penalty. our guests, one of the nations top capital legal scholars, and a professor of harvard law school. she has argued against the death penalty in a number of cases. she was also a former clerk of thurgood marshall. and the legal director of the criminal justice legal foundation, advocating in favor of capital punishment, and a more swift moving criminal justice system. he has written numerous briefs in death penalty cases before the supreme court. watch "landmark cases" on monday at 9:00 eastern. join the conversation. #landmark cases. follow us on c-span. we have resources on her website for background on each case. the landmark cases companion book, a link to the national constitution center's interactive constitution, and podcasts. at c-span.org.

up next, a discussion on the backlog of immigration cases, which has more than doubled from 2006 to 2015. we had remarks from the director of immigration review. the chubby ministers and has a goal of cutting the load by half by 2020. this is about one hour. >> good morning. on behalf of the center, i want to welcome you to the national press club for the first in a series of what we are calling immigration newsmakers 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 immigration laws to the united states. we are honored to have as their first newsmaker, james mchenry, the director of the executive office for immigration review, also known as --

jeff sessions announced in may 2017 that mr. mchenry would be the next director of the office. director mchenry joined after being hired in 2003. he later served in the office of the principal legal advisor at customs enforcement. as an assistant chief counsel and later as an attorney, where he served as the lead for national security, d naturalization and gang cases, anti-human trafficking operations and worksite enforcement matters. he also served as a special assistant united states attorney for the criminal division at the u.s. attorney's office for the northern district of georgia. from 2014-2016, director mchenry served as an at administrator law judge and returned following .is appointment as an elj

he has truly rejoined the agency at a precious time in their history. long been a neglected and forgotten agency, underfunded. jeff sessions has announced it will be a priority that is 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 will begin with the most important one. may 30, 2017, attorney general jeff sessions announced you would be named the director of

eyor. this isn't your first term in the office, as i mentioned by introduction. why don't you start telling us about eyor what they do and what the responsibilities are. >> happy to. eyor sort of has been my home for a lot of my professional career. as art mentioned, this is my third stint with eyor from a law clerk and administrateive director. and they are ajudeacatory. in the immigration context. they do that through one of our 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 roughly 60 immigration courts currently, and about judges,migration and did they hear thousands and thousands of cases every year. component,second either period of time can appeal a decision by the administrative judge and we have is a board members. we are authorized for 21.

they hear about appeals per 15,000-20,000 year. the third component is a unique component. it's one people know the least about. it is the office of the chief administrative hearing officer, which is a sort of cumbersome name, so we call it by its acronym. they have specialized jurisdiction under the immigration act. they hear three types of cases. the first, employer sanctioned type cases. premised on a legal or unlawful hiring practices, our failure to maintain certain paperwork to maine -- confirm that they are lawfully authorized to work. the second category, discrimination provisions, immigration related provisions, in particular somebody in certain circumstances might feel this committed against, based on certain criteria they can bring a case. the third category, certain types of document fraud cases. they do not see too many of those anymore, but it's part of their jurisdiction. >> just to talk about that very

briefly, the procedures the , rules that govern the immigration courts are very different, correct? >> the rules, some are set by regulation, there is also a practice manual. by design, the courts are more informal. federal rules of civil procedure , they do not apply in the immigration courts. they're designed to bring out fax in order to make decisions. -- s more formalized at and they have a lot of civil procedure options, which is summary decision. you have discovery, things like that. they are quite different. jonathan allen you mentioned -- -- you mentioned you have jurisdiction over the courts. you have jurisdiction over the alj, but you also have jurisdiction over the chief administrative hearing officer, which is actually reviewing

bobby for those. those you balance responsible and he on the independence of each of those bodies? >> there are a couple of responses. i do not want make it sound easy to do, but in fact it is. legally, our judges, our immigration judges and appeals members, they exercise independent judgment and discretion. we are not talking the judges or telling them how to rule. the regulations spell out their independence and we certainly respect that. the same is true with the dlj, they have independence. based on the evidence that comes before them. as a practical matter, we weigh hundreds of thousands of cases. no way, even if it was not prohibited, there is no way to practically reached down to every single case. our job, and my job is essentially to try to manage the work load, manage the dockets, make sure judges are exercising at full capacity, educating as

