Statement from the Federal Bar Association; Submitted by the
Honorable Zoe Lofgren.......................................... 324
Statement from Judith Bernstein-Baker, M.S.W., Esq.; Submitted by
the Honorable Mary Gay Scanlon................................. 327
COURTS IN CRISIS: THE STATE OF JUDICIAL INDEPENDENCE AND DUE PROCESS IN
U.S. IMMIGRATION COURTS
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WEDNESDAY, JANUARY 29, 2020
House of Representatives,
Subcommittee on Immigration and Citizenship,
Committee on the Judiciary
Washington, DC.
The subcommittee met, pursuant to call, at 9:34 a.m., in
Room 2141, Rayburn House Office Building, Hon. Zoe Lofgren
[chairman of the subcommittee] presiding.
Present: Representatives Lofgren, Jayapal, Correa, Garcia,
Neguse, Mucarsel-Powell, Escobar, Jackson Lee, Scanlon, Buck,
Biggs, Lesko, Armstrong, and Steube.
Staff Present: David Shahoulian, Chief Counsel; Betsy
Lawrence, Counsel; Alex Wang, Legal Fellow; Rachel Calanni,
Legislative Aide/Professional Staff Member; John Williams,
Parliamentarian; Andrea Loving, Minority Chief Counsel; James
Rust, Minority Counsel; and Andrea Woodard, Minority
Professional Staff Member.
Ms. Lofgren. The Subcommittee on Immigration and
Citizenship will come to order. Without objection, the chair is
authorized to declare recesses of the subcommittee at any time.
We welcome everyone to this morning's hearing, ``Courts in
Crisis: The State of Judicial Independence and Due Process in
U.S. Immigration Courts.'' I will now recognize myself for an
opening statement.
With today's hearing, we shine a spotlight on an issue that
requires urgent congressional attention: the crisis that is
unfolding in our Nation's immigration courts. In order to be
truly effective, the immigration court system should function
just like any other judicial institution, where due process and
fair procedure are held in the highest regard and where parties
on both sides are treated equally and without bias.
Just like other judges, immigration judges should have the
time and resources to conduct full and fair hearings, and they
should have the independence to issue thoughtful, discretionary
decisions that are consistent with immigration law. But for too
long, our immigration courts, which are housed under the
Department of Justice, have not functioned as they should. A
historically high backlog now topping 1 million has pushed the
system to the brink. And although the administration claims
that many of the policies it has implemented are intended to
reduce the backlog, it appears that things are only getting
worse.
In the name of backlog reduction, all immigration judges
are now subject to case completion quotas and other performance
benchmarks, forcing judges to choose between job security and
fair process. In addition, judges' ability to manage their
dockets has been severely curtailed. No longer do they have the
discretion to administratively close cases, and their ability
to continue cases is a fraction of what it once was.
As a result, immigrants and their families can be forced
through chaotic hearings, often without having the chance to
consult with their own counsel. Some will never see an
immigration judge in person due to the ever increasing use of
video teleconferencing technology. And sadly, many will be
separated from their families and removed from the United
States without a fair trial.
Despite their best efforts, immigration judges struggle to
deliver just and timely decisions. Many judges lack the
necessary resources and staff to maximize their productivity,
as reports indicate that clerical and support staff haven't
been hired at the same pace as new judges. The Attorney General
has also empowered his subordinate, the Director of the
Executive Office for Immigration Review, to overrule
immigration judges in cases that have been assigned to them.
The National Association of Immigration Judges has spoken out
against these and other changes, and now, the Department of
Justice has threatened to decertify their union status.
That said, these problems didn't start with this
administration. Nonpartisan organizations like the American Bar
Association have long decried the problems in our immigration
courts. In 2010, the ABA released a comprehensive report
documenting these problems, including underresourcing,
ambiguous hiring standards, and perceived political influence.
In that same report, the ABA called on Congress to establish an
independent immigration court. Ten years later, groups like the
Federal Bar Association, the American Immigration Lawyers
Association, and the National Association of Immigration Judges
joined with the ABA to reiterate that suggestion.
The current state of the immigration court system is really
untenable. Judicial efficiency and respect for due process are
basic principles of our democratic society revered by members
on both sides of the aisle.
In other areas of the law such as bankruptcy and tax,
Congress established independent Article I courts where
political influence over adjudicators is limited. Creating an
independent immigration court seems, to me, like a no-brainer,
but I look forward to hearing from our witnesses as to how they
think the system should be reformed.
And I should note that after my opening statement, I will
be handing the gavel over to the vice chair, Ms. Jayapal, but I
will carefully study your written statements as well as your
answers to questions.
I actually think the time to act is, really, now. It's my
hope that this hearing will be a first step towards negotiating
a bipartisan workable solution to what is really a crisis in
our immigration courts. I am committed to working with my
friends and colleagues across the aisle to make this a new
reality.
And now I will recognize the ranking member of the
subcommittee, the gentleman from Colorado, Mr. Buck, for his
opening statement, and hand the gavel to Ms. Jayapal. Thank you
very much.
Mr. Buck. I thank the chair and the new chair for
recognizing me.
I am confident in the due process of our immigration
judges, that our immigration judges provide to the parties
appearing before them, and I'm equally confident in their
ability to faithfully apply the law to the facts of the case.
U.S. immigration judges consistently rise to the challenge in a
difficult environment, adjudicating cases impartially and
professionally, and most do their jobs without complaint.
Even with a 35-day government shutdown, the immigration
judge corps completed 275 cases in fiscal year 2019, and that
is a historically high number of completions and nearly double
the number from just 3 years ago.
In any court system, issues arise--I'm sorry. In any court
systems, issues will arise that affect the caseload, backlog,
and morale of those who work there. The Trump administration
has recognized many of these issues and taken action.
For instance, the lack of electronic filing has been a
concern for many years. This administration began implementing
the ECAS system nationwide, and will continue to do so over the
next year and a half until it is available at all immigration
courts. The administration has prioritized case completion
where the immigrant is being held in detention, in credible
fear reviews, and in cases with a regulatory or statutory
deadline. While reasonable minds can disagree on whether a
given step is the right remedy, the fact that this
administration is trying to fix problems cannot be disputed.
I understand that the size of the case backlog is a
concern. For the first time ever, it stands at over 1 million
cases, but we should be clear that this backlog is not a new
phenomenon. It has been growing for years, and it's important
to understand the factors that have been--that have driven the
backlog.
Even during the 2019, when immigration judges completed a
record high of 275,000 cases, the backlog increased
substantially, given that nearly half a million new cases were
added to the docket. Of course, no one should be surprised at
that, given the astronomical number of immigrants presenting at
the southern border seeking asylum or other immigration
benefits.
It's not hard to understand that the backlog grows when
individuals fail to appear for their court hearings, since the
time allotted for those proceedings could have gone toward the
completion of a case where an appearance is made.
Unfortunately, the failure to appear rate is as high as ever.
Forty-five percent of all case completions in fiscal year 2019,
89,919 cases, involved in in absentia removal orders.
Frivolous and fraudulent claims are also a problem that add
to the backlog. The system rewards fraudulent claims by
allowing the claimant to remain in the United States for years.
These cases also utilize precious court time that should go
towards legitimate cases.
The current administration has made changes to reduce the
number of continuances and to increase judicial efficiency. One
such change followed GAO and DOJ and Inspector General
recommendations to implement performance metrics and case
completion goals. I understand that this has led to questions
by the immigration judge union as to whether judges would be
disciplined or fired if they did not meet the goal of 700 case
completions in a year. The Executive Office for Immigration
Review has been clear, however, that the completion goal was
just one part of a multidimensional performance review and that
factors specific to each judge's docket would be taken into
account. And according to EOIR, for 2019, no judge was
penalized in their performance evaluation if they failed to
meet the 700-case completion goal.
In fact, immigration judges should be commended. On
average, they completed a record high 708 cases.
In their written testimony, some of today's witnesses
lament the perceived lack of judicial independence of the IJ
Corps, but the immigration courts were created by Congress as a
component of the Department of Justice, and they are bound by
the law as interpreted by the Attorney General.
Some of the witnesses here today support the idea of making
the immigration courts an Article I court. While that claim
is--such a move will make the problems--while the claim is that
such a move will fix the problems, I am unconvinced of that
position.
I look forward to hearing from all the witnesses today,
given their unique expertise in the field.
I thank the chair, and yield back.
Ms. Jayapal [presiding]. Thank you, Mr. Buck.
It is now my pleasure to introduce today's witnesses.
Judge Ashley Tabaddor. The Honorable Ashley Tabaddor is
president of the National Association of Immigration Judges, an
immigration judge based in Los Angeles, California, and an
adjunct professor with the UCLA School of Law. She was
appointed to the immigration bench in November of 2005. Prior
to her appointment, Judge Tabaddor served as assistant U.S.
attorney for the Central District of California and as a trial
attorney with the Department of Justice Civil Division in
Washington, D.C.
