Date: August 22, 2017, at 9:30am
Location: National Press Club, 529 14th St, NW, 13th Floor, Washington, D.C.
Nine new immigration judges were appointed in an effort to address the 600,000-plus backlog of cases in the nation's immigration courts. The Center for Immigration Studies (CIS) hosted a panel discussion on Tuesday, August 22, on this issue, focusing on a recently published CIS analysis on the management of the immigration court system.
Former immigration judge Andrew Arthur, now a CIS fellow, discussed his paper, “The Massive Increase in the Immigration Court Backlog, Its Causes, and Solutions”. The key finding is that the doubling of the backlog 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 each case to be resolved. Arthur proposes a variety of changes to address this problem.
Also on the panel was Larry Burman, representing the National Association of Immigration Judges, and Hans von Spakovsky, a senior legal fellow at the Heritage Foundation and former Justice Department official.
Superior Transcriptions LLC
Introduction and Moderator:
Executive Director, Center for Immigration Studies
Resident Fellow in Law and Policy, Center for Immigration Studies
National Association of Immigration Judges
Hans von Spakovsky
Senior Legal Fellow, Heritage Foundation
MARK KRIKORIAN: Good morning. My name is Mark Krikorian. I am executive director of the Center for Immigration Studies, a think tank here in Washington that examines and critiques the impact of immigration on the United States.
The issue of the immigration courts, and specifically the backlogs in the immigration courts, has actually broken somewhat into the general news. It seems like the kind of thing that would be inside baseball for immigration experts. But the backlog in immigration courts has grown quite dramatically, and that’s gotten the attention of regular mainstream media. And there’s a variety of issues here: what’s causing this backlog and what kind of possible solutions there are.
And in order to address that question, we’ve called this panel initially to discuss a paper that the Center for Immigration Studies published specifically on this issue, the causes and possible solutions for the backlog. And the first presenter on the panel today is going to be author of that paper.
Andrew Arthur, a former immigration judge, is now resident fellow in law and policy at the Center for Immigration Studies. He also has worked as a senior staff member in a couple of congressional committees and in the INS before that, so he’s seen the immigration issue from almost all sides.
After Mr. Arthur is finished, we’ll have some comments both on his paper – which is outside for those of you who don’t have it – as well as just more general thoughts about the issue of dealing with the immigration courts. We’re going to have two people who are experts in this issue.
First will be Larry Burman. He’s secretary-treasurer of the National Association of Immigration Judges. And, as that suggests, he is himself an immigration judge and has been for nearly 20 years now.
And our other commenter is going to be Hans von Spakovsky from the Heritage Foundation. He has – used to be in the Justice Department, the Civil Rights Division; has worked on election law and a whole variety of legal issues; and actually has a paper upcoming on the issue of immigration courts.
So I’m looking forward to hearing from everybody’s comments, and we’re going to have a Q&A after that. And so, Art, if you want to start?
ANDREW ARTHUR: Thank you.
Before I begin, I do want to make one comment. We’re going to talk a lot about the Executive Office for Immigration Review. And last week, unfortunately, the former director of EOIR, Juan Osuna, passed. Juan was a friend of mine for more than a decade, and he was a good public servant, and he died unexpectedly at a rather young age. And so I did want to note his passing before I began.
On June 1st, the Government Accountability Office issued its long-awaited report on the management of EOIR. That report revealed a significant decline in the ability of the immigration courts, which are a component of EOIR, to complete cases over the last 10 years. GAO found that the immigration courts’ backlog – that is, cases that are pending from previous years that remain open at the start of a new fiscal year – more than doubled between FY 2006 and FY 2015. Specifically, GAO found that the backlog rose from about 212,000 cases pending at the start of FY 2006, when the median pending time for those cases was 198 days, to 437,000 pending cases at the start of FY 2015, when the median – when the median processing time was 404 days.
Unfortunately, these backlogs have real-world consequences for both the government and for the aliens who are affected. As GAO found, quote, “Some immigration courts were scheduling hearings several years in the future.” In fact, GAO reported one court had master calendar hearings – which is your initial arraignment in a(n) immigration context – scheduled in May 2021, more than four years in the future, while one court had scheduled individual hearings – which we also call merit hearings in immigration cases, when your case is finally decided – five years into the future, until February of 2022, which means that you aren’t going to go to court for another five years.
These delays mean that the government may have to wait years before they can actually get a removal order for an alien who is prima facie deportable and who has no relief. So, basically, that person gets to stay in the United States during the period of time of the backlog.
As importantly, for an alien who is eligible for relief and may be interested in bringing relatives to the United States, the alien also has to wait, you know, that period of time, until a final order can be issued. This can be especially problematic for an individual who is an asylum claimant, who may be able to bring relatives to the United States out of harm.
By and large, the backlog has not resulted from an increase in new cases over the past 10 years. In fact, new case receipts declined by 20 percent from fiscal year 2009, to about 202,000 new cases in fiscal year 2015. So backlogs increased, but we’ve actually seen a decrease in new cases.
What did increase during this period of time were other case receipts. Those are motions to reopen, motions to reconsider and recalendar, which increased 86 percent. Motions to reopen and reconsider are generally filed by aliens who are under orders of removal, and motions to recalendar are fired in matters that are administratively closed. And Larry may touch on that a little bit more. But that is when a case is taken off of the court’s docket. So these cases actually are, you know, cases that have more or less been decided or are pending out there that are just lumped, again, back onto the backlog.
