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EXECUTIVE OFFICE FOR IMMIGRATION REVIEW 

HEARING 

BEFORE THE

SUBCOMMITTEE ON IMMIGRATION, 

CITIZENSHIP, REFUGEES, BORDER SECURITY, 

AND INTERNATIONAL LAW 

OF THE

COMMITTEE ON THE JUDICIARY 

HOUSE OF REPRESENTATIVES 

ONE HUNDRED TENTH CONGRESS 

SECOND SESSION 

SEPTEMBER 23, 2008 

Serial No. 110–211 

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 

JOHN CONYERS, JR., Michigan, Chairman 

HOWARD L. BERMAN, California 

RICK BOUCHER, Virginia 

JERROLD NADLER, New York 

ROBERT C. ‘‘BOBBY’’ SCOTT, Virginia 

MELVIN L. WATT, North Carolina 

ZOE LOFGREN, California 

SHEILA JACKSON LEE, Texas 

MAXINE WATERS, California 

WILLIAM D. DELAHUNT, Massachusetts 

ROBERT WEXLER, Florida 

LINDA T. SA ́ NCHEZ, California 

STEVE COHEN, Tennessee 

HANK JOHNSON, Georgia 

BETTY SUTTON, Ohio 

LUIS V. GUTIERREZ, Illinois 

BRAD SHERMAN, California 

TAMMY BALDWIN, Wisconsin 

ANTHONY D. WEINER, New York 

ADAM B. SCHIFF, California 

ARTUR DAVIS, Alabama 

DEBBIE WASSERMAN SCHULTZ, Florida 

KEITH ELLISON, Minnesota 

LAMAR SMITH, Texas 

F. JAMES SENSENBRENNER, JR., 

Wisconsin 

HOWARD COBLE, North Carolina 

ELTON GALLEGLY, California 

BOB GOODLATTE, Virginia 

STEVE CHABOT, Ohio 

DANIEL E. LUNGREN, California 

CHRIS CANNON, Utah 

RIC KELLER, Florida 

DARRELL ISSA, California 

MIKE PENCE, Indiana 

J. RANDY FORBES, Virginia 

STEVE KING, Iowa 

TOM FEENEY, Florida 

TRENT FRANKS, Arizona 

LOUIE GOHMERT, Texas 

JIM JORDAN, Ohio 

PERRY APELBAUM, Staff Director and Chief Counsel 

SEAN MCLAUGHLIN, Minority Chief of Staff and General Counsel 

SUBCOMMITTEE ON IMMIGRATION, CITIZENSHIP, REFUGEES, 

BORDER SECURITY, AND INTERNATIONAL LAW

ZOE LOFGREN, California, Chairwoman 

LUIS V. GUTIERREZ, Illinois 

HOWARD L. BERMAN, California 

SHEILA JACKSON LEE, Texas 

MAXINE WATERS, California 

WILLIAM D. DELAHUNT, Massachusetts 

LINDA T. SA ́ NCHEZ, California 

ARTUR DAVIS, Alabama 

KEITH ELLISON, Minnesota 

ANTHONY D. WEINER, New York 

STEVE KING, Iowa 

ELTON GALLEGLY, California 

BOB GOODLATTE, Virginia 

DANIEL E. LUNGREN, California 

J. RANDY FORBES, Virginia 

LOUIE GOHMERT, Texas 

UR MENDOZA JADDOU, Chief Counsel 

GEORGE FISHMAN, Minority Counsel 

(III) 

C O N T E N T S 

SEPTEMBER 23, 2008 

Page 

OPENING STATEMENTS 

The Honorable Zoe Lofgren, a Representative in Congress from the State 

of California, and Chairwoman, Subcommittee on Immigration, Citizenship, 

Refugees, Border Security, and International Law ........................................... 1 

The Honorable Steve King, a Representative in Congress from the State 

of Iowa, and Ranking Member, Subcommittee on Immigration, Citizenship, 

Refugees, Border Security, and International Law ........................................... 2 

The Honorable John Conyers, Jr., a Representative in Congress from the 

State of Michigan, and Chairman, Committee on the Judiciary ..................... 4 

The Honorable Lamar Smith, a Representative in Congress from the State 

of Texas, and Ranking Member, Committee on the Judiciary ......................... 5 

WITNESSES 

Mr. Kevin A. Ohlson, Director, Executive Office for Immigration Review, 

U.S. Department of Justice 

Oral Testimony ..................................................................................................... 7 

Prepared Statement ............................................................................................. 9 

Mr. Lee Lofthus, Assistant Attorney General for Administration, U.S. Department of Justice 

Oral Testimony ..................................................................................................... 13 

Ms. Susan B. Long, Co-Director, Transactional Records Access Clearinghouse 

(TRAC) 

Oral Testimony ..................................................................................................... 28 

Prepared Statement ............................................................................................. 30 

Mr. Stephen H. Legomsky, The John S. Lehmann University Professor, Washington University School of Law 

Oral Testimony ..................................................................................................... 40 

Prepared Statement ............................................................................................. 41 

APPENDIX 

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

Immigration, Citizenship, Refugees, Border Security, and International 

Law ........................................................................................................................ 51 

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

in Congress from the State of Michigan, and Chairman, Committee on 

the Judiciary ......................................................................................................... 52 

Prepared Statement of Mary M. Schroeder, Judge, United States Court of 

Appeals, Ninth Circuit ......................................................................................... 53 

Prepared Statement of Dennis Jacobs, Chief Judge, United States Court 

of Appeals, Second Circuit ................................................................................... 55 

(1) 

EXECUTIVE OFFICE FOR 

IMMIGRATION REVIEW 

TUESDAY, SEPTEMBER 23, 2008 

HOUSE OF REPRESENTATIVES, SUBCOMMITTEE ON IMMIGRATION, CITIZENSHIP, REFUGEES, BORDER SECURITY, AND INTERNATIONAL LAW

COMMITTEE ON THE JUDICIARY, Washington, DC. 

The Subcommittee met, pursuant to notice, at 10:17 a.m., in 

room 2141, Rayburn House Office Building, the Honorable Zoe 

Lofgren (Chairwoman of the Subcommittee) presiding. 

Present: Representatives Conyers, Lofgren, Sa ́nchez, Smith, and 

King. 

Staff Present: Traci Hong, Majority Counsel; George Fishman; 

Minority Counsel; and Andre ́s Jimenez, Majority Professional Staff 

Member 

Ms. LOFGREN. The Ranking Member having arrived, the hearing 

of the Subcommittee on Immigration, Citizenship, Refugees, Border 

Security, and International Law is now able to come to order. 

On July 28, 2008, the Department of Justice’s Office of Professional Responsibility and the Office of the Inspector General (I.G.) 

issued a report showing that three high-level Department of Justice officials—Kyle Sampson, Jan Williams, and Monica Goodling— 

violated Department of Justice policy and Federal law by considering political or ideological affiliations in soliciting and evaluating 

candidates for immigration judges (I.J.), which are Schedule A career positions, not political appointments. 

‘‘Further’’—and this is a quote of the I.G.—‘‘the evidence demonstrates that their violations were not isolated instances but were 

systematic in nature.’’ 

Based on this report, it appears Republicans credentials, rather 

than knowledge of and experience in immigration law, became the 

main criteria for hiring immigration judges and members of the 

Board of Immigration Appeals (BIA). All three named officials only 

considered candidates referred to them by the White House, Republican Members of Congress, Republican political appointees, the 

Federalist Society, the Republican National Lawyers Association, 

and individuals with Republican Party affiliations, while ignoring 

candidates sent to them by the Executive Office for Immigration 

Review. 

This politicization of EOIR occurred at a time when immigration 

courts and the Board of Immigration Appeals were also suffering 

from systemic problems created by former Attorney General AshVerDate Aug 31 2005 13:42 Mar 11, 2009 Jkt 000000 PO 00000 Frm 00005 Fmt 6633 Sfmt 6601 H:\WORK\IMMIG\092308\44611.000 HJUD1 PsN: 44611
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croft’s streamlining plan. By 2002, then-Attorney General John 

Ashcroft promulgated a rule that established—and this is a quote— 

‘‘the primacy of the streamlining system for the majority of the 

cases.’’ The 2002 streamlining regulation made single-member decisions and affirmance without opinions the norm, rather than the 

exception. 

At the same time, Attorney General Ashcroft also reduced the 

size of the BIA from 23 members to 11. Several analyses of the 

eliminated BIA members found that the selections had been ideological, and those with voting records most favorable to applicants 

or appellants were the ones chosen for reassignment. 

The result of the Ashcroft streamlining plan was a significant increase in the number of BIA decisions appealed to the Federal 

courts of appeal. The courts of appeal not only reversed the BIA at 

a higher rate, but also added uncharacteristically scathing comments about the poor quality of I.J. and BIA decisions. 

Moreover, even as the Administration and Congress dedicated 

more resources to the arrest and detention of deportable noncitizens, they failed to commit a similar level of resources to the immigration courts, which are responsible for determining whether certain noncitizens are, in fact, deportable. 

The failure to devote adequate resources to the immigration 

courts has led to increased caseloads at all levels of the removal 

process: at the immigration courts, the BIA, and, of course, the 

Federal courts. EOIR has been too long ignored, and the result has 

been politicization of the immigration courts, so-called streamlining, and inadequate resources. 

Now, I look forward to hearing from our witnesses today so we 

may begin to address these very serious problems in the administrative removal process, which is really at the heart of our immigration enforcement system. 

I would note that we have received informal input from the Federal circuits who are alarmed at the increased volume of appeals 

that is gridlocking the Federal courts and having an adverse impact on civil litigation generally. And they really believe it is a 

product of dysfunction in the immigration courts and the BIA. 

So wherever one lies on the immigration debate, I think it is certainly not in the national interest to gridlock the Federal appellate 

courts with matters that should be appropriately decided at a lower 

level and are not being properly decided. 

I will finally add that when then-Attorney General Ashcroft 

made his decisions, many of us, including myself, on the Judiciary 

Committee warned that it would be a disastrous result. Our comments were ignored. And once again, I am mindful of how unsatisfactory are the words, ‘‘I told you so.’’ 

So, at this point, I would recognize our distinguished Ranking 

minority Member, Steve King, for any opening statement he may 

have. 

Mr. KING. Thank you, Madam Chair. 

And I welcome the witnesses today. 

Politics in the hiring process at an executive agency is nothing 

new. However, it should not be done in violation of the law. The 

inspector general has already issued its report, which found some 

improper hiring practices at the Department of Justice. 

3 

Instead of focusing on the conduct of a few former Department 

of Justice officials, I hope this hearing proves to be truly useful by 

shedding light on what we, in Congress, can do to ensure a credible 

and efficient immigration litigation system. 

In 2007, the roughly 220 U.S. immigration judges heard 328,425 

cases, and the Board of Immigration Appeals completed 35,393 

cases. They should be provided with the resources needed to perform their jobs effectively now that our immigration laws are being 

enforced more vigorously—not as vigorously as I would like, however. Anything less leaves EOIR open to criticism. 

In the same vein, Congress should work to implement immigration policy that reduces the workload of immigration courts instead 

of policy that increases their workload. It does no good to vilify an 

entire group of immigration judges and Board of Immigration Appeals members simply because a few were hired after their political 

affiliation was determined. 

Unfortunately, hiring scandals have occurred in the past. In 

1995, during the Clinton administration, White males were blatantly discriminated against in the hiring process for immigration 

judges. In fact, plaintiffs were certified as a class of ‘‘White, male 

applicants for employment not selected as immigration judges during 1994 and 1995.’’ And they won their case against DOJ. 

It makes no more sense to impugn immigration judges hired during the Bush administration than to impugn those hired during the 

Clinton administration. 

In an effort to ensure quality decisions in the immigration litigation system, the Executive Office for Immigration Review is implementing 22 directives announced by the Department of Justice in 

2006. 

In recent years, the Board of Immigration Appeals has come 

under fire from some Federal courts for its use of affirmances without opinion, AWOs, which are one-sentence decisions affirming the 

immigration judge’s ruling. Use of AWOs became popular in an effort to streamline the overwhelming number of immigration cases, 

but critics think that the AWOs show a lack of diligence and willingness to examine all of the facts on the part of the immigration 

judges. Others disagree. 

In 2006, the Second Circuit held that, ‘‘The BIA’s members and 

the dedicated corps of immigration judges under the board’s supervision should be applauded for their continuing diligence, their integrity and, as is shown in the records of nearly all immigration 

cases in this court, their earnest desire to reach and equitable results under an almost overwhelmingly complex legal regime.’’ 

And I will submit that the fear of being seen as too harsh toward 

alien litigants by the Federal courts, Members of Congress and 

nongovernmental agencies, that fear may have caused some immigration judges and BIA members to bend the law in favor of illegal 

immigrants and criminal aliens. 

We have witnessed this before. It is why Congress took action in 

1996 to reduce the amount of discretion held by immigration 

judges. Maybe we would have a fairer process for the American 

people if ICE could appeal EOIR decisions made in favor of illegal 

immigrants and criminal aliens. 

4 

The reversal rates show that most of the criticism is unfair. So 

far this year, 87 percent of BIA decisions that have been appealed 

were affirmed by Federal courts. The affirmance rates are even 

higher in the circuits with large numbers of cases. For instance, 

this year, the Ninth Circuit, large numbers of cases, has affirmed 

81 percent of the BIA appeals. 

I look forward to the testimony of the witnesses here today to 

give this Congress guidance on changes that may be warranted to 

ensure fair and equitable disposition of immigration cases. 

I think we need to, though, advocate for a balance here and not 

overreact to a sample. Because the sample of what we have seen 

before in this hearing and some of the decisions and the advocacy 

that comes from the other side I think doesn’t reflect the whole. So 

I urge our restraint in overreacting to something here. 

I am looking forward to the testimony of the witnesses. 

And I yield back the balance of my time. 

Ms. LOFGREN. The Chairman of the House Judiciary Committee, 

Congressman Conyers, is recognized if he wishes to give an opening statement. 

Mr. CONYERS. Thank you, Madam Chairwoman. 

I welcome the witnesses. And I want to report to you that this 

is the first oversight hearing on what you gentlemen have been 

supposed to have been doing for a long time. So a lot of the problem is that we in Congress haven’t been doing our job. When the 

cat is away, the mice will play. 

So I want to just read you what the inspector general’s report 

said, the part that really criticizes you. ‘‘The evidence detailed 

above in the report demonstrates that Kyle Sampson, Jan Williams, Monica Goodling each violated Department of Justice policy 

and Federal law by considering political or ideological affiliations 

in soliciting and evaluating candidates for immigration judges, 

which are Schedule A career positions, not political appointments.’’ 