Judge Tabaddor has been honored for judicial excellence by
numerous organizations, including the Mexican American Bar
Association and the Arab American Lawyers Association. She
received her B.A. from UCLA and J.D. from the University of
California Hastings College of the Law.
Jeremy McKinney is an immigration attorney based in
Greensboro, North Carolina, and is second vice president of the
American Immigration Lawyers Association, or AILA. Mr. McKinney
has more than 20 years of experience practicing immigration law
and is founder of McKinney Immigration Law with offices in
Greensboro and Wilmington, North Carolina. He has been active
in AILA leadership since 1997, and has spoken extensively on
national platforms regarding the immigration court system.
Mr. McKinney received his B.A. from Virginia Commonwealth
University and his J.D. from Campbell University School of Law.
Judy Perry Martinez is president of the American Bar
Association, or the ABA, and counsel at Simon, Peragine, Smith
and Redfearn in New Orleans. Prior to assuming her current
position, Ms. Martinez served in various positions, including
assistant general counsel for litigation and chief compliance
officer at Northrop Grumman. Ms. Martinez has been active with
the ABA for 35 years, holding various leadership positions,
including chair of the Standing Committee on the Federal
Judiciary and member of the ABA Board of Governors.
She received her bachelor's degree from the University of
New Orleans and her J.D. from Tulane Law School.
Andrew Arthur. The Honorable Andrew ``Art'' Arthur is a
resident fellow in Law and Policy for the Center for
Immigration Studies and former immigration judge serving at
York Immigration Court in York, Pennsylvania, from 2006 to
2015. Mr. Arthur also served as an associate general counsel
for the former Immigration and Naturalization Service, as well
as counsel to the House Judiciary Committee and staff director
to the House Oversight Committee.
He received his bachelor's degree from the University of
Virginia and his J.D. from the George Washington University
School of Law.
We welcome all of our distinguished witnesses and thank
them for participating in today's hearing.
Now, if you would please rise, I will begin by swearing you
in.
Do you swear or affirm under penalty of perjury that the
testimony you are about to give is true and correct, to the
best of your knowledge, information, and belief, so help you
God?
Let the record show the witnesses answered in the
affirmative.
Thank you, and please be seated.
Please note that each of your written statements will be
entered into the record in its entirety. Accordingly, I ask
that you summarize your testimony in 5 minutes, and to help you
stay within that time, there is a timing light on your table.
When the light switches from green to yellow, you have 1 minute
to conclude your testimony. When the light turns red, it
signals your 5 minutes have expired.
Judge Tabaddor, you may begin.
TESTIMONY OF THE HONORABLE A. ASHLEY TABADDOR, PRESIDENT,
NATIONAL ASSOCIATION OF IMMIGRATION JUDGES; JEREMY MCKINNEY,
SECOND VICE PRESIDENT, AMERICAN IMMIGRATION LAWYERS
ASSOCIATION; JUDY PERRY MARTINEZ, PRESIDENT, AMERICAN BAR
ASSOCIATION; AND THE HONORABLE ANDREW R. ARTHUR, RESIDENT
FELLOW IN LAW AND POLICY, CENTER FOR IMMIGRATION STUDIES
TESTIMONY OF THE HONORABLE A. ASHLEY TABADDOR
Ms. Tabaddor. Chairman, Ranking Member Buck, and members of
the subcommittee, thank you for the opportunity to testify
before you today. I'm a novice at this, so bear with me.
My name's Ashley Tabaddor. I'm the president of the
National Association of Immigration Judges and a sitting judge
for the past 15 years. I appear today on behalf of NAIJ. As was
mentioned, we're the official union for the 440 immigration
judges across the United States.
I have served in the Department of Justice for well over 20
years, spanning four administrations, and at least a half a
dozen Attorney Generals. And I've observed with each
administration and each Attorney General, he or she has brought
with them a set of law enforcement priorities for the
Department to pursue. And each of them has had to grapple with
this conflicting mission to the law enforcement priorities of
the Department and the role of the Department of Justice as
overseeing the immigration court. And I can assure you that
each of you--each of them has failed in one way or another.
So in 2003, Congress took a major step forward by
separating out the functions of the Immigration and
Naturalization Service from the Department of Justice and
moving it into the newly created Department of Homeland
Security. This step forward demonstrated Congress' commitment
to properly separate the law enforcement priorities of the
executive branch from the adjudicatory role that the executive
branch plays.
However, this conflict and this tension has continued to
persist within the Department of Justice because of its close
working relationship with the Department of Homeland Security.
Regardless of the administration, law enforcement focus of the
Department of Justice has consistently interfered with and
compromised the immigration court system.
Yet in the 23 years that I have served at the Justice
Department, I have never seen the level of hostility toward
immigration judges who preside over immigration proceedings,
the individuals who appear before them, or the due process
rights that the Constitution and this body, Congress, has
provided in our laws. Using the pretext of the backlog through
one policy announcement after another, the Department of
Justice has transformed the court into a law enforcement
assembly line.
We've talked about the quotas and deadlines. Fiscal year
2019 was the first time that the Department subjected judges to
this unprecedented act of 700 case completion quotas a year,
and a series of metrics, as a condition of our continued
employment. This policy pits the judges' personal financial
interests, their job security, against the oath of office to be
an independent, impartial decisionmaker.
Fiscal year 2019 is over. Did the policy reduce the
backlog? Of course not. To the contrary, as we've heard, it has
actually doubled in the last 3 years from 600,000 to well over
1 million cases. And this is in spite of the hiring spree of
over 200 judges in the same period of time.
Now, we're the judges who spend every workday hearing
cases, back to back, morning and afternoon. Some of my
colleagues have upwards of 6,000 to 7,000 cases pending on
their docket. Did they meet these quotas and deadlines? Again,
of course not. Over 60 percent of the Nation's immigration
judges did not reach the 700 case completion quotas. And a
stunning 99 percent of the judges fell short of satisfying the
requirements of the full metrics. The data is not surprising.
The metrics are unrealistic.
Yes, we've heard that no one has been penalized this year.
So why do it? The purpose of the metrics is to goad judges to
put speed over substance and automate their decisions to the
will of the administration.
And making matters worse, EOIR, the agency within the
Department overseeing the court, recently issued a new
regulation that fundamentally changed the nature of the agency.
Overturning decades of rules and practice, the new rule vested
the EOIR director, who is not even required to be an attorney,
with the authority to review immigration judge decisions on
appeal and to issue precedential decisions rewriting the law.
So now judges not only have to worry about the speed with
which they process cases, but they have to consider whether the
head of the agency is going to agree with their decisions
granting or denying asylum in the life-and-death matters that
are before them, or otherwise fear penalizing, suffering
personally for it.
Not to be outdone, the Department of Justice has also filed
a petition to decertify us and silence the public voice of
transparency and accountability that we have brought to this
immigration court system discourse. If they should prevail, it
will be the proverbial final nail in the coffin of decisional
independence for immigration judges.
Imagine stepping into a courtroom where your life depended
on the outcome of the case, only to find out that the judge was
hired by the prosecutor, that she can be fired by the
prosecutor, that the prosecutor could step in anytime to
overrule the judge, and by the way, the prosecutor would really
like for the judge to finish the case today.
This is not what America stands for. These are not the
principles upon which our Constitution and country were
founded. We as a Nation can no longer afford the continuation
of the status quo. Please create an Article I court. Give us
the independence we need for the American people.
Thank you.
[The statement of Ms. Tabaddor follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Ms. Jayapal. Thank you, Judge Tabaddor.
Mr. McKinney, you are recognized.
TESTIMONY OF JEREMY MCKINNEY
Mr. McKinney. Thank you so much.
Chairwoman Jayapal, Ranking Member Buck, and members of the
subcommittee, thank you for inviting me to speak with you today
about the urgent need to protect and reform our immigration
courts. My name is Jeremy McKinney. I'm the American
Immigration Lawyers Association second vice president and an
attorney with more than two decades of experience representing
people facing deportation, primarily in Charlotte, Atlanta, and
Lumpkin, Georgia.
As an initial observation, two of the terms you will hear
repeatedly today are misnomers: courts and judges. We call it
immigration court, but in actuality, the parties appear before
a Department of Justice entities known collectively as the
Executive Office for Immigration Review, or EOIR. EOIR reports
to the Attorney General, at the same time, as in the words of
former Attorney General Jeff Sessions, the Attorney General,
quote, effectuates the President's agenda, unquote. That
includes supervision of the Department of Justice attorneys who
prosecute immigration cases in Article III Federal courts.
The Department of Justice is not a court. It is a law
enforcement agency, and yet the immigration court system is
housed within it. We call the adjudicators in these Department
of Justice entities judges, but the immigration judges are not
considered judges by DOJ itself. They are simply employees of
the law enforcement agency.
