James McHenry, Director of the Executive Office for Immigration Review (EOIR), was featured in an Immigration Newsmaker conversation hosted by the Center for Immigration Studies on Tuesday, May 1 at the National Press Club.
EOIR is part of the Department of Justice and home to the nation's immigration courts. McHenry, a Justice Department veteran who was appointed permanent EOIR director in January, is the point man for the effort to restore timely and efficient adjudication of immigration cases in the face of a tremendous case backlog, which more than doubled from 2006 to 2015. The administration's goal is to cut the pending caseload in half by 2020.
Date: Tuesday, May 1, 2018, at 9:30a.m.
Location: National Press Club, 529 14th St, NW, 13th Floor, Washington, D.C.
Introduction and Moderator
Art R. Arthur
Executive Director, Center for Immigration Studies
Director, Executive Office for Immigration Review
ANDREW ARTHUR: Good morning. My name is Andrew Arthur, and I’m the resident fellow in law and policy at the Center for Immigration of Studies. On behalf of the Center, I want to welcome you today to the National Press Club for the first a series of what we’re calling Immigration Newsmakers events. These events will give the heads of federal agencies and other government immigration policymakers an opportunity to discuss their priorities, as well as the challenges that the face in implementing and enforcing the immigration laws of the United States.
We are honored to have as our first Immigration Newsmaker James McHenry, the director of the Executive Officer for Immigration Review, also known as EOIR. Attorney General Jeff Sessions announced in May 2017 that Mr. McHenry would be the next director of the office. Director McHenry originally joined EOIR after being hired under the attorney general’s Honor’s Program in 2003. He later served in the Office of the Principal Legal Advisor at U.S. Immigration and Customs Enforcement as an assistant chief council and later as a senior attorney, where he served as a lead for national security, denaturalization and gang cases, anti-human trafficking operations, and worksite enforcement matters. He also served as a special assistant United States attorney, or SAUSA, for the criminal division at the U.S. Attorney’s Office for the Northern District of Georgia.
From 2014 to 2016, Director McHenry served as an administrative law judge the Social Security Administration. And he returned to EOIR following his appointment as an ALJ in the Office of the Chief Administrative Hearing Office, or OCAHO, in 2016. Director McHenry has truly rejoined the agency at a propitious time in their history. EOIR has long been a neglected and forgotten agency, underfunded throughout the government. Attorney General Jeff Sessions has announced that it will be a priority that they be 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.)
JAMES MCHENRY: Thank you.
MR. ARTHUR: I’m going to ask Director McHenry a series of questions. And we’re going to begin with the most important one. On May 30th of 2017, Attorney General Jeff Sessions announced you would be named the director of EOIR. This isn’t your first term in the office, as you mentioned in my introduction. Why don’t you start by telling us about EOIR, what they do, and what the responsibilities are?
MR. MCHENRY: I’m happy to. I mean, EOIR has sort of been my home for a lot of my professional career. As Art mentioned, this is my third stint with EOIR, from being a law clerk, to an administrative law judge, and now as director. And I’m very happy, very honored, very privileged to come back to the agency.
EOIR’s responsibility is primarily adjudicatory in the immigration context. And they do that through one of our three adjudicatory components. The first is the Office of the Chief Immigration Judge, which is the one that most people are familiar with, that oversees the immigration courts nationwide. We have roughly 60 immigration courts currently, 334 immigration judges. They hear thousands and thousands of cases every year. The second adjudicatory component is if, you know, either party can appeal a decision by an immigration judge, those appeals go to the Board of Immigration Appeals, the BIA. We currently have 16 board members. We’re authorized for 21. You know, they hear roughly 15-20,000 appeals per year.
The third component is sort of a unique component, because it’s sort of disconnected and it’s the one that people probably know the least about. And it’s called the Office of the Chief Administrative Hearing Officer, which is a sort of cumbersome name. So we call it by its acronym, OCAHO. And they have specialized jurisdiction under the law, under the Immigration and Nationality Act. They hear principally three types of cases. The first are worksite enforcement or employer-sanctions type cases. These are premised on, you know, illegal or unlawful hiring practices or failure to maintain certain paperwork to confirm that individuals are lawfully authorized to work. The second category are discrimination provisions – immigration-related employment discrimination provisions in particular. So if someone in certain circumstances feel that they’ve been discriminated against, you know, based on certain criteria, they can bring a case. And the third category are certain types of document fraud cases. They don’t see too many of those anymore, but it is still part of their jurisdiction.
MR. ARTHUR: Just to talk about that very briefly, the procedures, the rules that govern the immigration courts and that govern OCAHO are very different, correct?
MR. MCHENRY: The rules for the immigration courts, some of them are set by regulation. There’s also a practice manual. By design, the immigration courts are a little more informal. You know, the federal rules of evidence, federal rules of civil procedures, they don’t apply in immigration courts. Again, they’re designed to bring out facts – elicit facts in order to help make decisions. At OCAHO, its rules are more formalized and the regulations. A lot of them are modeled off the federal rules of civil procedure. They have a lot of civil procedure options, such as summary decision. You have discovery, things like that. So they are quite different.
MR. ARTHUR: Now, you mentioned before that you have jurisdiction over both the immigration courts and the Board of Immigration Appeals, who review their decisions. You have jurisdiction over the ALJs at OCAHO. But you also have jurisdiction over the CAHO, the chief administrative hearing officer, who is actually a reviewing body for that – for those ALJs. How do you balance those responsibilities without infringing on the independence of each of those bodies?
MR. MCHENRY: There are a couple of responses. And I don’t want to make it sound that it’s easy to do, but in effect it is. You know, legally, our judges – our immigration judges, Board of Immigration Appeals members, they exercise independent judgement and discretion. We’re not reaching down and talking to judges or telling them now to rule in this case or that case. The regulations clearly spell out their independence, and we certainly respect that. And the same is true at OCAHO of the ALJs. They have independence in their decision-making, you know, based on the evidence and the facts that come before them.
As a practical matter, though – you know, we have hundreds of thousands of cases pending – there’s no way – even if it weren’t prohibited, there’s no way that we could, you know, practically reach down to every single case. Our job, my job at my level, is essentially to try to manage the workload, manage the dockets, make sure the judges are exercising their full capacity, adjudicating as many cases as they can comfortably, consistent with due process, and making sure that nothing’s slipping through the cracks.
MR. ARTHUR: Sounds like a pretty big job.
