tv Panelists Discuss the Immigration Court Cases Backlog CSPAN August 22, 2017 5:44pm-7:01pm EDT
is hurting largely because trump has doused racial tensions with gasoline. i fear the president may be looking to light a match. that is from the mayor of phoenix where mr. trump has a rally tonight at the phoenix convention center. we have it here on c-span. you can listen on the free c-span radio app. a conversation about the backlog of immigration court cases waiting to be resolved. andrew arthur talked about his paper that found the doubling of the backlog of cases from 2006 to 2015 was not due to an increase in the number of cases but a doubling in the length of time it takes every case to be resolved. this runs an hour and 15 minutes.
>> good morning. i'm the executive director of the center for immigration studies. a think tank in washington that examines and critiques the impact of immigration on the united states. the issue of immigration courts and the backlogs and immigration courts has broken somewhat into the general news. it seems like the thing that would be inside baseball for immigration experts but the backlog in immigration courts has grown dramatically.
discuss a paper that the center for immigration studies published on this issue. the causes for the backlog. the first presenter on the panel today is going to be the author of that paper. a former immigration judge now resident fellow in law and policy at the center for immigration studies. he has worked as a senior staff member and a couple of congressional committees, so here us seen the immigration issue from almost all sides. mr. arthur is finished we will have comments on his paper, outside for those who don't have it, and more general thoughts about the issue of the immigration courts. we have two people who are experts in this issue. berman.ll be larry as that suggests, he is an
immigration judge and has been for 20 years. our other commentor is going to be from the heritage foundation. used to be in the justice department's civil rights division. he has worked on election law and a variety of legal issues and has the paper upcoming on the issue was immigration courts. i'm looking forward to hearing from everybody's comments. we will have a q&a after that. >> thank you. before i begin, i want to make one comment. week, juan passed. he was a good public servant. he died unexpectedly at a rather
young age. i did want to note his passing before i began. the government accountability office issued its report on the management. that revealed a significant decline in the ability of the the completeourts, cases over the last two years. the immigration court backlog, cases pending from previous years more than doubled between fy 2006 and fy 2015. the backlog rose from 212,000 median time was 198 days. cases.000 pending when the meeting -- media
processing time was 401 days. these backlogs have real-world consequences. some immigration courts were scheduling hearings several years in the future. calendar mastered hearings, the initial hearing scheduled in may 2021. one court scheduled individual hearings, merit hearings when your case is finally decided five years into the future. which means you are going to go to court for another five years. the government may have to wait years before they can get a removal order. basically that person gets to stay in the united states during the time of the backlog.
, who may bely interested in bringing relatives to the united states, the alien also has to wait until a final order can be issued. this can be problematic for an individual who may be able to bring relatives to the united states. the backlog has not resulted from an increase in new cases over the past 10 years. new case receipts declined by 2009 to fiscal year 200-2000 new cases in fiscal year 2015. we have seen a decrease in new cases. otherid increase were case receipts. motions to reopen. they are under orders of removal
, matters that are administratively closed. what a case is taken off of a court's docket. these are cases that more or less have been decided or pending lumped back onto the backlog. new case receipts fell. immigration courts cases annually. the number of immigration court cases annually declined by 31% 2015, 287,000 cases and fy 2006, even as the number of ig's increased. the other issue is many of those cases werecas
closed.ratively no resolution was ever reached. the decisions were 95% of the total and fy 06. effectively they were pushed to the side. if the number of judges increased and the number of new cases decreased, why is the backlog growing? it is taking longer to issue decisions. the average time between the filing document grew between fy 06 and fy 15. to 286ing from 43 days days. all of this begs the question of why it is taking so much longer to crimp -- complete immigration
cases. increasehe result of a in continuances. you go to court, you asked for a time to continue. these are the continuances that take place. the number of cases with four or more continuances increased from 9% to 20%. had forof five cases continuances or more. there are several reasons why immigration courts are in this position and why they should get a handle on and decrease the backlog. the first is resources. there are too few people like larry for the number of cases that clog the immigration
courts. when a judge has a docket that large cases must be sent out for a extended amount of time. the good news is the attorney general has promised and recognize this problem and promised to hire 125 new judges. attorney general sessions has begun to deliver pre-21 judges -- deliver.orn in 21 new judges have been sworn in. in the course of just one year between fy 13 and fy 14 the byber of minors increased
70% and the aliens and family units increased by 360%. while many reasons for this increase have in advanced, the most significant was word-of-mouth. people called back to the home country and said i came to the united states. they let me into the united states. they released me. part of it was lies told by smugglers who said if you come to the united states you are going to get permission to remain in this country. smugglers want to make money. than byr way to do it promising something to potential clientele. strainedk court -- court documents. they decided to prioritize new cases. they pulled judges off of pending cases. caseswere a bunch of right for decision that had to be pushed back because judges were reassigned.