Our immigration court system has a conflict of interest
built into it. To ensure fundamental fairness and an efficient
functioning court system, judges must be allowed to act as
neutral arbiters of facts and law, regardless of who is in
power. Instead, this administration, and importantly, other
administrations before it, exploit the structural infirmity to
further political agendas.
President Obama's administration prioritized the
adjudication of family unit cases. EOIR later reported the
Obama administration's docket reshuffling, quote, coincided
with some of the lowest levels of case completion productivity
in EOIR's history, unquote.
The current administration also routinely places its finger
on the scales of justice. Using his power to certify removal
cases to himself, the Attorney General has ended administrative
closure, ended the ability of judges to terminate cases,
attacked the ability of judges to continue cases. These
policies have directly impacted my clients.
For example, a Charlotte immigration judge who handles the
juvenile docket recently chided our bar to stop filing motions
to terminate in cases where a child is eligible for relief
before another agency, in this case, USCIS. Instead, this judge
is forced to clog her docket with contested hearings about
children.
Many cases, many cases can be resolved by other agencies,
including cases where a person can depart the United States and
pursue an immigrant visa abroad, but this series of decisions
removes the power of immigration judges to control their own
dockets and keeps the parties stuck in litigation.
EOIR itself has made it worse, following suit with actual
quotas on immigration judges and attempts to terminate the
judges' union. As a result, courts are in crisis and not
resolving cases in a consistent manner. For example, if I
appear in Arlington, Virginia, I know the chance my client will
be denied asylum is a little over 50 percent, which is in line
with the national average, about a 50-50 shot. If I appear
closer to home in Charlotte, North Carolina, a jurisdiction
under the Fourth Circuit with identical case law, that number
jumps to 90 percent. Head down I-85 to Atlanta or Lumpkin,
Georgia, and that number jumps to a staggering 97 percent
denial rate. That is not the kind of justice that Americans
want.
Regardless of one's substantive views on the law or one's
preferred outcomes, we should all agree that an independent
Article I immigration court removed from political pressure as
much as possible is critically needed to secure due process.
But even beyond the constitutional guarantee of due
process, the attempts at assembly line justice is simply not
working. Under the current administration, the backlog has more
than doubled and now exceeds 1 million.
Doing the right thing here is not only constitutionally
required, it is also just sound public policy. When we curtail
a person's right to a full and fair hearing, like plowing ahead
with a contested hearing instead of allowing the parties to
send it to another agency to resolve, we increase, not
decrease, litigation. We increase appeals, not decrease.
Ms. Jayapal. Mr. McKinney, your time has expired.
Mr. McKinney. Thank you.
[The statement of Mr. McKinney follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Ms. Jayapal. Thank you. Thank you so much.
Ms. Martinez, you are recognized.
TESTIMONY OF JUDY PERRY MARTINEZ
Ms. Martinez. Good morning, Chair Jayapal, Ranking Member
Buck, and members of the subcommittee. My name is Judy Perry
Martinez, and I'm president of the American Bar Association.
And the ABA appreciates the opportunity to share our views on
the state of judicial independence and due process in the U.S.
immigration courts.
I am not an immigration lawyer, but I have litigated for
more than 35 years, both in private practice and as in-house
counsel and also served as chief compliance officer in the
aerospace and defense industry. I've traveled to Texas, to the
border of south Texas several times, volunteering for a
workweek. And when I did so, I traveled to help--at ProBAR
work, and I traveled to help those seeking asylum. I
interviewed individuals in detention, spent time observing
proceedings in immigration court. I toured the Brownsville port
court before it opened and crossed into Mexico to see how the
asylum seekers are fairing in Matamoros as they waited for
their day in court.
What I have seen personally and what the ABA has determined
through its various projects and studies is that there are
serious challenges to due process in our current immigration
court system, judicial independence is at significant risk, and
that fundamental change is necessary.
One of the distinctive hallmarks of our democracy is an
independent judiciary, the principle that all those present in
our country are entitled to a fair and impartial consideration
in legal proceedings where important rights and privileges are
at stake. The immigration courts issue life-altering decisions
each day that may deprive individuals of their freedom,
separate families, and in the case of those seeking asylum, may
be a matter of life and death. Yet the immigration court system
lacks the basic structural and procedural safeguards that we
take for granted in other areas of our American justice system.
This issue is not new to the American Bar Association. The
ABA Commission on Immigration in 2010 issued a comprehensive
report on the immigration removal adjudication system. In an
update in 2019, both reports found serious flaws in the system
and ultimately determined that the immigration courts must be
moved out of the Department of Justice to ensure judges have
full decisionmaking authority and independence without fear of
reprisal or improper political influence. After evaluating
several models, we concluded that an independent Article I
court should be established.
Judicial independence is a key component of due process,
and over the course of many administrations, we have seen the
adoption of policies that undermined independence of judicial--
of immigration judges' ability to perform their role as neutral
arbitrators of fact and law and the prioritization of cases
accelerates over due process.
Recent examples include the increased use of Attorney
General certifications authorities, implementation of and
greater reliance on problematic performance metrics,
reshuffling of dockets to match enforcement priorities over
efficient management, and the elimination of previously
available docket management tools.
Other serious considerations that impact due process
include the continuing challenge to ensure access to counsel in
immigration proceedings. We hope that one day a system of
appointed counsel will be available, but until that day, until
that happens, it is vital to maintain an enhanced program such
as the Legal Orientation Program that seeks to increase access
to legal information and representation for noncitizens in
immigration proceedings. We appreciate Congress' past support
of LOP and urge that it continue.
Another serious issue of concern is EOIR's recent
initiative to replace in-court interpreters with informational
videos at initial immigration court proceedings. Without
reliable and accurate interpretation services, unrepresented
noncitizens have little or no ability to meaningfully
participate in court proceedings. This is why the ABA has long
supported the use of in-person language interpreters in all
courts, including immigration.
Finally, many of our concerns regarding the lack of due
process in immigration court systems are exemplified and
exacerbated by the Remain in Mexico program. There are serious
issues with access to counsel with only about 4 percent of
persons in MPP having the ability to have representation. For
those who do find a lawyer, their ability to consult is
severely limited in the tent courts, forcing counsel to
potentially travel to dangerous locations in Mexico.
The procedures also inhibit due process. Notices to appear
issued with insufficient addresses, respondents having to
travel through dangerous areas, and proceedings conducted
through video teleconferencing, mostly out of sight of the
public, and only limited access on the day of the hearing to
meet with counsel, and no right to meet with counsel following
a hearing.
This does not look like justice. These are fundamental
violations of due process and the right to meaningful access,
and we urge you to take action now.
Thank you.
[The statement of Ms. Martinez follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Ms. Jayapal. Thank you.
Mr. Arthur, you're recognized.
TESTIMONY OF THE HONORABLE ANDREW R. ARTHUR
Mr. Arthur. Vice Chairman Jayapal, Ranking Member Buck, and
members of the subcommittee, thank you for inviting me as a
guest today.
The 465 immigration judges in our Nation's 63 immigration
courts and the agency for which they work, EOIR, play a crucial
role in our system of justice and national security but face
many challenges. EOIR had been an afterthought for decades. It
was inadequately funded and did not receive appropriate
guidance or oversight from the executive branch. It has also
borne the consequences of various executive branch immigration
policies and priorities, as well as statutory flaws and poorly
reasoned judicial opinions, that have encouraged migrants to
enter and remain in the United States illegally.
In fiscal year 2019, 851,508 migrants were apprehended
entering illegally along the southern border, a 13-year high.
And in a change from the not-so-distant past, the majority,
473,682, were adults with children, known as FMUs. The
overwhelmed limited DHS resources, resulting in many being
released with nothing more than an NTA and a court date.
A Federal bipartisan panel determined that such releases
were the major, quote, pull factor, close quote, drawing those
migrants to enter illegally a great danger to all and trauma to
their children, which was exacerbated by a 2015 ruling that
accompanied minors be released within 20 days by DHS.
Largely as a result of the border crisis, IJs now face a
crushing caseload of almost 1.1 million, not counting hundreds
of thousands that are administratively closed. The backlog is
bad for the parties, bad for the court, and bad for our system
of justice. The administration, and in particular, DOJ, have
responded to the crisis where Congress has not. Using their
certification authority, the last three Attorneys General have
created bright-line rules for IJs and the BIA to follow. The
administration has fought for funding and worked with our
regional partners to craft policies to turn off magnets that
draw migrants to enter illegally.
These policies, though controversial, have worked and done
so consistently with due process. December 2019 saw the lowest
number of migrants apprehended at the border in 15 months. One
such policy, the Migrant Protection Protocols, which is
authorized by section 235(b) of the INA, requires inadmissible
migrants at the southern border to wait for their hearings in
Mexico. Last week, I observed MPP hearings in Texas and found
that the IJs went above and beyond providing due process to
those respondents.