MR. MCHENRY: (Laughs.)
MR. ARTHUR: What were the biggest issues that were facing you when you took over as director of EOIR?
MR. MCHENRY: This shouldn’t be a surprise to anyone, because they’re the ones that tend to make the most news. Obviously, the backlog. We have approximately 692,000 cases pending. That number has gone up. It’s tripled since about 2009. It’s doubled since about 2012. It’s still going up. We’re trying to get a handle on it. We’re making some progress, but still there’s much more work to be done.
The second issue is immigration judge hiring. There were several reports, including one that came out just after I got back to EOIR, you know, criticizing how long it takes for us to hire immigration judges. Approximately two years ago, it was taking us 742 days on average. That’s over two years, almost 2 ½ years. We’ve been able to get that number down closer to more, like, the 10- to 12-month mark. Again, there’s still some room for improvement, but we’re working on it.
And the third issue is EOIR, I don’t know if we’re the last agency, but we are among the last agency that still uses paper files in the government. And we’re one of the new adjudicatory agencies that still uses paper files. And we identified a need for electronic filing, electronic records in 2001, and there hasn’t been a lot of progress made until last year. But that’s been almost a top priority for us, it to finally push through. And I’m happy to say that we’re prepared to start piloting electronic filing, you know, electronic case records, in five or six courts this summer, with hopefully a nationwide rollout next year.
MR. ARTHUR: When you pilot that, will those just be motions? Will they be applications? Or are you still in the planning stages for that?
MR. MCHENRY: The idea right now is electronic filing across the board – so motions, evidence, applications, whatever there is. I mean, the ultimately desire, the ultimate goal is to create an electronic record of proceedings. It makes it easier for the judges to look at while they’re conducting a hearing. It makes it easier for the law clerks later on if they need to review something to help write a decision. It makes it easier for the public to be able to file more at their convenience than to have to go down to the actual window and file it.
MR. ARTHUR: And let’s talk for a moment just about records and proceedings, because you brought it up. That’s the actual record that sits in front of the immigration judge.
MR. MCHENRY: Right, yeah. So it’s a blue paper folder that has all the filings, all the evidence, all the motions, all the hearing notices, all the documentation of the case.
MR. ARTHUR: Now, we know from past experience – I can remember famously more than a decade ago Doris Meissner said that they had lost 80,000 A-files in a year. I assume that these records of proceedings also get lost. Is that correct?
MR. MCHENRY: (Laughs.) I can’t speak. Doris was at INS, and they have alien files or administrative files, and I can’t talk to their – can’t speak to their filing practices. We do try to maintain pretty good control over ours.
MR. ARTHUR: But still, it’s a cumbersome method. They have to be located before judges can walk into court. It’s all on paper.
MR. MCHENRY: I mean, they do take up space – I mean, space that we could be using for courtrooms, for additional judges, additional personnel. They pile up. You know, sometimes we send them to the Federal Records Center, but we also have to keep a lot of them on site at the courts. So they pile up. They take space. They take up, you know, space on people’s desks. It does interfere with work more than just, you know, the judges reviewing it.
MR. ARTHUR: You do have a centralized process by which you record the hearings, though, correct?
MR. MCHENRY: Yeah. We switched to a digital audio recording system about six or seven years ago. So everything’s always been recorded. It used to be on cassette tapes. I don’t know if anyone remembers cassettes. But that was – it was probably the preeminent technological innovation that we’ve had in the last 10 years.
MR. ARTHUR: Not to underscore that, because not only were they on cassette tapes, but they were on six-track cassette tapes that you couldn’t play at a regular cassette recorder without it sounding like, you know, Mickey Mouse on helium when you were playing them. So very important. And have you found that that has helped to expedite the completion of cases, give you better control of the cases?
MR. MCHENRY: I mean, immensely. When I started – when I first came to EOIR as a law clerk, and that’s back when they were using cassettes, and when a judge would give a decision to look at, to draft, that’s the first thing I had to do was to go back, get all the cassette tapes – and if it was a big file there could be six, seven, eight, 10 tapes – and start listening to them. And, again, have to make sure you changed the settings on the machine to make sure you got the right microphone with all the different tracks. And nowadays, you know, it’s all digitally recorded. You can pull it up through the computer system. It 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 the law clerks to make the decisions afterwards, or to go back and review testimony or review anything in particular they need to.
MR. ARTHUR: Well, let’s go – let’s go to that for just a moment. You’re familiar with the VTC or video teleconferencing system that 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 –
MR. MCHENRY: There have been a number of issues with VTC when it was first implemented. Obviously, it was a new technology in the early 2000s. And there were some growing pains. Like Art was saying, very difficult to pick up with a cassette recording and people in different parts of the courtroom to make sure it all gets recorded when you’re also getting a video feed. But the digital audio recording system has largely solved that problem. There have also been significant upgrades in our VTC technology. And we haven’t had any significant problems in several years.
MR. ARTHUR: So this is a positive improvement.
MR. MCHENRY: Yes.
MR. ARTHUR: And one that gives you more control over the transcripts and the case system itself.
MR. MCHENRY: I mean, ultimately, you know, moving forward into the future, it’s something that we’re exploring to be able to do almost a real-time transcription, because everything is being recorded. And there is software and there are programs out there. And it’s something that’s kind of the next generation. I mean, right now we’re focused on getting the electronic filing, the electronic records. That’s our first big step. But after that, there’s no reason we can’t move on to, again, real-time transcription or sort of, you know, immediate processing of cases.
MR. ARTHUR: Before we move off of the electronic ROPs, what benefits do you see there being from electronic ROPs, and what problems have you had with the paper ones?
MR. MCHENRY: I mean, there are several benefits. It’s something that everybody supports because, again, it makes it easier for, you know, private practitioners, representatives to file. It makes it easier for the government to file. It makes it easier for respondents and the attorneys on both sides to check on the file, to check what’s in the file. Right now, if you want to see an ROP you have to come down to the court, you have to fill out the paperwork. You can get it, but you may not have it for a long period of time. It’s tough to get copies of things. Whereas, if it’s all electronic, you can basically do that instantaneously.
For the judges, we expect – you know, it’s going to be a lot easier for them to look at, you know, a .pdf or some type of file like that. They can scroll to the pages they need when they’re reviewing a file. You know, they can make marks or notations on the particular pages they need. Right now, if any of you have ever been in immigration court, you will inevitably see a judge sort of flipping through reams and reams of papers trying to find one specific page that they need to ask a question about. Or you’ll see a file annotated with, you know, 30 or 40 sticky notes. And the judge is trying to find out what does this mean or what does this do. With electronic filing, I mean, they can do all of this in advance. They can make notes on the file itself. And they can call it up how we organize it. So it should be helpful to all parties involved, and especially the judges.
