calling on chairman royce to the committee. >> i thank you, chairman. the foreign committee ranking member and i passed the preserve cultural property act and the goal there was to deny funding to isis. but also, to improve our ability, our government's ability to work with 0 your partners in syria and in iraq. and since that time, since that time, and i was at the iraq museum last year, we've seen-- >> we're leaving this program now to join a conversation on immigration and the backlog of cases in the u.s. court system. this is live coverage of the center for immigration studies on c-span2. >> it seems like the kind of thing that would be inside baseball for immigration experts, but the backlog in immigration courts has grown quite dramatically and that's gotten the attention of regular

mainstream media, and there's a variety of issues here. what's causing this backlog and what kind of possible solutions there are, and in order to address that question, we've called this panel initially to discuss a paper that the center for immigration studies published specifically on this issue. the causes and possible solutions for the backlog. and the first presenter on the panel today is going to be author of that paper, andrew arthur, a former immigration judge, is now resident fellow in law and policy at the center for immigration studies. he also has worked as a senior staff member in a couple of congressional committees and in the ins before that. he's seen the immigration issue from almost all sides. after mr. arthur is finished we'll have some comments, both on his paper, which is outside

for those of you who don't have it, as well as just more general thoughts about the issue of dealing with the immigration courts. we are going to have two people who are experts in this issue. first will larry berman, secretary treasure er immigratin judges. >> ises that sugge-- and suggests he's an immigration judge, and then another from the justice department, civil rights division, has worked on election law and the whole variety of legal issues and actually has a paper upcoming on the issue of immigration courts. so, i'm looking forward to hearing from everybody's comments and we're going to have a q & a after that, and so, art, if you want to start. >> thank you. before i begin, i do want to make one comment that we're going to talk a lot about the executive office for

immigration review, and last week, unfortunately, the former director of-- juan passed. and he was a friend of mine for more than a decade. he was a good public servant. he died unexpectedly at a rather young age and i did want to note his passing before i began. on june 1st, the government accountability office issued its long awaited report on the management. that report revealed a significant decline in the ability of the immigration courts, which were a component of the eor, the complete cases, over the last ten years. jo found the immigration court backlog, case froms previous years that remained open from the start of a fiscal year, that more than doubled between

fy 2006 and 2015. the backlog from 212,000 cases starting 2006 when the median pending time for those cases was 198 days, to 437,000 pending cases at the start of fy 2015, when the median processing time was 404 days. unfortunately, these backlogs have real world consequences for both the government and for the aliens who were affected. as jo found, quote, some immigration courts were scheduling hearings several years in the future, in fact, reported that one court had master calendar hearings, your initial arraignment in the immigration context, scheduled in may, 2021, more than four years if in the future. one court scheduled individual hearings, which we also call merit hearings in immigration cases when your case is finally decided, five years into the future until february of 2022, which means that you're going

to go to court for another five years. these delays mean the government may have to wait years before they can actually get a removal order for an alien who is prima faeca, and they may stay in the united states during the period of the backlog. as for an alien eligible for relief and interested in bringing relatives to the united states, the alien has to wait that period of time until a final order can be issued. this can be especially problematic for an individual who is filing a climb and may bring the relatives to the united states out of harm. the backlog has not resulted from an increase in new cases in the past ten years, new case receipts declined from fiscal year 2009 to about 202,000 new cases in fiscal year 2015.

so, backlogs increased, but we've seen a decrease in new cases. what did increase during this period of time, other case receipts, motions to reopen, motions to recalendar, 86%, increas increased. motions for aliens under orders of removal and matters that are administratively closed and larry may touch on that more, that's when a case has been taken off the court docket. these cases are actually, you know, cases that have more or less been decided or pending out there, that are just lumped again back onto the backlog. new case receipts fell, the immigration courts were actually completing fewer, and this is where the delta comes in. incredibly jo found the number of court cases annually declined by 31% from fiscal year 2006 to fiscal year 2015

from 287,000 cases completed in fy06 to 199,000 in fy 2015 even as number of ig's increased 17%. more judges, fewer cases getting decided. the other issue is that many of those so-called completed cases were not actually completed on the merits. those were administrative lly closed, taken off the court document and though resolution was made on that. merit decisions were originally 95% of the total in fy06 went down to 77% by fy 15. 23% were sort of pushed off to the side by the time being. the question is, if the number of judges increase and number of cases filed decreased, why is the backlog growing? according to. gao, the reason it's taking longer for decisions. average period between the filing of a charging document

and ij with a decision, five felled between ny '06 and fy 15, and median completion from 43 days in fy06 to 286 in fy 2015. all of this, however, begs the question why it's taking so much long tower-- longer to complete. continuanc continuances, you go to court, you ask for time for relief, your case is continued. ask for time to file an application, your case is continued. these are continuances taking place and increase of cases with multiple continuances, significantly. the number of cases with four or more continuances increased from 9% in fy 2006 to 20%. one out of five cases had more-- four continuances are more by fy 2015.