Performance metrics for IJs instituted in October 2018 have
also been controversial, but I note that last year, IJs
completed more than 275,000 cases, 92 percent more than in
fiscal year 2016, with just 97 IJ complaints, 42 percent fewer
than 4 years before. The number of circuit court remands to
EOIR, 602, is the lowest in 12 years, and just over one-third
of the number of remands in fiscal year 2008.
I would also notice--note that Congress itself has mandated
completion goals for asylum cases in section 208(d) of the INA,
requiring those cases be adjudicated within 180 days absent
exceptional circumstances.
Some who oppose these initiatives have called for
abandoning the EOIR system and creating an independent Article
I court outside the executive branch. This will not resolve the
issues IJs face, which are largely driven by a lingering lack
of resources and the backlog which, in turn, is driven by the
crisis at the border exacerbated by the aforementioned legal
flaws. Moreover, any restructuring would be complicated and
expensive, absorbing resources that would be better directed
toward improving EOIR and providing it with more funding.
The arguments in favor of restructuring are less compelling
than they would appear. I served Attorneys General from both
parties, and my independent judgment was never impinged in any
way, nor was there any perception that my decisions were
influenced by the fact that I had been a former INS attorney.
AILA gave me a plaque thanking me for my service. I had a
relatively high level of autonomy over my docket and could
rearrange cases in appropriate situations. Most importantly, I
ran my court in a professional manner and expected the same of
the parties who appeared before me.
The arguments against restructuring, on the other hand, are
compelling. Removing the functions of the EOIR from DOJ would
have serious constitutional implications. Immigration
determinations are closely tied to the foreign policy of the
United States, an issue traditionally recognized as solely
within the purview of the executive branch. In fact, the
Judicial Conference of the United States, the policymaking body
for the Federal court, generally opposes specialized courts in
the judiciary and advises that any Article I immigration court
remain in the executive branch. It would also largely remove
congressional oversight of the courts, an issue that matters to
me as a former staffer.
Finally, an Article I court would struggle for resources.
Immigration is a contentious issue, and a future Congress with
the power of the purse could easily starve an immigration court
it did not agree with of funding. Our IJs need more resources
and bright-line rules to guide their determinations. Both
resources and guidance have been lacking for years.
Fortunately, the administration has made both a priority.
Thank you for the opportunity to appear today, and I look
forward to your questions.
[The statement of Mr. Arthur follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Ms. Jayapal. Thank you, Mr. Arthur.
We will now proceed under the 5-minute rule with questions,
and I will begin by recognizing myself for 5 minutes.
Judge Tabaddor, in your testimony, you describe the recent
implementation of several new policies and Attorney General
decisions that have significantly limited judicial discretion,
both procedurally and substantively. Based on your own personal
experience, as well as feedback from other immigration judges,
how have these new policies, including the case completion
quotas, changed the way that you conduct immigration hearings?
Ms. Tabaddor. Absolutely. Thank you. We've talked about the
certification process. That's been one that has been used. It's
a highly politicized process. It removed the ability of the
judges that had been recognized for 40 years to
administratively close cases that are not ready for review.
So I have been handling the juvenile docket now for the
past 10 years. I used to be able to put those cases that need
outside State court action first aside on admin closure. Now I
have to carry hundreds of cases on my docket that I would like
to use for live cases just because I'm no longer allowed to
administratively close them.
We are then pushed to not continue cases, and while due
process, of course, includes a recognition that justice delayed
is justice denied; but by the same token, when a continuance is
warranted, it should be granted, and judges are feeling the
pressure. There's a constant pressure and fear of being
penalized.
And finally, as I mentioned, the director is now being
given--has been given the authority to overturn our decisions.
And part of the metrics is, if we get more than a 15 percent
remand, we may lose our job. So now the judges are very worried
about the decisions they're making on asylum, on cancellation,
on life-and-death decisions. So these are very real, concrete
intrusion into our decisional independence.
Ms. Jayapal. And what has that done to the morale of the
Immigration Judge Corps?
Ms. Tabaddor. I've been on the bench for about 15 years,
and I've never seen it this bad. As I've said, the level of
hostility towards us, the insulting and offensive way in which
we are being treated by the imposition of these quotas, by the
imposition of these rules, the micromanagement of our daily
docket. It's, frankly, unprecedented.
Ms. Jayapal. Thank you.
Mr. McKinney, from your perspective, how have the case
completion quotas, performance benchmarks, and other changes
impacted your ability to ensure that your clients actually
receive a fair day in court?
Mr. McKinney. Thank you for the question. I first want to
point out that I practice in the interior, in North Carolina
and Georgia, primarily. And so while some may have you believe
that this backlog is caused by the numbers of people applying
for asylum at the border, it's really a combination of a lot of
factors that have played into it, including and especially
these AG certifications that have really taken away, stripped
the judges of their ability to control their own docket.
So just as a--as a quick example, docket reshuffling. That
is something that was engaged in by the Obama administration
and the Trump administration. And what happens in both
instances is that it results in a significant reduction in
productivity from the judges.
A member in Colorado of AILA reported yesterday she has
about 30 days to submit asylum evidence for four people instead
of 3 months. And why? Because of docket reshuffling, this
administration decided to start a pilot program this week to
expedite family asylum cases, and the notices are coming like
that. So suddenly, you have 30 days to find corroborating
evidence for four people. This results in lower productivity.
I have a complex case where an immigration judge requested
written closing arguments. When the parties pulled the audio,
we discovered the microphones were not functioning properly. We
brought this to the judge's attention, and the judge has
decided to plow ahead anyway. Now, I don't know the impulse. I,
of course, don't--I can't reach inside that judge's mind to
know why, but I can't help but think it is because of the
pressure he's receiving.
Ms. Jayapal. Thank you, Mr. McKinney.
And, Ms. Martinez, the ABA has as published two reports
detailing the problems in our court system and have concluded
that transitioning to an Article I court, as you mentioned, is
the best approach. How would that solve many of the problems?
And, I'm sorry, you just have about, you know, 38 or 37 seconds
to answer that question. Thank you.
Ms. Martinez. The most important thing that an Article I
court would do is to assure greater independence of the courts.
And that is critical, not only for the court itself, but for
the perception of the independence of that court to the people
who it serves and for the lawyers who come before it. And for
those who look to our courts as a whole, we want them to have
trust and confidence in our entire judicial system. And having
our Article I court in the immigration courts would be one way
to do that.
Ms. Jayapal. Thank you so much.
I now recognize the gentleman from Arizona, Mr. Biggs, for
his 5 minutes.
Mr. Biggs. I thank the gentlelady. And I appreciate all of
you being here today. This is a--this is vexing and truly a
problem that we need to get a handle on.
Judge Arthur, you said in your oral testimony today and
also in your written testimony that more resources and bright-
line rules are necessary to effectuate a reduction in the
backlog. Tell me what you meant by resources, and tell me what
you mean by bright-line rules.
Mr. Arthur. With respect to resources, Mr. Biggs, I'm
talking about more immigration judges, but not just that, more
staff, more judicial law clerks all around, because my staff,
when I was a judge, was absolutely crucial to me getting my
cases done on time. I read Judge Tabaddor's testimony. She
makes some points about the inability to--or the failure to
hire staff. That needs to be done.
With respect to bright-line rules, when I was a judge, we
had vague concepts, like you can grant a continuance for good
cause shown. Good cause isn't actually defined anywhere, and
the case law that existed really wasn't very helpful.
Immigration judges run a risk if they deny a continuance and it
goes up on appeal to the circuit court and they find that they
violated due process. That's a serious blemish on a judge's
record and one that could potentially result in punishment by
the Department of Justice, punishment by the courts.
So bright-line rules like that are important. Bright-line
rules for asylum cases where it's more clear to the judge in--
--
Mr. Biggs. So, Mr. Arthur, before you continue, I have to
yield to Congressman Buck.
Mr. Buck. Finish your answer.
Mr. Arthur. In order to guide the decision and in order to
make it easier for the tribunal to do it in a timely fashion, I
note, Mr. Buck, as I stated in my opening statement, Congress
has said judges have 180 days to adjudicate immigration--asylum
cases absent due process. That truly does put the hammer on the
judges. And that's not EOIR doing that, that's this body.
Mr. Buck. I thank the gentleman for his answer, and I will
yield back.
Ms. Jayapal. Thank you.
I now recognize the gentleman from Colorado, Mr. Neguse,
for 5 minutes.
Mr. Neguse. Thank you, Madam Chair, for holding this
important hearing. Thank you to each of the witnesses for your
testimony today.