the cases involving children and family members are more complex than cases involving single adult males. single adult males who have come here to work, they just go home. when you are talking about a minor, the minor will ask for time to have a hearing. you may have to grant multiple continuances to find a lawyer. more complex. the obama administration's action programs for aliens who were brought in a legally as minors led to multiple as aliens requested time to explore such relief and apply for the relief. that slowed up the docket more. these were not the only obama
had an effect.at beginning in 2011, ice put in place prosecutorial discretion rules for cases of removal. they told their attorneys to go through their pending cases to find cases that were priorities cases thatld sure were not priorities were not on the docket. it took attorney time that could have been spent completing cases and put it to reviewing cases. apex inort reached its policies fornson, the apprehension and attention of undocumented immigrants. and limitedt limits cases that would be prioritize for prosecution.
directedg the caseload ice attorneys to join in on motions for cases. attorneys had to reveal their files. these policies made it clear the administration did not consider the removal of any except the most serious cases to be j's in aate, placing i bind. this clog the courts even more as non-meritorious cases continued. people who would have taken an order of removal hoping their case would be one of the ones that would be taken off of the docket.
the new administration is taking a different task. to expand attention. and offers more clarity removes incentives for movable aliens who do not have relief to fight their cases. we have seen the number of -- they areemoval actually being ordered removed by the court. two other factors increase the backlog. activist judges have complicated the process to ascertain whether certain convictions render alien removal theory and the ninth
circuit, a series of decisions increased the aliens eligible for relief. these decisions inhibit the make timelyj's to judgments. i fully expect attorney general sessions will litigate cases before the federal courts than his last two predecessors did resulting in more bright line decisions to provide guidance to j's to bring back the backlog. some alien signal to the continuances for counsel. some attorneys seek multiple continuances for case preparation and riling applications. for ans little downside immigration judge who grants numerous continuances, because shut orders can really be appealed. however, there is tremendous
reputational damage that can occur when a motion to continue is denied. in such a case, it is possible that the board of appeals could find that the ij denied due process to an alien by denying a , even in the case where multiple continuances have already been granted. and operating policies and procedures memorandum was issued to conjure -- toer of continuances curb the number of continuances. -- i expect attorney general sessions to follow up on and hope to clarify when the judges should and should grant continuances. backlog is two yards -- too large.
fear fromittle to i.c.e. in the prior thatistration, i know reducing subordinates will reduce it to more manageable levels. mark: larry? larry: thank you. first the disclaimer so don't get hired. i'm speaking for the national immigration official judges of which i am an elected officer. my opinions will be my own and formed by many discussions with our members in all parts of the country. i am not speaking on behalf of the department of justice, the chief judge, or anybody else in the government. that is important. -- naij?he end our focus is rejection of the
public. ofare supported by parties both administrations with the proper and efficient administration of justice. troublehad just as much with republican administrations .s democratic administrations it's been my experience that the people at the top really don't understand what we do and consequently, the decisions they make are not helpful. for example,-- well, let me backtrack a little bit and talk about our organization. immigration judges are the basic trial judges that hear the cases. above us is the board of immigration appeals who function as if they were an appellate court. we, since 1996, have been clearly designated as judges by
congress. we are in the statute. we have prescribed jurisdiction and powers and congress even gave us contempt authority to be able to enforce our decisions. unfortunately, no administration has seen fit to actually give us the contempt authority. they've never done the regulations, but it's in the statute. the board of immigration appeals is not in the statute. it has no legal existence, really. it's essentially an emanation of the attorney general's discretion over immigration law. the members of the board of immigration appeals are in some cases they've got some experience, generally they don't have very much. they're a combination of people in the other parts of department of justice and deserve a well-paid position. very often, they are staff attorneys who have basically moved up to become board members skipping the immigration judge process.
very few immigration judges have ever been made board members and none of them were made board members because they had been immigration judges. if they were, it was largely a one sentence. the administration of the executive office for immigration review, in which we are housed, is basically an administrative agency. we are judges, but we don't have a court. we operate in an administrative agency that's a lot closer to the department of motor vehicles than it is to a district court or even a bankruptcy court, article one type court. our supervisors, i'm not sure why judges need supervisors, but our supervisors are called chief -- assistant chief immigration judges. some of them have some experience. some have no experience not only as judges, but really, as attorneys.