While new case receipts fell, the immigration courts were actually completing fewer cases annually, and this is where the delta comes in. Incredibly, GAO found the number of immigration court cases annually declined by 31 percent from fiscal year 2006 to fiscal year 2015, from about 287,000 cases completed in FY ’06 to 199,000 in FY 2015, even as the number of IJs increased over the whole period by 17 percent. More judges, fewer cases getting decided.
The other issue is that many of those so-called completed cases were not actually cases completed on the merits. Those cases were administratively closed, effectively taken off of the court’s docket, but no resolution was ever reached in that. Merits decisions were originally 95 percent of the total in FY ’06. They went down to 77 percent by FY ’15. So effectively 23 percent were just sort of pushed off to the side for the time being.
The question is, then, if the number of judges increased and the number of new cases filed decreased, why is the backlog growing? According to the GAO, the reason is that it’s taking longer for IJs to issue decisions. Specifically, the average period between the filing of a charging document and an IJ issuing a decision grew more than fivefold between FY ’06 and FY ’15, with the median initial completion time for cases increasing from 43 days in FY ’06 to 286 days in FY 2015.
All of this, however, begs the question of why it’s taking so much longer to complete immigration cases. According to GAO, the – this is partially a result of a 23 percent increase in continuances. So you go to court, you ask for an attorney, you ask for time to find an attorney, your case gets continued. You ask for time to consider relief, your case gets continued. You ask for time to file an application, your case gets continued. These are the continuances that take place.
There’s also been an increase in the number of cases with multiple continuances. Significantly, the number of cases with four or more continuances increased from 9 percent in FY 2006 to 20 percent. So one out of five cases had more than four continuances or more by FY 2015.
There’s several reasons why the immigration courts are in this position, and several reasons why the courts should begin to get a handle on and decrease the backlog in the next few years. The first is resources. Simply put, there are too few people like Larry for the number of cases that ICE has filed with the immigration courts. Today, there are 334 immigration judges handling more than 610,000 cases, or about 1,800 cases per judge. When a judge has a docket that large, cases must be set out for an extended period of time, and it often becomes more efficient to grant a weaker motion to continue than it is to enable the judge then to focus attention on cases that are ripe for decision.
The good news is that the attorney general has promised – has recognized this problem and has promised to hire 125 new judges within the next two years. And, in fact, Attorney General Sessions has begun to deliver: 21 new judges have been sworn in just since June the 16th of this year.
Another major reason for the backlog was the so-called surge of unaccompanied alien minors and members of family units that began in FY 2014. In the course of just one year, between FY ’13 and FY ’14, the number of minors apprehended increased by 76 percent and the number of aliens in family units increased by 360 percent. While many reasons for this increase have been advanced, I believe the most significant was word of mouth. People called back to the home country and said, look, I came to the United States, they let me into the United States, and they released me. Part of it was also lies told by smugglers, who said if you come to the United States you’re going to get a permiso, permission to remain in this country. Smugglers want to make money, and there’s no better way to do it than by promising something to potential clientele.
These new cases strained the courts’ dockets for two reasons. First, EOIR decided to prioritize those new cases, so they pulled judges off of pending cases and put them on cases involving children and family members. So there were a bunch of cases that were ripe for decision that had to be pushed back because the judges were reassigned.
The other reason is that cases involving children and family members are generally more complex than cases involving single adult males. It’s been my experience that most single adult males have come to the United States to work, and if they’re caught and detained they just go home. They take an order of removal or voluntary departure. When you’re talking about a minor, however, the minor will ask for time to have a hearing. Depending on the age of the minor, you may have to grant multiple continuances in order to find a lawyer. Also, the claims are more complex. The asylum claims that are advanced by these individuals are generally more complex than asylum claims, for example, made by single adult males.
Similarly, the Obama administration’s deferred action programs for aliens who had arrived illegally as minors, and for the parents of U.S. citizens and lawful permanent residents, led to multiple continuances as aliens requested time to explore such relief and to apply for the relief. And again, that just slowed up the docket even more.
These weren’t the only Obama-era policies to have a deleterious effect on the backlogs in the immigration courts, however. Beginning in 2011, ICE put in place prosecutorial discretion guidelines to prioritize certain cases for removal. And then they did something really interesting: they told all of their attorneys to go through all of their pending cases to find the cases that were priorities so that they could, you know, make sure that cases that weren’t priorities weren’t on the docket. So basically what that did was it took attorney time that could have been spent completing cases and put it to reviewing cases, which just slowed up the process even more.
This effort reached its apex in a November 20th, 2014 memo from Homeland Security Secretary Jeh Johnson on “Policies for the Apprehension, Detention and Removal of Undocumented Immigrants.” That memo strictly set limits – strictly limited the cases that were to be prioritized for prosecution, increasing the courts’ caseload, and directed ICE attorneys to join in on motions in those cases. So, again, the attorneys had to review all their files, and they would have to talk to the other attorney, and they would file motions to, you know, administratively close or – in order to, you know, bring the case forward in order to have it decided. It was a mess.
These policies also made it clear that the administration did not consider the removal of any except for the most serious of criminal – most serious of cases to be appropriate, placing IJs, who are sworn to uphold the law, in a bind. It also gave aliens with non-meritorious claims incentives to fight their cases, and this clogged the courts even more as those non-meritorious cases continued. People who normally would have taken an order of removal asked for continuances, hoping that their case would be one of the ones that would be taken off the docket because it wasn’t a priority.