many asmj beginning as they can and make sure nothing is slipping through the cracks. >> that is a big job. what was the biggest issue facing you as he took over? >> should not be a surprise to anyone, because they are the ones that make the most news. obviously, the backlog. we have approximately 600,000 9 -- 692,000 cases that are pending, it has doubled since 2012 and it is still going up. we are making some progress, but still there is much more work to be done. the second issue is immigration judge hiring. there are several reports, including one that came out after i got back. criticizing how long it takes for us to hire immigration judges. approximately two years ago, it was taking us 742 days on average, that is over two years, two-and-a-half years. we have been table to get that -- we've been able to get the number down, closer to the 12 month mark.

there is room for improvement club but we're working on it. not sure issue, i am if we are the last agency, but among the last to use still the paper files in government. we are one of the few agencies that still uses paper files. and we identified a need for electronicfiling, records in 2001, but not much progress made until last year. that has been almost a top priority for us, to finally push through. and i am happy to say that we are prepared to start electronic filing, electronic case records, in five or six quarts this is summer, with hopefully a nationwide rollout next year. >> will those 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. the ultimate desire or goal is to create an electronic record of proceedings.

it makes it easier for the judges to look at while they are conducting hearings, makes it easier for the law clerks later on to review something and helped write a decision, make it easier for the public to file more of -- file, so more of their convenience. >> talk about records and proceedings, because you brought it up. that is the actual record that sits in front of the immigration judge. >> the blue paper folder with all the filings, all the evidence, all the motions, all the hearing notices, all the documentation on the case. >> we know from past experience, we can remember famously, more than a decade ago doris mizer said they lost 80,000 files in a year. i am assuming that these records also get lost, is that correct? [laughter] >> they have alien files, administrative files, so i cannot speak to their practices. we try to maintain pretty good control over ours. >> it is a cumbersome method, they need to be located before

the judge can walk into court. it is all on paper. >> they do take up space. fore we could be using additional personnel or courtrooms. they pilot. sometimes we send them to the federal records center, but we have to keep a lot of them on-site. so they take up space, peace -- people's desks. it interferes more than just the judge reviewing it. >> you have a centralized process by which you record the hearings, 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, not sure if anybody remembers those. but that was the preeminent technological innovation we have had in the last 10 years. so not only were they on cassette tapes, but they were on six track cassette tapes that you could not play with out a regular recorder without it

sounding like mickey mouse on helium. very important. have you found that's helped to expedite the completion of cases and give you better control of the cases? >> immensely. when i first came as a law clerk, back when they were using cassettes, and when a judge would give me a decision to look at the draft, that was the first thing i had to do, go get all the cassettes and look to the files, there could be maybe 10 tapes, and start listening to them. make sure you change the settings on the machine to make sure you have the right microphone. nowadays, it is digitally recorded and can pull up to the computer system and makes it a lot easier. i don't know that it affects the hearing because it's still , recorded at the same time, but it certainly makes it easier for the judges and law clerks to make decisions afterwards and review testimony or anything in particular they need to. >> let's go to that for a moment. you are familiar with the vtc or video teleconferencing system 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 implemented. it was the new technology then. they had growing pains. it is difficult to pick up a consent -- cassette recorder with all these people in a courtroom, to make sure it is all recorded. the digital system has largely solved that problem. we've also had upgrades and we have not had significant problems in several years. >> so this is a positive improvement. >> yes. >> one that gives you more control over the transcripts and case system itself. >> i mean, ultimately moving forward to the future is something we are exploring to be able to do almost with real-time transcription, because everything is being recorded and there is software out there, it