Now, I will insert my comments in here. There were political appointments made en masse. I am not talking about a couple political appointments; I am talking about a lot of them. And we found 

out about that now. And we regret it very much, because you have 

some explaining to do here today about that. 

And then the inspector general goes on to say, ‘‘Further, the evidence demonstrates that their violations were not isolated instances, but were systemic in nature.’’ 

‘‘The evidence demonstrates further’’—and I am quoting—‘‘that 

Goodling violated department policy and Federal law by considering political or ideological affiliations in selecting candidates even 

for the Board of Immigration Appeals.’’ 

So we hope you will find time, in your opening statements and 

other opportunities, to help us understand the depth of what went 

wrong and how that happened. 

Now, I know one of the excuses coming forward is that we need 

more money in the budget to hire more judges. And, of course, that 

is a function of the executive branch, as well as the Congress, not 

owning up to what the reality of this thing is. How can 215 immigration judges be expected to handle a caseload of 300,000 cases a 

year? 

5 

And then, of course, to make insult to injury, the reduction of the 

Board of Immigration Appeals from 23 members to 11 members. 

What do you think that did? A crushing workload, an appellate 

mess, that has spilled over into the circuit courts as well. 

So if you notice some unhappiness in my presentation about 

what you have been doing, you are absolutely right. This is awful. 

And of course we plan to get to the bottom of it. 

And I hope that you feel free to comment on anything I have said 

here at the hearing or subsequently in writing afterward. 

Thank you, Madam Chairwoman. 

Ms. LOFGREN. Thank you, Mr. Chairman. 

I would now invite the Ranking Member of the full Committee, 

Congressman Smith, to deliver any opening statement. 

Mr. SMITH. Is that an open invitation? 

Ms. LOFGREN. If you have an opening statement, now would be 

the time. 

Mr. SMITH. Thank you, Madam Chair. 

I, too, was disappointed with the finding of the July 2008 inspector general’s report that senior Justice Department officials violated civil service laws in the hiring of several career employees, 

detailees and immigration judges. 

The Justice Department is responsible for enforcing the law, so 

it is regrettable when its officials abuse their positions of authority 

and violate the laws that they had promised to uphold. 

While the findings in the report are troubling, we must be sure 

not to let the actions of a few undermine the good work of the 

many. On the whole, immigration judges and members of the 

Board of Immigration Appeals carry out their duties in a highly 

professional manner. In fact, less than 10 percent of cases decided 

by immigration judges are appealed to the Board of Immigration 

Appeals. Understanding that immigration judges hear over 300,000 

cases per year, such a low rate of appeals is impressive. 

I am pleased that, in response to the inspector general’s report, 

the attorney general has already taken steps to guard against future abuses. And the mechanisms in place since April 2007 help to 

ensure a lack of political influence in the hiring process. 

There is no government agency that is not deserving of at least 

legitimate criticism. The important thing is whether the criticism 

leads to constructive changes being implemented to address these 

concerns. 

In August 2006, then-Attorney General Gonzales announced 22 

new directives for the Executive Office of Immigration Review, and 

EOIR has made significant positive strides in implementing those 

directives. 

For example, newly appointed immigration judges and Board of 

Immigration Appeals members must pass a test on immigration 

law. In addition, the judges and board members are trained periodically on immigration subjects such as asylum adjudication and 

international religious freedom. 

Mechanisms have been put into place to notify EOIR management about any inappropriate conduct by immigration judges. And 

the Department of Justice has proposed a new regulation to increase the ability of judges to discipline attorneys who file frivolous 

6 

lawsuits and to provide sanctions for gross misconduct on the part 

of counsel or litigants. 

EOIR continues to make progress on the implementation of those 

22 directives, which will ensure a more streamlined and effective 

immigration litigation system. 

The number of immigration court cases in the United States is 

on the rise, due, in part, to a long-overdue increase in enforcement 

of our immigration laws. And Congress needs to respond with additional funding to hire judges and support staff to relieve the overwhelmed court system. This is just as important as hiring additional Border Patrol agents. 

However, more money is not the only answer. The number of immigration cases will eventually decrease with a consistent emphasis on immigration enforcement. If the laws against illegal hiring 

and employment, there will be fewer jobs available for illegal immigrants. There will be an increase in the number of illegal immigrants returning to their home countries on their own. There will 

be less of an incentive to come here in the first place. Finally, of 

course, there will be a decrease in the number of matters that come 

before the immigration courts. 

I thank you, Madam Chair, and I will yield back. 

Ms. LOFGREN. The gentleman yields back. 

In the interest of proceeding to our witnesses and mindful of our 

busy schedules, I would ask that other Members submit their 

statements for the record within 5 legislative days. And, without 

objection, all opening statements will be placed in the record. 

And, without objection, the Chair is authorized to declare a recess of the hearing at any time. 

Today we will hear from two panels of witnesses to help us consider the important issues before us. 

It is my pleasure to introduce Lee Lofthus. Mr. Lofthus was appointed as assistant attorney general for administration in December of 2006. His responsibilities include department-wide financial 

reporting, budget formulation and execution, accounting operations, 

asset forfeiture, fund operations, support, procurement, and debt 

management support. He also oversees department-wide facilities 

management, human resources, business services and planning. 

He has served in several financial management positions during 

20-plus years with the Department of Justice. He joined the department in 1982, and since that time has held senior management 

positions overseeing financial operations, financial policy, 

reportings and systems. He received his MBA in 1982 from the 

American University in Washington, D.C. 

I would also like to introduce Kevin Ohlson. Mr. Ohlson has 

served as director of the Executive Office for Immigration Review, 

known as EOIR in the immigration world, since September 2007. 

Before being appointed director, Mr. Ohlson also served as the deputy director of EOIR and as a member of the Board of Immigration 

Appeals. 

Mr. Ohlson is a graduate of Washington and Jefferson College 

and the University of Virginia School of Law. Mr. Ohlson is a member of the bar in both Virginia and the District of Columbia. 

Upon his graduation from law schools, he was commissioned as 

an officer in the U.S. Army, where he served as both a judge advoVerDate Aug 31 2005 13:42 Mar 11, 2009 Jkt 000000 PO 00000 Frm 00010 Fmt 6633 Sfmt 6601 H:\WORK\IMMIG\092308\44611.000 HJUD1 PsN: 44611
7 

cate and as a paratrooper. In 1989, he was appointed as a Federal 

prosecutor, but in 1990 he was recalled to active duty and was 

awarded the Bronze Star for his actions overseas during the Persian Gulf war. 

As you may know, your written statements will be made part of 

the record of this hearing in their entirety. We ask during the testimony that you summarize your written testimony in 5 minutes or 

less. 

And to help you know about those time limits, we have a little 

machine there on the desk. When you have 1 minute remaining, 

the green light will turn yellow. And when your time is up, a red 

light will begin. And we don’t ask you to stop mid-sentence, but we 

would ask you to sum up at that point. 

Now, it is my understanding that there has been a request that 

Mr. Ohlson testify first. Is that correct? And I am happy to accommodate that request. So, Mr. Ohlson, if you would begin. 

TESTIMONY OF KEVIN A. OHLSON, DIRECTOR, EXECUTIVE OFFICE FOR IMMIGRATION REVIEW, U.S. DEPARTMENT OF JUSTICE 

Mr. OHLSON. Madam Chairwoman, Congressman King, other 

Members of the Subcommittee, it is my pleasure to be here today. 

It provides me with an excellent opportunity to testify about the 

steps we are taking as we transform the immigration court system. 

It also gives me the opportunity to answer any questions you may 

have about that process. 

A discussion of the transformation of the immigration courts 

really needs to begin with the topic of hiring. We now have a process in place that gives career officials at the Executive Office for 

Immigration Review much of the authority to screen, interview and 

recommend immigration judge candidates. 

Using that process, during the past year, we have been able to 

hire 18 top-notch immigration judges to augment the many truly 

outstanding judges we already have on the bench. What is more, 

there are an additional 16 immigration judge candidates in the 

pipeline, many of whom are simply waiting for their background investigations to be completed. 

But hiring is only the start. When these new immigration judges 

come onboard, we now provide them with 5 weeks of training, rather than just 1 or 2 weeks of training, as in the past. In addition, 

they now are required to take and pass a new immigration law 

exam before they can begin adjudicating cases. 

When the new judges come onboard, they are now subject to a 

formalized review process as part of their probationary period. This 

probationary period typically lasts 2 years. New immigration 

judges who are not capable of serving professionally and well will 

now be removed from the bench. 

But it is important to note that we also now are taking many 

other steps to ensure that all of our immigration judges, whether 

they are newly hired or long-term veterans, will succeed in their 

mission. For instance, a year ago we had a week-long training conference for all the immigration judges. Provided we have adequate 

resources, we plan to resume holding such training conferences on 

an annual basis in the future. 

8 

So far this year, we have conducted a 2-day training program for 

all the judges in their home courts regarding asylum adjudications. 

We have launched a new Immigration Judge Benchbook that is full 

of reference materials. We have developed a comprehensive practice manual that incorporates best practices nationwide. We have 

begun distributing a monthly newsletter on regulatory, judicial and 

legislative developments. And we have expanded our online Virtual 

Law Library. 

In addition to these new hiring and training steps, we recently 

have launched a number of other important initiatives. For instance, we have placed supervisors with immigration judges in six 

field sites located around the country. We have implemented new, 

rigorous procedures for reporting and investigating allegations of 

judicial misconduct. We are working hard to reduce disparities in 

asylum grant rates among our immigration judges. We are completing a massive revision of our ethics manual. 

We have published new regulations that will improve the judicial 

process. We have launched digital audio recording to replace the 

antiquated analog recording system we currently have. We have 

started a new program to help ferret out fraud and abuse in the 

immigration court system. We have implemented performance 

work plans with regard to members of the Board of Immigration 

Appeals, and we have worked diligently to do the same with the 

immigration judges. And we have significantly enhanced our probono program. 

As can be seen then, Madam Chairwoman, we have been very, 

very busy and very, very productive. And we have made these 

great strides largely due to the professionalism, dedication and 

hard work of our immigration judges, who, as has been noted, are 

on target to handle approximately 300,000 matters this year. That 

number is staggering, and our immigration judges deserve a tremendous amount of credit. 

And they also deserve to have all of the resources requested in 

the President’s 2009 budget. If congressional appropriators match 

that number, it would be extremely helpful to us as we continue 

our vitally important mission of transforming the immigration 

court system. 

Thank you. 

[The prepared statement of Mr. Ohlson follows:] 

9 

PREPARED STATEMENT OF KEVIN A. OHLSON


KAO-1.eps
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KAO-2.eps
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KAO-3.eps
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KAO-4.eps
13 

Ms. LOFGREN. Thank you, Mr. Ohlson. 

Mr. Lofthus, were you going to provide testimony, or are you 

here as a resource person? 

Mr. LOFTHUS. I do have an opening statement. 

Ms. LOFGREN. Well, we would love to hear it then, if you would 

turn on the mic and pull it forward. 

TESTIMONY OF LEE LOFTHUS, ASSISTANT ATTORNEY GENERAL FOR ADMINISTRATION, U.S. DEPARTMENT OF JUSTICE 

Mr. LOFTHUS. Okay, thank you very much. 

Chairwoman Lofgren, Ranking Member King, and Members of 

the Subcommittee, thank you for the invitation to testify about the 

Executive Office for Immigration Review, or what we call it at the 

department, by its acronym, EOIR, at the Department of Justice. 

I have a brief statement about the department’s support and 

funding for hiring of EOIR, and then I welcome any questions you 

may have. 

Let me start by saying I am a career government employee, and 

I have worked for the Department of Justice for going on 27 years. 

My work has been dedicated to supporting the counterterrorism, 

law enforcement and litigation operations of the department 

through four different Administrations. 

My role at DOJ as the assistant attorney general for administration and the head of the Justice Management Division includes 

being the department’s chief financial officer, developing our budget, and overseeing the management of personnel, planning, technology and other management programs across the department. 

I take very seriously the issues raised by the inspector general, 

as well as questions about the appropriate funding levels at EOIR. 

I want to ensure that EOIR has sufficient resources to accomplish 

its mission and that its hiring practices are consistent, fair and effective. 

EOIR and the department have worked to address the findings 

of the inspector general, and we are working hard to implement all 

the changes recommended and needed. We have also integrated 

hiring rules and laws into the transition briefing materials we plan 

to use for the incoming Administration. 

During fiscal year 2006, then-Attorney General Gonzales commissioned a review of EOIR. From that review, 22 steps for improving the office’s operations were identified, two of which suggested 

that the department seek additional funding for new positions and 

information technology improvements. We have taken measures to 

address both those findings. 

The fiscal year 2007 President’s budget request was the department’s first opportunity to formally request additional resources to 

support those findings. During the same budget cycle, the department also requested additional resources for the Civil Division’s Office of Immigration Litigation, commonly called OIL. 

EOIR has developed a budget request to increase the number of 

immigration judges and lawyers, and the department and OMB 

have supported those needs, and the Administration has requested 

them from Congress. 

After positive funding results in the fiscal year 2006 emergency 

supplemental, a fiscal year 2007 appropriation, and the initial fisVerDate Aug 31 2005 13:42 Mar 11, 2009 Jkt 000000 PO 00000 Frm 00017 Fmt 6633 Sfmt 6601 H:\WORK\IMMIG\092308\44611.000 HJUD1 PsN: 44611
14 

cal year 2008 marks, EOIR ultimately did not receive its requested 

funding when the 2008 omnibus was passed. But the department 

will continue to work with Congress to identify the resources needed to support EOIR’s needs. 

Thank you, and I welcome any questions the Committee may 

have. 

Ms. LOFGREN. Thank you very much, Mr. Lofthus and Mr. 

Ohlson. 

We will now begin questions by the panel, and I will begin. 

Mr. Lofthus, it is my understanding that there was no request 

made for additional personnel in the 2009 budget request. Is that 

correct? 

Mr. LOFTHUS. That is correct. There were—— 

Ms. LOFGREN. That is fine, because I have a whole list of questions. I just wanted to know if that was true. 

I would like to ask—Mr. Lofthus, I don’t know if you can answer 

this, but if you can’t, you can just tell me so. I have been looking— 

and we have been assisted by TRAC Statistics, as well as testimony we received in Ms. Sa ́nchez’s Subcommittee—that there has 

been a massive expansion of enforcing of garden-variety, low-level 

immigration violations that have tracked a decline, especially in 

the Southwest quadrant, of prosecutions of organized crime. 