The new administration has taken a different tack from the Obama administration. President Trump has made it clear that he intends to enforce the immigration laws against all those who are removable, and so have his subordinates, and to expand detention. This both offers more clarity to IJs and removes incentives for removable aliens who do not have relief to fight their cases. And, in fact, we’ve seen that the number of orders of removal issued by EOIR increased by 27.8 percent between February 1, 2017 and July 31, 2017 compared to the same period in 2016. So, again, more people are being picked up who don’t have relief and are actually being ordered removed by the courts.
Two other factors have also increased the backlog. Activist federal court judges have further complicated the already-tortuous process that IJs must follow to ascertain whether certain convictions render aliens removable. And in the Ninth Circuit, a series of decisions have increased the number of aliens who are eligible for relief. These decisions inhibit the ability of IJs to make timely judgments, they encourage frivolous claims, and they spur remands and reopening of settled cases.
I fully expect that Attorney General Sessions will more vigorously litigate cases before the federal courts than his last two predecessors did, resulting in more bright-line decisions that will provide better guidance to the IJs. And that will bring down the backlog.
Finally, IJs need better guidance when it comes to denying continuances. Some aliens seek multiple continuances for counsel. Some attorneys seek multiple continuances for case preparation and for filing applications. There is little downside for an immigration judge who grants numerous continuances because such orders can rarely be appealed. They’re interlocutory decisions, and the Board of Immigration Appeals doesn’t generally favor taking those. However, there’s tremendous reputational damage that can occur when a motion to continue is denied. In such a case, it is possible that the Board of Immigration Appeals or a reviewing court could find that the IJ denied due process to an alien by denying a continuance, even in a case where multiple continuances have already been granted.
On July 31, the good news is EOIR issued a(n) Operating Policies and Procedures Memorandum, also known as an OPPM, to curb the number of continuances by providing such guidance. I fully expect that Attorney General Sessions will follow up on this, and use his certification authority to issue decisions that will help to clarify better when judges should and should not grant continuances.
In summary, the immigration court backlog is too large. In the short run, I expect that backlog to increase as the Trump administration seeks the removal of aliens who have little to fear – who had little to fear from ICE under the prior administration. In the long run, however, I believe that the president’s policies and those of his subordinates will reduce the backlog to a more manageable level. Thank you.
MR. KRIKORIAN: Thank you, Art.
JUDGE LARRY BURMAN: Thank you.
First, the disclaimer, which is important so I don’t get fired. I’m speaking for the National Association of Immigration Judges, of which I am an elected officer. My opinions expressed will be my own opinions, informed by many discussions with our members in all parts of the country. I am not speaking on behalf of the Department of Justice, the Executive Office for Immigration Review, the chief judge, or anybody else in the government. That’s important.
What is the NAIJ, the National Association of Immigration Judges? We’re a strictly nonpartisan organization whose focus is fairness, due process, transparency for the public, and judicial independence. We’re opposed to interference by parties of both administrations with the proper and efficient administration of justice. We’ve had just as much trouble with Republican administrations as 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, the – well, let me backtrack a little bit and talk about our organization.
Immigration judges are the – 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. 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 limitless discretion over immigration law. The members of the Board of – 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 who are well-respected in other parts of the Department of Justice and deserve a well-paid position. Very often they’re 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 coincidence.
The administration of the Executive Office for Immigration Review in which we and the BIA 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, an Article I type court.
Our supervisors – I’m not sure why judges need supervisors, but our supervisors are called assistant chief immigration judges. Some of them have some experience. Some of them have no experience not only as judges, but really as attorneys. They were staff attorneys working in the bowels of EOIR, and gradually became temporary board members, and then permanent board members.
Interestingly, when a Court of Appeals panel is short a judge, they bring up a district judge. EOIR used to do that, by bringing up an immigration judge to fill out a panel at the board. They don’t do that anymore. They appoint their staff attorneys as temporary board members, a fact that is very shocking when we tell it to federal judges. They can’t imagine that a panel would be one member short and they’d put their law clerk on the panel, but that’s 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. Two of them have gone on. Unfortunately, one of them has gone on to be a BIA member. The other retired.
Our direct supervisors are the assistant 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 ACIJs – assistant chief immigration judges – who were appointed became judges in 2016. So they don’t have vast experience. Well, they may be fine people with other forms of 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 EOIR. I think Congress probably has 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 of them 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 all of these intermediaries and supervisory judges, and I think that we would function better without them as well.
