you on a whirlwind two were -- tour of an alternate legal universe. you may think you recognize the terrain but the normal laws basic to everyday events do not seem to function as they do in other places as we expect them to. i am talking about looking through the looking glass world of immigration courts. experienced lawyers are surprised to encounter many of the things i will tell you about today. most members of the public do not have a clue about the realities of the world. when they do come face to face with the laws, they are often dismayed. any fan of a crime drama and recite the miranda warnings given when someone is arrested. you have the right to an attorney, and if you cannot afford 1, 1 will be appointed for you. not true and immigration courts. there is no right to appointed counsel.

one has the privilege of having an attorney's help if he can pay , or if he is fortunate enough to find a willing volunteer. this is true, even though all respondents have the burden of proof. that is the legal obligation to prove they are able to remain in the united states or qualify for benefits under complicated immigration laws. the last fiscal year, only 40% were unrepresented, a figure that froze to 85% if only detained dockets are considered. as you look around our courtrooms, you see the immigration judges are doing so many things that we look like the guy behind the curtain in the wizard of oz. instead of a court reporter, judges and immigration courts operate digital audio recorders to create the formal record. most of us do not have bailiffs

or clerks to maintain security, and we mark and archive the evidence we receive by ourselves. last year 83% of the cases we heard require the use of a foreign language interpreter. and one of more than 200 exceed different languages. even more difficult, immigration judges have to decide a witness's credibility, usually without the testimony of any other witnesses to the event or cooperating documentation, because to paraphrase a higher court, people rarely are able to present a note from the persecutor explaining why they have been targeted. and we must make these decisions by placing the stories in a context and culture that is literally or into us. even more complicated is the fact that we deal with cases that are often ineffective death penalty cases. situations where if the person is reboot -- removed from the united states they may be killed

upon returning to their country. even when the cases do not involve a claim to asylum, we often hear cases of longtime lawful terminate residence. some came to the united states as children. children facing permanent exile to the united states because of crime such as minor as repeated petty-fest. since there is no statute of limitations on the convictions that cause people to come before us in the four rooms can be decades old. our immigration walls often times the hands of the judges hearing the k -- case. add to this picture the fact that there are only 227 field of migration judges located around the country.

handling of dockets that currently exceeds 375,000 pending cases. although that averages more than one thousand five hundred cases per judge, because caseloads are not evenly distributed, judges like me have hundreds more. i personally have over 2400 pending cases. it takes about 15 months for the first arraignment type hearing in my courtroom. after that anywhere from three and a half to four years before the merits hearing is held. so by now you are asking, how could this come to pass? we have the answer. it is because the immigration court's are the forgotten that -- forgotten stepchild. our role is to serve as a neutral court but paradoxically we are served in a law enforcement agency.

because we have been left to the mercy of the political winds that constantly buffet immigration issues, we have been resource starved for decades. the financial needs of the immigration court simply have not been made that the work we do preserves and requires. -- deserves and requires. one point 7 billion is currently inadequate and the strain is showing. due to the crisis caused by the surge of unaccompanied children, serious focus has been placed on the immigration courts recently. unfortunately the picture revealed is not a pretty one, despite the many accomplishments and the remarkable amount and quality of work being done by immigration judges and staff. more row in the courts is at an all-time low.

-- morale in the courts is at an all-time low. we acknowledge our dockets all too often proved true that adage that justice delayed is justice denied. there is a solution, but it will not be quick and will not be cheap. fast, inexpensive approaches have been tried and failed so many times it seems absurd to ignore futility. rather than knee-jerk solutions to the present crisis, we must take the opportunity to look at the structural flaws that have allowed the crisis to impact immigration court so adversely. we must establish an independent immigration court under article one of the constitution. we need an independent court system that stands on its own to provide transparency to the american public as to what we

do, how fast we do it, and what the funding needs are in order to meet the task. immigration law enforcement must stand on its own and not be allowed to overshadow or control the immigration judicial process as it has in years past. the results of that approach are clearly reflect and apparent in the immigration courts today. history has told us we should expect surges just like the past flows from central america or cuba or haiti or china, just to mention a few. to be efficient and operate economically, to guarantee fairness, our immigration courts need to be independent, both from the prosecutors and the respondents who come before us. in order to withstand the political firestorms which surely will continue in the

future, we need the protection of judicial independence, which all other work's delight upon. we predict the improvement will not only enhance due process and ensure all those who come before us are treated fairly but will also prove to be financially cost-effective. when there is a concern that due process is being denied, class action lawsuits are filed. there is economy in timeliness. when cases moved through a court system without undue processing delays, outcomes are more accurate than the cost of competitive reconsideration disappears.

