he written numerous briefs before the supreme court. watch landmark cases, monday, 9:00 eastern c-span. join the conversation. our hashtag is landmark cases. and follow us at c-span. we have resources at our website for each case, landmark cases companion book, link to the constitution interactive center and land mash cases p.o.d. cast. c-span.org/landmarkcases. >> the head of the justice department head of immigration review spoke at the center for immigration studies about his agency's mission and what it is doing to address the backlog in the immigration court system. >> good morning. my name is andrew arthur, i'm the resident fellow at immigration studies and on behalf the center i want to kel come to the national press club, first in a series we're calling

immigration newsmakers events. this will give members of federal agencies, members of congress, immigration policymakers the ability to discuss priorities and challenges they face implementing enforcing immigration laws in the united states. we're honored to have as our first immigration newsmaker, jails mchenry, the director of the executive office of immigration review. known as ooir. attorney general jeff sessions announced in may 2016 that mr. mchenry would be the next director of the office. mr. mchenry joined eoir. he served as a principal legal advisor at immigration customs and enforcement of the assistant chief counsel and senior attorney where he served as lead for national security, denaturalization in gang cases and anti-human trafficking operations and worksite enforcement matters. he also served as a special

assistant united states attorney for the criminal division at the u.s. attorney's office for the northern district of georgia. from 2014 to 2016 director mchenry served as an administrative law judge in the social security administration. he returned to eoir following his pointment as alj in the office of the chief administrator office in 2016. director mchenry truly rejoined the agency at a propitious time in their history. eoir has long been a neglected and forgotten agency, you know funded throughout the government. attorney general jeff sessions announced it will be a priority that they be properly funded and properly led and director mchenry is the first fruits of that effort. so i would ask you to join me in welcoming director james mchenry today. [applause]

>> thank you. >> i'm going to ask director mchenry a series of questions. we'll begin with the most important one. on may 30th, 2017, attorney general jeff sessions announced you would be named the director of eoir. this is not your first term in the office as i mentioned by introduction. start by sell telling us what eoir what they do and what their responsibilities are. >> be happy to. eoir has been home for my professional career. as art mentioned this my third stint from law clerk an administrative law judge and director. i'm very honored and privileged to come back to the agency. eoir responsibility is primary adjudicatory in the immigration process and they do that through one of our three ajudicatory components. the office of immigration judge, that most people are familiar with, that overseas immigration courts nationwide. we have roughly 60 immigration courts currently.

334 immigration judges. they hear thousands and thousands of cases each other. the second ajudicatory component if either party appeal decision by immigration judge. they go to the board of appeals. we have 16 board members. we are authorized 21. they hear roughly 15 to 20,000 appeals a year. the third is third component, sort of disconnected and probably people know least about. the office of chief administrative hearing officer which is a, sort of cumbersome name, call it by the acronym, ocaho. they have hear principally three types of cases. the first are worksite enforcement or employer sanctions type cases. these are premised on, illegal or unlawful hiring practices, failure to maintain certain paperwork to confirm that individuals are lawfully authorized to work.

the second category are discrimination provisions, immigration related employment provisions in particular. someone in certain circumstances feel they have been discriminated against based on certain criteria they can bring a case. the third category are certain types of document fraud cases. they don't see too many of those anymore but it is still part of their jurisdiction. >> just to talk about that very briefly, the procedures, the rules, that governor enimmigration courts and governor enocaho are different correct? >> immigration court rules are set by regulation. there is a practice manuel. by design the immigration courts are a little more informal. federal rules of evidence, federal rules of civil procedure don't apply in immigration courts. they're designed to bring out facts, elicit facts to make decisions. at ocoha more rules are formalized in regulation. they are modeled off the federal rules of civil procedure. they have a lot of civil

procedure option, summary decision, you have discovery, things like that, so they are quite different. >> you mentioned before that you have jurisdiction over both the immigration courts and the board of immigration appeals who appeal their decisions. you have jurisdiction over alas and ocaho over the chief administrative hearing officer who is reviewing body for the jlas. how do you balance those responsibilities without infringing on independence much each of those bodies? >> there are a couple of responses and i don't want to make it sound easy to do, but in effect it is. legally our judges are, our immigration judges, board of immigration appeals members they exercise independent judgment and discretion. we're not reaching down talking to judges or telling them how to rule in this case or that case. the regulations clearly spell out their independence. we certainly respect that the same is true at ocaho with the j-lus they have is in their decision making, based on

evidence and facts that come before them. as a practical matter we have hundreds of thousands of cases pending. no way, even it weren't prohibited that we could practically reach down to every single case. my job at my level manage the work load, manage dockets. make sure judges are exercising their full capacity. adjudicating as many cases as they can comfortably consistent with due process, making sure nothing is slipping through the cracks. >> sounds like a pretty big job. what were the biggest issues that were facing you when you took over as director of eoir? >> this shouldn't be surprise to anyone. they tend to make the most news. obvious let backlog, we have 62,000 cases pending that number gone up, it tripled since 2009. it doubled since 2012. we're trying to get a handle on it. we're making progress but still there is much more work to be

