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OVERSIGHT OF THE EXECUTIVE OFFICE FOR 

IMMIGRATION REVIEW 

HEARING 

BEFORE THE

SUBCOMMITTEE ON 

IMMIGRATION AND BORDER SECURITY 

OF THE

COMMITTEE ON THE JUDICIARY 

HOUSE OF REPRESENTATIVES 

ONE HUNDRED FOURTEENTH CONGRESS 

FIRST SESSION 

DECEMBER 3, 2015 

Serial No. 114–57 

Printed for the use of the Committee on the Judiciary 

( 

Available via the World Wide Web: http://judiciary.house.gov 
(II) 

COMMITTEE ON THE JUDICIARY 

BOB GOODLATTE, Virginia, Chairman 

F. JAMES SENSENBRENNER, JR., 

Wisconsin 

LAMAR S. SMITH, Texas 

STEVE CHABOT, Ohio 

DARRELL E. ISSA, California 

J. RANDY FORBES, Virginia 

STEVE KING, Iowa 

TRENT FRANKS, Arizona 

LOUIE GOHMERT, Texas 

JIM JORDAN, Ohio 

TED POE, Texas 

JASON CHAFFETZ, Utah 

TOM MARINO, Pennsylvania 

TREY GOWDY, South Carolina 

RAU ́ L LABRADOR, Idaho 

BLAKE FARENTHOLD, Texas 

DOUG COLLINS, Georgia 

RON DeSANTIS, Florida 

MIMI WALTERS, California 

KEN BUCK, Colorado 

JOHN RATCLIFFE, Texas 

DAVE TROTT, Michigan 

MIKE BISHOP, Michigan 

JOHN CONYERS, JR., Michigan 

JERROLD NADLER, New York 

ZOE LOFGREN, California 

SHEILA JACKSON LEE, Texas 

STEVE COHEN, Tennessee 

HENRY C. ‘‘HANK’’ JOHNSON, JR., 

Georgia 

PEDRO R. PIERLUISI, Puerto Rico 

JUDY CHU, California 

TED DEUTCH, Florida 

LUIS V. GUTIERREZ, Illinois 

KAREN BASS, California 

CEDRIC RICHMOND, Louisiana 

SUZAN DelBENE, Washington 

HAKEEM JEFFRIES, New York 

DAVID N. CICILLINE, Rhode Island 

SCOTT PETERS, California 

SHELLEY HUSBAND, Chief of Staff & General Counsel 

PERRY APELBAUM, Minority Staff Director & Chief Counsel 

SUBCOMMITTEE ON IMMIGRATION AND BORDER SECURITY

TREY GOWDY, South Carolina, Chairman 

RAU ́ L LABRADOR, Idaho, Vice-Chairman 

LAMAR S. SMITH, Texas 

STEVE KING, Iowa 

KEN BUCK, Colorado 

JOHN RATCLIFFE, Texas 

DAVE TROTT, Michigan 

ZOE LOFGREN, California 

LUIS V. GUTIERREZ, Illinois 

SHEILA JACKSON LEE, Texas 

PEDRO R. PIERLUISI, Puerto Rico 

GEORGE FISHMAN, Chief Counsel 

GARY MERSON, Minority Counsel 
(III) 

C O N T E N T S 

DECEMBER 3, 2015 

Page 

WITNESS 

Juan P. Osuna, Director, Executive Office for Immigration Review, United 

States Department of Justice 

Oral Testimony ..................................................................................................... 2 

Prepared Statement ............................................................................................. 4 

OPENING STATEMENT 

The Honorable Trey Gowdy, a Representative in Congress from the State 

of South Carolina, and Chairman, Subcommittee on Immigration and Border Security .......................................................................................................... 11 

LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING 

Material submitted by the Honorable Sheila Jackson Lee, a Representative 

in Congress from the State of Texas, and Member, Subcommittee on Immigraiton and Border Security ................................................................................ 19 

Prepared Statement of the Honorable John Conyers, Jr., a Representative 

in Congress from the State of Michigan, and Ranking Member, Committee 

on the Judiciary ................................................................................................... 30 

Prepared Statement of the Honorable Zoe Lofgren, a Representative in Congress from the State of California, and Ranking Member, Subcommittee 

on Immigration and Border Security ................................................................. 34 

Material submitted by the Honorable Zoe Lofgren, a Representative in Congress from the State of California, and Ranking Member, Subcommittee 

on Immigration and Border Security ................................................................. 37 

APPENDIX 

MATERIAL SUBMITTED FOR THE HEARING RECORD

Questions for the Record submitted to Juan P. Osuna, Director, Executive 

Office for Immigration Review, United States Department of Justice ............ 54 

(1) 

OVERSIGHT OF THE EXECUTIVE OFFICE FOR 

IMMIGRATION REVIEW 

THURSDAY, DECEMBER 3, 2015 

HOUSE OF REPRESENTATIVES

SUBCOMMITTEE ON IMMIGRATION AND BORDER SECURITY

COMMITTEE ON THE JUDICIARY

Washington, DC. 

The Subcommittee met, pursuant to call, at 9 a.m., in room 2141, 

Rayburn House Office Building, the Honorable Trey Gowdy (Chairman of the Subcommittee) presiding. 

Present: Representatives Gowdy, Smith, King, Buck, Ratcliffe, 

Lofgren, Jackson Lee, and Conyers. 

Staff Present: (Majority) George Fishman, Chief Counsel, Subcommittee on Immigration and Border Security; Tracy Short, Counsel, Subcommittee on Immigration and Border Security; (Minority) 

Perry Apelbaum, Staff Director & Chief Counsel; Gary Merson, 

Chief Counsel, Subcommittee on Immigration and Border Security; 

Maunica Sthanki, Counsel; Micah Bump, Counsel; and Rosalind 

Jackson, Professional Staff Member. 

Mr. GOWDY. Good morning. The Judiciary Committee will come 

to order. And the Chair is authorized to declare a recess of the 

Committee at any time. 

We welcome everyone to this morning’s hearing on Oversight of 

the Executive Office for Immigration Review. And uncharacteristically, I am not going to begin by recognizing myself for an opening statement. I am going to introduce our witness, and say welcome to him and ask if he would please rise so I can administer 

an oath. And then I would properly introduce you. 

Do you swear the testimony you are about to give is the truth, 

the whole truth, and nothing but the truth, so help you God? 

The record will reflect that the witness answered in the affirmative. 

This morning’s witness is Mr. Juan Osuna, who was appointed 

as the Director of the Executive Office of Immigration Review in 

May of 2011, served as acting director from December 2010 to May 

2011. Prior to that, Mr. Osuna was at the Department of Justice 

as an associate deputy attorney general from May of 2009 until 

June of 2010. He was a deputy assistant attorney general in the 

Civil Division, Office of Immigration Litigation, from September of 

2008 until May of 2009. He served as chairman of the Board of Immigration Appeals. He also served as acting chairman and acting 
2 

vice chairman. He holds a bachelor of arts from George Washington 

University, a law degree from the Washington College of Law at 

American University, and a master of arts degree in law and international affairs from the American University School of International Service. 

Mr. Osuna, we welcome you. Things will be a little bit different 

this morning, given the nature of the day. And I know that my colleagues on both sides want to be here and many of them will come, 

but they may come at unusual times. So we are going to recognize 

you for your opening statement first, and then the Members will 

do their opening statements, and then we’ll go to questioning. 

TESTIMONY OF JUAN P. OSUNA, DIRECTOR, EXECUTIVE OFFICE FOR IMMIGRATION REVIEW, UNITED STATES DEPARTMENT OF JUSTICE 

Mr. OSUNA. Thank you, Mr. Chairman. Mr. Chairman, Representative Lofgren, and other Members of the Subcommittee, 

thank you for the opportunity to speak with you today about the 

Department of Justice’s Executive Office for Immigration Review, 

or EOIR. EOIR’s role in the removal process is to hear the cases 

of individuals charged with violating our immigration laws and to 

decide which of those individuals should be removed from the 

United States and which are eligible for relief or protection from 

removal. The agency carries its mission out through our core of 250 

immigration judges in 58 courts around the country and our appellate tribunal, the Board of Immigration Appeals. Each of our cases 

begins when the Department of Homeland Security files a charging 

document with one of our immigration courts. 

