>> next, a look at the backlog of cases in immigration courts and how to deal with it. you will hear from jason mckinley >> 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,

-- immigration review. 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 his appointment as an elj. he has truly rejoined the agency

at an important time in their history. it has 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 3400 -- 334 immigration judges, and did they hear thousands and thousands of cases every year. and in the second component, either period of time can appeal a decision by an immigration judge and we have is a board members. we are authorized for 21. they hear about 15,000-20,000 appeals per 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. these are premised on illegal or unlawful hiring practices, our failure to maintain certain paperwork to 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 facts in order to make decisions. and they have a lot of civil procedure options, which is summary decision. you have discovery, things like that. they are quite different. you have mentioned that you have just action over the immigration court. over thejurisdiction alj, but you also have jurisdiction over the chief administrative hearing officer, which is actually reviewing bobby for those. how do you balance those

responsibilities without infringing on the independent 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 -- we have 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 -- adjudicating as many cases as they can and making 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 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've been able to get the number down, closer to the 12 month mark. there is room for improvement but we're working on it.

the third issue, i am not sure 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 electronic filing, electronic 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, -- courts six quarts this 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 at 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, i 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] and they havens 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. space we could be using for

additional personnel or courtrooms. eight hi all of. -- pile up. sometimes we send them to the federal records center, but we have to keep a lot of them on-site. they take up space on 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 cassette recorder with all these people in a courtroom, to make sure it is all recorded. when you are also getting a video feed. 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 easier 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 of the cases, especially the ones who have been 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 sticky notes, so i would greatly 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 typically comment 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 -- low 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 came 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. the 690 number are 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 like 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 mission statement of the agency? >> we've outlined steps we plan to take over the past six to seven months. ,he first is 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 -- backlog 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 worked on docketing efficiencies, 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 us to hire 484 immigration judges. it's up 150 from where we are now and that should start 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

in the interim we are looking at more 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 very we get attorneys for 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 clerk for 10 immigration judges. for each judge, i tried to give 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. >> how many immigration judges 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 advertisement 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. first, the advertisement is posted on usa jobs, like pretty much any other government job. that is the one that is out there that opened yesterday. it is also posted on the department's website. 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, the attorney general will appoint that person. >> is that a formal process or is jeff sessions looking at the resumes of the various individuals? >> i can't speak to let the -- to what the attorney general look that, but it goes through several levels of review. 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 experience, 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 dockets. 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, we will try to impart to them 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 -- and if there are any 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? dir. mchenry: 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. the accountability offices, you know the report i'm talking about. 2017 gao report, concluded dook -- concluded that it took the doj on average, i 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. and just before the report came out. 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 first ad i put out since i came back, closed at the end of june of last year. we anticipated bringing on an um -- we anticipated bringing on 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 indicated that that has become a 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. 2.5

2.5 years is simply 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 component that was announced by you as director. what is the office of policy 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. it does precisely what it has. it creates, centralizes, and coordinates policies for that agency. at eoir we did not necessarily have any kind of 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 really kind of a central quarterbacking entity to help, one, 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 is set up for, to make sure that 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 sort of 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 training available to 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. you know, the antidiscrimination training and things like that is done on an annual basis. a lot of that is computer delivered at this point, but we do have some in person variations of it. we also have training related to certain issues that have come up around the country in certain types of cases. there is some training dealing with mental competency issues, for example, and training resources on human trafficking,

issue-specific type training. we also try, and have not always been successful, to have some kind of annual training event for immigration judges. the board, historically, 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 judge's training in the past has been in person. sometimes delivered by dvds or cds. last year was not in person. the conference was canceled. this year, we do anticipate having an immigration judge conference. or a training event where everyone will be together. mr. arthur: is there any advantage between computer-based training and in-person training? dir. mchenry: we have to sort of 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 you bring 400 or 500 people

