go to c-span.org/connect and sign up for the email. it is a program schedule and upcoming live coverage. it gives you the most interesting daily highlight with no commentary. the book tv newsletter send weekly is an insider's look at upcoming books. and the american history tv weekly newsletter gives you upcoming programming, exploring the nation's past. visit c-span.org and sign up today. f cases in the 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 is doing to address the backlog of cases in the immigration court system. from the center for immigration studies, this is an hour. good morning. my name is andrew, i am the resident fellow at the center

for immigration studies. on behalf of the center, i want to welcome you to the national press club for the immigration newsmakers event. these events will give the heads of federal agencies, the heads of congress, and other policymakers an opportunity to discuss priorities and challenges for these days, in implementing and enforcing the immigration laws of the united states. we are honored to have, as our first newsmaker, james mchenry. the director of the justice department's executive office for immigration review. attorney general jeff sessions announced in may 2007, james mchenry would be the next director. he joined after being hired to the honors program in 2003. he served in the office of the principal legal advisor as an assistant chief legal advisor

and later assistant attorney. he served as lead for national security, anti-human trafficking cases for works like enforcement matters, he also served as a special assistant united states attorney in the criminal division in the u.s. attorneys office for the northern district of georgia. from 2014-2016, james mchenry served as administrative judge in the administration, and returned in 2016. he has truly rejoined the agency, at a pretentious time in their history. executive office for immigration review has long been a neglected agency.

he has announced they will now be properly funded. he is the first fruit in that funding. join me in welcoming director james mchenry. >> thank you. >> i'm going to ask james mchenry a series of questions. we begin with the most important one, attorney jeff sessions announced that you would be named director of executive office for immigration review. start by telling us about executive office for immigration review, what they do, and what the responsibilities are? >> happy to. executive office for immigration review has been my home for a lot of my career. it is my third stint with executive office for immigration review, from being a law clerk, to a judge, to a director. i am honored and privileged to come back to the age of -- agency. the executive office for immigration review -- the

first is the office of chief immigration judge. that is the one most people are familiar with. they oversee immigration courts nationwide. we have roughly 60 immigration courts. the judges hear thousands and thousands of cases every year. the second component is if either party can appeal a decision by judges. those go to the board appeals. we currently have 16 board members. they hear roughly 20,000 appeals per year. the third component is sort of a unique component. it is disconnected, people know the least about it. it is called the office of the cheese -- chief administrative hearing officer. it is a cumbersome name. they have specialized jurisdiction under the law, they hear principally >> types of cases. the first are worksite enforcement, or employer type

cases. these are premised on illegal or unlawful hiring practices. maintaining certain paperwork that individuals are authorized to work. immigration employment discrimination, in particular. in certain sermon -- circumstances, people feel they are -- discriminated against. the third category are certain type of -- types of document fraud cases. we do not see too many of those. it is still part of their jurisdiction. just to talk about -- >> just to talk about that very briefly. the procedures the rules that govern are different? >> the rules are set by regulation. there is also a practice manual. i design the court is a little bit more informal. the federal rules, and procedures, they do not apply in immigration courts. they are designed to bring out facts in order to make

decisions. the rules are more formalized. a lot of them are more modeled off of federal rules and procedures. they have civil procedures and options, such as discovery and things like that. they are quite different. >> you mentioned before, you have jurisdiction over both of the courts and the appeal to review decisions. you have jurisdiction over the chief administrative hearing officer, who is reviewing for those. how do you balance those responsibilities without infringing on the independence of each of those bodies? >> i do not want to make it sound like it is easy to do. in effect, it is. legally, our judges -- and immigration appeals members, they exercise independent judges -- judgment and discretion. we do not reach down and tell

them how to rule. it clearly spelled out independence and we respect that. the same is true of the others. they have independence, based on independent -- evidence and facts. we have hundreds of thousands of cases pending. there is no way, even if it was not perk -- prohibited, there is no way we could practically reach down to every case. my job, at my level, is essentially to manage the workload, manage the docket, make sure that the judges are exercising at full capacity, adjudicating as many cases as they can, with due process. making sure that is -- nothing is slipping through the cracks. >> it sound like a pretty big job.

