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S. HRG. 109–537

IMMIGRATION LITIGATION REDUCTION

HEARING

BEFORE THE

COMMITTEE ON THE JUDICIARY 

UNITED STATES SENATE

ONE HUNDRED NINTH CONGRESS

SECOND SESSION

APRIL 3, 2006

Serial No. J–109–67

Printed for the use of the Committee on the Judiciary

(

(II)

COMMITTEE ON THE JUDICIARY 

ARLEN SPECTER, Pennsylvania, Chairman 

ORRIN G. HATCH, Utah 

CHARLES E. GRASSLEY, Iowa 

JON KYL, Arizona 

MIKE DEWINE, Ohio 

JEFF SESSIONS, Alabama 

LINDSEY O. GRAHAM, South Carolina 

JOHN CORNYN, Texas 

SAM BROWNBACK, Kansas 

TOM COBURN, Oklahoma 

PATRICK J. LEAHY, Vermont 

EDWARD M. KENNEDY, Massachusetts 

JOSEPH R. BIDEN, JR., Delaware 

HERBERT KOHL, Wisconsin 

DIANNE FEINSTEIN, California 

RUSSELL D. FEINGOLD, Wisconsin 

CHARLES E. SCHUMER, New York 

RICHARD J. DURBIN, Illinois 

MICHAEL O’NEILL, Chief Counsel and Staff Director 

BRUCE A. COHEN, Democratic Chief Counsel and Staff Director 

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C O N T E N T S 

STATEMENTS OF COMMITTEE MEMBERS 

Page

Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont, prepared 

statement .............................................................................................................. 91

Specter, Hon. Arlen, a U.S. Senator from the State of Pennsylvania ................. 1

WITNESSES 

Bea, Carlos T., Chief Judge, U.S. Court of Appeals for the Ninth Circuit, 

San Francisco, California .................................................................................... 7

Cohn, Jonathan, Deputy Assistant Attorney General, Civil Division, Department of Justice, Washington, D.C. ..................................................................... 27

Martin, David, Professor of Law, University of Virginia, Charlottesville, Virginia ....................................................................................................................... 28

Michel, Paul R., Chief Judge, U.S. Court of Appeals for the Federal Circuit, 

Washington, D.C. ................................................................................................. 2

Newman, Jon O., Senior Judge, U.S. Court of Appeals for the Second Circuit, 

Hartford, Connecticut .......................................................................................... 10

Roll, John McCarthy, District Judge, U.S. District Court for the District 

of Arizona, Tucson, Arizona ................................................................................ 12

Walker, John M., Jr., Chief Judge, U.S. Court of Appeals for the Second 

Circuit, New Haven, Connecticut ....................................................................... 5

QUESTIONS AND ANSWERS 

Responses of Jonathan Cohn to questions submitted by Senator Leahy ............ 40

SUBMISSIONS FOR THE RECORD 

American Bar Association, E. Anthony Figg, Chair, Washington, D.C., letter .. 44

American Intellectual Property Law Association, Michael K. Kirk, Executive 

Director, Arlington, Virginia, letter .................................................................... 46

Bea, Carlos T., Chief Judge, U.S. Court of Appeals for the Ninth Circuit, 

San Francisco, California, prepared statement ................................................. 48

Benson, Lenni B., Professor of Law, New York Law School, New York, New 

York and Stephen Yale-Loehr, Adjunct Professor, Cornell Law School, 

Myron Taylor Hall, Ithaca, New York, letter .................................................... 52

Center for Gender & Refugee Studies, University of California, Hastings 

College of the Law, Karen Musalo, Director, Stephen Knight, Deputy Director, and Leena Khandwala, New Voices Fellow, San Francisco, California, 

letter ...................................................................................................................... 56

Cohn, Jonathan, Deputy Assistant Attorney General, Civil Division, Department of Justice, Washington, D.C., prepared statement .................................. 60

Federal Circuit Bar Association, Kevin R. Casey, President-Elect, Washington, D.C., letter ............................................................................................... 71

Human Rights First, Maureen Byrnes, Executive Director, Washington, D.C., 

letter ...................................................................................................................... 73

Intellectual Property Owners Association, Marc S. Adler, President, Washington, D.C., letter ............................................................................................... 75

Kozinski, Alex, U.S. Circuit Judge, U.S. Court of Appeals for the Ninth 

Circuit, Pasadena, California, letter ................................................................... 77

Law professors and scholars who teach and study in the area of immigration 

law, joint letter ..................................................................................................... 79

Law school deans and legal scholars whose areas of scholarship include 

immigration law, joint letter ............................................................................... 88

Page

IV

Legal scholars in Pennsylvania whose areas of scholarship include immigration law, joint letter ............................................................................................. 94

Martin, David A., Professor of Law, University of Virginia, Charlottesville, 

Virginia, prepared statement .............................................................................. 99

Mecham, Leonidas Ralph, Secretary, Judicial Conference of the United States, 

Washington, D.C., letters .................................................................................... 108

Migration Policy Institute, Doris Meissner, Muzaffar A. Chishti, and Michael 

J. Wishnie, Washington, D.C., prepared statement .......................................... 115

Michel, Paul R., Chief Judge, U.S. Court of Appeals for the Federal Circuit, 

Washington, D.C., prepared statement and letters ........................................... 132

Newman, Jon O., Senior Judge, U.S. Court of Appeals for the Second Circuit, 

Hartford, Connecticut, prepared statement and letter ..................................... 147

New York Times, New York, New York, April 7, 2006, article ............................ 159

Noonan, John T., Jr., U.S. Circuit Judge, and Kim McLane Wardlaw, U.S. 

Circuit Judge, U.S. Court of Appeals for the Ninth Circuit, San Francisco, 

California, letter ................................................................................................... 160

People for the American Way, Ralph G., Neas, President and Tanya Clay, 

Director, Public Policy, Washington, D.C., letter .............................................. 164

Posner, Richard A., U.S. Circuit Judge, U.S. Court of Appeals for the Seventh 

Circuit, Chicago, Illinois, letter ........................................................................... 167

Retired judges of the courts of appeals, joint letter .............................................. 170

Roll, John McCarthy, U.S. District Judge, U.S. District Court for the District 

of Arizona, Tucson, Arizona, prepared statement ............................................. 172

Schroeder, Mary M., Chief Judge, U.S. Court of Appeals for the Ninth Circuit, 

Phoenix, Arizona, letter ....................................................................................... 178

Thomas, Sidney R., U.S. Circuit Judge, U.S. Court of Appeals for the Ninth 

Circuit, Billings, Montana, letter ........................................................................ 181

Walker, John M., Jr., Chief Judge, U.S. Court of Appeals for the Second 

Circuit, New Haven, Connecticut, prepared statement and letters ................. 184

U.S. Court of Appeals for the Federal Circuit, workload calculations, table ...... 200

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IMMIGRATION LITIGATION REDUCTION 

MONDAY, APRIL 3, 2006

U.S. SENATE, COMMITTEE ON THE JUDICIARY, Washington, DC. 

The Committee met, pursuant to notice, at 10:04 a.m., in room 

SD–226, Dirksen Senate Office Building, Hon. Arlen Specter, 

Chairman of the Committee, presiding. 

Present: Senators Specter, Sessions, and Cornyn. 

OPENING STATEMENT OF HON. ARLEN SPECTER, A U.S. 

SENATOR FROM THE STATE OF PENNSYLVANIA 

Chairman SPECTER. Good morning, ladies and gentlemen. The 

Judiciary Committee will now proceed with our hearing on the subject of judicial review of immigration matters. 

The Senate is currently considering legislation on immigration 

reform. It follows extensive hearings and a markup by this Committee. We have on the floor now what we call the Chairman’s 

mark or the Committee bill. We have proceeded under an expedited 

schedule where the Majority Leader wanted a bill on the floor on 

Tuesday of last week, and we had a very lengthy markup on Monday to complete action on the bill, except for the title on judicial 

review. And we kept that aside until we could make further inquiries to find out what we ought to be doing on judicial review and 

to hear from experts. 

My preference would have been to have approached the entire 

subject of immigration review with a more thorough analysis, 

which we have on the hearing process and on the so-called markup 

where the Committee sits down and goes over the text line by line 

to figure out what we ought to do. And there are, as you well know, 

very, very complex policy considerations on this bill at every turn. 

It is a highly emotional bill. There are those who want only border 

security, only enforcement, and there are others who want broader 

reform to accommodate the 11 million people who are in this country as undocumented aliens. 

The Committee bill provides to accommodate the 11 million people for a number of reasons, the most prominent of which is there 

is no way to round them up, detain them, deport them, and they 

are here. They are undertaking important jobs, and there is a 

heavy controversy on whether they are taking jobs that other 

Americans would fill or whether they are taking jobs other Americans would fill if the pay was higher. So there are lots of controversies. 

2

With respect to judicial review, we are considering the consolidation of all of the circuit appeals to the Federal circuit. That has 

drawn some objections on grounds that it is preferable to have the 

matters remain in the circuit courts where there are generalists 

who are at work. There is a very substantial imbalance, as you 

know, with the Ninth and Second Circuits having many more appeals than the other circuits. There are some suggestions. Judge 

Becker has made a suggestion that there be created something like 

the Multidistrict Panel to reassign cases. Judge Newman I understand has a suggestion for temporary assignments. And with you 

judges here today who have had a lot of experience in the field, we 

will be able to shed some light on that. 

We have a second panel which will take up additional questions 

as to what ought to be done with immigration judges, whether 

there ought to be reforms there, the Board of Immigration Appeal, 

and we will be asking you those questions as well. 

We have a practice of swearing in all witnesses, so I hope you 

will not mind. If you will rise and raise your right hand. Do you 

solemnly swear that the testimony you will give before the Judiciary Committee will be the truth, the whole truth, and nothing but 

the truth, so help you God? 

Judge MICHEL. I do. 

Judge WALKER. I do. 

Judge BEA. I do. 

Judge NEWMAN. I do. 

Judge ROLL. I do. 

Chairman SPECTER. Thank you. Our first witness will be the 

chief judge of the Federal Circuit, Judge Paul R. Michel. He has 

been on that court since 1988, appointed by President Reagan. In 

the interest of full disclosure, I will tell you that he was my chief 

of staff before he became a circuit judge. And in the interest of 

fuller disclosure, I will tell you he was an assistant district attorney in my office in Philadelphia. And in 1967, 1968, and 1969, he 

was, in my opinion, the most knowledgeable lawyer in America on 

constitutional procedure in the era of implementing Mapp and Miranda and lineups, et cetera. 

Judge Michel, you have a very extensive biography. It will be included in the record, but we appreciate your coming here today and 

look forward to your testimony. 

Under our Committee procedure, we have a 5-minute rule. To 

the extent you can accommodate that, we will—Senator Cornyn has 

just arrived. He used to be a judge. Senator Cornyn, would you 

care to make an opening statement? 

Senator CORNYN. Mr. Chairman, thanks for the opportunity, but 

I will pass. 

Chairman SPECTER. OK. Judge Michel, Chief Judge Michel. 

STATEMENT OF PAUL R. MICHEL, CHIEF JUDGE, UNITED 

STATES COURT OF APPEALS FOR THE FEDERAL CIRCUIT, 

WASHINGTON, D.C. 

Judge MICHEL. Good morning, Mr. Chairman. Thank you for the 

opportunity to testify. It is a great pleasure for me personally to 

be back in this building and this room. 

3

I testify primarily in my capacity as the chief judge of the Court 

of Appeals for the Federal Circuit. I am also, as you know, a member of the Judicial Conference and, along with my friend Chief 

Judge John Walker and five other judges, a member of the Conference’s Executive Committee. And indeed, I participated in the 

drafting of the two Conference letters which have been submitted 

to the Committee, and I agree with their content. 

However, rather than cover the policy aspects that are well covered in those two letters, I thought I could best contribute to the 

work of the Committee by concentrating on the capacity of the Federal Circuit to handle such a large increase in jurisdiction and 

caseload. 

If I might, I would like to first mention that I think that in many 

recent news articles and also in some of the letters sent by various 

people to the Committee, the notion that the Federal Circuit is a 

narrowly specialized court has been greatly overstated. I saw a 

news article published as recently as yesterday that said the Federal Circuit does patents and bankruptcy. Of course, it is entirely 

erroneous. We do no bankruptcy at all, and the patent cases make 

up a minority of our cases. 

I had sent the Committee a letter, and rather than spend more 

time on the extent to which we are not a narrowly specialized 

court, I might ask the Committee if the record could include my 

letter to the Committee of March 24th. It provides details about 

our actual jurisdiction. 

Chairman SPECTER. Without objection, your letter will be made 

a part of the record, Judge Michel. 

Judge MICHEL. Thank you kindly. 

Now, with respect to the workload, as the Committee knows, the 

present annual filings in the Federal Circuit Court of Appeals are 

about a thousand and a half. If the Chairman’s mark were to be 

enacted into law, that would grow and become something on the 

order of 13,500, perhaps more, since the immigration petitions for 

review have been steadily increasing—so a huge, more than tenfold 

increase. 

At present, we have 15 judges, and just to make a comparison, 

the Ninth Circuit, which has something like a third of the present 

petitions for review, has 47 judges. We have 15. The Ninth Circuit 

has 85 staff attorneys. We have four. The Ninth Circuit has over 

110 deputy clerks. We have 20. So when you multiply by a factor 

of 2 to 3 the Ninth Circuit resources, we would need essentially, 

as I indicated in my prepared testimony, to triple the size of our 

staff. That would also require the budget to be magnified at the 

level of 2 to 3 times, and we would also need the equivalent of another courthouse in order to accommodate all those additional staff 

members. 