To give you a few examples – I could give you thousands of examples, and if you want to stick around I’ll be happy to talk about it. Art was talking about the juvenile surge. 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, you know, we’re going to give them their asylum hearings immediately. I’m not sure what kind of asylum case that a 6-year-old might have, but we would hear the case and do it quickly, and then discourage people from coming to our country. But, in fact, what’s actually happened is the juvenile docket is basically a meet-and-greet. The judges are not – first of 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. (Laughter.) Really, what they do is they just – they see the kids periodically, and in the meantime the children are filing 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. Art was talking about cases being scheduled in 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 assistant 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 tele-video. But assuming that they want to do them in person, you would think that they would only send the number of judges that are really needed. But, in fact, on my last detail of 10 business days, two-week detail, two days I had no cases scheduled at all. And back home having two cases off the docket, which almost never happens – or 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 Jena, Louisiana, I can’t really work on my regular stuff. So I’m just reading email 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 that there’s enough work or not to send more judges than is really necessary to do the work. I assume the 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 tele-video. But they wanted to rush judges to the border, so they assigned a bunch of judges in the country that had their own dockets to take over that docket by tele-video on one week’s notice. Well, one week’s notice meant that the judges in San Antonio couldn’t reset cases. You’ve got to give at least 10 days’ notice of a hearing by regulation. So we had judges taken away from their regular dockets to do that; judges who normally would have done that who already were on the border – San Antonio is pretty closer to the border – didn’t have anything to do.
Now, those may be extreme cases, but this happens all too much, and it’s because of political interference. And like I say, it’s got nothing to do with party. We’ve had the same problem with Democratic and Republican administrations. It comes from political decisions animating the process and people who don’t really understand what they’re managing, just attempting to placate the guy on the top. So that’s basically what’s been happening.
Am I over my 10 minutes here?
MR. KRIKORIAN: Yeah. Well, I mean, you’re right at it. If you’ve got a couple more minutes, that’s fine.
JUDGE BURMAN: Well, let me just go over some possible suggestions.
Let judges be judges – immigration judges that control their own courts and their own dockets. We should be able to supervise our own law clerks and our own legal assistants, which currently we don’t. And the contempt authority we were given in 1996 should eventually – should finally get some regulations to implement it.
EOIR’s overhead needs to be reduced. There’s too many positions at headquarters and too few positions in the field. When EOIR 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 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’s 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, or at least have some more courtroom experience.
We need an electronic filing system like all the other courts have. Fortunately, that’s one thing that Acting Director McHenry has said is his top priority, and I think that he will take care of that.
The BIA is a problem. The BIA doesn’t have the kind of expertise that the federal courts would defer to. Consequently, I think a lot of the bad appellate law that Art was referring to is caused by the fact that the BIA really doesn’t have any respect in the federal court system. They’re not immigration experts. They want their Chevron deference, but they are not getting it. They’re not getting it from the Court of Appeals. They’re not getting it from the Supreme Court, either.
The BIA also remands 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. They could reverse us. We don’t want to see it back. We’ve got too much stuff to see them back. And this happens all the time. If they remand the case, they don’t ever have to take credit for the decision that they make. I assume that’s why they’re doing it, to 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’s a waste of time. Judges were punished for the – 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 or – it’s just crazy. Judges were punished or could be punished for granting – for not granting continuances. No judge was ever punished for granting a continuance. So it’s no surprise that, as I pointed out, 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 we’re subject to punishment, and nobody really wants that.
And finally, the ultimate solution, I think, is an Article I 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 and appellate judges who are appointed in a transparent way, being vetted by the private bar, the government, and anybody else.
And I’m way over my 10 minutes, so I’ll be – I’ll be sure to babble on later if you want me to. Thank you.
MR. KRIKORIAN: Thank you, Larry.
HANS VON SPAKOVSKY: Thanks, Mark.
I’m Hans von Spakovsky. I’m a senior legal fellow at the Heritage Foundation. I was asked to take a look at Art’s paper, which is a very good paper on the problems inside the immigration courts. So I’m 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. Now, Art’s done a very good job of going through the huge backlog of cases in the immigration courts – how they 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.
Now, it’s important for all of you and for those watching this on C-SPAN to understand that the immigration courts are not Article III federal courts. They are administrative courts within the U.S. Department of Justice. We have similar courts in other executive agencies. People who, for example, get into disputes over Social Security disability benefits know that they end up before an administrative judge in the 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 hear cases. And then we have the Board of Immigration Appeals that Judge Burman has mentioned, the BIA. So you have two levels of courts. And 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 the – all the kinds of rights that we would expect that U.S. citizens have in courts – everything from the ability to be represented by counsel, they have the right to see the evidence against them, et cetera, et cetera. I mean, 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.
Now, Art’s gone through and defined the problem in his 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, more 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.
Now, one of the points Art makes in his paper which is very important is the change in border policy and its effect, because the whole point of having an administration who makes it very public that they are actually going to enforce immigration laws – which the prior administration made clear they were not going to do – is that that has 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. I think the last time I saw the number it was like 60 percent – over 60 percent down. That is important because the less people you have trying to get into the country illegally, the long-term effect on that is to reduce the number of cases in the courts.
Now, 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, you know, a final decision by an IJ – an immigration judge – and the Board of Immigration Appeals, and a removal order is issued, those go over to the Department of Homeland Security for enforcement. And as of May 2017, the number of unenforced removal orders was 953,000, a huge number. Why? Well, because the prior administration didn’t really want to enforce these removal orders, and 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 that from 2009 to 2013 – so, basically, during the Obama administration – 95 percent of aliens deported were criminal aliens. So, in essence, people knew that if you got into 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 of interior enforcement, of saying that 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. You know, it said its priority was removing criminal aliens. The last numbers I saw were that large numbers of what ICE considers level-one and level-two offenders – ICE has this categorization system for depending on how serious the crimes are that you have committed. And I’m not talking about immigration crimes. I’m talking about other crimes committed when people are illegally in the country. Level one, level two are the worst offenders. Those are murderers, drug traffickers, kidnappers, sex offenders. Well, in 2013 ICE released 36,000 convicted criminal aliens. In 2014 they released over 30,000 convicted criminal aliens, people who had been convicted of serious crimes. Since 2013, according to another study CIS did, there’s at least 124 criminal aliens implicated in 135 killings after ICE refused to remove them.