is the next generation. right now, we are focused on the electronic filing and records, that is the big step, but no reason we cannot move on to real-time transcription or immediate processing of cases. >> before we move off of this, what benefits do you see being from electronic rp's and what problems have you had with the paper ones? >> several benefits. it is something everybody supports, because it makes it easier for private practitioners and representatives to file, easier for the government to file, easier for respondents, and for the attorneys to check on the files. right now, if you want to see an rop you have to come to the court and fill out paperwork. you may get it, but you cannot have it for a long time. it is tough to get copies of things. if it is electronic, you can do that instantaneously. for the judges, it will be a lot using her for them to look at a pdf or some type of file like

that, and they can scroll through the pages that they need, make notes on those particular pages. right now if any of you have , ever been in immigration court you'll inevitably see a judge flipping through reames and reames of papers, trying to find one specific page that they need to ask a question about. or see a file annotated with 30 or 40 sticky notes and the judge is trying to figure out what does this mean or do? with electronic filing, they can do all of this in advance and make notes on the file itself. and then call it up on how we organize it. and should be helpful to everybody involved, especially the judges. >> some of the rop's are big, right? >> some around for a while. they're not just one rop, you have to get a document, a second, third, fourth, eventually you are talking about a stack that is two or three feet high. if it is all stored electronically, we do not need the space, and two, easier to focus on 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 greatlyotes, so i would appreciate that. plus the paper cuts would , probably be lower with the electronic system. we will send you a bill. [laughter] >> too late now. >> according to the records, the transitional records clearinghouse at syracuse university through march, there was over 690,000 cases pending in immigration courts. is it a reflection of the docket? >> we do not usually, on third-party data used, but that number is in the ballpark. i think the last time we looked at was the low 690's right now. >> in addition to that low six 90's, there -- 690's, there are also cases that are administratively closed. could you explain administrative closure to us? >> sure, it was designed to be a temporary move to remove the

case from the active pending docket while something else was going on. it first kim about primarily in cases where individuals were given protective status, or other sort of temporary status, then once that status was resolved or was terminated, the case continued. so it has expanded in different directions over the years. the judges were given more latitude in how they use it, starting in 2012. with that expansion we saw an increase in a number of cases that are administratively closed. they are technically pending on the docket, but not active. so right now the court level, roughly 330,000. >> so that 330,000 cases that are administratively closed, would that be included in the low 690's, or is that in addition? >> in addition. this etc. 90 number, the number of active pending cases, those are currently on the docket that we are attempted to move. >> so we are actually talking

about more alike 1.2 million possible cases that could be on immigration judge's dockets? >> math is not my strong suit so i don't know. but there's a possibility of additional cases. yes. >> ok. the primary mission at eoir is to adjudicate cases, this is from your website, by fairly, expeditiously and unformally and administering the immigration law. frankly low 690,000 cases in addition to however many administratively closed cases seems like an overwhelming caseload 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 accordance with the agents? -- accordance with the mission statement of the agency? >> we've outlined steps we plan

to take over the past six to seven months. the first, or sort of the most obvious, and that's hiring more immigration judges. we've hired 56 immigration judges in the past year and a half, and five advertisements for up to 4 additional positions and 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 at least up to 40 to 50 that we can bring on board. each of the judges increases our judge's ajudeacatory capacity. ultimately, we could get enough judges to turn around the back wall but it would take a long time. the judge part is necessary, but not the only way to deal with the caseload. the second way to deal with it, increasing our existing capacity. we have been working on capacities, utilizing technology, and we are working number name back retired immigration judges to hear cases and sort of shifting resources around. some courts have lower capacity

or have excess capacity so they can hear cases from other locations, and it is relatively easy to do with vtc. we are changing the infrastructure and that is moving primarily to an electronic based system that's going to make it faster and easier for the judges to get through cases. i mean, we are working with our partners, primarily the department of homeland security, they have their own case completion issues, their own priorities. we are working with them to make sure that we don't get swamped or caught up in something that they are going to do. lastly, top to bottom review inside the agency. all of our policies, guidance, regulation, everything we do and every process we have has been subject to a strict review over the past six months to a year. we are looking for ways to be more efficient. obviously, we safeguard due process, but they are not mutually exclusive. we feel like we can be efficient and maintain due process and we are taking as many steps as we