I should add that even with that very large-sounding staff, the 

Ninth Circuit, according to reports, has had great difficulty in carrying its one-third or so of the national immigration caseload. I also 

see that the caseload is rapidly rising, and there is a big difference 

between how it was measured last September versus now. 

Another way to focus on this is how long a ramp-up period we 

would need. Even if we were given triple the budget, triple the 

staff, double the space, we do not have the capacity to surge in a 

4

short period of time to absorb that kind of resource. For example, 

our computer system could not be expanded to support the staff of 

400-plus or a caseload of on the order of 13,000 or 14,000. And certainly a transition period would be extensive, running into the 

order of a year and a half to 3 years, by my best estimate. 

Over the weekend, Senator, I tried to calculate the effect on the 

daily life of a member of our court if this increased caseload were 

given to us. I am down to 5 seconds, but, in essence, assuming that 

three-quarters of the immigration cases dropped off on the onejudge review, our workload would go from 240 judge dispositions 

per year to 1,500, about a 7-time increase. And even counting the 

three additional judges provided for in the Committee mark, and 

assuming only 1 hour to do the one-judge review, which I think is 

probably not an accurate assumption, but even assuming that, the 

effect on the time allowed to do everything on a case, from reading 

the briefs, master the case, decide the case, write the opinion and 

so forth, which greatly decrease. Right now we do about a case a 

day. So we have 8 or 10 hours on average to do all the different 

aspects of adjudicating a case. At the assumption of a 75-percent 

dropoff rate and one-judge review, the 8 hours per case would drop 

to an hour and a half. And I think realistically we could not even 

learn the case by reading the briefs in an hour and a half. The 

briefs always consist of several hundred pages, the records often of 

thousands of pages. It is just not humanly possible, even with increased staff resources and three extra judges, to keep up with this 

kind of a caseload. 

So I think what would happen would be that the backlog would 

swell rapidly, and the risk would also be incurred that the quality 

of the dispositions, both in non-immigration cases and immigration 

cases, might not be what it should be or what it is presently. 

I thank the Committee for the chance to appear, and I would be 

happy to respond to questions when the time comes. 

[The prepared statement of Judge Michel appears as a submission for the record.] 

Chairman SPECTER. Well, Judge Michel, what you are saying, in 

essence, is that it would immediately overload, really swamp your 

Federal Circuit. 

Judge MICHEL. It would, Senator, under any set of assumptions 

that I have been able to make, because the combined one-judge review and panel caseload would be unsustainable even by 20 judges 

or 24 judges. It is hard to know the number of judges and assuming all the ratio of support staff that it would take. But it certainly 

could not be done by 15 judges. 

Chairman SPECTER. Well, when you say that you would need a 

new courthouse to accommodate the workload and the personnel 

you would have, that is something that cannot be provided overnight or very fast. 

Judge MICHEL. Exactly. The staff would have to swell from its 

present total of 140 by my calculation to approximately 420. So we 

would need commercial office space or another building about the 

size of our present courthouse on Lafayette Park, where you yourself have visited, a nine-story modern office building. And it would 

take a lot of time to get such a building, if one is even available 

anywhere proximate to our courthouse. That is part of why we do 

5

not have the surge capacity. Even if handed all the money immediately, it would take time to get the office space, time to hire the 

staff. We would probably have to start an entire new computer system, which would have to be designed, built, tested, and implemented, which, again, would take probably years. 

Chairman SPECTER. Thank you very much, Chief Judge Michel. 

It is a bleak picture, but we want to know what the facts are so 

we can figure out what to do—try to figure out what to do. 

Our next witness is the chief judge of the Court of Appeals for 

the Second Circuit, Chief Judge John M. Walker, Jr. Judge Walker 

came to the circuit court in 1989. Prior to that he was district court 

judge in the Southern District of New York and has been chief 

judge since October 1st of the year 2000. 

Welcome, Chief Judge Walker, and the floor is yours. 

STATEMENT OF JOHN M. WALKER, JR., CHIEF JUDGE, UNITED 

STATES COURT OF APPEALS FOR THE SECOND CIRCUIT, 

NEW HAVEN, CONNECTICUT. 

Judge WALKER. Thank you, Mr. Chairman, Senator Cornyn, and 

members of the Committee. I thank you for the opportunity to appear here. As chief judge of the Second Circuit, I am responsible 

for one of the two courts that is bearing the brunt of the immigration appeal explosion right now, along with the Ninth Circuit. I do 

appear today in my individual capacity. I do not speak for the other 

judges in my court. And I do appreciate also the Committee’s hard 

work on the very difficult issues relating to the whole issue of immigration reform, the national debate that is going on, but also, in 

particular, the impact of the proposed legislation on the adjudication of these disputes. 

For the past few years, I just wanted to give a little background. 

My court has been receiving immigration appeals at the rate of 

about 2,500 cases per year. Around a quarter of the cases that are 

filed nationally come to the Second Circuit. What we thought was 

a one-time bubble, as the BIA was ordered to clear its backlog in 

2002, has now turned into a steady flow of cases, and most of these 

raise asylum issues. Over 90 percent raise asylum issues. They are 

fact-intensive cases in which the petitioner is seeking to be relieved 

of the obligation to return to their home country by virtue of the 

fact that they claim persecution. 

To deal with this backlog that we had and that we currently 

have and are working on, in October 2005 a special non-argument 

calendar was set up for asylum cases, and we are adjudicating 48 

cases a week on the basis of this calendar, which we call the NAC, 

N-A-C. And we are doing it with three judges on each case. In the 

6 months that it has been in effect, it is reducing our backlog, and 

we expect to eliminate it in no more than 4 years, maybe even 3 

years. In this regard I want to publicly commend Circuit Judge Jon 

O. Newman, who is here today, who was the principal architect of 

the NAC Program. 

The principal reason, I think, for the current backlog in the 

Courts of Appeals, and the reason that we have higher expected 

numbers of cases being remanded are a severe lack of resources 

and manpower at the immigration judge and BIA levels in the Department of Justice. Only 215 immigration judges process filings of 

6

over 300,000 cases a year. That means a single judge has to dispose of 1,400 cases a year or nearly 27 cases a well, or more than 

5 each business day. Immigration judges simply cannot be expected 

to make thorough and competent findings of fact and conclusions 

of law under these circumstances. The BIA faces similar pressures. 

It has 11 members currently and faces 43,000 filings a year. So 

each judge has to decide nearly 4,000 cases a year, a virtually impossible task. 

So I think there needs to be a substantial increase in the number 

of immigration judges and BIA members, and my testimony specifies in some detail the numbers that I think would be appropriate, 

basically doubling the numbers. 

Turning to Section 701 of the Chairman’s original bill, which 

would take petitions for review out of the Regional Courts of Appeals and put them in the Federal Circuit, with all due respect, I 

believe that consolidating these appeals in the Federal Circuit 

would be a mistake for the following reasons. 

First of all, it will do nothing to improve the performance and 

productivity of the IJs and the BIA, which I think is the core problem in immigration adjudications, and which can only be addressed 

by additional resources. 

Second, as has been noted, it will swamp the Federal Circuit 

with petitions, a ninefold increase at least in its caseload, reducing 

the time for careful consideration, delaying dispositions and exacerbating the backlog. 

Third, it will run counter to the firmly accepted idea of our Nation’s relying on generalist judges to adjudicate disputes, and it will 

also run afoul of the policy of the Judicial Conference, which 

disfavors specialized courts except in limited circumstances. 

It also, I think, runs the risk of politicizing the Federal Circuit, 

which could affect the reputations, not only of the Federal Circuit 

but of the judiciary as a whole, as the public and those responsible 

for nominations begin to view the Federal Circuit as determining 

primarily immigration cases, and then the views of the judges as 

pertains to immigration cases, and how they might dispose of such 

cases, would become paramount in the appointment process. 

Finally, I think that the centralization in the Federal Circuit 

would lose the benefits of having appeals heard in the community 

where the parties are located. 

Now, every circuit judge in the country today is available—if I 

could continue just for a few minutes, Mr. Chairman. 

Chairman SPECTER. Yes, you may, Judge Walker. Proceed. 

Judge WALKER. At present, every circuit judge in the country, 

with the exception of those in the Federal Circuit today, is available to review immigration petitions. There are 70 Federal judges 

available to dispose of these cases in the Second and Ninth Circuits 

alone, but even with the proposed expansion of the Federal Circuit 

to 15 judges, 15 judges would be responsible for the more than 

12,000 petitions for review on top of that court’s current caseload, 

and that current caseload is about 1,500 cases a year, as we have 

noted, as Judge Michel has noted. 

The Judicial Conference has long opposed the specialization of 

the Article III judiciary in favor of using generalist judges to decide 

cases, and this is a system that has served our Nation well 

7

throughout its history. The executive committee, just last Friday, 

confirmed that position, and is on record opposing the consolidation 

of immigration appeals in the Federal Circuit. 

At present, judges are not appointed to decide a specific class of 

cases generally. However, under the proposal, since the overwhelming majority, 90 percent of the docket of the Federal Circuit 

would be immigration appeals, that would change, and even if done 

with the best of motives, the appointment and confirmation of 

judges to the Federal Circuit would inevitably, I believe, tend to 

focus on how the nominee would be inclined to rule in immigration 

matters. Should this occur, the prestige of the Federal Circuit 

Court of Appeals, I think, would be impaired, as would the perception of impartiality that is so critical to the public’s favorable view 

of the judiciary as a whole. 

Mr. Chairman, I am also troubled by the provisions of the proposed bill that provide that one judge decide whether the petitioner 

is entitled to Court of Appeals review. Currently, even under the 

more efficient NAC procedures of the Second Circuit, each alien’s 

position receives the attention of three judges. But with the hastily 

administrative records that we are seeing, single-judge gatekeeping 

review would diminish, I think, the quality of review that these 

cases receive, and would not appreciably speed up the process, because all of these cases are so fact intensive, that the same staff 

attorney support would be required, as is the case today, and our 

NAC calendar is moving expeditiously in handling our backlog, and 

I don’t think a single-judge review process would significantly improve that disposition rate. 

Again, I thank the Chairman and members of the Committee 

again, for bringing to light these issues, and in my view, again, the 

most single effective way to improve the functioning of judicial review of immigration proceedings is to give the Department of Justice the adequate resources to handle its caseload. I think the 

present structure of immigration review is really not the problem, 

and that the solution does not rely in changing it. 

Thank you, Mr. Chairman. 

[The prepared statement of Judge Walker appears as a submission for the record.] 

Chairman SPECTER. Thank you very much, Judge Walker. 

We now turn to Judge Carlos Bea of the Court of Appeals for the 

Ninth Circuit. Prior to coming to the Ninth Circuit, Judge Bea was 

on the Superior Court of California. 

May I add that the Ninth Circuit Chief Judge, Chief Judge 

Schroeder, has submitted testimony, as has Circuit Judge Kozinski 

of the Ninth Circuit, as has Judge Posner of the Seventh Circuit. 

We have also had the submission from the Judicial Conference of 

the United States. 

Thank you for joining us, Judge Bea, and we look forward to 

your testimony. 

STATEMENT OF CARLOS T. BEA, CIRCUIT JUDGE, UNITED 

STATES COURT OF APPEALS FOR THE NINTH CIRCUIT, SAN 

FRANCISCO, CALIFORNIA 

Judge BEA. Thank you very much, Mr. Chairman. Good morning, 

Senator Cornyn. Good morning, Senator Sessions. Good to see you 

8

again. Like Judge Walker, I want to make quite clear that the 

opinions I am about to express are my own, and do not represent 

those of the Ninth Circuit, which as you might guess, are on both 

sides of this issue. I am here to support the Chairman’s mark, Title 

VII of this bill. 

My personal experience, if you will allow me, is a little bit unusual. I am probably the only circuit court judge in the United 

States who went through a deportation hearing as an alien, was 

deported, and won at the Board of Immigration Appeals. So I have 

been there and seen it. And also, in private practice, as the Honorary Vice-consul of Spain, I did a lot of pro bono work with Basque 

shepherds, and went to the Immigration Court and also the Ninth 

Circuit, so I have a little bit of experience as a lawyer also. 

I think the overwhelming need that is addressed by this mark 

is a need for national uniformity, a national policy. One doesn’t immigrate to Idaho or Texas, one immigrates to the United States. 

We have very important problems which are circuit splits, and they 

can be in such issues as what is an aggravated felony from one 

State and what is not; is an order of removal necessary when somebody comes back in the country by an immigration judge, or can 

you do it by having the agent enforce or reinstate the order of removal? That is an issue which is presently split. 

The Supreme Court cannot take enough cases to give us supervision in all areas. What happens with this lack of uniformity is 

that you get forum shopping. It is very clear, asylum cases, which 

I agree are 90 percent of our immigration cases, which by the way, 

in the Ninth Circuit, immigration loaded between 46 and 48 percent of our overall calendar. 

In asylum cases the Fifth Circuit in Texas and in New Orleans 

has had 125 percent rise over the last 5 years. But the Ninth Circuit has had a 590 percent rise over the last 5 years. Now, why is 

that? The Fifth Circuit grants 9 percent of the Board of Immigration denials by reversing them. The Ninth Circuit grants 33 percent. If I were representing one of my old clients, I would do everything in the world to have him given up and proceed in the Ninth 

Circuit rather than in the Fifth Circuit. That is the forum shopping 

which actually exists today as a practical matter. 