Among the many challenges facing the immigration courts, the 

largest is our growing pending caseload. There are more than 

450,000 cases pending in immigration courts around the country. 

This is an all-time high. This backlog grew in recent years due to 

budget cuts when the agency was severely limited in hiring immigration judges and staff to replace those who left the agency. While 

the immigration judge corps was shrinking, enforcement continued 

and the courts would continue to receive new cases, resulting in 

continuously increasing caseloads. This was exacerbated by the 

border influx that began in the summer of last year. From July 

2014, the time EOIR started tracking the southwest border crossers, until September 30, 2015, more than 100,000 cases had been 

filed in the immigration courts nationwide. 

We are taking steps to increase our capacity to adjudicate cases 

through a vigorous hiring effort, and hiring immigration judges is 

my first priority. I am pleased to report significant progress on this 

front and greatly appreciate Congress’ support for our efforts by 

providing the funding necessary to augment our judge corps. Over 

the past year, 23 new immigration judges have entered on duty, 

and as of this week, the Attorney General had selected another 37 

individuals to serve as immigration judges after a thorough and 

rigorous hiring process at EOIR and within the Department. 

These individuals are now undergoing the required background 

and security checks before they can start hearing cases. Many more 

immigration judge candidates are going through the final stages of 

the review process at the Department before they can be rec-
3 

ommended to the Attorney General for selection. These new judges 

will be arriving in immigration courts throughout the country in 

the coming months, and they will have a very, very positive effect 

on the pending caseloads, enabling the courts to begin to correct 

the imbalance between the incoming caseload and the number of 

judges available to adjudicate it. Again, thank you for your support 

for these much needed resources. 

Within the immigration court system, certain cases are 

prioritized for adjudication. Those cases involving individuals detained by the Department of Homeland Security have traditionally 

been the agency’s highest priority. Not only do these cases often involve individuals convicted of serious crimes, but they also implicate the individual’s liberty interests. 

In July of 2014, EOIR added the cases of unaccompanied children and families who were not detained to the existing priority 

caseload. This prioritization was in direct response to the Administration’s effort in the summer of 2014 and beyond to address the 

factors that brought a high number of people across the Texas border. EOIR is processing these cases as quickly as possible, consistent with due process. 

I want to touch on a few other initiatives that, in addition to the 

hiring of new judges and staff, will help EOIR improve the efficiency and effectiveness of the court system. First, deployment of 

new video teleconferencing equipment into the immigration courts 

is nearly complete. These VTC units are important because they 

are a force multiplier, allowing immigration judges to conduct hearings remotely, thereby allowing them to save on travel costs and 

time and simply to hear more cases. By February, every immigration courtroom in the country will have a new VTC unit. We are 

taking steps to enhance accessibility to the court system by increasing efficiency and combating fraud. EOIR has its departmental 

working group designed to fight Notarios and other unscrupulous 

practitioners who undermine the integrity of the system. The 

group’s efforts have had a tangible positive effect, including assisting the prosecution of a number of fraudsters and Notarios around 

the country over the last few years. 

While we help put unscrupulous practitioners out of business, it 

is important that we also make it easier for legitimate service providers to step in. On October 1, we published three regulations designed to make it easier for legal services to reach individuals who 

are in removal proceedings, including many detained individuals. 

We expect that these programs will help improve the quality of 

representation in immigration court. 

Finally, the EOIR continues to expand its highly successful legal 

access program. This program, which is now active in 37 sites 

around the country, helps the court process function more efficiently and effectively while providing information to people facing 

removal. 

Mr. Chairman, Representative Lofgren, these are some of the initiatives that we have underway. They are positioning, as well, for 

the agency to have a very positive 2016. 

Thank you, and I am pleased to answer any questions. 

[The prepared statement of Mr. Osuna follows:] 
4 
5 
6 
7 
8 
9 
10 
11 

Mr. GOWDY. Thank you, Director. I am going to recognize myself 

for an opening, and then when my colleagues from California and 

Michigan get here, we will recognize them. But it may go to questioning from the gentleman from Iowa and Texas before then. We 

are going to try to make it all work and be good stewards of your 

time in the process. 

Within the Department of Justice, the Executive Office for Immigration Review is charged with overseeing the immigration courts 

and the Board of Immigration Appeals, which is the highest administrative authority for interpreting immigration laws. As the delegates of the Attorney General, immigration judges serve an important function in the administration of our immigration system. 

They award asylum to those fleeing persecution; they grant deserving aliens the privilege of permanently residing in the United 

States, and they also order to remove those aliens who have violated our laws and abuse the generosity of this Nation. 

Whether our law requires immigrants to return to their native 

land or whether it affords them an opportunity to stay in this country would depend upon the ability of immigration judges to faithfully apply the law that Congress enacted to their cases and to exercise their impartial judgment, unhindered by political agenda. 

Because of the relative obscurity of immigration courts, their labors 

largely go unnoticed, and you could argue, unappreciated by the 

American public, but their decisions affect real people, the immigrants and their family members alike, and their effect on the immigration system is critical. 

Everyone, those who stand before the administrative judges, this 

Administration, and our fellow citizens has a vital interest in ensuring justice in our immigration courts is dispensed fairly, efficiently, and expeditiously. That is one reason I am troubled that 

there are approximately 460,000 cases waiting for an immigration 

judge to make a decision. 

In addition, I remain troubled by allegations of abuse for all in 

the asylum program. Abuse and fraud, frankly, hurt everyone, 

those legitimately entitled to relief and those who depend upon a 

fair justice system. The average alien will wait nearly 3 years before the judge renders a decision, and those are the fortunate ones. 

According to the 2012 DOJ inspector general report, over 21,000 

cases were pending 5 years or more, and over 6,200 cases were 

pending for 10 years or more. The real effect of these delays is to 

penalize those awaiting relief based on a valid claim to immigration benefits and reward those who have no right to remain in the 

United States with many years of continued unlawful presence. 

Testimony before the Senate earlier this year indicated the backlog had increased 100 percent over the last 5 years, and the answer 

to the problem was alleged to be more immigration judges. But the 

DOJ inspector general found from fiscal year 2006 to 2010, while 

the number of immigration judges increased, case completions actually decreased. 

So the Office of Inspector General found inefficiencies persisted 

despite the addition of more immigration judges. The inspector general also noted incomplete or exaggerated performance reports and 

noted the absence of the data or an objective staffing model to 

guide its resource planning and deployment of immigration judges, 
12 

which begs the question as to whether or not additional immigration judges alone will solve the problem or if something else is required. 

Additionally, a report by the Government Accountability Office 

released yesterday found derelictions in implementing the necessary policies and procedures to address asylum fraud. Lack of 

focus on rooting out fraud in the asylum program, coupled with a 

backlog that allows people to stay in the country unlawfully 

through a long backlog of cases until the court date is a gap in our 

national security. The bottom line is an inefficient and flawed adjudication process further diminishes our capacity as a Nation to effectively deal with our broken immigration system. And for that 

reason and others, I look forward to today’s questions and answers. 

Again, I will recognize Ms. Lofgren and Mr. Conyers whenever 

they come. But I will begin by recognizing the gentleman from the 

great State of Texas for his questions, the former United States Attorney, Mr. Ratcliffe. 

Mr. RATCLIFFE. Thank you, Mr. Chairman, for holding this hearing. 

Thank you, Director Osuna, for being here today. You know, the 

700,000 Texans that I represent who are certainly concerned about 

the impacts of illegal immigration in this country and what many 

see as an environment of lawlessness created by this Administration when it comes to the enforcement of our immigration laws 

and, frankly, the inefficiency of our immigration system. And one 

of the things that highlights that is a fact that was related by the 

Chairman, the fact that there are approximately 459,000 immigration cases waiting for action right now. 

And, you know, it would appear that that type of backlog of cases 

really amounts to de facto amnesty, because a lot of individuals 

that are in this country, perhaps illegally, to remain here without 

any repercussion as their cases are stuck in administrative limbo. 

So I am anxious to hear some of your testimony today about your 

plans to reduce that backlog. 

One of the cases that I want to ask about in terms of contributing to a backlog is one of the judges in the Houston immigration 

court, Judge Mimi Yam—are you familiar with Judge Yam? 