there are several reasons why the immigration courts are in this position. several reasons why the court should begin to get a handle on and decrease the backlog in the next few years. the first is resources, simply put, there are too few people like marry for the number of cases that isis filed with the immigration courts. today 334 immigration judges handling more than 610,000 cases or about 1800 cases per judge. when a judge has a docket that large, cases must be set out for an extended period of time and often becomes more efficient to grant a weaker motion to continue than it is to enable the judge than to focus attention on cases that are ripe for decision. the good news is that the attorney general has promised, has recognized this problem and promised to hire 125 new judges within the next two years, and in fact, attorney general sessions has begun to deliver. 21 new judges have been sworn in just since june 16th of this

year. another major reason for the backlog was the surge of so-called alien monitors, family units that began in fy 2014. in the course of just one year between fy 13 and fy 14 number of minors apprehended increased by 76% and number of aliens and family units increased 360%. while many reasons for this increase have been advanced, i believe the most significant was word of mouth. people called back to the home country and said, look, i came to the united states, they let me into the united states, and they released me. part of it was also lies told by smugglers who said if you come to the united states you're going to get permission to remain in this country. smugglers want to make money and there's no better way to do it than by promising something to potential clients. and these new cases strain the court dockets for two reasons,

first, ior decided to priorize the new cases, and pulled judges off pending cases and put them on cases involving children and family members. there were cases ripe for decision that had to be pushed back because the judges were reassigned. the other reason, the cases involving children and family members are generally more complex than cases involving single adult males. it's been my experience the single adult males have come to the united states to work and if they're caught and detained, they just go home. take a removal or voluntary deporres tur. when you're talking about a minor, however, the minor asks for a hearing depending on the age of the minor, you may have to grant multiple continuances in order to find a lawyer and claims are more complex, the claims advanced by the individuals are generally more complicated than asylum claims made by single adult males.

and the obama administration, an action program for minors, and lawful permanent residents, led to multiple continuances as aliens requested final to explore such relief and to apply for the relief and again, that slowed up the docket even more. these weren't the only obama era policies to have deleterious effect on the back logses in the immigration courts. beginning in 2011, ice put in place prosecutorial discretion guidelines toize-- pri priortize cases. and they would make sure that cases that weren't priorities weren't on the docket. basically what that did, it took attorney time that could have been spent completing cases and put it through reviewing cases which just slowed up the process even more.

this effort reached its apex in november 20th, 2014 memo from homeland security, secretary jay johnson, policies for the apprehensi apprehension detention and removal of undocumented immigrants. >> and those were to priortize, and increased the caseload and isis attorneys-- ice's attorneys, and they would have to review the file and talk to attorneys and move to administratively close or to bring the case in order in order to have it decided. and it was a mess. these policies also made it clear that the administration did not consider the removal of any, except for the most serious of cases to be appropriate, placing i j's sworn to uphold the law in a bind. it gave aliens with nonmeritorious claims incentive

to fight their cases and this clogged the courts even more as those nonmeritorious cases continued. people who normally would have taken an order of removal, asked for continuances, hoping that their case would be one of the ones that would be taken off the docket because it wasn't a priority. the new administration has taken a different tact from the obama administration. president trump made it clear that he intends to enforce the immigration laws against all those who are removable and so have his subordinates, and to expand attention. this offers more clarity to i j's and removes incentives for removable aliens who do not have relief to fight their cases. in fact, we've seen the number of orders of removal increased by 27.8%, between february 1, 2017 and july 31, 2017, compared to the same period in 2016. so, again, more people are being picked up who don't have relief and are actually being

ordered removed by the courts. two other factors have also increased the backlog, activist federal court judges further complicated the or the torturous process ij plus ask whether certain conditions render alien's removal. in the 9th circuit, a series of decisions increased the number of alien for relief. they encourage frivolous claims and remands and settled cases. i fully expect that attorney general session will more litigate cases in front of the federal courts than the last two predecessors did, to provide better guidelines to i j's and bring down the backlog. and finally they need better guidance when it comes to the continuances. some aliens seek multiple

continuances for counsel and some for file preparations and applications. there's little downside for judge who grants continuances, because such could be appealed. they're interlocktory. there's tremendous reputational damage that can occur when such is denied. and there was a case ij denied due process to an alien denying continuance even in a case where multiple continuances had been already granted. on july 31, the good news, there was an operating policies and procedures manual oppm to curb the number of continue tanses by providing such guidance. i fully expect attorney general sessions to follow up on this and use his authority to issue

decisions that will help to clarify better when judges should and should not grant continuances. in summary, the immigration backlog is too large. in the short runny inspect it to increase as the trump administration seek to remove aliens who have little to fear under ice under the prior administration. in the longrun, however, i believe that the president's policies and those of his subordinates will reduce the backlog to more manageable level. thank you. >> thank you, art. larry? >> first, the disclaimer, which is important so i don't get fired. i'm speaking for the national association of immigration judges, of which i'm an elected officer. my opinions expressed will be my own opinions, and formed by many discussions with our members in all parts of the country. i am not speaking on behalf of the department of justice, department of immigration review, the chief judge or

anybody else in the government. that's important. what is the naij. national association of immigration judges, we focus on due process, transparency for the public and judicial independence. we're oppose today interference by parties of both administrations with the proper a and-- we've had just much as trouble with republican administrations as democratic administrations. it's been my experience that the people at the top really don't understand what we do and consequently, the decisions they make are not helpful. for example-- well, let me backtrack a little bit and talk about our organization. immigration judges are the

basic trial judges that hear the cases. above us is the board of immigration appeals who function as if they were an appellate court. we, since 1996, have been clearly designated as judges by congress. we are in the statute. we have prescribed jurisdiction and powers and congress even gave us contempt authority to be able to enforce our decisions. unfortunately, no administration has seen fit to actually give us the contempt authority. they've never done the regulations, but it's in the statute. the board of immigration appeals is not in the statute. it has no legal existence, really. it's essentially an em nation of the attorney general's discretion over immigration law. the members of the board of immigration appeals are in some cases they've got some experience, generally they don't have very much.

