on c-span's washington journal, and on american history tv on c-span3. >> the head of the justice department's executive office for immigration review recently sat down for a conversation about the agency's mission and what it's doing to address the backlog of cases in the immigration court system. from the center for immigration studies, this is an hour. >> good evening. my name is andrew arthur, and i'm the resident fellow on law and policy at the immigration center. i want to welcome you to the national press club for the first in a series of what we're calling immigration news makers events. these events will give the heads of federal agencies, members of congress, and other government immigration policy makers an opportunity to discuss their priorities as well as the challenges they face in implementing and enforcing the immigration laws of the united states. we are honored to have as our first immigration news maker james mchenry, the director of

the executive office for immigration review, also known as eoir. attorney jeff sessions announced in may 2017 that mr. mchenry would be the next director of the office. he joined eoir from the honors program in 2003. he later served in the office of the principal legal adviser at u.s. immigration and customs enforcement. as an assistant chief counsel and later as a senior attorney, where he served as lead for national security, denaturalization, and gang cases, anti-human trafficking operations and work site 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 admib

administrative law judge in the social security administration, and returns to eoir in 2016. director mchenry has truly rejoined the agency at a special time in their history. eoir has long been a neglected and forgotten agency, underfunded throughout the government. attorney general jeff sessions has 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 and we're going to begin with the most important one. on may 30th, 2017, attorney general jeff sessions announced you would be named the director of eoir. this isn't your first time in the office.

why don't you start by telling us about eoir, what they do and the responsibilities are. >> i'm happy to. it's been my home for a lot of my professional career. as art mentioned, this is my third stint with eoir, from law clerk, judge, and now as director and i'm happy, very privileged to come back to the agency. eoir's responsibility is primarily in the immigration context, and they do that through three components. the first is the office of the chief immigration judge, the one that most people are familiar with, that oversees the immigration courts nationwide. we have 334 immigration judges. they hear thousands and thousands of cases every year. the second adjude ka tory opponent is if either party can appeal, those go to the board, the bia. we have 16 board members.

we're authorized for 21. they hear roughly 15 to 20,000 appeals for year. the third component is unique, and disconnected. it's called the office of the chief administrative hearing officer, which is a sort of cumbersome name so we call it oaka hoe. they have special jurisdiction. they hear principally three types of cases, the first of employer sanctions type cases, these are premised on illegal or unlawful hiring practices, or failure to maintain certain paperwork to confirm that individuals are lawfully authorized to work. the second category of discrimination provisions, immigration related employment provisions in particular. so if someone in certain circumstances feel they've been discriminated against, based on certain criteria, they can bring a case. the third is certain types of

document fraud cases. not many of those, but it's still part of their jurisdiction. >> just to talk about that very briefly, the procedures, the rules that govern the immigration courts and oaka hoe are very different? >> some are set by regulation, there's also a practice manual. by design, the immigration courts are a little more informal. federal rules of evidence and civil procedure don't apply in immigration courts. again, they're designed to bring out facts in order to help make decisions. at oaka hoe, its rules are more formaliz formalized, modelled off the rules of civil procedure. they have a lot of civil procedure options such as 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 review their decisions. you have jurisdiction over the aljs at oaka hoe, but also

jurisdiction over the kay hoe, the chief administrative hearing officer who is the reviewing body for the aljs. how do you balance those responsibilities without infringing on the independence of 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, our immigration judges, board of immigration appeals members, they exercise independent judgment and discretion. we're not reaching down and talking to judges or telling them how to rule in this case or that case. the regulations clearly spell out their independence and we certainly respect that. and the same is true at oaka hoe of the aljs, they have independence in their decision making based on the evidence and the facts before them. as a practical matter, we have hundreds of thousands of cases pending. there's no way that we could practically reach down to every single case. our job, my job at my level is essentially to try to manage the workload, manage the dockets,