MR. ARTHUR: And some of these ROPs are pretty big, right?
MR. MCHENRY: Yeah, and there’s not – some of the cases, especially ones that have been around for a while, they’re not just one ROP. Eventually they get too many documents and you have to get a second, and a third, a fourth. And eventually you’re talking about a stack that’s two or three feet high. And if all of that’s stored electronically, then, one, we don’t need the space, and, two, it makes it much easier to sort through and figure out what documents you actually need to focus on for the upcoming hearings.
MR. ARTHUR: Yeah. 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 a lot lower with the electronic system.
MR. MCHENRY: We’ll send you a bill. (Laughter.)
MR. ARTHUR: (Laughs.) Too late now.
Let’s go back to something that you mentioned before. According to the Transactional Records Access Clearinghouse, or TRAC, at Syracuse University, through March 2018 there were 692,298 cases pending at the immigration courts. Is this an accurate reflection of the immigration courts dockets?
MR. MCHENRY: Yeah. I mean, we don’t typically comment on sort of third-party data views, but that number is in the ballpark. I mean, I think the last time we looked – it’s in the low 690s right now.
MR. ARTHUR: Now, in addition to that low 690s, there are also cases that are administratively closed. Could you explain administrative closure to us?
MR. MCHENRY: Sure. Administrative closure was designed to be a temporary move to remove a case from the active/pending docket while something else was going on. It first came about primarily in cases where individuals were being granted Temporary Protected Status or some other sort of temporary status. And then once that status is resolved, or it’s terminated, or it ends, then the case is re-calendared, and then it continues. It’s been sort of expanded in different directions over the years. The judges were given a little bit more latitude in how they use it, starting in 2012. And with that expansion, though, has caused an increase in the number of cases that are administratively closed. They’re still technically pending on the docket, they’re just not active on the docket. And right now, at the court level, there are roughly 330,000.
MR. ARTHUR: So that 330,000 cases that are administratively closed, would that be included in the low 690s or is that in addition to those cases?
MR. MCHENRY: It would be in addition to those cases. The 690 number are the number of active pending cases. Those are ones that are currently on the docket that we’re attempting to move through.
MR. ARTHUR: So we’re actually talking about more like 1.2 million possible cases that could be on immigration judges’ dockets?
MR. MCHENRY: Math is not my strong suit, so I don’t know. But there is the possibility of additional cases, yes.
MR. ARTHUR: OK. The primary mission of EOIR it to adjudicate immigration cases – and this is from your website – by fairly, expeditiously, and uniformly interpreting, and administering the nation’s 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?
MR. MCHENRY: We’ve outlined several steps that we’ve taken and that we plan to take over the next six to seven months. The first is sort of the most obvious, and that’s hiring more immigration judges. And we’ve hired 56 immigration judges in the past year and a half. We’ve put out five advertisements for up to 84 additional positions. We’re looking at bringing on probably four more this month and then a large group hopefully this summer. You know, we anticipate by the end of the fiscal year at least up to 40 to 50 that we can bring on board. Each of these judges increases our adjudicatory capacity – you know, meaning we can adjudicate more cases with more judges.
Now, you know, ultimately we could get enough judges that we could turn around the backlog, but it would take a long time. So the judge part is a necessary – but it’s not sufficient by itself – way of dealing with the caseload. The second way we deal with it is by increasing our existing capacity. We worked on docketing efficiencies. We tried to reduce the number of courtrooms that aren’t being used by utilizing VTC technology. We’re working on bringing back retired immigration judges to hear cases. And by sort of shifting resources around. Some courts have, you know, lower capacity, so they have – or have excess capacity, so they can hear cases from other locations. And that’s relatively easy to do with VTC.
You know, third, as I mentioned, we’re changing the infrastructure. And that’s primarily moving to an electronic-based system that’s going to make it faster and easier for the judges to get through cases. I mean, we’re working with our partners, which is primarily the Department of Homeland Security. You know, they have their own sort of case completion issues. They have their own priorities. And working with them to make sure we don’t get swamped, or we don’t get caught up in some that they’re going to do. And lastly, we’re doing sort of a top to bottom review inside the agency. All of our policies, all of our guidance, all of our regulations – everything that we do, every process that we have has been subject to a strict review over the past six months to a year.
We’re looking for ways to be able to be more efficient. Obviously, we safeguard due process, but the two are not mutually exclusive. We feel we can be both efficient and maintain due process. And we’re taking as many steps as we can to ensure that that’s going to happen.
MR. ARTHUR: As I mentioned, as you mentioned, presently about 334 immigration judges around the country. 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?
MR. MCHENRY: As I mentioned a moment ago, having more judges is obviously important, but it’s not by itself sufficient. But if we’re looking solely at the numbers, the most recent omnibus budget bill that Congress passed has authorized us to hire up to 484 immigration judges. So it’s an additional 150 from where we are currently. If we get to that number, then at that point the judges should be able to complete more cases than we have coming in. And that should start some reduction.
Now, last fall, the president proposed a budget that would bring us up to 700 immigration judges. If we got to that level, then, I mean, there would be a significant reduction in the backlog. But even if we got to that level, that wouldn’t be for another two or three years. And again, in the interim, we’re looking at other sort of commonsense solutions that we can do until we can start getting more judges on board.
MR. ARTHUR: As a former immigration judge, I know that I couldn’t do my job by myself. Who are the other people that you would have to hire in order to support those judges?
MR. MCHENRY: Well, when we hire an immigration judge – or, when it’s put in the budget – it’s not just a judge by him or herself. It’s a team. So we get administrative support staff, we get interpreters. And very importantly, we also get attorneys or law clerks. We’re trying to move so that each judge ultimately can have his or her own law clerk. We’re not there yet. And we’re looking for a one-to-one ratio. And we’re not quite there yet, although we anticipate by the beginning of the next fiscal year – so coming up on October 1st – that we’ll have, you know, roughly 270 or so law clerks or attorney advisors on board. So again, it’s not quite one to one, but we’re moving in that direction. And I think all the judges would agree that, you know, having a good law clerk and having a dedicated law clerk is indispensable.