done. third is immigration judge hiring. one of the reports that came out after i got back to eoir. criticizing how long it takes to hire immigration judges. approximately two years ago was taking 742 days on average, that is two yearses almost 2 1/2 years. we've been able to the got number down closer to more like 10 to 12-month mark. there is still room for improvement but we're working on it. the third issue is eoir, i don't know if we're the last agency but we're among the last agency that still uses paper files within the government. we're one of the few ajudicatory agencies that uses paper files. we identified a need for electronic filing, electronic records in 2001. there has not been a lot of progress made until last year. that is almost a top priority for us to finally push through. i'm happy to say we're prepared to start piloting electronic filing, electronic case record, and in five or six courts this summer, hopefully nationwide

rollout next year. >> when you pilot that, will those be motions? will they be applications? or are you still on the, in the planning stages for that? >> idea right now is electronic filing across the board. so motions evidence, applications, whatever there is, the ultimate desire, the ultimate goal to create an electronic record of proceedings. it makes it easier for judges to look at while they're conducting a hearing. makes it easier for law clerks later on to review something to help write a decision. helps for the public to file at their convenience than go down to the actual window to file it. >> talk a moment just about record the proceedings because you brought it up. the actual record that sits in front of the immigration judge. >> the blue paper folder with all the filings, all the evidence, all the motions, all hearing notices documentation of case. >> which know from past experience i can remember famous

almost decade ago, that doris said they lost 80,000 files in a year. i almost records of proceedings get lost, is that correct? >> i can't speak. doris was ins. they have alien files or administrative files. i can't talk to their, can't speak to their filing practices. we do try to maintain pretty good control over ours. >> still a cumbersome method. they have to be located before judges walk into court. it is all on paper? >> they do take up space, space we could be using for courtrooms, additional judges, additional personnel. they pile up, sometimes we send them to the federal records but we have to keep a lot of them on site at courts. they pile up, take space. take space on people's desks. it interferes with work more than the judges working with it. >> you have a centralized process you record hearings, correct? >> we switched to digital audio recording system six or seven years ago. so everything is always been

recorded. it used to be on cassette tapes. i don't know if anybody remembers cassettes. problemly preeminent it being logical innovation the last 10 years. >> not to underscore, not only cassette tapes but on six-track cassette tapes you couldn't play in regular cassette recorder without it sounding like mickey mouse on helium when you were playing them. very important. did you find that helped to expedite completion of cases give you better control of the cases? >> immensely. when i started, when i first came to oeoir back when they were using cassettes, the judge gave me first the draft, go back get all the cassette tapes, if it was a big file, there could be six, seven, 10 tapes, start listening to them. make sure you change settings on the machine got right microphone with all different tracks. now is digitally recorded. can pull it up through the computer system.

makes it a lot easier. i don't know whether it affects hearing but it is recorded at the same time but it helps for the judges or law clerks to make decisions afterwards or go back to review testimony for anything they need to. >> go to that for just a moment. you're familiar with the vtc or video teleconferencing system that they have. back in the days of the cassette tapes, do you remember they used to have to do, put the microphone in front of a television in order to pick up the -- >> there have been a number of issues with vtc when it was first implemented. it was new technology in early 2,000s. there were grow pains. difficult to cassette recorder with people in different parts of the courtroom to make sure it gets recorded when you're getting a video feed. the digital audio recording system largely solved that problem. there is significant upgrades in our vtc technology.

we haven't had any significant problems in several years. >> so this is a positive improvement. >> yes. >> and one that gives you more control over the transcripts and case system itself? >> ultimately moving forward to the futures something we're exploring to do a real time transcription because everything is being recorded. there is software in their programs out there. something that is kind of the next generation. right now we're focused on getting electronic filing and electronic records. that is our first big step. but after that there is no reason we can't move on to again real time transcription or immediate processing of cases. >> before we move off of the electronic rops, what benefits do you see there being from electronic rops and what problems have you had with the paper ones? >> there are several benefits. something everybody supports it makes it easier for private practitioners representatives to file. makes it easier for the government to file. makes it easier for respondents

and attorneys on both sides to check the file. when you want to see rop, you have to come down to the court, you have to fill out paperwork. you may get it but not for a long period of time. it is tough to get copies of things. if it is all electronic you can basically do that instantaneously. for the judges, we expect it will be a lot easier for them to look at pdf, some type of file like that, they can scroll to the pages they need when reviewing a file. make marks or notations on particular pages they need. if any have been in immigration court you inevitably see a judge flipping through reams and reams of papers trying to find one specific page they need it ask a question b you will see a file annotated with 30 or 40 sticky notes. the judge is trying to find out what does this mean, what does this do. with electronic filing they can do all of this in advance. they can make notes on file itself and call it up how we organize it. it should be helpful to all parties involve especially