it is cheaper to resolve these cases that the trial court immigration level, rather than clogging the appellate courts. our current system makes the expensive outcomes almost inevitable and the cost for more than it should in it will -- it cost far more than it would cost to invest properly in immigration trial courts in the first instance. we urged a clear common sense solution of doing things right the first time. we are at the creation of an independent court under article one. the time for this has come. >> good morning, everyone, and thank you for joining us today. judge marks has taken you through the looking glass with an overview of the court system and how it differs in many ways. i am sure you will find it curiouser and curiouser as i give you specific examples of how our courts and law

enforcement agency causes problems solved by establishing immigration courts under article one of the constitution. although the law considers us to be administrative judges, our agency considers us to be attorneys representing the united states government. we are being asked to serve two masters of the same time with different priorities. a judge is supposed to be independent and fair our operators. how can we expect to do this if we are an attorney representing one of the parties before us cap go the conflict is inherent in being asked to serve two masters and is seen in many ways. one is the lack of contempt authorities with the attorneys. while there is a way to sanction private attorneys for the court, 18 years ago congress recognized this was unfair and inadequate. they passed legislation to hold any attorney by the department

or paris or -- appearing before them in contempt. the department of justice has failed to enact regulations out allowed judges to exercise contempt of authority. based on the arguments the attorneys cannot be sanctioned by other attorneys from the department of justice. one fundamental role is x partake contact, communication with the judge is not allowed. basically because it is not fair. however, communication about cases between supervising judges of the immigration courts and supervising attorney are

commonplace because we have a common client, the u.s. government. in some cases this x partake contact can to the discipline a -- lead to the discipline of a judge. in one case there was a complaint and it led to the suspension of the judge. the private attorneys and respondents were never informed about the complaint or disciplinary action. another area where judges are called upon to act inconsistently in the role of judges is in the area of recusal. in a normal cart one of -- court one of the parties may asked to excuse himself or herself if the judge that has a personal conflict. however, the department of justice has imposed itself as an additional party in this process. since the department views them as attorneys, they believe they should make the call as to whether a judge refuses himself or herself. so for example, a judge cannot continue to participate in the case at the department finds a

potential conflict, even if the parties are aware of the potential and have stated they see no need for the judge to recuse. in a recent case a judge was ordered to recuse herself from all cases involving a specific nationality, even though she saw no conflict of interest him and none had been raised by the party and the department of justice conceded there was no actual conflict. this is not the independent kay's by kate -- case-by-case type of adjudication that expected by doc -- judges. the recent docket changes are another example of how we are serving two masters and not necessarily serving the public in the most efficient way. there is no other court that would turn the docket on its head at the request of one party , but the immigration court is

flipping the docket by moving cases of newly arrived children to the front of the docket at the demand of the department of homeland security. in some cases it may make sense to hear the cases early, certainly not in all of them. if the child is coming here to be with parents who are already in the courts docket, it does not make sense to hear the child's case first. it makes more sense to hear the parents case first, whether then send them to the back of our mind 15 or 18 months out when the child cases heard. the system would be better served if the decision of whether or not to prioritize cases is made on a case-by-case basis at the request of the party at the judge discretion in the way that most makes sense. this is not an amusement park where you can fast pass approval proceedings. another example is how removing the immigration courts and creating an independent agency to determine the courts under

article one would assist the public is just think concern without alleged misconduct. at this point when complaints are filed they are handled as internal disciplinary matters. these take place in secrecy. sometimes they are even kept secret from a judge involved. the transparent discipline system where the public knows of complaints and whether that judge was sanctioned served the interest of everyone. the placement of an immigration court and law enforcement agency also leads to funding issues that judge marks has alluded to. bringing more cases to the immigration court, the sphere underfunding has been highlighted. the courts are dependent on the budget of the law enforcement agency that ceases as an afterthought at best. the priority is funding law enforcement officers and prosecutors as judge marks has

put it, relegated to the status of cinderella, getting whatever is left over after the program the department of justice considers more important or funded. as a result, instead of hearing cases within the first few months, cases are delayed for years, allowing individuals to become you meshed in the community. -- to become you meshed in the community. leaving those who would be able to obtain a legal status to become productive members of the community in limbo. i hope this us help explain why the national association of immigration judges believes the immigration courts are these of the puzzle that does not fit into the law enforcement framework. if the puzzle is to be solved and for us to protect our borders, and new to create and fully fund an independent agency under article 12 administer the administrate -- the courts. thank you. >> we will now open it up to questions.