what were the biggest issues when you took over? >> this is not a surprise to anybody. they are the ones that make the most news. obviously, the backlog. approximately 692,000 cases, pending. that number has gone up. it has tripled since about 2009, it has doubled since about 2012. it is still going up. we are trying to get a handle on it. we are making profit -- progress. there is more work to be done. there were several reports, criticizing how long it takes for us to hire judges. it was taking us 742 days, on average. that is two and half years. we are able to get that number down. closer to more like the 10-12 month mark. there is room for improvement. we are working on it. the third issue is executive office for immigration review, we are one of the last agencies that uses paper files in the government. we are one of the few adjudicatory gmac -- agencies that uses paper files. the has not been a lot of progress made but it is a top

right -- priority. to push through. we are prepared to start piling electronic filing -- electronic case records. in 5 or 6 case courts next summer. >> will those be motions or applications? or -- are you still in the planning stages for that? >> the idea right now is electronic filing across the board. motions, evidence, applications, whatever. the ultimate desire, the goal, is to create an electronic record of proceedings. it makes it easier for the judges to look at -- while they are conducting hearings. it makes it easier for the law clerks >> right. it's a blue paper folder with all the filings, all the

to review something, to write a decision. it makes it easier for the public to file at their convenience, then to go down to the window and file. >> let's talk about records and proceedings. you brought it up. that is great. the actual record that sits in front of the immigration judge. >> the blue paper folder that has all of the filings, all of the evidence, motions, hearings, all of the documentation indicates. >> we know from past experience, i remember, famously, more than a decade ago, they had lost 80,000 files in a year. i assume that these records and proceedings also get lost? is that correct? >> i cannot speak? ins -- they have alien files. we try to maintain pretty good control over hours. it is a cumbersome method. they have to be located before judges can walk into court. it is all on paper. they do take up space. space we could be using for courtroom, additional judges or personnel. they pile up. we have to keep a lot of them on site at the courts. they take up space, they take up space on people's desks. it does interfere with work more than just the judges,

reviewing it. >> you do have a centralized process, by which you record the hearing? >> we switched to a digital, audio recording system. everything is always recorded, it used to be on cassette tapes. does anybody remember cassettes? that was probably the preeminent technological invention we have had in the last years. >> not only were they on cassette tapes, they were on six truck cassette tapes. you could not play it in a regular recorder without it sounding like mickey mouse on helium. have you found that has helped to expedite the completion of cases, and give you better control? >> immensely. when i first came to executive office for immigration review, back when they were using cassettes, a judge would give me a decision to look at, that was the first thing i had to do.

it could be up to 10 tapes. and start listening to them. you had to change the settings on the machine, have the right microphone, all of the different tracks. nowadays, it is recorded. you can pull it up on the computer system. i do not know if it affects the hearing. it is recorded at the same time. it makes it easier for the judges and law clerks to make the decisions, or review anything in particular that they need to. >> let's go to that for a minute. you are familiar with the video teleconferencing system that they have. back in the days of cassette tapes, do you remember what they had to do? where they put the microphone in front of the television, in order to actually pick up -- >> there were a number of issues with the system when it was implemented. obviously, technology in the early 2000, there were growing pains. it is difficult to pick up the

cassette recorder, and make sure it is recording when you are also getting a video feed. that problem is largely solved. there are also upgraded in the technology. we have not had significant problems in several years. >> this is a positive improvement. it gives you more control over transcripts and cases. >> ultimate, moving forward, it is something that we are exploring, to do real-time transcription. everything is being recorded. there is software and programs out there. it is a next generation thing. we are focused on aiding the electronic filing and records, that is the first big step. after that, there is no reason we cannot move on to real-time transcription. >> before we move off of this, what benefits do you see there being and what problems have