The review by a one-judge court is not so unusual. We presently 

have reviews of habeas cases by a one-judge court, the district 

judge, and if he does not grant it, we have a two-judge court in the 

Ninth Circuit take a look for certificate of appealability. It is not 

a new function. 

The criticisms that we have had that I have heard about generalists, the idea being that it would politicize the regime of appointing 

judges, I don’t think that the appointing for results, which was 

talked about, has worked so well in the Supreme Court of the 

United States, and I don’t think it is working in an of the circuit 

courts either. Judges tend to be very, very independent once they 

become Article III judges. The idea that the court located in Washington could not give justice throughout the country, I think, overlooked something which is very important. The Federal Circuit is 

the only circuit under 28 U.S.C. 48(a), which can hold hearings in 

any of the other circuits and any of the other cities. So they can 

come out to San Francisco. We have got plenty of courtrooms where 

9

they can have hearings. Plus, one must remember that in our particular circuit, last year we had 4,700 terminations of determinations of immigration cases. We had, of those 4,700, only 9 percent 

actually reached three-judge panels. We determined the rest of 

them either by motions or by screening panels of three judges that 

we did not think were worthy of argument, somewhat like the nonargument calendar. 

The idea that Federal judges have no immigration experience, I 

don’t think many of us have immigration experience. I think I am 

an exception because I had some trial practice immigration experience. Immigration is a very complicated area. It is somewhat like 

tax law because we keep passing immigration bills, and there are 

layers. For instance, in asylum, you have asylum, you have withholding of removal, and you have the Convention Against Torture. 

It is three different acts, three different layers you have to go 

through in practically every immigration case. And it is a little bit 

like tax. That is why we have a Tax Court, and that is why we 

could have a review court here in the Federal Circuit. 

The backlog of cases is just growing, and there is an incentive—

the backlog is an incentive for appeals. I agree with everything 

that Judge Walker said about the necessity to beef up the BIA 

process and the BIA opinions, and I know that is going to be the 

subject of the second panel so I will not address that. 

Some of the letters say that the only way to handle an immigration case is to do it as it is being done now, an immigration appeal. 

Some of the letters say that the particularized determination, the 

compassion that is shown by regional circuit court judges cannot be 

duplicated in a centralized court. I don’t think we have a corner on 

compassion, and I think we can do some of the things which the 

chairman’s mark has indicated and improve the rendition of justice 

immensely. 

Thank you very much. 

[The prepared statement of Judge Bea appears as a submission 

for the record.] 

Chairman SPECTER. Well, thank you very much, Judge Bea. 

We now turn to Judge Jon Newman, on the Federal bench for 33 

years, 7 years on the district court in Connecticut, 26 years on the 

Second Circuit, had been chief judge for 4 years. And, again, in the 

interest of full disclosure, Judge Newman and I were classmates at 

Yale—I will not mention the year—squash partners, and long conversations at a midway point between the two apartments where 

we lived. 

I could tell you more but I will not. 

Judge NEWMAN. Thank you. 

[Laughter.] 

Chairman SPECTER. But I will mention one additional relevant 

factor, and that is that Judge Newman was a member of the Senate family. He was chief of staff for Senator Ribicoff. 

Thank you very much for joining us, Judge Newman. We look 

forward to your testimony. 

10

STATEMENT OF JON O. NEWMAN, SENIOR JUDGE, UNITED 

STATES COURT OF APPEALS FOR THE SECOND CIRCUIT, 

HARTFORD, CONNECTICUT 

Judge NEWMAN. Thank you, Mr. Chairman, Senator Sessions, 

Senator Cornyn. It is a great pleasure to be here and have a 

chance to discuss this issue with you. 

I want to touch briefly on three aspects of the proposal: the 

transfer proposal, the Certificate of Reviewability proposal, and the 

proposal to increase the personnel throughout the administrative 

process. 

With respect to the transfer to the Federal Circuit, I think it is 

useful if you think of that proposal as comprehending two very distinct issues: the first is whether there should be centralization at 

all, as distinguished from leaving the cases in the regional circuits; 

the second issue is if you decide in favor of centralization, where 

do you centralize. Those are separate issues. 

Like others who have testified and written, I strongly oppose centralization. I say this with all respect to the Federal Circuit. I do 

not doubt that they are estimable men and women who could handle it. I don’t think it is an issue of who has more or less compassion. But never in the history of this country have we put cases involving personal liberty in a specialized court. The country has 

been served well by two centuries of leaving those issues in the 

courts of general jurisdiction manned by men and women selected 

for their broad experience. The Federal Circuit judges were selected 

in large part for their expertise in technical matters. 

Whether centralization is needed for uniformity I seriously 

doubt. Of course, in any system that is adjudicating thousands of 

cases, there are going to be a handful of examples of different outcomes. But the basic issue arising in asylum cases is not technical 

construction of the immigration statute. It is the much more mundane issue of reviewing a finding by an immigration judge and the 

BIA that the witness, usually the alien, was not credible, and the 

issue is was the credibility finding supported by substantial evidence. That is the type of thing generalist appellate judges do all 

the time when we review bench findings of district judges. And I 

suspect that in the general run of patent cases—I used to try those 

as a district judge. I don’t think there are many credibility issues 

that come up in a patent issue. But we review credibility findings 

all the time in asylum cases, and I think it’s better to leave those 

in the generalist court. 

The other issue against centralization, of course, is volume. 

Judge Michel and Judge Walker have given you the numbers, and 

I will not repeat them, and you have more detail on that from 

Judge Posner. To put all that volume in one place is a prescription 

for a train wreck. You are just going to clog the court, or you are 

going to have to so expand it and gear up its personnel, its staff, 

and even its building, as Judge Michel says, and at a huge cost. 

Do you add judges? The current figures I have seen are it is $1 million every time you create a new judgeship: the judge, personnel, 

staff, support and all that. 

So I would strongly urge you not to centralize, to leave personal 

liberty cases among the regional courts where they have always 

been in the history of this country. If you are going to centralize, 

11

then I urge you to consider not putting them in the Federal Circuit, 

whose personnel were not selected for that, but to give serious consideration to an alternative centralization proposal, namely, a 

panel of immigration—a special panel on immigration appeals 

drawn from the existing complement of circuit judges throughout 

the country and/or district judges, if you like, modeled on the FISA 

Court, with which this panel is very familiar, or the old TECA 

Court, Temporary Emergency Court of Appeals. Those were courts 

to handle a group of cases drawn from the courts of appeal, selected by the Chief Justice, and there are other selection mechanisms which you could consider. It would provide one court. It 

would be based in Washington, if that is where the Department of 

Justice thinks it is better to litigate. And it can sit around the 

country if it wants, and it would provide flexibility. 

Your bill proposes adding three judges to the Federal Circuit. I 

think most people think three judges could not possibly handle this 

problem. But a panel drawn from the ranks of the sitting judges 

would, A, not cost you any money, which I think is a virtue; and, 

B, provide you flexibility. If the Chief Justice saw the volume needed judges, nine judges, 21 judges in 1 year, 21 could be drawn. If 

in the next year the volume was down, only needed 15 or 11, you 

could adjust the volume. So it offers flexibility. It offers a primarily 

Washington-based court. It offers generalist judges. And it follows 

the pattern we have used in the past and avoids a specialized 

court. 

Just briefly on Certificate of Reviewability. We have never in the 

history of this country allowed one judge to cutoff appeal on an 

issue of personal liberty in a case that has not been fully reviewed 

by a prior judicial system. My guess is this proposal was modeled 

on the COA, the Certificate of Appealability, which applies from 

appeal on a district court denial of habeas corpus. But those cases, 

as this panel well knows, are cases that have been fully reviewed 

by the entirety of a State judicial system and by an Article III district judge. To permit a Certificate of Reviewability there made 

sense, although it is interesting that almost every circuit uses 

three judges even to review those. But there has been full review. 

We have never, never let one judge cutoff review on a case involving personal liberty that has not been fully considered by a full 

complement of judges. 

A last point on the personnel. That is the best part of the bill, 

if I may say so. You need more IJs. You need more BIA members. 

You need to go back to the so-called streamline proposal, which 

proved to be a disaster and burdened all of us with these thousands of cases, many with one-line affirmance opinions which are 

not the way to handle an administrative process. So you need more 

IJs. You need more BIA members. And you need the cohort of attorneys that your bill calls for, both in OIL and EOIR and the U.S. 

Attorney’s Office to properly staff it. In short, you need a thoroughly financed, well-funded administrative system to handle these 

thousands of cases. You do not need to disrupt it by moving all the 

cases out of the hands of generalist judges. But if you are interested in centralization, then I urge you to centralize in a special 

panel drawn from the courts of appeals and not put into a specialized court. 

12

Thank you, Mr. Chairman. 

[The prepared statement of Judge Newman appears as a submission for the record.] 

Chairman SPECTER. Thank you very much, Judge Newman. 

Our final jurist on this panel is Judge John Roll from the United 

States District Court for the District of Arizona, where he has been 

a judge since 1991, and prior to that time was in the State court 

system of Arizona. 

Thank you for coming in today, Judge Roll, and we look forward 

to your testimony. 

STATEMENT OF JOHN MCCARTHY ROLL, DISTRICT JUDGE, 

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF 

ARIZONA, TUCSON, ARIZONA 

Judge ROLL. Thank you, Chairman Specter. Good morning, and 

good morning, Senator Sessions and Senator Cornyn. My name is 

John Roll. I am a district judge in Arizona. Beginning May the 1st, 

I will be the chief judge for the district. I speak only for myself at 

this time. It is an honor to appear before this Committee, and it 

is certainly daunting to appear as a member of such a distinguished list of witnesses. 

I speak in favor of the Chairman’s mark in this case. I believe 

that consolidation would be a good thing. I think it is appropriate. 

I realize you have received the letter from the Judicial Conference 

in opposition to the proposal of the consolidation. I would like to 

touch on just a few points in connection with that. 

The letter points out that subject-matter courts are only appropriate where national uniformity is crucial. It would seem that immigration is exactly such a topic. 

The written testimony that I have submitted points out several 

examples of inconsistencies, not only inter-circuit but intra-circuit, 

in connection with immigration issues. These include how circuits 

go about evaluating immigration judges’ credibility determinations, 

derivative asylum issues, and retroactivity of deportation orders. 

There are conflicts inter-circuit and intra-circuit as to these various 

matters, and there should be national uniformity. 

The letter from the Judicial Conference also refers to regional 

courts that have developed expertise, and I am certain that is true. 

But if one circuit were to handle all of the appeals from the Board 

of Immigration Appeals, they would have an expertise unmatched 

by any circuit that currently hears these matters. 

It has also been referred to in the letter the fact that litigants 

may find that their cases are decided in distant tribunals. I suspect 

that many litigants already feel that their cases are being decided 

in distant tribunals when they are heard in San Francisco, for instance, in the Ninth Circuit. But as has already been mentioned, 

28 U.S.C. Section 48 would permit the Federal Circuit to go to the 

busiest cities and to conduct hearings in connection with those 

matters. It has also been mentioned that most of these cases are 

submitted on the briefs. 

Another reason that is a compelling reason for this particular 

consolidation is that it would help a severely overburdened Ninth 

Circuit Court of Appeals. The caseload in the Ninth Circuit is now 

approaching 17,000 pending appeals, several times what the averVerDate 0ct 09 2002 10:15 Sep 06, 2006 Jkt 029672 PO 00000 Frm 00016 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\28339.TXT SJUD4 PsN: CMORC
13

age is for the other circuits. That represents 28 percent of all of the 

pending Federal appeals in the United States of the 12 geographical circuits. Its population is one contributing factor to this. 

The population in the Ninth Circuit is approaching 60 million people, one-fifth of the United States. It consists of nine States, a territory, and a Commonwealth. The other circuits average four, and, 

of course, one of those nine States is California. This shows up in 

a number of different ways, and I will just pick two examples. One 

of them is the Ninth Circuit is the slowest circuit in the United 

States in decisional time. That is the time measured from the time 

of the filing of notice of appeal to the time of disposition. And that 

is the time that matters to the litigants. 

The Ninth Circuit now takes 16.6 months per case. The average 

for all of the circuits, even when you add in the Ninth Circuit, is 

12.1 months. The next lowest circuit is 2.5 months faster than the 

Ninth Circuit Court of Appeals. 

Also, the Ninth Circuit is the most reversed circuit, and perhaps 

that would be understandable because of the volume of cases that 

the Ninth Circuit hears. But the Ninth Circuit is the most unanimously reversed circuit by the Supreme Court. 

Since the White Report was issued in 1998, the Ninth Circuit 

has unanimously been reversed by the Supreme Court 59 times. I 

have included in my submission in conjunction with my written 

testimony, Attachment G, which lists those 59 unanimous reversals 

by the Supreme Court. I have included, as Attachment C, the list 

of Administrative Office records that show that the Ninth Circuit 

is the slowest circuit, and Attachment A reflects the caseloads 

among the various circuits. 

The Chairman’s mark would result in about 6,500 cases—assuming the pending cases were transferred—being removed from the 

Ninth Circuit Court of Appeals. This would be of benefit to a circuit 

that is severely overburdened. 

Thank you again for the opportunity to appear before you. 

[The prepared statement of Judge Roll appears as a submission 

for the record.] 

Chairman SPECTER. Thank you very much, Judge Roll. 

We now proceed to the questioning from the Senators, and our 

practice is to limit it to 5 minutes, but we will obviously have more 

than one round today as we go through the process. 

Judge Newman, would your suggestion be that the new court of 

Washington, presumably, would be full time for these circuit 

judges, or would they retain responsibilities in the circuit for regular assignment as well? 