they were staff attorneys working in the bowels of eor and gradually became temporary board members and then permanently board members. interestingly when a court of , appeals panel is short a judge, they bring up a district judge. eor used to do that bringing up immigration judge to fill the panel in the board. they don't do that anymore. they appoint the staff members as temporary members, which is shocking when we tell judge to that, and when the panel was short and put the law clerk on the panel. but that is what goes on. the top three judges until recently, the chief judge and the two primary deputies had no courtroom experience that i'm aware of. the two of them have gone on, unfortunately one has gone on to , be a bia member and the other retired. our direct supervisors are the
chief immigration judges, some are in headquarters and they generally have very little experience. others are in the field and they do have some experience, although, for example, the last two acij's, assistant chief immigration judges who were , appointed became judges in so they don't have vast 2016. experience, although they may be fine people with other forms experience, but this agency is not run by experienced judges and i think it's important to understand that. there's a severe misallocation of resources within eor. i think congress has probably given us plenty of money, but we misuse it. in the past administration, the number of senior executive service, ses officials has doubled. maybe they needed some more
administrative depth, although i doubt it. the assistant chief immigration judges are proliferating. i think there's 22 of them now. these are people who may do some cases, some do no cases, they generally don't really move the ball when it comes to adjudicating cases. somehow the federal courts are able to function without the intermediaries and supervisory judges and they think we function better without them as well. to give you a few examples, i could give you a thousand examples, if you want to stick around, i'll be happy to talk about it. art was talking about the juvenile search. i think it was approximately 50,000 juveniles came across the border. to appear to be tough, i guess,
they were prioritized. the official line is we are going to give them their asylum hearings immediately. i'm not sure what kind of an asylum case a six-year-old would hear the caseould and do it quickly. and discourage people from coming to our country, but in fact what actually happened is the juvenile docket is basically a meet and greet. -- first ofre not all, i'm not allowed to be a juvenile judge. the juvenile judges are carefully selected for people who get along well with children, i guess. really, what they do, is they just, they see the kids periodically and in the meantime, the children are following their asylum cases with the asylum office where they're applying for special immigrant juvenile status, various things. but judge time is being wasted on that. another example is the current
surge. i have a really busy docket. we talk about cases being scheduled in 2021.know 2021 -- the backlog for me is infinite. i cannot give you a merits hearing on my docket unless i take another case off. my docket is full through 2020, and i was instructed by my chief immigration judge not to set any cases past 2020. so, they're just piling up in the ether somewhere. as busy as i am, they send me to the border, but these border details are politically oriented. first of all, we probably could be doing them by televideo, but assuming they want to do them in person, you would think they would send only the number of judges that are really needed, but in fact on my last detail of ten business days, two week detail, two days i had no cases scheduled at all. and back home,
having two cases off the docket , -- two days off the docket which almost never happens would be useful because i could work on motions and decisions, but when i'm in gina, louisiana, i can't really work on my regular stuff. so, i'm just reading e-mail and hanging out there. the reason for that is because there's been no attempt to comply with the attorney general's request that we rush judges to the border with at the same time making sure there's enough work or not to send more judges than is necessary to do the work. i assume that people that run our agency just want to make the attorney general happy and they send as many judges to the border as possible. one particularly bizarre example was in san antonio. the san antonio judges were doing a detail to one of the outlying detention facilities by
televideo. but they want today rush judges to the border so they signed a , bunch of judges that had their own docket to take over that docket on one week's notice. that meant that the judges in san antonio couldn't reset the cases. you've got to give at least ten days notice of a hearing by regulation. so, we had judges taken away from their regular dockets to do that. judges who normally who would have done that, who were already on the border -- san antonio is pretty close to the border -- didn't have anything to do. this may be extreme cases and it happens too much because of political interference and it's nothing to do with party. we've had the same with democratic and republican administrations. it comes from political decisions animating the process and they
don't understand what they're managing, just an attempt to placate the guy on the top. so, that's basically what's been happening. am i over my ten minutes here? >> yeah, but you're right at it. you've got a couple more minutes, that's fine. >> let me just go over some possible suggestions. let judges be judges. immigration judges that control their own courts and documents. -- we should be able to supervise our own law clerks and assistants which currently we don't, and the authority we were given in 1996 should finally get some regulations to implement it. reduced.needs to be there are too many jobs at headquarters, and to feel in the field. when it was originally set up the idea was that each judge would need three legal assistants to docket the cases and find the files and make copies and all of that. at one point last year, we were down to less than one legal
assistant per judge. in arlington, where i am and in los angeles it was even worse. when you do that, the judge is looking for files, the judge is making copies. the judge doesn't have the evidence that has been filed. there's nothing more annoying than to start a hearing and to find that evidence was filed that i don't have. the case has to be continued. i have to have a chance to find the evidence and review it. it would be nice if our management were more experienced than they are. at least have some more courtroom experience. we need an electronic filing system like the other courts have. fortunately, that is one thing that mchenry said was priority and i think he will take care of that. the bia is a problem. they don't have the experience that the federal courts would defer to.
consequently, i think a lot of the bad appellate law art was referring to is caused it i the fact that bia really doesn't have any respect in the federal court system. they are not immigration experts. deference, but they are not getting it from the court of appeals or supreme court, either. the bia also romance way too many cases. when we make a decision we send it up to the bia. we don't really care what they do. they could affirm us, reverse us, we don't want to see it back. we have too much stuff for us to see them back. this happens all the time. if a remand the case, they don't ever have to take credit for the decision they make. i assume that is why they're doing it try to make us do it. , we need a proper judicial disciplinary system.