Mr. OSUNA. Yes. 

Mr. RATCLIFFE. Good. Over the past 5 years, there were a total 

of 24 months in which Judge Yam failed to issue a single ruling. 

Are you aware of that? 

Mr. OSUNA. Not those specifics, but I am aware of the issues 

there. 

Mr. RATCLIFFE. And why don’t you relate for us what the issues 

are there? 

Mr. OSUNA. Congressman, what I can tell you is that particular 

judge is not hearing cases at the moment. It is an unfortunate personnel issue that I can’t get into with you in this forum, but it is 

true that she is not hearing cases at this time. 

Mr. RATCLIFFE. Well, whether she is hearing cases at this time 

or not, she’s been paid as an employee of the United States Government, and there have been long periods where while she’s being 

paid to do that, she’s been hearing cases but not ruling on cases. 
13 

To highlight that fact, she went as long as 7 months without 

issuing a single decision. And through May of this year, she’s 

issued a total of, I think, 15 decisions, where over the same period 

of time, one of the judges right next door to her issued decisions 

in 700 cases. Can you see why in an oversight hearing like this the 

American people would be concerned about this type of inefficiency 

when it comes to ruling on our immigration cases? 

Mr. OSUNA. Congressman, again, because I can’t get into the personnel issues, we can’t get into the specifics here. What I can tell 

you, though, is that Houston is actually one of the courts that we 

have targeted for adding a significant number of new judges as 

part of the hiring that we are currently doing. 

As I mentioned in my opening statement, we have added 23 new 

judges over the past year. The Attorney General, as of this week, 

has selected another 37, and we are in the process of hiring quite 

a few more. Houston is one of the immigration courts that we are 

targeting for more judges because of the great need there. 

Mr. RATCLIFFE. So, Director, the backlog of cases is clearly welldocumented. I understand that your office has shifted many of its 

resources to address the cases across our southern border, primarily after May 1, 2014. Would it be fair to say that the docket 

is primarily devoted to hearing cases involving minors and family 

units who were apprehended at the U.S. southern border as part 

of the surge? 

Mr. OSUNA. Congressman, those cases are a priority for us, along 

with the cases of detained individuals. And for the reasons that I’ve 

stated earlier, detained individuals are often the ones that have 

committed serious crimes in this country; therefore, we move those 

to the top of the priority list. We make the judges and staff available to hear those cases first before all others. You are correct that 

last year we also added to the priority list the cases of unaccompanied children and families and others that were crossing the 

southern border as part of our response to the influx. 

I would say that a great number of the adjudications in our 

courts are of those two large groups. It does not mean that we don’t 

adjudicate other nondetained cases that are pending in immigration courts around the country. We have to draw this line between 

making sure that those priority cases are taken care of first, but 

also not neglecting those cases of others that have been waiting for 

a long time for their hearings. 

Mr. RATCLIFFE. I want to ask you about the timing in the few 

seconds left here. Director, would it be fair for me to say that there 

are presently thousands of unlawful aliens who won’t have a hearing before an immigration judge for perhaps the next 5 or 6 years? 

Mr. OSUNA. There are thousands of individuals that are waiting 

for their hearings. We prioritize those who need to have their hearings first because of compelling national interests, such as the need 

to get detained cases heard first and adjudicated first to get criminal aliens out of the country or those who crossed the border last 

year. But there are others that are going to have to wait for their 

hearings because of the prioritization. 

Mr. RATCLIFFE. And because of that prioritization, as you’ve encapsulated for us, in some cases right now, that’s 5 or 6 years? 
14 

Mr. OSUNA. In some immigration courts the wait can be as long 

as 5 years, yes. 

Mr. RATCLIFFE. Mr. Chairman, I see my time has expired. I yield 

back. 

Mr. GOWDY. The gentleman from Texas yields back. 

The Chair would now recognize the gentlelady from the great 

State of Texas, Ms. Jackson Lee. 

Ms. JACKSON LEE. Thank you very much, Mr. Director, and 

thank you for your service. I would like to explore a line of questioning, because I think it’s important to discern the responsibilities of your office versus the State Department and how we can 

be helpful, the Congress, and particularly this Committee. Let me 

follow a line of questioning of my colleague from Texas regarding 

the lengthy backlog and to cite, again, the 450,000 cases of which 

are backlogged, and an individual on the nondetained immigration 

docket might have to wait up to 4 years. 

Certainly, I am from the Southern District of Texas, and I know 

the immigration courts there. This delay means that people with 

potential claims for immigration relief remain in limbo throughout 

the pendency of the immigration court process. This affects vulnerable populations such as children, asylum seekers, and other immigrants hoping to obtain immigration relief, and they are in the 

legal system because they are trying to go into court. What solution 

do you propose to resolve the staggering immigration court backlog, 

and how can Members of Congress, in particular, help the EOIR 

office? 

And I have a series of questions. I’m going to let you briefly answer those, but I’d like to go onto some other questions. 

Mr. OSUNA. Thank you, Congresswoman. Our main approach to 

making sure that we have this balance between the incoming caseload and the adjudicators is more immigration judges. We got into 

this situation because of a number of years where there were severe immigration judge shortages. We lost a number of judges from 

2011 to last year during the time of budget cuts. We were not able 

to replace those judges who left the agency. 

Ms. JACKSON LEE. And you have a capacity for how many? 

Mr. OSUNA. We currently have, thanks to Congress’ appropriations for us this past year, we have 319 authorized positions. We 

are filling those as quickly as we can. Those judges will make a significant impact. 

Ms. JACKSON LEE. Well, why don’t you help us out. You have 

319, but you’re at a smaller number right now. Is that correct? You 

have 250 judges? 

Mr. OSUNA. That’s correct. 

Ms. JACKSON LEE. I think you have some good news about those 

that have been approved? How many have been approved to be 

added to that? 

Mr. OSUNA. That’s correct, Congresswoman. In my opening statement I mentioned that we have added 23 over the past year, and 

the Attorney General has approved 37 more as of this week, and 

several dozen more are in the final stages of the selection process 

at the Department. 

Ms. JACKSON LEE. And the President asked that you mentioned 

in your opening statement as well? 
15 

Mr. OSUNA. The President has asked for another 55 immigration 

judges for fiscal year 2016. And that’s going to be a very significant 

step forward for us as well. And we ask for your support for that. 

Ms. JACKSON LEE. And that would make a sizable difference as 

well? 

Mr. OSUNA. That would get us to about 374 immigration judges 

nationwide when all of those positions are filled, if Congress provides those positions. That is going to have a very, very significant 

impact and will enable us to begin to shorten these wait times in 

the most backlogged courts. 

Ms. JACKSON LEE. And I would imagine that—we are not getting 

into personnel matters—you are going to sort of review your immigration judges to make sure that they are both hearing cases and 

ruling? I think that’s an important oversight as well. Will you engage in that? 

Mr. OSUNA. Exactly. So the process that we have for selecting 

immigration judges is designed to make sure that we select the 

best candidates that are representing the Attorney General in 

these courtrooms. 

Ms. JACKSON LEE. Let me move to a situation I think should be 

clear. First of all, refugees coming into the country are handled by 

the State Department. But if I was online, one of those cases, and 

I was seeking asylum, we know that you would have a hearing before the immigration judge. But that is not the final decision. 

Would you explain, after that hearing before an immigration judge, 

what then, what process goes forward to ensure that that person 

is not a national security threat? 

Mr. OSUNA. Immigration judges are prohibited by law from actually granting asylum before—unless that person is then sent for 

background security checks by the Department of Homeland Security. 

So if an immigration judge finds that somebody is legally eligible 

for asylum and merits asylum in this country, that judge then has 

to suspend the case, more or less, send the case to the Department 

of Homeland Security for the required background security checks. 

Those security checks are done with the FBI and through the interagency database check process. And only until that case comes 

back and DHS tells the judge the background is clear, this person 

is not a danger, can the judge go ahead and grant asylum. 

Ms. JACKSON LEE. So there are layers that are added to a judge’s 

original hearing that add to our security. Let me quickly ask this 

question. Does your agency have a plan for addressing concerns 

about their expedited review of prioritized cases such as those involving children and those who are detained criminally? 

And would you like to highlight the new policy change that you 

are—that I understand that you may be suggesting from 21 days 

to 90 days? 