MR. ARTHUR: For people who aren’t familiar with the system, what do those law clerks do?
MR. MCHENRY: Just about everything that you would expect a judge’s law clerk to do. They do research, they help draft opinions, they observe hearings, they do memos. Pretty much whatever the judge asks them to do. You know, I was – I was a law clerk for a couple of years myself. And my duties ran the – ran the gamut. And for comparison’s sake, my second year as a law clerk I was one clerk for 10 immigration judges. And, you know, each judge, you know, I tried to give my best effort and dedicate myself as much as possible, but 10 to one is not really a viable ratio for judges. That’s another reason we’re trying to get it down to one to one, as close as we can.
MR. ARTHUR: And how many immigration judges did you say the EOIR plans on hiring in the next fiscal year?
MR. MCHENRY: Well, we hope to, by the end of this fiscal year, up to 48. Now, we’ve issued, as I said, five advertisements in the past year for up to 84 positions. And in fact, we just opened another advertisement yesterday. We’re not going to be able to get all 84 by the end of the fiscal year, but perhaps by the end of the calendar year or early 2019.
MR. ARTHUR: Let me pull back the curtain for just a moment. Let me ask you, you know, while we’re talking about hiring immigration judges, what is the hiring process for immigration judges?
MR. MCHENRY: It goes through several steps.
MR. ARTHUR: For anybody out there who might be looking for a job.
MR. MCHENRY: (Laughs.) It goes through several steps or several stages. The first is the advertisement is posted on USA Jobs, like pretty much all other government jobs. And that’s the one that’s out there that opened yesterday. It’s also posted on the department’s website. The Office of Attorney recruitment and management maintains a list of current Department of Justice openings. And it’s on there too, typically. The ads are usually open for about three weeks. People apply. The Office of Personnel Management sort of makes the first cut, their basic qualifications, and to make sure people meet those. And then the final – and then the list is forwarded over to the department.
Within the department, it goes through several levels of review. There are various interviews. And then ultimately by statute the definition of immigration judge is someone who’s appointed by the attorney general. So ultimately at the end, once a judge is selected and has agreed and everybody’s been cleared, then the attorney general will appoint that person.
MR. ARTHUR: Is that a pro forma process? Or is Jeff Sessions actually looking at the resumes of various individuals to be immigration judges?
MR. MCHENRY: I can’t speak for what the attorney general looks like, but it goes through several levels of review before it even gets to him.
MR. ARTHUR: Understood. Are these civil service positions? Are these political positions? What are they?
MR. MCHENRY: These are, as I said, sort of regular government employee positions. They’re subject to merit principles for hiring. There are MSPB protections once they’re on board. They’re definitely not political positions. Now, the judges, because they have to be appointed and because there are other requirements, they’re a little bit different than sort of a run-of-the-mill civil service clerk or some type of position like that. But by and large, they’re comparable to other government employees.
MR. ARTHUR: Could you tell us about some of the requirements for being an immigration judge? What does it take to be an immigration judge?
MR. MCHENRY: Typically, you need a law degree. You need to be an active member of a bar somewhere. And then you need seven years of experience generally either preparing for, appearing in front of, or appealing, you know, trial-type or administrative-type hearing settings.
MR. ARTHUR: So we’re not talking about people who have seven years necessarily of immigration experience, but –
MR. MCHENRY: No, there’s no specific immigration experience requirement. We do ask each of the applicants to address their six technical qualifications. They talk about experience with immigration. They talk about experience with high-volume dockets. They talk about experience with litigation. And they talk about experience adjudicating cases, things like that. So we ask the applicants to address those. But those aren’t mandatory qualifications.
MR. ARTHUR: OK. So you have a training process, then, for people who are novices when it comes to immigration?
MR. MCHENRY: Yeah. We’re actually in the process of expanding that. When someone comes on board, they typically will do training at their home court for a little while, and then they’ll come to our headquarters in Falls Church, where they’ll get more in-class training. We’ll train them on the substance of the law, docket management, case techniques. You know, we’ll try to impart to them best practices for handling cases, handling specific issues. And then they’ll go back to another court. They’ll typically do some more training. And ultimately, all in all, they end up with about two months’ worth, give or take, of training before they’re sort of ready to take the bench themselves. And they usually have mentor judges. And we follow them and make sure that they’re – that they’re doing what they need to be doing. If there are any issues, we’ll address them.
MR. ARTHUR: So there’s a fairly close eye on new judges, recently hired judges, to make sure everything’s working out all right?
MR. MCHENRY: Yeah, we need judges so significantly right now, and we depend on them so much, it wouldn’t make any sense for us just to sort of throw them in the pool and tell them they’ve got to sink or swim. You know, we’ve got to give the resources and the training and the assistance that they need, you know, to make sure that they’re successful.
MR. ARTHUR: Unlike back when you and I were trial attorneys.
MR. MCHENRY: (Laughs.)
MR. ARTHUR: They’d be like: Here’s your file. Go into court.
So the Government Accountability Office has identified immigration judge hiring as an issue for EOIR. And you know the report that I’m talking about. A June 2017, GAO report concluded that it took DOJ on average – and I think you said this number before – 742 days, over two years, to complete each immigration judge’s hiring process. What steps is the Department of Justice taking to hire immigration judges more quickly?
MR. MCHENRY: This actually began just before I came back to EOIR and also just before the report came out. The attorney general, actually, in April of 2017 announced a streamlined hiring process in order to address this very issue. And the process itself doesn’t really change, but the key thing that was different is it actually imposed deadlines. You know, the old process had been in place since 2007 had no real deadlines. So, and people moved through the process but 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 a significant impact.
Since that time, our first ad that I put out after I came back closed at the end of June of last year, June of 2017. And we anticipate bringing on at least a couple of judges from that ad this month. So that gets us to about 10 months. We anticipate bringing on the rest in July, which would be right at about a year, the beginning of July. That would put us right 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 percent.
MR. ARTHUR: So you’re telling me that part of that 742 days was because files were sitting on people’s desks?
MR. MCHENRY: I don’t know if files were sitting on people’s desks or not, but deadlines certainly make a difference.
MR. ARTHUR: And you’ve indicated that that has become a priority for you and for the attorney general?
MR. MCHENRY: Yeah. Hiring is certainly a priority. As I mentioned before, we need to get additional judges. We’re authorized for 150 more than we actually have. You know, every judge that we get on board increases our adjudicatory capacity. You can hear more cases. And every judge we get 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 2 ½ years to get a judge on board.