It is pretty obvious it has happened at the same time. We have 

also had feedback privately from U.S. attorneys that they have 

really been pulled off organized crime and drug smuggling and the 

like to do massive expansions of these prosecutions of, you know, 

bus boys and gardeners. 

Has that been a policy decision that you have been involved in, 

in terms of resources? Or is that just something that you respond 

to as the MBA guy at the department in supporting a policy decision elsewhere? 

Mr. LOFTHUS. What we do when we look at resources across the 

department is we look at influencing workload factors. In this case, 

we look at what is going on at the Department of Homeland Security. We look at what is going on across the prosecution realm. But 

we basically get that input from our program offices and from our 

policy officials who are running their programs and responding to 

those types of needs. 

My goal is to make sure that our offices have the appropriate resources once those decisions are made. 

Ms. LOFGREN. All right. 

Mr. Ohlson, you mentioned in your remarks the benchbook that 

you have put together to try to get some additional professionalism—maybe that is not the right way to put it, but I think 

it is—to upgrade performance. 

I am interested and, frankly, I think, from what I have heard, 

concerned about the development of that benchbook. The Office of 

Immigration Litigation, or OIL, had input into the development, 

but it is my understanding that outside lawyers did not. 

And that is kind of like asking the prosecutor to write the rules 

for the judge; it is a little bit one-sided. And if it ends up being the 

prosecutor’s view instead of a more general view of the law overall, 

it is going to end up with still more appeals and more process problems. 

15 

Do you have a plan to allow other outside immigration experts 

to review that and provide input to the department? 

Mr. OHLSON. Madam Chairwoman, our Immigration Judge 

Benchbook is an outstanding resource material for our immigration 

judges when they are on the bench. 

The primary individuals who worked on that Immigration Judge 

Benchbook were our most senior and the immigration judges who 

are recognized as being experts in this area, in terms of training, 

as well as—— 

Ms. LOFGREN. It was a simple question. Do you have a plan to 

allow others in the immigration world—AILA or law professors or 

the like—to provide input to the department? 

Mr. OHLSON. With something such as the Immigration Judge 

Benchbook, we are always completely open. We have continued 

meeting with AILA. I personally attend those meetings that we 

have on a semi-annual basis. We are open to input—— 

Ms. LOFGREN. Okay, very good. 

I am interested also in how one of the recent studies indicated 

that immigration judges were making diametrically opposed decisions on asylum on essentially the same fact situation. And the 

studies seem to indicate—and this is something we hear a lot, actually, anecdotally—that whether your asylum petition is granted 

really has more to do with who you land in front of than the actual 

facts of your case. 

And it has often been of concern to me that the immigration 

judges have to make it up each time. There is no general resource 

that is updated constantly for the American view of what is going 

on in a foreign nation that we accept as true. 

Is that part of your planning? I mean, you wouldn’t want to put 

that in a published benchbook. It would have to be an electronic 

version of that that is constantly updated. Is that something you 

are looking at? 

Mr. OHLSON. We certainly would be open to that. We get country 

reports from the Department of State, and we are certainly willing 

to look into that. In terms of—— 

Ms. LOFGREN. All right. Thank you very much. 

I have a question on the inspector general’s report. The inspector 

general really panned what was going on in the department. And 

we have got a new process now that you have talked about. 

Has the inspector general reviewed the questions that are now 

part of the hiring process? 

Mr. OHLSON. In terms of the questions that are posed to the individual? 

Ms. LOFGREN. Yes. 

Mr. OHLSON. Those questions were developed by our career officials in the Office of the Chief Immigration Judge. And the Office 

of the Inspector General I don’t believe has ever seen them. But it 

is really now—that part of the process is strictly run by career people. 

Ms. LOFGREN. But is it true that one of the questions for the IGs 

is whether the applicant would follow a direction or order from the 

attorney general even if it was contrary to law? 

Mr. OHLSON. Not to the best of my knowledge, Chairwoman. 

Ms. LOFGREN. Would you please look into that? 

16 

Mr. OHLSON. Certainly. 

Ms. LOFGREN. Thank you. 

I will now recognize the Ranking Member for 5 minutes for his 

questions. 

Mr. KING. Thank you, Madam Chair. 

First, Mr. Lofthus—and thank you both for your testimony—in 

your testimony I believe you said that you had been at Justice for 

27 years? 

Mr. LOFTHUS. Yes, just going on. 

Mr. KING. And in that period of time, you have seen a lot of 

things move through and change. And I am not sure what your 

vantage point was throughout all those 27 years, but I presume it 

was a gradual moving up through the ranks. 

Mr. LOFTHUS. Yes. 

Mr. KING. And I am wondering what your title and your perspective was back in 1995. Do you recall? 

Mr. LOFTHUS. In 1995, I was—during that year, I became chief 

of finance for the Federal Bureau of Prisons. 

Mr. KING. Okay. I would ask you then, from that standpoint, I 

wouldn’t know how much insight you would have had into the circumstances where, under the Clinton administration’s appointments, where they essentially put a hiring freeze on White males. 

Being one, you might have noticed that a little more closely. Do you 

recall those times? 

Mr. LOFTHUS. Only from a distance, because of my role at the 

time as the finance officer for the prisons I didn’t have any direct 

exposure to that particular event. 

Mr. KING. I would ask Mr. Ohlson, did you have—where were 

you in 1995? 

Mr. OHLSON. Congressman King, I was a Federal prosecutor at 

that time. 

Mr. KING. Then did you have a vantage point that might have 

given you a little more insight into those circumstances? 

Mr. OHLSON. Since that time, I have served as the deputy director of the organization and as the director. And, as a result of settling that case, I have become aware of what was going on during 

that time, yes, sir. 

Mr. KING. Do you recall how many plaintiffs were part of that 

class action suit? 

Mr. OHLSON. I am afraid I don’t remember that number off the 

top of my head, Mr. King. I would be happy to get that number 

for you. 

Mr. KING. Does 150 ring a bell? 

Mr. OHLSON. It was a very significant number, yes, sir. 

Mr. KING. Do you know how many are the subject of this I.G.’s 

report, those that they said the evidence supported that they had 

violated policy and law? 

Mr. OHLSON. Yes, Congressman King. In the Office of the Inspector General report, it was approximately 40 immigration judges. 

Mr. KING. Cases? Forty whats, I am sorry? 

Mr. OHLSON. Forty immigration judges who were hired during 

the process covered by the I.G. 

Mr. KING. By three people taking action? 

Mr. OHLSON. That is correct, sir. 

17 

Mr. KING. If three people hired 40, and in 1995 and 1996 there 

was a policy that brought at least—we will use this number—150 

into the class action lawsuits. 

I lay that out as a comparison of the magnitude of what we are 

dealing with here today compared to what was taking place in the 

mid-1990’s under the previous Administration. And I thank you for 

that, lending that clarity. 

Now, also, Mr. Ohlson, are you aware if any of the Federal circuits issue an automatic stay of removal if an alien appeals the 

case? 

Mr. OHLSON. I believe that may occur in the Ninth Circuit. 

Mr. KING. Any other circuits that you are aware of? 

Mr. OHLSON. I am not aware. It may occur also in the Second 

Circuit. 

Mr. KING. The Second and the Ninth. And then could you explain 

to this panel what the result of that is? 

Mr. OHLSON. Well, approximately 70 percent of the cases that 

are appealed up from the Board go to those two circuits. We are 

very happy to note that, over the last year, we have had about a 

23 percent drop in the number of cases that are going from the 

Board of Immigration Appeals up to the circuit courts. 

There certainly has been the view on the part of some that it is 

because of those delays that people are appealing at a higher rate 

within the Second and the Ninth Circuits, sir. 

Mr. KING. Do you have an idea about how much higher their rate 

might be if—have you analyzed this proportionally, from circuit to 

circuit, to see if that incentive that is there to appeal, what that 

has done to overburden the circuits in the Ninth, as you testified, 

and the Second, as I allege? 

Mr. OHLSON. There is a significantly increased percentage of 

cases that are appealed to the Second and Ninth Circuits where 

there are longer delays before they are adjudicated. 

Mr. KING. And ‘‘significant’’ would mean? 

Mr. OHLSON. I would have to get you those numbers precisely to 

be accurate. 

Mr. KING. I would ask you if you could produce those numbers, 

the percentage comparisons between the circuits. 

Mr. OHLSON. I would be happy to, Mr. King. 

Mr. KING. I think that is essential data for us to look at to evaluate that practice. 

And then I would ask you also, of the 40 or so IJs that have been 

hired under the practice that has been brought into question and 

criticized by the I.G.—and I am going to say appropriately, given 

the testimony that I have seen here—of those 40, is there any evidence of any partisan bias in the decisions that they have made? 

Mr. OHLSON. I am familiar with the work of the 40 individuals 

who have been hired. A couple of those individuals have not completed their probationary period. But I can tell you that my experience is the vast, vast majority are extremely dedicated and very 

successful on the bench. 

Mr. KING. I thank you, Mr. Ohlson. And I thank you also, Mr. 

Lofthus. And I appreciate you all’s testimony. 

And I yield back the balance of my time. 

Ms. LOFGREN. The gentleman yields back. 

18 

I would now invite the Chairman of the Judiciary Committee, 

Chairman Conyers, for any questions he may have. 

Mr. CONYERS. Well, thank you, gentlemen. 

My opening statement contained about 20 or so questions. I 

would like you both to try to respond to them, send in your responses as soon as you can. 

Mr. OHLSON. I would be happy to, Mr. Chairman. 

Mr. LOFTHUS. Yes. 

Mr. CONYERS. Have you ever been before a Judiciary Committee 

for oversight in this position before? 

Mr. OHLSON. I have not, sir. I am a career person in the Department of Justice. I have been with the department for approximately 20 years—— 

Mr. CONYERS. Okay. You haven’t. 

Have you? 

Mr. LOFTHUS. Not Judiciary. Other Committees, but not Judiciary. 

Mr. CONYERS. But on this subject? 

Mr. LOFTHUS. Not on this subject. 

Mr. CONYERS. Do you happen to know—I am impressed that everything is moving forward, that everything is going pretty smoothly, now that the I.G. and lots of hearings, including in this Committee, have revealed the politicization of the Department of Justice and Immigration. And I am pleased with it. 

What about during the year of, say, 2000? How many immigration judges were appointed? 

Mr. OHLSON. In terms of having the number who were hired during that time, Mr. Chairman, I would have to—— 

Mr. CONYERS. Okay. All right. Let’s take 2004, 2005, 2006, 2007. 

Because that is the period of time the inspector general was critical 

about. As a matter of fact, he gave you, Mr. Ohlson, a pretty 

good—he didn’t find you in violation of anything he was inspecting. 

As a matter of fact, you got promoted. 

Now we are going to be watching carefully—and I am not threatening you. But we have got to clean this mess up and keep it 

cleaned up. It is our fault that we didn’t oversight you. You can’t 

call up and say, ‘‘Judiciary hasn’t oversighted us in 8 years, and 

now they wonder why we are wandering all over the lot, with 

Monica doing all this political stuff.’’ 

But we are not going back into those years just to harass you. 

We are trying to make sure it never happens again. 

Now, what is the deal on the budget. Everybody knows we need 

a lot more judges and a lot more appeal board members. What is 

the situation here? Tell me. 

2009, Department of Justice did not request any positions for 

judges or appeal board members. 

Mr. LOFTHUS. Mr. Conyers, let me address that question, because 

I think it is an excellent one. 

To really get the context of what is going on with the budget at 

EOIR, if you go back to the report with the 22 recommendations, 

two of the recommendations said go forth and help this organization; it needs money for additional hiring, and it needs money for 

infrastructure, support for the judges and the activities of the 

court, information technology improvements. 

19 

So, for three straight budgets, we worked and successfully 

worked with OMB to present budgets to the Hill that—— 

Mr. CONYERS. But there were no requests in 2009. Where is 

2009? 

Mr. LOFTHUS. Here is what happened. In 2007, we sought positions in our budget, meaning increases of 120 positions, including 

22 judge positions. in 2008, we came back for another tranche of 

those positions, another 120, including 20 judges. We were successful back in 2007—— 

Mr. CONYERS. What about 2009? 

Mr. LOFTHUS. In 2009, what we did, because we knew we had 

gotten the money in 2007 and had a request for 2008, in 2009 we 

went after technology money. 

Mr. CONYERS. You did not make any requests for judges. 

Mr. LOFTHUS. That is right, because we had an existing 2008 request here and because we had been successful in 2007. So we had 

2 straight years of requests for judges, and then we felt we needed 

to turn our attention to the infrastructure to support the judges, 

which was the DARS, digital audio recording system, and another 

I.T. system. 

So after 2 years of supporting the personnel increases, we wanted to turn our attention to the I.T. 

Mr. CONYERS. So then you are the one that allowed 300,000 

cases to be handled by 215 immigration judges, because you didn’t 

make any requests. You didn’t expect us to come out of the clear, 

blue sky and give you some judges when there is no request made 

for them, did you? 

Mr. LOFTHUS. We had two—— 

Mr. CONYERS. Yes or no? 

Mr. LOFTHUS. We made two—— 

Mr. CONYERS. Yes or no? 

Mr. LOFTHUS [continuing]. Requests. 

Mr. CONYERS. The 2009—hey, you must know something about 

the budget process. You don’t go back and look at the years before 

to find out what happened and 2 years before to find out what happened. We are taking the current annual budget for 2009. 

Mr. LOFTHUS. Sure. 

Mr. CONYERS. So you can’t say, ‘‘Well, this is what happened in 

2008, this is what happened in 2007, and although we need hundreds of judges, I am not going to ask for any.’’ And then we come 

here today and give me this lame alibi, that you had made the request before and you wanted to turn it to something else. I find 

that almost unbelievable. 

Mr. LOFTHUS. Well, I think 2009 was requested in light of what 

we had done in 2007 and 2008. And unfortunately 2008 had not 

been completed or enacted when we made the 2009 request to the 

Hill. And when the 2008 omnibus was finished in the wee hours, 

when that finally was completed, there was not the money for our 

personnel increase. We would have liked that. 

I have to say, I share your concern—— 

Mr. CONYERS. Oh, thank you. 

Now, let me ask you something else. Are you making the ones 

for next year? 

Mr. LOFTHUS. Excuse me, sir? 

20 

Mr. CONYERS. Are you the person that makes the request for the 

coming budget? 