judges. >> some of the rops are pretty big, right? >> some of the cases especially ones been around for a while, there are not just one rop. eventually they get too many documents you have to get a second, a third, a fourth, eventually talking about a stack two or three feet high. if all that is stored electronically, one, we don't need the space. two, it makes it much easier to sort through to figure out what documents you need to focus on during a hearing. >> when i was a judge i probably cost the department of justice my salary in sticky notes. i would greatly appreciate that. plus the paper cuts would be a lot lower with the electronic system. >> we'll send you a bill. >> too late now. let's go back to something you mentioned before. according to the transactional records access clearinghouse or trac at syracuse university, march 2018 there were 692,298 cases pending at immigration courts. is this accurate reflection of the immigration courts dockets?

>> we don't typically comment on sort of third party data views but that number is in the ballpark. last time we looked it is in the low 690s right now. >> in addition to that low 690s, there are also cases that are administratively closed. could you explain administrative closure to us? >> sure. administrative closure was designed to be temporary move to move the case from acting temporary docket while something es was going on. it first came about primarily in cases individuals were granted temporary protected status or some other temporary status. once that status is resolved or terminated or ended, the case is recalendared and continued. it has been expanded in certain directions over the years. judges were given latitude how they use it in 2012. with the expansion caused increase in number of cases are are administratively closed. they're technically pending on docket but they're not active on

the docket. at the court level there are roughly 330,000 cases. >> that 330,000 cases lows in the low 690s or in addition to those cases? >> would be in addition to the cases. 690 number is actively pending cases on the docket we're attempting to move through. >> so we're actually talking about 1.2 million possible cases that could be on immigration judges dockets? >> math is not my strong suit so i don't know. there is the possibility of additional cases, yes. >> the primary mission of eoir is to adjudicate immigration cases, this is from your website, by fairly, expeditiously, unformally interpreting and administering the nation's immigration law. frankly low 690,000 cases, in addition to however administratively closed cases seems like overwhelming caseload

for 334 immigration judges as you referenced before. what steps are you taking or plan to take to make sure those cases are fairly and expeditiously heard in accordance with the mission statement of the agency? >> we outlined several steps we've taken and plan to take over the past six to seven months. the first is sort of the most obvious. that is hering more immigration judges. we hired 56 immigration judges in past year-and-a-half. we put out five advertisements for 84 additional positions. we're looking on bringing four more this month. a large group hopefully this summer. we anticipate by end of the fiscal year up 40 or 50 we bring on board. each of those judges increases adjudicatory capacity. we can adjudicate more cases with more judges. ultimately if we could get enough judges would turn around the backlog so it would take a long time. the judge part is necessary but

not sufficient by itself a way of dealing with caseload. the second way we deal with it, increasing our existing capacity. we work on docketing efficiencies. reduce number of courtrooms not being used by utilizing vtc technology. we're bringing back retired immigration judges to hear cases. we're shifting resources. some courts have lower capacity or excess capacity. so they can hear cases from other locations. it is relatively easy to do with vtc. third as i mentioned we're changing the infrastructure. that is primarily moving to electronic-based system that will make it faster and easier for judgeses to get through cases. we're working with our partners, primarily the department of homeland security. they have their own case completion issues. they have their own priorities. working with them to make sure we don't get swamped or something caught up in what they're going to do. lastly, top to bottom review inside of the agency. all of our policies. all of our guidance.

all the regulations. everything we do, every process we have has been subject to a strict review over the past six months to a year. we're looking for ways to be able to be more efficient. obviously we safeguard due process but the two are not mutually exclusive. we feel we can be efficient and maintain due process. we're taking as many steps as we can to insure that will happen. >> as i mentioned, you mentioned, presently 334 immigration judges around the country. attorney general sessions indicated he state he wants to hire more immigration judges to handle the caseload. how many immigration judges do you believe are necessary in order to address pending caseload and future caseload of the immigration courts, if you have an opinion? >> as i mentioned a moment ago, having more judges is obviously important but not by itself sufficient. if you're looking solely at the number, most recent omnibus budget bill congress passed authorized us to hire up to 484

immigration judges. additional 150 from where we are currently f we get to that number, at that point the judges should be able to complete more cases than we have coming in. that should start some reduction. the president proposed a budget that would bring us up to 700 immigration judges. if we got to that level would be significant reduction in the backlog. even if we got to the level wouldn't be for two or three years. we're looking for common sense solutions we can do until we start getting more judges on board. >> as former immigration judge, i know i couldn't do my job by myself. who are the other people you have to hire to support the judges? >> when we hire immigration judge or put in the budget, it is not just a judge by him or herself. it's a team. we get administrate tough support staff. we get interpreters and attorneys and law clerks. we try to move each judge can have his or her own law clerk. we're not there yet.

we're looking one-to-one ratio. we're not there yet. we're looking coming up next fiscal year, october 1st, we'll have roughly 270 law clerks or attorney advisors on board. it is not quite one-to-one but we're moving in that direction. i think all judges would agree having a good law clerk. having a dedicated law clerk is indispensable. . .