Judge NEWMAN. I think that would depend on how many were 

initially chosen. If only three were chosen, I think they would be 

pretty much full time. If a large panel were chosen along the models of FISA, then I think they could retain a substantial caseload 

in their own circuit. 

Chairman SPECTER. Don’t we face a similar problem to that that 

Judge Michel has stated, a courthouse, computer system, staff, if 

we are going to put all these— 

Judge NEWMAN. I don’t think so. For example, if one, two or 

three judges were selected from the Second Circuit to staff such a 

panel, I would think they would use the staff resources of the staff 

14

attorneys office in New York who are already there, who are writing memos on these cases, scores of them every day. I don’t think 

they would move to Washington. The judges could come to Washington for the hearing, or the hearing could be held elsewhere, or 

it could be done by closed circuit television, as we now do with lawyers all over the country. There are many flexible ways to handle 

the logistics of this. 

Chairman SPECTER. What do you think of Judge Becker’s idea to 

reassign cases to have some—an analogy to the Multidistrict Panel, 

where you take a look at the Ninth Circuit is overburdened, the 

Tenth Circuit has very few, and we assign some cases there. What 

do you think of that? 

Judge NEWMAN. Between circuits? 

Chairman SPECTER. Yes. 

Judge NEWMAN. Well, of course, I think you would have to 

change the venue provisions. You would want to discuss— 

Chairman SPECTER. You have that in any event. 

Judge NEWMAN. You would, you would. You would want to discuss with the bar whether the lawyers from one part of the country 

want to be transferred to another part of the country. 

Chairman SPECTER. Well, if you have it in Washington, they are 

going to be traveling. 

Judge NEWMAN. They would, yes. Oh, I thought you meant just 

from the Ninth to the Tenth, and send them— 

Chairman SPECTER. No, no. Some administrator or panel would 

take a look at the imbalance. Say the Ninth Circuit was overburdened, say the Second Circuit was, another circuit is not. 

Judge Walker, you have your hand up. 

Judge WALKER. There is an option here, and that would be using 

a panel like that to, in effect, allocate cases to the circuits on a pro 

rata basis. Every circuit has a—this does not address, of course, 

the uniformity question, but it does address the backlog unevenness that would occur, that is occurring now. And you could take 

into account the pro rata amount of decisions that each circuit is 

making in a general way on all their cases, and then simply assign 

the immigration cases to those circuits on that basis. 

Chairman SPECTER. You think that would be a practical way of 

handing it? 

Judge WALKER. I think it would a practical way of handling it. 

Chairman SPECTER. I was— 

Judge WALKER. I have one other comment if I could, and that is 

with regard to Judge Newman’s, in effect, fall-back position, which 

would be this panel. It would have the virtue of creating a uniform 

body of law because it would be a separate panel that would be 

presumably subject to rules of precedence that would apply to that 

panel, so that notwithstanding—if I am a Second Circuit Judge, 

and I have ruled or our court has ruled in a certain way, when you 

are transferred to the panel, the immigration panel, you would be 

governed by rules of law that would apply to that panel, as if it 

were a separate court. 

Chairman SPECTER. I am going to want to explore with you, but 

not on the record at this moment, logistically how we would do 

that. I was struck by your comment that going to the Federal Circuit, you would be politicizing. 

15

I will ask you first, Judge Walker, and then Judge Michel, why 

do you think it would politicize matters, and then I will let the defense speak. 

Judge WALKER. Well, I don’t particularly think that it necessarily 

would. I just thought that—I do believe that there is always a risk 

when you take a highly politically charged issue and put it into— 

Chairman SPECTER. What is there political about the individual 

cases? There is a lot of politics involved on whether we are going 

to have a guest worker program, but when an individual matter 

comes to the circuit court, what is so political about that? 

Judge WALKER. There’s nothing terribly political about that 

itself. It would really be a question of—courts get reputations. Are 

they more or less inclined to favor one side rather than another. 

That would be the only issue that would come up. 

Chairman SPECTER. Chief Judge Michel, if you do draw this assignment, what do you think about Chief Judge Walker’s concern 

about the politicization? 

Judge MICHEL. I really have no way to evaluate it. It depends on 

the Justice Department, the White House, and the Senate on confirmations. It seems to me it’s hard to know. 

There is a danger if the court becomes a 90 percent plus immigration court, that immigration predictions will play a significant 

role in selection of judges. So there is some risk. How to quantify 

it, who knows? 

Chairman SPECTER. The red light went on during Judge Michel’s 

answer. You are permitted to answer. The red light just governs 

the questioner. 

Senator Cornyn, under the early bird rule. 

Senator CORNYN. Thank you, Mr. Chairman. 

I would like to express my gratitude to the panel for being here 

and helping us figure this out. I think all of you have made a valuable contribution trying to figure this difficult issue out. It strikes 

me that probably no judge would like to sit, get up in the morning 

and go to work and decide immigration appeals from start to the 

end of the day, and do that day after day, 365 days a year for their 

entire tenure, and I think there is something to be said for avoiding judicial burnout. I would also tend to agree that there is virtue 

in the generalist judge who brings a variety of experience to decide 

individual cases. 

But here it strikes me we are trying to figure out how do we 

achieve the value of uniformity and predictability and the expertise 

that judges would bring to these appeals that would allow us to 

handle such a high volume, and to do it in a shorter period of time 

than is done now. 

Mr. Chairman, I am glad that we are also talking about the additional staff that would be necessary. These judges would not be the 

only ones looking at the case. In fact, every judge depends a lot on 

the staff to prepare the case for their review, and I think if we are 

going to make this massive immigration reform bill work, we are 

going to have to make sure at all levels, whether it is the Department of Justice or the judiciary, or through Department of Homeland Security, that the staff is there to process the huge caseload. 

Let me turn to—Judge Walker, you mentioned that you thought 

the alternative to the proposal before us would be to make sure 

16

that the Department of Justice has adequate resources. Would you 

see that as a complete solution, and if so, would you explain that, 

please? 

Judge WALKER. Yes. Well, part of the backlog, the real reason for 

the backlog I think can be traced back to the streamlining decisions 

that have occurred in the Department of Justice, which are understandable given the huge backlog that they have, and that is, the 

idea that a single BIA judge can effectively decide an immigration 

appeal by affirming without opinion. So that streamlining procedure has led to a push on the part of the litigants to have their 

cases now decided in the Courts of Appeals, instead of in the administrative agency. So the Court of Appeals becomes the first effective review of the immigration judge’s decision. 

With that, there has been this burgeoning of cases, and in addition, we’re seeing, with the streamlining and the burgeoning of 

cases, that not only are more cases coming through the BIA at a 

faster rate, but more—but a higher percentage of the cases that are 

pushed through the BIA are being appealed than was the case before. So it’s a ratcheting on two different levels, and that’s what explain, in my view, this huge backlog and flood of immigration cases 

that amount to now 12,000 a year. 

So that if we go back, just to answer your question again, if we 

can go back to basics and see that the BIA and the IJs have sufficient resources, then the issue will basically be litigated at the 

agency level which is where it should be litigated. 

Senator CORNYN. That sounds to me like that would be a valuable thing to push the cases down to be decided at the lowest level 

of the administrative process they could be without the necessity 

of getting circuit court judges involved. 

But would you agree with me that if you could get greater uniformity of results, that would have a tendency to decrease the number of appeals, and thus, make the problem more manageable? 

Judge WALKER. I think that to some extent, that is true. Also, 

I think though that the number of appeals depend upon the backlogs that have been generated, so that if you have—and that’s the 

venue provision that we’re talking about. Currently, the venue provision is tied to the place where the immigration judge renders his 

final decision. If it’s the Ninth Circuit, then it’s there. If it’s the 

second Circuit—and a lot of these litigants have connections to the 

Ninth Circuit or reside in the Ninth Circuit or the Second Circuit. 

In the Second Circuit we have a huge number of immigrants of 

Chinese national origin, and they congregate in New York. So that 

is another reason why cases are coming to particular circuits. 

And then once they come to particular circuits, and the backlogs 

develop in the particular circuits, then that becomes a desirable 

place for future litigants to file their cases because they’ll be at the 

end of the queue, and the longer they’re at the end of the queue, 

the better off they are, because the name of the game for them is 

to remain in the country. 

Senator CORNYN. Mr. Chairman, I am intrigued by Judge Newman’s idea of an analog to the FISA Court. It seems to me it 

strikes an interesting balance between the need for uniformity, yet 

sort of an alternative to dumping all of the cases on one court. 

17

If I may, Judge Bea, you had a comment, I believe on the question of— 

Judge BEA. Yes. I quite agree with what Judge Walker said regarding the attractiveness of the appeals process to the alien who 

wishes to stay here. The bigger the backlog you have, if the alien 

could be put at the back of the line, he can wait out changes in 

legislation such as are happening at the present time. Also there 

may be changes in his personal circumstances that would help him 

in getting a cancellation of removal. 

So while it is absolutely necessary to better the Board of Immigration Appeals—and I think on that we’re all in agreement—let’s 

not think that that’s going to stop the appeals going to the Courts 

of Appeal. When there is greater uniformity and the sure prospect 

of a denial, that might help. 

Chairman SPECTER. Thank you, Senator Cornyn. 

Senator Sessions. 

Senator SESSIONS. Thank you, Mr. Chairman, for wrestling with 

this important issue as we deal with, I think, 300,000 plus appeals 

a year. It is obvious that this is a massive undertaking and it 

needs to be given a great deal of thought. Weaknesses in any part 

of the system can allow problems to occur, increase appeals in a 

way that is not legitimate, and drive these numbers to an even 

greater degree. 

I guess, Judge Bea, you were saying that to the extent to which 

you had a system that rule promptly and consistently with predictability, and a litigant knows that their case, based on the consistent law of the circuit or the court, is inevitably weak and will 

not prevail, that they are less likely to appeal in the first place? 

Judge BEA. They should, that should work. When you know that 

your chances in the Fifth Circuit are going to be one third of what 

they are in the Ninth Circuit, then there is an incentive, obviously, 

to give up, or have your hearing in the Ninth Circuit. If there were 

uniformity of result or of appeal, then you would think that there 

would be less appeals from the Board of Immigration Appeals. 

Senator SESSIONS. There is still a fairly low standard for this certificate in the Chairman’s mark. I mean, all the petitioner would 

need to do to establish a petition for review would be a prima facie 

case; is that right, Judge Walker? So it is still not an overly high 

standard to get a hearing, a full hearing. 

Judge WALKER. My understanding is that that is true. If it’s 

just—and I understand there’s been debate about what the standard would be. I am not sure exactly what the Committee is thinking of at the moment, but if it’s a prima facie case, that’s true. The 

problem— 

Senator SESSIONS. That is the language in the mark. 

Judge WALKER. That’s currently the mark. But the problem is, 

as Judge Newman has pointed out, that these cases really don’t—

really turn on credibility issues, so they’re fact intensive, and a 

prima facie case could be made out by the alien, but then you 

would have to assess credibility, and whether the IJ has really focused on credibility in reaching that determination, that there was 

no merit to the case. So that is going to require essentially the 

same investigation by the judge in reviewing the case as currently 

occurs. 

18

Senator SESSIONS. Judge Michel, on the caseload per circuit, per 

judge in a circuit, your circuit is one of the lower; is that correct? 

Judge MICHEL. Yes, it is, Senator, and we struggle to stay current and deal with the massive patent and trade and contract and 

personnel cases that we have in very large numbers. 

Senator SESSIONS. Is it the D.C. Circuit that is lower per judge 

than you are, or are you the lowest in the circuit? 

Judge MICHEL. They’re very similar. They’re very similar annual 

case filings, similar caseloads per judge. 

Senator SESSIONS. I thank you for your willingness to consider 

this, and respond appropriately. 

We are in a situation in our country that the immigration legal 

system is not working. As a result the immigration has become 

more and more illegal. In the whole system, there are a host different problems that arise in a whole series of different areas, and 

in almost each one of those areas we are not functioning well. So 

I would salute the Chairman for thinking creatively to try to make 

our court system be able to respond effectively. At some point if 

people oppose every single process reform necessary to make this 

system work, we are never going to make it work. And my observation has been that anytime someone comes up with an idea that 

might actually work in the real world and relieve the stress on the 

courts or the border or the workplace, that turns out to be controversial. So it is a difficult thing, and I look forward to studying 

this carefully. 

I do note, Mr. Chairman, that all of our circuits carry a pretty 

good number of immigration cases, and one of the principles I have 

observed as Chairman of the Courts Subcommittee is that most of 

our courts do not want to keep adding more and more judges and 

getting larger and larger because it impacts their collegiality and 

ability to function. And they would like to keep it slower. They 

complain about too many Federal laws creating too many causes of 

action. That stresses the courts. 

So I would think that from that point of view—Judge Roll, you 

might comment on it—it could relieve some pressure to make the 

circuits larger and larger. But with regard to the Ninth Circuit, do 

you think this would impact your view that the court still would 

be too large to function effectively if it took these cases out? In 

other words, one of the issues at the Ninth Circuit is the caseload 

is heavy. It is not the heaviest per judge in the country, but it is 

heavy. And how would this impact your view about division of the 

circuit? 

Judge ROLL. Well, it wouldn’t change it. I think that there would 

still be compelling reasons for a circuit split. I think that the best 

of all worlds would be the Chairman’s mark coupled with S. 1845. 

And I say that because just this alone won’t change some of the 

factors that are just present in the Ninth Circuit. You will still 

have a fifth of the population in the Ninth Circuit. That is going 

to generate significant caseload. 