MR. ARTHUR: And I’m assuming that you probably have individuals who are good candidates who end up finding something else to do in the interim.
MR. MCHENRY: Oh, and we do occasionally have people who withdraw, people who decline offers. I can’t speak to all the reasons. Circumstances, I’m sure, change.
MR. ARTHUR: But two years is an awful long time to wait.
MR. MCHENRY: I would agree with that.
MR. ARTHUR: And a long time to put your life on hold if you have to move halfway across the country.
MR. MCHENRY: I would also agree with that. I mean, I think people understand that it’s not an immediate process. So they understand there’s going to be some delay. But you’re right, two and a half years is simply too long, especially with the need that we have.
MR. ARTHUR: Let’s shift gears for a moment. There’s now an Office of Policy at EOIR. This is a new component that was announced by you as director. What is the EOIR Office of Policy and what exactly does it do? Because it’s sort of a novel idea for a court system.
MR. MCHENRY: It is and it isn’t. I mean, other immigration agencies, especially Homeland Security, they have an office of policy. And it does precisely what it says. It creates, centralizes and coordinates polices for that particular agency. At EOIR, we didn’t necessarily have any kind of central coordination system. You know, some things came from our Office of General Counsel. Some things came from our immigration courts. Some things came from the Board of Immigration Appeals. But there wasn’t really kind of a central quarterbacking entity, one, to help develop those policies and, two, to make sure they were consistent across all of the components. And that’s what the Office of Policy – that’s one of its functions is set up for, is 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 the significant lead on our training. You know, previously each of the individual components sort of conducted their own training. And even though most of them are training on the same body of immigration law, they still sort of had their own individual training ideas. With policy, we can, again, make sure that the training is consistent and uniform across all of the bodies. It’s also sort of helped us, you know, focused resources on areas that we need it, like training.
MR. ARTHUR: Would you mind discussing the training that’s available to the components at this time?
MR. MCHENRY: In what sense?
MR. ARTHUR: How does it work? How does it go? Is it annual? Is it on an ongoing basis?
MR. MCHENRY: Well, there are multiple types of training. I mean, we have certain training that’s required by law. You know, the anti-discrimination training and things like that. That’s done on an annual basis. A lot of that’s 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 different types of cases. There’s some training on dealing with, say, mental competency issues, for example. We have training resources on human trafficking and things like that, sort of issue-specific type training.
We also try – we have not always been successful – to have some sort of annual training event, at least for the immigration judges. The board historically has had its own annual training event as well. And this year we’re actually combining the two, again, because it’s more or less the same body of law. Sometimes the judge training in the past has been in person at conferences. Sometimes it’s been delivered by DVDs or CDs. This year – last year it was not in person, the conference was cancelled. But this year we do anticipate having an immigration judge conference or training event where everybody will be together.
MR. ARTHUR: Is there any advantage between computer-based training and in-person training?
MR. MCHENRY: We have to sort of weight the pros and cons and the tradeoffs. We’re getting such a large immigration corps, and it’s only going to expand, that at a certain point it gets too big for in-person training to be as effective as it could be. There’s also a cost issue when you bring 400-500 people together that we also have to be sensitive to. So I know everyone at a certain level seems to prefer in-person training. But logically, it becomes more difficult. And secondly, with, you know, DVD training, computerized training, you know, individuals can sort of take the lessons, can learn it at their own speed. They can learn it in their own time.
Our training methods when you bring people to conferences – you know, you’re speaking to them in audience. Some people are receptive to that. Some people are not. They work better when they have it sort of one-on-one on their desktop or on their computer. So, you know, we’ve worked with both methods and we’re probably going to end up moving to changing how we deliver training, regardless, simply because of the size. But there are tradeoffs, however we do it.
MR. ARTHUR: And that training generally takes place, when it’s in person, in Washington, D.C., correct?
MR. MCHENRY: Washington or Falls Church, somewhere in the Northern Virginia area.
MR. ARTHUR: Have you thought about maybe a more centralized location – Omaha, or someplace a little bit cheaper?
MR. MCHENRY: We’ve actually talk about, going forward, as I said, the number of judges that we have and the number of people we bring together, we may have to sort of divide the training up. And one thing that we’re looking at – and we’ve made no commitments or no definitive decisions – is perhaps doing a training based on region. So we wouldn’t necessarily bring all the judges to Omaha, but we might bring, you know, the judges from the central United States or from certain federal circuits together in one location, judges from other circuits in different locations.
MR. ARTHUR: And you’d mentioned training on individual cases. And this sounds to me like one of those things that would benefit that, that if you brought judges from certain regions together they could – you know, unfortunately we don’t have a uniform system of immigration law because we have 11 different circuit courts that made decisions. But could you talk about the training that you have for those individual decisions from those 11 circuit courts?
MR. MCHENRY: Well, actually that’s something that our policy office has been able to do an outstanding job on so far, is they compile each week all new circuit court case decisions that relate to immigration law. They compile all new policies from all other agencies that relate to immigration law. You know, any Supreme Court cases, you know, any class action decisions, anything of any interest or potential relevance for our immigration judges that they may need to know, they compile it and send it out to the judges on a weekly basis. So the judges have essentially real-time information on cases, policies, things as they come out.
Now, a lot of judges, obviously, they keep up with the news, they do their own work, sometimes their law clerks will do the research too. But we’ve been able to sort of centralize the process, so that we’re delivering, you know, uniformly consistently material to the judges, you know, honestly, as quickly as possible. When, for example, we had a Supreme Court decision a couple of weeks ago, we were able to get something out to the judges the same day, sort of explaining the decision and what’s going on. So we’ve sort of, you know, by centralizing the training in general and creating the policy office, we’ve essentially made it easier to deliver to the judges, you know, legal updates, legal information, things that they need, you know, as quickly as possible.
By the time we get to a training conference, you know, a lot of cases are six months, eight months old. The judges have sort of already internalized them. 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: And I’ve written quite a bit about this, but, you know, this is a real issue for the judges because – in fact, GAO even mentioned in its report that, you know, because there’s been such a shift in the law, it’s difficult for the judges to apply that new law. And this sounds like one of the ways that we’re going to put the judges in a better position to do that.
MR. MCHENRY: Yeah. I mean, it’s incumbent on us to make sure the judges have as up-to-date information as possible, especially with the law. And there are new circuit court decisions practically every week. There are new regulations coming out. You know, judges can look at it – look for it themselves, they can have their law clerks do it, some of the components sort of had their down little subdivisions. But this way we make sure we can get it out, you know, in a uniform and timely manner.