One of the other problems that they talk about is the continual and constant continuances given in these cases. Now, here’s the point that needs to be made. All of these changes that helped deter illegal aliens from coming into the country and staying in the country are going to help the situation in the courts, but the other point that needs to be made is that illegal aliens – and I am going to use that term because that’s the correct legal term; that’s the term used by the courts, particularly 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 the 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, for example, who might file a frivolous claim, et cetera. But that ability is dependent on the attorney general of the United States 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 the immigration judges are given the ability to do that the same way federal judges have the ability to do that when people – U.S. citizens, like me, for example, appear in a federal court. And that’s something that needs to be fixed and done immediately.
Another problem, and this is something that, again, shows that aliens should not be given better – more rights and better conditions that U.S. citizens. If I file a lawsuit – a civil lawsuit against the federal government in a federal trial court, an Article 3 court, and I lose, I of course have the right to appear the case to the Court of Appeals for whatever circuit I am in. Aliens certainly have the same right. If they lose their removal case before an immigration judge they have the ability to appeal that case through the Board of Immigration Appeals. But as a U.S. citizen I have to pay the costs of my appeal. I have to pay the filing fee in the court of appeals. I have to pay for the cost of the records that are going to be sent from the Trial Court up to the Court of Appeals. I have to pay for the cost of the transcript, if that’s necessary, going up to the Court of Appeals.
However, as an immigration judge testified before a House Judiciary Committee Meeting – this was Judge Michael – former Judge Michael Heilman. He said, you know, 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 courts. And you would sit there and go, why is it 99 percent of cases from the trial level are appealed to the BIA? Well, 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 Judge Heilman’s testimony before the House Judiciary Committee. However, the majority – in the majority of cases that fee is waived by the Justice Department and the BIA.
Second, the alien isn’t charged for copies of the records or for copy of the transcripts. All of these costs are paid for by Department of Justice. And that means American taxpayers. So American taxpayers are subsidizing the appeals costs of all of these cases – something that does not happen 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, Judge Heilman’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. And 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’s 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. Court of – the U.S. Supreme Court has said in numerous cases that – and I’ll start with one called U.S. Knauff versus Shaughnessy. This is a 1950 case. And it was a case involving the right of an alien to enter the country. And here’s what the Supreme Court said, quote, “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, that the due process rights of any such aliens are limited to, quote, “the procedure authorized by Congress.”
What does that mean? It means that 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 percent of the authority for determining our immigration laws is given to Congress. In a second case from 1953 called Shaughnessy versus Mezei, the court made it clear that when it was talking about traditional standards of due process – which they said do have to be given to an illegal alien who the government’s attempting 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 the system that we have of immigration judges and a board of immigration appeals.
Now, Congress in 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 going to U.S. courts of appeal. They can’t appeal to the federal district courts, which is usually what you would expect to have happen. They can only appeal to the courts of appeal. There is 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 percent of the appeals in the Federal Court of Appeals system that are administrative agency appeals – in other words, appeals of decisions made by federal agencies – are these immigration cases. The vast majority of them are also frivolous, meritless cases. But there are enough of them there that, as Art points out in his paper and his discussion this morning, you have federal judges interfering with the decisions of the executive branch on aliens, which is absolutely as the Supreme Court has virtually – has basically said.
In that Supreme Court case of 1953, the U.S. Supreme Court said that the due process that these aliens are entitled to requires only, quote, an opportunity at some time to be heard before such officers that are given the authority to act on the alien’s claim. So I think one thing that ought to be done is, at the very least, what Judge Berman has said needs to happen, which is these appeals need to be taken away from all the Federal Courts of Appeals and put into one federal court that only deals with immigration appeals. Similar to the Court of Federal Claims. You know, there’s already a precedent for this. I actually would take away completely the right to appeal at the federal courts, allow this to stay within the IJ system, the bureau – 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. And I think that’s actually the final change that needs to be made. Thanks.
MR. KRIKORIAN: Thank you, Hans.
Since I’m paying for the mic so I’ll ask the first question. And that is that a lot of the work that the immigration courts are doing relates to asylum claims. I mean, that’s one of the ways that illegal immigrants – one of the chief way illegal immigrants try to avoid being deported. And are there changes in asylum law that could address, you know, the – in other words, similar to, say, changes at the border would reduce the – you know, the demand on the immigration courts, are there changes in immigration law that would do something similar?
MR. VON SPAKOVSKY: Yeah. Look, these two – our current judge and former judge need to answer that. But what I will point out is that the last numbers I saw estimated that upwards of 80 to 90 percent of the asylum claims are fraudulent claims. So there’s very clearly a problem there.
MR. ARTHUR: Go ahead, Larry. You can go first.
JUDGE BURMAN: Well, our association does not make recommendations as to the law. We want to efficiently and fairly enforce whatever the law there is. So I would always say that it might be nice to clarify some things. For example, the law on aggravated felony right now is insane. I mean, there is no theft in Virginia anymore, for example, because the 4th Circuit found that the Virginia theft statute includes fraud as well, so therefore it can’t be theft, and therefore it can never be an aggravated felony. That doesn’t make any sense, especially when it’s different. But we don’t really care what the law is, but we just want it to be enforceable. We want it to make sense and we want it to be uniform.