Mr. LOFTHUS. Absolutely. We will work with the department’s officials, and we are going to work with the incoming transition 

group and the incoming Administration to put together a 2010 

budget. 

Mr. CONYERS. So we can expect the same kind of work that you 

have given us in the past, right? Even though you need hundreds 

of judges, after you work with everybody and it is late at night and 

everything is going crazy, you make no request. That could happen, 

right? 

Mr. LOFTHUS [continuing]. We made 2 years’ requests. And I 

have to say, I am very concerned, as you are, that when that 

other—— 

Mr. CONYERS. Well, we never heard about you being concerned 

before this morning. 

Mr. LOFTHUS. When that second request was made and did not 

get fulfilled through the omnibus, that presents a problem for me 

and for Mr. Ohlson. We know that that didn’t come through, and 

I need help in the 2009—— 

Mr. CONYERS. I will be watching to help you, and I will be watching to see how you perform. 

Thank you, Madam Chair. 

Ms. LOFGREN. Thank you, Mr. Chairman. 

I now recognize Chairwoman Linda Sa ́nchez for 5 minutes for 

her questions. 

Ms. SA ́ NCHEZ. Thank you, Ms. Lofgren, for your leadership on 

this issue and the fact that we are actually having an oversight 

hearing. Because I am appalled at some of the information that is 

coming out and some that isn’t coming out, quite frankly. 

Mr. Lofthus, a fact sheet that is entitled ‘‘EOIR’s Improvement 

Measures: Progress Overview’’ and dated September 8, 2008, states 

that EOIR has hired 22 immigration judges and one new assistant 

chief immigration judge. Is that correct? 

Mr. LOFTHUS. I defer to Mr. Ohlson on—— 

Ms. SA ́ NCHEZ. Mr. Ohlson? 

Mr. OHLSON. Over what time frame were we talking about, Ms. 

Sa ́nchez? 

Ms. SA ́ NCHEZ. I don’t know. I am specifically referring to the 

‘‘Progress Overview’’ that is dated September 8, 2008. 

Mr. OHLSON. What we have done is, through the new hiring 

process that has been implemented since April of 2007, we have 

managed to bring onboard 18 new immigration judges, and we 

have 16 in the pipeline. 

Ms. SA ́ NCHEZ. Okay. And yet, in something that is dated September 8 of this year, you are saying that EOIR has hired 22 immigration judges. 

Mr. OHLSON. I would have to see the document, Ms. Sa ́nchez. 

Ms. SA ́ NCHEZ. Okay. Because I would be interested in knowing, 

of those 22, how many of them were hired through the revised 

process and how many were hired through the politicized process. 

If you could get me that information, that would—— 

21 

Mr. OHLSON. I would certainly be happy to. With the 18 to which 

I am referring, all of them have been hired through the new process. 

Ms. SA ́ NCHEZ. Okay. So there is a potential that in the progress 

report about improvement, they may be adding in judges that were 

hired under the old process, in which it was politicized. 

Mr. OHLSON. I would have to look at the document, ma’am. 

Ms. SA ́ NCHEZ. But wouldn’t that stand to make sense? If 18 were 

hired under the new process and the progress report says 22 new 

judges have been hired, then, by simple arithmetic, the ones that 

were not hired in the new process were hired under the old process? Do you want to take a look at it? 

Mr. OHLSON. I don’t believe so, because the last people we had 

come onboard through the old process was December 2006. 

Ms. SA ́ NCHEZ. Okay. I have actually got the document here. 

Ms. LOFGREN. Maybe we can ask the clerk to bring it down to 

the witness, and he can take a look at it. 

Ms. SA ́ NCHEZ. You know, I am really concerned, after hearing the 

testimony, that, you know, there is this sort of rose-colored glass 

vision that, you know, since the revised, you know, hiring has come 

into effect, you know, there isn’t any problem with the immigration 

judges that are currently deciding cases. 

I am interested in knowing, of the new judges that have been 

hired, how many of them have an ICE, an INS or a law enforcement background. Do you know that? 

Mr. OHLSON. In terms of specific numbers, I don’t. I do know 

that—— 

Ms. SA ́ NCHEZ. Could you please provide that for this Committee? 

Mr. OHLSON. I would be happy to, Ms. Sa ́nchez. 

Ms. SA ́ NCHEZ. Great. And I would be interested in knowing, conversely, how many of them have private practice, teaching or other 

types of immigration law background. 

Mr. OHLSON. We will be more than happy to get that information 

to you. 

Ms. SA ́ NCHEZ. Okay. And I would be interested in knowing how 

many of them have no background in immigration at all. 

Mr. OHLSON. Certainly. 

Ms. SA ́ NCHEZ. I think that would definitely be helpful, to know 

who is deciding cases that has no background in immigration law 

at all. 

Another question that I have: Is it true that Rex Ford, who was 

one of three immigration judges mentioned by name in the OIG report as having been involved in the ‘‘coordinated efforts’’ with two 

other immigration judges to identify candidates for the I.J. vacancies for Monica Goodling under the politicized hiring system, is also 

now participating in interviews for I.J. candidate positions in the 

new process? Is that correct? 

Mr. OHLSON. No, I don’t believe that is correct, ma’am. 

Ms. SA ́ NCHEZ. Okay. Because you can see why that would be 

troubling. 

Mr. OHLSON. Certainly. 

Ms. SA ́ NCHEZ. Okay. 

22 

Mr. OHLSON. The three people who do that are our assistant 

chief immigration judges. And Rex Ford is not an assistant chief 

immigration judge. 

Ms. SA ́ NCHEZ. Okay. I am particularly concerned—and Chairwoman Lofgren mentioned this—the background, in terms of who 

serves or who chooses who serves, is very troubling to me. And in 

looking at the lowest rates for approval of asylum cases, the lowest 

rates of approval tend to come from ICE, INS trial attorneys. 

So it would stand to reason that if you worked for ICE or INS, 

that probably you come in with a certain perspective when you are 

adjudicating cases. Would you not agree? 

Mr. OHLSON. What we are trying to do is we are trying to address the issue of asylum disparity very aggressively. Our goal is 

to ensure that whenever an alien comes before an immigration 

judge, he or she does not feel as if the case has been predetermined. 

Ms. SA ́ NCHEZ. But if the lowest asylum-grantee rate comes from 

ICE or INS trial attorneys, wouldn’t it stand to reason that perhaps you need to balance the number of judges who come from that 

kind of background versus pro-bono work or private practice or 

teaching? 

Mr. OHLSON. We have a broad representation of backgrounds on 

the immigration judge bench, as it is now. And it is not always predictive of how they will decide asylum cases. 

Ms. SA ́ NCHEZ. But wouldn’t you agree that if there is a link between the lowest rates of granting asylum cases and the type of the 

background of the judge deciding them, that there might be some 

kind of inherent bias or preconceived perspective that those judges 

are bringing to the table? Or is that totally crazy and outside the 

realm of possibility in your world? 

Mr. OHLSON. No, I don’t think in anyone’s world. But our goal 

is to have—— 

Ms. SA ́ NCHEZ. I know what your goal is, but I am—— 

Mr. OHLSON. And it is not only just a spoken goal. We are taking 

concrete steps to ensure that that is the case. 

Ms. SA ́ NCHEZ. In terms of streamlining, which is something that 

was developed in 2002, there was—item 12 of the former attorney 

general’s 22-point plan to improve EOIR called for a revision of the 

2002 streamlining regulations. And in March 2007, then-EOIR director Kevin Rooney stated that the proposed rule would be issued 

in the spring of 2007. And the proposed rule was, in fact, issued 

in June of this year, of 2008. 

When do you expect to finalize the revised streamlining rule? 

Mr. OHLSON. I would expect the regulation to be out very soon, 

but we also have actually implemented the provisions without the 

regulation needing to be out there. 

What the goal is, when it comes to affirmances without opinion, 

as part of the streamlining, we have decreased that number from 

34 percent of all their decisions down to 9 percent. 

We have also increased dramatically the number of precedential 

decisions. A few years ago it was 12; we are up to about 50 a year 

now. 

23 

Ms. SA ́ NCHEZ. Well, that is an improvement. But without the regulation, it is just sort of—you can choose to follow it or you cannot. 

I am interested in knowing when that will be finalized. 

Mr. OHLSON. The regulatory process sometimes is rather opaque, 

but we expect to have that finalized very soon. 

Ms. LOFGREN. The gentlelady’s time has expired. 

I have been a Member of the Judiciary Committee for almost 14 

years, and this is the first time we have ever had any oversight of 

this activity. So I think that merits a second round of questions. 

And I would permit the Ranking Member to begin the second 

round. 

Mr. KING. And not in preparation of the gentlelady’s generous 

offer, I would—— 

Ms. LOFGREN. Oh, I will be happy to begin then. 

I want to talk about, getting back to the inspector general’s report, there were just a few people who were mentioned by name 

in that report. And Mr. Garry Malphrus was one of them mentioned as a politicized appointee. The inspector general also noted 

that he was involved in politicized appointments of others, on page 

88, 89, 97, 98, and 108 to 111, if you want to reference the report. 

I was feeling surprised to see that he was recently named to the 

Board of Immigration Appeals. 

Was the fact that Mr. Malphrus was originally hired through the 

politicized process and, according to the I.G., participated in this illegal scheme of appointment taken into consideration when he was 

appointed? 

Mr. OHLSON. I am not privy to any discussions that occurred 

within the office of the deputy attorney general or the attorney 

general. It was a career process that was used in selecting Mr. 

Malphrus for the Board of Immigration—— 

Ms. LOFGREN. Well, on that point, I believe it is true that Board 

of Immigration Appeals members are required to have 7 years of 

experience in immigration law, as opposed to IJs that merely requires 7 years of legal experience. 

Did, to your knowledge, Mr. Malphrus have at least 7 years of 

experience in immigration law? 

Mr. OHLSON. I am not sure that it is required that they have 7 

years of immigration law experience. 

Ms. LOFGREN. Do you know what his experience is in immigration law? 

Mr. OHLSON. He has served as an immigration—— 

Ms. LOFGREN. How long? Only through this politicized process? 

Mr. OHLSON. He was appointed in 2004-2005. 

Ms. LOFGREN. Okay. 

I want to talk about the appointment process and how it might 

lead to a particular result. 

How long does the new hiring process take? 

Mr. OHLSON. It actually takes a significant period of time, particularly when you factor in—— 

Ms. LOFGREN. Approximately how long? 

Mr. OHLSON. Going forward, if we don’t count the background investigation—— 

Ms. LOFGREN. Count the whole process. I mean, is it a year? Is 

it 6 months? 

24 

Mr. OHLSON. If you include the background investigation, it will 

probably take at least a year. 

Ms. LOFGREN. So I would just like to make this suggestion, that 

that really means that we are going to hire government lawyers for 

the most part. It is very difficult in the private sector to be on hold 

for a year if you are in a law firm. And I think that that is something that needs to be, obviously in the new Administration, reviewed. Because I think that skews it toward—it is going to be OIL 

or ICE, instead of anybody who knows a different angle on immigration law. 

I am also interested in what efforts have been made to reach out 

to the broad spectrum of immigration expertise in this country for 

EOIR. 

Mr. OHLSON. In terms of hiring? 

Ms. LOFGREN. Yes. 

Mr. OHLSON. We actually put out the ad in a number of publications, minority publications and so forth, around the country. We 

try to aggressively recruit individuals from a diverse background. 

Ms. LOFGREN. When you say ‘‘try to aggressively recruit,’’ what 

does that consist of, I mean, other than an ad? 

Mr. OHLSON. We have, as I mentioned, I put on our DOJ Web 

site, we put on OPM’s Web site, we—— 

Ms. LOFGREN. I see. I mean, in my experience, you know, looking 

at it, the prosecutors generally are the ones—the OIL people are 

taking a look, they know in advance when the openings are in. 

And, you know, they have a right to apply; I wouldn’t say otherwise. But you end up with kind of a skewed process. 

And unless there is a real effort to include a different perspective, you end up with, you know, a prosecutor as the prosecutor, 

a prosecutor as the judge, and an immigrant who doesn’t have a 

lawyer, and it doesn’t always lead to a result that is a just result 

or at least providing the appearance of a just result. And I am concerned that that is still going on. 

Mr. OHLSON. We would certainly be receptive to any ideas you 

have along those lines, Madam Chairwoman. 

Ms. LOFGREN. Now, the former chief judge of the U.S. Court of 

Appeals for the Second Circuit, the Honorable John Walker, testified before the Senate Judiciary Committee in 2006. I was glad 

that they had a look at this. In his opinion, at least 30 people 

should be on the BIA. And in his judgment, the number of immigration judges should be doubled to about 400, given the workload. 

And that was certainly before the surge that we have had in prosecutions and arrests. 

Do you think those are the kinds of numbers that are, in fact, 

necessary to deal with the caseload that we have here? 

Mr. OHLSON. If you look at the Board of Immigration Appeals, 

they are currently capable of adjudicating 35,000 cases a year, and 

they are receiving approximately 30,000. So they are—— 

Ms. LOFGREN. But some would argue they are not capable, given 

what the circuit courts are seeing and the scathing comments made 

by the real judges about the quality of these decisions. 

Mr. OHLSON. Well, I would note that we have about an 87 percent affirmance rate within the circuit courts, which is extremely 

25 

high. And I think our members of the Board of Immigration Appeals are doing a truly outstanding job. 

Ms. LOFGREN. I see that my time has expired. I will turn to Mr. 

King for any additional questions he may have. 

Mr. KING. Thank you, Madam Chair. 

Let’s say first to Mr. Lofthus, you know, you were excoriated earlier for not coming to this Congress and pressing us for authorization and funding for more IJs. I don’t exactly know how many. But 

I heard that and I would characterize that, and I would ask you 

if you agree with my characterization. 

And I would point out for your benefit that the House hasn’t 

passed a single appropriations bill for 2009, for fiscal year 2009. 

We have had one come to the floor of the House of Representatives, 

and that was the milcon, military construction, appropriations bill. 

Now, we could discuss the reasons for that. But I will just submit 

that that is just dysfunctional. And Congress has never been this 

dysfunctional. There has never been a time that we have gone this 

far, in the history of this country, and not passed an appropriations 

bill. 

There is a reason that this Congress is structured the way it is, 

that we have appropriations Subcommittees and Committees and 

that bills come to the floor, that we have authorization Committees 

and that bills come through the Subcommittee and the Committee 

to the floor. 

The reason for that is so that every Member of Congress has an 

opportunity to weigh in and perfect legislation so that when it does 

arrive at the President’s desk it is the voice of the people of the 

United States of America run through the filter of the United 

States House of Representatives and the United States Senate. 