they're a combination of people in the other parts of department of justice and deserve a well-paid position. very often, their staff attorneys who have basically moved up to become board members skipping the immigration judge process. very few immigration judges have ever been made board members and none of them were made board members because they had been immigration judges. if they were, it was largely a coincidence. the administration of the executive office for immigration review which we are housed, is basically an administrative agency. we are judges, but we don't have a court. we operate in an administrative agency that's a lot closer to the department of motor vehicles than it is to a district court or even a

bankruptcy court, article one type court. our supervisors, i'm not sure why judges need supervisors, but our supervisors are called chief immigration judges. some of them have some experience. some have no experience not only as judges, but really, as attorneys. they were staff attorneys working in the bowels of eor and gradually temporary board members and then permanently board members. interestingly when a court of appeals panel is short a judge, they bring up a district judge. eor used to do that bringing up a district judge to fill the pa palm-- panel in the board. they don't do that. they appoint the staff members as temporary members which is shocking when we tell judge to that, and when the panel was short and put the law clerk on the panel.

that's what goes on. the top three judges until recently, the chief judge and the two primary deputies had no courtroom experience that i'm aware of. the two of them have gone on, unfortunately one has gone on to be a bia member and the other retired. the-- our direct supervisors are the chief immigration judges, some are in headquarters and they generally have very little experience, others are in the field and they do have some experience, although, for example, the last two aci j's, assistant chief immigration judges who were appointed became judges in 2016 so they don't have vast experience, although they may be fine people with other forms experience, but this agency is not run by experienced judges and i think it's important to understand that. there's a severe misallocation

of resources within eor. i think that congress has probably given us plenty of money, but we misuse it. in the past administration, the number of senior executive service, ses officials has doubled. maybe they needed some more administrative depth, although i doubt it. the assistant chief immigration judges are proliferating. i think there's 22 of them now. these are people who may do some cases, some do no cases, they generally don't move the paul when it comes to adjudicating cases. somehow the federal courts are able to function without the intermediaries and supervisory judges and they think we function without them as well. to give you a few examples, i

could give you a thousand examples, if you want to stick around, i'll be happy to talk about it. art was talking about the juvenile surge. i think it was approximately 50,000 juveniles came across the border. to appear to be tough, i guess, they were priortized. the official line is we are going to give them their asylum hearings immediately. i'm not sure what kind of an asylum case a six-year-old would have. we do -- we would do the case and basically it's a meet and greet. the judges are not-- first of all, i'm not allowed to be a juvenile judge. the juvenile judges are carefully selected for people who get along well with children, i guess. really, what they do, is they just, they see the kids periodically and in the meantime, the children are

following their asylum cases with the asylum office where they're applying for special immigrant juvenile status, various things, but judge time is being wasted on that. another example is the current surge. i have a really busy docket. we talk about cases being scheduled in 2021. the backlog for me is infinite. i cannot give you a merits hearing on my docket unless i take another case off. my docket is full through 2020, and i was instructed by my chief immigration judge not to set any cases past 2020. so they're just piling up in the ether somewhere. as busy as i am, they send me to the border, but these border details are politically oriented. first of all, we probably could

be doing them by televideo, but assuming they want to do them in person, you would think they would send only the number of judges that are really needed, but in fact on my last detail of ten business days, two week detail, two days i had no cases scheduled at all. and back home, having two cases off the docket which almost never happens, two days off the docket which almost never happens would be useful because i could work on motions and decisions, but when i'm in gina, louisiana, i can't really work on my regular stuff. so, i'm just reading e-mail and hanging out there. the reason for that is because there's been no attempt to comply with the attorney general's request that we rush judges to the border with at the same time making sure there's enough work or not to send more judges than is necessary to do the work.

i assume that people that run our agency just want to make the attorney general happy and they send as many judges to the border as possible. one particularly bizarre example was in san antonio. the san antonio judges were doing a detail to one of the outlying detention facilities by televideo. and to-- but they want today rush judges to the border so they signed a bunch of judges that had their own docket to take over that docket on one week's notice. that meant that the judges in san antonio couldn't reset the cases you've got to give at least ten days notice of a hearing by regulation. so we had judges taken away from their regular dockets to do that. judges normally who would have done that, who were already on the border, san antonio is pretty close to the border, didn't have anything to do.

this may be extreme cases and it happens too much because of political interference and it's nothing to do with party. we've had the same with democratic and republican administrations. it comes from political decisions and enmating the process and they don't understand what they're managing, just an attempt to placate the guy on the top. so, that's basically what's been happening. am i over my ten minutes here? >> yeah, but you're right at it. you've got a couple more minutes, that's fine. >> let me just go over some possible suggestions. let judges be judges. immigration judges that control their own courts and documents. we should be an i believe to supervise our own law clerks and assistants which currently we don't, and the authority we were given in 1996 should finally get some regulations to implement it.