can to make sure that that's going to happen. >> as you mentioned, and as i mentioned presently about 334 , immigration judges around the country. and attorney general sessions has indicated that 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 immigration courts, if you have an opinion? >> as i mentioned, having more judges is obviously important, but by itself it is not sufficient. if you are solely looking at the numbers the omnibus bill that , congress passed authorized ut s to hire 484, up additional 15 from where we are currently-- it's up 150 from where we are now and that should start so many reduction. -- some reduction. last fall the president proposed , a putting that would bring us up to 700. if we got to that level, there would be a significant reduction

in the backlog. but even if we did get to that level, it would not be for another two or three years and until the, we have other common sense things we can do to get more judges on board. >> as a former judge i know i , couldn't do the job by myself. who are the other people you would have to hire to support those judges. >> when we hire an immigration judge, it's not the judge him or herself, it's a team. we get support staff and interpreters, and more portly we get attorneys or law clerks. we're trying to move so ultimately each judge can have his or her own law clerk. we're looking for a one-to-one ratio, but we're not there yet. on the next fiscal year, october 1st, we will have roughly 270 or so law clerks or attorney advisors on board. so again, it is not quite one-to-one, but we are moving in that direction. and i think all the judges would agree that having a good law clerk and a dedicated law clerk is indispensible. >> for people who aren't

familiar with the system, what do law clerks do? >> just about everything you would expect a judge's law clerk to do. they do research, draft opinions, they observe hearings, they do memos, pretty much whatever the judge asks them to do. i was a law clerk myself and my duties ran the gamut. for comparison sake, my second year as a law clerk, i was one click for 10 immigration judges. and i make him eat judge -- mean, each judge a try to dedicate myself to as much as possible, but 10-1 is not a viable ratio, so that is another reason we want to get it down to one-to-one as close as we can. judgesmany immigration did you plan on hiring in the next fiscal year? >> we hope to come up by the end of this fiscal year, to hire 48. we've issued five advertisements in the past year for 84

positions. and we opened up another yesterday. we are not going to get to 84 by the end of the year, but perhaps the calendar year, 2019. >> let me pull back the curtain for just a moment. let me ask you, while we're talking about hiring immigration judges, what is the hiring process for immigration judges? >> it goes through several phases. >> for anybody looking for a job. [laughter] >> it goes through several steps or phases. advertisement is posted on usa jobs, like pretty much any other government job. it posted yesterday. and also on the website, and -- in the office of recruitment and management maintains a list. and it's on there typically. ads are usually open for three weeks, people apply and the office of personnel management sort of makes the first cut, they have basic qualifications and they are making sure they meet those. and then the final in the list is forwarded over to the department.

within the department, it goes through several levels of reviews and then there are interviews. by statute, the immigration judge appointed by the attorney general, so ultimately at the end once the judge has been selected and everybody has been cleared, >> that pro forma or is jeff sessions looking at the resume's of various and -- individuals? >> i can't speak to let the attorney general look that, but it goes through several levels of review. >> and instead. are these civil service positions? are these political positions? what are they? >> these are sort of regular government employee positions. they're subject to merit principles for hiring, they're mspb protections, once they're on board, they're definitely not political positions. now, they're judges because they have to be appointed and because there are other requirements, they're a little different than sort of the a run of the mill civil service clerk or some type of position like that, but by and large comparable to other

government employees. >> could you tell us about some of the requirements for being an immigration judge? what does it take to be an immigration judge? >> typically, you need a law degree. you need to be an active member of a bar somewhere and you need seven years of experience. generally, either preparing for or appearing in front of or appealing, you know, trial type or administrative type hearing settings. >> so, we're not talking about people who have seven years necessarily of immigration --erience, but >> there is no specific immigration experience requirement. we do ask each of the applicants to address there are six technical qualifications, they talk about experience with immigration, they talk about experience with high volume dock ets. they talk about experience with litigation. they talk about experience adjudicating cases things like that so we ask the applicants to address those, but those aren't mandatory qualifications. >> okay, so, you have a training process for people who are novices when it comes to immigration?