What we are seeing instead—we are here discussing how we run 

this country by omnibus spending bills, by stacks of 3,600 pages, 

by my memory, and $912 billion in one stack that comes out in the 

print at 11 o’clock at night and comes to the floor for debate and 

passage without amendment the following day. 

That means that the effect is the American people will go to the 

polls again on November 4 and they will put up their votes, and 

whatever the party affiliation is of the members of House of Representatives, they will vote for speaker. Whether it be the Democrats or whether it be Republicans, those votes will be exactly down 

party lines. 

And then whoever is elected the speaker will have the authority 

to suspend Committee process, effective Committee process, and 

bring bills to the floor with the assent of the Rules Committee, 

which is approved by the speaker. 

And so we look back on how this happens—the energy bill would 

be a perfect example of that. No Committee action, a bill that 

might set the destiny of this country for a generation or more, no 

amendments, only 3 hours of debate on the floor, no way to perfect 

the legislation. 

So, whatever Members of this Judiciary Committee hear, or Justice Approps over on the appropriations side, might have wanted 

to do to help you and provide you more judges to work with, we 

haven’t had a process to do that. And you haven’t had the opportunity to make the request that could be acted upon by anyone 

26 

other than the speaker of the House and those that she might authorize to do this. 

This is not a representative form of government. And it troubled 

me that you have to sit there and listen to that when there was 

no avenue for anyone to help you, except the people who are wielding the gavel at the speaker’s level. 

So I am hopeful that one day soon we will get back to an open 

Congress, a functional Congress, one that takes advantage of the 

wisdom and the expertise of 435 members of the House, 100 members of the Senate, so that we can provide the filter to receive 

input, build those kind of coalitions and those consensus, and be 

able to move through to provide effective government. It is just 

simply not possible for a small group of people to make all the 

right decisions, no matter how smart they might be. 

So then I would just take you to this. Mr. Ohlson, I have the information, it has arrived in front of me, that I had asked of you 

earlier, the rate of appeals for BIA decisions. So it won’t be necessary for you to provide it unless the other Committee Members 

would be interested. 

But I would just say this, that the I.J. appeals rate is 10 percent, 

the BIA appeals rate is 30 percent. And when you look at the two 

circuits that I mentioned in the previous questioning, the Ninth 

Circuit and the Second Circuit, those at the Ninth—and I think 

Mr. Lofthus has actually testified—that is an automatic stay if it 

is appealed from the BIA to the Ninth Circuit. They have the highest rate of appeals, at 42 percent. 

And if I am correct on the Second Circuit having an automatic 

stay, they have the second highest rate of appeals; that is 36 percent. That is compared to the average of 30 percent. If you go to 

the more conservative circuits, for example, the 11th, you will see 

a 9 percent rate of appeals. 

I mean, I would think that the reflective appeals out of I.J. on 

up through the BIA to the circuit at 10 percent, that would be 

something we might want to look at as being more the norm that 

we should like to see. 

Ms. LOFGREN. Would the gentleman yield? 

Mr. KING. I would yield. 

Ms. LOFGREN. I think the premise is incorrect. There is no automatic stay in law in this appeals. 

Mr. KING. The practice then—reclaiming my time. I will ask, 

then, Mr. Ohlson. 

Are you aware of the practice in the Ninth Circuit? Do they 

grant stay for every appeal, or don’t they? 

Mr. OHLSON. Essentially, yes. 

Mr. KING. Okay. Then let me just correct that to the practice in 

the Ninth Circuit and the practice that I allege exists in the Second 

Circuit has yielded the highest percentage of appeals. And so, that 

is the standard that we need to be looking at. 

And I think—I will ask you this. Will you, then, put together for 

this Committee the data that will show us the percentage of appeals and how many stays are granted for each of the circuits and, 

in print, the statistical data and the text of the practice that you 

have testified exists in the Ninth, that I allege in the Second, and 

any exceptions that might exist in the other districts, so that we 

27 

have a real perspective on what is going on here? And I would ask 

you if you would do that. 

And I would yield back the balance of my time. 

Ms. LOFGREN. The gentleman’s time has expired. And, as we 

have said before, we are all entitled to our own opinions but not 

entitled to our own facts. So we will find out and we will have in 

the record—— 

Mr. KING. Will the gentlewoman yield? 

Ms. LOFGREN. Of course. 

Mr. KING. I would submit that I have characterized this accurately, and the witness has testified that the result is that there 

is a stay of deportation—— 

Ms. LOFGREN. Recalling my time—— 

Mr. KING. That is the witness’s testimony. 

Ms. LOFGREN. And I think the witness is incorrect, but we will 

find out. As we look at it, we will actually get the facts. And we 

will not have a disagreement; we will have the facts. 

With that, I would like to thank this panel for its testimony. 

Without objection, Members of the Subcommittee will have 5 legislative days to submit questions to you, which we will forward and 

ask that you answer as promptly as you can so they can be made 

part of the record. 

I would also like to just note that, in January of this year, Chairman Conyers and I wrote to the attorney general regarding a very 

wrong decision, the matter of ‘‘A.T.,’’ a Board of Immigration Appeals decision that denied political asylum to a victim of female 

genital mutilation, a decision that was at odds with all the precedence and morally incorrect, from my point of view. 

We want to publicly thank the attorney general for overturning 

the BIA decision and reaffirming the proud tradition of asylum for 

that egregious behavior. And I don’t always agree with Attorney 

General Mukasey, but I do feel obliged to publicly acknowledge his 

very honorable decision today. 

And we do thank you for appearing today. And we will ask you 

to relinquish your seats, as we ask up our second panel of distinguished witnesses. 

And as we are doing this, I will introduce our witnesses. 

I am pleased to welcome Professor Susan Long. Professor Long 

is co-director of the Transactional Records Access Clearinghouse at 

Syracuse University. Professor Long’s specialties are in the fields 

of statistics, data and measurement. And she is currently a faculty 

member in the department of finance at the Martin J. Whitman 

School at Syracuse University. 

Professor Long has served as an expert witness in litigation, on 

information technologies, and with respect to public disclosure, and 

on the use of statistical evidence in evaluating government policy. 

She has also published articles on data-warehousing and data-mining tools in the legal profession. 

I am also pleased to introduce Dr. Stephen Legomsky. Dr. 

Legomsky is a professor at the Washington University School of 

Law in St. Louis. He is the author of ‘‘Immigration and Refugee 

Law and Policy,’’ which has been adopted as the required text for 

immigration courses in 163 U.S. law schools. 

28 

Dr. Legomsky founded the Immigration Law Section of the Association of American Law Schools and chaired the Refugee Committee of the American branch of the International Law Association. He has been a consultant to President Clinton’s transition 

team and to the first President Bush’s Commission on Immigration, as well as to the U.N. high commissioner for refugees and to 

several foreign governments on migration, refugee and citizenship 

issues. 

He is an elected member of the American Law Institute and has 

been a visiting fellow at Oxford University and a visiting fellow at 

Cambridge University. He has had teaching or research appointments in the United States, Mexico, New Zealand, Switzerland, 

Germany, Italy, Austria, Australia, Suriname and Singapore. 

And we are very honored to have both of you as witnesses today. 

Now, as mentioned before, your entire written statements will be 

made part of the record. And we will have 5 minutes of testimony, 

which we will follow by questions. 

So all those bells and whistles are calling us to the floor to vote, 

but we have 13 minutes. So I think that is time to get both of your 

oral testimonies in, and then we will return for questions. 

So, Professor Long, could you begin your 5 minutes of oral testimony? And your full statement will be made part of the record. 

TESTIMONY OF SUSAN B. LONG, CO-DIRECTOR, 

TRANSACTIONAL RECORDS ACCESS CLEARINGHOUSE (TRAC) 

Ms. LONG. Madam Chair and Members of this Subcommittee, my 

name is Susan Long, and I am co-director of the Transactional 

Records Access Clearinghouse at Syracuse University, commonly 

known as TRAC. 

I wish to thank you for the invitation to come today to testify 

about the results of TRAC’s research on the functioning of the immigration court system and its administration by the Executive Office for Immigration Review. 

Since its founding in 1989, TRAC has sought to provide the 

American people with comprehensive information about the activities of Federal enforcement and regulatory agencies. To give you 

one small indicator of the scope of TRAC’s activities, TRAC publishes around 100,000 reports each month on a large range of topics. These reports are based upon TRAC’s ever-expanding data 

warehouse, with more than a terabyte of data, roughly equivalent 

to over 500 million printed pages of information. 

TRAC’s series of focus studies on the immigration courts began 

in 2005. The problems faced by our immigration court system are 

not new. TRAC’s analyses of hundreds of thousands of immigration 

court records covering the last quarter-century, supplemented by 

extensive examination of budgets, staffing, workload and other 

agency documents, along with interviews with stakeholders, show 

that our immigration court system has been troubled for a very 

long time. 

These conclusions are further reinforced by the criticisms from 

the Federal appellate courts and the reports of other analysts and 

immigration stakeholders. 

29 

Two years ago, the Bush administration made a commitment to 

end this sorry history. However, our careful examination since then 

shows that this promise has not been kept. 

Our findings: One, the most recent covering the period through 

the end of fiscal year 2007, continue to show inexplicable asylum 

grant rate disparities among judges in the immigration courts. 

Two, despite the fact immigration judge caseload has repeatedly 

been cited as a chief problem, there are still fewer immigration 

judges today than there were in 2006 when the attorney general 

announced his 22-point plan for reforms, as result only partially explained by the illegal hiring process used by the Justice Department in EOIR. 

Further, a central reform promised was for DOJ to seek budget 

increases to increase the available number of immigration judge 

positions. Regrettably, there has been no actual increase in the 

number of immigration judge positions since the A.G.’s proposals 

were announced. And DOJ did not even seek funding for increasing 

immigration judge positions, as we heard earlier testimony on, in 

the fiscal year 2009 budget. 

Three, despite the fact that judicial conduct and quality were the 

stated reasons for conducting the 2006 comprehensive review of the 

immigration court system, over 2 years later EOIR has failed to 

implement key improvement measures, as directed by the A.G., to 

enforce the oversight and training of judges. 

Four, and despite the hope that the Gonzales reforms would 

usher in increased transparency and accountability into the immigration courts, the Justice Department and EOIR has repeatedly 

and needlessly sought to veil the implementation of improvements, 

including decisions that amount to substantial policy changes. 

My prepared statement outlines each of these points at more 

length and provides full references to TRAC’s research studies 

where these and other findings are laid out in detail. 

I would be happy to answer any questions the Committee may 

have. 

[The prepared statement of Ms. Long follows:] 

30 

PREPARED STATEMENT OF SUSAN B. LONG


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Ms. LOFGREN. Thank you, Professor Long. 

Now we will turn to you, Professor Legomsky, for your 5 minutes 

of oral testimony. 

TESTIMONY OF STEPHEN H. LEGOMSKY, THE JOHN S. LEHMANN UNIVERSITY PROFESSOR, WASHINGTON UNIVERSITY 

SCHOOL OF LAW 

Mr. LEGOMSKY. Well, thank you very much, Madam Chair. 

I have been asked to provide a historical perspective on EOIR, 

with specific attention to the 2002 reforms that you have already 

described and their impact. The written statement spells out the 

history in more detail, so I am going to jump right up to 2002 when 

those reforms were announced. And I think three of those reforms 

are most relevant to today’s hearing. 

First, instead of the BIA deciding the vast majority of its cases 

in three-member panels, single members now decide all cases that 

don’t fit within a few specific exceptions. 

Second, the BIA was forbidden to give any reasons for its decisions any time one board member believes that the immigration 

judge reached the right result and that the issues are either 

squarely controlled by precedent or, in the opinion of that member, 

not substantial enough to justify a written opinion. 

And third, despite his expressed desire to boost productivity, Mr. 

Ashcroft simultaneously announced a reduction in the size of the 

BIA from 23 authorized member positions, some of which were vacant, to 11. To accomplish that, he reassigned the generally most 

liberal board members to either I.J. positions or non-adjudicative 

positions. 

The BIA was created, I might add, in 1940, and this was the first 

time any attorney general had ever removed any BIA member for 

any reason. 

Attorneys General Gonzales and Mukasey have since introduced 

some further changes, also described in the written statement. But 

one of those changes was to expressly authorize DOJ officials to 

talk with I.J.s and board members ex parte about pending cases. 

Another recent change was to authorize OIL, which is the office 

that argues the government’s side in the courts, to report any I.J. 

or BIA decisions that, in their opinion, were of ‘‘poor quality.’’ Similar reports from the opposing party are not authorized. 

The effect of all of these last few changes—reassigning liberal adjudicators, authorizing ex parte communications with DOJ, and allowing one side but not the other to file complaints about the decisions—does put real pressure on adjudicators to reach decisions in 

favor of the government. 

Decisional independence is critical. Judges have to be able to 

base their decisions solely on the evidence and their honest interpretations of the law without fear that they will lose their jobs if 

they rule against their boss. 

Immediately after the 2002 reforms, three things happened. 

First, immigrants began losing a much higher percentage of BIA 

cases. Second, after they lost, they began filing for judicial review 

of the BIA decision at spectacularly increased rates, which has 

caused huge problems for the courts. And third, the courts began 

issuing numerous opinions not only reversing the BIA, but, as you 

41 

have said, uncharacteristically scathing comments about the quality of the I.J. and BIA opinions, in many cases. This was unprecedented. 

All these problems almost certainly resulted directly from a combination of the 2002 reforms and persistent under-resourcing of 

EOIR. There just is no other plausible explanation for the coincidence in timing. All of these problems emerged immediately after 

these reforms went into effect. 

Moreover, there are all kinds of logical reasons to expect that all 

of these reforms, including under-resourcing, would have precisely 

the adverse effects that did occur. The details on causation are in 

my written statement, at pages 7 to 9. 

I would respectfully urge Congress to consider four steps. 

First, invest the resources EOIR needs. It has a huge caseload. 

Many of its cases are very complex. And, of course, the consequences of error, especially in asylum, can be potentially grave. 

Second, minimize the case categories in which single board members are allowed to hand down decisions on behalf of the entire 

BIA. Three-member panels should once again be the norm. 

Third, the BIA should rarely be allowed to decide removal cases 

without giving at least basic reasons and never, in my view, in asylum cases. 

