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tv   Trump Presidency the American Democracy  CSPAN  May 7, 2018 6:07pm-6:32pm EDT

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the number of asylum cases. it's probably a combination of all those factors. i don't know that we can pinpoint pinpoint to one factor only. >> you mentioned a hiring freeze in the past, which is why we only have 300. i don't want you to -- >> i don't know. i wasn't at the agency at the time. >> okay. what can be done to increase the number of case completions per judge consistent with due process? >> we're looking at a couple of things. the first is obviously resources. we need to make sure the judges are trained and we're working on that. we need to make sure that the judges have law clerks or sufficient legal resources. we're adding law clerks and improving the dissemination of up to date and timely legal
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information. we switched to electronic files. it should make it easier to get into the case, to help prepare for it and understand what's going on at the hearing. and that should make it ultimately easier for them to make a determination. we're also looking at other ways to try to streamline the process, talking about bottlenecks they see, and other procedural issues. but those are the main things that can improve productivity. >> so you're getting feedback from the judges at the same time. let's talk about immigration judges. it was recently reported you were planning to set a quota of 700 cases per year for immigration judges for each immigration judge to complete. are there performance standards for immigration judges? >> i think at this point, most people are probably aware. there was an e-mail that went out in march, and it has been in the media. we do intend to implement
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performance measures. it is important to clarify that immigration judges have been subject to performance evaluations for a number of years. i don't know if they were in place when you were a judge, but it's not a new concept or a new idea to evaluate the performance of judges. the new part is having sorted numeric standards. we think from an objective perspective, if you are being evaluated, it helps you to understand what you need to do to get a certain level of performance. we are trying to make it more transparent, more objective to have the judges have a better understanding of what they need to do. >> what happens if you are in a judge in a court that only has 500 notices to appear filed each year? how are you going to meet 700 cases if you only get 500? >> this is one of the reasons aside from semantics that we don't consider it a quota. a quota is a fixed number without any deviation or allowance or room for deviation. but when we evaluate the judges
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based on our measure, there are at least six discrete factors we will take into consideration. there's also a seventh catchall. before we come to a final evaluation, if for some reason a judge has not completed the number of cases that we think is appropriate, we will look at these factors and the catchall. we will look at the overall context. it could be something, if a judge doesn't get 700 cases, you can't expect the judge to complete 700 cases. it is not an inflexible number. it's not quite as concrete or rigid as it has been portrayed. we will look at factors like that, that might be beyond the judge's control. that all goes into account for the evaluation. >> yes, it has not been that long since i was an immigration judge, we did have standards to meet, demeanor, and various competency requirements were part of that. but with respect to the number of cases that a judge has to complete per year or ideally
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will be completed, will there be feedback on that? will you guys take a look at those numbers determine whether that's the right number? >> right now, firstly, the measures are not scheduled to go into effect until the beginning of the next fiscal year, october. we've got training coming up for the judges. they will be bargaining with the union on the implementation of the measures. how it's going to be rolled out is subject to change between now and then. we want the judges to be aware of the numbers to help make it more comfortable and understanding where we are coming from. in terms of feedback, we are working on essentially an electronic dashboard system so the judges can call up their own caseload, their number is -- their own numbers themselves, real-time on a daily basis, and they can see where they stack up. other agencies use similar systems. they have similar performance measures. we are going to make sure the judges have enough feedback, enough information so they know kind of where they stand and
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maybe some potential issues. >> what could be the implications if one fails to meet these standards? do you get fired? is this opportunity for additional training? do you identify people who need a little more help? >> again, it's going to be fact specific and based on a situation. it could be a training issue, resource issue. it could be somebody who's been out for a while for some reason. it could be going on detail. a number of factors might go into it, and we don't have sort of a one-size-fits-all of how we we will look at it and see what the actual underlying issue is and then address it, whether it's training, resources, or something else. >> i anticipate this will be a feedback loop were you looking at these numbers and performance to see what the agency needs, correct? >> definitely. one of the driving forces behind it is for us to understand
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better eioj immigration judge part of -- productivity. we will see where the metrics stack up. we will definitely get feedback. we are already getting feedback, to some degree. we will evaluate it on an ongoing basis. >> do you think this is a reasonable number or about right? >> it's a policy judgment that this is a reasonable number, a number that a judge, an experienced judge with proper training can reasonably be expected to complete. it's in line with historic averages. the productivity numbers you quoted earlier is a little bit lower than that. it's a reasonable number that the judges should be expected, everything else being equal should be expected to meet. >> when you pointed at me for a moment i thought you would talk about my own performance. there's no retroactive aspect of this, correct? just checking. there's also reportedly a requirement that immigration judges have a remand rate of cases returned by the appellate court to the immigration court because of some error in the decision of 15% or less. can you explain that?