starting in 2006 which is where the backlog problem began, the attorney general first of all subjected us to annual appraisals, evaluations which previously opm had waived due to our judicial function. so, that is a waste of time. judges were punished for things that are not punishment. judges were punished because a court of appeals would say that you made a mistake or he was rude. it's just crazy. judges were punished or could be punished for granting or not ranting continuances. no judge was ever punished for granting continuances. so, it's no surprise as appointed at continuances have been granted at a much greater level. in fact, too great a level. but when in doubt we continue now because if we don't do that with subject to punishment and nobody really wants that. finally the
ultimate solution i think is an article one court like the bankruptcy court, a specialized court could be in the judicial branch, could be in the executive branch to give us independence, to ensure that we have judges, appellate judges who are appointed in a transparent way, being vetted by the private bar, the government and anybody else. and i am way over my ten minutes so i will be sure to babble on , later if you want me to. >> thank you, larry. hans. hans: thanks, mark. kovsky.s von spa i'm a senior legal fellow at the heritage foundation. ii was asked to take a look at art's paper, which is a very good
paper on the problems inside the immigration court some going to talk about that a little bit and then talk a little bit about a couple of other recommendations that i have on this issue. but we need to understand the numbers. art has done a very good job of going through the huge backlog of cases in immigration courts, how they have increased significantly during the obama administration, how not only did the backlog of cases increase, but most significantly the time needed to complete cases went up in a huge amount. it's important for all of you and for those watching this on c-span to understand that the immigration court are not article three federal courts. they are administrative courts within the us department of justice. we have similar courts in other executive agencies, people who come for example, get into disputes over social security disability benefits know that they end up before an administrative judge and social security administration. so we have two levels within the , department of justice.
we have the immigration judges who act as trial level judges and her cases and demand the board of immigration appeals that judge burman has mentioned the bia. we have two levels of courts. it's important for everyone to understand that aliens have very extensive due process rights in those courts. i think the last time i looked at the manual, describing the procedures for the immigration courts, it was over 200 pages. and not only do they have all kinds of rights that we would expect that u.s. citizens have, everything from the ability to be represented by counsel, they have the right to see the evidence against them, et cetera, et cetera. there's a whole extensive set of due process rights and that's important for people to understand. these are not kangaroo courts at all. aliens have extensive due process rights, and that's important for everyone to understand. art has gone through and defined the problem in the paper and he's come up with a recommended set of solutions, all of which i agree with.
more resources are certainly needed, more judges, or staff. the attorney general has already taken good steps towards that. it's not just that they need new staff, but something else the attorney general said is also important, which is to speed up the process of approving individuals who are going to be judges. speed is very important in this process. one of the points art makes in this paper which is important is the change in border policy and its effect. because the whole point of having an administration who makes it very public they are actually going to enforce immigration laws, which prior administration make clear there were not going to do, is that as a deterrent effect. anyone who doubts that can look at the numbers, the number of people trying to cross illegally across the border since the trump administration started has dropped dramatically the last . i think time also the numbers
over 60% down. that is important because the less people you're trying to get into the country illegally, the long-term effect on that is to reduce the number of cases in the courts. one of the other problems we haven't talked about today but , is an important one is that we also have had the significant problem of unenforced removal orders. once this process has been completed and there's actually, a final decision by an ij, immigration judge, and board of immigration appeals, and a removal order is issued, those go over to the department of homeland security for enforcement. as of may, 2017 the number of unenforced removal orders was 953,000, a huge number. why? because the prior administration didn't really want to enforce
these removal orders and so he -- so they let them pile up at dhs, and that's something that this administration has got to do something about. but the deterrent effect is very important. another number that i found was from 2009- so basically during 2013, the obama administration, 95% of aliens deported were criminal aliens. so, in essence people knew that if you got in the country illegally, unless you broke another law, you were not going to be removed by the administration. and the change in policy from this administration as art says in his paper, the change in an material enforcement saying if you're in the country illegally, you are not given immunity. that's important again to reducing the backlog in the court. by the way, the prior administration wasn't even very good at doing that. instead, its priority was removing criminal aliens, the last numbers i saw were that
large numbers of what i.c.e. considers level one and 11 two offenders -- i.c.e. has this categorization system for debate on how serious the crimes are committed -- i'm not talking about immigration crimes, talking of the crimes committed when people are illegally in the country. level i, level two of the worst offenders. those are murderers, drug traffickers, kidnappers, sex offenders. in i.c.e. released 36,000 convicted 2013, criminal aliens. in they released over 30,000 2014, convicted criminal aliens, people have been convicted of serious crimes. since 2013 according to another study cis did, there's a late 124 criminal aliens implicated in 135 killings after i.c.e. refused to remove them. one of the other problems that
they talk about is the continual and continuances given in these cases. here's the point that needs to be made. all of these changes that help deter illegal aliens from coming into the country and staying in the country will help the situation in the courts. but the other point that needs to be made is that illegal aliens, and i'm going to use that term, because that is a correct legal term -- the term used by the u.s. supreme court -- they should not be given more rights than u.s. citizens. and there are a number of examples of that including in immigration courts that need to be changed. for example,, as judge burman said, federal immigration law actually gives immigration judges the ability to impose civil sanctions, to enforce their court orders, to impose