The Ninth Circuit has 28 active circuit-authorized judgeships 

and needs seven more. That is why they have to have the limited 

en banc, which is structurally flawed, and Justice O’Connor pointed 

that out in her letter to the White Commission in the summer of 

1998. 

19

If this were to be adopted, the Chairman’s mark, along with the 

proposal to split the Ninth Circuit, it would result in a new Ninth 

Circuit consisting of California, Hawaii, and the islands that would 

have 60 percent of the judges and 60 percent of the caseload, and 

the new Twelfth Circuit would have 40 percent of the caseload and 

40 percent of the judges—a parity that was discussed at a previous 

hearing in October of last year concerning the disparity that might 

exist if just S. 1845— 

Senator SESSIONS. Well, we better not go too much into all of 

that. 

Judge ROLL. All right. Thank you. 

Senator SESSIONS. We could have a long discussion. But thank 

you for your perspective. 

Chairman SPECTER. Judge Newman, would you care to respond? 

Judge NEWMAN. Yes, I just had a couple of words on the uniformity issue. Sure, there are some circuit splits, but there are examples of circuit splits on every issue you can mention. In the 

aftermath of Booker in the Supreme Court, the circuits were all 

over the lot. You could make the argument that any category of 

cases should be centralized in order to avoid uniformity. We have 

never gone down that road wholesale in this country. I don’t think 

we should. 

Second, to think that straightening out circuit splits on the statute would decrease the appeals I think is an illusion, and I will tell 

you why. They do not appeal because they want the benefit of a 

construction of the statute. They appeal because they are challenging the credibility finding. That is the dominant issue in almost all the cases. And it does not matter how you read the statute. You are always going to have a credibility finding by the IJ, 

and the alien and his lawyer are going to say it is not supported 

by substantial evidence. 

Third, to the extent you are worried about lack of uniformity, if 

instead of putting these cases in the Federal Circuit you went to 

some sort of a special immigration panel drawn from the sitting 

judges of the Article III courts around the country, they could resolve any disputes by either a full en banc procedure or a mini-en 

banc procedure following the Ninth Circuit model; or if you wanted, 

you could even have a special panel that only resolved disputes, 

which was the proposal Chief Justice Burger made many, many 

years ago to resolve inter-circuit disputes. 

So there are ways to resolve statutory conflicts without moving 

all these cases wholesale to one court. But if you want to centralize, please centralize in a court drawn from the existing cadre 

of personnel. We have never done it differently in the history of 

this country on issues of liberty, and to do it into one court and 

overburden it will cost you a lot of money and create a huge logjam. 

Thank you. 

Chairman SPECTER. As we begin the second round, I am glad to 

see the clock is reset at five. 

Judge Newman, following up on that idea, the thought of having 

a court below the Supreme Court resolve circuit splits has never 

taken hold. But there might be a little narrower ground here on 

uniformity by utilizing a special panel, perhaps of five circuit 

20

judges, to resolve the split, so that if we did not go to the Federal 

Circuit, we would be able to maintain the uniformity factor. Do you 

think that is a practical way to handle it? 

Judge NEWMAN. Yes, I think that is one of the ways to handle 

it. If you want to centralize all the cases in the court, then I would 

suggest, as I said, centralize them all in a broad panel drawn from 

the existing ranks, staff with— 

Chairman SPECTER. Well, I am thinking— 

Judge NEWMAN. If you just want to do uniformity, if that is the 

focus, then authorize the Chief Justice to designate a panel of five, 

seven, whatever number seems appropriate, to resolve inter-circuit 

conflicts. 

Chairman SPECTER. Well, I am thinking about the possibility of 

reassigning among the circuits in order to have it spread out better, but then to solve this issue of uniformity, where we are looking 

to the Federal Circuit or one circuit to have uniformity, to create 

a special panel of five judges to sit en banc or seven. 

Judge Michel, I was surprised to find that after an immigration 

judge decides a case and the Board of Immigration Appeals affirms, 

the Attorney General has the authority to set that aside. We questioned Attorney General Ashcroft on that subject at substantial 

length, and the best answer that the Department of Justice could 

give was that it is very infrequently used. 

Do you think that it is sound to leave with the Attorney General 

the authority to overrule the immigration judge upheld by the 

Board of Immigration Appeals? 

Judge MICHEL. Well, Senator, there is an analogue in trade law, 

where the President can overrule the decisions of the International 

Trade Commission for broad reasons of world economics or foreign 

policy. 

Chairman SPECTER. Well, that is the President, and that is a foreign policy implication. 

Judge MICHEL. Well, it seems to me the Attorney General has 

the responsibility for the employees of the Justice Department who 

make up the immigration judges and the immigration board. So it 

doesn’t seem to me particularly anomalous. It is apparently not 

used often. There is some dispute about the extent to which it 

should be reviewable by an Article III court of appeals. But it 

doesn’t seem to me that it is a big factor in these 43,000 decisions 

and the 30-plus-percent appeal rate that is now flooding all of the 

Federal appeals courts. 

Chairman SPECTER. But you would not let the Attorney General 

overrule the circuit court? 

Judge MICHEL. Certainly not. 

Chairman SPECTER. OK. Well, I want to come to the composition 

of the immigration judges, which is very much on our minds, and 

I want to start with you, Judge Roll, on this question. We are considering having, first of all, a substantial increase in the number 

of immigration judges, about 214 now, to go up by 100 over 5 years. 

And our thinking to give them greater independence is to have 

them appointed by the Director, a newly created position, on consultation with the Attorney General where they have to meet minimum standards and be ranked by the Merit Systems Protection 

21

Board and be fireable for cause subject to review by the Merit Systems Protection Board. 

Considering your experience in this field, do you think that 

would be an improvement on the selection and composition of immigration judges? 

Judge ROLL. Mr. Chairman, I think that the immigration judges 

have an enormous caseload that they attempt to address, and they 

do the best that they can under very difficult circumstances. I 

think anything that could be done to increase their number, to increase the pool of individuals, the qualifications, all of that would 

be useful. But there are obviously— 

Chairman SPECTER. But how about the issue of giving them a little more independence from the Attorney General? 

Judge ROLL. Rather than venture an opinion on that, and I think 

that it may certainly have something to commend itself, I would 

rather defer to the other members of the panel as far as— 

Chairman SPECTER. Judge Bea, what do you think about a little 

more independence for the immigration judges? 

Judge BEA. I am always in favor of independence for judges. 

[Laughter.] 

Chairman SPECTER. I am, too. 

Judge BEA. And I think it is a very good idea. As someone who 

has been before immigration judges, I quite agree they are overburdened, they have too much work, we need more of them. But nothing helps more, I think, for a judge to know that he is not beholden 

to any particular district attorney or U.S. Attorney or Attorney 

General. I think it would help. And I don’t know what the position 

of the administration is on this bill, but it makes a lot of sense to 

me. 

Chairman SPECTER. Senator Sessions, round two. 

Senator SESSIONS. Well, it is an executive function primarily to 

enforce the laws and determine these matters and make decisions, 

and having been in the Department of Justice quite a long time, 

you realize you are an executive branch function. Ultimately, we do 

provide judicial review to make sure that the executive has conducted themselves properly in handling the laws that are passed. 

So I am not confident that this is the correct way to do this, to remove it from the executive branch. And then we want to know, 

well, why don’t you fix it? Why isn’t it working? And nobody is responsible. Everybody blames somebody else. At least when the executive has the responsibility and the authority, you can hold them 

accountable. 

Well, I don’t know, Mr. Chairman. I will just wrap up and say 

I think uniformity would be good, and we could attain that by this 

court. I believe we could enhance the speed of disposition, which in 

itself the delays can encourage appeals for the reason Judge Bea 

suggested. Many times a delay could be advantageous to someone. 

And the Ninth Circuit, who is doing most of the cases, has the biggest backlog and the longest delay of any other circuit. 

I do think that a good case has been made that we need more 

immigration judges that when the cases hit the Federal courts, 

they are more and better prepared and more thoughtfully put out. 

With regard to liberty, I take very seriously liberty in the United 

States, but I think these are somewhat different than what we 

22

would normally consider liberty cases. A person wants to come into 

the United States, they do not have the constitutional right to 

enter the United States, and it is not really a denial of liberty to 

say you do not quality to be able to come into the United States. 

But they certainly are matters of great import and need to be 

treated with great care. 

Thank you for this panel. 

Chairman SPECTER. Thank you very much, Senator Sessions. 

With respect to the Board of Immigration Appeals, there has 

been a lot of dissatisfaction expressed from the one-line opinions 

and the reduction of number. The Chairman’s mark increases the 

number to 23, and provides for three-judge panels, and opinions to 

be written. 

Judge Walker, what is your evaluation of the current system 

with respect to placing an additional burden on the circuit courts 

which have to review them? 

Judge WALKER. Mr. Chairman, if the one-line orders are removed 

from the picture and the streamlining process is eliminated so that 

three-judge panels are deciding it, and more resources are given to 

the BIA, then the Courts of Appeals will have much more confidence in the BIA’s determination, and it will shift the first review 

from the Courts of Appeals, as it presently is now, back to the BIA, 

which is where it belongs. So I totally applaud this effort on the 

part of the Chairman, on the part of you, to give the BIA adequate 

resources and ask them to do their job of deciding these cases and 

doing so by written opinion. It will make a big difference to the 

Courts of Appeals. 

Chairman SPECTER. You talk about more confidence. If you have 

an opinion, do you have better analysis, do you have more— 

Judge WALKER. We don’t have confidence, frankly, that the BIA 

has really looked at the case. I mean, even though they’ve reviewed, they’re told—they affirm without order, but we look at the 

numbers, the drastic numbers that they have to deal with, 4,000 

cases per judge under the current system per year, which, as I 

pointed out, is a huge number per day, 80 per week or something 

of that sort, and so one really gets the sense that we are the first 

line of review for these cases. 

Mr. Chairman, if I could also point out the issue, or speak to the 

issue that you mentioned about the independence of the IJs. I am 

not sure that a lack of independence is a problem. I don’t have the 

specific numbers here, but I was surprised to learn that a large 

number of cases result in asylum being granted by the asylum officer before it even gets to the IJ, and then after it gets to the IJ, 

a high percentage, about, as I recall, some 30 percent are granted 

asylum by the IJs. We never see those cases. So a high percentage 

of cases—and I think that it would be useful to get these figures—

result in asylum being granted before the cases ever come into litigation. 

The cases that we see, of course, are the ones where the IJ is 

denied asylum, usually based on a finding of lack of credibility on 

the part of the petitioner, and that the BIA has summarily affirmed. And then it comes to us, and we just review the record to 

see whether the IJ had substantial evidence for the credibility determination. That’s the way these cases break down. But there are 

23

a whole lot of other cases that we never see, and I think we need 

to factor into this. And if that’s the case— 

Chairman SPECTER. On those cases which you do not see, do you 

think you should see them? 

Judge WALKER. No. I’m not saying we should see them. Nobody’s 

appealed them. I’m saying we don’t see them because the IJs have 

granted asylum, and they don’t come to us when the IJs have 

granted asylum. 

Chairman SPECTER. Do you sense that the decisions on asylum, 

for example, are decided by and large correctly by the immigration 

judge? 

Judge WALKER. Generally speaking, I think they do a good job, 

yes. I mean the only time it is an issue is when we can’t really tell 

how they went through the process, but in my view, the IJs are 

doing a good job of the cases that I see. When they’re denying asylum, I think that in most cases that is a correct decision. 

My point goes to the question of independence. It seems to me 

that the IJs are exercising independence if they are granting asylum in some cases and denying asylum in other cases. They’re looking at the cases as any judge would, taking an independent look 

at the facts, and deciding it under the law. 

I don’t see, and I would never suggest, frankly, based on anything that I’ve seen, that the Attorney General is overbearing in 

terms of the way the IJs are deciding the cases, that somehow 

pressure is being put on the IJs to come out a certain way. 

Chairman SPECTER. Judge Bea, would you try to comment on 

that? 

Judge BEA. In my own particular case, I had about a 12-page 

BIA decision, which was marvelously well reasoned and came to a 

terrific result. 

Chairman SPECTER. You won that case. 

Judge BEA. I won that case. Now, that doesn’t happen anymore, 

and the result is we get the one-line affirmance. And instead of 

having a three-judge panel that has analyzed the issues and gone 

to the one issue on which the case turns, and then you can check 

the record to see if that is correctly decided, we get a one-line affirmance and we have to take a look at the whole record below, and 

sort of fish through to see if there are any issues worthy of appeal. 

The cost is in time and delay, and I’m very conscious of the fact 

that 46 to 48 percent of our cases in the Ninth Circuit are immigration cases. If those were reassigned either to the Federal Circuit, or under Judge Newman’s proposal, to a panel, that would be 

a sea change as far as the Ninth Circuit would be concerned. 

Chairman SPECTER. Judge Newman, we hear complaints from 

time to time about various judges not Article III judges, who may 

be following the administration wish on Social Security cases or on 

immigration cases, and there has been a periodic push to have 

more independence along these judicial lines, so-called judicial 

lines, where they are not independent. It seems to me, when we are 

taking a look at rewriting the immigration laws, this is a chance 

for us to take a look and make some changes to the immigration 

judges. Do you think some modification would be desirable to grant 

greater independence to the immigration judges? 

24

Judge NEWMAN. I’m not certain. I think Judge Walker makes a 

very strong point, that taking the administrative process as a 

whole, that is to say, the asylum officer, then the IJ, then the BIA, 

the outcomes are sufficiently varied. There’s a very substantial 

grant of asylum along with the cases of denial. 