ev ever-- overhead needs to be reduced. when it was originally set up the idea was that each judge would need three legal assistants to docket the cases and find the files and make copies and all of that. at one point last year, we were down to less than one legal assistant per judge. in arlington, where i am and in los angeles it was even worse. when you do that, the judge is looking for files, the judge is making copies, the judge doesn't have the evidence that's been filed, there's nothing more annoying than to start a hearing and to find that evidence was filed that i don't have. the case has to be continued. i have to have a chance to find the evidence and review it. it would be nice if our management were more experienced than they are. at least have some more courtroom experience.

we need an electronic filing system like the other courts have. that's someone thing that mchenry said was priority and i think he will a he -- he will take care of it: bia is a problem. they don't have the experience that the federal courts would defer to. consequently, i think a lot of the bad appellate law art was referring to is the fact that bia really doesn't have any respect in the federal court system. ...

they don't ever have to take credit for the decision that they make. i assume that's why they're doing it. try to make us do it. we need a proper judicial disciplinary system. starting in 2006 which is where the backlog problem began, the attorney general for small subjected us to annual appraisals, evaluations which previously opm had waived due to our judicial function. so that's a waste of time. judges were punished for things that are not punishment. judges were punished because a court of appeals would say that you made a mistake or he was rude. it's just crazy. judges were punished or could be punished for grading, for not cranking continuances. no judge was ever punished for

any continuance. so it's no surprise as appointed at continuances have been granted at a much greater level. in fact, too great a level. but when in doubt we continue now because if we don't do that with subject to punishment and nobody really wants that. finally the ultimate solution i think is an article one court like the bankruptcy court, a specialized court could be into judicial branch, could be in the executive branch to give us independence, to ensure that we have judges, appellate judges were appointed in a transparent way, being vetted by the private bar, the government and anybody else. and i am way over my ten minutes so i will be sure to babble on later if you want me to. >> thank you, larry. hans. >> thanks, mark. i'm a senior legal fellow at the

heritage foundation. i was asked to take a look at arts people which is very good people on the problems inside the immigration court some going to talk about that a little bit and then talk a little bit about a couple of other recommendations that i have on this issue. but we need to understand the numbers. art has done a very good job of going through the huge backlog of cases in immigration court, have increased significantly during the obama administration, how not only did the backlog of cases increase, but most significantly the time needed to complete cases went up in a huge amount. it's important for all of you and for those watching this on c-span2 understand that the immigration court are not article iii federal courts. they are administrative courts within the us department of justice. we have similar courts in other

executive agencies, people who come for example, get into disputes over social security disability benefits know that the interview for an administrative judge and social security administration. so we have two levels within the department of justice. we have the immigration judges who act as trial level judges and her cases and demand the board of immigration appeals that judge burman has mentioned the bia procure two levels of courts. it's important for everyone to understand that aliens have very extensive due process rights in those courts. i think the last time i looked at the manual, describing the procedures for the immigration courts, it was over 200 pages. and not only do they have all kinds of rights that we would expect that u.s. citizens have, everything from the building to be represented by counsel, they have the right to see the evidence against them, et cetera, et cetera. there's a whole extensive set of due process rights and that's

important for people to understand. these are not kangaroo courts at all. aliens have extensive due process rights, and that's important for everyone to understand. art has gone through and defined the problem in the paper and he's come up with a recommended set of solutions, all of which i agree with. more resources are needed. more judges, more staff. the attorney general has already taken good steps towards that. it's not just that they need new staff, but something else the attorney general says is also important, which is to speed up the process of approving individuals who are going to be judges. speed is very important in this process. one of the point art makes in this paper which is important is the change in border policy and its effect. because the whole point of having an administration who makes it very public they are actually going to enforce

immigration laws, which prior administration make clear there were not going to do, is that as a deterrent effect. anyone who doubts that can look at the numbers, the number of people trying to cross illegally across the border since the trump administration started has dropped dramatically. the last time also the numbers was like 60%, over 60% down. that is important because the less people you're trying to get into the country illegally, the long-term effect on that is to reduce the number of cases in the courts. one of the other problems we haven't talked about today but is an important one is that we also have had the significant problem of unenforced removal orders. once this process has been completed and there's actually, a final decision by an ij, immigration judge and board of immigration appeals, and a removal order is issued, those

over to the department of homeland security for enforcement. and as of may, 2017 the number of unenforced removal orders was 953,000. a huge number. why? because the prior administration didn't really want to enforce these removal orders and so he let them pile up at dhs, and that's something that this administration has got to do something about. but the deterrent effect is very important. another number that i found was from 2009- 2013, so basically during the obama administration, 95% of aliens deported were criminal aliens. so in essence people knew that if you got in the country illegally, unless you broke another law, you were not going to be removed by the administration. and the change in policy from this administration as art says in his paper, the change in an material enforce missing if you're in the country illegally,

you are not given immunity. that's important again to reducing the backlog in the court. by the way, the prior administration wasn't even very good at doing that. instead its priority was removing criminal aliens, the last numbers i saw were that large numbers of what i considereconsiders level one anl two offenders, i.c.e. has this categorization system for debate on how serious the crimes are that you committed, i'm not talking about immigration crimes, talking of the crimes committed when people are illegally in the country. level i, level two of the worst offenders. those are murderers, drug traffickers, kidnappers, sex offenders. in 2013 i.c.e. released 36,000 convicted criminal aliens pick in 2014 they released over 30,000 convicted criminal aliens, people have been convicted of serious crimes. since 2013 according to another

study cis did, there's a late 124 criminal aliens implicated in 135 killings after i.c.e. refuse to remove them. one of the other problems that they talk about is the continual and continuances given in these cases. here's the point that needs to me. all of these changes that help deter illegal aliens from coming into the country and staying in the country will help the situation in the court. but the other point that needs to be made is that illegal aliens, and uncle use the trip because that's the correct legal term, the term used by the court particularly the u.s. supreme court, they should not be given more rights than u.s. citizens. and there are a number of examples of that including in immigration courts that need to be changed.