>> and how many immigration judges did you say they plan to hire in the next fiscal year, you we hope to get up to 48. this year, five advertisements for up to 84 positions andey just opened another advertisement yesterday. we won't be able to get all 84 by the end of the fiscal year but perhaps by the end of the calendar year, early 2019. >> let me pull back the curtain and ask you, while we're talking but hiring immigration judges, what is the hiring process for immigration judges? >> out there. >> foreclosure for anybody looking for a job. >> several steps. the first is the advertisements posted on usa.gov and that opened yesterday and also posted on the department's web site.

the office of attorney recruitment and management mains a list of currents department of justice openings and it's on there too. the ads are occupy for three peeks, people apply. a office of personnel management makes the first cut, the basic qualifications to make sure people immediate those, -- meet those and then the list it forward ted in the depth. in the department there are various interviews interviews and then ultimately by statute the definition of immigration judge is someone who is appointed by the attorney general so ultimatety he end, once a judge is selected and has agreed and everybody has been cleared, then the attorney general point that person. >> is that proform y is 0 jeff sessions actually looking at the -- >> its goes through several levels levels of review. >> are these political positions? >> these are sort of regular government employee positions.

they're subject to merit principles for hiring, there mspb protections once they're on board. definitely not political positions, judges, because they have to be appointed and there are other requirements they're a little different than the run of the mill civil service clerk or position like that. but by and large they're comparable to other government employees. >> can you tell us but a the requirements for being an immigration judge. what does it take. >> typically you need a law degree, you need to be an active member of a bar somewhere. then you need seven years of experience. generally either preparing for, appearing in front of or appealing trial type or administrative type hearing setting. >> not talking about people who have seven years necessarily as immigration experience but -- >> no there's no specific edges experience requirement. we do ask each applicant to address -- there irsix technical

qualifications that talk about experience with immigration, experience with high volume dockets, talk about experience with litigation, talk abouter and jeans adjudicating cases. so. we ask the applicants to address those but they're not mandatory. >> you have a training process for people who are novices. >> we're in the process of expanding that. when someone comes onboard they typically will do training at their home court for a little while. then come to our headquarters in falls church and get more in-class training. we'll train them on the substance of the law, docket management, case techniques, impart best practices for hearning cases or specific ires and then go back to another court and do more training, and ultimately all in all they end up with two months worth, give or take objection training before they're ready to take the bench themselves and they have mentor judges and we follow them

to make sure they're doing what the should be doing. >> so there's a fairly close eye on new judges, recently hired judges to make sure that everything is working out all right. >> yeah. we need judges so significantly right now, and we depend on them so much, it wouldn't make any sense for us to sort of throw enemy in the pool and tell them they've got sink or swim. we have give them the resources and training and assistance they need to make sure they're successful. >> unlike back when we were trial attorneys. they were like, here's you file go into dot. the government accountability judge said immigration judge hiring were an issue for you. june 17 gao report said it took 742 days, over two years, to complete each immigration judge's hiring process. what steps is the department of justice taking to hire immigration judges more

quickfully. >> this actually began just before i came back to eor and just before the report came out. the attorney general in april of 2017 announced a streamlined hiring process in order to address this very issue. the process itself doesn't really change but the key thing that was different is it actually imposed deadlines. the old process in place since 2007 had no real deadlines so people moved through the process but there wasn't necessary lay push for it. something as simple as imposing deadlines for each component to review has actually had a significant impact. since that time, our first aide put out after i came back, close to the end of june, unof 2017, and we anticipate bringing on at least a couple of judges from that ad this month. that gets to us ten months. we anticipate bringing on the rest in july, right at about a year. so we have been able to so far reduce the hiring time from 742

days to 365 or less. that's about 50%. >> you're telling me that part of the 742 days is because files were sitting on people's desks? >> i don't know if files were on people's desks but deadlines make a difference. >> you indicated that has back priority for you and the attorney general. >> yes, hiring is a priority. we need to get additional judges, we authorized for 150 more than we have. every judge we get on board can hear more cases andevery judge is a weapon against the backlog so we have a strong interest in getting them on as quickly as possible. does us no good to wait two and a half years get a judge onboard. >> i assume you have individuals who are good candidates who find something else to do in the interim. >> we do have people who withdraw, people who decline offers. can't speak to all the reasons. circumstances, i'm sure, change.