Mr. OSUNA. So for detention cases, we don’t have a policy change. 

We are doing what we have always done in those, we are 

prioritizing those cases. We do have a change on the unaccompanied minor front. We have been—our commitment beginning last 

year was to hold those cases—those hearings initially within 21 

days of the case being filed in court. 
16 

In consultation with our Federal partners and after hearing from 

a lot of stakeholders over the last few months, we have been considering a change. So we have decided to move that timeline—adjust that timeline from 21 days—from 10 to 21 days to 30 to 90 

days. 

Ms. JACKSON LEE. Is that for the unaccompanied children? 

Mr. OSUNA. For unaccompanied children. 

Ms. JACKSON LEE. Not impacting criminal individuals? 

Mr. OSUNA. That’s correct. 

Ms. JACKSON LEE. And I think that’s important to clarify. And 

you’re doing that because stakeholders find it was complicated to 

get all the facts together for the children? 

Mr. OSUNA. That’s right. I mean, we feel that this change would 

provide our courts with more flexibility for these challenging cases, 

but also it would provide the children more time to find legal counsel. And that works for the efficiency of the immigration courts. It 

actually helps us in the long run to move these cases faster by actually providing more time initially for the kids to get counsel. 

Ms. JACKSON LEE. I think all of us would appreciate that—thank 

you, Mr. Chairman. I will finish on this note. I think all of us 

would appreciate that children are vulnerable and children do need 

more legal protection and more time. And it’s not whether the children are not within the purview of the courts or HHS, in the instance of their detaining, but it is to give them more rights so that 

decisions can be more adequate as to the ultimate resolution. 

Would that be the correct assumption? 

Mr. OSUNA. Well, we’re making the change because it helps the 

efficiency of our courts, and it helps—by helping the kids, giving 

kids more time to find counsel, it actually helps the court function 

more efficiently. That’s correct. 

Ms. JACKSON LEE. With that, Mr. Chairman, I yield back. Thank 

you. 

Mr. GOWDY. The gentlelady’s time is expired. She yields back. 

The Chair now recognizes the gentleman from Iowa, Mr. King. 

Mr. KING. Thank you, Mr. Chairman. 

Director Osuna, I appreciate your testimony and the fact that 

you are here. We’ve watched this grow over the years that it’s not 

a big surprise to me to see these numbers grow the way they have. 

But I wonder if you can break this down for us a little bit. 

I’m looking at numbers in your testimony. It says that there’s a 

457,106 case, I’ll call it a backlog case, and it has increased more 

298,171 since 2011. One, I can’t exactly determine whether that’s— 

if I can match up fiscal years. But could you tell me roughly how 

many additional cases have accrued on an annual basis over the 

last 4 or 5 years? 

Mr. OSUNA. I don’t know if I have those numbers exactly, Congressman. What I can tell you is over the past—we started tracking, for example, the southwest border crossing cases beginning 

last summer, and I can tell you that we have added—100,000 cases 

have been added to the court dockets from the summer of 2014 

through this fall, primarily through the border. 

Mr. KING. And if I average those numbers, that’s about 75,000 

a year that—so if it’s 100,000 that’s been added over, roughly, the 

last year that you can contribute, that, then, is an accelerating 
17 

number, but probably more than acceleration, the 25,000 additional 

a year. I will just say, I’ve been down—I don’t want to put words 

in your mouth; that’s just my math. 

But I’ve been down the road a good number of times. I recall 

standing on the banks of the Rio Grande River at Roma, Texas, 

with my video camera, a couple of Border Patrol agents, and 

watching as two coyotes drove around on the other side of the river 

until a shift change took place. And then they pulled the inflatable 

raft out of the trunk of their car, inflated it. Two coyotes help load 

a pregnant lady in that raft and came across the river, docked the 

river in the weeds on—excuse me—docked the raft in the weeds on 

the U.S. side of the river, helped her out, handed her two little 

bags of her possessions. She patiently stood there for the shift 

change to be complete so a Border Patrol agent could come along, 

pick her up. One could expect that she applied for asylum. 

It seems to me that it’s not that they fear enforcement, nor do 

they fear adjudication. They seem to welcome that. And so what is 

the percentage of asylum applicants that are granted asylum that 

are coming across our southern border, especially in the McAllen 

region? 

Mr. OSUNA. Congressman, that’s a tough number to get in, and 

I’ll explain why. Because if you are—if the border crosser is an unaccompanied child, the law provides that that individual’s asylum 

claim, if they file one, actually has to be heard by USCIS at DHS. 

So the child comes to immigration court first; the judge does what 

he’s going to do with that case in terms of hearing the pleadings. 

If the child then wishes to apply for asylum, the judge then has to 

send that case over to USCIS. Many of those cases are still pending 

in USCIS, is my understanding. And I don’t have a firm number 

as to how many of those are being granted. 

Mr. KING. You can actually go down through those records now 

and draw from those records the status of each one of them, put 

that in a spreadsheet and let this Congress know the status of 

these asylum claims by children that you’ve selected from the question I asked. It could be done, couldn’t it? 

Mr. OSUNA. I don’t know if it can be done. We are certainly 

happy to look into it. 

Mr. KING. I want to ask you on the record here, if you would 

produce the records, not only for children that apply for asylum, for 

all the asylees that apply, I’d like to see the results of that, the adjudication process, where it is, how many are pending, why. And 

I’ll put this in a formal letter so that it’s clear. 

I won’t ask you to remember all this, but I would like to see the 

effect of the continuances that have been offered. And the data that 

I’m looking at, at continuances are, the OIG’s report, 953 cases reviewed by the OIG, 4,091 continuances offered or allowed for 953 

cases, totaling 375,047 days in the aggregate. So it averages 92 

days per continuance and 368 days per case. So every case that has 

an asylum application, by this GAO report, results in more than a 

year of continuances. 

Have you looked at how to compress that so that we can get that 

adjudicated in a quick fashion? We know if we don’t send them 

back, those that need to go back, they are going to keep coming. 
18 

Mr. OSUNA. On the issue of continuances, Congressman, we have 

looked at that. Continuances are actually a legal matter that is 

governed by the regulation. The standard under the regulations are 

that immigration judges are to grant a continuance if there is good 

cause shown. And there is much case law from the BIA and from 

the Federal courts as to what is good cause. 

Mr. KING. Of course, I’m out of time. But I would just say a good 

cause is—would be unlikely to be four different good causes in a 

row on average for each case lasting a year. I conclude my questioning. I thank you for testifying. 

And I yield back the balance of my time. 

Mr. GOWDY. Thank you, the gentleman from Ohio—from Iowa. 

Excuse me. 

The Chair will now recognize the gentleman from Michigan, Mr. 

Conyers. 

Mr. CONYERS. Thank you, Mr. Chairman. And I thank my colleague, Ms. Lofgren, for letting me go in front of her. 

Ms. JACKSON LEE. Mr. Chairman, can I just put—— 

Mr. CONYERS. I’ll yield. 

Ms. JACKSON LEE. Mr. Chairman, can I put these in the record 

before you go forward? Thank you for your kindness. I have a meeting. 

I would like to add to the record by unanimous consent, Mr. 

Chair, a letter, statement from the immigration—excuse me, American Immigration Council, underfunding of immigration courts undermines justice. And a second document, Executive Office for Immigration Review, unaccompanied children priority for adjudication. I ask unanimous consent to put these items into the record. 

Mr. GOWDY. Without objection. 

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Ms. JACKSON LEE. Thank you, Mr. Chairman. 

Mr. CONYERS. You’re more than welcome. I ask unanimous consent to put my opening statement in the record, Mr. Chairman. 

Mr. GOWDY. Without objection. 

[The prepared statement of Mr. Conyers follows:] 

Prepared Statement of the Honorable John Conyers, Jr., a Representative 

in Congress from the State of Michigan, and Ranking Member, Committee on the Judiciary 

The administration of our Nation’s immigration courts is of utmost importance because it is the gateway for immigrants to obtain crucial protections from persecution, defend themselves against removal, and have the opportunity to avail themselves of relief under the Immigration and Nationality Act. 

Unfortunately, there are fundamental problems with this system. 

To begin with, immigrants in removal proceedings deserve comprehensive due 

process protections. 