make sure that judges are exercising their full capacity, adjudicating as many cases as they can comfortably, consistent with due process and making sure that nothing's 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 a surprise to anyone because they're the ones that tend to make the most news. obviously the backlog, we have approximately 692,000 cases pending. that number has gone up. it's tripled since about 2009. it's doubled since about 2012. it's still going up. we're trying to get a handle on it. we're making some progress, but still there's much more work to be done. the second issue is immigration judge hiring. there were several reports, including one that came out just after i got back to o, criticiz how long it takes to hire immigration judges. two years ago it was taking us 742 years, that's over two years. we've been able to get that

number down closer to the ten to 12-month mark. still room for improvement, but we're working on it. and the third issue, eoir, i don't know if we're the last agency, but among the last agencies that still uses paper files in the government. one of the few adjude ka tory agencies that uses paper files. we identified a need for electronic records in 2001, and there hasn't been a lot of progress made until last year. but that's been a top priority for us, to finally push through, and i'm happy to say that we're prepared to start piloting electronic case records in five or six courts this summer with hopefully a nationwide rollout next year. >> when you pilot that, will they be motions, applications, or are you still in the planning stages for that? >> the idea right now is electronic filing across the board. so motions, evidence, applications, whatever there is.

the ultimate goal is to create an electronic record of proceedings. makes it easier for the judges to look at conducting a hearing, easier for the law clerks later on if they need to review something to write a decision. it makes it easy for the public to be able to file at their convenience, than to go down to the window and filing it. >> let's talk about records and proceedings. you brought it up. that's the actual record that sits in front of the immigration judge. >> right. it's a blue paper folder with all the filings, all the eviden evidence, all the motions, all the documentation in the case. >> i can remember famously more than a decade ago, doris miz ner said they lost 80,000 filings in a year. i assume they get lost? >> i can't speak. they have administrative files and i can't speak to their filing practices. we do try to maintain pretty

good control over ours. >> but still it's a cumbersome method. they have to be located before judges can walk into court. it's all on paper. >> i mean, they do take up space, which we could be using for additional personnel. they pile up. sometimes we send them to the federal records center, but we have to keep a lot of them on site at the courts. so they pile up, take space on people's desk, it does interfere with work more than just the judges reviewing it. >> you do have a centralized process by which you record the hearings, though, correct? >> we switched to a digital audio recording system about six or seven years ago. so everything has always been recorded. it used to be on cassette tapes. i don't know if anybody remembers cassettes. but that was probably the preimminent technological innovation we've had in the last ten years. >> not to underscore then, because not only were they on cassette tapes, but six-track cassette tapes that you couldn't

play in a regular cassette recording without it sounding like mickey mouse on helium when you were playing them. very important. have you found that's helped to expedite the completion of cases, give you better control of the cases? >> i mean, immensely. when i started, when i first came to eoir as a law clerk when they were using kcassettes, and when a judge would give me a decision to draft, that's the first thing i had to do, go back, get the cassette tapes, if it was a big file, there could be six, seven, eight, ten tapes, and start listening to them. change the settings on the machine to get the right microphone. nowadays it's digitally recorded. you can pull it up through the computer system. it makes it easier. i don't know that it affects the hearing because it's still recorded at the same time. but it makes it easier for the judges and law clerks to review testimony or anything they need to. >> let's go to that for just a moment. you're familiar with the vtc, video teleconferencing system

that they have. back in the days of the cassette tapes, do you remember what they used to have to do? where they would put the microphone in front of the television in order to actually pick up the -- >> there have been a number of issues with vtc when it was first implemented in the early 2000s, and there were some growing pains. like art was saying, very difficult to pick up with a cassette recorder and people in different parts of the courtroom to make sure it all gets recorded when you're also getting a video feed. the digital audio recording system has largely solved that problem. there have also been significant upgrades in our vtc technology and we haven't had significant problems in several years. >> so this is a positive improvement? >> yes. >> and one that gives you more control over the transcripts and the case system itself? >> i mean, ultimately, you know, moving forward to the future it's something that we're exploring to be able to do almost a realtime transcription,