you had with the paper ones? >> there are several benefits. everybody supports it. it makes it easier for private practitioners, for the government, it makes it easier for the attorneys to check on the file, to check what is on the file. right now, if you want to see it, you have to come to the court, fill out paperwork. you can get it, but you may not have it for a long time. it is tough to get copies of things. it is all electronic. you can do that instantaneously. for the judges, we expect it is going to be easier for them to look at a pdf, or a file, where they can school to the pages that they need. they are reviewing, they can make the marks on the pages that they need. if you have been in immigration court, you will see a judge slipping through reams of paper trying to find a specific page

that he or she needs to ask a question about. or you will see a file annotated with 30-40 sticky notes. and the judge is trying to find out what it means. with electronic filing, they can do it in advance. they can call it up. it should be helpful to all of the parties involved. >> some of these are big, right? >> some of the cases, especially ones that have been around for a while, it is not just one mac. you have a lot of documents. if you get a second, third, fourth, you are talking about a stack that is 2-3 feet high. if all of that is stored electronically, we do not need the space. 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 crossed the department of judgment. -- justice. the paper cuts would be lower, with the electronic system. >> we will send you the bill. >> too late, now. let's go back to something you mentioned before. according to the transactional records access clearinghouse, at syracuse university, through

march 2018, there were 692,000 cases pending at the immigration courts. is this accurate, --? >> we do not typically comment on third-party data views. that is ballpark. last time we looked it was in the low 690s. >> in addition, there are also cases that are administratively closed. explain that? >> temporarily moved -- removed from the docket while something else was going on. it first came about primarily in cases where individuals work granted protective status, or some other sort of temporary status. once it was resolved or terminated, it is recalibrated and continues. it expands in different directions over the years, judges are given in -- more

latitude. with that expansion, it has caused an increase. they are still technically pending but they are not active on the docket. at the court level, there are roughly 330,000. >> so, those cases, that are administratively closed, is that included in the low 690s or is that in addition? >> that is the number of active cases. they are currently on the docket that we are moving through. >> we are talking about more like 1.2 million possible cases? that could be on immigration judges docket? >> math is not my strong suit. there is a possibility of additional cases. >> the primary administration of executive office for

immigration review is administratively close case. -- cases. it seems like an overwhelming load for k -- judges. what steps have you taken or do you plan to take two ensure that those cases are fairly and expeditiously heard in accordance with the mission statement of the agency? >> we have several steps that we have taken and we plan to take over the let -- last 6-7 month. first is hiring immigration judges. we have put out 5 advertisements for up to 84 additional positions. we are looking at bringing on probably 4 more this month and a large group in the summer. we anticipate by the end of the year up to 40-50 that we can bring on for each of these judges, which increases the

capacity. meaning we can adjudicate more cases with more judges. now, ultimately, we can get enough judges that we can turn around the backlog. it will take a long time. the judge part is a necessary, but not sufficient way of dealing with cases. the second way to deal with it is increasing the existent capacity. we are working on docket capacity. courtrooms that are not being used, we are working on bringing back retired judges to hear cases. and we are shifting resources around, some courts have lower -- excess capacity, so they can hear cases from other locations. it is relatively easy to do. we are changing the infrastructure that is primarily moving to an electronic basis. it makes it faster and easier. we are working with partners, the department of homeland security, they have their own case completion issues.

they have their own priorities. we are working with them to make sure they do not get swamped. lastly, we are doing a top to bottom review inside of the agency. all of the policies, all of the guidance, all of the regulations. everything that we do. every process that we have has been subjected to a strict review over the past 6 months to a year. we are looking at ways to be more efficient. obviously, we safeguard due process. the two are not mutually exclusive. we can be efficient and maintain due process we are taking as many steps as we can to ensure that is going to happen. >> as i mentioned, as you mentioned, attorney general sessions has indicated he wants to hire more immigration judges to handle the caseload. how many immigration judges do you believe are necessary in