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>> something else we want to look at in terms of judging quality in not only just the number of cases, but also how many cases are coming back. not only is it equality in the performance issue, but it's an issue for the backlog, the more cases that are remanded, the larger the backlog is going to grow with the more time is taken away from handling new cases. 15% is again a policy judgment. it is used by other agencies. when you break it down by the numbers, it actually makes some intuitive sense. if we are asking judges to complete 700 cases, 15% of that is about 105. that works out roughly to 1 out of 7 cases. in our estimation, if you have a judge who has been remanded, who has had errors in cases coming back more than one out of every seven cases, that is probably something we need to take a look at. it doesn't necessarily mean it's always the judge's fault. there may be something on the appellate site that we need to
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take a look at as well. but if we see that, it is sort of a trigger warning or a red flag. if we see a judge who is having every seven for every sixth case come back to him or her, we want to take a look and find out and drill down and see what the reason is. >> so again, a feedback loop will exist. how do you see the standard improving the performance of immigration judges? >> a couple of ways. as i alluded to, it gives measures so the judges know where their performance needs to be. the briar performance valuations, the factors are not as well defined, but their objective measures, it makes it easier to understand what they need to be doing. secondly, it will increase feedback. it will increase discussions between judges and supervisors. judges will be able to monitor their numbers. there should be a positive -- i don't necessarily like the word -- but a positive, synergistic effect from going back and forth. it will help supervisors
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identify where the issues are, training, resources, or something else, and help the judges, too. if they have a perspective on a certain type of case is causing them problems or a docket issue causing problems as well. the more interaction and feedback there is, the better off we are going to be. >> since january, the attorney general has taken a number of cases on certification. can you explain the certification process for people who are not familiar? >> the certification process is in the regulations, has been around for many years, at least going back to the 1950s. under the immigration law, the attorney general has controlling authority to issue determinations of law. so the attorney general can refer cases to himself or can make decisions in individual cases. they can be referred to him by one of three ways. first, he can refer a case are direct that a case be referred to him or herself personally. secondly, the chairman of the board of immigration appeals can
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refer a case to the attorney general. third, certain officials at the department of homeland security can request that a case be referred to the attorney general. typically they come up in one of those three manners. >> so why can't the alien seek certification? >> good question. i don't know the answer. as i said, this process has been around since the 1950s. this is what was implemented then. >> so there is actually an appellate right from the decision of the board of immigration appeals for the alien proceedings, correct? >> not administratively. typically they file a petition of the circuit court of appeals over with the immigration cases heard. >> the government doesn't have that right, correct? >> not in the current statutory scheme. >> so basically this is the method by which the director of
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i.c.e. determines that if a case deserves more review, they can seek that from the attorney general? >> that would be one method. there are a couple of quirks to it. it's varied with how dhs has used it in the past, but that is one possibility. >> finally, you and i are both familiar, as result of interval service with the office. you've been there three times. where there any surprises for you when you began work as the director? >> i would not say surprises. one of the more interesting challenges to it, however, when i came back -- i have been there three times. i know a lot of people at eoir. a lot of it is senior staff or eoir lifers. they have had a lot of the same leadership team for many years. they have a lot of institutional knowledge and experience we need to draw on. but it's also important to balance that with new ideas and
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bringing in people who are not -- have not spent their entire careers at eoir. we are balancing new ideas, new blood, with the people who actually have gone through changes in the past and gone through differences in the system. they have gone through a peoples. sort of balance their experience, their institutional knowledge, their ideas of what works and doesn't work with new ideas we want to try to work on the backlog, work on hiring and things like that is the most interesting and the most unique aspects so far. >> next, we will take questions from the audience. there have been reports of a revolt among ij's over the push for strict enforcement of faster processing under the trump administration. how are you dealing with that? >> i don't know that i would say there's a revolt. obviously there are individuals who disagree with some of the measures we have taken. there are arguments on both sides, but we are working with
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the judges. we are working with the union, we are fulfilling our obligations. >> there are news reports the trump administration may be reassigning immigration judges from the courts in the interior to the border to respond to a recent spike in apprehensions. don't these reassignments make the backlog that you described worse? >> we ran the numbers last year when there were judges reassigned. we found the judges completed i believe 2,700 more cases than we would have expected them to have completed after a home court. statistically, i'm not sure that's actually true. >> so they are getting more cases done when they are assigned in this manner? >> that's what we found when we ran an analysis of the surge last year. >> do you believe eoir is properly located within the executive branch? >> eior has been part of the department of justice since 1940. it's a part of federal agencies