because everything is being recorded, and there are software and programs out there, it's something that's next generation. right now, we're focused on getting the electronic filing and the electronic records. that's our first big step. but after that, there's no reason we can't move on to, again, realtime transcription or a sort of immediate processing of cases. >> before we move off 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. it's something that everybody supports because, again, it makes it easier for private practitioners, representatives to file. it makes it easier for the government to file. it makes it easier for respondents and the attorneys on both sides to check on the file, what's in the file. right now, if you want to see an rop, you have to come down to the court, fill out paperwork. you can get it, but you may not have it for a long period of time. it's tough to get copies of things. whereas, if it's all electronic, you can basically do that instantaneously. for the judges, we expect it's

going to be a lot easier for them to look at a pdf or some type of file, they can scroll to the pages they need, make notes on the pages they need. if any of you have been in an immigration court, you'll see a judge flipping through reams of papers, trying to find one specific page they need to ask a question about. or you'll see a file annotated with 30 or 40 sticky notes and the judge is trying to find out what does this mean. with electronic filing, they can make notes on the file itself and call it up how we organize it. so it should be helpful to all parties involved, especially the judge judges. >> and some of these rops are pretty big. >> they're not just one. you get too many documents. eventually you're talking about a stack that's two or three feet high. if all of that is stored

electronically, one, we don't need the space, and two, it makes it easier to sort through and figure out what documents you need to focus on for the upcoming hearing. >> when i was a judge, i probably cost the department of justice my salary again in sticky notes. so i would greatly appreciate that. plus the paper cuts would be lower with the electronic system. >> we'll send you a bill. [ laughter ] >> too late now. let's go back to something you mentioned before. according to the transactional records access clearing house or trac at syracuse university, through march 2018, there were 692,298 cases pending at the immigration courts. is this an accurate reflection of the immigration court's dockets? >> we don't typically comment on third-party data views, but that numbers in the ballpark. low 690s right now. >> in addition to the low 690s, there are also cases that are administratively closed.

could you explain that. >> administrative closure was designed fb a temporary move to remove a case from the pending docket while something else was going on. it first came about in cases where individuals were being granted temporary protected status or some other sort of temporary status. then once that status is resolved or terminated or it ends, and the case is recalendared and then it continues. it's been expanded in different directions over the years. the judges were given more latitude in how they use it starting in 2012. with that expansion, it's caused an increase in the number of cases that are administratively closed. they're technically pending on the docket, just not active on the docket. at the court level, there are roughly, 330,000. >> so that 330,000 cases that are administratively closed, is that include in the low 690s, or is that in addition to those cases? >> it would be in addition to those cases. the 690 number are the ones that

are pending, on the docket that we're attempting to move through. >> so we're actually talking about more like 1.2 million possible cases that could be on immigration judges' dockets. >> math is not my strong suit, but there's the possibility of additional cases, yes. >> okay. the primary mission of eoir is to adjudicate cases by fairly, expeditiously and fairly interpreting the nation's immigration law. low 690,000 cases, in addition to however many administratively closed cases, seems like an overwhelming case load for 334 immigration judges, as you referenced before. what steps have you taken, or do you plan to take to ensure that those cases are fairly and expeditiously heard in occurrence with the mission statement of the agency? >> we've outlined several steps

that we've taken and plan to take over the past six to seven months. the first is sort of the most obvious and that's hiring more immigration judges and we've hired 56 immigration judges in the past year and a half. we put out five advertisements for up to 84 additional positions. we're looking at bringing on probably four more this month and then a large group hopefully this summer. we anticipate by the end of the fiscal year up to 40 oritivity th -- 40 or 50 that we can bring on board. now, ultimately, we can get enough judges that we can turn around the backlog, but it would take a along time. so the judge part is a necessary, but it's not sufficient by itself way of dealing with the case load. the second way we deal with it is by increasing our capacity. we tried to reduce the number of courtrooms that aren't be used by using vtc technology. we're working on bringing back