order to address the pending caseload and the future caseload of the courts? if you have an opinion? >> as a mentioned, having more judges is important. it is not, by itself, sufficient. if you are looking solely at the numbers, the most recent omnibus budget build -- bill has authorized us to hire up to 484 judges. an additional 450 from where we are. if we get to that number, after that point, the judges should be able to complete more cases. that should start a 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 even if we got to that level, that would not be for another 2-3 years. in the interim, we are looking at other solutions that we can do until we can get more judges on the board. >> as a former immigration judge, i could not do my job by myself. who are the other judges -- people you would have to hire? >> it is not just a judge by him or herself. it is a team. we get administrative support

staff. we have interpreters. and we also have attorneys and law clerks. we are trying to move so each judge can have a law clerk. we are looking for a one-to-one ratio. this is the next fiscal year, october 1, we will have roughly 270 or so law clerks. or attorney advisors. on board. it is not quite one-to-one. we are moving in that direction. i think all of the judges would great -- a great that having a great law clerk is indispensable. >> what to law clerks do? >> about everything that you would expect a law clerk to do. research, draft opinions, observe hearings, memos, whatever the judge asks them to do. i was a law clerk for a couple of years myself, and my duties ran the gamut. -- damage.

-- ran the gamut. >> how many immigrations did you say they plan to hire in the next fiscal year? >> by the end of this -- fiscal year, up to 48. we have had 5 advertisements for 84 positions. we opened another advertisement, yesterday. we are not going to be able to get all 84 by the end of the fiscal year. perhaps by the end of the calendar year, early 2019. >> let me ask you, while we are talking about hiring judges, what is the hiring process for judges? >> you go through several steps -- >> for anybody looking for a job? >> several steps and stages.

the first is the job is posted. that is the one that is out there that posted yesterday. it is also posted on the departments website. the office of attorney recruitment and management has a list of openings. they are open for about 3 weeks. people apply, the office makes the first cut, there are basic qualifications. they make sure the people meet those. the final list is forwarded to the department. it goes through several levels of review, and various interviews. ultimately, by statute, the judge is somebody who is appointed. at the end, once a judge is selected and agrees, and everybody is cleared, the attorney judge -- general will appoint that person. >> is jeff sessions actually looking at these rhumb --

resumes? >> i cannot speak to what he looks out. it goes through several letters of review. >> understood. are these civil-service positions? >> these are regular government employee positions. they are subject to marriage principles for hiring. once they are on board, they are definitely not political positions. they are judges because -- because they have to be appointed. they are a little bit different than run-of-the-mill civil service clerks. by and large, they are comparable to other government employees. >> tell us about 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. you need 7 years of experience. generally, preparing or appealing a trial type or administrative type hearing.

>> we are not talking about people who have 7 years of immigration experience, necessarily? >> no there is no immigration requirement. we need applicants to address -- there are 6 parts of the application. they talk about high volume docket, litigation, experience adjudicating cases, things like that. we ask the applicant to address those. those are not mandatory qualifications. >> you have a training process for people who are novices for -- immigration? >> we are in the process of expanding that. we will typically do training at the home court for a little while. then they come to headquarters to get in class training. we train them on the law, docket management, case meetings, we try to impart best

practices for handling cases, handling issues, and then we go back to another court and do more training. ultimately, all in all, they end up with about 2 months of training before they sort of are ready to take the bench, themselves. we usually have mentor judges. we follow them and make sure that they are doing what they need to do. if there are issues, we address them. >> there is a close eye on new judges, recently hired, to make sure that everything is working out. >> yes. we need judges so significantly, and we depend on them, it would not make sense for us to throw them in the pool and tell them to sink or swim. we have to get -- give them the resources that they need to make sure they are successful. >> unlike when you and i were trial attorneys. here is your file. go to court. the government count ability office has identified judge hiring as an issue for you. you know the report i am talking about. june 2017. it included the average. i think you said this average. 742 days. over 2 years to

complete each judge hiring process. what steps are you taking to hire more judges more quickly? >> this began just before i change -- came back to the executive office for immigration review. the attorney general in april 2017 announced a streamlined hiring process. in order to address this issue. the process itself does not change. the key thing that was different was those deadlines. the old process has been in place since 2007. and had no real deadline. when people moved through the process, there was not a push for it. something as simple as imposing deadlines for each of the components to review, is actually having a significant impact. since that time, the first ad i put out after i came back, closed at the end of june of last year.