Shrouded in secrecy, the immigration court system run by
the DOJ has been dysfunctional for years, as many of you have
attested to during your testimony, and certainly, in my view,
under this administration, it's only gotten worse. As we know
from much of the testimony we heard this morning as well as
press reports, again, my view, housing our immigration court
system within the DOG--DOJ, excuse me, has left it vulnerable
to political interference. It's a structural flaw that has been
exploited time and time again. And despite the life-or-death
stakes of many of these cases, our immigration court system has
less to do with the rule of law than with the luck of the draw,
and this administration has long allowed enforcement priorities
to preempt a court process that is meant to be independent and
fair.
And if that weren't enough, the mechanism to hold
immigration judges accountable, the appeals process has been
corrupted by the political interference of the Attorney
General, both current and past. And this issue, as I suspect,
is the case for many of the folks who are gathered here today
to participate in this hearing. It's personal to me. My parents
were refugees who came to this country nearly 40 years ago.
Having an immigration system that works and having a judicial
system that works with respect to immigration matters a great
deal to my constituents and the people that I represent in
Colorado.
I want to touch on an issue in particular that's occurred
in the Denver immigration court system. As I'm sure each of you
are aware, in fall of 2018, as part of a pilot program, the
Department of Justice instructed 10 immigration courts to
accelerate the cases of families seeking asylum. And in Denver,
that instruction is being carried out in a series of group
hearings designed to decide cases in less than a year, and that
compares to the 3 to 4 years it typically takes for asylum
cases to be assessed.
Mr. McKinney, and then I'd like to have Judge Tabaddor
answer this question as well, does this accelerated timeline
make it easier or harder for families seeking asylum to attain
a lawyer?
Mr. McKinney. It, of course, makes it more difficult.
Representative, thank you so much for your question. But even
once you obtain counsel, if that happens, which, of course,
happens in less than half of immigration cases, then we have
the burden of reasonably corroborating everywhere we can
possibly do so.
So our office, for example, will try to contact neighbors
from the person's native country, medical professionals,
courts, police, wherever we can, to corroborate our client's
story. That takes time. Sometimes it does not. Sometimes we are
ready to go. But it's that freedom within the court to have
that conference with the judge and with DHS counsel and talk
about the evidentiary needs. It will differ from case to case.
So having these bright-line rules really impacts due process.
Mr. Neguse. Thank you.
Judge Tabaddor, do you care to comment both with respect to
obtaining an attorney, but also as Mr. McKinney said, the
perhaps equally important consideration of having time to
acquire evidence?
Ms. Tabaddor. Absolutely. What we have seen is assembly
line justice. So we had never seen a situation where the judges
are told you have 365 days to complete this case. And because
of that, the judges feel the pressure to shorten the amount of
time that people need to be able to find counsel. And then once
counsel is obtained, the judges feel pressure to want to
schedule that case within that 360 days.
And then a lot of times what happens is the agency keeps
track of every single one of these cases, and for every single
one, you have to be accountable for. And so what they do is
shuffle. So if a judge--they come in and say, oh, okay, you
heard the first one. We're going to assign it to somebody else
now. Now somebody else who hasn't had a history of dealing with
this case has to get up to speed. Everything is about this
factory model of management and treating people like widgets.
So it's become very, very onerous on the judges as well.
Mr. Neguse. Thank you, Judge Tabaddor, for your answer and
for your service.
We should all take a moment to pause, because what you said
I thought is worth underscoring, the phrase that you used of
assembly line justice. It should offend every person on this
dais. It certainly offends me as a lawyer, and it offends me as
the son of immigrants that this Department of Justice has
decided to institute a pilot program that has resulted in that
outcome, and we shouldn't tolerate it. And I appreciate the
work that you and your colleagues are doing under such trying
circumstances.
I yield back.
Ms. Tabaddor. Thank you.
Ms. Jayapal. I thank the gentleman.
I now recognize the ranking member of the subcommittee, Mr.
Buck, for his 5 minutes.
Mr. Buck. Thank you very much, Madam Chair.
I have to tell you, this is a very frustrating area. I
think everyone up here is frustrated by this situation and for
different reasons, frankly. And it's one of the beautiful
things about Congress. I am working with people that are--I
guess some people consider me to the right of center, and I am
working with some people to the left of center, and we agree
for different reasons on war powers, for example, on the
detention of refugees and many other things.
But not one of you mentioned the cause of why we're here,
and that is people breaking our law and crossing our border.
Not one of you talked about the need for border security. Not
one of you has talked about the process.
And, Judge, I have to tell you, I'm frustrated when you say
in your opening statement--Mr. McKinney had me halfway there
before the hearing, but when you say in your opening statement
that this quota of 700 cases has not reduced the backlog, the
truth is the backlog is caused by more illegal immigrants
coming into this country and ending up in your court. It's not
caused by quotas or lack of quotas. And when you talk about the
difference in denial rates between northern Virginia and
Atlanta, there are fundamentally different circumstances at
play in northern Virginia than in Atlanta.
And so it's not just--it's not fair to make those kinds of
comparisons. And I think if we're going to get to a good answer
on this, and it may be an Article I court, I don't know, but I
think we've got to, on both sides, stop dealing with the--
somebody a lot smarter than me said there are three types of
lies. There are lies, damn lies, and statistics. And I think
when you use statistics in a misleading way, it doesn't help us
get to the right answer.
And I have been very impressed with the American
Immigration Law Association and their willingness to talk my
language to me and help me grapple with these very difficult
issues. But, Mr. McKinney, let me ask you a question. What
happens if someone applies for a visa or asylum at one of our
embassies? And I need a quick answer. They go--they go to a
window, they file their application, a Department of State
employee reviews that application and makes a decision.
Mr. McKinney. That's correct, except for asylum which
happens in the interior of the country, yes, sir.
Mr. Buck. Okay. But they can make the same claims as to why
they should be able to enter the country at a Department of
State facility.
Mr. McKinney. Very difficult to do so, but, yes, one could
potentially seek refugee status outside of the United States.
Mr. Buck. They could go from El Salvador, they could go to
Mexico, enter the U.S. Consulate or a facility that's set up
for that purpose, and they could apply for that.
Mr. McKinney. I would--we need to reform the process to
make it possible to do things like that, but in reality, and
again, this is a reality that I've seen for two-plus decades,
that is not the case.
Mr. Buck. Okay. Then I'll stick with visa, okay. We both
agree that's the process for a visa.
Mr. McKinney. Absolutely.
Mr. Buck. Okay. It's not a judge that reviews that
application, is it?
Mr. McKinney. It is not. It is a Department of State
adjudicator.
Mr. Buck. And it's not--they are not entitled to an
attorney, are they?
Mr. McKinney. Outside of the United States, one is not
afforded constitutional protections.
Mr. Buck. So when somebody breaks our law and comes into
this country illegally, we all of a sudden--according to Ms.
Martinez--we all of a sudden are supposed to give them enhanced
rights for breaking our law. We're supposed to now say, you get
a judge. Not only do you get a judge that's a Department of
Justice employee, but you get a judge who is independent and
unaccountable to a political system, to elected officials. You
now get somebody who is insulated from the reality that the
rest of us have to deal with, and you get a lawyer, or at least
some people are advocating you get a lawyer for breaking our
law. How is that a disincentive to break American law?
Mr. McKinney. A couple reasons for that. One--one thing is
that our Framers specifically used the term due process twice,
both in the Constitution in the Fifth Amendment, and then
later, after the Civil War, in the 14th Amendment, and it
extended due process of law to all persons. So unless we choose
to go down a road where we're debating whether undocumented
immigrants are people, they have rights in the country, and one
of those rights is to a fundamentally fair hearing.
Now, what our argument has been to you, Representative, is
that both administrations have botched this up, whether it's
Democrat or Republican, because at--fundamentally at the core,
you have that administration's political proclivities directing
what is supposed to be a neutral and fundamentally fair
process, and that's what we're asking to change. I think there
is a lot of middle ground here to be reached and that it's a
nonpartisan issue.
Ms. Jayapal. The gentleman yields back.
I did want to clarify that you can't walk into a U.S.
Embassy unless you have an actual applicant--if you have an
actual appointment, an application, and obviously, asylum
status is different than refugee status as well.
So now I'd like to recognize the gentlewoman from Texas for
5 minutes, Ms. Escobar.
Ms. Escobar. Thank you, Madam Chair.
And thank you to our witnesses today. I really appreciate
the information you provided us.
I represent El Paso, Texas, which has been on the front
line of many of the Trump administration's policies, like MPP,
like family separation. And what is troubling when we're
talking about access to justice or access to the asylum
process, what's troubling to hear is that, well, let's just
speed it up because we have so many Central American families
or Cuban families or Cuban individuals. Wherever they're coming
from, arriving at our door, let's just speed it up. And so it's
this idea that certain people don't deserve justice. We just
want to kind of get rid of the cases and move along and avoid
dealing with the fact that we have laws and that we should
uphold justice for everyone. So your voices have been very
important in this process. I want to thank you.