>> we are actually in the process of expanding that. when someone comes on board, they will do training at their home court for a little while, then come to the headquarters in falls church to get more training. we train them on the substance of the law, docket management, and in part best practices for handling cases and specific issues, then they will typically do more training. all in all come about two months worth of training before they are ready to take the bench themselves. they usually have mentor judges. we follow them and make sure that they're doing what they need to be doing and if they issues, we address them. >> there is a fairly close eye on new judges, recently hired judges to make sure that , everything is working out all right? we need judges so significantly right now and we depend on them so much it wouldn't make any sense for us to sort of throw them in the

pool and tell them they've got to sink or swim. we've got to give the training they need. >> unlike when you and i were trial attorneys. offices, youility know the report i'm talking about. 2017 gao report, concluded dook average, ithe doj on think you said before, 742 days over two years to complete the process. what steps is the department of justice taking to hire more immigration judges more quickly? dir. mchenry: this actually began just before i came back to eoir. the attorney general in april of 2017 announced a streamlined hiring process to address this issue. the process itself doesn't really change, but the key thing is it actually imposes deadlines.

the old process had been in place since 2007 had no real deadlines. so, when people moved through the process there wasn't , necessarily a push for it. and something as simple as imposing deadlines for each of the components to review has actually had an significant impact. since that time, the ad i put first out since i came back, closed at the end of june of last year. we anticipated bringing on an um -- at least a couple judges from that ad this month. i think that gets us to around 10 months. we anticipate bringing on the rest in july which would be right out a beginning of july, put us at about a year. so we've been able to, so far, reduce the hiring time from 742 days to 365 or less, so it's about 50%. mr. arthur: so you are telling me that part of that 742 days were because files were sitting on people's desks? dir. mchenry: i don't know if files were sitting on people's desks, but deadlines make a difference. mr. arthur: and you have has become at that

priority for you and the attorney general. dir. mchenry: hiring is certainly a priority. we need additional judges. we are authorized for 150 more than we actually have. every judge that we get on board increases our process and every judge on board is a weapon against the backlog, so we have a strong interest in getting them on as quickly as possible. it does us no good if we have to wait two and a half years to get a judge on board. mr. arthur: and i'm assuming you probably have individuals who are good candidates and end up finding something else to do in the interim? dir. mchenry: we do get people who withdraw or decline offers. i can't speak to their reasons. the circumstances, i'm sure, changes. mr. arthur: two years is a long time to wait. dir. mchenry: i would agree. mr. arthur: a long time to put your life on hold if you have to move across the country. dir. mchenry: i agree with that. i think people understand it is not an immediate process. they understand there will be some delay. you are right. to them to have years is too long, especially with the need we have. mr. arthur: let's shift gears

for a moment. there is now an office of policy. this is a new policy announced by the director. what is this office and what does it do? that is sort of a novel idea for the court system. dir. mchenry: it is and it isn't. other immigration agencies, especially homeland security, they have an office of policy. , centralized, and coordinate policies for that agency. at eoir we did not necessarily have a central coordination system. some things came from the office of general counsel, from the immigration courts, the board of immigration appeals, but there wasn't a central quarterbacking entity to help develop those policies and two, to make sure they were consistent across all the components. that's when the office of policy, that is one of its functions, to nature we have coordinated policies across all of our adjudicatory bodies. it's also going to take the lead on developing regulations and

it's taking a significant lead on our training. previously, each of the individual components conducted their own training. even though most of them are training on the same body of immigration law, they still have their own immigrant -- individual training ideas. with policy, we can make sure the training is consistent and uniform across all the bodies. it has also sort of helped us focus resources on areas we need, like training. mr. arthur: would you mind discussing the components at this time? dir. mchenry: in what sense? mr. arthur: how does it work, how does it go, is it annual? is it on an ongoing basis? dir. mchenry: we had multiple types of training. certain training is required by law. the antidiscrimination training is done on an annual basis. a lot of that is computer delivered at this point, but we do have some interesting variations of it. we also have training related to