MR. ARTHUR: Any big regulatory changes you see coming down the pike for your agency, or is it too early to talk about that?
MR. MCHENRY: It’s probably too early at this point. I mean, obviously we’ve had a lot of regulations on different agendas over the years that are still sort of pending out there. And we’re doing kind of like an overall retrospective review of all of our regs. I guess the most recent one we did was increasing the size of the board. I’m trying to think if there’s anything else recent. Nothing that comes to mind.
MR. ARTHUR: OK. Immigration judge productivity has declined in recent years from 1,356 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?
MR. MCHENRY: I’m not sure that we can pinpoint one sort of central reason that’s dispositive or determinative overall. The same report that quoted those statistics talked about continuances. And continuances are definitely up, especially immigration judge-related continuances. But it’s also, to some extent, a byproduct of there was a hiring freeze so we had fewer immigration judges coming on board. To handle the new cases coming in, we sort of had to, you know, fit cases in where we could. There was some docketing shifts and some priority changes. There were three or four of those over about a two-year span, where cases got moved around on the dockets, which didn’t necessarily increase efficiency.
The cases, and especially the criminal-related cases, have become more complex. The courts have developed this approach, called the categorical approach or the modified categorical approach, that you almost have to do sort of a metaphysical breakdown to criminal statutes to make a determination as to whether it’s a ground of removal or not. And those have taken up more time. We had a sharp uptick in the number of the asylum cases. Asylum cases typically take a little bit longer. There have more evidence, that sort of thing. So it’s probably a combination of all those factors. I don’t know, again, if we can pinpoint to sort of one factor only.
MR. ARTHUR: And you mentioned that there’d been a hiring freeze in the past. That’s part of the reason why we only have 334 immigration. Do you know why this wasn’t made more of a priority? I don’t want you to opine about the opinions of your – the reasons for your predecessors’ actions, but –
MR. MCHENRY: Well, I can’t – I really don’t know. So I wasn’t 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?
MR. MCHENRY: We’re looking at a couple of things. The first is obviously resources. You know, 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. And I’ve talked about that too. We’re adding law clerks and we’re improving the dissemination of, you know, up to date and timely legal information. And then, as I alluded to before too, 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. And that should make it ultimately easier for them to make a determination.
Now, we’re also looking at, you know, other ways to try to streamline the process, you know, encouraging judges and talking to them about bottlenecks that they see, you know, other sort of procedural issues. But those are sort of the main things that we think can help improve immigration judge productivity.
MR. ARTHUR: OK. So you’re getting feedback from the judges at the same time that you’re implementing these rules. And let’s talk just for a moment about performance standards for immigration judges. It was recently reported that EOIR plans 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?
MR. MCHENRY: I think at this point most people are probably aware. There was an email that went out toward the end of March and it’s been in the media. So we are – we do intend to implement performance measures – numeric performance measures. It’s important to clarify, though, 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. And we think, from an objective perspective, if you’re an employee and you’re being evaluated, you know, it helps you to understand sort of what you need to do to get a certain level of performance. So we’re trying to make it both more transparent and more objective to have the judges have a better understanding of what they need to do.
MR. ARTHUR: What happens if you’re a judge in a court that only has 500 notices to appear filed each year? I mean, how are you going to meet 700 cases if you only get 500 NTAs?
MR. MCHENRY: Well, this is one reason, aside from semantics, that we don’t call it a quota, or we don’t consider it a quota. A quota is sort of a fixed number without any kind of deviation or without any sort of allowance or room for deviation. But when we evaluate the judges based on our measure, there are at least six discrete factors that we’re going to take into consideration. And there’s also a seventh sort of catch-all. So before we – before we come to a final evaluation, if for some reason, you know, a judge has not completed the number of cases that we think is appropriate, we’ll look at these factors.
We’ll look at the catch-all. We’ll look at sort of the overall context. And it could be something – obviously, if a judge doesn’t get 700 cases, you can’t expect the judge to complete 700 cases. So we’re not – again, it’s not an inflexible number. It’s not quite as concrete or rigid as perhaps it’s been portrayed. But we’re going to look at factors like that, factors that may be beyond the judge’s control. And that all goes into account for the evaluation.
MR. ARTHUR: And, yes indeed – it hasn’t been that long that I was an immigration judge – we did have performance standards that I had to meet. And demeanor and, you know, various other competency requirements were part of that. But with respect to the number of cases that a judge has to complete per year, or that, you know, ideally will be completed, will there be feedback on that? Will you guys, you know, take a look at those numbers, determine whether that’s the right number?
MR. MCHENRY: Right now – and, first, the measures aren’t scheduled to go into effect until the beginning of the next fiscal year, so that’s October. So we’ve got – we’ve got training coming up for the judges. There’ll be bargaining with the union on impact and implementation of the measures. So how it’s going to be rolled out is subject to change between now and then. But we do want the judges to be aware of the numbers, to help try to make them more comfortable with them and understanding sort of where we’re coming from.
And in terms of feedback, you know, we’re working on essentially an electronic dashboard system, so that the judges can call up, you know, their own caseload, their own numbers themselves in real time, you know, updated on sort of a daily basis. And they can see kind of where they stack up. You know, other agencies use similar systems. And other agencies who have similar performance measures use those types of systems. And we’re going to make sure that the judges have enough feedback, have enough information so that they know kind of where they stand and where there may be some potential issues.
MR. ARTHUR: What are going to be the implications if, you know, one fails to meet these standards? I mean, do you get fired? Is there an opportunity for additional training? Do you identify, you know, people that need some – a little bit more help?
MR. MCHENRY: Again, it’s really going to be fact-specific and based on the particular situation. It could be a training issue. It could be a resource issue. You know, it could be somebody who’s just been out for a while for some reason. It could be going on detail. There are a number of factors that might go into it. And we don’t have sort of a one-size-fits-all of how we’re going to – how we’re going to, you know, make a decision. You know, we’re going to look at it, see what the – drill down, see what the actual underlying issue is, and then address it – whether it’s training, resources, or something else.
MR. ARTHUR: But I anticipate this will be a feedback loop, where you’re constantly, you know, looking at these numbers, looking at performance to, you know, see what the agency needs, correct?