june, 2017. we anticipate bringing on a couple of judges -- this month. we anticipate bringing on more in july, that is about a year. that puts us at about a year. we have been able to, so far, reduce the hiring time from 742 days to 365 or less. about 50%. >> part of the 742 days because -- was because the files were sitting on desks? >> i do not know. but, deadlines make a difference. >> and you have indicated that is a priority for you and the attorney general. >> hiring is a priority >> we are authorized for 150 more than we have. every judge that we get on board increases the capacity. we can hear more cases. every judge we get on board is a weapon against a backlog. we have an interest in getting them on quickly. it does us no quickly if we have to wait. >> you have into which -- individuals who are good

candidates who find something else to do? >> we occasionally have people who decline. circumstances change. i cannot speak to as why. 2 years is a long time to wait. >> i agree with that. people understand that it is not an immediate process. they understand there is going to be a delay. you are right. two and half years is too long period especially with the need that we have. >> let's shift gears. there is now an office of policy . what is the executive office for immigration review policy, and what does it do? it is an olive -- novel idea for a court system. policies fr that particular agency.licies fr

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 >> -- even though most of them are training on the same amount of immigration law, they have had their own training ideas. with policy, we can make sure that training is consistent and uniform across all of the bodies.

it is also helping us focus resources on areas that we need like training. >> would you mind discussing training that is available and components? how does it work? how does it go? is it annual? is it ongoing? >> there are multiple types of training. we have certain training that is required by law. antidiscrimination training and things like that. it is done on an annual basis. a lot of that is computer delivered at this point. we have some in person variations. we also have training related to issues that come up around the country. there is some training on dealing with mental competency issues. we have training issues on human trafficking. we also try -- we are not always successful, to have annual training events, at least with the immigration judges. the board usually has its own training event as well. this year, we are combining the two as well.

sometimes the judge training in the past has been in person, at conferences, it has been delivered by dvds or cds, this year -- last year it was not in person. the conference was canceled. this year, we anticipate having an immigration conference or training event where everybody gets together. >> is there any advantage between computer-based training and in person training. >> we have to sort of way the prunes -- weigh the pros and cons. at a certain point it gets too big for him person to be effective. there is also a cost issue when you bring 500 people together, that we have to be sensitive to. everyone at a certain level seems to prefer in person training. logistically, it is difficult. secondly, with dvd training, computerized training, individuals can sort of take the lessons. can learn it at their own speed and time.

our training methods -- when you bring people to conferences, you are speaking to an audience. some people are receptive and some people are not. h both met 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 legal information. we switched to electronic files. it should make it easier to get into the case, to help prepare for it and understand what's going on at the hearing. and that should make it ultimately easier for them to make a determination. we're also looking at other ways to try to streamline the process, talking about bottlenecks they see, and other procedural issues. but those are the main things that can improve productivity. >> so you're getting feedback

from the judges at the same time. let's talk about immigration judges. it was recently reported you were planning to set a quota of 700 cases per year for immigration judges for each immigration judge to complete. are there performance standards for immigration judges? >> i think at this point, most people are probably aware. there was an e-mail that went out in march, and it has been in the media. we do intend to implement performance measures. it is important to clarify that immigration judges have been subject to performance evaluations for a number of years. i don't know if they were in place when you were a judge, but it's not a new concept or a new idea to evaluate the performance of judges. the new part is having sorted numeric standards. we think from an objective perspective, if you are being evaluated, it helps you to understand what you need to do to get a certain level of performance. we are trying to make it more transparent, more objective to

have the judges have a better understanding of what they need to do. >> what happens if you are in a judge in a court that only has 500 notices to appear filed each year? how are you going to meet 700 cases if you only get 500? >> this is one of the reasons aside from semantics that we don't consider it a quota. a quota is a fixed number without any deviation or allowance or room for deviation. but when we evaluate the judges based on our measure, there are at least six discrete factors we will take into consideration. there's also a seventh catchall. before we come to a final evaluation, if for some reason a judge has not completed the number of cases that we think is appropriate, we will look at these factors and the catchall. we will look at the overall context. it could be something, if a judge doesn't get 700 cases, you can't expect the judge to complete 700 cases. it is not an inflexible number.