certain issues that have come up in the country. there are some trainings dealing with mental competency issues, for example, and training resources on trafficking. not always, and have been successful, to have some kind of annual training event for immigration judges. the board has had its own training event as well. this year, we are combining the two as well because it's more or less the same body of law. sometimes, the training and past has been in person. at conferences, sometimes delivered by dvds. last year was not in person. the conference was canceled. this year, we do anticipate having an immigration judge conference. mr. arthur: is there any advantage between computer-based training and in person training? dir. mchenry: we have two weigh the pros and cons in the trade-offs. we are getting such a large immigration court, and it's only going to expand. at a certain point, it gets too

big for in person training to be as effective as it could be. there is also a cost issue when it brings 400 or 500 people together that we also have to be sensitive to. everyone on a certain level seems to prefer a in-person training but logistically it becomes more difficult. especially with computerized training, individuals can sort of take the lessons and learn at their own speed and their own time. speakingences, you are to the audience. some people are receptive to that. some are not. they work better when it's one-on-one on their desktop. we have worked with both methods to we will probably move changing how we deliver training regardless of the size. mr. arthur: and that training generally takes place when it's in person in washington, d.c.? dir. mchenry: washington or falls church. the northern virginia area. mr. arthur: have you thought about that a centralized

location, omaha, somewhere cheaper? dir. mchenry: [laughter] we have actually talked about going forward, with the number of judges we have and the number people would bring together we may have to divide the training up. we've made no commitment or no definitive decisions, but perhaps doing a training base on regions. we would not necessarily bring them all to omaha, but we might go to the central u.s. or certain circuits to go to when location -- one location. mr. arthur: you mentioned training on individual cases. it sounds to me like that if you brought judges from certain regions together -- unfortunately, we don't have a uniform system of immigration law because we have 11 different circuit court decisions to make -- courts to make decisions. could you talk about the training you have for individual decisions from this 11th circuit courts? mr. arthur: that is something the policy office has been able

to do an outstanding job on so far. they compile each week new circuit course kate -- circuit t case decisions that relate to immigration law could -- law. they could compile a new policy they compile new policies from other agencies to relate to immigration law in supreme court cases, class-action decision, anything of interest or potential relevant that they may need to know. they compile and send it to the judges on a weekly basis. that judges have essentially real-time information on lot of cases, policies, things that -- come out. a lot of judges keep up with the news and do their own work. sometimes law clerks will do the research, too. . we have been able to sort of in aalized the process to deliver updates as quickly as possible. by centralizing the training in general and creating the policy office, we have essentially made

it easier to deliver to the judges illegal updates and information, things they need as quickly as possible. by the time we get to a training conference, a lot of the cases old, ther eight months judges have already internalized them, and they don't necessarily need to have them repeated, but this way we give them the information they need as soon as possible. mr. arthur: i have written credit bid for this -- quite a bit about this, but this is a real issue for the judges, not to mention it's a shift in the law. it is difficult for the judges to apply that new law. this sounds like one of the ways we are going to put the judges in a better position to do that. dir. mchenry: it is incumbent on us to make sure judges have this up-to-date information as possible, especially with changes to the law. the new circuit court decisions practically every week with new regulations coming out. judges can look for it themselves. they have the law clerks do it. some of the components have their own subdivisions. this way we make sure we get it out in a uniform and timely manner.

mr. arthur: any big regulatory changes coming down the pipe for your agency, or is it too early to talk? dir. mchenry: it's probably too early at this point. we've had a lot of regulations on different agendas over the years that are still pending, and we are doing an overall retrospective review of everything. the most recent one was increasing the size of the board. i'm trying to think that there's anything else reset. nothing comes to mind. mr. arthur: ok. immigration judge productivity has declined in recent years, from 1356 case completions per judge in fy 2006 to 807 case completions in fy 2015. what are the reasons that you believe exist for this decline? dir. mchenry: i'm not sure we can pinpoint one central reason or determinant overall.