>> but two years is an awful long time to wait. >> i would agree with that. >> a long time to put your life on hold if you have to move halfway across the country. >> i agree with that. people understand it's not an immediate process and there's going to be some delaric but you're right, two and a half years is simply too long, especially with the need we have. >> let's shift gears. there's now an office of policy at eor. this is a new component that was anointed by you as director. what i the oeir office do? it's a novel idea for a court system. >> it is and it isn't. other immigration agencies, especially homeland security, have an office of policy and it does precisely what it says, it creates centralizes and coordinates policies for that particular agency. at eoir we didn't have any central coordination system. some things came from the office of general counsel, some from

oimmigration courts, some from the board of immigration appeals. but there wasn't really kind of central quarterbacking entity, one, to help develop the policies and, two to make sure they were consistent across all components and that's that the office of policy -- one function is set up for, to make sure we have coordinated policies across all of our bodies. it's also going to take the lead on developing regulations, and it's taken the significant lead on training. previously each individual component conducted their own training, and even though most of them are training on the same bid of immigration law, still had their own visit training ideas. with policy we can again make sure that the training is consistent and uniform across all of the bodies. also sort of helped us focus resources on areas we need, like training. >> would you mind discussing the training available to come opinion minutes at this team. >> no what sense. >> how does it work, is it

annual, is it on an ongoing basis. >> multiple types of training. certain training required by law. the antidiscrimination training and things like that, that's done annually. a lot of that is computer delivered at this point but we have some in-person variations of it. we also have training related to certain issues that have come up around the country in different indication us. some training on dealing with, say, mental x comp ten si issues, and human trafficking and we also try -- not always been successful -- to have some sort of annual training event nor immigration judges them board historically had its own annual training event as well and this year we're combining the two because it's more or less the same bid of law. sometime this judge training in the past has been in-person, at conferences, sometimes it's been delivered by dvds or c.d.es. last year it was not in person. the conference was cancelled.

this year we anticipate having an immigration judge conference or training event where everybody is together. >> there is any advantage between computer-based training and in-person training. >> we have to weigh the pros and cons. we are getting such a large immigration court and it gets too being for in, person training to be as effective as it could be. also a cost issue when you bring 40500 people together that we also have to be sensitive. to so everyone seemeds to prefer in-person training but logistically becomes more rick. and secondly with dvd training, compute arized train, individuals can take the lessons and learn at their own speed and their own time. the training methods at conferences, you're speaking to an audience. and people are recep tonight that. some are not. they work better when it's one-on-one on their desk top or computer.

so, we have worked with both methods and we're probably going to end up moving to changing how we deliver training regardless simply because of the size, but there are tradeoffs however we do it. >> the training generally takes place, when it's in person, in washington. >> washington or falls church. >> have you thought but a more centralized location, omaha, or someplace a little cheap center. >> we have actually talked about going forward, the number of judges that we have, the number of people we bring together, may eave to divide the training up. one thing we look at and made no commitments or no definitive decisions, is perhaps doing a training based on region. so we wouldn't necessarily bring all the judges to omaha but might bring the judges from the central united states or from certain federal circuiting to in one location, judges from other circuits in different locations. >> you mentioned training on individual case us. sounds to be like one of those things would benefit that, if you brought judges from certain

regions together, they could -- unfortunately we don't have a uniform system of immigration law because we have 11 different circuit courts that make decisions, but could you talk about the training you have for individual decisions from those 11 circuit courts. >> well, actually, that's something that our policy office has been able to do an outstanding job on so far. they compile all circuit court case decisions that retreat immigration law, any supreme court cases, any class action decisions, anything of any interest or potential relevance for our immigration judges they may need to know, they compile it and send it out to the judges weekly. so the judges have essentially real-time information on cases, policies, things as hey come out. a lot of judges keep up with the musician their own work, sometimes their law clerk does the research. we have able to centralize the

process and we're delivering uniform and consistent materials to the judges, honestly, as quickly as possible. when for example we had a supreme court decision, we were able to get something out to the judges the same day, explaining the decision and what is going on. so we have sort of, by centralizing the training in general and creating the policy office, we have essentially made it easier to deliver to the judges legal updates, legal information, things they need, as quickly as possible. at the a training conference, cases or six or eight months old and they have internalize them and don't need it. >> this is a real issue for the judge because gao mentioned that because there's been such a shift in the law, it's difficult for the judges to apply that new law. this sounds like one of the ways we'll put the judges in a better position do that. >> yeah. it's incumbent on to us make

sure judges have as much-to- -- much downdate information as possible. judges can look at it, look for it themselves or have law clerks do it. some components had subdivisions. this way we can make sure get out in a uniform and timely manner any big regulatory changes? >> probably too early. we have had a lot of regulations on different agendas over the years that are pending out there, and we're doing an overall retrospective review of our reges. one was increasing the size of the board. trying to -- nothing else that comes to mind. >> immigration judge productivity has declined in recent years from 1356 case completions per judge in fy2006