it's not quite as concrete or rigid as it has been portrayed. we will look at factors like that, that might be beyond the judge's control. that all goes into account for the evaluation. >> yes, it has not been that long since i was an immigration judge, we did have standards to meet, demeanor, and various competency requirements were part of that. but with respect to the number of cases that a judge has to complete per year or ideally will be completed, will there be feedback on that? will you guys take a look at those numbers determine whether that's the right number? >> right now, firstly, the measures are not scheduled to go into effect until the beginning of the next fiscal year, october. we've got training coming up for the judges. they will be bargaining with the union on the implementation of the measures. how it's going to be rolled out is subject to change between now and then. we want the judges to be aware of the numbers to help make it more comfortable and understanding where we are

coming from. in terms of feedback, we are working on essentially an electronic dashboard system so the judges can call up their own caseload, their number is -- their own numbers themselves, real-time on a daily basis, and they can see where they stack up. other agencies use similar systems. they have similar performance measures. we are going to make sure the judges have enough feedback, enough information so they know kind of where they stand and maybe some potential issues. >> what could be the implications if one fails to meet these standards? do you get fired? is this opportunity for additional training? do you identify people who need a little more help? >> again, it's going to be fact specific and based on a situation. it could be a training issue, resource issue. it could be somebody who's been out for a

while for some reason. it could be going on detail. a number of factors might go into it, and we don't have sort of a one-size-fits-all of how we we will look at it and see what the actual underlying issue is and then address it, whether it's training, resources, or something else. >> i anticipate this will be a feedback loop were you looking at these numbers and performance to see what the agency needs, correct? >> definitely. one of the driving forces behind it is for us to understand better eioj immigration judge part of -- productivity. we will see where the metrics stack up. we will definitely get feedback. we are already getting feedback, to some degree. we will evaluate it on an ongoing basis. >> do you think this is a reasonable number or about right? >> it's a policy judgment that this is a reasonable number, a number that a judge, an experienced judge with proper training can reasonably be expected to complete. it's in line with historic averages. the productivity numbers you quoted earlier is a little bit

lower than that. it's a reasonable number that the judges should be expected, everything else being equal should be expected to meet. >> when you pointed at me for a moment i thought you would talk about my own performance. there's no retroactive aspect of this, correct? just checking. there's also reportedly a requirement that immigration judges have a remand rate of cases returned by the appellate court to the immigration court because of some error in the decision of 15% or less. can you explain that? >> something else we want to look at in terms of judging quality in not only just the number of cases, but also how many cases are coming back. not only is it equality in the performance issue, but it's an issue for the backlog, the more cases that are remanded, the larger the backlog is going to grow with the more time is taken away from handling new cases. 15% is again a policy judgment. it is used by other agencies. when you break it down by the numbers, it actually makes some

intuitive sense. if we are asking judges to complete 700 cases, 15% of that is about 105. that works out roughly to 1 out of 7 cases. in our estimation, if you have a judge who has been remanded, who has had errors in cases coming back more than one out of every seven cases, that is probably something we need to take a look at. it doesn't necessarily mean it's always the judge's fault. there may be something on the appellate site that we need to take a look at as well. but if we see that, it is sort of a trigger warning or a red flag. if we see a judge who is having every seven for every sixth case come back to him or her, we want to take a look and find out and drill down and see what the reason is. >> so again, a feedback loop will exist. how do you see the standard improving the performance of immigration judges? >> a couple of ways. as i alluded to, it gives measures so the judges know where their performance needs to be.