the same report that quoted the statistics talk about continuing -- continuances are definitely up. but it's also to some extent a byproduct of the hiring freeze. we had fewer immigration judges coming on board to handle the new cases coming in. we had to fit cases in where we could. there were docketing shifts and changes. theory or four of them over a two-year span. they got moved around on the dockets, which did not necessarily increase efficiency. the cases in the criminal related cases have become more complex. the courts have developed this approach called a categorical approach, modified categorical approach, that you almost have to do sort of a metaphysical break down of criminal statutes to make a determination as to whether it's a ground of removal or not. those have taken up more time. we have had a sharp uptick in the number of asylum cases. littleually take a

longer. it's a combination of those factors. i don't know if we can sort it -- pin port -- pin pointed to one factor. mr. arthur: you mentioned a hiring freeze in the past. that's why we only had 334 immigrations. do you know why? i don't want to opine about the reason -- reasons for your predecessor's actions. dir. mchenry: i really don't know. i was not at the agency at the time. mr. arthur: ok. done to increase the number of case completions per judge, consistent with due process? dir. mchenry: we are looking at a couple of things. the first is obviously resources. we need to make sure the judges are trained and we are working on that. we need to make sure judges have law clerks or sufficient legal resources. we spoke about that, to peer to we are adding law clerks and timely dissemination. as i alluded to before, we switched to electronic files.

it should make it easier for the judges to get into the case, to help prepare for it and aterstand what's going on the hearing, which should make it easier to make a determination. now we are also looking at other ways to streamline the process, encouraging judges and talking to them about bottlenecks they see and other procedural issues, but those are the main things we think can help improve immigration judge productivity. mr. arthur: ok. so you are getting feedback from the judges at the same time. dir. mchenry: absolutely. mr. arthur: let's talk for a moment about performance standards for 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? dir. mchenry: i think at this point, most people are probably aware. there was an email that went out in march, and it has been in the media. we do intend to implement performance measures, marriott performance measures.

merit 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. mr. arthur: what happens if you are in a judge in a court that only has 500 notices to appear each year? how are you going to meet 700 cases if you only get 500? dir. mchenry: 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 aaluation, if for some reason judge has not completed the number of cases 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. 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. mr. arthur: yes, it has not been that long since i was an immigration judge, we did have standards to meet, 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? dir. mchenry: 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 your 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. mr. arthur: 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? dir. mchenry: it's going to be fact specific and based on a situation. it could be a training issue, resource issue. it could be something his out -- somebody who has 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 are going to make a decision. 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. mr. arthur: i anticipate this will be a feedback loop were you looking at these numbers and performance to see what the agency needs, correct? dir. mchenry: definitely. one of the driving forces behind it is for us to understand better 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 on an ongoing basis. mr. arthur: do you think this is a reasonable number or about right? dir. mchenry: this is a reasonable 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. mr. arthur: 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? [laughter] 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? we. mchenry: something else

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 form of tissue, but also an -- issue, but also an issue for the backlog remanded to 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 107 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 see what the reason is. mr. arthur: so again, a feedback loop will exist. how do you see the standard improving the performance of immigration judges? dir. mchenry: a couple of ways. as i alluded to, it gives measures so the judges know where their performance needs to be. the factors are not as well defined in the prior evaluations. here, the clear number is objective. 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 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 causing the 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 not familiar? dir. mchenry: the certification process is in the regulations, has been around for many years, at least going back to the 1950's. under the immigration law, the attorney general has controlling authority to issue determinations of law. can referey general 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 it be deferred -- refer to the attorney general. typically they come up in one of those three manners. mr. arthur: so why can't the alien seek certification? dir. mchenry: good question. i don't know the answer. as i said, this process has been around since the 1950's. this is what was implemented then. mr. arthur: so there is actually an appellate right from the decision of the board of immigration appeals for the alien proceedings, correct? dir. mchenry: not administratively. typically, they found position -- file a petition of the circuit court of appeals over with the immigration cases heard. mr. arthur: the government doesn't have that right, correct? dir. mchenry: not in the current statutory scheme. mr. arthur: basically this is the method by which the director of ice determines that if a case deserves more review, they can seek that from the attorney