Although this goal can only be achieved by the appointment of legal counsel for 

all immigrants in removal proceedings, there currently is no government funding, 

even for children. 

Unless these individuals are able to obtain pro bono representation, indigent children and other immigrants must defend against removal without benefit of counsel. 

This is an utterly daunting challenge for anyone given the fact that these are adversarial proceedings with potentially dire consequences, namely, deportation from 

the United States. Keep in mind that the government, on the other hand, is represented in these proceedings by an Immigration and Customs Enforcement attorney. 

This is inherently inequitable and raises fundamental constitutional due process 

concerns. 

I know that the Department of Justice helps coordinate pro bono representation 

and is expanding its Legal Orientation Programs, which I very much appreciate. 

Nevertheless, I look forward to hearing from Director Osuna whether these initiatives can be further improved and expanded. 

Another concern is that there is a significant dearth of judicial resources, which 

is causing years-long delays in many cases and an overwhelming immigration court 

backlog. 

Studies indicate that each immigration judge has a docket of more than 1,400 

cases, which is an untenable workload. 

As a result of this backlog, many immigrants must literally wait years for their 

day in court. I am sure that we are all aware of the adage that justice delayed is 

justice denied. 

Accordingly, I hope we are able to have a productive discussion today about what 

concrete and practical steps can be taken to reduce this backlog, while continuing 

to ensure that immigrants in removal proceedings receive a fair, full and impartial 

hearing. 

Finally, we must undo efforts that have undermined the legitimate exercise of 

discretion by Immigration Judges. 

In recent months, I have been very pleased to work on a bipartisan basis with 

Chairman Goodlatte on criminal justice reform. But, we need to consider similar reforms to the Immigration Courts. 

Unfortunately, when it comes to immigrants, the Majority often confuses judidical 

discretion with judicial abuse. Nearly every piece of legislation introduced by the 

Majority Members of this Committee has sought to streamline immigration court removal proceedings by taking discretion out of the hands of the Immigration Court. 

They believe that many forms of relief granted to immigrants are fraudulent and 

without merit. I do not agree. 

Our Immigration Judges are in the best position to assess the facts and law. And, 

it is an anathema to their judicial independence when we restrict their discretion. 

This is not justice and this is not how our courts should work. 
31 

Certainly, if there are legitimate concerns of abuse in the exercise of discretion 

by Immigration Judges, we should investigate these concerns and take appropriate 

action. But, we must acknowledge that just because we disagree with a decision, it 

does not necessarily constitute abuse. 

In closing, I want to thank Director Osuna for his service to our country and his 

dedication to ensuring that immigrants in removal proceedings have a full and fair 

hearing before an impartial immigration judge. 

I realize that this is often a thankless task and it requires an immense amount 

of perserverence and commitment. 

Thank you for your work, and for your appearance before our Committee today. 

Mr. CONYERS. We find that there’s a problem that our immigration judges face, when it comes to immigrants. We sometimes confuse judicial discretion with judicial abuse. And I think you’re very 

sensitive to that, Director Osuna. 

Too much of our proposals, legislatively, have sought to streamline the immigration court removal process by taking discretion out 

of the hands of the immigration court. And so some believe that 

many forms of relief granted to immigrants are without merit, and 

I’m not sure if that’s the case. 

Do you have a view on that, sir, that you could relate to us? 

Mr. OSUNA. Congressman, on the issue of merit of claims, that’s 

what our judges are there for, to determine which cases are actually meritorious and which are not. And they do a great job of that 

every day in immigration courts around the country. 

On the issue of discretion, again, I trust our judges to exercise 

discretion in the best way possible. And we believe that that is appropriate to vest them with that authority. 

Mr. CONYERS. Thank you. I tend to agree with you. I realize that 

this is a thankless task to ensure that immigrants in removal proceedings have a full and fair hearing before an impartial immigration judge. And, so it’s in that spirit that I come to these hearings. 

And, you know, the delay in hiring immigration judges is often 

cited as a reason for the immigration court backlog. 

What are other challenges that you might give us this morning 

in reference to the hiring of immigration judges? 

Mr. OSUNA. Congressman, we have a very robust and multi-layered process for hiring immigration judges. It takes a long time, 

but we feel that it is necessary to do this carefully, because these 

individuals, as you know, are exercising the Attorney General’s authority in immigration courtrooms around the country every single 

day. They are literally making life-and-death decisions, so we need 

to make sure that we are selecting the best candidates to serve as 

immigration judges. 

That requires multiple layers of review at EOIR and at the Department and careful vetting to make sure that we are getting the 

best of the best. That, unfortunately, takes some time. We have 

been able to streamline the process to some extent over the last few 

months to make it go a little bit faster, but we think that the process actually helps to make sure that we select the best individuals. 

In my opening statement, I did mention that we have added 23 

new judges over the past year. And the Attorney General has selected 37 new judges as of this week who are now going through 

the required background and security checks before they begin 
32 

hearing cases. So we are adding judges as quickly as we can and 

selecting good people, and they will make a significant difference. 

Mr. CONYERS. In your testimony, you include a chart on immigration judge hiring. And in the second quarter of 2015 where you 

did not hire any immigration judges, can you explain why EOIR 

did not hire during that period? 

Mr. OSUNA. There were judges in process at that time. What the 

chart shows is the actual number of people entering on duty; in 

other words, judges entering on duty within that particular quarter. So the hiring process was going on during that second quarter. 

They just had not entered on duty as of that time. 

You will see that the third quarter shows 18 new judges entering 

on duty. Those were the ones that were in process in the prior two 

quarters. 

Mr. CONYERS. Thank you, sir. And I thank the Chairman. 

Mr. GOWDY. The Chair would now recognize the gentleman from 

Colorado. 

Mr. BUCK. Thank you, Mr. Chairman. I yield my time to the gentleman from Texas. 

Mr. GOWDY. The gentleman from Texas, you’re recognized. 

Mr. RATCLIFFE. Thank you, Mr. Chairman. Thank the gentleman 

from Colorado for yielding his time so I can follow up on a question, Director Osuna, I didn’t have time to ask in my prior line of 

questioning, and that is this: What is the official policy for granting 

a continuance in an immigration case? 

Mr. OSUNA. Continuances are governed by regulation, Congressman. The regulations provide that a judge may grant a continuance 

for good cause. And that good cause standard has been filled out, 

has been outlined and defined through court decisions over a number of years. 

So that is the standard. Immigration judges refer to that standard, follow the circuit law and the BIA law on what is good cause 

and it depends on the individual case. 

Mr. RATCLIFFE. Okay. So we know that the standard is established by case law and precedent, but the inspector general report 

from 2012 cited frequent and lengthy continuances as the primary 

factor in this backlog that we have been talking about, of now almost a half million cases. You are aware of that fact? 

Mr. OSUNA. I’m aware of the inspector general report, yes. 

Mr. RATCLIFFE. And the fact that they cited that as a primary 

factor? 

Mr. OSUNA. I’m aware that they cited it. I can’t remember what 

ranking they gave it, but I do remember that they did cite it. 

Mr. RATCLIFFE. Okay. Well, to that point, the inspector general 

actually recommended that your office—and I want to quote this so 

I make sure I get it right, recommended your office, ‘‘Analyze the 

reasons for the continuances and develop guidance that provides 

immigration judges with standards and guidelines for granting continuances to avoid these unnecessary delays.’’ Do you remember 

that from the IG report? 

Mr. OSUNA. I remember that, sir. 

Mr. RATCLIFFE. Okay. Can you tell me what you’ve done to comply with that recommendation? 
33 

Mr. OSUNA. Sure. Continuances, again, are governed by legal 

standards. What we’ve done is two things. Number one, is that we 

do provide regular training for judges on continuances. We provided a legal training just a few months ago on a number of issues, 

and provided information on what the courts have said about that 

legal standard. 

Secondly, this is more of a management issue, but our assistant 

chief judges, which are the supervisory judges that have supervision over particular courts, do monitor the continuance issue and 

the oldest cases that are pending on court dockets, and they take 

action as appropriate. 

Sometimes it is not appropriate to take any action, because the 

number of continuances is actually appropriate in a particular case. 

But when there appears to be something, an outlier issue with 

somebody granting continuances for, other than the good cause 

standard, then that is treated as a management issue. 