for example,, as judge burman said, federal immigration law actually gives immigration judges the ability to impose civil sanctions, to enforce their court orders, to impose sanctions on those who might file a civil us claim -- frivolous claim come et cetera. issuing regulations outlining how those powers would be enforced. unfortunately no attorney general has ever issued those regulations, and it's impossible for us to have an orderly court system and less immigration judges are given the ability to do that the same with federal judges have the ability to do that. when people, you citizens like me, for example, appear in a federal court in that something that needs to be fixed and done immediately. another problem, and this is

something that again shows that aliens should not be given more rights, better conditions than your citizens. if i file a lawsuit, a civil lawsuit against the federal government in a federal trial court, and article three court, and i lose, i of course have the right to appeal the case to the court of appeals for whatever circuit i mean. aliens certainly have the same rights. they lose the removal case before an immigration judge. they have the ability to appeal the case to the board of immigration appeals. but as a u.s. citizen i have to pay the costs of my appeal. i have to pay a filing fee in the court of appeals. i have to pay for the cost of the records that will be set from the trial court up to the court of appeals. i have to pay for the cost of the transcript if that's necessary up to the court of appeals. however, as an immigration judge

testified before a judicial house judiciary committee meeting, this is judge, former judge michael heldman, he said why are there so many appeals? how many appeals are there? hang on one second. i had that number here. almost all of the cases that are heard at the ij level, overwhelmingly are appealed. that is not the way it works in the federal court and you would see that what is it 99% of cases at, from the trial level are appealed? that's because there's no cost to the illegal aliens. the filing fee is very low to file an appeal, it's $110

according to the judge's testimony before the house judiciary committee. however, the majority, in the majority cases that fee is waived by the justice department and the bia. second, the alien is in charge for copies of the record or for copy of the transcripts. all of these costs are paid for by the department of justice, and that means american taxpayers. so american taxpayers are subsidizing the appeals costs of all of these cases, something that doesn't happen in an ordinary u.s. citizen is involved in a federal lawsuit against the federal government and has to appeal his case. so there is absolutely nothing to stop the filing of frivolous and meritless cases. and, in fact, the judge's testimony before the house judiciary committee was that the vast majority of these cases were frivolous appeals filed

with the intention of simply delaying the removal of this particular alien. that's something that needs to be fixed. those costs should not be waived. the rules for that should be the exact same as in the federal court system. that's the fair thing to do and that something that needs to be changed. the other thing that is not mentioned that i think needs to be done is of this. the u.s. supreme court has said in numerous cases that, and i'll start with one called u.s. versus -- a 1950 case and it was a case involving the right of an alien to enter the country. here's what the supreme court said, quote, whatever the rule may be concerning deportation of persons who have gained entry into the united states, it is

not within the province of any court unless expressly authorized by law to review the determination of the political branch of the government to exclude a given ending. more importantly, the court emphasized this, if the due process rights of any such aliens are limited to quote the procedure authorized by congress. congress. what does that mean? it means illegal aliens do not have constitutional rights. and the only due process rights they have are those that congress gives to them in immigration law, and 100% of the authority for determining our immigration laws is given to congress. anything case in 1953, the court made it clear -- in a second case -- talking about standards of due process which they say do it to be given to illegal alien who the government is set to

deport. that only requires a hearing before an executive or administrative tribunal. in other words, they do not have to be given the right to go to court. they do have to be given the right to appear before an administrative tribunal which is a system that we have of immigration judges and a board of immigration appeals. now, congress in the immigration law some years ago limited the appeal rights of illegal aliens once they have completed the two-step process at the department of justice to only go into u.s. courts of appeal. they can't appeal to the federal district courts, which is usually what you' you expect toe happened. they can only appeal to the court of appeal. there's no reason for them to have that right. that is flooding the federal courts with meritless cases. the last numbers i pulled from the u.s., the additional offices

of u.s. courts is that over 80% of the appeals in the federal court of appeals system that are administrative agency appeals, in other words, appeals the decision made by a federal agency are these immigration cases. the vast majority of them are also frivolous, meritless cases. but there are enough of them that as art points out in his paper, in his discussion this morning, your federal judges anything with the decisions of the executive branch on aliens which is absolute the supreme court has basically said. in that supreme court case of 1953, the u.s. supreme court said that the due process, that the aliens are entitled to, requires only quote, an opportunity of some kind to be heard before such officers that are given the authority to act on the aliens claims.