to 807 case completions in fy2015. what are the reasons that you believe exist for this decline? >> i'm not sure we can pinpoint one sort of central reason that is dispositive or determinative overall. the same report that quoted those statistics talked about continuances, and continuances are definitely up, especially immigration judge relateed continue yawnses and also a byproduct of the hiring freeze so we had fewer judges coming onboard to handle the new case us. had to fit case inside where we could. there were some docketing shifts and priority changes, three or four of those over a two-year span where case were moved around on the docket, which didn't increase efficiency. the cases in the criminal related cases have been more complex and courts have developed this approach called the categorical approach or the

modified categorical approach that you have to do a meds physical breakdown of -- metaphysical breakdown of criminal statuteses to make a determination if it's aground of removal or not, and those have teen more time. a sharp uptick in the number of asylum cases, asylum cases take longer, more evidence. so probably combination of those factors. can't pinpoint one factor only. >> you mentioned there had been a hiring freeze in the paster and that'sy we acknowledge have 344 -- do you know this one made more of a priority? >> i don't know. wasn't at the agency at the time. so i don't know. >> okay. what can be done to increase the number of case completions per judge consistent with due process? >> here look at a couple of things the first is obviously

resources. we need to make sure the judges are trained and we're working on that. we need to make sure the judges heavily law clerks or sufficient legal resources. we're adding law clerks and improving the dissemination of up-to-date and timely information women switched to electronic files which should make it easier for judges to get into the case, to help prepare for it and understand what is going on at the hearing, and that should make it ultimately easier for them to make a determination. also looking at other ways to try to streamline the process. encouraging judges in talking to them, about bottlenecks they see other. sort of procedural issues, but those their main things we think can help improve productivity. >> you're getting feedback from the judges. >> yes. >> let's talk just for a moment but performance standards for immigration grudge -- judges.

i you were said to have a quota for each judge to complete. there are performance standards for immigration judges. >> i think most people are probably aware of an e-mail that went out to the end of have and it's been in the media. we are -- we do intend to implement performance measures, numeric performance measures. immigration judges have been subjected to performance evaluations for a number of years. i don't now if they were in place when you were a judge but it's not a new concept to evaluate the performance of judges. the new part is having sort of numeric standards and we think from an objective perspective. you're an employee and being evaluated, it understanding what you node to do to gate certain level of performance so trying to make more transparent and more objective and have the judges have a better understanding what they need to do. >> what happens if you're a judge in a court that only has

500 notices to app. how. >> this is one reason, aside from semantics can we don't squall -- call it's quota. a quota is a fixed number without room for deviation. when we evaluate judges on our measure, there six discrete factor wed take into consideration and there's a seventh catch-all. before we come to a final evaluation, if for some reason a judge has not completed the number of cases we think is appropriate, we'll look at the factors, look at the catchach and the overall context could be something -- obvious live ajudge doesn't get 700 cases you can't expect a judge to complete 700 cases. it's not an inflexible number. not quite as concrete or rigids as hasp it's been portrayed but we raul can use at factson the

jump's control and all goes into account for the evaluation. >> it hundred been that long i was an immigration judge, we had performance standards and i had to meet, demeanor and other competency requirements were part of that. with respect to the number of cases a judge has to complete per year or ideally will be a completed, thrill be feedback you'll look at the numbers and determine whether that's the right number. >> right now, the measures aren't scheduled to go into effect until the beginning of the next fiscal year, which is october. so we have training for the budges, and bargaining so how it's rolled out is subject to change but we want the judges to be aware of the numbers to make them more comfortable with them and understanding where we're coming from. in terms of feedback, we're working on essentially an trek electronic dashboard system so the judges can call up their own

case load and own numbers in real-time, updated on a daily basis, and they can see kind of where they stack up. other agencies use similar systems, other agencies you have similar performance measures use those types of systems, and we'll make sure the judges have enough feedback and information so they know where the stand and and where there may be potential issues. >> what is the implications if one fails to meet these standards? few doo you get fired or additional training or people that need more help. >> it's really fact-specific and based on the particular situation. it could be a training issue. could be a resource issue. it could be somebody who is just been out for a while for some reason. it could be going on detail -- a number of factors that might go into expect we don't eave have a one size fits owl for -- fits all, and then we address it,

whether it's training or resources. >> i anticipate this feedback loop so see what the agency needs. >> defer fitly. one of the driving forced is for us to understand better immigration judge productivity so we'll look at it and see where the metricsstan stack up. already getting feedback some degree. and we'll evaluate is on an ongoing basis. >> do you think this is a reasonable number? >> it's a policy judgment. this is a reasonable number that a -- this is a nudge that an experienced judge with proper training can reasonably be expected to complete. in line with historic averages. the productivity numbers you quote are lower than that. we think it's a reasonable number the judges should be expected -- everything else being equal, should be expected

to meet. >> you point at mow and i thought you were talk about any performance, there's no retroactive? >> judges have the rate of cases returned by to an appellate court because of an error in a decision of 15% or less. >> something else we want to look at in terms of immigration judge cases, it's how many are coming back. not only a quality and performance issue but an issue for the backlog, more cases remained, the larger the backlog will grow or more time taken away from new case us. 50% is a policy judgment and when you break it down by the numbers, it makes some sense. if we're asking judges to complete 700 cases, 15% of that is 105.