if you could identify your self and news organization and if you have a question for particular judge, if you could let us know. >> [inaudible] they are protected somehow -- how will this affect their rights? >> you are referring to the 2008 trafficking the dems act, which does bring u.s. law

more into conformity with international law come up but domestic law and international law have long recognized children are different. they are a vulnerable population that need special protections. the immigration courts, judges do take steps to assure those cases are handled appropriately. we have to make sure there are guardians. we have to make sure children are given more time, but the association has come out and stated we believe it is a mistake to bring these cases to the front -- front of the docket because they by their nature need more time. you need more time in order to gain the trust and confidence of a child who is been a scary situation when they come to court. they need to be reunited with family members and responsible

adult who can help them locate counsel. our association very strongly encourages him. of measures that would help encourage attorney representation. attorneys make our system better, people who know what the right are are able to work through the system more quickly, andthrough the system more quickly, more effectively and becomes a positive for both the prosecution and those who are appearing before the courts. because the courts are better prepared and ready to go. we believe the additional protection should remain or be enhanced. >> [inaudible] can you go over the difference in evidence and how different it is from rate their procedure. the question of evidence, please. >> evidence in immigration court proceedings is different.

for example, immigration court proceedings, hearsay is permissible. the weight to be given to hearsay evidence is different. obviously a witness who is seen something directly is given more weight than someone who has heard something that some of the -- from somebody else. generally speaking the evidence rules are little bit looser and immigration courts and federal a immigration courts. i wanted to make one other point about children's cases brought up with respect to the trafficking victims protection really back. there is a lesson to be learned in history here. the lesson is this, at one point the courts decided to try to streamline the immigration court process to reduce the number of cases and make them go much quicker. they streamlined them by changing the process by which the immigration reviews cases to

make them go much quicker. the result was we had a huge crisis in the federal courts at that point. more and more cases were going to the federal orts. probably were a lot of different reasons. many thought they were getting during best due process so they took the appeal of their. as a result we had huge funding problems. the u.s. attorney's office had to devote more and more resources to these. i more happens if you try to streamline the children of the border, and that is the less due process of the lower levels, it will translate to appeals and overwhelmed the higher levels. >> did you want to say anything else on evidence? [indiscernible] >> one of the most disturbing features, to me, of the immigration system that we have

a brother-sister relationship with the u.s. department of homeland security. they have regular meetings where from time to time entered -- individual cases are discussed and that filters down to action taken against an immigration judge. it certainly has a chilling effect on immigration judges if they feel the department of homeland security will file a complaint against them. that complaint because of the current system goes in hand -- goes hand-in-hand because of the lack of complaint process, the private attorney on the same pace may never know a complaint was filed by the department of homeland security about how we work conduct in the case. >> another aspect of interference is there are very leery lines sometime between process and actual rights being affected. there are times when the department of justice will

implement a decision they believe is simply procedural him and they are not trying to control the outcome, but the him judge in the case feels like it a will have an unintended consequence and have a detrimental effect. that is where we feel it is simpler and cleaner to take us out of a law enforcement agencies of the judges are making the administrative decisions because they sometimes impact the substance. >> [inaudible] the governor recently reported between 1996 and 2012, about 2 million men immigrants were be allowed to be freed before hearing. only 1000 young people showed up. does that affect the impact of an aggression courts and what do you as a cause of it. >> statistics in the immigration

court arena are extremely difficult to parse out and it plied -- apply to the partial reliance -- reality. under the computer terms, i believe in the old days, garbage in and garbage out. i guess you get as statistics you get based on the information. our system of data keeping is not up to par i believe. it advocated -- antiquated. i am skeptical because i am not sure they are complete or accurate. again, this is not just the department of justice. it is not intentional. it is a factor that cases are extremely complicated and depending on how you define that -- defined outcome you can say the person was present were not present or there was a decision or not a decision.