A recent report from the Transactional Records Access
Clearinghouse, or TRAC, discovered gross irregularities in
recent data releases from the EOIR, from garbled data to
millions of records disappearing from one data release to the
next. Several of my colleagues and I wrote a letter to GAO
requesting that they investigate data management practices at
EOIR. Fortunately, GAO agreed to review these practices, and,
Madam Chair, I'd like unanimous consent to enter the letter
into the record.
Ms. Jayapal. Accepted.
[The information follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Ms. Escobar. For Judge Tabaddor, shortly after TRAC made
these data mismanagement practices public, you as president of
the NAIJ, released a statement condemning the systemic
inaccuracies and calling upon the DOJ to fix them. Can you tell
us why these inaccuracies are harmful, like for the American
public, why is this a bad thing, and has DOJ fixed these
reports--or these records?
Ms. Tabaddor. Thank you for the opportunity to respond to
this question. And as Representative Buck said, you know,
statistics obviously have their controversial role. We rely
heavily on the agency data. I mean, that's who we turn to. So
when I'm citing to statistics, I'm not making it up, because
I'm looking at what the agency has produced. And so it is
really important for those numbers to be accurate.
And what we have seen, unfortunately, is that key portions
of data are being manipulated. A lot of times the statistics
matter, what you put in the denominator, what you put in the
numerator. So if you don't have information to be able to
verify, it can really impact the accuracy of it.
Personally, I remember getting calls from press asking me,
saying, look, we've received this FOIA response, which is this
response to a request for information on data. It's telling us
that unaccompanied juveniles are failing to appear at rates of
40 percent. And I was shocked, frankly, to hear that, because
I've been sitting on the juvenile docket in one of the largest
courts in the Nation for 10 years, and we have a working
relationship with other immigration judges across the country
with this particular issue. We don't see anywhere near those
numbers.
And then when the myths versus fact sheets came out, we saw
a lot of numbers that they were putting forth, that there was
no way to even verify whether it's accurate. So this type of
information, this type of activity on the part of the court
system that's supposed to be neutral is quite harmful because
it, frankly, compromises the integrity and the respect that the
court deserves.
Ms. Escobar. And it's used sometimes by the administration
or supporters of these policies to basically defend why or to
claim that asylum seekers aren't adequately winning cases or
showing up. So the data is important.
Ms. Tabaddor. It's been very difficult because it's been--
they produce it in ways to support a specific narrative----
Ms. Escobar. Right.
Ms. Tabaddor [continuing]. And that becomes difficult when
we don't have all of the information.
Ms. Escobar. And has DOJ fixed the problem?
Ms. Tabaddor. As far as I know, no.
Ms. Escobar. Okay. I didn't think so. Thank you.
Today marks the 1-year anniversary of this administration's
horrific, abhorrent migrant protection protocol policy, the
Return to Mexico policy, a policy that essentially puts asylum
seekers who are in the American court system in another
country, a country that is not their own, where they don't know
anyone, where they have no way of being safe or staying safe.
We've had accounts of people in MPP who have been kidnapped,
women who have been sexually assaulted, people who have
disappeared altogether. The American Government has essentially
created a new criminal enterprise on the other side of border
communities like mine, a criminal enterprise that preys on
vulnerable migrants.
For Judy Perry Martinez--oh, I'm out of time. Thank you all
so much. Really appreciate it.
I yield back.
Ms. Jayapal. I thank the gentlelady for yielding.
And I now recognize the gentleman from North Dakota, Mr.
Armstrong, for 5 minutes.
Mr. Armstrong. Thank you, Madam Chair.
I think it's important to recognize, when we talk about
this, that we're not starting at zero. And so since we've had a
lot of talk about statistics, I'm going to do a couple more.
According to the Judicial Conference, there are 42 Federal
judicial emergencies currently in Article I courts right now.
As defined, any vacancy where weighted filings are in excess of
600 filings per judgeship, or any vacancy in existence more
than 18 months where weighted filings are between 430 to 600
per judgeship, or any vacancy where weighted filings exceed 800
per active judge.
In 2017, Judicial Conference requested Congress creates 57
new Article III judgeships, which included five new appeals
court judgeships. Judicial Conference notes that since 1990,
when the last omnibus judgeship legislation was enacted, appeal
filings have increased 40 percent and district court filings
have increased 38 percent, with civil case filings up 38
percent and criminal filings up almost 40 percent.
In 2018, the combined filings in district court for civil
cases and criminal defendants rose 7 percent to 370,085. Civil
filings increased 6 percent to 282,000. Filings for criminal
defendants went up 13 percent to 87,149, and criminal filings
rose in 64 of 94 districts.
Federal judiciary stats as of September 30th, 2019, is
there were 456,827 pending cases in Federal district courts.
For criminal cases, from filing to disposition, is an average
of 7 months, which is actually a .5-month decrease since 2014,
although I would argue, and hopefully at some point in time we
can work on this, there are an unbelievable amount of
incentives to get those down because of the incentives for
pleading guilty and the disincentives for defendant to go to
jury trial in Federal Court, which I think is something we
should maybe look at.
And for civil cases, from filing to disposition, is 10.8
months, which is a 2\1/2\ month increase from 2014. Long-
standing civil cases, there are 56,356 pending civil cases that
are over 3 years old, which represents a 15.8 percent of all
civil cases. And it's approximately 26,000 case increase since
2014.
All of this is to say that with regard--we deal with
backlogs in immigration courts, but we have a problem in our
Article I courts as it is. And so as a separate but equal
branch of government, they are independent, and Congress has no
ability to influence the, productivity outside of providing
additional resources, which I don't think anybody disagrees, if
we would make this move, there would be absolute need for
increased resources.
So the case metrics and performance goals implemented by
the Executive Office for Immigration Review help provide
efficient adjudication in immigration courts, and if
immigration courts were transferred to Article I courts, there
would be minimal ways to influence productivity.
And so I say all that with the recognition that I agree--I
don't like a backlog in any court. I spent a lot of time with
in-custody clients in Federal Court. It is an incredibly
frustrating situation for them, their families, all of those
things. Now, the benefit is, is they were earning good time
provided what they were going to get their sentence on the back
end.
But, Mr. Arthur, there's a case backlog currently exceeding
a million cases, right?
Mr. Arthur. That's correct.
Mr. Armstrong. And about half of those cases are asylum
cases?
Mr. Arthur. Just about.
Mr. Armstrong. Can you explain why an asylum application
to--an individual would have an incentive to claim fear or to
ultimately file an asylum case in the United States?
Mr. Arthur. If an individual arrives at the border, they're
subject to expedited removal, which means that a DHS officer
can simply remove them from the United States. If they claim
credible fear, on the other hand, they are eligible to be
interviewed by an asylum officer who, by the way, is also not
an Article I judge, and if the asylum officer finds they have a
credible fear, which they do in about 70, I think, -5 percent
of the cases, those individuals are then allowed into the
United States to apply for asylum before an immigration judge.
Most of those individuals are released into the interior of the
United States and can stay here until their case is resolved
and ICE doesn't have the resources to find them.
Mr. Armstrong. And then with my last just 27 seconds, I
think it's important to recognize that when we're dealing this
and moving them into Article I creates. So Judicial Conference
has restated in talking to Federal judges their long-standing
opposition to specialized courts in the Federal judiciary and
regarding a legislative proposal to put immigration courts in
there; that's exactly what we'd be doing.
So can you imagine the resources, just real quick, Mr.
Arthur, we'd have to give to Article I if we were going to
create a specialized court in the Federal judiciary?
Mr. Arthur. It would be as large as we would need to
actually create an effective court within EOIR right now. And
the other thing is there would be no congressional
accountability. Right now, you can call in the director of EOIR
if you have problems about the issues that have been discussed.
You don't have that ability when you have an Article I court.
Who are you going to call in, the Chief Justice of the United
States? That's a problem.
Ms. Jayapal. The gentleman yields back.
I now recognize the gentlelady from Florida, Ms. Mucarsel-
Powell for 5 minutes.
Ms. Mucarsel-Powell. Thank you, Madam Chair.
Thank you for coming this morning. I think we all agree
that the current state of our immigration court system is not
only completely inefficient; it is truly appalling. Backlogs,
overworked judges, lack of access to counsel, all of these
things are harming immigrants. We get so many calls on a daily
basis in my district, in Florida's 26th District, asking for
help because of these backlogs.
And to add to this problem, the administration seems to
have designed a process where individuals appearing in
immigration court face a staggering lack of access to counsel.
Only 37 immigrants appearing before an immigration judge are
represented by an attorney.\1\ Matters are even worse for
immigrants caught in the Remain in Mexico program, or those who
are transferred hundreds of miles away by ICE, far from their
attorneys. Lawyers are simply unavailable. They can't travel to
these remote locations to represent their clients, undocumented
immigrants.
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\1\ Representative Mucarsel-Powel requested this be changed to:
``Only 37 percent of immigrants appearing . . .''