I think the outcomes of the whole process are such that it would 

not be entirely fair to suggest that that process is tilted against the 

asylum applicant. There are some individual cases that are, frankly, outrageous, and they’re being reversed, but as a total process, 

I think it’s working reasonably well. 

This isn’t—as Senator Sessions pointed out, this is an executive 

branch function. The Attorney General has this discretion, and 

whether that discretion should be exercised through IJs and BIAs 

that are structured within the Department, or structured outside 

the Department, it seems to me, frankly, is an executive branch decision that I, as an Article III judge, ought not to get into. I think 

that’s an executive branch choice, appropriate for the Senate to get 

into it. I don’t think I ought to, but I do think the outcomes do not 

cry out for a fundamental change. 

Chairman SPECTER. Judicial review is not an executive function. 

Judge NEWMAN. No. To the extent it is review—and that’s why 

I think everyone on this panel agrees that beefing up the capacity 

of the administrative process, giving them the number of personnel, 

and then giving the Department the number of attorneys to properly represent the interests of the United States, that is appropriate for us because we will get better reasoned decisions. 

Chairman SPECTER. Well, the Board of Immigration Appeals is a 

level of judicial review. 

Judge NEWMAN. Well, it is, but it’s within the Department of 

Justice. 

Chairman SPECTER. Well, it is now, but should it stay there? 

Judge NEWMAN. I really hesitate, as a member of the judicial 

branch, to advise the executive branch how it should be organized. 

Chairman SPECTER. How about advising the congressional 

branch, Article I? 

[Laughter.] 

Judge NEWMAN. I think you have plenty of knowledge, experience and expertise to make those judgments yourself. 

Chairman SPECTER. That is the first time in years that I have 

disagreed with you, Judge Newman. 

[Laughter.] 

Judge NEWMAN. I am so concerned about Article III judges maintaining their independence as an Article III branch, and one way 

to do that is to not meddle even with advice, invited as it is, in the 

affairs of the executive branch. If we have a case, we will rule, but 

I don’t think we ought to be telling them how to structure the executive branch, at least that’s my view. I don’t quarrel with anyone 

else doing it, I just prefer not to. 

Chairman SPECTER. Well, but the Congress is wrestling with the 

problem as to what is fair, what is just, what is appropriate? 

Judge NEWMAN. And you are the political branch, and it’s quite 

appropriate for you to do it. We’re not. 

Chairman SPECTER. But you have had the experience. We have 

not. You have seen these cases. We have not seen these cases. 

25

Judge NEWMAN. We have told you our view of the cases. Our 

view of the cases, as Judge Walker says, is that right now the totality of the administrative process, that is, asylum officer, IJ and 

BIA, is handling these cases without a pronounced tilt either way. 

Chairman SPECTER. Judge Bea. 

Judge BEA. I would agree with what Judge Newman said. I think 

when you get into the trial record, which we have to in reviewing 

the IJ’s decision, because in a one-liner from the BIA, we look at 

the last reasoned decision which is the IJ. I haven’t been able to 

see any particular tilt. I agree with Judge Newman that once in 

a while you get a bizarre result, and that’s why there’s an appeal 

process. But I’m only speaking toward my general favor of judicial 

independence, whether it’s Article III judges or any judge. 

Chairman SPECTER. Aside from the asylum cases, what are the 

other principal issues which the immigration judge considers and 

BIA considers? 

Judge BEA. Well, besides the asylum cases you have the removal 

cases which are caused by a person being removed because of a 

prior aggravated offense—prior aggravated felony. The question is, 

is this person, who is a legal permanent resident, removable because he has committed a crime which is, by Federal definition, a 

removable offense? 

And then there is—but I have to agree that right now we’re 

doing almost nothing but asylum cases. Now, asylum cases also 

break down not only into credibility issues, but what is persecution? Is it persecution to have discrimination but not incarceration? 

Is it discrimination to have a particular controlled birth policy, 

which now we have legislation on that issue? Those are the issues 

we are principally involved with. 

Chairman SPECTER. Senator Sessions, do you have any further 

questions for this panel? 

Senator SESSIONS. I thank the judges for their thoughts about 

this process, because, as I see it, it’s a classic executive branch 

matter. They must comply with the laws passed by Congress. They 

must follow the law in how they determine whether a person 

should enter or not be allowed to enter this country. They must not 

abuse their discretion in making credibility choices or other matters, but you give some deference to the administrative procedures 

in making those decisions. And it is from that that these appeals 

are all coming. 

I mean we have had the process of administrative review and 

then a final decision is then made that the applicant does not qualify for the immigration benefit they desire, and now they are appealing on the basis either the law was not followed or the judge 

who made the decision, abused discretion in some fashion. I think 

that is the proper way to do this because now we can blame the 

President if it is not working. Somebody is accountable. He can be 

blamed, I think, for not asking for enough judges. That is one thing 

he can be blamed for, and if he is not responding effectively to a 

backlog or we are not getting adequate opinions. 

So I think I am dubious about making a change from the Department of Justice. It seems to me that is the normal way we would 

do these things, and we should probably leave it right there. 

Chairman SPECTER. Thank you very much, Senator Sessions. 

26

One final question, Judge Michel. Senator Sessions thanked you 

for your consideration of the Chairman’s mark. Are you considering 

that? I know you are a good soldier, but I would be interested in 

your own thinking as to whether it is a wise idea, and part of that 

is the impact on the Federal Circuit on your other jurisdiction. 

Judge MICHEL. Right. Senator, the flip side of Judge Walker’s 

comment about judges for the Federal Circuit being selected on the 

basis of how the selector would predict they would rule on immigration decisions and asylum grants would be, I fear, could you get 

good contract lawyers, good personnel lawyers, good patent lawyers, good claims lawyers, good fifth Amendment taking lawyers? 

We have many cases like that. Tax lawyers, could you get lawyers 

interested in serving on the Federal Circuit if the diet, which Senator Sessions and Senator Cornyn pointed out, was 90 percent plus 

immigration cases? I would be very worried that you could not get 

top lawyers in any of those varied areas with the diet being 90 percent plus immigration cases. 

The other thing I would like to say to the Committee is that 

there is a underlying premise, as I sense it, in the idea of a certificate of reviewability that there are shortcuts here, and I agree with 

what all of my fellow judges have said, but I want to reinforce one 

aspect of it. 

My own experience in personnel cases, which for most of the 

quarter century life of our court have actually been our largest single caseload, not patent cases, personnel cases. They all turn on 

credibility. They are all reviewed under the substantial standard of 

review, just like the immigration cases are. And in every case the 

only way that a single judge or a panel of judges can make a reasoned, intelligent, reliable decision, is to read the testimony, read 

the opinion, if there is one, of the fact finder, read the primary documents in the record. It is a laborious painstaking process. There 

are no shortcuts. I think it’s entirely illusory to think that these 

12,000, 13,000, soon to be 14,000 cases per year can be handled on 

a shortcut basis either by staff or by judges. You have to read the 

whole file. 

Chairman SPECTER. Thank you very much, Judge Michel, Judge 

Walker, Judge Bea, Judge Newman and Judge Roll. We will just 

take a moment or two to thank the panel, and then call Panel No. 

II, Mr. Cohn and Mr. Martin. 

[Pause.] 

Chairman SPECTER. The Judiciary Committee will now resume 

with Panel No. II, and our first witness is Mr. Jonathan Cohn, the 

Deputy Assistant Attorney General in the Civil Division. Mr. Cohn 

is a graduate of the University of Pennsylvania, bachelor degree, 

summa cum laude; Harvard Law, magna cum laude; and was primary editor of the Harvard Law Review. 

Thank you very much for joining us, Mr. Cohn, and we look forward to your testimony. 

27

STATEMENT OF JONATHAN COHN, DEPUTY ASSISTANT ATTORNEY GENERAL, CIVIL DIVISION, DEPARTMENT OF JUSTICE, WASHINGTON, D.C. 

Mr. COHN. Thank you, Mr. Chairman, and members of the Committee. Thank you for allowing the Department to testify here 

today. 

I think we can all certainly agree that the immigration system 

is in dire need of change, and thus, the Department looks forward 

to working with the Committee in developing the most appropriate 

and effective solutions. 

Today, on behalf of the Department, I would like to address two 

particular sets of potential reforms. First, the provisions that were 

in Title VII-A of the Chairman’s mark, which would help reduce 

immigration litigation in the Federal Courts nationwide, and second, Title VII-B of the mark, which would effectively render the 

Executive Office for Immigration Review, or EOIR, an independent 

agency, unaccountable to the executive branch. 

The Department strongly supports most of VII-A and commends 

the Chairman for including it in his original mark. We cannot, 

however, support VII-B, because it would undermine the executive 

branch’s ability to control the border and effectuate immigration 

policy. 

If I may, I will start with VII-A. By way of background, since 

2001, there has been a 603 percent increase in the number of immigration appeals filed by aliens in the Federal Courts, often without a serious argument, and simply to achieve delay. This flood tide 

of cases presents a critical problem for the Department, the courts 

and the rule of law. 

First, the cases impose and intolerable drain on resources, requiring attorneys throughout the Department to put aside other 

critical work, and instead turn to writing immigration briefs. 

Second, the cases impose delay on the courts because of the 

growth in litigation. The Second Circuit, for example, now takes 

over 2 years to decide the average immigration appeal. As a result, 

illegal aliens can remain in the country, and aliens warranting relief, have to wait longer for legal status. The delay is not good for 

them either. Moreover, delay creates an increased incentive for illegal immigration because aliens know that by simply filing an appeal, however meritless, they can often stay in the country for 

years. 

Finally, there is even greater incentive to file frivolous appeals, 

thereby perpetuating an endless loop of more delay, more illegal 

immigration, and more litigation. The loop doesn’t end, it just gets 

worse. 

But Title VII-A would help break this loop, and stem the flood 

tide of immigration appeals. Most importantly, Section 707 would 

require an illegal alien to obtain a certificate of reviewability before 

he could pursue an appeal. This is precisely the same mechanism 

that exists in the habeas context as the result of a bill that the 

Chairman and Senator Hatch wisely introduced 11 years ago. It 

makes sense in the immigration context too. It would help reduce 

unnecessary litigation while simultaneously leaving the courthouse 

doors open to every single alien. No one, absolutely no one, would 

28

be precluded from raising his legal and constitutional claims. We 

support VII-A. 

We cannot, however, support VII-B. First and foremost, the provisions in VII-B largely insulate adjudicators and EOIR from any 

executive branch oversight or supervision. Immigration judges 

would be able to decide who stays and who goes without any prospect for review by the Attorney General, the Nation’s chief law enforcement officer. 

This is a problem because we can all agree that controlling one’s 

borders is a quintessential and critical element of sovereignty. It is 

inextricably intertwined with foreign policy, the economy and domestic security. Without question, the power to decide immigration 

cases and develop policy through case-by-case adjudication, should 

not be transferred to unaccountable agency officials. 

Finally, such a transfer is bad timing for two reasons. First, it 

is premature because it would short circuit the Attorney General’s 

comprehensive review of EOIR, which has been enthusiastically 

welcomed by the Federal Courts; and second, it would give rise to 

additional litigation as it would allow, and effectively require, the 

Secretary of Homeland Security to challenge erroneous agency decision I Federal Court. 

Once again, thank you very much for the opportunity to testify. 

I look forward to any questions that the Committee might have. 

[The prepared statement of Mr. Cohn appears as a submission 

for the record.] 

Chairman SPECTER. Thank you very much, Mr. Cohn. 

We now turn to Professor David Martin, professor of international law at the University of Virginia Law School; bachelor’s 

degree from DePauw University and a law degree from Yale, where 

he was editor-in-chief of the Yale Law Journal, quite a distinction. 

Thank you for coming in, Professor Martin, and we turn to you 

now. 

STATEMENT OF DAVID A. MARTIN, PROFESSOR OF LAW, 

UNIVERSITY OF VIRGINIA, CHARLOTTESVILLE, VIRGINIA 

Mr. MARTIN. Thank you very much, Mr. Chairman, Senator Sessions. I appreciate the invitation to be here and address these important questions. I have taught and written about immigration 

law and constitutional law for 25 years, and I have also served as 

General Counsel at the Immigration and Naturalization Service for 

two and a half years in the mid 1990’s, and that afforded me some 

close inside acquaintance with how review affects the operations of 

the agencies. 

The Committee is right to be concerned about the current system 

for administrative and judicial review of immigration decisions. it 

has been under stress in recent years with some of the difficult 

consequences that Mr. Cohn, in his testimony, has talked about. 

But it would be unwise, in my opinion, to consolidate all judicial 

appeals in the Federal Circuit. The Nation and the agencies involved actually benefit from the involvement of the general jurisdiction courts and the consideration of immigration issues. They 

have been finding ways to adapt to the new caseload. Their efforts 

should be allowed time to mature. 

29

Also, I believe that the single-judge screening mechanism provided by Section 707, would risk denying court consideration in 

cases where careful review should be provided. It might also prove 

counterproductive, ultimately creating more work for the court or 

courts involved, as Judge Michel suggested in the earlier panel. 

The remedies should focus instead on restoring sound functioning 

by the Board of Immigration Appeals and the immigration judges. 

This requires both additional resources and the return, in essence, 

to a system of administrative and appellate review that operated 

before the 2002 streamlining regulations. 