sanctions on attorneys who might file a frivolous claim, etc.. that issuing regulations outlining how those powers would be enforced. unfortunately no attorney general has ever issued those regulations, and it's impossible for us to have an orderly court system unless immigration judges are given the ability to do that the same with federal judges have the ability to do that. when people, you citizens like me, for example, appear in a federal court -- and that is something that needs to be fixed and done immediately. another problem, and this is something that again shows that aliens should not be given more rights, better conditions than u.s. citizens. if i file a lawsuit, a civil lawsuit against the federal government in a federal trial
court, an article three quart, and i lose, i of course have the right to appeal the case to the court of appeals for whatever circuit i am and. -- i am in. aliens certainly have the same rights. they lose the removal case before an immigration judge. they have the ability to appeal the case to the board of immigration appeals. but as a u.s. citizen i have to pay the costs of my appeal. i have to pay a filing fee in the court of appeals. i have to pay for the cost of the records that will be set from the trial court up to the court of appeals. i have to pay for the cost of the transcript if that's necessary up to the court of appeals. however, as an immigration judge testified before a judicial -- house judiciary committee meeting, this is former judge michael heldman, he said why are there so many appeals? how many appeals are there? hang on one
second. i have that number here. almost all of the cases that are heard at the ij level, overwhelmingly are appealed. that is not the way it works in the federal court and you would sit there and go why is it 99 percent of cases at the trial level that are. -- that are appealed to the bia? that's because there's no cost to the illegal aliens. the filing fee is very low to file an appeal. it's $110 according to the judge's testimony before the house judiciary committee. however in the majority cases , that fee is waived by the justice department and the bia. second, the alien is in charge for copies of the record or for copy of the transcripts. all of these costs are paid for by the
department of justice, and that means american taxpayers. so american taxpayers are , subsidizing the appeals costs of all of these cases, something that doesn't happen in an -- if an ordinary u.s. citizen is involved in a federal lawsuit against the federal government and has to appeal his case. so , there is absolutely nothing to stop the filing of frivolous and meritless cases. and in fact, the judge's testimony before the house judiciary committee was that the vast majority of these cases were frivolous appeals filed with the intention of simply delaying the removal of this particular alien. that's something that needs to be fixed. those costs should not be waived. the rules for that should be the
exact same as in the federal court system. that's the fair thing to do and that something that needs to be changed. the other thing that is not mentioned that i think needs to be done is this -- the u.s. supreme court has said in and i'llcases that -- start with a 1950 case involving the right of an alien to enter the country. here's what the supreme court said, " whatever the rule may be concerning deportation of persons who have gained entry into the united states, it is not within the province of any court unless expressly authorized by law to review the determination of the political branch of the government to exclude a given alien. more importantly, the court emphasized this, if the due process rights of any such
"iens are limited to single the procedure authorized by congress single"" congress. what does that mean? it means illegal aliens do not have constitutional rights. and the only due process rights they have are those that congress gives to them in immigration law, and 100% of the authority for determining our immigration laws is given to congress. in a second case -- talking about standards of due process which they say do it to be given to an illegal alien who the government is set to deport. that only requires a hearing before an executive or administrative tribunal. in other words, they do not have to be given the right to go to court. they do have to be given the right to appear before an administrative tribunal which is a system that we have of immigration judges and a board
of immigration appeals. now, congress in the immigration law some years ago limited the appeal rights of illegal aliens once they have completed the two-step process at the department of justice to only go into u.s. courts of appeal. they can't appeal to the federal district courts, which is usually what you'd you expect to have happen. they can only appeal to the court of appeal. there's no reason for them to have that right. that is flooding the federal courts with meritless cases. the last numbers i pulled from the u.s. -- the administrative office of u.s. courts is that over 80% of the appeals in the federal court of appeals system that are administrative agency appeals, in other words, appeals the decision made by a federal agency are these immigration cases. the vast majority of them are also frivolous, meritless
cases. but there are enough of them that as art points out in his paper, in his discussion this morning, you have federal judges interfering with the executive -- with the decisions of the executive branch on aliens which is absolute the supreme court has basically said. in that supreme court case of 1953, the u.s. supreme court said that the due process, that the aliens are entitled to, requires only " an opportunity at some time to be heard before such officers that are given the authority to act on the aliens claims." i think one thing that ought to be done is at the very least what judge burman has said needs to happen, which is these appeals need to be taken away from all the federal courts of appeal and put into one federal court that only deals with immigration appeals, similar to
the court of federal claims. you know, there is already a precedent for it. i actually would take away completely right to appeal at the federal courts, allow this to stay within the ij system, the bureau of board of immigration appeals, the due process rights there are extensive and frankly the , federal courts do not need to be flooded with these decisions. i think that's actually a final change that needs to be made. thank you. >> thank you, hans. since i am paying for the mic i will ask the first question. and that is that a lot of the work that the immigration courts are doing relates to an asylum claims. that's one of the ways that illegal immigrants -- one of the chief ways illegal immigrants try to avoid being deported. are there changes in asylum law that could address,