general, correct? dir. mchenry: that would be one method. there are a couple of quirks to it. dhs has used it in the past, but that is one possibility. mr. arthur: finally, you and i are both familiar, as result of interval surges -- individual service, with the office, you've been there three times. where there any surprises when you began work as the director? dir. mchenry: 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 . 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. 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 careers 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. to balance -- they have gone through of people--they have upheavals.h 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. mr. arthur: next, we will take questions from the audience. there have been reports of a revolt over the push for strict enforcement of faster processing under the terms administration. how are you dealing with that? dir. mchenry: 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 in

. we are fulfilling our obligations. mr. arthur: there are news reports the trump administration may be reassigning immigration judges from the cords in the interior to the border to respond to a recent spike in apprehension. don't these reassignments make the backlog that you described worse? dir. mchenry: we ran the numbers last year when there were judges reassigned. we found the judges completed i believe 2700 more cases than we would have expected them to have completed after a home-court. statistically, i'm not sure that's actually true. mr. arthur: so they are getting more cases done when they are assigned in this manner? dir. mchenry: that's what we found when we ran an analysis of the surge last year. mr. arthur: the you believe eoir is properly located within the executive branch? dir. mchenry: it 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 have reckoned with the consequences. yes, we do feel it is best located where it has been since 1940. mr. arthur: 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 quarts? -- courts? dir. mchenry: i don't know that anyone has consulted the article three quarts. i don't know that the article iii judges right now would be 6920 newto take on cases. mr. arthur: they took the newest cases first. our immigration courts not -- are the immigration courts not taking the oldest cases

first? dir. mchenry: again, we're sort of competing in trying to balance different interests. 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 too long without it the same time churning cases on the docket but mr. arthur: 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? dir. mchenry: i sort of want to repeat the answer i just gave. it is sort 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 will be the most efficient way. we're looking at all of our processes, specialized docket and focusing on particular types of cases that can be handled in an expeditious manner. 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 efficient. not an the same way i understand they are trying to influence but it is something we are looking at. to thisur: you will before. we just saw the supreme court issued a decision that greeted a --e shift in immigration raw law. it involved 18 united states code sessions. 16 b, crime of violence. we will not get into that. and otherd that case decisions from lower court affect the productivity of the immigration courts?

, the approach that i have alluded to, there is a great deal of confusion. several federal circuit court judges that have expressed the same sentiment. from a commont sense perspective to meet definitions. and weory for robbery find that court decisions, robbery is not a robbery offense. perjury is not a perjury offense. it has caused confusion, consternation, and frustration. and when you have that, frustration leads to delays, inefficiencies. it is not maybe a measurable impact but has impact on the length of time the cases have been pending. mr. arthur: 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? dir. mchenry: 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 .hat works with them we're happy to take up ideas or suggestions they may have. good answer. will it be possible to work through a backlog of over one million cases? dir. mchenry: it's an open-ended question. is it possible to do within one year? no. but with the process and improvements, getting judges hired in a timely fashion. look through our own procedures. we can't give a definitive an unsolvable problem. this issue sort of

undergirds the entire backlog. what are the problems for the backlog. why is this problematic to new york? uniformly and expeditiously deciding cases. it is an and. we want them done expeditiously. there are judge candidates. that is an actual decision. those were entered swiftly and efficiently so that they can be executed and out with however they need to.

the longer the cases drag out. it is a matter of justice. mr. arthur: i want to thank you for being the first of our immigration newsmaker. [applause] [captioning performed by the national captioning institute, which is responsible for its caption content and accuracy. visit ncicap.org] [captions copyright national cable satellite corp. 2018]

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