one thing that ought to be done is at the very least what judge burman has said needs to happen, which is these appeals need to be taken away from all the federal courts of appeal and put into one federal court that only deals with immigration appeals, similar to the court of federal claims. there's already a precedent for this. i actually would take away completely right to appeal at the federal courts, allow this to stay within the ij system, the bureau of board of immigration appeals, the due process rights are extensive and, frankly, the federal courts do not need to be flooded with these decisions. i think that's actually a final change that needs to be made. thanks. >> thank you, hans. since i am paying for the mic i will ask the first question here and that is that a lot of the

work that the immigration courts are doing relates to an asylum claims. that's one of the ways that illegal immigrants, what are the chief ways illegal immigrants try to avoid being deported. are there changes in asylum law that could address, in other words, synergistic changes on the border would reduce the demand of the immigration courts, are changes in immigration law that would do something similar? >> book, these two, or judge a former judge need to answer that but i -- what i will point out is elastomers i saw estimated upwards of 80-90% of the as item claims are fraudulent claims. so there's very clearly a problem there. >> larry, you can go first. >> our association does not make recommendations as to the law. we went to -- to enforce the law whatever there is. i would always it might be nice

to clarify some things. for example, the law on aggravated felony right now is insane. there is no step in virginia anymore, for example, because the fourth circuit found the virginia statute includes fraud as well and so, therefore, it can't be theft and, therefore, can never be an aggravated felony. that doesn't make any sense, especially when it's different -- we don't really care what the law is between us want it to be enforceable. we wanted to make sense and we want to be uniform. >> i think that's a very important point that goes to directly to your question, that actually sort of aggravated the increase in credible pure claims is all on the board as well as unaccompanied alien minors and films. the law just isn't very clear on on the fate of the gangs. if you're afraid of the game jury member of a particular social group eligible for asylum or argue. -- aren't you.

if it's missing a domestic violence and your home country are you an individual who is a member of the particular social group or not? unfortunately the law on this is, it's time for the attorney general to step in and issue by certification bright line rules for judges to follow in these cases. we need to be clear about what being a member of a particular social group is. just i way of explanation, in order to receive asylum here to show persecution on account of your race, religion, national, membership of a particular social group or political opinion. four of those are very clear. i'm jewish or i'm not, i'm a christian or i'm not. but, unfortunately, membership in a particular social group has become a catchall that it was never meant to be. so consequently numerous claims were made that have to be heard all the way to the end that at the end of the day i never going to be successful.

it's crucial for the reason of the attorney general issued guidelines on certification. it's also crucial the department of justice argued his case it vigorously before the federal circuit courts. i think part of the problem we saw in the last administration is that, and i don't ever want to accuse another attorney of not vigorously litigating, but there were cases that probably could've been argued a little bit harder. there were arguments that could've been made in defense of certain decisions that simply were not there i suspect attorney general sessions is going to vigorously litigating cases in order to provide more bright line rules so that judges like judge burman don't have to issue a decision that then goes up on appeal that then goes up on another appeal, and possibly gets certiorari for the supreme court. so think that brighter line rules will be crucial. >> aas a quick follow-up to tha, it struck me that the very existence of that quote

particular social group unquote category is itself basically an invitation for activist judges, and whatever the attorney general does that would affect the immigration judges and the board of immigration appeals if it ends up going to the federal courts, then the judges just make up anything they want which is what they had been doing with this particular social group. pretty much anybody can be found as a particular social group. my point is, is it worth excising that from 1980 refugee act? even though it's in the refugee convention it was also put into our law and their event proposals abroad to simply eliminate that as a grounds for asylum. >> i don't think it should be the attorney general that makes a decision like that. i think congress needs to act. for example, not to be used to go the big dispute was whether coercive family planning in china was a ground for asylum or not. congress got involved and said yes, we don't want that. that's grounds for asylum.

for some reason they call it political opinion but they change the statute and that's definitive, and that's problem answered that if the attorney general changes it, then there's cod go on forever.hat will do consciously needs to do some of these things. >> any questions? up here in the front. wait for the mic, please. >> on peggy, a congressional correspondent for the hispanic outlook and cover immigration and higher red. i wanted you -- higher education i wanted you to elaborate more about particular privileges or considerations of you ims, the unaccompanied minors and particularly the minor part. i just want to make a point that with educational institutions, one is considered a dependent up

to almost 26 years old, as with insurance. but if that minor has a child, they are no longer considered a defendant. and so it's almost impossible for a child to have a child and still be considered a minute. however, i think among the uam there is a considerable proportion of these minors under 18 is old that indeed do have children. so i'm just curious about that whole concept of a minor. >> it is an interesting thing, we will hear about unaccompanied alien minds would generally think of section old children but the question becomes if you're a six year old how did from guatemala if you are unaccompanied? unfortunately in a lot of these cases the parents are complicit. i'm a father, i love my son, i would never put myself in the hands of a person whose main

stock in trade is moving here went over the united states border. we've actually seen i.c.e. take action against parents who have paid smugglers to bring the kids to the united states. i think that's a crucial issue. the other thing is that most of the uam scope most of the unaccompanied alien minors are minors in name. they are under the age of 18 but most of them are 17 years old i remember being a trial attorney in baltimore where judge burman and i both serve as trial attorneys, and i would get 17-year-olds who were arrested at the orchards. they would pick apples. they were migrant workers, and as soon as they were apprehended they will file for special immigrant juvenile status which judge burman alluded to earlier. it is sort of a misnomer in the sense, i've seen plenty of cases involving younger kids generally with parents, but the number of

cases which there is a very young child of tender years who makes it to the united states independently, those are few and far between and very rare. there is normally a parent in the united states was paid the smuggler to bring the child. let's bring the parent forward and the parent can make the claim on behalf of the child. [inaudible] >> it's really difficult for me as a lawyer to argue the in answer, answer what age emancipation should be but as for to keep in mind most of these people are fairly come most of what we call miters or individuals have made their way to the united states and who are generally just on the cusp of adulthood. >> i might also point out minors are handled very solid distantly by the law and by the regulations. unaccompanied minors are not even prosecuted when you say by the department of homeland security. they are under hhs.