MR. ARTHUR: And I think that that’s a very important point that goes directly to your question, and that actually sort of aggravated the increase in credible fear claims we saw along the border, as well as unaccompanied alien minors and families. The law just isn’t very clearly on – I’m afraid of the gangs. If you’re afraid of the gangs, are you a member of a particular social group eligible for asylum or aren’t you? If you are the victim of domestic violence in your home country, are you an individual who is a member of a particular social group or aren’t you? And unfortunately, the law on this is the dog’s breakfast. 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. And just by way of explanation, in order to receive asylum you have to show a well-founded fear of persecution on account of your race, religion, nationality, membership in a particular social group, or political opinion. Four of those are very clear. I’m a Christian or I’m not. I’m Jewish or I’m not. But unfortunately, membership in a particular social group has become a catch-all that it was never meant to be. And so consequently numerous claims were made that have to be heard all the way to the end, that at the end of the day are never going to be successful.
It’s crucial, for that reason, the attorney general issue guidelines on certification. It’s also crucial that the Department of Justice argue these cases vigorously before the federal circuit courts. I think that part of the problem that we saw in the last administration is that – and I don’t ever want to accuse another attorney of, you know, not vigorously litigating – but, you know, there were – there were cases that probably could have been argued a little bit harder. There were arguments that could have been made in defense of certain decisions that simply weren’t. I expect Attorney General Sessions is going to vigorously litigate 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, that then possibly gets certiorari for the Supreme Court. So I think that brighter-line rules will be crucial.
MR. KRIKORIAN: Just as a quick follow up to that, it struck me that the very existence of that, quote, “particular social group,” unquote, 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’ve been doing with this particular social group. I mean, pretty much anybody can be defined as a particular social group. So my point here is it worth simply excising that from the 1980 Refugee Act? Because 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.
JUDGE BURMAN: Right, but I don’t think it should be the attorney general who makes a decision like that. I think Congress needs to act. For example, not too many years ago the big dispute was whether coercive family planning in China was a grounds for asylum or not. Congress got involved. They said, yeah, we don’t want that. That’s a grounds for a(n) asylum. For some reason they called it political opinion. But, you know, 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, it could go on forever. Congress really needs to do some of these things.
MR. KRIKORIAN: OK. Any questions? Yeah, up here in the front. Yeah, and wait for the mic, please.
Q: I’m Peggy Orchowski. I’m the congressional correspondent for The Hispanic Outlook and cover immigration and higher ed.
And I wanted you to elaborate a little bit more about particular privileges or considerations of UAMs, the unaccompanied minors, and particularly the minor part. So 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 UAMs, there’s a considerable proportion of these minors under 18 years old that, indeed, do have children. So I’m just curious about that whole concept of a minor.
MR. VON SPAKOVSKY: It is an interesting thing. You know, when we hear about unaccompanied alien minors, we generally, you know, think of 6-year-old children. But the question becomes, if you’re a 6-year-old, how did you get here from Guatemala if you’re unaccompanied? And unfortunately, in a lot of these cases, the parents are complicit. You know, I’m a father. I love my son. I would never put my son in the hands of a person whose main stock in change is moving heroin over the United States border. And we’ve actually seen ICE take action against parents who have paid smugglers to bring their kids to the United States. I think that’s a crucial issue.
The other thing is that, you know, most of the UAMs, most of the unaccompanied alien minors, are minors in name. You know, they’re under the age of 18. But most of them are, you know, 17 years old. I can remember being a trial attorney in Baltimore, where Judge Burman and I both served as trial attorneys. And I would get 17-year-olds who were arrested at the orchards. They would pick apples. They were – they were migrant workers. And as soon as they were apprehended, they would file for special immigrant juvenile status, which Judge Burman alluded to earlier. So, you know, it is sort of a misnomer in this instance. I’ve seen plenty of cases involving younger kids, generally with parents, but the number of cases in which there is, you know, 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’s normally a parent in the United States who has paid the smuggler to bring the child here. Let’s bring the parent forward and the parent can make the claim on behalf of the child.
Q: Where the parent is under 18?
MR. VON SPAKOVSKY: It’s very difficult for me, as a lawyer, to argue the – you know, argue what age emancipation should be. But, you know, it’s important to keep in mind that most of these people are, you know, fairly – you know, most of what we call minors are individuals who have made their way to the United States and who are generally just on the cusp on adulthood.
JUDGE BURMAN: I might also point out that minors are actually handled very solicitously by the law and by the regulations. Unaccompanied minors are not even prosecuted – if you want to use that word – by the Department of Homeland Security. They’re under HHS. So I mean – and the Wilberforce Act is very lenient. In fact, you can be an unaccompanied minor, even if you have relatives here.
MR. ARTHUR: Let me just point out here quickly on this issue, where a change in policy is very important. And if you want to understand this issue, all you need to do is read a Federal District Court decision issued I think two years ago by Judge Andrew Hanen, Federal District Court judge in Brownsville, Texas. And he issued a decision in a case in which a human smuggler – a 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 – the smuggler was convicted of a felony. But the judge castigated the administration.