retired immigration judges to hear cases and by shifting resources around, some courts have lower capacity. or excess capacity. so they can hear cases from other cases, and it's relatively easy to do with vtc. third, we're changing the infrastructure and that's primarily moving to an electronic-based system to make it faster and easier for judges to get through cases. we're working with our partners, which is primarily department of homeland security. they have their own sort of case completion issues, their own priorities. and we're working with them to not get swamped in something they're going to do. and lastly, we're doing a top to bottom we view inside the agency. all of our policies, guidance, regulations, everything that we do, every process that 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 both efficient and maintain due process and we're taking as many steps as we can to ensure that's going to happen. >> as i mentioned, as you mentioned presently, about 334 immigration judges around the country. attorney general sessions has indicated that he wants to hire more immigration judges to handle the case load. how many immigration judges do you believe are necessary in order to address the pending case load and the future case load of the immigration courts, if you have an opinion? >> as i mentioned a moment ago, having more judges is obviously important but it's not by itself sufficient. if we're looking solely at the numbers, the most recent budget bill that congress passed has authorized us to hire up to 484 immigration judges. an additional 150 from where we are currently. if we get to that number, then the judges should be able to complete more cases than we have coming in, and that should start some reduction. last fall, the president proposed a budget that would bring us up to 700 immigration

judges. if we got to that level, there would be a significant reduction in the backlog. even if we got to that level, it wouldn't be for two or three years. in the interim we're looking at common sense solutions until we get more judges on board. >> as a former immigration judge, i know that i couldn't do my job by myself. who are the other people you would have to hire in order to support those judges? >> when we hire an immigration judges, or when it's put in the budget, it's not just a judge by himself. it's a team. we get an administrative support staff, interpreters, attorneys or law clerks. we're trying to move so that each judge can have his or her own law clerk. we're not there yet. we're looking for a one to one ratio, we're not there yet. we anticipate coming up october 1st, we'll have roughly 270 law clerks or attorney advisers on board. so it's not quite one to one, but we're moving this that

directi -- in that direction. i think all the judges would agree having a dedicated law clerk is indispensable. >> what do law clerks do? >> just about everything you would expect a judge's law clerk to research, help draft opinions, they observe hearings, memos, pretty much whatever the judge asks them to do. i was a law clerk for a couple years myself, and my duties ran the gamut. for comparison sake, my second year as a law clerk, i was one clerk for ten immigration judges. each judge i tried to give my best effort and dedicated myself as much as possible, but 10 to 1 is not a viable ratio for judges. that's another reason we're trying to get it down to one-to-one as closest as we can. >> how many immigration judges are they planning on hiring? >> by the end of year up to 48. we've issued five advertisements

in the past year for up to 84 positions, and, in fact, we just opened another advertisement yesterday. we're not going to be able to get all 84 by the end of the fiscal year, but perhaps by the end of the calendar year end of 2019. >> let me pull back the curtain. while we're talking about hiring immigration judges, what is the hiring process for immigration judges? >> it goes through several -- >> for anybody out there looking for a job? >> it goes through several stages the first is the activities on usa jobs like all over government jobs. that's the one that opened yesterday. it's also posted on the department's website. the office of attorney recruitment and management maintains a list of current department of justice openings, and it's on there too typically. the the ads are open for three weeks. the office of personnel management makes the first cut, their basic qualifications to make sure people meet those.

and then the list is forwarded to the department. and then it goes through several levels of review. there are various interviews. and then ultimately by statute -- ultimately at the end once a judge is select and has agreed and everybody's been cleared, and then the attorney general will appoint that person. >> is that a pro forma process or is jeff sessions looking at the resumes of individuals? >> i can't speak for what the attorney general looks at, but it goes through several levels of review before it gets to him. >> are these sizzle service or political positions? >> these are regular government employee positions. they're subject to merit principles for hiring. they're definitely not political positions. because judges have to be