Mr. RATCLIFFE. So is this having an impact on the number of 

continuances? 

Mr. OSUNA. I don’t have an answer for you on that, Congressman. 

Mr. RATCLIFFE. All right. So then let me ask you this question. 

Depending on the immigration case, the Department of Homeland 

Security provides sufficient evidence to find an individual in question is not entitled to admission to the United States, what’s the 

role of the immigration judge? 

Mr. OSUNA. If I understand your question, I think that if the Department of Homeland Security—— 

Mr. RATCLIFFE. Finds somebody is not entitled to admission. 

Mr. OSUNA. Well, that’s a legal determination that the judge 

would have to make. But, certainly, DHS as a party in the courtroom would have a significant impact on that decision. The judge’s 

responsibility is to find that somebody is removable from the country or not removable. If they are removable, the evidence submitted 

by DHS goes a long way to proving that, because that is DHS’s 

burden. 

Mr. RATCLIFFE. Well, if the determination is made, the judge’s 

role is actually to sustain the DHS charge of removability. Isn’t 

that right? 

Mr. OSUNA. The judge’s role is to determine whether somebody 

is removable. And DHS’s evidence going to that fact, that legal determination, is obviously very relevant if not determinative in the 

immigration judge’s decision. 

That is not the end of the discussion in immigration court, because if a judge finds somebody is removable from a country, then 

he has to consider or she has to consider whether that person is 

eligible for some sort of relief from removal. 

Mr. RATCLIFFE. So 121 convicted criminal aliens released by the 

Obama administration between 2010 and 2014 have been charged 

with homicide-related crimes. Were you aware of the fact that 33 

of those individuals were released on bond at the discretion of your 

office after committing the original crime? 

Mr. OSUNA. I’m aware of the 33, yes. 

Mr. RATCLIFFE. All right. And does that concern you? 
34 

Mr. OSUNA. Congressman, those cases, immigration judges held 

bond hearings, as anybody—or most people that are not detained 

mandatorily are entitled to request. The law provides that immigration judges are to determine two things in a bond proceeding: 

Number one, is the person a flight risk? Are they going to show up 

for their hearings or are they going to abscond? Number two, and 

more importantly, are they a danger to the community? Are they 

a danger to others? If the judge finds that they are a flight risk, 

he or she may set a high bond or no bond at all. If they are a danger to the community, typically judges don’t release them, or set a 

very high bond. Typically, they don’t release them. 

So the 33 individuals that you mentioned, I have no reason to 

think that judges made the wrong decision in those cases. 

Mr. RATCLIFFE. Did you go back and review those cases? 

Mr. OSUNA. I am aware of some of them. I didn’t review every 

single case. 

Mr. RATCLIFFE. All right. Mr. Chairman, my time has expired. I 

yield back. 

Mr. GOWDY. The gentleman from Texas yields back. 

The Chair will now recognize the Ranking Member, gentlelady 

from California, Ms. Lofgren. 

Ms. LOFGREN. Thank you, Mr. Chairman, and Mr. Osuna. I’m 

sorry I was late. I was at a meeting also on an immigration matter. 

I would ask unanimous consent to put my full statement in the 

record. 

Mr. GOWDY. Without objection. 

[The prepared statement of Ms. Lofgren follows:] 

Prepared Statement of the Honorable Zoe Lofgren, a Representative in 

Congress from the State of California, and Ranking Member, Subcommittee on Immigration and Border Security 

Our immigration courts, under the Justice Department’s Executive Office for Immigration Review, are part of a broken immigration system. I say this with all due 

respect to today’s witness, Director Juan Osuna. I know Director Osuna, and he is 

a thoughtful government official with a deep knowledge of immigration law, and its 

impact on individuals and families. 

The Immigration Courts are simply overwhelmed. The EOIR caseload has more 

than doubled between 2010 and 2015. Today, more than 457,000 immigration removal cases have been pending for an average of 635 days. Many individuals wait 

several years for their day in court. This means we are neither efficiently removing 

those who should be deported, nor are we affording timely hearings for those who 

do merit immigration relief. 

I am afraid that Members of Congress bear some responsibility for this immigration court backlog. We have continuously underfunded EOIR far below what is necessary. By contrast, resources for immigration enforcement, including CBP and ICE, 

have more than quadrupled — from $4.5 billion in 2002 to $18.7 billion in fiscal 

year 2015. However, funding and staffing for the Immigration Courts has lagged far 

behind, increasing by only 70 percent in that same timeframe. The number of immigration judges has gone up only slightly from 230 in 2006 to 247 at the end of FY 

2015. EOIR’s resources are simply not commensurate with resources devoted to enforcement. I ask my colleagues on this Committee and the Appropriations Committee to adequately fund the Immigration Courts. The integrity of our immigration 

system depends on functional immigration courts able to efficiently process and adjudicate cases. 

The immigration court backlog has been exacerbated by the EOIR decision to 

prioritize cases involving migrants who had recently crossed the southwest border— 
35 

including unaccompanied children. As a part of the ‘‘rocket docket,’’ EOIR is scheduling unaccompanied children cases before all others. This has resulted in dire consequences for newly arrived children and has negatively affected the overall backlog 

of cases. I am also troubled by the reluctance from some judges to reopen in 

absentia removal orders entered as part of the rocket docket proceedings and issued 

to children who simply did not understand their legal obligations. I understand that 

EOIR is working toward extending the ‘‘rocket docket’’ timeframe, and I am hopeful 

they will also create sound policy with regard to motions to reopen. 

There is good work being done in our immigration courts, but every day children, 

some as young as 3 and 4 years old, appear before immigration judges and in opposition to trained ICE prosecutors without legal representation. Immigration law is 

often compared to tax law in its staggering complexity. And we should not permit 

children—often with limited or no English and rudimentary educational levels—to 

defend themselves against government lawyers. In every other area of law in this 

country, we recognize that children in court proceedings need increased protections 

because of their unique vulnerabilities and reduced capacity to understand legal 

procedures and the consequences of their actions. Immigration proceedings should 

be treated no differently. 

The vulnerabilities of immigration children are heightened by the fact that many 

have been victims of violence other severe traumas. A majority of recently-arrived 

unaccompanied children are eligible for legal protection that would allow them to 

lawfully remain in the United States. But without representation how likely is it 

that a child is able to tell her story and prevail in an adversarial court of law? 

I am troubled by the position DOJ has taken in the case, J.E.F.M v. Holder. In 

that case, advocates argued that deportation proceedings against pro se child respondents violated due process and the INA requirement of a ‘‘full and fair hearing.’’ 

In response, DOJ argued that children in immigration courts simply tell the judge 

they are afraid and they automatically get asylum. This simply is inaccurate and 

in fact, during the last six months of 2014, 94% of the unaccompanied children ordered removed did not have an attorney or accredited representative. I am concerned about DOJ’s misrepresentation in federal court, and I hope the Director is 

able to clarify DOJ’s position in today’s hearing. 

The lack of representation raises serious Constitutional concerns of due process. 

It is a blight on our country and antithetical to our values. Congress can ensure 

children’s access to due process and protection while concomitantly increasing docket efficiency by: (1) expanding government funding for pro bono legal services and 

direct representation for children; and (2) ensuring that the child’s best interests is 

a primary consideration in all custody and removal proceedings. In the absence of 

universal government funded representation, a robust mix of government-funded 

and pro bono representation is needed to fill the enormous representation gap that 

currently exists. 

I look forward to hearing from Director Osuna about EOIR’s efforts to coordinate 

pro bono representation, expand its Legal Orientation Program and the Legal Orientation Program for Custodians of Unaccompanied Alien Children, and other initiatives that make the court perform its mission more efficiently and ensure that 

those who come before it and merit relief have the help they need to make their 

case. And we in Congress, as well as the Administration, can and must do more. 

I thank Director Osuna for his leadership of EOIR and look forward to his testimony at today’s hearing. 