MR. MCHENRY: Oh, definitely. I mean, the – one of the driving forces behind it is for us to understand better IJ – immigration judge productivity. So we’re going to look at it. We’re going to see, you know, where the metrics stack up. We’re definitely going to get feedback. We’re already getting feedback to some degree. And we’ll evaluate it on sort of an ongoing basis.
MR. ARTHUR: Do you think this is a reasonable number, or that this is about right?
MR. MCHENRY: Yeah. It’s a policy judgement that this is a reasonable number that a – or, that this is a number that a judge – an experienced judge with proper training can reasonably be expected to complete. It’s in line with historic averages. I think the productivity numbers you quoted earlier, it’s actually a little bit lower than that. So we think, yeah, 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 that you were going to talk about my own performance. There is no retroactive aspect of this, correct? (Laughter.) Just checking.
Anyway, there’s also purported a requirement that immigration judges have a remand rate, that is a rate of cases returned by an appellate court to the immigration court because of some error in the decision, of 15 percent or less. Can you explain that?
MR. MCHENRY: Well, something else that we want to look at in terms of immigration judge performance and quality, you know, is not just the number of cases, but also how many of those cases are coming back. Not only is it a quality and a performance issue, but obviously it’s an issue for the backlog. The more cases that are remanded, you know, the larger the backlog’s going to grow, or the more time it’s going to be taken away from handling new cases.
So 15 percent is a – again, it’s a policy judgement. It’s used by other agencies. And when you break it down by the numbers, it actually makes some intuitive sense. If we’re asking judges to complete 700 cases, 15 percent of that is about 105. That works out to roughly, like, one out seven cases. You know, in our estimation, if you have a judge who’s being remanded, who’s had errors in cases coming back more than one out of every seven case(s), that’s probably something we need to take a look at.
Now, that doesn’t necessarily mean that 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’s sort of like a trigger warning or a red flag. You know, if we see a judge who’s having every seventh or every sixth case come back to him or her, then we want to take a look at it, and we want to find out and drill down, and see what that reason is.
MR. ARTHUR: So, again, a feedback loop will exist with respect to these numbers.
MR. MCHENRY: Yeah.
MR. ARTHUR: How do you see this standard improving the performance of immigration judges?
MR. MCHENRY: A couple of ways. One, as I alluded to, it gives sort of objective measures for what the judges know their performance needs to be or should be. So, I mean, the prior performance evaluations, the factors are not as well-defined. But here there are clear numbers. They’re objective. There are objective numbers. There are objective measures. It makes it easier to understand to understand what they need to be doing.
And then, secondly, it will increase feedback and 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 should be a positive synergistic effect from going back and forth and discussing these, back and forth, that will help supervisors identify where issues are, whether it’s training, resources, or something else. It will also help the judges too. I mean, they may get a different perspective, you know, if they see that a certain type of case is causing them problems, or a certain particular docket issue is causing them problems as well. So the more interaction, the more feedback there is, I mean, the better off we’re going to be.
MR. ARTHUR: OK. 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 with it?
MR. MCHENRY: Sure. The certification process is in the regulations. It’s been around for many years, at least going back to the 1950s. And under the immigration law, under the Immigration and Nationality Act, the attorney general has sort of controlling authority to issue determinations of law. So the attorney general can refer cases to himself or can made 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. So typically these cases come up in one of those three manners.
MR. ARTHUR: So why can’t the alien seek certification?
MR. MCHENRY: Well, that’s a good question. I don’t know why. Don’t know the answer. As I said, this has been around – this process has been around since the 1950s. This is what was implemented then. So I don’t know.
MR. ARTHUR: So there is actually, though, an appellate right from a decision at the Board of Immigration Appeals for an alien respondent proceedings, correct?
MR. MCHENRY: Not administratively. There are appellate rights to federal court. Typically, they file a petition for review that goes to the Circuit Court of Appeals over where the immigration case was heard.
MR. ARTHUR: The government doesn’t have that right, though, correct?
MR. MCHENRY: No, not in the current statutory scheme.
MR. ARTHUR: So basically this is the method by which, if ICE determines – or the director ICE determines that a case deserves more review, they can seek that review from the attorney general, correct?
MR. MCHENRY: That would be one method. I mean, there are a couple of quirks to it. And it’s sort of varied with how DHS has used it in the past. But that is one possibility.
MR. ARTHUR: OK. Finally, you and I are both familiar with EOIR as a result of our individual service with the office. You’ve been there three times, I’ve been there two times. So you got one up on me.
MR. MCHENRY: (Laughs.)
MR. ARTHUR: Were there any surprises, however, for you about that office when you began your work as the director?
MR. MCHENRY: I wouldn’t say surprises. One of the most interesting challenges to it, however, when I came back – because, you know, I’d been there three times. I know a lot of people who are at EOIR. And a lot of its senior staff and a lot of its more experienced people are kind of what we call EOIR lifers. EOIR’s had a lot of the same leadership team for many years. And they have a lot of institutional knowledge, a lot of experience that we need to draw on. But it’s also important to kind of balance that with new ideas and sort of, you know, bringing in people who are not – they have not spent their entire careers at EOIR.
And we’re trying to balance sort of the new ideas, new blood type of thing, with the people that actually have gone through changes in the past. They’ve gone through differences in the system. They’ve gone through upheavals. And to sort of balance their experience – you know, their institutional knowledge, their ideas of what works and what doesn’t work – with new ideas that we want to try to, you know, kind of work on the backlog, work on hiring, things like that. And that’s probably been the most interesting, most unique aspect to it so far.
MR. ARTHUR: OK.
And next we’re going to take some questions from the audience.
MR. MCHENRY: All right.
MR. ARTHUR: There have been reports of a revolt among IJs over the push for stricter enforcement and faster processing under the Trump administration. How are you dealing with that?
MR. MCHENRY: I don’t know that I would say that there’s a revolt. Obviously, there are individuals who disagree with some of the measures we’ve taken. You know, there are arguments on both sides. But we’re working with – we’re working with the judges. We’re working with the union. We’re fulfilling our obligations.
MR. ARTHUR: There have been news reports the Trump administration may be reassigning immigration judges from the courts in the interior to the border to respond in a recent spike in apprehensions. Don’t these reassignments make the backlog that you’ve described – the low-690 backlog – worse?
MR. MCHENRY: Oh, when we ran the numbers last year – when there were judges reassigned – we actually found that the judges completed I believe it was 2,700 more cases than we would have expected to have completed at their home courts. So statistically, at least based on the numbers, I’m not sure that’s actually true.