And fourth and finally, Congress should restore the independence of the IJs and the BIA. It should consider taking EOIR out 

of DOJ entirely. But short of that, I think there are some modest 

steps that would go a long way. Congress should specifically prohibit the reassignment of IJs or BIA members, other than for misconduct. Congress should end the attorney general’s asymmetrical 

practice of allowing government attorneys to file complains about 

adjudicators when they don’t like the results but not the other 

side’s attorneys. And finally, Congress should prohibit ex parte 

communications by adjudicators with DOJ officials concerning 

pending cases. 

These contradict the most elementary principles of procedural 

fairness. And they are not even necessary, because the A.G. already has the power to reverse himself or herself whenever the attorney general disagrees. 

I guess that is it for now. Thank you once again for the privilege 

of testifying before you. 

[The prepared statement of Mr. Legomsky follows:] 

PREPARED STATEMENT OF STEPHEN H. LEGOMSKY

Madame Chairwoman and members of the subcommittee, thank you for the opportunity to appear before you today. My name is Stephen H. Legomsky. I am the 

John S. Lehmann University Professor at the Washington University School of Law. 

For more than thirty years I have devoted the majority of my professional life to 

the subject of immigration law and policy. I have taught U.S. immigration law to 

law students for approximately 25 years, am the author of the law school textbook 

‘‘Immigration and Refugee Law and Policy’’ (now in its fourth edition), and have had 

the privilege of advising both Democratic and Republican administrations and several foreign governments on immigration policy. 

I have been asked to provide a historical perspective on the Executive Office for 

Immigration Review (EOIR) and to comment specifically on the 2002 streamlining 

initiatives and their impact. 

To understand the role and structure of the EOIR it is necessary to describe briefly the system that was in place before its creation in 1983. For most of the first 

half of the twentieth century, deportation cases were adjudicated by ‘‘immigration 

42 

1This system of hearings and appeals, as it functioned before 1952, is thoughtfully described 

by former INS examiner Sidney B. Rawitz, in From Wong Yang Sung to Black Robes, 65 Interpreter Releases 453 (1988). 2 5 Fed. Reg. 3503 (Sept. 4, 1940). 

3Pub. L. 82–414, 66 Stat. 163 (June 27, 1952). 

4 48 Fed. Reg. 8039 (Feb. 25, 1983). 

5OCAHO houses the ALJs who decide various cases arising under the Immigration Reform 

and Control Act of 1996 (IRCA), Pub. L. 99–603, 100 Stat. 3359 (Nov. 5, 1986). These hearings 

involve either employer sanctions or alleged violations of IRCA’s anti-discrimination requirements. 6See 72 Interpreter Releases 772–73 (June 5, 1995). 

7The reasons appear in the consultant’s report, Stephen H. Legomsky, Forum Choices for the 

Review of Agency Adjudication: A Study of the Immigration Process, 71 Iowa L. Rev. 1297 

(1986). 8 53 Fed. Reg. 15660 (May 3, 1988). 

inspectors.’’ These individuals worked for the predecessors to the former Immigration and Naturalization Service (INS), and in addition to adjudication they performed various law enforcement functions. There was a rough system of appeals to 

a centralized office in Washington, DC. 1 In 1940, in order to improve the appellate 

part of the process, the Attorney General created the Board of Immigration Appeals 

(BIA). He delegated to the new Board the authority to hear appeals from the deportation decisions of the immigration inspectors, as well as a few other miscellaneous 

orders. 2 BIA decisions were accompanied by written opinions that set out the 

Board’s reasons for affirming or reversing. 

After passage of the Administrative Procedure Act (APA) in 1946, there was disagreement over whether the APA procedures were meant to apply to deportation 

proceedings. The issue was important, because the APA philosophy was to assure 

independence for those who adjudicate formal agency hearings, and the immigration 

inspectors who presided over deportation hearings freely co-mingled adjudicative 

and enforcement functions and reported to other enforcement officials. After a vigorous tug of war among Congress, the executive branch, and the Supreme Court, 

Congress finally settled the issue by enacting the Immigration and Nationality Act 

(INA) in 1952. 3 That statute, as amended many times, is still the main law governing immigration and nationality in the United States. Among other things, the 

Act assigned the task of presiding over deportation hearings to ‘‘special inquiry officers,’’ later re-named ‘‘immigration judges.’’ 

The immigration judges clearly possessed greater independence than their ‘‘immigration inspector’’ predecessors, but in many quarters concern about their institutional independence lingered. They reported to the INS, which was, after all, one 

of the two opposing parties in the cases they heard. To alleviate that concern, the 

Attorney General in 1983 created EOIR. 4 The new agency initially housed both the 

Chief Immigration Judge (who in turn coordinates the work of the immigration 

judges) and the BIA. It now has a third component, the Office of the Chief Administrative Hearing Officer (OCAHO). 5

Throughout its history, EOIR has experienced steadily increasing caseloads. Generally, the number of immigration judges expanded and the resources increased, 

though not necessarily as rapidly as the demands of their caseloads. The BIA was 

a different story. It remained at five members (minus vacancies at various times) 

until 1994. In that year, EOIR expanded to nine members, later to 12, 6 and eventually to 23 member positions. 

As caseloads and membership increased, BIA procedures changed too. Until 1988, 

the five-member BIA decided all cases en banc; i.e., all five members participated 

in every decision. In 1985, the Administrative Conference of the United States (a 

former U.S. government agency charged with recommending administrative reforms), concerned about present and future caseload increases, recommended that 

the Board start deciding cases in three-member panels, reserving the en banc procedure for exceptionally important cases. 7 The Justice Department strenuously opposed the recommended change. Persuaded three years later by the demands of its 

increased caseload and the inefficiency of requiring all five members to hear every 

case, however, the Department ultimately adopted the ACUS recommendation and 

began deciding cases in three-member panels. 8

From then until 1999, almost all cases were decided in three-member panels. In 

the meantime, however, the caseload continued to mount and backlogs began to 

grow. Apart from strictly workload concerns, the Department worried that long 

delays in the appeal process would give noncitizens in removal proceedings an incentive to file frivolous appeals to the BIA in order to buy additional time in the 

United States. In 1999, therefore, in order to boost productivity and thereby speed 

the process, Attorney General Janet Reno issued a regulation authorizing the Chair 

43 

9 64 Fed. Reg. 56135 (Oct. 18, 1999). 

10That was the finding of an important ABA study. Dorsey & Whitney LLP, Study Conducted 

for the American Bar Association Commission on Immigration Policy, Practice and Pro Bono, 

Re Board of Immigration Appeals: Procedural Reforms to Improve Case Management (July 22, 

2003), section III. 11 67 Fed. Reg. 54878 (Aug. 26, 2002). 12 8 C.F.R. section 1003.1(e)(6) (2008). 13 8 C.F.R. section 1003.1(e)(4) (2008). 14 67 Fed. Reg. at 54901 (Aug. 26, 2002). 15The regulation referred only to ‘‘traditional’’ factors such as the Attorney General’s ‘‘discretion,’’ and to such other factors as ‘‘integrity, . . . , professional competence, and adjudicatorial 

temperament.’’ Seniority, the Attorney General made clear, would not be ‘‘a presumptive factor.’’ 

67 Fed. Reg. at 54878. 16This was the conclusion of an empirical study by former House Judiciary Committee staff 

counsel Peter J. Levinson, The Facade of Quasi-Judicial Independence in Immigration Appellate 

Adjudications, 9 Bender’s Immigration Bulletin 1154 (Oct. 1, 2004). Accord, ABA Study, note 

10 above. 17Levinson, note 15 above. 18 71 Fed. Reg. 70855 (Dec. 7, 2006). 

of the BIA to identify exceptional categories of cases that could be decided by single 

members. 9 Over the next two years, the Chair designated several such categories. 

Whatever the impact of that change on the quality of the resulting decisions, it was 

clear that the new procedure noticeably improved the Board’s productivity. 10

Despite that success, Attorney General Ashcroft in 2002 announced what turned 

out to be a highly controversial series of changes designed to further ‘‘streamline’’ 

the BIA. 11 The core of the new procedure was called the ‘case management system.’’ 

Among other things, the new system made single-member decisions the norm rather 

than the exception and simultaneously introduced the concept of the ‘‘affirmance 

without opinion’’ (AWO). 

As to the former, the new regulation requires all BIA decisions to be rendered by 

single members rather than by three-member panels, unless the case falls within 

one of six specific categories. The case categories in which the regulation permits 

the Board to convene three-member panels are (1) inconsistent rulings among immigration judges; (2) a need for a precedential decision; (3) a decision ‘‘not in conformity with the law;’’ (4) a ‘‘major national impact;’’ (5) an immigration judge’s finding of fact that was ‘‘clearly erroneous;’’ or (6) a desire to reverse the immigration 

judge’s decision. 12

The AWO, also designed to save the time of the BIA members and their staff, entails affirming the opinion of the immigration judge but without giving reasons for 

the decision. The Attorney General’s regulation, in fact, expressly forbids the BIA 

from giving reasons for any of its decisions whenever a single Board member ‘‘determines’’ that the immigration judge reached the right result, that any errors by the 

immigration judge were harmless, and that the issues are either ‘‘squarely controlled’’ by precedent or not ‘‘substantial’’ enough to warrant a written opinion. 13

The combination of the two changes means that a large number of BIA decisions 

are both single-member and without opinion. 

The 2002 regulation contained another highly controversial element. It provided 

that, within six months of the start of the new system, the authorized size of the 

Board would be reduced from 23 members to eleven. 14 This marked the first time 

in the then 62-year history of the BIA that any Attorney General had removed any 

member from the Board. Coming at the same time that the Attorney General was 

justifying the introduction of affirmances without opinion and the expanded use of 

single-member decisions as ways to increase productivity and thereby reduce the 

backlog, the decision to cut the number of BIA member positions in half was puzzling. Perhaps more important, neither the rule itself nor any other announcement 

specified concrete criteria for determining which BIA members would be removed 

from the Board. 15 When the Attorney General announced the names of the ‘‘reassigned’’ Board members, it was clear that the selections had been ideological; those 

with the voting records most favorable to noncitizens were the ones chosen for reassignment. 16 Moreover, during the months between the Attorney General’s announcement that some members would be reassigned and the announcement of actual names, the percentage of cases in which particular members ruled in favor of 

the noncitizen dropped precipitously. 17 In 2006 Attorney General Alberto R. 

Gonzales then restored four positions to the BIA. 18 That move brought the Board 

membership to its current total of 15 and in effect enabled the Attorney General 

to replace four of the reassigned members with individuals of his own choosing. 

Finally, partly in response to judicial criticisms described below, Attorney General 

Gonzales convened a team to review and evaluate the EOIR. At the same time he 

issued a public memorandum to the immigration judges and the BIA communicating 

44 

19 83 Interpreter Releases 122 (Jan.17, 2006). 20 83 Interpreter Releases 1725 (Aug. 14, 2006). 21See 72 Fed. Reg. 35510 (June 28, 2007). 22 Id. at 35511, 35512, Canon XV of each Code. 23 U.S. Dept. of Justice, Measures to Improve the Immigration Courts and the Board of Immigration Appeals (Aug. 9, 2006). 24 Item 11, id., authorizes a review of the process for filing complaints concerning ‘‘inappropriate conduct’’ but not complaints concerning ‘‘poor quality’’ decisions. 25 Item 1, id. 26The proposed rule is in 73 Fed. Reg. 34654 (June 18, 2008), amending 8 C.F.R. § 1003. 27 Jaya Ramji-Nogales et al, Refugee Roulette: Disparities in Asylum Adjudication, 60 Stan. 

L. Rev. 295, 353, 357–59 (2007). 28See especially the fine empirical study by John R.B. Palmer, The Nature and Causes of the 

Immigration Surge in the Federal Courts of Appeals: A Preliminary Analysis, 51 New York L. 

School L. Rev. 13 (2006–07). 29 E.g., Recinos de Leon v. Gonzales, 400 F.3d 1185, 1187 (9th Cir. 2005). Some of the harshest 

language has come from the Seventh Circuit. See, e.g., Zhen Li Iao v. Gonzales, 400 F.3d 530, 

533–35 (7th Cir. 2005). 

his expectations concerning the quality of decisions and professional demeanor. 19

He declined to release the findings of his review team, but he did announce a series 

of measures to enhance the professionalism of the adjudicators. 20 One of those steps 

was to issue Codes of Conduct for immigration judges and BIA members. 21 To those 

who had hoped the Attorney General would restore the independence of the immigration judges and the BIA, the departmental announcement and accompanying 

Codes proved disappointing. The Codes expressly authorize immigration judges and 

BIA members to engage in ex parte communications with Justice Department personnel concerning pending cases, 22 thus exacerbating the likelihood of departmental 

pressure on adjudicators to reach particular outcomes. In addition, item 7 of the Attorney General’s 22-point plan to improve EOIR calls for the Justice Department’s 

Office of Immigration Litigation (OIL), which is the office that argues the government’s side in the courts of appeals, ‘‘to report adjudications that reflect immigration judge temperament problems or poor Immigration Court or Board quality.’’ 23

There is no analogous provision for the noncitizen or his or her attorney to report 

‘‘poor quality.’’ 24 The same plan contemplates ‘‘performance evaluations’’ for immigration judges and BIA members. 25 Although the memorandum is not explicit, a 

large number of OIL complaints of ‘‘poor quality’’ decisions by a particular adjudicator would presumably be considered in the preparation of the performance evaluation. Since OIL is more likely to consider a decision to be of ‘‘poor quality’’ when 

the government loses than when it wins, and since there is no analogous mechanism 

for the noncitizen to file complaints of ‘‘poor quality,’’ the system further encourages 

adjudicators to favor the government side. 