the briar performance valuations, the factors are not as well defined, but their objective measures, it makes it easier to understand what they need to be doing. secondly, it will increase feedback. it will increase discussions between judges and supervisors. judges will be able to monitor their numbers. there should be a positive -- i don't necessarily like the word -- but a positive, synergistic effect from going back and forth. it will help supervisors identify where the issues are, training, resources, or something else, and help the judges, too. if they have a perspective on a certain type of case is causing them problems or a docket issue causing problems as well. the more interaction and feedback there is, the better off we are going to be. >> since january, the attorney general has taken a number of cases on certification. can you explain the certification process for people who are not familiar? >> the certification process is in the regulations, has been around for many years, at least

going back to the 1950s. under the immigration law, the attorney general has controlling authority to issue determinations of law. so the attorney general can refer cases to himself or can make decisions in individual cases. they can be referred to him by one of three ways. first, he can refer a case are direct that a case be referred to him or herself personally. secondly, the chairman of the board of immigration appeals can refer a case to the attorney general. third, certain officials at the department of homeland security can request that a case be referred to the attorney general. typically they come up in one of those three manners. >> so why can't the alien seek certification? >> good question. i don't know the answer. as i said, this process has been around since the 1950s. this is what was implemented then. >> so there is actually an appellate right from the decision of the board of immigration appeals for the

alien proceedings, correct? >> not administratively. typically they file a petition of the circuit court of appeals over with the immigration cases heard. >> the government doesn't have that right, correct? >> not in the current statutory scheme. >> so basically this is the method by which the director of i.c.e. determines that if a case deserves more review, they can seek that from the attorney general? >> that would be one method. there are a couple of quirks to it. it's varied with how dhs has used it in the past, but that is one possibility. >> finally, you and i are both familiar, as result of interval service with the office. you've been there three times. where there any surprises for you when you began work as the director? >> i would not say surprises.

one of the more interesting challenges to it, however, when i came back -- i have been there three times. i know a lot of people at eoir. a lot of it is senior staff or eoir lifers. they have had a lot of the same leadership team for many years. they have a lot of institutional knowledge and experience we need to draw on. but it's also important to balance that with new ideas and bringing in people who are not -- have not spent their entire careers at eoir. we are balancing new ideas, new blood, with the people who actually have gone through changes in the past and gone through differences in the system. they have gone through a peoples. sort of balance their experience, their institutional knowledge, their ideas of what works and doesn't work with new ideas we want to try to work on the backlog, work on hiring and things like that is the most interesting and the most unique aspects so far.

>> next, we will take questions from the audience. there have been reports of a revolt among ij's over the push for strict enforcement of faster processing under the trump administration. how are you dealing with that? >> i don't know that i would say there's a revolt. obviously there are individuals who disagree with some of the measures we have taken. there are arguments on both sides, but we are working with the judges. we are working with the union, we are fulfilling our obligations. >> there are news reports the trump administration may be reassigning immigration judges from the courts in the interior to the border to respond to a recent spike in apprehensions. don't these reassignments make the backlog that you described worse? >> we ran the numbers last year when there were judges reassigned. we found the judges completed i

believe 2,700 more cases than we would have expected them to have completed after a home court. statistically, i'm not sure that's actually true. >> so they are getting more cases done when they are assigned in this manner? >> that's what we found when we ran an analysis of the surge last year. >> do you believe eoir is properly located within the executive branch? >> eior has been part of the department of justice since 1940. it's a part of federal agencies going back to the late 1800s. the department of justice gives us resources, leverage, and leadership that we might not get with the immigration courts located somewhere else. there have been a number of proposals to move them, but i'm not sure those proposals have reckoned with the consequences. yes, we do feel it is best located where it has been since 1940. and that's the department of justice. >> you may have answered this question, but to give you the opportunity -- how do you respond to those who contend these cases should be handled by article three courts?