Ms. LOFGREN. I would just note that we have ramped up expenditures on immigration enforcement over the past decade substantially. We have increased the funding for the Border Patrol and for 

ICE that’s more than quadrupled the expenditures there. But our 

funding for the immigration courts has lacked far behind. We’ve 

got a 70 percent increase for courts and the quadrupling of expenditures at the border. 
36 

And, I think no system is perfect, I’m not going to say, having 

worked as a lawyer in this system many, many years ago. But you 

can’t just keep jamming more into the system. You need to ramp 

up the capacity in the immigration courts. And we’re making some 

baby steps forward on that now, but I am concerned, given the demographics of the immigration judges, we’re facing a tidal wave of 

retirements among the ranks of immigration judges. 

Now, those are funded positions, but we’re going to have to go 

out and hire people and train people. So I think that we’ve got a 

picture that is going to be very problematic to manage. Mr. Osuna 

is an old hand at this. He was here during the Bush administration, during the Obama administration. He knows what he’s doing, 

but I’m hoping that he would let the Committee know if he needs 

additional assistance, because it’s in everybody’s interest that this 

work well, and that the immigration judge system and the court 

system works well. 

I just want to mention one other thing. And I know it’s not entirely—actually, it isn’t up to you, but I have continuing concerns, 

and I raised this issue when the Attorney General was here, about 

the due process implications of children appearing in immigration 

court without counsel. 

I don’t see how an 8-year-old, who speaks no English, can appear 

without counsel and possibly represent themselves and meet the 

due process expectations in our Constitution. So I throw that out 

there. I know that efforts are being made to coordinate with pro 

bono lawyers, but I think ultimately litigation will resolve this 

issue for us. And we need to be prepared to respond. 

If I may, Mr. Chairman, perhaps in addition to doing my opening 

statement, I can go directly to my questions, and we will be able 

to expedite the conclusion of this hearing. 

Mr. GOWDY. Yes, ma’am. 

Ms. LOFGREN. I had a question about the asylum application, the 

1-year filing deadline because of the backlog. And I think the rocket docket actually aggravated that, because every and all resources 

were put forward and all of the other cases ended up being delayed. We’ve got a problem. 

And it’s my understanding that in August of this last year, 

Human Rights First, and the law firm of Akin Gump, requested a 

hearing memorandum to instruct immigration judges that administrative delays can constitute an exceptional circumstance to the 1- 

year filing deadline. And I’d like unanimous consent to enter this 

letter in the record. 

Mr. GOWDY. Without objection. 

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Ms. LOFGREN. Doesn’t it seem to me, and doesn’t it seem to you, 

that if the delay is not caused by the applicant but by the administrative delay in the courts, that that shouldn’t be an adverse finding for the applicant themselves? 

Mr. OSUNA. Congresswoman, thank you for your question. I am 

aware of this issue. I can tell you that we are looking at it, and 

we have heard from the stakeholders on this issue. 

I would note that the law does provide some exceptions to the 1- 

year deadline, as you know—— 

Ms. LOFGREN. Right. 

Mr. OSUNA [continuing]. That judges consider on a case-by-case 

basis every day. And what we do see is respondents filing motions 

to advance their cases to earlier court hearing times in order to address this issue. So that does happen. But to your point, I understand the issue. We’re working on it, and we have heard from the 

stakeholders on the concerns. 

Ms. LOFGREN. Two other questions. I think when we want speedy 

resolution of matters, but you can go so fast that you end up causing delays. And I’ll give you an example of a young person who fled 

gang violence in Honduras. He got death threats. He fled. He has 

an asylum case to be heard. He was released from detention, 

placed with a family. But it moved so fast that the notice was sent 

to where he had been. He never got it. And so by the time he lined 

up with a pro bono attorney, he had been ordered removed in 

absentia, but he never even knew about the hearing. So now 

there’s a motion to reopen the hearing. It causes more work for everyone. 

And I am wondering if you’ve given some thought to how we 

might ensure that there’s actually notice received by people when 

we’ve accelerated these cases, not only in terms of fairness for the 

individuals involved, but also for the system because you’ve got to 

spend a lot of time and effort on the motions to reopen as well that 

could be resolved. 

Mr. OSUNA. Thank you, Congresswoman. In the prior discussion 

with Representative Jackson Lee, I did mention that we have decided to make a change as to the initial timeline. As you recall last 

year, we committed to holding the first hearing for an unaccompanied child from 10 to 21 days after the case is filed. 

We have been pondering changing that for the exact reason that 

you mention, that it actually helps court efficiency to actually provide more time at the beginning. So we have decided to change 

that, and we will be instructing our courts to hold that first hearing from 30 to 90 days after the case is filed rather than the 21 

days. We do strongly think that that will help with a lot of these 

kids getting counsel and thereby helping the efficiency of the court. 

Ms. LOFGREN. Final question. EOIR lags behind other court systems in terms of filing documents electronically. Now, all the Federal courts and all the courts in California, you can file your documents electronically. It’s a convenience not only to the bar, but it’s 

a convenience for the court. You still have to get paper filing. I assume that’s a resource issue. But what steps can be taken to bring 

EOIR up to modern standards in terms of electronic filing? 

Mr. OSUNA. Electronic filing is one of the things that I feel 

strongly that we need to move towards. And we actually have 
48 

taken some steps on that. We were able to secure some internal 

funding, I believe it was about 18 months ago, to begin the first 

step of this, which was electronic registering of attorneys practicing 

before our immigration courts. 

That would be one of the foundations for a system that we hope 

will eventually allow us to file and exchange documents electronically. 

Ms. LOFGREN. Do you have a timeline for that? 

Mr. OSUNA. I don’t have a timeline, but we do have a plan. It’s 

an aggressive plan. I think 2016 we’re going to see some progress 

on that. And we hope that we eventually will get to the point 

where people will be able to file electronically. 

Ms. LOFGREN. Thank you. 

Thank you, Mr. Chairman. 

Mr. GOWDY. The gentlelady yields back. 

The Chair will now recognize himself. 

Director, I wanted to ask you about the inspector general for the 

Department of Justice, but my friend from Texas’ line of questioning prompted me to want to go a little further there. I’m going 

way back in time to a period where I wasn’t all that knowledgeable 

even back then. 

So I’m less knowledgeable now. But if memory serves, the government and the defendant can consent to a bond. It doesn’t necessarily have to be adjudicated by a judge, does it, or is immigration different? 

Mr. OSUNA. You are talking about a bond, sir? 

Mr. GOWDY. Bond. 

Mr. OSUNA. The bond process, what I think happens is that ICE 

actually makes the first determination on bond when they are detaining an individual. And in some instances, that individual can 

then request a redetermination by an immigration judge. 

Mr. GOWDY. Well, you had a line of questions with the former 

U.S. Attorney in Texas about the 33 who were charged with homicide, I assume—well, homicide is not a charge in South Carolina— 

murder, some form of murder. I’m just wondering whether or not 

the government consented to bond in any of those cases, or whether 

or not you’ve had a chance to look at that? 

Mr. OSUNA. I believe in the majority of cases the judge made the 

determination on bond and the Department of Homeland Security 

did not appeal that determination. 

Mr. GOWDY. All right. In the area of appeal, I think you mentioned the standard for continuance is good cause. 

Mr. OSUNA. Correct. 

Mr. GOWDY. Can you cite me to any opinions of record where a 

judge was reversed for granting a continuance? 

Mr. OSUNA. I can’t cite you any particular cases, but I do know 

from my experience when I was on the Board of Immigration Appeals many years ago, that judges would get reversed for granting 

too many continuances when the DHS appealed that decision. 

Mr. GOWDY. Well, good cause is probably hard to define, despite 

the efforts of courts to do so. What would be a reason not to grant 

a continuance? 

Mr. OSUNA. It depends on the individual case. But, for example, 

if a judge had granted a couple of continuances already for the in-
49 

dividual to get counsel and the individual has made no reasonable 

efforts to secure counsel, a judge can very well, and often do, say, 

you know, I’ve given you a couple of chances here; it’s time to move 

on. And judges make those decisions every day. That’s a fairly frequent occurrence. 

Mr. GOWDY. Speaking of frequency, is the first continuance fairly 

much for free? I mean, do you get the first continuance just simply 

by asking for it? 

Mr. OSUNA. Again, it depends on the context. In detained cases, 

it’s not that way, and nondetained cases it can be in some courts, 

depending on what the situation is. 

Mr. GOWDY. All right. You mentioned the factors that the court 

considers in either detaining somebody or setting bond, flight risk 

and a danger to the community, which cause me to want to ask 

about folks who abscond. What percentage of folks fail to appear 

for their court date after a bond is set? 