in other words, similar to changes on the border would reduce the demand of the immigration courts, are changes in immigration law that would do something similar? >> look, these two, or judge a former judge need to answer that but i -- what i will point out is elastomers i saw estimated upwards of 80% to 90% of the asylum claims are fraudulent claims. so there's very clearly a problem there. >> larry, you can go first. larry: our association does not make recommendations as to the law. we want to enforce the law whatever there is. i would always it might be nice to clarify some things. for example, the law on aggravated felony right now is insane. nore is no fast -- there is theft in virginia anymore,
for example, because the fourth circuit found the virginia statute includes fraud as well and so, therefore, it can't be theft and, therefore, can never be an aggravated felony. that doesn't make any sense, especially when it's different -- we don't really care what the law is between us want it to be enforceable. we wanted to make sense and wanted to be uniform. >> i think that's a very important point that goes to directly to your question, that actually sort of aggravated the increase in credible pure claims is all on the board as well as unaccompanied alien minors and families. the law just isn't very clear on the i'm afraid of the gangs. gangs,are afraid of the jury member of a particular social group eligible for asylum or aren't you. if it's missing a domestic violence and your home country are you an individual who is a member of the particular social group or not? unfortunately the law on this is, it's time for the attorney general to step in and issue by certification bright line rules for judges to follow in these cases. we need to be clear about
what being a member of a particular social group is. just by way of explanation, in order to receive a silo. you have to show persecution on account of your race, religion, national, membership of a particular social group or political opinion. four of those are very clear. i'm christian or i'm not. i'm jewish or i'm not. but unfortunately, membership in a particular social group has become a catchall that it was never meant to be. so , consequently, numerous claims were made that have to be heard all the way to the end that at the end of the day i never going to be successful. it's crucial for the reason of the attorney general issued guidelines on certification. it's also crucial the department of justice argued these cases vigorously before the federal circuit courts. i think part of the problem we saw in the last administration is that -- and i don't ever want to
accuse another attorney of not vigorously litigating, but there were cases that probably could've been argued a little bit harder. there were arguments that could've been made in defense of certain decisions that simply weren't. i expect attorney general sessions is going to vigorously litigating cases in order to provide more bright line rules so that judges like judge burman don't have to issue a decision that then goes up on appeal that then goes up on another appeal, and then possibly gets certiorari for the supreme court. so think that brighter line rules will be crucial. >> just as a quick follow-up to that, it struck me that the very existence of that "particularly social group" category is itself basically an invitation for activist judges, and whatever the attorney general does that would affect the immigration judges and the board of immigration appeals if it ends up going to the federal courts, then the judges just make up
anything they want, which is what they had been doing with this particular social group. pretty much anybody can be found as a particular social group. my point is, is it worth excising that from 1980 refugee act? even though it's in the refugee convention it was also put into our law and there have been proposals abroad to simply eliminate that as a grounds for asylum. >> i don't think it should be the attorney general that makes a decision like that. i think congress needs to act. for example, not too many years ago, the debate -- the big dispute was whether coercive family planning in china was a ground for asylum or not. congress got involved and said yes, we don't want that. that's grounds for asylum. for some reason they call it political opinion but they changed the statute and that's definitive, and that's problem answered. if the attorney general changes it, then there's all the circuits that will do their own thing with that and could go on forever. congress really needs to do some
of these things. >> any questions? up here in the front. wait for the mic, please. a congressional correspondent for the hispanic outlook and cover immigration and higher education. you to elaborate more about particular privileges or considerations of the unaccompanied minors and particularly the minor part. i just want to make a point that with educational institutions, one is considered a dependent up to almost 26 years old, as with insurance. but if that minor has a child, they are no longer considered a dependent. and so it's almost impossible for a child to have a child and
still be considered a minor. however, i think among the uam there is a considerable proportion of these minors under 18 is old that indeed do have children. so i'm just curious about that whole concept of a minor. >> it is an interesting thing, when we hear about unaccompanied alien minds would generally think of six your old children. but the question then becomes how did from guatemala if you are unaccompanied? unfortunately in a lot of these cases the , parents are complicit. i'm a father. i love my son. i would never put myself in the hands of a person whose main stock in trade is moving here over the united states border. we've actually seen i.c.e. take action against parents who have paid smugglers to bring the kids to the united states. i think that's a crucial issue. the other thing is that most of the
uam -- most of the unaccompanied alien minors are minors in name. they are under the age of 18 but most of them are 17 years old i remember being a trial attorney in baltimore where judge burman and i both serve as trial attorneys, and i would get 17-year-olds who were arrested at the orchards. they would pick apples. they were migrant workers, and as soon as they were apprehended they will file for special immigrant juvenile status which judge burman alluded to earlier. it is sort of a misnomer in the sense, i've seen plenty of cases involving younger kids generally with parents, but the number of cases which there is a very young child of tender years who makes it to the united states independently, those are few and far between and very rare. there is normally a parent in the united states was paid the smuggler to bring the child. let's bring the parent forward and the parent can make the claim on behalf of the child.