our changes of address really being noted in the system so that we have an accurate address for them? are there notices of of appearance being delivered to people? are they knowingly ignoring the notices or are they uninformed? there are many questions raised by the figures that need much further investigation. >> go ahead. i was wondering if you could comment on what impact do have

seen sending out more councils and lawyers across the u.s. to help out, in case -- they expect over the summer, they provide -- pledged to provide for legal aid to the children. wonder if you see an impact to that? >> i believe you are referring to the president and mission of the through arid core -- americorps 100 we go -- lawyers and legal assistants -- have you seen anything in miami? >> i have to say in this goes to the previous question, one thing that really affects its whether someone is accentuated or not. so one has the maturity tends to appear at support hearings. that reason is especially

because of the concern for vulnerable population which we consider to be children and mentally incompetent individuals. we do not endorse for illegal or presentation for those populations. i think it is essential for children to have representation. that will result in reduced significantly the problem. >> what would be the justice department argument about having an independent immigration courts? >> the justice department today has not taken an official position. the executive director of the executive office for immigration review can speak for himself, but i believe he has said until you see an actual bill or proposal, it is difficult to

comment. it is hard to imagine exactly what arguments would be made against. i suppose one would be what the department of justice want to admit they are less than stellar in the court? i doubt they would want to say that. there has been the concern that this might be an expensive transition. we believe there is tremendous expense in the dysfunctional system we have now. the considerations being made at congress now are in essence throwing good money after bad and expecting a different result.

to be reformed. we believe that is a money to dash away. it cost less as you go up on higher levels of appeal. >> i would say most organizations that have looked at this and every organization has looked at this and endorsed the idea am including the american bar association, american judicature society -- society. national association of women judges. american immigration lawyers association has come in support of independent agency court. i think the main thing we have heard is money. if your gas tank has a leak, and you keep filling up with gas or picks up first? that is what we need to do, fix the system so we can retain judges, respond to these types of crises in the future. >> you talk about separation and independent court system.

what will it take for this to happen? an act of congress? given your are ready victim to political whim, is this wishful thinking in the fact that there may not be affected caps on and this will be very expensive shift. >> creation of an independent court under article one would definitely take a act of congress to do that. but we feel the time is right. this is the kind of immigration reform which would be positive to everyone from every political spectrum. it is more efficient enforcement to have a resource court, a court whose results are not challenged in successions. in certainly allays the fear due

process is being compromised as we work more quickly. advocates for immigrants like the idea as well. we have not heard anyone say it is a bad idea. it is just common sense. >> i just want to add, our course has been the victim of a lot of political winds house within the department of justice. there was a report by the office of inspector general and professional responsibility. during this time there was a scandal with the firings of u.s. attorneys, the same thing going on with immigration judges. they are being appointed with very few little -- or little

qualifications. some of the best we have came in that era. we got a lot of people who came through political basis. we were not protected in the current structure from political whims. i think if we are outside as an independent agency, more transparent, that will be less likely to happen. >> who am i speaking to? >> [inaudible] [inaudible]

i get my figures from the transactional records access clearinghouse. they have been fans for years and do a lot of work gathering statistics from the department of justice on the immigration ordinance. they track the caseload by city. the highest it has ever been. the immigration court not at the highest level. at one point an all-time high of 200 72 immigration judges across the country. now we're down to 200 43. in my remarks i said 227 field immigration judges because with all due respect to the managers and supervisors some of them have no dockets at all and some have a very reduced docket. >> what is the budget for the whole idea? >> we believe the proper size would be to at least double.

that was recommended in the bill that passed the senate in this bring of 2013. another way to look at it would eat perhaps one immigration judge for every 600 pending matters. if you calculate it and not way, those figures would allow them to come to trial because there is open space within 12 months. we feel the doctors should not control when cases are heard. in other words, i should not have to say, i am sorry, you are ready to go tomorrow but my first appointment is three years from now and that is what i have to say.