that works out to one out of seven cases. and in our estimation, if you have a judge who is being remand, who has had errors in cases coming back more than one out of every seven cases, that's probably something we need to take a look at. doesn't necessarily mean it's always the judge's fault. maybe something on the appellate side we need look at. if we see that, it's like a trigger warning for a regular flag. a judge who is having every seventh or sixth case come back to him or her, we want to find out and drill down and see what the reason is. >> a feedback loop will exist. how do you the? standard. providing performance of judges. >> it gives objective measures for what the judges know their performance needs to be or should be them prior performance evaluation, the factors are not as well defined but here they're clear numbers, objective measures and makes it easier what they need.

do secondly, it will increase feedback. it will increase discussions between judges and supervisors. judges can monitor their numbers. should be a positive dish don't necessarily like the word but should be a positive synergistic effect of discuss thing back and forth and help supervisor and gives an idea for the judges what is causing problems. the more feedback, the better off we'll be. >> since january the attorney general has taken a number of cases on certification. can you explain the certification process? >> the certification process is in the regulations. it's been around for many years, at least going back to the 1950s. and under the immigration law, under the immigration nationality act, the attorney general has sort of controlling authority to issue

determinations of law. so, the attorney general can refer cases to himself or make decisions in individual cases. they can be referred to him by one of three ways. first, he can refer a case or direct that a case be referred to him or herself personally. secondly the chairman of the bordes of immigration appeals canner a case to the attorney general, and third, certain officials at the department of homeland security can request that a case be referred to the attorney general. typically the cases come up in one of those three manners. >> why can't the alien seek certification? >> a good question. i don't know the answer. this has been around -- this process has been around since the 1950s. this was implemented them. >> there's an appellate right from the decision of theboard of -- >> there are appellate rights to federal court. typically they file a petition for review that goes to the

circuit court of appeals. >> the government doesn't have that right, collect. >> no, not in the current statutory scheme. >> so basically, this is the method by which, if i.c.e. determines or the director of i.c.e. determines that a case deserves more review, they can seek that review from the attorney general. correct. >> that would be one method. there are couple of quirks to it and it varies how dhs hassite but that is one possibility. >> finally, we are both familiar with ooir. you have glen three time, i've been there two times so you have one up on me. were there any surprises, however, for you, about that office when you began your work as the director? >> i wouldn't say surprises. one of the more interesting challenges to it, however, when i came back -- i've been there three times and know a lot of

people at eior and a lot of it is senior staff or eoir lifers. they had the same leadership team for a flub of years and inconstitutional knowledge and 'er wrens we need to draw on and it's parent to balance that with new ideas and sort of bringing in people who are not -- have not spent their entire careers there, and we are trying balance the new ideas and new blood type of thing with the people that actually have gone through changes in the past, gone through differences in system, gone through upheavals and to sort of balance their experience this, institutional knowledge, their ideas of what works and what doesn't work, with new ideas we want to try to try to work on the backlog, work on hiring and things like that. that's probably the most interesting, you eek aspect so far. >> next we'll take some questions from the audience.

where of there have been reports of -- how are you dealing with that? >> i don't know i would say there's a revolt. obviously there are individuals who disagree with the measures we have taken. there are arguments on both sides but we're work with the judges and working with the union, we're fulfilling our obligations. >> there have been news report that trump administration may be reassigning immigration judges from the courts in the interior to the board boredder to respond to a recent spike in apprehensionsment don't these re-assign.s make the backlog you described worse? >> when we ran the numbers last year, when there were judges re-assigned, we found that the judges completed i believe it was 2700 more cases than we would have expected them to have completed at their home courts. so statistically, at least based on the numbers, i'm not sure

that's true. >> they're actually getting more case done. >> that's what we found when we ran analysis of the immigration judge surge last year. >> do you believe that eoir is properly located within the executive branch. >> it's been part of in the department of justice since 1940. part of the federal agencies into the late 1800s. the department of justice gives us resources, leverage, and leadership. that we might not get with the immigration courts were located somewhere else. there have been a number of proposals to try move them but i'm not sure all the proposals heave reckoned with the consequences. so we feel that eoir is best located and the best home where is it's been since 1940 and that's the department of justice >> how do you respond to those who contend these cases should be handled by article 3 courts? >> i don't know that anyone has consulted the article three