Mr. OSUNA. I don’t have that number for you, Mr. Chairman. 

Some do fail to appear. The size of the bond is designed to make 

sure that they appear, but, you know, some sometimes don’t. 

Mr. GOWDY. I’m with you, Director. I used to live it. But from 

where I sit, the number of folks who fail to appear would be a pretty serious issue. I’m assuming you don’t try them in their absence? 

Mr. OSUNA. Well, actually, they do. There is a process for if 

somebody has received—— 

Mr. GOWDY. You have to prove they got notice. 

Mr. OSUNA. They got notice of the hearing. 

Mr. GOWDY. Okay. 

Mr. OSUNA. The law does provide, and our judges every day hold 

hearings in absentia. What happens at that hearing is the Department of Homeland Security comes forward, presents evidence of the 

individual’s removability. The judge considers whether the person 

got adequate notice. If the answer is yes, then the judge will order 

an in absentia order, and that order can be enforced by DHS. 

Mr. GOWDY. All right. If somebody fails to appear, what is the 

mechanism by which you compel their appearance? Do judges issue 

bench warrants? 

Mr. OSUNA. No, our judges don’t have that authority. We don’t 

have anything like the marshals service or anything like that. The 

judge will consider if the person got adequate notice that they will 

issue the in absentia order if appropriate, and then DHS has the 

responsibility of picking them up and actually removing them. 

Mr. GOWDY. Of your backlog, what percentage would you say are 

folks who absconded or failed to appear after a bond was set and 

a trial date was set? 

Mr. OSUNA. If they have received a final removal order in 

absentia or otherwise, they are actually not included in the 450,000 

caseload. Those are out of the system. There is a final removal 

order. Unless they file a motion to reopen later to come back in, 

and the judge grants that, in absentia orders or any removal orders 

are not included in that number. 

Mr. GOWDY. All right. Given your background and your expertise, 

what percentage of folks who abscond are tried in their absence? 

Mr. OSUNA. Sorry, sir. You’re asking how many folks that 

don’t—— 
50 

Mr. GOWDY. Failure to appear are tried in their absence. 

Mr. OSUNA. Actually get an absentia order? 

Mr. GOWDY. Yes. 

Mr. OSUNA. I don’t have a number for you. 

Mr. GOWDY. What other tools do you have other than trying 

someone in their absence? If there’s a failure to honor a court date, 

what other tools do you have? You don’t have a bench warrant. 

There’s no presumption that is lodged against that—there’s no evidentiary presumption, I would assume. Can the judge consider the 

evidence of flight as some evidence of guilt or consciousness of 

wrongdoing if they don’t show up? 

Mr. OSUNA. No. What the judge will consider is whether the person actually is removable from the country under the law. And 

that’s really the end of the inquiry. Once that is done, the removal 

order is issued and then the person can be removed—can be picked 

up at any time by ICE and deported. 

Mr. GOWDY. Let me ask you one more question, and I’m going 

to let the Congresswoman follow up. 

I assume DOJ inspector general is still Michael Horowitz? 

Mr. OSUNA. It is. 

Mr. GOWDY. I’ll tell you, from where we sit, he is a pretty good 

balls-and-strikes caller. He’s a fair guy. All my dealings with him, 

he’s been kind of straight down the middle. So when I see that he 

has concluded that even as the number of judges increases, the disposition number of those judges decreases, that catches my attention. It makes me think maybe something else is going on, and it’s 

not just more judges. I don’t want to minimize—I mean, if that’s 

the explanation, then that’s the explanation. But when Mr. Horowitz says that may not be the full explanation, what else could be 

going on? 

Mr. OSUNA. Mr. Chairman, I do think that the single biggest reason for the caseload is the shortage of judges over the last few 

years. I don’t think that you can lose as many judges as we did at 

a time when enforcement was going up and not have that be a significant impact on the caseload and on wait times. 

We have taken a look at this issue repeatedly. We’ve kicked the 

tires. We’ve looked under the hood. We have tried to see what else 

is going on. One thing that we do hear quite a bit from all of our 

judges and from ICE trial attorneys as well is that the complexity 

of the law has gotten—the law has gotten much more complex over 

the last 10 years. 

Cases that used to be fairly simple are now complicated. Let me 

give you an example. It used to be fairly straightforward to determine whether somebody is an aggravated felony under certain provisions. Because of Supreme Court precedent and other decisions, 

in many instances, the drug trafficking area is one, for example, it 

is actually much more complicated these days than it was 10 years 

ago to determine whether somebody is deportable as an aggravated 

felony for certain offenses. So that is one area that we have concluded—you know, a judge may have spent, you know, an hour on 

a case 10 years ago and that same type of case now may take 4 

hours because the law has gotten more complicated. 

We have taken a look at other issues as well, but we’re convinced 

that hiring the requisite number of judges is actually going to 
51 

make a difference. Let me actually give you an example from within the agency, and that’s the Board of Immigration Appeals. The 

BIA is doing very good decisions these days, very legally excellent 

decisions, providing guidance to the courts and their caseload is 

stable. In fact, it has actually decreased slightly over the last few 

years. The lesson we took from that is that the board has actually 

had, unlike the immigration courts, a balance between the incoming caseload and the adjudicators necessary to adjudicate that caseload. That’s a lesson we’ve drawn, and that’s why hiring is such an 

important priority for us, for the immigration courts, because we 

are convinced that that is how we will address this caseload. 

Mr. GOWDY. I recognize the gentlelady from California. 

Ms. LOFGREN. Thank you, Mr. Chairman. 

Just a couple of follow-up questions if you can get back to us if 

you don’t know now. I would like to know what failure to appear 

rate is on various categories. Looking at some of the data, you 

know, it’s very low if individuals are represented by counsel. There 

are different outcomes if someone isn’t. And so if you are able to 

make those distinctions, I think that would be helpful. 

I would like to know among the 30 who committed homicide or 

were charged with homicide, how many of them was the Diaz case 

releases or not, and if they were the Diaz case releases, how many 

of them were Cubans, and with the change in status between the 

United States and Cuba, there’s apt to be—I mean, the last time 

we looked at it, the vast majority of the Diaz cases were Cubans. 

And if they are removable to Cuba because of our new relationship 

with Cuba, we’re going to have a very different outlook in terms 

of the criminal issues and the Diaz. 

And then I just want to clarify for the Chairman and others in 

terms of notice, because there’s no requirement that the person receive actual notice. I mean, what you’re looking at in the courts is 

was something mailed to the person. I mean, that person could 

have moved. He might never have lived there. We had a case a 

number of years ago of a legal permanent resident who failed to 

file the removal condition on her marriage who was active duty 

Navy, in a uniform, was mailed a notice, never got it, because she 

was deployed to Kuwait and was found deportable in absentia because it was something she never heard of. So I think it’s important to note that it’s not like the criminal courts or the civil courts, 

that you’re not getting, you know, a server handing you the notice. 

It’s just in the mail. You may or may not even know what’s going 

on. 

Thank you, Mr. Chairman. 

Mr. GOWDY. I thank the gentlelady. 

I would recognize the gentleman from Texas for any concluding 

remarks he may or may not have. And he is indicating that he is 

done. 

So this concludes today’s hearing. I want to thank you for attending. I want to tell you, again, that the fact that folks may have 

been in and out or not able to come is no reflection of the seriousness with which they take this hearing. Fly-out days are always 

troublesome, but that’s on us and not on you. You were here like 

you were supposed to be. 
52 

Without objection, all Members will have 5 legislative days to 

submit additional written questions for the witness or additional 

written materials for the record. With that, we thank you for your 

testimony this morning and your willingness to answer our questions, and we will be adjourned. 

Mr. OSUNA. Thank you, Mr. Chairman. 

[Whereupon, at 10:05 a.m., the Subcommittee was adjourned.] 
(53) 

A P P E N D I X 

MATERIAL SUBMITTED FOR THE HEARING RECORD
54 

*Note: The Committee did not receive a response to these questions at the time this hearing 

record was finalized and submitted for printing on March 21, 2016. 

Questions for the Record submitted to Juan P. Osuna, Director, Executive 

Office for Immigration Review, United States Department of Justice* 
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