the wilberforce act is very lenient. in fact, you can be unaccompanied minor even if you have relatives here. >> let me point out just quickly on this issue with a change of policy is very important, and if you want to understand this issue all you need do is read a federal district court decision issued i think two years ago by judge andrew confederate is a court judge in brownsville texas picky issued it a decision in a case in which a human smuggler, woman who had been caught before for smuggling was caught at the border with a young girl, i think the girl was like 11 or 12, very young. she was come the smuggler was convicted of a felony but the judge castigated the administration. why? because what did it do when the smuggler was caught at the border? they took the child, delivered her to her illegal parent in

virginia, the illegal parent had paid in mexican drug cartel to smuggle her daughter into the united states. in other words, this illegal alien parent in virginia had paid a drug cartel to smuggle her young daughter across the united states. what andrew, the judge said was that he pointed out all the dangers of this come all the people at been killed by the cartels, young women have been raped and otherwise assaulted. what did the government do? they delivered the child to her parent in virginia. now, i certainly agree that this unaccompanied minor, although they were accompanied by a human smuggler, should be reunited with her parent. but as the judge pointed out, rather than then removing the child and the parent from the united states, they did absolutely nothing about it.

they prosecuted the smuggler, but they safely deliver the child. so what did the judge say? he said the u.s. government was completing this criminal conspiracy and encouraging more parents who were illegally in the united states to pay these drug cartels, they are the ones who then provide the personnel who do this work, they were completing this criminal conspiracy and encouraging more parents to engage in this kind of extremely risky behavior. and what should happen in the case and what should be the policy of the united states government is that yes, the child is reunited with their parent who is illegal in the united states, but then they are both removed from the united states and sent back to their home countries. >> bloomberg radio. judge burman, for people who don't follow closely what you do for a living, how often do

somebody come before you, first of all, who you would classify to use colloquialism we've heard as a bad hombre? and what do you do if somebody comes and says, my life is threatened by ms-13 or by the taliban? my whole family is under threat. what do you do about it? >> well, it depends what they are applying for. deferral or removal. saddam hussein could have qualified for that if he could show he would be tortured if return to iraq. there is no bad hombre exclusion for that. most of the things, bad hombre as soon as someone has committed crimes, serious crimes which would make you ineligible for a silent before they remove you. soberly somebody like that only apply for deferral of removal into the convention against

torture. but they have a right to do it. >> let me give an example of what i saw in my pocket for a number of years and i just stopped seeing. i was a judge in york pennsylvania a detailed court and i would often see, i would often have dockets that would have 40%, 40% of my morning docket of 20 people would have drunk driving convictions or would've been arrested for domestic violence. and in most of these drunk driving cases we're not talking about a person . .0 acre ties i remember anyone anyone ever blowing was .32 -- .08. how in the world that individuals able to be alive. he admitted he dropped the case of beer, his wife called, need to be picked up at 10 a.m. and went and got her. but then those cases disappeared from my docket. they just were not being picked up here they were not priorities under the priority memos that went out in 2011 and 2014.

it's very difficult for me, i'm a private citizen now, but it was very difficult for me as a judge to not look at those cases and not look at a person blowing more than a .15, more than .20 and not say that was a person whom merited bond and i would generally denied it. the vast majority of those individuals had the relief in the united states, once they were caught they would go home here they would generally just asked for an order of removal and i would move them just then. the immigration laws of the united states don't define bad hombres as larry said. quite frankly if you enter the united states illegally you are removable from the united states. by legal enemy without a visa or without permission. if you overstay you are removable from the united states. as a judge it's not up to me decide whether that's the right thing to do or not the right thing to do.

but the one thing i will tell you is that if you allow individuals who enter the united states illegally to remain in the united states illegally unmolested, as former i.c.e. director indicated was likely to happen, to individuals who simply enter the united states illegally, you are going to get more of them. your docket is going to swell. what we're talking about today, why is so high? because were not enforcing immigration laws can spew. we create perverse incentives for people to enter the united states illegally. the smuggling rate, the smuggling fee went way down because people which is simply come across the board and claim credible fear. this was a problem for the smuggling gangs. they didn't have anybody to smoke because quite frankly you didn't need a smuggler. these are the perverse incentives that regrettably have been in place.

you pull drunk drivers off the streets, pupil individuals who have committed domestic violence out of the jails and you put them into immigration court if they're eligible for release, i as a judge and going to graduate leak. if you're not eligible for relief, then congress said you should be removed. >> what about the other half of the question? the fear of ms-13 or the taliban? >> absolutely. it was very easy. you asked a question whether you have any fear of being returned to colombia, what if any fear of being returned to guatemala. it's incumbent upon it as an immigration judge asked those questions. let me make one thing clear. it's incumbent upon every employee of the united states government to enforce the torture convention from the president to the guy who put somebody on the airplane. that is an obligation that exists and generally, individuals were given the opportunity, i mean, i don't

even say generally. always individuals are given an application for asylum with protection under article iii convention against torture. if they ask, i would to the case. there are protections in place but it's not like we just grab people of the sea and put them on a plane. that's a larry burman gets paid to do, to make sure that there are individuals that protections are in the law are, in fact, enforce. >> i had a quick question for either of the current or former judges. there's an old soviet joke our member i used year when i existed of the soviet union was that the factory workers would say we pretend to work a and thy pretend to pay us. is there a certain element of that in the immigration judge come for immigration judges where you are sort of going through kind of the motions, sort of kabuki law enforcement where the law is in being enforced and ends up in your lap?