together that we also have to be sensitive to. so i know everyone on a certain level seems to prefer in person training, but logistically it becomes more difficult. secondly, with dvd training, computerized training, individuals can sort of take the lessons and learn at their own speed and their own time. our training messages, when you bring people to conferences, you are speaking 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 and we will probably move to changing how we deliver training regardless of the size. but there are trade-offs however we do it. mr. arthur: and that training generally takes place when it's in person in washington, d.c.? correct? dir. mchenry: washington or falls church. the northern virginia area. mr. arthur: have you thought about maybe a centralized location, omaha, somewhere cheaper? [laughter] dir. mchenry: 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 based on regions. we would not necessarily bring all of the judges to omaha, but we might judges from the central u.s. or certain circuits to go to one location. mr. arthur: you mentioned training on individual cases. it sounds to me like that if you brought judges from certain regions together, they could -- unfortunately, we don't have a uniform system of immigration law because we have 11 different circuit courts to make decisions. could you talk about the training you have for individual decisions from those 11 circuit courts? mr. arthur: that is something our policy office has been able to do an outstanding job on so far. they compile each week new circuit court case decisions that relate to immigration law. they compile all new policies

from other agencies that relate to immigration law, supreme court cases, class-action decisions, anything of interest or potential relivance that they may need to know. they compile and send it to the judges on a weekly basis. so that judges have essentially real-time information on cases, policies, things as they 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 centralize the process in a way to deliver uniform and consistent material to the judges as quickly as possible. when we had a supreme court decision a couple of weeks ago, we were able to get something out to the judges the same day, explaining the decision and what was going on. by centralizing the training in general and creating the policy office, we have essentially made it easier to deliver to the judges legal updates and legal information, things they need as quickly as possible.

by the time we get to a training conference, a lot of the cases are six or eight months old, the judges have sort of already internalized them, and they don't necessarily need to have them repeated, but this way we can give them the information they need as soon as possible. mr. arthur: i have written 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 the law. the new circuit court decisions practically every week with new regulations coming out. you know, judges can look for it themselves. they have the law clerks do it. some of the components have their own little subdivisions. this way we make sure we get it out in a uniform and timely manner. mr. arthur: any big regulatory changes you see coming down the pipe for your agency, or is it too early to talk? dir. mchenry: it's probably too early at this point.

i mean obviously, we have had a lot of regulations on different agendas over the years that are still sort of pending out there, and we are doing an overall retrospective review of all of our rights. i guess the most recent one was increasing the size of the board. i'm trying to think that there's anything else recent. 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 that is dispositive or determinative overall. the same report that quoted the statistics talked about continuances, and those are definitely up. especially immigration

judge-related continuances. but it's also to some extent a byproduct of the hiring freeze. so we had fewer immigration judges coming on board to handle the new cases coming in. we have had to sort of fit cases in where we could. there were docketing shifts and priority changes. there were three or four of those over about a two-year span where cases got moved around on the dockets, which did not necessarily increase efficiency. the cases, especially 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 breakdown 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. asylum cases typically take a little bit longer, a bit more evidence, that sort of things. so it is probably a combination of those factors. i do not know if we can pinpoint one factor. mr. arthur: you mentioned a

hiring freeze in the past. that is part of the reason we only had 334 immigration judges. do you know why this was not made more of a priority? i do not want to pine about the reasons for your predecessor's actions. dir. mchenry: i really don't know. i was not at the agency at the time, so i don't know. mr. arthur: ok. what can be 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. i have talked about that as we are adding law clerks and providing information and timely dissemination. as i alluded to before, we switched to electronic files. it should make it easier for the judges to be able to get into the case, to help prepare for it and understand what's going on at the hearing, which should

make it ultimately 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 of the same time you are implementing these rules. 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, numeric performance measures. it is important to clarify that immigration judges have been subjected 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 sort of numeric standards. we think from an objective perspective, if you are being evaluated as an employee, 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 throughout each year? how are you going to meet 700 cases if you only get 500 and he a -- 500 ntas? 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 is also a seventh sort of catch-all.