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This lack of counsel is not only limited to adults. A
majority of children in removal proceedings are also not
represented by counsel. Unaccompanied children, regardless of
their age, are simply not entitled to an attorney. The system
is vast and complex, but it is completely absurd and
incomprehensible that a child is expected to appear in court
without the representation of a lawyer and plead his or her
case. I don't understand what is happening in this country.
It's truly appalling.
What we're talking here is having immigrants have their day
in court, they are trying to follow our rules, they're
following the law, they're working through the process. Most
are doing everything possible with the tools that they have
available to follow the laws. And what we're seeing is that the
system is built to work against them. They're stuck in limbo.
They don't have the opportunity for basic due process or even
to present their case because of this administration's anti-
immigrant policies and the failure to effectively govern our
immigration court systems.
So I want to start with Mr. McKinney. Almost 1 in 10
immigration court cases, 1 in 10, involves an unaccompanied
child. Despite this, a majority of unaccompanied children in
removal proceedings simply don't have representation. They
don't have a lawyer. Mr. McKinney, in your view, how difficult
would it be for any individual, an adult or a child, to work
and navigate this process without an attorney?
Mr. McKinney. Thank you for your question. Almost
impossible. And let me describe to you the current system when
a child is involved. A couple of years ago, I received a phone
call from an immigration judge. Now, he had cleared this with
the trial counsel for Homeland Security before calling. There
was a 5-year-old in the backseat of a car and there was an
accident and the mother died, leaving this child an orphan and
in the custody of North Carolina Department of Social Services.
And he didn't have an attorney. And so the only system we have
in place right now is a phone call from an immigration judge
asking if I would agree to do it pro bono or could find someone
that could help.
That's unacceptable. That should be offensive to every
American that we have a system like that. And I think that
we're starting to see strides in the area of respondents with
mental health problems, but youth, juvenile status is another
form of incapacity, and I think that's a great place to start
in making sure.
Counsel--access to counsel is a win for everyone. In
absentia rates drop to about 3 percent when a person is
represented by an attorney. Cases are presented properly. When
someone doesn't have a case, they have an attorney to tell them
that. It's a win for everyone.
Ms. Mucarsel-Powell. Thank you. And can you explain a
little bit how the systems that have been implemented by this
administration for immigration courts make it more difficult
for children to find legal representation?
Mr. McKinney. Absolutely. Well, first of all, this
Department of Justice attempted to end the legal orientation
program, but, fortunately, was halted by Congress. Too
oftentimes we see these courts located in areas where there
just simply aren't enough attorneys available, and at the end
of the day, it is not free. Private attorneys have to charge.
There's no system of legal aid or legal defense for
respondents, and children, of course, aren't wage earners, so
it's an area in desperate need of reform.
Ms. Mucarsel-Powell. Thank you, Mr. McKinney. One last
question----
Ms. Jayapal. The gentlelady's time is expired.
Ms. Mucarsel-Powell. Oh. Thank you, Madam Chair.
Ms. Jayapal. Thank you.
I now recognize the gentlewoman from Texas, Ms. Jackson
Lee, for 5 minutes.
Ms. Jackson Lee. Let me thank the witnesses, and thank you,
Madam Chair, for the opportunity.
Let me, first of all, pose a question to Judge Tabaddor on
possible solutions to what I've been hearing and what I'm
reading and what I'm experiencing. I noted that the thousands
of cases are mostly in jurisdictions, San Francisco--I think
San Francisco and New York, but includes Houston, five top
areas where asylum cases are. And we know that there's a
question of overload. I also know that there's a question to my
immigration friend lawyer there that we're questioning the kind
of experience that immigration judges are now being appointed
with; meaning, individuals are being appointed with no
experience in immigration law at all.
But my interest is your thoughts about creating an
independent executive branch agency or Article I court. I know
you've discussed it, but I'd like to ask that to Judge Tabaddor
and Mr. McKinney.
Judge.
Ms. Tabaddor. Thank you, Representative. As we stated,
there are a number of components that are important in
considering why an Article I court would be a solution for the
issues we're facing. You've highlighted the issue of the
immigration judge selection. While we have amazing judges on
the bench, if you look at it, the diversity of professional
background and personal background is lacking. So one of the
issues has been the integrity and the respect that the bench
would--the bar would have for the bench, because when they look
at the bench, they only see a very sliver of the larger pie on
the bench, and that compromises the respect and the integrity
of the court.
And then we've seen, as you've mentioned, a lot of
questionable hiring, particularly in the area of management
positions for immigration--for the immigration court, the
assistant chief immigration judges. We're seeing people who are
being chosen to supervise immigration judges who've never been
on the bench, much less been immigration judges or they've been
immigration judges for a second. You know, let's say just a few
months before they're elevated.
Ms. Jackson Lee. You would prefer the Article I courts?
Ms. Tabaddor. Absolutely, because it would allow for a
degree of accountability on both merit and as well as the
diversity of personal/professional background.
Ms. Jackson Lee. Hopefully with a change of administration
that might be accurate.
Mr. McKinney.
Mr. McKinney. Representative Jackson Lee, I would argue
that we need a change to the statute, because the problems with
politicized hirings and judges having very similar government
backgrounds was a problem in past administrations as well. I
remember conversations with the late Director Osuna about this
problem, and his response was, well, government attorneys tend
to go through security checks quicker, government attorneys
tend to want to stay in government. And so those are two
drivers for why so many of the judges have this ICE attorney
background.
Ms. Jackson Lee. So my time is going. You want to just say
what you would prefer.
Mr. McKinney. What we need is an independent court where
you have experience requirements for the judges and you have an
advisory panel that's providing some guidance, and that panel
is made up of a mix of different backgrounds.
Ms. Jackson Lee. Thank you.
Let me focus on the asylum, which is now, I believe, in
shambles, not because of the excellent persons that are
working, including judges, committed judges, committed
immigration lawyers. But let me wrap this question in, and I'm
going back to the two of you for the answers.
I met with immigration judges this past week, and this does
tie in to administration. They were disturbed because they were
not able to meet with immigration services like they used to
locally to get notice about things, changes and all, everybody
was shut down. They weren't able to meet with ICE. This is not
on a particular case. I'd just be interested, Mr. McKinney, if
you find that to be the case.
But the real question I'm asking is the shambles of asylum
and the process of Remaining in Mexico program, how that has
impacted the hearing process, the denial process. Sixty percent
denial in asylums or more. If you would in the short time, 33
seconds, so if you would take just a moment, Judge, and just a
moment, Mr. McKinney.
Ms. Tabaddor. Just a quick point on that. I can tell you
that my colleagues at the border are absolutely overwhelmed by
the sheer number of cases that they are being told they have to
process on a daily basis, up to 100 or 120 cases a day, without
support staff, without filings, without an ability to be able
to directly reach out to the individuals.
Ms. Jackson Lee. Thank you.
Mr. McKinney. And there's no reason for people not to be
able to sit in the court when there's an asylum hearing, but go
right ahead.
Mr. McKinney. With the permission of the asylum seeker,
there should be no problem with that. Just imagine you're in a
situation with a small tent, looking at a TV camera or a TV,
it's almost Orwellian in an approach to persons seeking
protection from persecution or torture.
Ms. Jackson Lee. Thank you.
Thank you, Madam Chair. I yield back.
Ms. Jayapal. Thank you. The gentlelady yields back.
I now recognize the gentleman from North Dakota for a
unanimous consent request.
Mr. Armstrong. Thank you, Madam Chair.
I ask unanimous consent to enter the following into the
record: Report of proceedings of the Judicial Conference of the
United States, dated September 13, 2016, reaffirming its
position that the immigration courts not be placed in the
judiciary branch; chart from the Executive Office for
Immigration Review showing the skyrocketing number of cases in
the uptick and completions under the Trump administration;
chart from the Executive Office of Immigration Review showing
skyrocketing number of asylum applications immigration courts
since 2016; and the chart from EOIR showing 80 percent of cases
over the course of a year are represented by counsel.
Ms. Jayapal. So ordered.
[The information follows:]
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Mr. Armstrong. Thank you, ma'am.
Ms. Jayapal. I now recognize the gentlelady from Arizona,
Mrs. Lesko, for 5 minutes.
Mrs. Lesko. Thank you.
I apologize I couldn't be here to hear all of you. I was in
another committee hearing where we had votes on bills, so I'm a
little disappointed in that. But I do have a couple questions
for our witness, Mr. Arthur, I believe. Mr. Arthur, thank you.
Mr. Arthur, are you aware of any effort by the EOIR under
the Trump administration to tell immigration judges how they
should rule in a particular case?
Mr. Arthur. No, I'm not. And, in fact, if you look at the
asylum grant rates for 2019--fiscal year 2019 versus fiscal
year 2018, they're almost identical. I think it's 20.25 versus
20.51. And the grant rates for asylum are actually higher in
fiscal year 2019 than they were in fiscal year 2017. I think
fiscal year 2016 as well.