[indiscernible] >> it's really difficult for me as a lawyer to argue the in answer what age emancipation should be, but it is important to keep in mind most of these people are fairly come most of what we call miters or individuals have made their way to the united states and who are generally just on the cusp of adulthood. >> i might also point out minors are handled very solid distantly ly by theolicitous law and by the regulations. unaccompanied minors are not even prosecuted when you say by the department of homeland security. they are under hhs. the wilberforce act is very lenient. in fact, you can be unaccompanied minor even if you have relatives here. >> let me point out just quickly on this issue where a change of policy is very important, and if you want to understand this issue all you need do is read a
federal district court decision issued i think two years ago by brownsville texas picky -- it is a decision in a case in which a human smuggler, woman who had been caught before for smuggling was caught at the border with a young girl, i think the girl was like 11 or 12, very young. she was come the -- the smuggler was convicted of a felony but the judge castigated the administration. why? because what did it do when the smuggler was caught at the border? they took the child delivered , her to her illegal parent in virginia, the illegal parent had paid a mexican drug cartel to smuggle her daughter into the united states. in other words, this illegal alien parent in virginia had paid a drug cartel to smuggle her young daughter across the united states.
what the judge says was that he pointed out all the dangers of this, all the people at been killed by the cartels, young women have been raped and otherwise assaulted. what did the government do? they delivered the child to her parent in virginia. now, i certainly agree that this unaccompanied minor, although they were accompanied by a human smuggler, should be reunited with her parent. but as the judge pointed out, rather than then removing the child and the parent from the united states, they did absolutely nothing about it. they prosecuted the smuggler, but they simply delivered the child. so what did the judge say? he said the u.s. government was completing this criminal conspiracy and encouraging more parents who were illegally in the united states to pay these drug cartels, they are the ones
who then provide the personnel who do this work, they were completing this criminal conspiracy and encouraging more parents to engage in this kind of extremely risky behavior. and what should have happened in that case and what should be the policy of the united states government is that yes, the child is reunited with their parent who is illegally in the united states, but then they are both removed from the united states and sent back to their home countries. yes, thank you. bloomberg radio. judge burman, for people who don't follow closely what you do for a living, how often do somebody come before you, first of all, who you would classify to use colloquialism we've heard as a bad hombre? and what do you do if somebody comes and says, my life is threatened by ms-13 or by the taliban? my whole family is under threat. what do
you do about it? well, it depends what they are applying for. deferral or removal. saddam hussein could have qualified for that if he could show he would be tortured if return to iraq. there is no bad hombre exclusion for that. -- bad hombrengs as soon as someone has committed crimes, serious crimes which would make you ineligible for a sylum for removal. so really somebody like that , only apply for deferral of removal into the convention against torture. but they have a right to do it. >> let me give an example of what i saw on my docket for a number of years and i just stopped seeing. i was a judge in york pennsylvania a detailed court and i would often see, i would often have dockets that
would have 40% -- 40% of my morning docket of 20 people would have drunk driving convictions or would've been arrested for domestic violence. and in most of these drunk driving cases we're not talking blowing .08.n the highest i ever remember was blowing a .32. how in the world that individuals able to be alive. he admitted he dropped the case of beer, his wife called, need to be picked up at 10:00 in the morning and went and got her. but then those cases disappeared from my docket. they just were not being picked up. they were not priorities under the priority memos that went out in 2011 and 2014. it's very difficult for me -- i'm a private citizen now, but it was very difficult for me as a judge to not look at those cases and not look at a person blowing
more than a .15, more than .20 and not say that was a person whom merited bond and i would generally deny them. the vast majority of those individuals had the relief in the united states, once they were caught they would go home . they would generally just asked for an order of removal and i would move them just then. the immigration laws of the united states don't define bad hombres as larry said. quite frankly if you enter the united states illegally you are removable from the united states. by legal i mean without a visa or without permission. if you overstay you are removable from the united states. as a judge it's not up to me decide whether that's the right thing to do or not the right thing to do. but the one thing i will tell you is that if you allow individuals who enter the united states illegally to remain in the united states illegally unmolested, as former i.c.e. director indicated was likely to -- to individuals
who simply enter the united states illegally, you are going to get more of them. your docket is going to swell. what we're talking about today. why is the backlog so high? because were not enforcing immigration laws. we create perverse incentives for people to enter the united states illegally. the smuggling rate -- the smuggling fee went way down because people which is simply come across the board and claim credible fear. this was a problem for the smuggling gangs. they didn't have anybody to smuggle, because quite frankly you didn't need a smuggler. these are the perverse incentives that regrettably have been in place. you pull drunk drivers off the streets, pupil -- you pull individuals who have committed domestic violence out of the jails and you put them into immigration court if they are eligible for relief, i as a judge and going to graduate
grant relief, then congress said you should be removed. >> what about the other half of the question? the fear of ms-13 or the taliban? >> absolutely. it was very easy. you asked a question whether you have any fear of being returned to colombia, what if any fear of being returned to guatemala. it is a combatant upon me as an immigration judge to ask those questions. let me make one thing clear. it's incumbent upon every employee of the united states government to enforce the torture convention. from the president to the guy who put somebody on the airplane, that is an obligation that exists and generally, individuals were given the opportunity, i mean, i don't even say generally. always individuals are given an application for asylum with protection under article iii convention against torture. if asked for one, i would hear the case. there are protections in place but it's not like we just grab
people off the street and put them on a plane. that's a larry burman gets paid to do, to make sure that there are individuals that protections are in the law are in fact enforced. >> i had a quick question for either of the current or former judges. there's an old soviet joke i used to hear when i existed of the soviet union was that the factory workers would say we pretend to work as and they pretend to pay us. is there a certain element of that in the the immigration judge -- for immigration judges where you are sort of going through kind of the motions, sort of kabuki law enforcement where the law isn't being enforced and ends up in your lap? does that affect morale in the way that we've seen, first instance -- for instance, in i.c.e. and elsewhere that affects more our? >> i think that happens. especially judges who have been of the ventral long time and saw
-- judges who terminate the case and there doesn't seem to be any reason. that could get to people. it lowers morale. a lot of what i i've been talking about is lowered morale. judges being punished for trying to be a finish it -- to be efficient. they are punished for trying to move cases. they are never punished for continuing here they are never punished for granting relief that maybe should be granted. that's not good for morale. and nobody really likes that. nobody likes to have a job where they're not really doing what they are supposed to be doing. >> we can take a couple more i think. yes, sir, and then you over there. right here. >> my question has to do with u-visa. >> talk into the mic, yeah.