appointed, they're different than run of the mill civil service position. >> can you tell us about some of the requirements for being an immigration judge? what does it take to be a judge? >> you need a law degree, an active member of a bar, and seven years of experience, generally either prepare for or appearing in front of or appealing trial type or administrative type hearing settings but so we're not talking about people who have seven years necessarily of immigration experience? >> no specific immigration experience requirement. we do ask each of the politics to address, there are six technical qualifications that talk about experience with immigration, experience with high volume, dockets, litigation, experience adjudicating cases. so we ask the politics to address those, but those aren't

mandatory qualifications. >> so you have a training process for people who are novices when it comes to immigration? >> we're in the process of expanding that. when someone comes on board, they typically will do training at their home court for a little while and then they'll come to headquarters in falls church where they'll get more in-class training. substance of the law, case techniques, best practices for handling cases, specific issues, and then we'll go back to another court and typically do more training. ultimately all in all they end up with two month's give or take before they're ready to take the bench themselves. we follow them and make sure they're doing what they need to be doing if there are any issues, we'll address them. >> so there is a close eye on new judges recently hires judges to make sure that everything's working out? >> yeah, we need judges, so significantly right now, and we depend on them so much, it

wouldn't make sense for us to throw them in the pool and tell them they've got to sink or swim. we have to give them the resources, training, and assistance they need to make sure they're successful. >> unlike when we were trial attorneys. the government accountability office identified immigration judge hiring is an issue, and you know the report i'm talking about, june 2017 report concluded the doj on average, 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 quickly? >> this actually began just before i came back to eior. there was a streamlined process announced. and the process doesn't really

change, but the key thing that was different was it imposed deadlines. the old process had no real deadlines. when people moved through the process, there wasn't necessarily a push for it. something as simple as imposing deadlines for each of the components to review had a significant impact. since that time, our first ad that i put out after i came back, we released judges from that ad this month, so that gets us to ten months. we anticipate bringing on the rest in july. that would put us at about a year. so we've been able to reduce the hiring time from 742 days to 365 or less. so it's about 50%. >> you're telling me part of that 742 days was because files were sitting on people's definition? >> i don't know about that but

deadlines make a difference. >> you indicated that's become a priority for you and the attorney general? >> hiring is certainly a priority. we need to get additional judges. we're authorized for 150 more than we actually have. every judge that we can on board increases our ajudd catory capacity. we have a strong interest in getting them on as quickly as possible. it does us no good if we have to wait 2 1/2 years to get a judge on board. >> i'm assuming you probably have individuals who are good candidates who end up finding something else to do in the interim? >> we have people who withdraw, i 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 lot of time to put your life on hold if you have to move across the country? >> i would also agree. people understand that it's not an immediate process, so they understand there's going to be the some delay. but you're right, 2 1/2 years is

simply too long, especially with the need that we have. >> let's shift gears for a moment. there's now an office of policy. this is a new opponent that was announced by you as director. what is the eior office of policy. it's a novel idea for a court system. >> it is and it isn't. other immigration agencies, especially homeland security, they have an office policy, it creates centralizes policies for that particular agency. we didn't necessarily have any central coordination system. some things came from immigration courts, some things came from the board of immigration appeals, but there wasn't a quarterbacking entity to make sure they were consistent across all the components. that's what the office of policy's functions to set up for, to make sure we have

coordinated policies across all our bodies. it's also going to take the lead on developing regulations, and it's taken a significant lead on our training. previously each of the components conducted their own training. even though most of them are training on the same body of immigration law, they still had their own individual training ideas. with policy, we can make sure that the training is consistent and uniform across all of the bodies. it's also helped us focus resources on areas that we need it like training. >> would you mind discussing the training that's available to the components at this time? >> in what sense? >> how does it work, how does it go? >> there are multiple types of training. anti-discrimination training. a lot of that is computer delivered, but we do have some in-person variations.

we have training related to certain issues that have come up around the country, some training on dealing with middle competent. we have an annual training for the immigration judges, the board historically had its own training event as well, this year we're combining the two. sometimes the training has been in person, at conference, sometimes it's been delivered by dvds or cds. this year we have a training event where everybody will be together. >> is there any advantage between computer-based training and in-person training? >> we have to sort of weigh the pros and cons and the tradeoffs. we're getting such a large immigration court and it's only

going to expand that it gets too big to be effective. there's also a cost issue when you bring 400, 500 people together that we have to be sensitive too. everyone seems to prefer in-person training, but logistically it becomes more difficult. with dvds and computerized the rage, individuals can take the lessons and learn it in their own time at their own speed. you're speaking to an audience in a conference, some people are representati receptive, some are not. we've 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. >> that training generally takes place when it's in washington, d.c.? >> somewhere in the northern virginia area.