>> regarding the request for asylum, how many do you feel have been granted in the past couple years percentagewise? >> how many have been what? >> asylum request. >> it is very hard for me to get out of seeing what i see individually. those trends are tracked and tracked and the best way to know what the percentages are. it has fluctuated over time. one thing i am aware of is juvenile cases, -- never mind, not an accurate figure. sorry. i think there has overall been a decline over to them. -- over time. one of the problems looking at caseload for us is the issue that it is not just whether you call it a particular thing to determine what the complexity is. some cases are more complex than

others. asylum cases can be more complex than other related cases. even within the realm of asylum cases, depending on the basis for which people are applying for protection, cases can become more complicated and consuming. the current search is on gang related cases among the most complex of all for legal reasons that i will not bore you with today. >> [inaudible] >> yes. we can do. >> can you give background on that? >> at this time, we have no firm commitments that we have been speaking -- thinking with staff and members of congress. political winds are difficult to protect. we are doing our best but it is helpful to have things we are getting today.

via been preaching to the legal and academic communities for years. it is helpful when a general audience can understand the basics and understand the importance. we are often a hidden tribunal people do not focus on. this has captured the american public situation and that has been helpful to us. >> user the current cases should not be pulled from the docket. what is the situation? are they now in the front of the docket and do you believe they are getting the legal systems required or what they need? >> i have to say this process is in the infancy. one message -- i am proud to be an immigration judge and proud of my colleagues and one think

we believe in is due process and fundamental fairness. even if they are placed at the beginning of the docket, i think judges will do what they can to make sure they have every opportunity to obtain legal representation. it is their right to be able to do so. and to prepare it as fully and best as possible so they can have a fair hearing. as of this moment i cannot tell you across the country, need are being represented. i know the legal community is scrambling and are very grateful for the efforts being made. the judge will tell you we prefer that prefer to have someone represented in the court

rather than do it alone. especially in an immigration court. one special duty and immigration judge has is to advise them of not only the charges against them and advise them if there is any application they can make to stay in the united dates. this gets complicated and children's case. there is a lot of relief other than asylum. they may be a victim of trafficking, special immigrant visa. if they are neglected or abandoned or abused by parents and that is why they are here illegally because they have no one to take care of them and are fleeing the country for that reason. there are different applications to them.

lisa for someone who is juvenile and needs to be declared independent court. those applications have to take place outside. they have to be made to the department of homeland security or documented. so we cannot do that as judges. if someone appears to be a deserving candidate, very important to have an attorney. >> are you feeling any pressure to adjudicate or process the cases of those children at the previous question referred to? are you seeing any sort of pressure to accelerate the cases ? some lawyers say they feel the administrative mission -- administration is trying to send a message when they say the majority of children will be returned. are you as judges when you are faced with them, do you feel pressure to process much quicker

? how does all of this and? if this is not addressed, what is the scenario out year from now or five years from now? >> i can honestly say in the 27 years i have never been told what the ultimate outcome should be in the case. however, there are subtle pressures when you know you're supposed to do the case as quickly as possible. you would not be in an immigration judge if you were not kind of over an achiever who wants to get an a on the assignment. there is pressure to do things more quickly and that is difficult. i think what is ironic is it often takes a personal toll on immigration judges. we are very concerned that of artifact of the bat structure will be a tsunami of retirements of immigration judges retiring at the earliest possible

opportunity rather than working long into the careers because it is a high stress job. most people would laugh. they would say why do judges need a union? they have no idea the working issues are extremely stressful. there was a study done seven years ago that found we were as stressed as prison wardens and 50 hot rolled doctors, not by the complexity of the cases, the heart wrenching nature of the term attic stories we hear because we signed up for that, but because of the lack of workplace support we get. that is a big concern we have and you will lose experienced judges that are at the peak of activity if they are not forthcoming. >> [inaudible]

>> [inaudible] there is no transparency. you work for those in the system. would you anticipate opening that up to an independent agency, and how do you pay for that ultimately and is there an ultimate cost to you guys for creating the new agency? >> you put your finger on some of them. i tried to list some of the issues we have. the computer system we have was chosen by the department of justice. i think there was very little input for what would be accessible. we do have conflict for how accessible it should be and how public the information should be from time to time. we need a system where it is easy access to the information. we have some cases that by their