Let me turn to the issue of consolidation. Two main arguments 

are offered in support of consolidation, one having to do with a risk 

of forum shopping, and the other the important desirability for uniformity and consistency in administration. Forum shopping, I 

would submit, is not a significant issue after amendments adopted 

by the Congress in 1996, that require that review be had in the circuit with jurisdiction over the place where the immigration judge 

issued the initial ruling. That initial venue is largely determined 

by where the Department of Homeland Security files the case. 

As to consistency and uniformity, the focus on a few well-known 

circuit splits obscures the vast range of complex issues on which 

there is no real dispute, or where courts have properly deferred to 

administrative interpretations. I was very much involved in the internal process in implementing the 1996 changes, presenting a lot 

of complex issues. We worked hard in resolving those questions. I 

have been pleased to see over the years that most of those resolutions that we achieved have simply been accepted and have not 

been challenged. 

It is only a small number of instances that the circuits have split, 

but these differences are probably beneficial for the overall health 

of the system, because circuit splits serve the purpose of helping 

to signal when there are ambiguities in the law, significant constitutional issues, or difficulties in reconciling the many policy objectives our immigration laws serve. 

Ultimate resolution by the Supreme Court benefits from the efforts of seasoned judges from different circuits to analyze the issues 

afresh. If all appeals went only to the Federal Circuit, a prematurely uniform resolution of truly difficult questions might impede this valuable percolation process. I would add that Congress 

is also quite capable of resolving circuit splits over statutory interpretation. It did so in the REAL Id Act passed last year. I addressed one of the specific splits in the circuits, that over standards 

for reviewing credibility determinations that has been invoked in 

some of the testimony. And Section 705 of the Chairman’s mark 

would resolve another oft-invoked split over reinstatement of removal. 

With regard to the certificate of reviewability, like the Judicial 

Conference and several of the judges here, I urge the Committee 

not to adopt that procedure. The individuals involved in standard 

removal cases deserve at least one opportunity for full consideration by Article III judges. We should at least gain more experience 

with the full impact of the current judicial management measures 

that the circuits have adopted before undertaking so sharp a departure from our usual approach to court access where individual 

30

stakes may be quite high, and constitutional claims may be implicated. 

Furthermore, screening mechanisms of this kind ordinarily presuppose the availability of robust review of the initial decision elsewhere. With the 2002 changes at the BIA, unfortunately, this is not 

the case in many of the cases in immigration law. 

The Department of Justice has analogized this procedure to the 

certificate of appealability and the habeas framework, but that is 

provided for a screening of appeals from a full decision by a district 

court judge and its collateral review after full direct review has 

been available earlier. At issue here is the only opportunity for direct judicial review of immigration decisions. So I agree with the 

Judicial Conference’s conclusions on that point. 

If I might have just 30 seconds to finish up. 

Chairman SPECTER. Go ahead, Professor Martin. 

Mr. MARTIN. Thank you very much. The Federal Judicial Conference, the U.S. Judicial Conference suggested in its response to 

Section 707, and I quote, ‘‘Streamlining both the administrative 

and appellate review of immigration cases raises concerns about 

whether the process would provide a meaningful review.’’ 

As that letter indirectly suggests, the current stresses on the system for judicial review could best be addressed by restoring sound 

functioning of the adjudication and appeals system at the administrative level, and Title VII of the Chairman’s mark contains many 

promising provisions to this end. 

The most useful investment that Congress could make in solving 

the problems would be additional resources for the immigration 

courts and the Board of Immigration Appeals. Also restoring the 

Board to the size of 23, or perhaps at some point, to even more 

members. 

Section 712 of the Chairman’s mark would also make very important changes in the procedures set up by the 2002 regulations. Particularly, it would greatly limit the occasions in which single-member decisions, affirmances without opinion, or other summary dispositions would be permitted. I think this would reduce litigant 

frustration that has contributed to the striking increase in appeals, 

and for those appeals that are still taken, as the judges said, such 

administrative treatment should foster prompt resolution by the 

courts and help assure proper deference to administrative decisions. 

Thank you. 

[The prepared statement of Mr. Martin appears as a submission 

for the record.] 

Chairman SPECTER. Thank you very much, Professor Martin. 

Mr. Cohn, in your testimony and in your written statement, you 

say the provision in Title VII-B would insulate adjudicators in the 

Executive Office of Immigration Review from executive branch 

oversight or supervision. Where you have immigration review by 

the immigration officer or the Board of Immigration Appeals, isn’t 

that essentially a judicial function? 

Mr. COHN. Mr. Chairman, it is not essentially a judicial function. 

As the Supreme Court has recognized, the execution of the immigration laws is the quintessential sovereign function, is, in fact, the 

quintessential executive branch function. 

31

When you look at the types of cases that come before the IJs and 

the BIA, it makes sense why the AG should have review of their 

decisions. We were talking about fundamental decisions that affect 

foreign policy and national security. 

Chairman SPECTER. Well, those decisions, foreign policy and national security, are involved in the decision by the circuit courts 

when they review what has been done. Obviously, you are not making any claim that the judicial review by the circuit would be subject to executive control under Article II. And when you have judicial review, it is pretty hard, it seems to me, to say it is anything 

but judicial review where you have an immigration judge—you call 

him a judge—where you have a Board of Immigration Appeals—

you call it an appeal. It seems to me those are essentially judicial 

functions. 

Now, maybe it is working our fine and does not need to be altered. But you have already stated your opinion. I just have a question about— 

Mr. COHN. If I may, though, some decisions are not reviewed by 

the Federal courts. For instance, most forms of relief are discretionary—asylum, adjustment of status, cancellation. And under the 

INA, the Federal courts do not and cannot review the discretionary 

determinations. Those are properly left to the executive branch. 

Chairman SPECTER. But the circuit courts of appeal review them. 

Mr. MARTIN. No, they don’t. Under 242(a)(2)(B)(ii), they do not 

have jurisdiction to review those discretionary determinations. 

Chairman SPECTER. Well, if there is an asylum appeal, is that 

discretionary? 

Mr. MARTIN. There are some factual and legal elements in the 

asylum case which are reviewable, and there is a carve-out for the 

discretionary— 

Chairman SPECTER. Well, wait, wait— 

Mr. MARTIN [continuing]. Determination for asylum. 

Chairman SPECTER. Asylum cases are discretionary and reviewable. 

Mr. MARTIN. There is a carve-out in 242(a)(2)(B)(ii) for asylum, 

but for instance, adjustment of status for cancellation, those final 

discretionary determinations are currently unreviewable. And those 

determinations would be made by the IJs and the Board without 

any oversight by the Attorney General if Title VII-B were enacted. 

And let’s look at a couple of examples because this gives life to 

the point, give some life to the argument. Over the past 5 years, 

the Attorney General, back when Ashcroft was the Attorney General, he heard a couple cases involving claims for discretionary relief. One involved a terrorist. Another involved a child abuser who 

killed a baby by shaking it. In those cases, the Board granted discretionary relief, but the Attorney General stepped in and reversed 

it. 

Being opposed to terrorists and child abuse, I think that the Attorney General made a wise decision in stepping in and reversing 

those discretionary determinations. 

Chairman SPECTER. How do you account for the decisions by the 

Board of Immigration Appeals? 

Mr. MARTIN. Even hard-working, committed civil servants sometimes make mistakes, and that is why you want to have— 

32

Chairman SPECTER. How about the Attorney General making 

mistakes? 

Mr. MARTIN. And that is why you want the decision— 

Chairman SPECTER. How about the Attorney General making 

mistakes? 

Mr. MARTIN. If the Attorney General makes a mistake, he is directly accountable to the President, who is accountable to the 

American people, and political action should be taken. And that is 

precisely why these very sensitive determinations should remain in 

the hands of accountable executive branch officials and not immigration judges and unaccountable Board members. 

Chairman SPECTER. Mr. Cohn, the Department of Justice has no 

objection to adding more Board of Immigration Appeals personnel 

and to having three of those in the Board make the decision and 

writing opinions? 

Mr. COHN. Both of those matters are currently being reviewed by 

the Attorney General as part of his top-to-bottom comprehensive 

review, which has been warmly welcomed by the Federal judges 

and the immigration bar as a whole. At this point we think it is 

premature to preempt that review and take action in that regard. 

He is considering both the issue of whether to cut back on the use 

of AWOs, affirmance without opinions, and also considering whether the size of the Board should be changed. 

Chairman SPECTER. Well, just one follow-up question. My red 

light is on. You say it would be premature, but the Congress is considering immigration reform. Are you suggesting that it is beyond 

our purview to make a judgment on those questions just because 

the Attorney General has not finished his top-to-bottom review? 

Mr. COHN. Oh, absolutely not. Mr. Chairman. It is definitely your 

prerogative to act now. I was just suggesting that it might make 

sense to hold back just a little bit. The review is shortly going to 

be completed, and if the Attorney General does not take reforms 

that measure up to what this Committee would like to see, then 

at that point it makes sense, I believe— 

Chairman SPECTER. Mr. Cohn, I do not know how to hold back 

a little. I wanted to hold this bill back a little and was put—not 

on the fast track, but on the speed track. So if the Attorney General has something to tell us, it would be very useful if he would 

do so before we make an independent judgment, although we prize 

our independence, too. 

Senator Sessions? 

Senator SESSIONS. Well, Mr. Cohn, are you saying that the Department of Justice may request more immigration judges but have 

not yet done so? 

Mr. COHN. Oh, there are two issues. One is the question of resources, and we have requested more immigration judges. 

Senator SESSIONS. When did you do that? Is that part of this 

year’s budget request or last year’s? 

Mr. COHN. Yes, in this year’s budget request. We have also requested more attorneys for my office, the Office of Immigration 

Litigation. We are currently overwhelmed by the flood tide of cases, 

and the President requested roughly $10 million more to cover 114 

new positions, including 86 new attorneys. What I was referring to 

earlier is the composition of the Board, the number of Board memVerDate 0ct 09 2002 10:15 Sep 06, 2006 Jkt 029672 PO 00000 Frm 00036 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\28339.TXT SJUD4 PsN: CMORC
33

bers, and for that, the Attorney General is reviewing that issue and 

has not made a determination on that. 

Senator SESSIONS. What Board members are you referring to 

there? 

Mr. COHN. Sure. Within the— 

Senator SESSIONS. I mean, what precisely do you mean? What 

Board are you talking about? 

Mr. COHN. The Board of Immigration Appeals. That is the body 

in the Department of Justice that reviews the decisions of the immigration judges. 

Senator SESSIONS. All right. Well, first, I think it has been slow 

coming to this. Obviously, we have got a problem and sometimes 

the fact that you have insufficient resources exacerbates the problem in a lot of different ways. For example, is it correct that it is 

a 600-percent increase in appeals since 2001? 

Mr. COHN. Absolutely, Senator. 

Senator SESSIONS. I mean, that is an incredible number, 6 times 

the number of appeals just since 2001. We are not seeing that 

many more people come into our country. So obviously, there is just 

more litigation. 

Mr. COHN. Much more litigation, and there are two reasons for 

it. The first is there is increased enforcement, and the second is the 

appeal rate has risen. The rate at which aliens challenge the decisions of the Board of Immigration Appeals in the Federal courts 

has increased dramatically since 2002. In 2002, the rate of appeal 

was only 10 percent nationwide, and this past year, it reached 30 

percent. That is a tremendous increase in the rate of appeal. 

What is interesting is the conventional wisdom, as Professor 

Martin noted, is that the reason for the increase in appeals is the 

increase in the affirmances without opinions, the AWOs. But that 

conventional wisdom is actually erroneous. The rate of appeal, 

again, in 2002 was 10 percent, but back then 31 percent of all 

Board decisions were AWOs. Now, only 20 percent of Board decisions are AWOs, yet the appeal rate has risen to 30 percent. That 

is directly contrary to the conventional wisdom that Professor Martin— 

Senator SESSIONS. Well, are they winning more on appeal? Does 

that indicate that there are more errors made? What is the reversal rate? 

Mr. COHN. The reversal rate is extremely low, Senator. If you 

look at cases that are terminated on the merits, the Department 

of Justice prevails in 86 percent of those cases nationwide. Oftentimes, people point to the Seventh Circuit, which reversed us last 

year 39 percent, but the Seventh Circuit is an outlier in that regard, and they have only 2 percent of the total number of appeals. 

Eighty-six percent is the nationwide number, and that understates 

the rate of success of the Board for a couple reasons. First of all, 

it does not take into account the procedural victories. If you take 

those into account, the rate of success is over 90 percent. Also, it 

does not take into account the very large number of cases that 

never make it to Federal court. In 2005, there were 265,000 decisions by immigration judges in removal cases, and there were only 

560 or so reversals by the Federal courts. 

34

So if you look at those numbers, it is unfair to suggest that the 

Board is making erroneous decisions systematically. In fact, I think 

those numbers show the Board, despite the large volume, is doing 

a very fine job. 

Senator SESSIONS. Tell me about this, though. It takes 27 

months—I saw on page 3 of your testimony—to process a BIA appeal. What does that mean? Does that mean from the time that the 

Board of Immigration Appeals rules or the time the appeal is filed 

is 27 months? 

Mr. COHN. It is from the time the appeal is filed. An alien has 

30 days to file the appeal, and then once he files it, it took on average 27 months for the Second Circuit to decide the case. And that 

is a problem, as you know, because that delay— 

Senator SESSIONS. Now, wait a minute, 27 months from the time 

he appealed from the BIA, the immigration judge’s ruling, or from 

the time the appeal from the initial determination? 

Mr. COHN. It is calculated from the time the alien appeals the 

BIA’s decision to Federal court. 