In June 2008, Attorney General Michael B. Mukasey announced changes designed 

to cut back on the number of affirmances without opinion. 26

The overall impact of the 2002 reforms is hard to gauge conclusively. By several 

identifiable measures, the performance of EOIR has badly deteriorated since the reforms were initiated. There are logical reasons to attribute the deterioration to those 

reforms, though cause and effect are of course difficult to prove scientifically. Harder 

still is linking particular adverse performance measures to particular components 

of the 2002 reforms. The following will describe some of the recent trends: 

First, immediately after the 2002 reforms went into effect, the BIA, not surprisingly, decided a much higher percentage of its cases through single-member dispositions; that trend coincided with the BIA reversing a dramatically lower percentage 

of immigration judge opinions, both in asylum cases specifically and in all removal 

cases combined. 27 Since the vast majority of appeals to the BIA are by noncitizens 

challenging orders of removal, these changes in outcomes mean that immediately 

after the 2002 reforms the probability of a noncitizen prevailing on appeal to the 

BIA dropped markedly. Second, immediately after the reforms there was a spectacular increase in the number of petitions for review of BIA decisions filed in the 

courts of appeals—both in absolute terms and as a percentage of BIA removal orders. The massive impact of this increased caseload on the courts, the U.S. attorneys, and on DHS itself is now a familiar problem that has been thoroughly documented elsewhere. 28 Third, the courts of appeals have issued numerous opinions 

not only reversing the BIA, but adding uncharacteristically scathing comments 

about both the quality of the immigration judge and BIA opinions and the professional demeanors of a small number of immigration judges. Often the criticism is 

a combined one, chastising the immigration judge for an inexplicable result and the 

BIA for affirming it without opinion. 29

There are many possible explanations for the emergence of these problems immediately following the 2002 reforms. The combination of far more single-member deciVerDate Aug 31 2005 13:42 Mar 11, 2009 Jkt 000000 PO 00000 Frm 00048 Fmt 6633 Sfmt 6621 H:\WORK\IMMIG\092308\44611.000 HJUD1 PsN: 44611
45 

30See Ramji-Nogales et al, note 22 above, at 383 (quoting Judge Walker). 31 EOIR Fact Sheet (Sept. 15, 2004). 32See Press Release, Attorney General Alberto R. Gonzales Outlines Reforms for Immigration 

Courts and Board of Immigration Appeals (Aug. 9, 2006). 

sions, the widespread use of affirmances without opinion, and the threats or at least 

perceived threats to the job security of the immigration judges and the BIA members could well be responsible. The prevailing view among many immigration 

judges, BIA members, and immigration practitioners that EOIR is badly underresourced very likely is also a large part of the explanation, as Judge Walker, of 

the Court of Appeals for the Second Circuit, has suggested. 30 The Justice Department has denied that the increased rate of appeals to the courts reflects a diminished quality of the BIA decision-making. The Department has speculated that by 

speeding up its decisions the BIA has reduced the amount of time that a noncitizen 

can buy with a frivolous BIA appeal and, therefore, has increased the incentive to 

delay removal by appealing to the courts. 31 This last theory seems highly unlikely, 

because since 1996 the filing of a petition for review no longer triggers an automatic 

stay of removal; special permission to remain pending review is required, and courts 

are loathe to grant such permission in cases they consider frivolous. Moreover, if 

anything, one would expect that, all else equal, someone who had spent a lengthy 

period in the United States already (as was true in the past when BIA appeals were 

taking longer) would have deeper roots and therefore a greater incentive, not a lesser one, to further prolong his or her future stay through a judicial appeal. 

The most likely explanation is that the problems have stemmed from a combination of the 2002 reforms and persistent under-resourcing of the EOIR. For one 

thing, there is no other apparent explanation for the coincidence in timing; all of 

these problems emerged immediately after the reforms went into effect. For another, 

as the remainder of this Statement will explain, there are logical reasons to expect 

all of the reforms just described, as well as the continuing under-resourcing of 

EOIR, to have precisely the adverse effects just discussed. 

The prohibition on the Board giving reasons for its decisions seems especially likely to have all these effects—a much lower chance of a noncitizen winning a BIA appeal, a much higher probability that a person who loses will seek judicial review, 

and a much higher number of poorly thought out BIA decisions. First, while 

affirmances require no giving of reasons unless they fall within one of the designated exceptions, reversals always require opinions. And opinions with defensible 

reasons take time to write. BIA members with staggering caseload demands and so 

little time per case therefore have a real incentive to affirm rather than reverse. 

The Attorney General’s recent introduction of performance evaluations for both immigration judges and BIA members 32—evaluations that will undoubtedly include 

judgments about productivity—enlarge that incentive further. Moreover, a reasoned 

opinion requires the Board member to consider the losing side’s argument with 

some care; without it, affirmance without adequate attention becomes easier. In addition, the very process of writing an opinion forces the writer to think through 

whether his or her conclusion really is consistent with the evidence and the law. 

For all these reasons, a decision without explanation naturally makes it easier for 

the BIA to casually affirm an immigration judge’s removal order and easier to reach 

a conclusion without adequate thought. Once such a decision is handed down, the 

appellant also has no way to know the reasons for the decision, less confidence that 

the decision was correct, and, therefore, a greater incentive to seek judicial review. 

In turn, the reviewing court, not having an opinion to review, has to spend time 

doing what the BIA should have done, has less confidence in the BIA decision, and 

has a greater inclination to reverse and remand to the BIA for further consideration 

or explanation. The cursory nature of the BIA review might matter less if one could 

be confident that the immigration judges were correct. But the immigration judges 

operate under similar time pressures and resource shortages that inevitably compromise their abilities to give their cases full consideration. Finally, reasoned BIA 

opinions provide guidance not only to the appellants whose cases they are deciding, 

but also (at least for precedential decisions) to immigration judges and to DHS officials. When precedential and other reasoned decisions are scarce, DHS officials and 

immigration judges frequently have to guess at whether a given decision will meet 

the BIA’s approval. 

For similar reasons the increased reliance on single-member decisions (not just 

decisions without reasons) can be expected to decrease the attention a case will receive, increase the error rate, and, therefore, increase the rate of further appeals 

to the courts. With three member-panels there is less chance of one person missing 

an immigration judge error. The chance that one individual with a strong ideology 

(in either direction) will reach an extreme result that the Board as a whole would 

46 

33Stephen H. Legomsky, Deportation and the War on Independence, 91 Cornell L. Rev. 369 

(2006). 

not have countenanced is reduced. The members are able to deliberate. There will 

be more confidence that the appeal was adequately considered. There is opportunity 

for a dissenting opinion that can help guide the future development of the law. 

Since many of the BIA cases are argued pro se (i.e., by unrepresented noncitizens), 

and therefore without legal briefs, there is a particular need for some exchange of 

ideas. And the enormity of the interests at stake—especially in cases of long-term 

lawful permanent residents with family and other roots in the community, or in asylum cases where an erroneous result can lead to death, torture, or other persecution—combined with the ever expanding categories of cases in which Congress has 

withheld judicial review, makes the fairness and thoroughness of the administrative 

appellate process critical. 

Apart from single-member decisions and affirmances without opinions, the events 

of 2002 and the subsequent changes announced in 2006 also brought home to both 

immigration judges and the BIA how fragile their job security can become when 

they rule in favor of the noncitizen and against the government. The reassignments 

that followed the 2002 announcement are the clearest threat to job security. The 

combination of allowing OIL to file compaints about ‘‘poor quality’’ decisions, withholding the same right from noncitizens and their attorneys, and performance evaluations that likely reflect those complaints send additional signals to immigration 

judges and BIA members that ruling in favor of the government and against the 

noncitizen is the safest way to secure one’s job. I have written elsewhere about the 

great dangers that this insecurity poses for the decisional independence of the immigration judges and the members of the BIA, and I respectfully refer the subcommittee to that writing for fuller treatment of the independence issue. 33 For 

present purposes, a summary will suffice. 

The clearest benefit of judicial independence is procedural fairness. People who 

adjudicate cases need every incentive to reach their decisions honestly. They must 

base their findings of fact solely on the evidence before them and their legal conclusions solely on their honest interpretations of all the relevant sources of law. They 

must not be encouraged to base their decisions on which outcome they think is favored by the person who is in a position to fire them. No one would want his or 

her case to be decided by someone who knows in advance that a decision in their 

favor could be hazardous to the adjudicator’s job. Decisional independence is also 

essential to protecting unpopular individuals, minorities, and points of view. It is 

necessary as well to fostering public confidence in the integrity and accuracy of the 

justice system. 

To sum up: The main components of the 2002 EOIR reforms were making singlemember BIA decisions the norm; introducing BIA affirmances without opinion; and 

eliminating the job security, and therefore eroding the decisional independence, of 

both immigration judges and the BIA. The last measure was reinforced by the asymmetrical complaint procedure, and the performance evaluation provisions, of the 

2006 Justice Department announcement. Immediately following the 2002 reforms, 

several things happened: The BIA began to affirm immigration judge removal orders 

with greater frequency; a much higher percentage of those whom the BIA ordered 

removed filed petitions for review with the courts of appeals; and the courts began 

issuing a stream of opinions chastising immigration judges and the BIA for both 

poor quality work and, on several occasions, unprofessional conduct of selected immigration judges. There is no way to prove cause and effect conclusively, but both 

the absence of plausible alternative explanations and the presence of logical reasons 

to expect the reforms to produce these results make it highly likely that these serious problems are the product of the 2002 reforms and insufficient resourcing of 

EOIR. 

These problems suggest several reforms. First, in my view, EOIR resources need 

to be substantially increased to reflect the realities of their large caseloads, the complexities of many of the cases, the often lengthy hearing transcripts and other record 

evidence that must be reviewed, and the grave consequences of error. Both the number of adjudicators themselves (immigration judges and BIA members) and their 

staff support needs to increase. Second, the categories of cases in which single Board 

members may hand down decisions on behalf of the entire BIA should be minimized; 

three-member panels should once again be the norm for the vast majority of the 

Board’s cases. Third, the BIA should never be permitted to decide an asylum case, 

and should rarely be allowed to do so in other removal cases, without providing at 

least basic reasons for its decision. The reasons need not be elaborate, but they 

should provide enough clarity to show that the arguments of the losing side were 

seriously considered and to give the opposing parties, and the reviewing court, 

47 

34 8 C.F.R. section 1003.1(h) (2008). 

enough information to understand the basis for the decision. For this purpose, it will 

often be enough to incorporate by reference the reasoning of the immigration judge, 

as long as the opinion leaves clear which parts of that reasoning formed the basis 

for the affirmance if there were multiple parts. Fourth, the decisional independence 

of the immigration judges and the BIA should be restored. This means not only prohibiting the ‘‘reassignment’’ of immigration judges or BIA members other than for 

misconduct, but also ensuring that any performance evaluation system that could 

affect an adjudicator’s job security be based on data that are fair and symmetrical. 

In particular, either complaints of ‘‘poor quality’’ decisions should not be part of the 

record, or they should be invited from both sides rather than solely the government 

side. In addition, the provisions in the Codes of Conduct that authorize the adjudicators to confer ex parte with Justice Department officials concerning pending cases 

should be stricken. Such ex parte communications contradict the most basic principles of procedural fairness. Moreover, the Attorney General already possesses the 

power to reverse BIA decisions with which he or she disagrees; 34 in addition to 

being inappropriate, therefore, ex parte pressures by the Justice Department are not 

even necessary. Given the events of the past several years, it seems doubtful that 

even these reforms would provide adequate reassurance to the immigration judges 

and the BIA members if the reforms are announced by the Department of Justice 

itself. Adjudicators would be well aware that those policy reforms could be reversed 

at any time. The above mechanisms for restoring decisional independence should 

therefore be enacted into law by Congress. 

Thank you once again for the privilege of testifying before you. 

Ms. LOFGREN. I think we are going to see if we can get our questions in before we go to vote, since only about 50 of our colleagues 

have shown up yet. And I will begin. 

Professor Long, in your testimony, you indicated several indices 

of poor judicial performance and even patterns of misconduct within the immigration court system. And one of the things you mentioned is a series of Federal appellate court rulings that sharply 

criticized the immigration courts. 

Can you just briefly describe what some of these criticisms were 

and how prevalent these decisions were? 

Ms. LONG. Well, basically, court of appeals judges were seeing 

several things. Number one is that the judges were not ruling and 

treating those who appeared before them with proper respect. 

Number two, that prejudices of the judges appeared to be getting 

in the way of the decisions, so that often there was not sufficient 

support in the record to support the decisions being made. 

Ms. LOFGREN. I wonder if either one of you or both of you could 

provide a sample of some of the opinions to the Subcommittee subsequent to this hearing, so we can get a flavor systematically of 

what the circuit courts are concerned about. 

Now, Professor Legomsky, you indicated concern about the independence of the judiciary. And it appears that the system, as it is 

operating now, really is weighted toward the prosecution, according 

to your testimony. 

I mean, other than the ex parte communications, why would that 

be, in terms of the current—— 

Mr. LEGOMSKY. Well, I think that the affirmances without opinion are strongly weighted toward the government side. For one 

thing, it is only affirmances of the I.J. that can be handed down 

without giving reasons, not reversals. 

So if you put yourself in the position of a BIA member who is 

tremendously backlogged—and I agree that the fault lies not with 

the BIA members but with the under-resourcing—they are tremenVerDate Aug 31 2005 13:42 Mar 11, 2009 Jkt 000000 PO 00000 Frm 00051 Fmt 6633 Sfmt 6601 H:\WORK\IMMIG\092308\44611.000 HJUD1 PsN: 44611
48 

dously backlogged, they are probably going to be judged on their 

productivity, because there are performance—— 

Ms. LOFGREN. So if you say ‘‘no,’’ you don’t have to write an opinion. 

Mr. LEGOMSKY. Exactly. So if you have a choice between deciding 

‘‘yes’’ and having to write an opinion and saying ‘‘no’’ and you don’t, 

there is a tremendous bias toward not having to do it. 

In addition to that, so many of the people who appear before the 

BIA are not represented by counsel. They are not in a position to 

identify with clarity any mistakes that the immigration judge, who 

is also under tremendous time pressure, might have made. The 

government, in contrast, is represented by counsel, and so the system is biased in that respect as well. 

Ms. LOFGREN. In terms of the ex parte communication, ordinarily 

at a judicial proceeding that is a big no-no. Would moving the court 

system into some more independent environment help address that 

issue? 

Mr. LEGOMSKY. I think it would. It would certainly eliminate any 

job insecurity that might result from worrying whether your boss 

is going to fire you for going against the boss. 

The point I would emphasize here is that what makes immigration judges and BIA members not unique, because there are some 

other judges in this position, but certainly distinctive is that the 

cases they are deciding are cases in which there are two opposing 

parties and one of the opposing parties is your boss. So there is a 

tremendous pressure to not anger the person who holds the authority to non-renew your contract. 

Ms. LOFGREN. That obviously makes a lot of sense. 

Mr. LEGOMSKY. Oh, I am sorry, can I make one other point on 

that, as well? 

Ms. LOFGREN. Of course. 

Mr. LEGOMSKY. At a time when the INS, the former INS, was in 

the Department of Justice, there was at least some benefit to keeping EOIR within Justice, because then the attorney general could 

maintain policy coherence, having INS and EOIR in the same department. I don’t think that was ever a large consideration, but at 

least there was some benefit. 

Now that the INS doesn’t exist and the EOIR is under a whole 

different department, I am not sure that even that benefit exists. 