nature are to be kept private. that is the same with respect to a state court. so we do need that type of system. the computers -- our system recently, major funding issues. all of our computers crashed recently. our main frame, the main generators crashed and for six weeks we could not get data. if you were calling in from the new -- from the outside we could not post new cases. everyone had to be personally called. i was never given an explanation as to why that happened. you do not usually see that in a regular court system. when they call the number to find out, there was no information there about what was going on. i cannot give you a money figure but i can tell you it is better to spend the money now and fix

the money -- fix it now and better to put in a structure where the judges will have more and they will have input for how the agency is set up and how the agency is run as opposed to having it run by an agency that has a law-enforcement mentality. >> that is why we call ourselves the legal cinderella's. we do not believe that the department of justice is advocating a perfectly for our needs. it is true when people look at an article one court for us, we knew we need more money spent on the process, that is undeniable. the question is, will we have judges who have been in the system that are running the court system to believe in a traditional model of transparency in terms of where that money goes and how it is being spent and to not have us

be at the mercy of the prosecutors. one thing we have never been able to get contempt of authority even though it was legislated by congress in 1996 is a cousin the department of homeland security does not want other government attorneys to be levying those sanctions. so the economic inefficiencies in the system because we do not have the authority that we need to run things the right way. >> we only have time for two or three more questions. >> you mentioned the cost and effect analysis and also mentioned he received no commitments but are their champions in congress who are emerging? >> we have been lobbying in part for a cost analysis that we feel congress has done the proper studies and in part that would have to be an organization that

can get access to internal information for how the system currently works. as to the champion, we're working hard and hope they will announce there are champions real soon. we feel we have been making progress. we do feel the situation has spread light on a court that if

>> that is because of judicial ethics. i can tell you that the mexican and canadian children, if they were to come to the border, would be subject to expedited removal. rather than being screened to the country and allow to have an hearing judge -- hearing before an immigration judge, they can be removed before having a hearing. they're are the only two countries were that can happen. the immigration judges believe that there are concerns with the expedited removal system. we lumped those within a series of provisions under the law which are bypasses to the immigration court system. andica is a country of laws

it seems only fair that people have the right to tell their story, at least once, to an we are not indge favor of stipulated removal or expansions of the law that in the up putting a larger class of individuals in a posture where they bypass the immigration courts. >> is the you e-government -- the u.s. government in violation of the 14th amendment? >> [inaudible]

>> we are not allowed to make rulings that are not in the case in controversy in front of us. that is a legal question that would be resolved at a higher court. >> thank you for coming. if you allow me to make one quick commercial, we will have another newsmaker here at the press club with matthew rosenberg. he was recently expelled from afghanistan. for those of you came today and are watching on c-span, thank you.

talking about his book. and then live at 7:00, your calls and journals on "washington journal tomorrow night, a debate between bill knight the science guy -- bill nye the science guy and author ken ham. here is a portion of that debate. worldview isn this that somehow, no a and his family were able to build a wooden ship, house 14,000 individuals. there is a boy and a girl for each one of those. knows, theyybody had never built a wooden ship

before. they had to get the animals on their and they had to feed him. this is the premise of the bit. a test, an run scientific test. people build an extraordinarily large wooden ship, the wyoming. it was the largest schooner ever built. it had a motor on it. difficulty.d great it was not as big as the titanic, but it was a very large ship. it would twist in the sea. it would twist this way, this way, and this way. in all of that twisting, it leaked, leaks like crazy. -- there were 14

crewmen aboard a ship built by very skilled shipwright in new england. these guys for the best in the world. i could not build the boat as big as the ark is claimed to have been. >> watch the full debate tomorrow night 8:00 on c-span. >> this week on "q&a," our guest is the chief judge of the u.s. second circuit court of appeals, robert katzmann. he talks about his new book "judging statutes," which talks about his approach to interpreting laws. he also talks about his thoughts on televised coverage of courtroom proceedings.

>> chief judge robert katzmann of the second circuit courts in new york, it says in your bio you are the only jurist in the federal courts with a phd in political science. how can that be? >> it just happens, i guess. but i started out going to graduate school in political science at harvard. and i got a phd, worked with james wilson and daniel patrick moynihan and richard neustadt, and then went to law school at yale.

i am originally from new york. i am a product of the public schools in new york. so, going to those schools -- outside columbia as an undergraduate, going to those schools were really my first exposure outside of new york and got those degrees and then spent really a career before the bench trying to look at the workings of our institutions. and studied relations between the branches of government at the brookings institution and at georgetown.