MR. ARTHUR: So they’re actually getting more cases done when they’re assigned in this manner?
MR. MCHENRY: That’s what we found when we ran an analysis of the immigration judge surge last year.
MR. ARTHUR: Huh. Do you believe that EOIR is properly located within the executive branch?
MR. MCHENRY: EOIR has been part of the Department of Justice since 1940. It’s 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 if the immigration courts were located somewhere else. And I know there have been a number of proposals to try to move them, but I’m not sure all those proposals have sort of reckoned with the consequences. So, yeah, we do feel that EOIR is best located – its best home is where it’s been since 1940, and that’s the Department of Justice.
MR. ARTHUR: And you may have answered this question, but just to give you the opportunity: How do you respond to those who contend that these cases should be handled by Article 3 courts?
MR. MCHENRY: I don’t know that anyone’s consulted the Article 3 courts to ask them that question. I’d have to defer to them. I don’t know if the Article 3 judges right now would be equipped to take on 692,000 new cases. (Laughter.)
MR. ARTHUR: When INS asylum reforms happened 20 years ago – and some people’s handwriting is a bit sloppier than others – they took the newest cases first in tackling the backlog. Are immigration courts now taking the oldest cases first?
MR. MCHENRY: We’ve – again, we’re sort of competing or trying to balance two different interests. As I alluded to earlier, we changed docketing strategies and docketing priorities three or four times since 2014. And it’s not clear that those led to efficiencies. By the same token, we are trying to make sure – we do have a number of cases who’ve been pending for a long time. You know, we’re trying to make sure – it doesn’t benefit anybody to wait long for the decision, whether it’s going to be favorable to the respondent or favorable – or in favor of the government. It does nobody any good. So we’re trying to make sure that case aren’t pending for too long, without at the same time churning cases on the docket that’s not actually going to make the overall adjudications more efficient.
MR. ARTHUR: This may be a question that you’re still looking at, but it’s one that’s asked so I’m going to ask it. Should backlog reductions start with the newest or the oldest cases?
MR. MCHENRY: 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 know, you’re going to lead to some docket churning. And I’m not sure that at the end of the day that’s going to be the most efficient way. You know, we are looking at all of our processes. We are looking at creating specialized dockets or focusing on, you know, particularly types of cases that can be – that can be handled in an expeditious manner. But I’m not sure, as sort of a, you know, black and white big picture thing, that we can stay that, you know, the longest cases or the shortest cases are going to be the most efficient.
MR. ARTHUR: So not a FIFO/LIFO sort of thing?
MR. MCHENRY: Not in the same way that I understand USCIS is trying to implement it. But it is something that we’re looking at.
MR. ARTHUR: OK. And you alluded to this before. We just saw the Supreme Court issue a decision that created a huge shift in immigration law. For those of you who are not familiar, Dimaya versus Sessions, I believe, was the name of that case. And it involved 18 United States Code Section 16(b), the crime of violence. We won’t get into that. But how has that case and other decisions from lower courts affected the productivity of the immigration courts and the BIA?
MR. MCHENRY: I mentioned this before a little bit. And it’s not so much Dimaya, excuse me, per se, because Dimaya deal with a constitutional vagueness issue. But other court decisions, this categorical and this modified categorical approach that I’ve alluded to, those have created a great deal of confusion. We’ve had board members, we’ve had judges, there have been Federal Circuit Court judges who’ve all expressed sort of the same sentiment, that there are a lot of crimes that seem intuitively or from a common-sense perspective to meet definitions – you know, there’s a category for robbery in the Immigration and Nationality Act.
But we’re finding court decisions that robbery is not a robbery offense or perjury is not a perjury offense, or certain other crimes are not crimes of violence. And it has caused confusion, consternation, and frustration. And when you have that – you know, frustration leads to delays, which leads to inefficiency. So it has – it’s not maybe a measurable impact, but it’s certainly had some impact on the length of time that cases have been pending.
MR. ARTHUR: Having been an executive branch guy, having been a legislative branch guy, I know that you’re probably not going to answer this, but can you think of any fixes that Congress could make that might make this process a little bit better?
MR. MCHENRY: (Laughs.) When I testified a couple of weeks ago, I think, I got a similar question. Our response is, you know, we’re happy to work with Congress. We have an Office of Legislative Affairs that works with them very well. We’re happy to take up any ideas or suggestions they may have.
MR. ARTHUR: Good answer. Would it really be possible to work through a court backlog of 1-million-plus cases?
MR. MCHENRY: That’s an open-ended question, because you didn’t give a timeframe. Is it possible to do it within a year? No. But if we get – we make the process improvements that I’ve talked about, we get the judges hired in a timely fashion, you know, we look through our own procedures – ultimately, yes. Again, I can’t give a definitive timetable, but it’s not – we don’t consider it an intractable or an unsolvable problem.
MR. ARTHUR: And let me – let me wrap up with this question, because I think that this is – this is an issue that sort of undergirds the entire backlog. What are the problems with the backlog? I mean, why is this problematic to the interests of Justice? Why is this problematic to the mission of EOIR?
MR. MCHENRY: A couple of reasons. You alluded to EOIR’s mission statement earlier about fairly, uniformly, and expeditiously deciding cases. You know, all three of those are important and it’s an “and,” it’s not an “or.” So we want them to be fair. We want them comporting with due process. But we also want them do expeditiously. Again, the two are not mutually exclusive. The longer somebody has to wait – if someone has a valid asylum claim and they have to wait four years, they – you talked earlier about judge candidates putting their lives on hold. Somebody who has a valid claim is also putting his or her life on hold until they get that actual decision.
Likewise, the government has an interest in making sure individuals who are subject to removal, that those orders are entered swiftly and efficiently, so that they can be executed or dealt with however they need to. No party wins by delaying the cases. There’s an old saying many of you may know that justice delayed is justice denied. And that’s sort of the issue with this. The longer the cases drag out, you know, there are additional resource strains on EOIR. But at the end of the day, it is simply a matter of justice. Nobody wins if it takes four years to decide a case.
MR. ARTHUR: Well, you’re a man who’s in charge of 642,000 immigration court cases, lord knows how many BIA cases and OCAHO cases. So I’m going to actually leave it right there. But I do want to thank you. I want to thank you for being the first of our Immigration Newsmakers and appreciate you coming.
MR. MCHENRY: Oh, thanks for having me. It was my pleasure. (Applause.)