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going back to the late 1800s. the department of justice gives us resources, leverage, and leadership that we might not get with the immigration courts located somewhere else. there have been a number of proposals to move them, but i'm not sure those proposals have reckoned with the consequences. yes, we do feel it is best located where it has been since 1940. and that's the department of justice. >> you may have answered this question, but to give you the opportunity -- how do you respond to those who contend these cases should be handled by article three courts? >> i don't know that anyone has consulted the article three courts. i don't know that the article iii judges right now would be equipped to take on 6,920 new cases. >> >> they took the newest cases are the immigration courts not
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taking the oldest cases first? >> again, we're sort of competing in trying to balance different interests. as i alluded to earlier, we have changed the docketing strategies and priorities three or four times since 2014. it's not clear that those led to efficiencies. by the same token, we are trying to make sure we are taking care of a number of cases pending for a long time. we are trying to make sure it -- it does not benefit anyone to wait long for the decision weather is favorable to respond in favor of the government. it does nobody any any good, so we're trying to make sure the cases are pending for too long without it the same time churning cases on the docket but that's going to make the overall ajude indications more efficient. >> this may be a question you are still looking at but it's o. >> this may be a question you are still looking at but it's on the desk. should backlog reduction's start with the newest or oldest cases? >> i sort of want to repeat the answer i just gave. it's kind of a balance. if you prioritize one set of cases over another, you will
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lead to some docket churning. i'm not sure at the end of the day that will be the most efficient way. we're looking at all of our processes, creating specialized dockets and focusing on particular types of cases that can be handled in an expeditious manner. but i'm not sure that it's a black-and-white big picture thing, that we can say the longest cases or the shortest cases will be the most >> so not a lifer situation? >> not an the same way i understand they are trying to influence but it is something we are looking at. >> you alluded to this before. we just saw the supreme court issued a decision that created a huge shift in immigration law. it involved 18 united states code sessions. 16 b, crime of violence. we won't get into that. how did that case and other decisions from lower court affect the productivity of the
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affect the productivity of the immigration courts and the bia? >> the approach that i have alluded to, there is a great deal of confusion. we have had board judges, circuit court judges that have expressed the same sentiment. there are a lot from a common sense perspective to meet definitions. there's a category for robbery and we find that court decisions, robbery is not a robbery offense. perjury is not a perjury offense. some crimes are not a crime of violence. it has caused confusion, consternation, and frustration. and when you have that, frustration leads to delays, which leads to inefficiency. it is not maybe a measurable impact but has impact on the
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length of time the cases have been pending. >> i know you're probably not going to answer this, but can he think of any fixes that congress could make this process a little bit better? >> i don't know. i had a similar question and the response is, we're happy to work with congress and we have an office of legislative affairs that works with them. we're happy to take up ideas or suggestions they may have. >> good answer. will it really be possible to work through a backlog of over one million plus cases? >> it's an open-ended question. because dwraifg -- you didn't give a time frame. is it possible to do within one year? no. but with the process and improvements, getting judges hired in a timely fashion. we look through our own procedures. ultimate,ly, ultimately, yes. we can't give a definitive timetable for an unsolvable problem.
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>> this issue sort of undergirds the entire backlog. what are the problems for the backlog? why is this problematic to new eior? >> fairly uniformly and expeditiously deciding cases. all three of those are important, it's an and, not an or. we want them done expeditiously. there are judge candidates. that is an actual decision. somebody who has a valid claim also is putting their life on hold until they get that actual decision. likewise, the government has an interesting in making sure those orders are entered swiftly and efficiently so they can be executed or dealt with however
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they need to. no party wins by delaying the cases. there's an old saying that justice delayed is justice denied. and that's sort of the issue with this. the longer the cases drag out, there are additional resource strains, but at the end of the day it is episimply a matter of justice. >> you're a man average in 642,000 immigration court cases, lord knows how many bia cases. so i'm going to leave it right there. but i do want to thank you and thank you for being the first of our immigration news makers. appreciate you coming. >> thanks for having me. it was my pleasure. [ applause ]
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>> sarah, nice to meet you. [ inaudible ] >> how are you doing? i'm doing well. >> how are you? you know james. tuesday morning, the senate energy and natural resources committee holds a hearing on puerto rico's electric grid, and the recover from hurricane maria. we'll have live coverage at 10:00 a.m. eastern on c-span 3.
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