before we come to a final evaluation, if for some reason a judge has not completed the number of cases we think is appropriate, we will look at these factors and the catchall. we will look at the overall context. it could be something -- obviously, if a judge doesn't get 700 cases, you can't expect the judge to complete 700. so again, 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,

first, the measures are not scheduled to go into effect until the beginning of the next fiscal year, so that is 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. but we want the judges to be aware of the numbers to help try to make them 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 -- their own caseload their own , numbers themselves, real-time on a daily basis, and they can see where they stack up. other agencies use similar systems. other agencies have similar performance measures and use those types of systems. we are going to make sure the judges have enough feedback, have enough information so they know kind of where they stand and where there may be some potential issues. mr. arthur: what could be the implications if one fails to meet these standards? do you get fired?

is this an opportunity for additional training? do you identify people who need a little bit 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 somebody who has been out for a while for some reason. it could be going on detail. there are 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 constantly 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 productivity. we will look at it and we will see where the metrics stack up. we will definitely get feedback. we are already getting feedback, to some degree. and we will evaluate on an

ongoing basis. mr. arthur: do you think this is a reasonable number, that this is about right? dir. mchenry: this is a policy judgment 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. we think 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. anyway 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? dir. mchenry: something else we want to look at in terms of immigration judge performance just in theis not

number of cases, but also how many of those cases are coming back. not only is it an equality and performance issue, but also an issue for the backlog. the more cases remanded, the larger the backlog is going to grow with the more time is taken away from handling new cases. so 15% is again a policy judgment. it is used by other agencies. and 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 -- one out of cases. seven 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 case, 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 side 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 seventh or 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. mr. arthur: so again, a feedback loop will exist with respect to these numbers. how do you see the standard improving the performance of immigration judges? dir. mchenry: a couple of ways. as i alluded to, it gives objective measures for what the judges know their performance needs to be. the prior performance evaluations, the factors are not quite as well defined. here, the clear number is objective. the 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 in discussing this back and forth. it will help supervisors identify where the issues are, training, resources, or something else, and help the judges, too. they may get a different perspective. if they see a certain type of case is causing them problems or a particular docket issue is

causing problems as well. the more interaction and feedback there is, the better off we are going to be. mr. arthur: 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? dir. mchenry: the certification process is in the regulations, it's been around for many years, at least going back to the 1950's. under the immigration law, the immigration and nationality act, 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 or 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. and third, certain officials at the department of homeland security can request that a case be referred to the attorney general. typically, the cases come up in

one of those three manners. mr. arthur: so why can't the alien seek certification? dir. mchenry: good question. i don't know why. i don't know the answer. as i said, this process has been around since the 1950's. this is what was implemented then. i don't know. mr. arthur: so there is actually an appellate right from the decision of the board of immigration appeals for the alien respondent proceedings, correct? dir. mchenry: not administratively. there are appellate rights to federal court. typically, they file a petition in the circuit court of appeals over where the immigration case was 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. it sorted varies how dhs has

used it in the past, but that is one possibility. mr. arthur: finally, you and i are both familiar, as result of individual service with the office -- you have been there three times, i have been there two times, so you have one up on me. were 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 who are at eoir. a lot of it is senior staff and a lot of it is more experience people, that is what we call eoir lifers. they have had a lot of the same leadership team for many years. they have a lot of institutional knowledge, a lot of experience we need to draw on. but it's also important to balance that with new ideas and sort of bringing in people who have not spent their entire careers at eoir. we are trying to balance the new ideas and the new blood type of thing with the people who have

actually gone through changes in the past and gone through differences in the system. they have gone through upheavals and sort of balance their experience, their institutional knowledge, their ideas of what works and what 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 aspect to it by far. mr. arthur: next, we will take questions from the audience. there have been reports of a revolt among i.j.'s 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. we are fulfilling our obligations. mr. arthur: 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 backlog worse? , dir. mchenry: when 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 at their 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 immigration judge search last year. mr. arthur: do you believe eoir is properly located within the executive branch? dir. mchenry: eoir has been part of the department of justice since 1940. it has been 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.