So my recommendation would be that EOIR either be made into a 

separate article from immigration court or otherwise be given the 

independence that it needs. 

Ms. LOFGREN. I remember when the Republicans were in the majority, there was a proposal that Bill McCollum of Florida was pursuing. And it sort of dribbled away, but the Republican majority 

was very interested in pursuing that at the time. And it might be 

something we would look at next year. 

Mr. King, I would invite you, since we still have time to get over 

there but only if we are prompt, to do your questions at this point. 

Mr. KING. Well, thank you, Madam Chair. And I will keep my 

word and not use any more time than you did. 

And I will direct my first question—well, first, to Professor 

Legomsky, I mean, isn’t it true that the government’s side of this, 

all the way through the appeals process, from the I.J. to the BIA 

49 

to the circuit and potentially to the Supreme Court, that if they 

lose at any level, what is the recourse of the government? 

Mr. LEGOMSKY. If the government loses at the I.J. level, it has 

the same right to appeal to the BIA that the immigrant does. 

If the government loses at the BIA level, it is true that the government has no right to appeal to the courts, but it doesn’t need 

to do that because the attorney general can unilaterally reverse the 

decision. 

Mr. KING. And then, in your analysis of this in making your recommendation to this Committee, did you evaluate or make recommendations as to statutory changes that Congress might make 

to reduce the number of appeals as an alternative to expanding the 

number of judges? 

Mr. LEGOMSKY. I am sorry, I am not certain that I understand. 

Mr. KING. Let me try again. There are certain parameters that 

allow for appeal. If Congress would narrow those parameters, they 

would theoretically reduce the number of appeals. In fact, that goes 

beyond theory; it would be a fact that it would reduce the number 

of appeals. 

So have you evaluated those parameters and made any recommendations on what we might do to narrow them so that we 

could reduce the number of appeals, rather than increasing the 

number of judges? 

Mr. LEGOMSKY. I understand now; I am sorry. In order to answer 

that question, I have to explain that Congress has already dramatically narrowed the number of cases in which it is even possible to 

file an appeal. Asylum cases today—— 

Mr. KING. I don’t—— 

Mr. LEGOMSKY. It would be very difficult to find any additional 

categories, I think. 

Mr. KING. Oh, I would submit I could probably do that, Professor. 

But I would just illustrate that. I don’t know that there is a limit 

to how narrow we might be able to make it, as a matter of public 

policy. But I do agree that we need more judges and we need to 

have a legitimate evaluation system that moves quickly. 

So I want to put that part into the record, and I want to thank 

the witnesses for their testimony. I yield back the balance of my 

time and head over to vote. 

Ms. LOFGREN. I will thank both witnesses. 

And we will keep the record open for 5 days if there are additional questions. We would ask that you respond promptly. 

And we thank you very much for your very useful testimony. 

This hearing is adjourned. 

[Whereupon, at 11:46 a.m., the Subcommittee was adjourned.] 

51 

A P P E N D I X 

MATERIAL SUBMITTED FOR THE HEARING RECORD

PREPARED STATEMENT OF THE HONORABLE ZOE LOFGREN, A REPRESENTATIVE IN

CONGRESS FROM THE STATE OF CALIFORNIA, AND CHAIRWOMAN, SUBCOMMITTEE ON

IMMIGRATION, CITIZENSHIP, REFUGEES, BORDER SECURITY, AND INTERNATIONAL

LAW

On July 28, 2008, the Department of Justice’s Office of Professional Responsibility 

and the Office of the Inspector General issued a report showing that three high-level 

Department of Justice officials, Kyle Sampson, Jan Williams, and Monica Goodling, 

violated Department of Justice policy and federal law by considering political or 

ideological affiliations in soliciting and evaluating candidates for [Immigration 

Judges], which are Schedule A career positions, not political appointments. Further, the evidence demonstrates that their violations were not isolated instances 

but were systemic in nature. 

Based on this report, it appears Republican credentials, rather than knowledge 

of and experience in immigration law, became the main criterion in hiring Immigration Judges and members of the Board of Immigration Appeals. All three named officials only considered candidates referred to them by the White House, Republican 

members of Congress, Republican political appointees, the Federalist Society, the 

Republican National Lawyers Association, and individuals with Republican party affiliations, while ignoring candidates sent to them by the Executive Office for Immigration Review (EOIR). 

This politicization of EOIR occurred at a time when the Immigration Courts and 

the Board of Immigration Appeals (BIA) were also suffering from systemic problems 

created by former Attorney General Ashcroft’s ‘‘streamlining’’ plan. 

In 2002, then-Attorney General John Ashcroft promulgated a rule that 

‘‘establishe[d] the primacy of the streamlining system for the majority of the cases.’’ 

The 2002 streamlining regulation made single member decisions and affirmance 

without opinions (AWO) ‘‘the norm rather than the exception.’’ 

At the same time, Attorney General Ashcroft also reduced the size of the BIA 

from 23 members to 11. Several analyses of the eliminated BIA members found that 

‘‘the selections had been ideological; those with the voting records most favorable 

to noncitizens were the ones chosen for reassignment.’’ 

The result of the Ashcroft streamlining plan was a significant increase in the 

number of BIA decisions appealed to the federal courts of appeals. The courts of appeals not only reversed the BIA at a higher rate, but also ‘‘add[ed] 

uncharacteristically scathing comments’’ about the poor quality of IJ and BIA decisions. 

Moreover, even as the Administration and Congress dedicated more resources to 

the arrest and detention of deportable non-citizens, both failed to commit a similar 

level of resources to the immigration courts, which is responsible for determining 

whether certain non-citizens are in fact deportable. The failure to devote adequate 

resources to the immigration courts has led to increased caseloads at all levels of 

the removal process, at the immigration courts, the BIA, and the federal courts. 

EOIR has been too long ignored and the result has been politicization of the immigration courts, so-called ‘‘streamlining,’’ and inadequate resources. I look forward to 

hearing from our witnesses today so that we may finally begin to address these very 

serious problems in the administrative removal process, which is the heart of our 

immigration enforcement system. 

f 

52 

PREPARED STATEMENT OF THE HONORABLE JOHN CONYERS, JR., A REPRESENTATIVE

IN CONGRESS FROM THE STATE OF MICHIGAN, AND CHAIRMAN, COMMITTEE ON THE

JUDICIARY

The Executive Office for Immigration Review (EOIR), which is part of the Justice 

Department, houses the Immigration Courts and the Board of Immigration Appeals 

(BIA). These are not an independent judiciary, but are administrative law judges 

appointed and employed by the Department of Justice. 

EOIR’s role in ensuring fairness is especially important, given that less than half 

of those brought before the courts are represented by attorneys. 

This is the first oversight hearing that I can recall since 2002. Since then, EOIR 

has been weakened by politicized hiring by many of the same culprits who we are 

familiar with from the US Attorney hiring scandal. The system has also felt the 

stress of a continuing lack of resources and manpower. 

First, the politicization of the Justice Department. 

We are all by now intimately familiar with the havoc wreaked by the former inhabitants of the Office of the Attorney General, as Kyle Sampson, Monica Goodling, 

and others tried to change the Justice Department into an extension of the Bush 

White House political office. 

People were blacklisted or driven from office, while attorneys who were willing to insert partisan politics into the Department’s work were rewarded and 

promoted. Politics did not just taint the treatment of presidentially-appointed 

federal prosecutors, but extended to the immigration courts as well. 

Republican credentials, rather than an expertise in immigration law, became 

the main criteria in hiring immigration judges and BIA members. Politicization 

of these positions clogged the entire system, creating major bottlenecks and 

wreaking havoc on the immigration courts’ workload. The qualified candidates 

that EOIR forwarded to the Attorney General’s office for consideration were 

simply ignored, while the AG’s staff desperately sought Republican loyalists 

who they could shoehorn into judgeships whether they knew anything about immigration or not. 

And at the BIA, the number of appellate judges was cut from 23 members 

to 11 since our last oversight hearing. Independent analysis shows that the 

members with the voting records most favorable to the non-citizens were the 

ones chosen for demotion. Not surprisingly, the percentage of reversals plummeted. And there was a significant increase in the number of appeals to the 

federal circuit courts, which suffered an immigration backlog as well. 

So, today, I am interested in hearing not just how DOJ is planning to prevent 

future politicization, but also to learn ‘‘who was watching the store?’’ 

Additionally, I want to know how the witnesses expect 215 Immigration Judges 

to handle a caseload of over 300,000 cases a year. 

That’s 27 cases disposed of every week, without taking any vacation or sick 

days, and without taking the time to issue written opinions. 

When coupled with the crushing workload of the shrunken BIA, these statistics make me wonder how any immigration enforcement is done in this country. 

In conclusion, throughout the hearings that we have held this year, we have 

heard a lot in the last year about immigration judges. 

Some have even suggested that the immigration judges are some kind of 

cabal of liberals, bent on using every ounce of discretion we give them to allow 

dangerous aliens remain in the country. 

That is not borne out by the facts. 

They are hardworking, but they are swamped. 

Most of them, before the Bush Administration swung into action, were experts in the immigration field, devoted to neutrally applying our laws. 

They deserve better than to be starved of resources and litmus tested for 

partisan credentials. 

f 

53 

PREPARED STATEMENT OF MARY M. SCHROEDER, JUDGE, UNITED STATES COURT OF APPEALS, NINTH CIRCUIT

My name is Mary M. Schroeder and I am a Judge of the United States Court of 

Appeals for the Ninth Circuit. From December 2000 through November, 2007, I 

served as the Chief Judge of the Circuit, the nation’s largest federal circuit that 

handles approximately half of the entire workload of the Country in petitions for 

review of the decisions of the Board of Immigration Appeals. My colleagues in the 

Second Circuit handle roughly thirty percent, as our two Circuits contain the most 

important ports of entry to this Country. My home chambers are in Phoenix Arizona, where I practiced law and served on the Arizona Court of Appeals before being 

appointed to the federal bench. As an Arizonan, I am familiar on a daily basis with 

controversies surrounding immigration in our nation. 

I wish to thank you for having this hearing and for asking me to present my 

views today on the important subject of the administration of justice in the immigration field. 

Immigration cases in our court are appeals from final orders of deportation or removal. For years they constituted less than 10% of our total caseload. Beginning in 

approximately 2002, however, when the Executive Branch shrank the pool of available immigration judges and members of the Board of Immigration Appeals, our appeals ballooned dramatically. Over a course of a few years, we went from 900 petitions for review filed in 2001, to more than 6,000 in 2005. The principal reason for 

this dramatic increase was the effort to ‘‘streamline’’ immigration appeals to the BIA 

with one judge, rubber stamp orders affirming the immigration judge decisions with 

blanket approval. This practice meant that to obtain any meaningful appellate review, litigants had to appeal to the Court of Appeals. 

This ‘‘streamlining’’ in turn increased the number of issues for us to decide exponentially, because there was no administrative appellate review to determine which 

were the dispositive issues. Thus every single issue decided by the immigration 

judge in each streamlined case would have to be reviewed to determine its validity 

or our jurisdiction to review it. Therefore, without meaningful BIA review, both the 

number of appeals to our court and the number of issues to decide in each appeal 

multiply. 

The immigration load threatened intolerable delay in the processing of our remaining civil case load until our court determined that the immigration crisis in the 

Executive Branch should not result in the failure of our court to keep up with important cases in other areas, particularly in intellectual property and technology, 

criminal sentencing, and death penalty review. The result has, however, been a 

delay in the processing of immigration cases that can best be redressed, in my view, 

by Congress addressing the need for efficient administration review of deportation 

cases. 

The current situation is not fair to anyone. Aliens in the United States who may 

qualify for relief from deportation should have their fate decided promptly, and 

those who do not have any plausible justification for remaining in the country lawfully should understand their position as well. Families should not live in uncertainty and fear for years on end. Employers should know the status of their employees caught up in deportation proceedings, and the public has a right to know that 

immigration laws are being enforced. 

As expressed in the platforms of both political parties, there is everywhere a sense 

that we need overall comprehensive immigration reform. I can not speak to the policies that Congress should enact. My only concern is with the administration of justice in the court system. As a resident of Arizona, I know that the lack of coherent, 

efficient immigration law enforcement has an impact on all of our courts, state and 

federal, in this key border state. The lack of coherent national policy has resulted 

in local law enforcement officials taking immigration enforcement into their own 

hands, and it has also multiplied border related prosecutions in both state and federal courts. I have been on panels with the Chief Justice of Arizona, Ruth McGregor, 

the Chief Federal District Judge of Arizona, John Roll, state Superior Court judges 

and federal magistrate judges. All express acute frustration with the current situation. Our U.S. Attorney in Arizona, Diane Humetewa, has also spoken of the need 

for resources at every level of the system, from the immigration courts, prosecutors, 

trial courts, to the Court of Appeals. 

The first step to fair and efficient administration of our laws lies in the Immigration Court and the Board of Immigration Appeals. At the present time, those bodies 

are completely the creation of regulations, and are subject to potentially abusive 

practices in hiring and firing. 

During the time that I was Chief Judge of the Ninth Circuit we made it a point 

to meet periodically with judges of the Immigration Court and the Board of ImmiVerDate Aug 31 2005 13:42 Mar 11, 2009 Jkt 000000 PO 00000 Frm 00057 Fmt 6602 Sfmt 6621 H:\WORK\IMMIG\092308\44611.000 HJUD1 PsN: 44611
54 

gration of Appeals. Our then Clerk of Court, Cathy Catterson, and I traveled to 

Washington and met more than once with the Department of Justice in an effort 

to encourage more resources for administrative review of deportation orders, and to 

offer our support of the courts in obtaining those resources and in improving the 

quality of the judges occupying those positions. We did not meet with a great deal 

of success. 

While I no longer speak for the judges on our Court, I do speak from considerable 

experience. What is needed is a codification of the administrative processes, through 

legislation that statutorily establishes an immigration court and a board of immigration appeals as permanent bodies, and that also establishes tenure and standards for those who occupy those significant opinions. The future lives of many families and individuals as well as the quality of life for all of us in this country depend 

to a great degree on whether we succeed in achieving an independent, fair and efficient system of immigration law enforcement. 

I thank the Committee for having this hearing that has been inspired by the Department of Justice’s report on some of the shortcomings in the current system. 

f 

55 

PREPARED STATEMENT OF DENNIS JACOBS, CHIEF JUDGE, 

UNITED STATES COURT OF APPEALS, SECOND CIRCUIT


Jacobs-1.eps
56 


Jacobs-2.eps
57 

Æ 


Jacobs-3.eps