>> i don't know that anyone has consulted the article three courts. i don't know that the article iii judges right now would be equipped to take on 6,920 new cases. >> >> they took the newest cases are the immigration courts not taking the oldest cases first? >> again, we're sort of competing in trying to balance different interests. as i alluded to earlier, we have changed the docketing strategies and priorities three or four times since 2014. it's not clear that those led to efficiencies. by the same token, we are trying to make sure we are taking care of a number of cases pending for a long time. we are trying to make sure it -- it does not benefit anyone to wait long for the decision weather is favorable to respond in favor of the government. it does nobody any any good, so we're trying to make sure the

cases are pending for too long without it the same time churning cases on the docket but that's going to make the overall ajude indications more efficient. >> this may be a question you are still looking at but it's o. >> this may be a question you are still looking at but it's on the desk. should backlog reduction's start with the newest or oldest cases? >> i sort of want to repeat the answer i just gave. it's kind of a balance. if you prioritize one set of cases over another, you will lead to some docket churning. i'm not sure at the end of the day that will be the most efficient way. we're looking at all of our processes, creating specialized dockets and focusing on particular types of cases that can be handled in an expeditious manner. but i'm not sure that it's a black-and-white big picture thing, that we can say the longest cases or the shortest cases will be the most >> so not a lifer situation?

>> not an the same way i understand they are trying to influence but it is something we are looking at. >> you alluded to this before. we just saw the supreme court issued a decision that created a huge shift in immigration law. it involved 18 united states code sessions. 16 b, crime of violence. we won't get into that. how did that case and other decisions from lower court affect the productivity of the affect the productivity of the immigration courts and the bia? >> the approach that i have alluded to, there is a great deal of confusion. we have had board judges, circuit court judges that have expressed the same sentiment. there are a lot from a common sense perspective to meet definitions.

there's a category for robbery and we find that court decisions, robbery is not a robbery offense. perjury is not a perjury offense. some crimes are not a crime of violence. it has caused confusion, consternation, and frustration. and when you have that, frustration leads to delays, which leads to inefficiency. it is not maybe a measurable impact but has impact on the length of time the cases have been pending. >> i know you're probably not going to answer this, but can he think of any fixes that congress could make this process a little bit better? >> i don't know. i had a similar question and the response is, we're happy to work with congress and we have an office of legislative affairs that works with them. we're happy to take up ideas or suggestions they may have. >> good answer. will it really be possible to work through a backlog of over one million plus cases?

>> it's an open-ended question. because dwraifg -- you didn't give a time frame. is it possible to do within one year? no. but with the process and improvements, getting judges hired in a timely fashion. we look through our own procedures. ultimate,ly, ultimately, yes. we can't give a definitive timetable for an unsolvable problem. >> this issue sort of undergirds the entire backlog. what are the problems for the backlog? why is this problematic to new eior? >> fairly uniformly and expeditiously deciding cases. all three of those are important, it's an and, not an

or. we want them done expeditiously. there are judge candidates. that is an actual decision. somebody who has a valid claim also is putting their life on hold until they get that actual decision. likewise, the government has an interesting in making sure those orders are entered swiftly and efficiently so they can be executed or dealt with however they need to. no party wins by delaying the cases. there's an old saying that justice delayed is justice denied. and that's sort of the issue with this. the longer the cases drag out, there are additional resource strains, but at the end of the day it is episimply a matter of justice. >> you're a man average in 642,000 immigration court cases, lord knows how many bia cases. so i'm going to leave it right there. but i do want to thank you and

thank you for being the first of our immigration news makers. appreciate you coming. >> thanks for having me. it was my pleasure. [ applause ] >> sarah, nice to meet you.

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upcoming programming exploring our nation's past. sign up today. next, author and philosopher ac grayling talks about the influences on war and democracy. topics include threats to democracy relate to go aauthoritarianism, including the u.k.'s decision to leave the european union. he is interviewed by former cia director michael hayden at a forum hosted by george mason university school of policy and government. what i would like to do now is it introduce general hayden. that introduction doesn't need to take a lot of time for i think the vast majority of the audience here. for those one or two of you who've been asleep for 20 years, generally