i know there have been a number of proposals to move them, but i am not sure those proposals have reckoned with the consequences. yeah, we do feel it is best located where it has been since 1940. that is the department of justice. mr. arthur: you may have answered this question, but to give you the opportunity -- how do you respond to those who contend that these cases should be handled by article three courts? dir. mchenry: i don't know that anyone has consulted the article three courts to answer that question. i would have to defer to them. i don't know that the article iii judges right now would be equipped to take on 692,000 new cases. mr. arthur: when ins asylum to a cold, they took the newest cases first in tackling the backlog. are immigration courts not taking the oldest cases first? dir. mchenry: again, we're sort of competing in trying to balance different interests. as i alluded to earlier, we have

changed docketing strategies and docketing 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 a number of cases pending for a long time. we are trying to make sure -- it does not benefit anyone to wait long for the decision, whether it is going to be favorable to the respondent or 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 at the same time turning cases on the docket but the overall adjudication more efficient. mr. arthur: should the backlog reduction start with the newest or the oldest cases? dir. mchenry: it is kind of a balance. if you prioritize one set of cases over another, you will lead to some docket churning. i do not think it will be in the most efficient way. we are looking at all of our processes and making specialized

dockets, and number of cases -- or particular types of cases that can be handled in an expeditious manner, but it is not a black and white, big picture thing that we can say the longest for shortest cases will be the most efficient. mr. arthur: so not that sort of thing? dir. mchenry: not in the way i understand it, but it is something we are looking at. arthur: we just up the supreme court issue a decision for the huge shift in immigration law. involved 18 united states code section 16b, the crime of violence. how has that case and other decisions from lower courts the effect of the productivity of immigration courts? mchenry: it out with a --

of aa constitutional vagueness issue. other court decisions, modified orical. we've had judges and federal circuit court judges who expressed the same sentiment. that are a lot of crimes seem intuitively from a common sense perspective to meet definitions. there is a category for robbery, immigration nationality act. we are finding court decisions that robbery is not a robbery offense, for perjury is not a perjury offense. other crimes are not crimes of violence. it has caused confusion, castor nation and frustration. when you have that frustration, it leads to delays and inefficiencies. it is not maybe a measurable impact, but it's had some impact on the length of times the cases have been pending. mr. other: have you been an executive branch got? i know you're probably not going to answer this, they can you think of any fixes congress

can make to make the process better? mchenry: we are happy or with congress in the office of legislative affairs. we're happy to take up any ideas or suggestions they may have. mr. arthur: good answer. what really be possible to work through the backlog of one million plus cases? that's anry: open-ended question because you cannot give a timeframe. within a year, no. we get the judges hired in a timely fashion. we look through our own procedures. ultimately, yes. i can't give a definitive timetable, but we don't consider it an unsolvable problem. mr. arthur: let me wrap up with this question. i think this is an issue that undergirds the entire backlog. what are the problems with the backlog?

why is this problematic to the interest of justice? why is this problematic to eoir? dir. mchenry: you alluded to your mission statement about deciding cases. all three of those are important. you want them to be fair in the due process. we also want them done expeditiously. they are not mutually exclusive. the longer somebody has to wait, they have to wait for years, they talked about judge candidates but in your lives on hold. somebody with a valid claim is putting their or her lives on hold until they get the actual decision. likewise, the government has an interest in the future individuals subject to removal, that 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, justice delayed is justice denied. that is one of the issue.

the longer the case's dragged out, resource strains, at the end of the day is simply a matter of justice. nobody wins of it takes four years to decide a case. you're in charge of 642,000 immigration or cases, lord knows how many bia cases. i will leave it right there but it want to thank you. thank you for being the first of our immigration newsmakers. appreciate you coming. dir. mchenry: thanks for having me. it was my pleasure. [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] morning, we are in lincoln, nebraska, for the next up on the c-span bus 50 capitals tour. governor peter ricketts will be our guest during washington journal, starting at 9:45 a.m. eastern.