Mrs. Lesko. And, Mr. Arthur, would you agree that it is
really the underlying problems of all of the rush of people
coming, especially from Central America, the families that are
causing this backlog, not necessarily procedural type things
within the courts?
Mr. Arthur. Actually, I would, Mrs. Lesko. And let me just
make a very important point. Asylum is probably the closest
thing that we have in Federal law to an almost sacred trust. It
is the United States Government putting the cloak of protection
over a person. It's absolutely crucial that good cases get
heard, and what we need to do is diminish the number of bad
cases.
EOIR issued some statistics on family units for selected
courts, 10 selected courts. I don't know how represented they
are. Family unit cases showed a 69 percent in absentia removal
rate with respects to initial case completions. Now, that
suggests to me that those individuals never actually had good
asylum claims to begin with or any asylum claims to begin with
at the time that they entered the United States. Absolutely
crucial that we protect people who need protection, protect
their loved ones abroad, so we've got to get to those good
cases and eliminate the bad.
Mrs. Lesko. And I've got a couple more minutes, so, Mr.
Arthur, are you aware of the ABA report on the state of
immigration courts?
Mr. Arthur. I am aware of it, yes.
Mrs. Lesko. Do you believe that the report accurately
reflects the state of immigration courts as inherently lacking
in the ability to provide due process to litigants?
Mr. Arthur. I would not. And actually the word ``due
process'' was used previously. I would note that due process is
not a fixed term. It's the process that is due. So it varies
from tribunal to tribunal and to the degree in which--to the
application that someone's making.
So with respect to asylum, I commend Judge Tabaddor, who
I've known for, I think, two decades, and my former colleagues
on the bench, for their ability to provide due process to the
individuals that appear before them. Again, Mrs. Lesko, keep in
mind, Congress has had 180-day timeframe for the adjudication
of asylum applications. This is nothing that this
administration, nothing that EOIR has done. So the Department
finds itself between the Scylla and Charybdis, between
complying with Congress and actually getting the cases done.
If we cut down the backlog--or if we cut down the number of
people who enter the United States illegally and make
fraudulent claims or make nonmeritorious claims, the quicker
we're going to be able to get to those good claims.
We heard from Mr. Neguse earlier. I mean, that was a
touching story about how his family came here as refugees.
That's what we need to do. That's what we should be doing as a
country, but what we have to do is we have to cut down the
number of people who are going to come here and make fraudulent
claims.
Mrs. Lesko. And thank you for that. I have introduced six
bills myself to try to get at the root of the increase in the
immigration crisis. Unfortunately, none of them have been
heard. One of them would increase the number of immigration
judges, and I was hoping that my Democratic colleagues would
join me on that, because I also serve on the Rules Committee,
where at least two of the members have said that that was a
good idea, including, I believe, the chairman, if my memory is
correct.
And would that help the problem, increasing the number of
immigration judges?
Mr. Arthur. Absolutely. We probably need about 700
immigration judges to take care of the issue. We're at 465
right now. So we have about 235 to go, and even then, there's
going to be a lag time in hiring.
Mrs. Lesko. Thank you. And I yield back.
Ms. Jayapal. The gentlelady yields back.
I now recognize the gentlewoman from Pennsylvania, Ms.
Scanlon, for 5 minutes.
Ms. Scanlon. Thank you, Madam Chair.
We've heard some assertions today that the high backlog of
immigration cases is due to some extraordinary number of
undocumented immigrants either crossing our border now or being
in the U.S. entirely, although both those numbers have dropped
in recent years. We've also heard a suggestion that the failure
of immigrants to appear for hearings is causing this backlog,
and that's just flat-out wrong. I mean, the statistics show
that--actually, the data shows that appearances have--the
percentage of appearances have increased over time. And to the
extent that the administration argues otherwise, that's because
data has been manipulated to produce what one of my colleagues
referred to earlier as lies, damn lies, or statistics. So I'd
like to ask unanimous consent to introduce this Human Rights
First report on immigration court appearance rates.
Ms. Jayapal. Without objection.
[The information follows:]
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Ms. Scanlon. Okay. Now, that report talks about a couple
factors that I'd like to dig into a little more. One is the
impact of lack of notice on people appearing for their
hearings, and the other is the impact of access to counsel.
So, Judge Tabaddor, I know you're aware of a case that was
infamous in Philadelphia a few years back where we had an
immigration court judge who used a procedural tactic to delay
an immigration case because the person in that case had not
received notice of the hearing. So rather than deport the
person for not showing up for a hearing that they had no notice
of, the judge delayed the case, and it's my understanding that
the case was then taken away from that judge and given to
someone else who did deport that person.
Can you comment on that case and how it relates to this
issue of your taking away judges' discretion and pressuring
them to deport people?
Ms. Tabaddor. Yes, thank you. We've talked about the use of
certification process in a politicized manner, and one of that
has been taking away the judges' authority to administratively
close a case, which is to put it aside until the issue that
needs to be resolved is resolved. And my colleague was
concerned about the issue of notice of an unaccompanied child.
I can tell you that we started the Van Nuys immigration court
just less than a month and a half ago, and for the entire month
of January, we have cases that have been put on our calendar
where I come to courtrooms that are half empty and realize
that, actually, the notices were not sent out, even though we
were told that notices had been sent. I also see regularly now,
because they want to move up the cases, cases that have been
scheduled for future dates are being moved up and people
don't--it creates confusion as to the issue of notice.
So we have absolutely seen the problematic nature of
dealing with the court as sort of a factory model of constantly
moving the pieces and then expecting the court to function
normally.
Ms. Scanlon. And expecting people who are subject to
hearings to be able to show up if they don't know a hearing is
coming.
Ms. Tabaddor. Absolutely.
Ms. Scanlon. Okay. I mean, this is a little bit personal.
I've had a couple of immigration cases, and there was one that
for 6 years the court couldn't or ICE or whomever couldn't seem
to give me notice of when my client's next action was due,
despite filing multiple notices of appearance. So it's kind of
a systemic issue.
The other factor that plays heavily into whether people
show up for their hearings is whether they have counsel. So,
Mr. McKinney, I wanted to talk to you a little bit about that.
I have some familiarity with the facility in Lumpkin, Georgia,
the fact that it has the highest or it did at one point have
the highest deportation rate in the country. About 98 percent
of the people going to Lumpkin would get deported in large part
because they didn't have counsel.
Are you familiar with the reports that at least one
American citizen was deported from Lumpkin?
Mr. McKinney. Yes. That was a North Carolina U.S. citizen,
and I was a local counsel in the civil suit that followed once
that person was finally returned home by a sympathetic consular
officer overseas.
Ms. Scanlon. And, similarly, there are people there who
have had what have been termed good asylum claims, credible
asylum claims, that they would be subject to death if they were
returned home to their countries, and without counsel, they
were, in fact, deported and were, in fact, killed when they
were returned to their home countries. Is that correct?
Mr. McKinney. Absolutely. There have been a few studies on
this. One shows that there's at least a--a respondent is 14
times more likely to gain relief if that person has counsel.
And it makes sense, because a knowledgeable and effective
attorney will know how to present a case and know when a case
is bad also, Representative, so it's really the key ingredient.
But I can't even--I mean, when I have a case in Lumpkin, I have
to go from North Carolina, fly to Atlanta, rent a car, stay in
Columbus, drive another 45 minutes south, and pray that I will
get a waiting room, with the limited resources they have, to
meet with my client. It's really a mess.
Ms. Jayapal. The gentlelady's time has expired.
Ms. Scanlon. Okay. Thank you so much.
Ms. Jayapal. Thank you.
Without objection, I request that the statements from the
following organizations be included in the record: American
Immigration Council, Center for Gender and Refugee Studies,
Coalition for Humane Immigrant Rights, the Constitution Project
at the Project on Government Oversight, Florence Immigrant and
Refugee Rights Project, Human Rights First, Human Rights
Initiative of North Texas, Kids in Need of Defense, law firm of
Hassan M. Ahmad, National Immigrant Justice Center, National
Immigration Forum, New York City Bar Association, New York
Legal Assistance Group, Refugees International, Roundtable of
Former Immigration Judges, Young Center for Immigrant
Children's Rights, joint letter from Innovation Law Labs,
Southern Poverty Law Center, Las Americas Immigrant Advocacy
Center, Santa Fe Dreamers Project, and Catholic Legal
Immigration Network.
[The information follows:]
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Ms. Jayapal. This concludes today's hearing. I would like
to, once again, thank all of the witnesses for your compelling
testimony and for participating in this hearing.
Without objection, all members will have 5 legislative days
to submit additional written questions for the witness or
additional materials for the record.
Without objection, the hearing is adjourned.
[Whereupon, at 11:03 a.m., the subcommittee was adjourned.]
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