>> my question has to do with the crime victim visa. my concern here, this is both a a statement and a question. my concern is that the number of -- the total backlog including family derivatives has risen from 13,645 at the end of the fiscal 2010 to the current backlog reported by cis to be 168,000. we estimate it will be a quarter of a million by january 2019. in view of this, currently it appears, this is coming from other people, it appears that the 10,000 yearly cap, which is supposed to be mandated by congress, it appears that the current or previous administration has failed to abide by the congressional cap because of their giving
applicants who are applying for visas green card and -- status. i guess my question is, at some point this trajectory is going to completely swamped the entire immigration system if this continues. at what point does the president or congress step in and decide to intimate the law so that there is a 10,000 cap per year? which means there will be an astronomical, we are talking hundreds of thousands of cases and how would this impact on our immigration system? we don't adjudicate the u vis as, which is part of pop because if we did we could adjudicate them. what happens is the alien admits he is removable and then the attorney says that he is applying for a u visa. i want a continuance because it , takes forever to get this thing approved or disapproved by dhs. at the moment we have to
continue those cases because if we don't we are cut off of all possible relief. once again it's perverse incentives that art was talking about. there's a reason not to file these things even most of them will never be granted. because it comes up the system. the more the system gets gummed up the more people will father that's what's happened with asylum. if every apply for asylum and they can be adjudicated right away, then they get to stay and they get a work authorization. they might as well be citizens. >> individuals who were fighting for appeal are they being accompanied with free legal counsel? >> you can't talk without the mic. we need to wrap up so let's take two more question. yours and then yours. >> i can answer that after. >> i am from rockville, maryland. you know there's been lots of cases that been happening in our city. i am a legal immigrant and
i'm very concerned and cannot understand why an illegal alien is here and why laws haven't been in forest but you all have done a fantastic presentation to educate me on why we had the problem that we have. it's appalling to think it takes so much to get an illegal out of our community. and no wonder we have the big numbers. what i'm hearing in the press is that these people have rights that they are not illegal and theythe don't even want to use the word illegal in our community. the legislators are saying it's undocumented, we don't have anybody illegal. i would like to have everyone know what illegal is, and i have an education from you all. my question is have you all followed the rockville issues? i understand there were two students who were given a scholarship and they were actually deported.
my thought was how did they deport these two when i'm hearing this process of how long it takes to get somebody out of the country when they are illegal. >> the students had orders of removal against them which they , had not appealed and had become final. so that's why dhs can just pick them up. >> an important point on that is, we talked about final orders of removal but in my court which , was detained, i only issued one in absentia order removal because the guy refuse to come out of his jail cell and show up , that i didn't have a choice. >> that explains why, because you were in jail. >> right. it was a detained court. he refused to come down the hallway. i issued an order of removal and he never appeal. when i was an trial attorney and judge burman will verify this, a significant percentage of individuals would never show up for court and they are ordered removed in absentia. finally when the day comes that the government goes to enforce the
order against them, they file a motion to reopen and said i never got the notice of the hearing or ineffective assistance of counsel i never should be removed. 23% of newts for cases the courts are hearing. >> let's take one last question. short question and will have some short answers. -- back at in 2008, the executive office that makes the rules for the immigration which isded a rule , very similar to the rule 11 in the district courts, which requires an attorney who ghosts a pro sesubmitted by
participant in the courts, immigrant that that attorney , make an appearance. that is to notice -- >> we need a quick question. >> the western district just made a preliminary injunction so that this rule is not the rule as of today. my question is, during the period between 2008 and when this preliminary injunction was issued, was the rule enforced that you cannot ghost a submission to an immigration court without making an appearance saying you -- who you are. >> with how would the judge note it is being ghosted? >> that is the biggest issue is, the court only knows what the court is told. and for that -- we have are is and end up filing frivolous
applications, frivolous petitions and that's a problem. yes, and it is one that we have to crack down on. >> thank you, everybody. thanks for the panelists for the audience. all of our work is online at cis.org, including our paper in -- and the video of this will be posted, as well, so we hope to see you next time. thank you. [applause] [captions copyright national cable satellite corp. 2017] [captioning performed by the national captioning institute, which is responsible for its caption content and accuracy. visit ncicap.org] [inaudible conversations] x thank you very much.