Why? Because what did they do when this 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 smuggler her daughter into the United States. In other words, they had – this illegal alien parent in Virginia had paid a drug cartel to smuggle her young daughter across the United States. And what Andrew Hanen, the judge, said was that – he pointed out the dangers of this, all the people who had been killed by the cartels, young women who’d been raped and otherwise assaulted. And 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. Yeah, 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 that 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 State government, is that, yeah, the child is reunited with their parent who’s illegally in the United States, but then they are both removed from the United States and sent back to their home countries.
MR. KRIKORIAN: Yes, sir. You have a question, in the back?
Q: Thank you. Irv Chapman.
MR. KRIKORIAN: Can you identify yourself?
Q: Yeah. Irv Chapman from Bloomberg Radio.
Judge Burman, for people who don’t follow closely what you do for a living, how often does somebody come before you, first of all, who you would classify, to use a colloquialism we’ve heard, as a bad hombre? And what do you do if somebody comes and says my life is threated by MS-13, or by the Taliban, my whole family is under threat? What do you do about it? What are your – (inaudible)?
JUDGE BURMAN: It depends on the statute, but. Well, it depends what they’re applying for. Deferral of removal – Saddam Hussein could have qualified for that if he could show that he’s be tortured if he returned to Iraq. There’s no bad hombre exclusion for that. Most other thing – a bad hombre, I assume, is somebody who’s committed crimes. Serious crimes would make you ineligible for asylum or withholding of removal. So really somebody like that could only apply for deferral of removal under the convention against torture. But they have a right to do it.
MR. ARTHUR: And let me give you an example of what I saw in my docket for a number of years, and then I just stopped seeing. I was a judge in York, Pennsylvania. I was at the detained court. And I would often see – I would often have dockets that would have 40 percent – 40 percent of my morning docket of 20 people would have drunk driving convictions or would have been arrested for domestic violence. And, you know, in most of these drunk driving cases we weren’t talking about a person blowing a 0.08. The highest that I could remember anyone ever blowing was a 0.32. And how in the world that individual was able to be alive, and that fellow actually admitted to me that he’d had a – he’s drunk a case of beer. His wife called and needed to be picked up at 10:00 in the morning, and he went and got her.
But then those cases disappeared from my docket. They just weren’t being picked up. They weren’t 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, you know, blowing more than a 0.15, more than 0.20, and not say that that was a person who, you know, merited bond. And so I would generally deny them. The vast majority of those individuals had no relief in the United States. And once they were caught, they would go home. And they would generally just ask for an order of removal and I would remove 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 illegally, I mean, without a visa or without permission. If you come on a visa and you overstay, you are removable from the United States. As a judge, it’s not up to me to decide whether that’s the right thing to do or not the right thing to do. But the one thing that 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 ICE Director John Sandweg had indicated was likely to happen to individuals who simply entered the United States illegally, you are going to get more of them. Your docket’s going to swell. This really is what we’re talking about today.
Why is the backlog so high? Because we weren’t actually enforcing the immigration laws against people. We created perverse incentives for people to smuggle their children into the United States. We created perverse incentives for individuals to enter the United States illegally. The smuggling rate – you know, the smuggling fee went, you know, way down, because people would simply come across the border and claim credible fear. I mean, this was a problem for the smuggling gangs. They didn’t have anybody to smuggle because, quite frankly, you didn’t need a smuggler. I mean, this is – these are the perverse incentives that, regrettably, have been in place. You pull drunk drivers off the streets. You pull individuals who have committed domestic violence out of the jails. And you put them into immigration court. If they’re eligible for relief I, as a judge, am going to grant you relief. But if you’re not eligible for relief, then Congress has said you should be removed.
Q: What about the other half of the question, about fear of MS-13 or the Taliban – they’re after me, they’re after my family?
MR. ARTHUR: Absolutely. And –
Q: How do you deal with it?
MR. ARTHUR: Oh, it was very easy. I mean, you ask a question whether you have any fear of being returned to Colombia, whether you have any fear of being returned to Guatemala. It’s incumbent upon me as an immigration judge to ask those questions.
And let me make one other thing very clear: It’s incumbent upon every employee of the United States government to enforce the torture convention, from the president of the United States to the guy that puts somebody on the airplane. That is an obligation that exists. And generally, individuals who are given the opportunity – I mean I don’t even say generally; always, individuals who are given an application for asylum, withholding removal and protection under Article III of the Convention Against Torture, called an I-589, if they ask for one or if they advanced a fear, and I would hear their case.
So, yeah, I mean, there are protections in place. It’s not like we just grab people off the street and put them on a plane. That’s what Larry Burman gets paid to do, to make sure that, you know, there are individuals that the protections that are in American law are, in fact, enforced.
MR. KRIKORIAN: I had a quick question for either of the current or former judges. You know, there’s an old Soviet joke I remember I used to hear when I was a student in the Soviet Union, was that the factory workers would say, well, yeah, we pretend to work and they pretend to pay us. Well, is there a certain element of that in the immigration judge – for immigration judges where, you know, you’re sort of going through kind of the motions, a sort of kabuki law enforcement, where the law isn’t being enforced and then it ends up in your lap? And does that affect morale in the way that we’ve seen, for instance, in ICE and elsewhere that affects morale?
JUDGE BURMAN: Oh, I think that happens, especially judges that have been on the bench for a long time and saw how it used to be. And then they’re – you know, you’re ready for a hearing and the government just administratively closes or terminates the case for no particular reason. Doesn’t save you any time because you were prepared for the case and you set the time aside on your docket. Yeah, that could get to people. I mean, it lowers morale.