>> you thought about a centralized location, omaha or someplace a little bit cheaper? >> we've talked about going forward, the number of judges that we have and the number of people we bring together, we may have to divide the training up. one thing we're looking at, and we made no commitments or dwichbt decisions is a training based on region. we wouldn't necessarily bring all the judges to omaha or judges from the central united states or certain federal circuits together in one location. >> you mentioned training on individual cases. this sounds to be, like, one of those things that would benefit that, that if you brought judges from certain regions together, they could, you know, unfortunately we don't have a uniform system of immigration law because we have 11 different circuit courts that make decisions. can you talk about the training you have for those individual decisions from those 11 circuit

courts. >> that's shotgun our policy office has been able to do an outstanding job on, they compile each week new decisions that related to immigration law and combine policies, supreme court cases, class action decisions, anything of any interest or potential relevance, they can send it on a weekly basis. so the judges have realtime information on cases, policies, things as they come out. judges keep up with the news and or do their own work, but we've been able to centralize the process so that we're delivering uniform and consistent material to the judges on his honestly as possible. for example, we had a supreme court decision a couple weeks ago, we were able to get something to the judges the same day explaining what's going on. by centralizing the training in

general and creating the policy office, we've made it easier to deliver to the judges legal updates, legal information, things that they need as quickly as possible. by the time we get to a training conference, a lot of cases are six months, eight months old, the judges have already internalized them and they don't need it repeated. >> this is a real issue for the judges because gao mention in its report because there's been such a shift in the law, it's difficult tot judges to apply that in you la. this sounds like one of the ways we're going to put judges in a better position to do that. >> it's incumbent on to us make sure judges had a as up-to-date information as possible, especially with the law. there are new decisions practically every week, new eregulations coming on. judges can look at it themselves or have law clerks do it.

this way we can make sure we can get it out in a uniform and timely manner. >> any big regulatory changes you see coming down the pike for your agency or is it too early to talk about that? >> probably too early at this point. obviously, we've had a lot of regulations on different agendas that are pending out there and we're doing kind of like an overall retro aspecttive review of all our rags. i guess the most recent one was increasing the size of the board. nothing that comes to mind. >> immigration judge productivity has dlientd from 1,356 case complexions in 2016 to 807 case completions in fy 2015. what are the reasons that you believe exist for this decline? >> i'm not sure we can pinpoint one sort of central reason that's dispositive or

determinetive overall. the same report that quoted those statistics talked about continuances and continuances are definitely up, especially immigration judge related continuances. but it's also to some extent a by-product of a hiring freeze. a few judges coming on board to handle the new cases coming in. we sort of had to fit cases in where we could. there was some docketing shifts and priority changes before cases got moved around on the docket and didn't increase efficiency. in the criminal-related cases they have become more complex. courts have developed this approach called the categorical approach or modified categorical approach where you have to do a met at a physical breakdown off criminal statutes to make sure a determination as to whether it's a ground of removal or not, and those have taken up more time. then we had a sharp uptick in

the number of asylum cases. it's probably a combination of all those factors. i don't know that we can pinpoint pinpoint to one factor only. >> you mentioned a hiring freeze in the past, which is why we only have 300. i don't want you to -- >> i don't know. i wasn't at the agency at the time. >> okay. what can be done to increase the number of case completions per judge consistent with due process? >> we're looking 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 that the judges have law clerks or sufficient legal resources. we're adding law clerks and improving the dissemination of up to date and timely