does that affect morale in the way that we've seen, for instance, i sent elsewhere that affects morale? >> i think that happens. especially judges who have been of the ventral long time and saw how it used to be, and then you're ready for hearing and the government just, administered of the causes or terminates the case for no particular reason, doesn't save income because you are prepared for the case and used set the time for site on your docket. that can get to people. it lowers morale. a lot of what i've been talking about is lowered morale. judges being punished for trying to be efficient, they are punished for trying to move cases. they are never punished for continuing here they are never punished for granting relief that maybe should be granted. that's not good for morale. and nobody really likes that. nobody likes to have a job where they're not really doing what they are supposed to be doing. >> we can take a couple more i

think. >> my question has to do with the you these tell i don't know if anybody similar with that or not speed is talking to the mic. >> my question has to do with the crime victim visa. my concern here, this is both aa statement and a question. my concern is that the number of -- the total backlog including family derivatives has risen from 13,645 at the end of the school 2010 to the current backlog reported by cis to be 168,000. we estimate it will be a quarter of a million by january 2019. in view of this, currently it appears, this is coming from other people, it appears that

the 10,000 yearly cap, which is supposed to be mandated by congress, it appears that the current or previous administration has failed to abide by the congressional cap because of their giving applicants who are applying for uvs ring card sandiford status. i guess my question is, at some point this trajectory is going to completely swamped the entire immigration system if this continues. at what point does the president or congress step in and decide to intimate the law so that there is a 10,000 cap per year? which means there will be an astronomical, we are talking hundreds of thousands of cases and how would this impact on our immigration system? >> we don't adjudicate the uvs which is part of pop because if we did we could adjudicate them. what happens is the alien admits

he is removable and then the attorney says that he is applying for you visa. i won it continues because it takes forever to get this thing approved or disapproved by dhs. at the moment we have to continue those cases because if we don't we're cut off ally of possible relief and, once again it's perverse incentives that art was talking about. there's a reason not to file these things even most of them will never be granted. because it comes up the system. the more the system gets gummed up the more people will father that's what's happened with asylum. if every apply for asylum and they can be adjudicated right away, then they get to stay and they get a work authorization. they might as well be citizens. [inaudible] >> individuals wh were fightingr appeal are they being accompanied with free legal counsel? >> you can't talk without the mic.

we need to wrap up so let's take two more question. yours and then yours. >> i can answer that after. >> i'm from rockville maryland and you know there's been lots of cases that been happening in our city. i am a legal immigrant and i'm very concerned and cannot understand why an illegal alien is here and why laws haven't been enforced but you are done a fantastic presentation to educate me on why we had the problem that we have. it's appalling to think it takes so much to get an illegal out of our community. and no wonder we have the big numbers. what i'm hearing in the press is that these people have rights that they are not illegal and thethe don't even want to use te word illegal in our community. the legislators are saying it's undocumented o we might anybody

illegal. i would like to have everyone know what illegal is, and i have an education from you all. my question is have you all followed the rockville issues? i understand there were two students who were given a scholarship there are actually deported my thought was how did they deport these two when i'm hearing this process of how long it takes to get somebody out of the country when they are illegal. >> the students had orders of removal against him which they had not appealed and it had become fun. so that's why dhs can just pick them up. >> an important point on that is, we talked about final orders of removal but in my court which was detained, i only issued one in absentia order removal because the guy refuse to come out of his jail cell and chokes i didn't have a choice. but speed is explain why. because you in the jail. >> right. it was a detained court. he refused to come down the hallway. i issued an order of removal and

he never appeal. when i was an trial attorney and judge burman will verify this, a significant percentage of individuals would never show up for court and they are ordered removed in absentia. finally when the day comes that the government goes to enforce the order against him they file a motion to reopen and said i never got the notice of the hearing or in effect, ineffective assistance of counsel i never should be removed what you can for those 23% of cases, new cases, new cases that the courts are hearing. >> let's take one last question. short question and will have some short answers. >> back in 2008 the executive office that makes the rules for the immigration courts added a role, which is very similar to the rule 11 in the district

courts, which requires an attorney who ghosts mitrione submitted by a pro se -- material -- participant in the courts, immigrants. that that attorney make an appearance. that is to say, file of parents notice. now, speedy we need a quick question. >> the western district just made a preliminary injunction so that this rule is not the rule as of today. my question is, during the period between 2008 and when this preliminary injunction was issued, was the rule enforced that you cannot ghost a submission to an immigration court without making an appearance, saying who you are. >> with how would the judge note it is being ghosted? >> that is the biggest issue is,

the court only knows what the court is told. and for that reason, if there is, with a problem with people who are notary publics in the united states who hold themselves out as the attorneys. and end up filing frivolous applications, frivolous petitions and that's a problem. it's one where to crack down on. >> thank you, everybody. thanks for the panelists for the audience, all of our work is online at cis.org, including our paper in the video of this will be posted as well. hope to see you next time. thank you. [applause]

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