Senator SESSIONS. Well, that is an extraordinary number there. 

I mean, during this time what if this person was not supposed to 

be here, clearly, and they have just filed an appeal because they 

know it is going to take on average 27 months, and they get to stay 

here 2 more years. Is that what is happening out there? Is that 

driving some of the increase in appeals? 

Mr. COHN. In our view, that is absolutely what is happening. If 

I were an attorney— 

Senator SESSIONS. Now, let me ask you this: To the extent to 

which this is in your responsibility, the Department of Justice, I 

can blame the President. But I cannot blame the President about 

this, can I? I mean, this is the time it leaves the executive branch 

for 27 months to the judicial branch. They have lifetime appointments. 

Mr. COHN. Yes, Senator. This is not the President’s fault at all. 

Senator SESSIONS. I can’t even cut their pay. 

Mr. COHN. That is exactly right, Senator. 

Senator SESSIONS. So we need—I believe this system is broken. 

It is not working effectively, and these delays indicate part of it, 

and the longer the delays occur, would you not agree, the more 

likely people will appeal for frivolous, unsound reasons, but simply 

to get the delay. 

Mr. COHN. Absolutely. 

Mr. MARTIN. Senator? 

Senator SESSIONS. Should we have—did you want to— 

Mr. MARTIN. If I could just comment on part of that, if that 

would be all right, the delay factor, clearly it has been a situation 

in immigration appeals that the chance for delay can bring about 

some additional appeals. But that factor operates no differently 

after 2002 than it did before 2002. I don’t think that can really account for the change in the appeal rate from 10 percent to 25 or 

30 percent of BIA decisions being appealed to the courts in that period of time. 

Mr. Cohn suggested I was somewhat saddled with the conventional wisdom as to why that change had taken place. Actually, in 

my testimony, I offer a more complete explanation or analysis of 

35

why that change has occurred. But it is really worth reflecting that 

the change—there is a marked change around the time of the regulatory changes in 2002 in the way that the BIA, the Board of Immigration Appeals, deals with their appeals. 

I think, as I suggested in my testimony, we should look very 

closely at undoing some of those procedures and augmenting the 

resources of the Board, and I think that would over time have an 

impact on reducing the appeal rate and allowing the courts also to 

get much more on top of their overall caseload. They have been 

making headway along those lines. 

Mr. COHN. If I may, if it is possible, I would like to respond to 

a point the professor made about delay. He says delay cannot account for the increase in appeals, there was delay before, but a few 

points. 

First of all, the delay in the courts has increased. In 9 of the 11 

circuit courts, there has been a significant increase in the delay in 

the past few years. 

In the Second Circuit, as I noted, there is an increase of roughly 

170 percent. There has been a tremendous increase in delay, and 

that gives rise to the incentive for aliens to file these frivolous appeals just to get delay. 

The second point, before 2002, the Board provided a lot of delay 

because of their backlog. But the backlog is gone. There isn’t so 

much delay. It takes months instead of years for the Board to decide cases. So aliens who want delay can’t rely on the Board anymore. They have to file their appeal, however meritless, in the 

courts of appeals, and that is why delay matters. 

Finally, it is interesting to note that the appeal rate did not rise 

precipitously after streamlining the AWOs. It rose recently perhaps 

as a result of the conventional wisdom catching on. The more that 

advocates and judges and Members of Congress speak of the problems with the Board, which really don’t exist, there is more reason 

for aliens and their attorneys to think that there is relief in the circuit courts. They are not winning in the circuit courts, but they 

hear the conventional wisdom, and they think that is a reason to 

appeal. 

Chairman SPECTER. Thank you, Senator Sessions. 

Senator SESSIONS. Sorry to go over, Mr. Chairman. 

Chairman SPECTER. Professor Martin, what is your view of the 

Chairman’s mark to increase the number of Board of Immigration 

Appeals to 23 and have the requirement that they sit in panels of 

three and write opinions? 

Mr. MARTIN. I would favor that change. I think that that is necessary, given the volume of immigration appellate business. And I 

think there may be some instances in which a single-member disposition may be appropriate, but it would be a very short list of 

very discretely identified circumstances, such as was the case 

under the 1999 regulations, much more carefully designed, had a 

much more limited use of summary dispositions. So I would favor 

that. 

If I might also address the independence question that you raised 

earlier with Mr. Cohn, if that would be OK? 

Chairman SPECTER. Go ahead. 

36

Mr. MARTIN. It is clearly important to have immigration judges 

and Board members act independently in the individual decisions 

that they make. Nobody disputes it would be improper for someone 

from the Justice Department or the private bar to call up the decisionmaker and influence the way in which it should come out. 

There are parts of the Chairman’s mark that I think would help 

to make sure that there is adequate insulation along those lines. 

For example, a stated term of reasonable length for— 

Chairman SPECTER. Do you think there is adequate insulation, 

as you put it, available now? 

Mr. MARTIN. Well, I do. In general, I think that is the case, and 

I think the reaction from the judges, when you posed a similar 

question to them, reflects that there is not a major problem with 

undue influence or a skewing of results under the current structure 

of the Board. 

Chairman SPECTER. Professor Martin, if the Attorney General 

does not like the result reached by the immigration judge and affirmed by the Board of Immigration Appeals, why wouldn’t it be a 

better process to have him take the appeal to the circuit court rather than simply disagreeing with those two judicial decisions? 

Mr. MARTIN. Well, I think that is the second part of overall independence. The decisional independence by the judges when they 

make their decision, or the Board, there is a very limited procedure 

now, as the Chairman knows, for the Attorney General in a formal 

procedure to take referral or certification of the case and issue the 

final decision, essentially become the highest level of administrative appellate review. That is a formalized— 

Chairman SPECTER. The Attorney General personally. 

Mr. MARTIN. The Attorney General personally, that is right. And 

I think— 

Chairman SPECTER. Well, is that— 

Mr. MARTIN. —that is appropriate— 

Chairman SPECTER. Is that more desirable than having the circuit court, if the Government wins, the individual goes to the circuit court. If the Government loses, why shouldn’t the Government 

go to the circuit court? 

Mr. MARTIN. Well, I do think there is a limited range of issues. 

This certification process has been sparingly used. There is a limited range of issues where there are difficult questions of both policy and law that are involved in a decision by the BIA or ultimately 

by the Attorney General. To have the possibility on a limited range 

of occasions for the Attorney General to take certification, to decide 

that matter, to draw upon his own perspective on foreign policy implications, national security implications, I think that is appropriate. But the Attorney General has to write an opinion, has to 

give formal reasons, and the Attorney General’s decision in that 

way is subject, as it should be, to court of appeals review. 

Chairman SPECTER. Well, if the matter involves foreign policy 

and national security, those issues are decided by the circuit courts 

if the appellate process goes in favor of the Government. 

Mr. MARTIN. That is true, and I think it is a close question as 

to whether that structure for more independence from the Attorney 

General would be superior to what we have now. 

37

I just want to point out that the current system does not involve, 

in my mind, undue influence by the enforcement branch in this 

field, and the way in which the Attorney General can issue a precedent decision on a very limited range of occasions structures and 

confines any role that the Attorney General has. 

Chairman SPECTER. What would you think of having the immigration judges ranked by the Merit Systems Protection Board and 

dischargeable only for cause and reviewed by the Merit Systems 

Protection Board? 

Mr. MARTIN. Well, I think I am not deeply familiar with the 

ranking system by the Merit Systems Protection Board. There certainly have been issues of—occasional issues of quality of performance by certain individual judges, so that might be appropriate. 

I do think it is a good system to have a stated term of years with 

removability only for cause. I would want to think more carefully 

about whether that should ultimately be reviewable in the Merit 

Systems Protection Board rather than leaving a bit more discretion 

to the Attorney General to decide whether or not good cause has 

been shown for removal. But it is very rare to remove an immigration judge. 

Chairman SPECTER. Thank you, Professor Martin. 

Senator Sessions, you have the last word. 

Senator SESSIONS. Thank you. Well, that question of the executive branch taking itself—it really would be taking itself to court 

because the bureau of appeals is an executive branch/Department 

of Justice entity and so is the Attorney General, so they are suing 

one another in court. In our scheme of Government, often misunderstood, they are heads that make final decisions, so this simply says that the Attorney General, Mr. Cohn—I want to get this 

straight. You talked about Attorney General Ashcroft had overruled the BIA’s final decision, right? But you indicated that was 

the final decision, but his decision then is subject to appeal to the 

courts to make sure he conducted his process in a fair and objective 

way, followed the law, and acted within his discretion. Is that not 

right? 

Mr. COHN. That is right, Senator. 

Senator SESSIONS. So what you are talking about is you always 

need to look for a final decision of the executive branch, and it simply allows the Attorney General to make that branch as an accountable officer who has a name, who has a responsibility to the 

public, who can be held account and the person who appoints him 

can be held accountable. But these judges have got terms and outside of the Department of Justice and the whole political process, 

they are not answerable to anybody if we go with the suggestion 

we have heard here. Would you agree that that would be a problem, Mr. Cohn? 

Mr. COHN. I could not agree more with you. That is absolutely 

correct. That would be a problem if you had unaccountable immigration judges and Board members deciding these matters, which 

involve quintessential sovereign functions. The keys to our borders 

should not be handed over to unaccountable officials. 

Senator SESSIONS. And just for the record, I don’t know if you 

mentioned this, but the streamlining procedures that allow one 

38

judge to make the decision and can affirm without opinion, those 

were—that procedure was established in 1999. Is that right? 

Mr. COHN. That is right, Senator. 

Senator SESSIONS. That was when Attorney General Janet Reno 

was the Attorney General of the United States. 

Mr. COHN. Yes, that is right, Senator. They were revised in 2002, 

but the original streamlining was in 1999, and it is important to 

note, again, that the year before Attorney General Ashcroft 

changed the procedures, 31 percent of all Board decisions were 

AWOs, which is higher, about 50 percent higher, than what it is 

today. 

Mr. MARTIN. Could I address that? 

Senator SESSIONS. Go ahead. 

Mr. MARTIN. Because the 1999 regulations did provide for AWOs, 

affirmances without opinion. But it allowed them in a much more 

limited range of circumstances. It was much more carefully crafted 

to focus only on truly frivolous substanceless appeals. The rate was 

high because the Board was trying initially to clear out a lot of the 

old weak appeals, and they were able to do that at a high level at 

that time. 

It is very different under the current situation where a much 

wider range of cases can be resolved, to the frustration of many 

judges, as we saw in the earlier panel. 

Senator SESSIONS. With regard to this asylum question, my time 

is about out, and I do not want you to go over, if you can avoid 

it. But you have worked on that a lot, I think, Mr. Martin and Mr. 

Cohn. Is there any way we can draft the statute so asylum is clearer and have clearer standards so that it is easier to review on appeal and can result in less appeals and less decisions being made 

based on the length of the chancellor’s foot or how he may feel that 

day? Do you think we could do better with that? 

Mr. COHN. You definitely could, Senator, and one way to reduce 

the rate of appeal, of course, is this Certificate of Reviewability I 

have because that would allow the courts to eliminate the frivolous 

appeals expeditiously, thereby reducing the incentive that aliens 

have to file the frivolous appeals. And some judges have suggested 

that particular cases are difficult to decide, and they have to look 

at the entire record. And some might be, and in those cases they 

can grant the Certificate of Reviewability. But many cases are not 

very difficult to decide. In some cases, the alien makes no argument at all in his brief and just files a brief to get delay. Sometimes he files the brief out of time. It is untimely, there is no jurisdiction, but there is still a delay. It does not require three judges 

to see that a brief has no argument or is filed out of time. 

And in some cases, even when there is a timely brief with an argument, it is clear the argument is meritless. For instance, in one 

recent case, an alien claimed he was going to face persecution back 

in Mexico because he hurt his elbow and could not work a manual 

labor job. Well, of course, he admitted that he is currently in the 

United States working a manual labor job as a fence builder, so 

that claim is facially frivolous. Nonetheless, it does take time. It 

delays his proceedings. He can remain in the country longer. 

Senator SESSIONS. Mr. Martin, any final comments? My time is 

about up. 

39

Mr. MARTIN. Thank you. I will be brief. 

I take it that at least a part of your question was about whether 

the asylum provisions themselves could be rewritten to make the 

standards crisper and cleaner. I think that is unlikely to work. 

Many countries around the world, democratic countries, are struggling with this. A lot of them face difficulty asylum caseloads. The 

best I think we have been able to do is develop a body of case law 

that has provided much—some clearer guidelines along the way, 

and those issues have gradually been settling in over time. I think 

we have made a lot of progress in improving the efficiency of the 

asylum system. 

So I think that is the way to do it, and I think we can continue. 

It is an important commitment to this country from our earliest 

days to provide asylum. And as frustrating and difficult as that can 

be, I believe we can structure a system that adequately protects individuals and still allows for efficient resolution of the claims. 

Chairman SPECTER. Thank you, Senator Sessions. Thank you, 

Mr. Cohn. Thank you, Professor Martin. 

Without objection, we will introduce the written statement of 

Senator Leahy, who could not be here because of a prior commitment. This hearing was scheduled just a week ago today. And also 

the statements of Chief Judge Schroeder of the Ninth Circuit, 

Judge Kozinski of the Ninth Circuit, Judge Posner of the Seventh 

Circuit, and the Judicial Conference of the United States. 

Thank you all. 

[Whereupon, at 12:18 p.m., the Committee was adjourned.] 

[Questions and answers and submissions for the record follow.] 

[Additional material is being retained in the Committee files.]

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