A lot of what I’ve been talking about is lowered morale, judges being punished for trying to be efficient. They’re punished for trying to move cases. They’re never punished for continuing. They’re never punished for granting relief that maybe shouldn’t 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’re supposed to be doing.
MR. KRIKORIAN: No, we can take a couple more, I think. Yes, sir. And then you over there. Yeah, right here is the mic.
Q: OK, thanks. Let’s see. My question has to do with the U visa. I don’t know if anybody’s familiar with that or not.
MR. KRIKORIAN: Talk into the mic. Yeah.
Q: My question has to do with the U visa. It is also known as the crime victim visa. My concern here – and this is both a statement and a question – my concern is that the number of U visas, the total backlog, including family derivatives, has risen from 13,645 at the end of fiscal 2010 to the current backlog reported by CIS to be 168,000. We estimate that it’ll be a quarter of a million by January 2019. In view of this, currently it appears – and 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, that is, failed to abide by the congressional cap because they’re giving immigrants that are applying for U visas green cards and deferred status.
So I guess my question is, at some point this trajectory is going to completely swamp the entire immigration system if this continues. At what point does the president or Congress step in and decide to implement the law so that there’s a 10,000 cap per year? Which means that there would be an astronomical – we’re talking hundreds of thousands of cases. And how would this impact on our immigration system?
MR. KRIKORIAN: I don’t know, is there a court angle to that?
JUDGE BURMAN: Well, we don’t adjudicate the U visas – which is actually part of the problem, because if we did we could adjudicate them. What happens is the alien admits that he’s removable, and then the attorney says but he’s 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’re cutting off a line of possible relief.
But once again, it’s perverse incentives that Art was talking about. There’s no reason not to file these things, even though most of them are never going to be granted, because it gums up the system. And the more the system gets gummed up, the more people are going to file.
That’s what’s happened with asylum, too. If everybody applies for asylum and they can’t be adjudicated right away, then they get to stay, and they get to have – they get a work authorization. They might as well be citizens, except it’s –
Q: Are most of these individuals that are filing for appeals, are they being – like, coming with free legal counsel, it’s being paid for by the taxpayer?
JUDGE BURMAN: No, it’s –
MR. KRIKORIAN: Sir, you can’t – you can’t talk without the mic here. And let’s – we actually – we need to wrap up. So let’s take two more questions, yours and then yours. And we’ll have quick, quick questions.
JUDGE BURMAN: I could answer that after the – after the –
Q: My name is Brigitta Mullican and I’m from Rockville, Maryland. And you know there’s been lots of cases that have 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 the laws haven’t been enforced. But you all have done a fantastic presentation to educate me on why we have the problem that we have. And 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, and they’re not illegal, and they 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 got an education from you all.
My question is, have you all followed the Rockville issues? I understand that there were two students who were given a scholarship, and they were actually deported. So my thought was, oh my gosh, 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’re illegal?
JUDGE BURMAN: I believe that those two students actually already had orders of removal against them, which they had not appealed and had become final. So at that point, DHS could just pick them up.
MR. ARTHUR: And an important point on that is, you know, we talk about final orders of removal, but – in my court, which was detained. I only issued one in absentia order of removal because the guy refused to come out of his jail cell and show up, and I didn’t have a choice. (Laughter.) But in, you know –
MR. KRIKORIAN: Well, explain why: because you were in a jail.
MR. ARTHUR: Right, I was in a jail. It was a detained court. I was in a jail. He refused to come down the hallway. I issued an order of removal. He never appealed it.
But when I would be a trial attorney in a non-detained court – and I’m sure that Judge Burman will verify this – a significant percentage of individuals just never show up for court, and they’re ordered removed in absentia. And then, finally, when the day comes that the government goes to enforce the order against them, they file a motion to reopen, saying, oh, I never got notice of the hearing, or ineffective assistance of counsel and I shouldn’t have been ordered removed, which again is one of those 23 percent of, you know, cases – new cases – new cases that the courts are hearing that slow up the system even more, so.
MR. KRIKORIAN: So let’s take one last question, sir. Yeah. Your mic’s right there. Short question and we’ll have some short answers.
Q: Back in 2008, the executive office that makes the rules for the immigration courts added a rule which is very similar to the Rule 11 in the district courts, which requires a(n) attorney who ghosts material submitted by a pro se participant in the courts – immigrant – that that attorney make an appearance; that is to say, file an appearance notice. Now –
MR. KRIKORIAN: We need a quick question, sir. We literally have to pull the plug here.
Q: 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 who you are?
JUDGE BURMAN: But how would the judge know it’s being ghosted?
MR. ARTHUR: And that really is the biggest issue, is that you’ll – the court only knows what the court is told. And for that reason, you know if there is – and we have a big problem with notarios, people who are notary publics in the United States who hold themselves out as attorneys and, you know, end up filing frivolous asylum applications, for example, or frivolous immediate relative petitions. And that’s a problem, and yeah, it is one that we have to crack down on.
MR. KRIKORIAN: OK, thank you, everybody. Thanks for the panelists, for the audience. All of our work is online at CIS.org, including Art’s paper, and the video of this will be posted as well. So hope to see you next time. Thank you. (Applause.)