courts. i don't know they'd be equipped to take on 692,000 new cases. >> when ins asylum reforms happened 20 years ago -- some people's hand writing is slap 'er thans -- they took the newest cases first, are immigration courts taking the oldest cases first? >> we are sort of competing or trying to balance two different interests. we have changed docketing strategies and priorities. three or four times since 2014 and it's not clear those led to efitch sunday. by the same tonen we have a number of cases pending for a long time and doesn't benefit nobody wait a long time, whether it's favor able to the respondent nor favor of the government. it does nobody any good so we're trying to make sure case aren't pending too along without at the same time churning case on the docket that won't make the

overall adjudication efficient. >> there is mace be a question you're still looking at it but i'll ask it. should backlog reduction start with the newest or oldest cases? >> i want tree pete the answer is gave. it's balance. if you prioritize one set of cases over another, you're going to lead to some docket churning and i'm not they're the most efficient way. we're look at all oppresses and looking at creating specialize is dockets or looking at specific cases that can be handled expeditiously but it's not sure as a big picture thing we can say the longest cases or shortest cases are the most efficient. >> so not a loifo -- >> not the same way i understand trying to. moment. >> you alludessed to this before. he saw the supreme court issue a decision that created a huge

shift in immigration law. didimaya versus session, involved 18 united states code section. 16b, crime of violence, how does that space other decisions from lower courts affect the productive of the immigration courts. >> host: , i mentioned this before and it's not much dimiya because it dealt with a constitutional vagueness issue. other court decisions, this categorical approach that i have alluded to, those have greated a great deal of confusion, board members, judges, who all expressed the same sentiment, that there are lot of crimes that seem intuitively from common sense perspective to meet definitions, category for robbery in the immigration and nationality act but in court decisions, robbery is not a

robbery fence or some crimes are not crimes of vie excellence has caused confusion, consternation and infrastructure, and when you have that frustration leads to delays which leads to inefficiency. so it's not maybe a measurable impact but had system pact on the length of time the cases have been pending. >> having been an executive branch guy, a legislative branch guy, i know you're probably not going to answer this but can you think of any fixes that congress could make that might make the process better. >> when i testified i got a similar question. my response is we're happy to work with congress. we have an office of legislative affairs that works with them very well and we're happy to take up any idea or suggestions. >> good answer. it would really be possible to work through a court backlog of one million plus cases? >> it's an open-ended question because you didn't gave time frame is it fob do it win a year? no. but if we get -- make the

process improvements i've talk about, get the judges hired in a timely fashion, we look through own procedures, ultimately, yes. again issue can't gave definitive timetable but we don't kirt an unsolvable problem. >> let me wrap up with this question. this is an issue that sort of undergirds the entire backlog. why is this problematic? >> a couple of reasons. we try fairly, uniformly and seditiously decide cases. all three of those are important and it's an "and," not an "or." they're not mute tillly exclusive. the longer somebody has to wait

for an asylum, i they're putting his or her life on hold until they get the actual decision and the got has an interest in mike jihads who are subject to removal that the order are entered swiftly and efficiently so they can be dealt with. no party wins by delaying the case is 'an old saying that justice delayed is justice denied and that's the issue with that's this. the longer the case drag out, additional resource strains on eior but it is simple play matter of justice. snob wins if it takes four years decide a case. >> you're a man in charge of 642,000 immigration court cases, lord nose how many bia cases and i'm going to actually leave it right there. but i can't to thank you for being the first of our immigration newsmakers and appreciate you coming. >> thank you for having me. my pleasure. [applause]

[inaudible discussion]

>> tonight book of is in primetime. a look at science and technology. we'll begin at 8:00 p.m. eastern with microsoft president brad smith on his book about artificial intelligence and then the a book about the live's invery saidors such as albert einstein. and a book but the use of metrics in the government and education, called at the tyranny of metrics. that's at 8:00 eastern. live sunday morning on 1958 america in turmoil. we look at the impact of the vietnam war at home. while he are was fought in the jungles of vietnam, student marchs and acts of civil disobedience on american street dominated headlines. joining us to talk about it is doug suton, on the battle to

survive the vietnam war, and filmmaker, lynn novak, whose project with ken burns was a ten-part documentary, the vietnam war. watch 1968 america in turmoil. live sunday at 8:30 eastern on c-span's washington journal. >> congress back from the week-long recess on monday '. the u.s. house will take up legislation to speed up the process for nuclear waste storage at yucca mountain in nevada, and an hearing to turn over a rule on auto loans. the senate is confirmed 15 of president trump ruffle's circuit court knock nyes and when congress back in session next week you can see the house live on c-span, and the senate live here on c-span 2.