U.S. GOVERNMENT PUBLISHING OFFICE

30–995 WASHINGTON : 2018

OVERSIGHT OF THE EXECUTIVE OFFICE FOR 

IMMIGRATION REVIEW 

HEARING 

BEFORE THE

SUBCOMMITTEE ON 

IMMIGRATION AND BORDER SECURITY 

OF THE

COMMITTEE ON THE JUDICIARY 

HOUSE OF REPRESENTATIVES 

ONE HUNDRED FIFTEENTH CONGRESS 

FIRST SESSION 

NOVEMBER 1, 2017 

Serial No. 115–31 

Printed for the use of the Committee on the Judiciary 

( 

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


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COMMITTEE ON THE JUDICIARY 

BOB GOODLATTE, Virginia, Chairman 

F. JAMES SENSENBRENNER, JR., 

Wisconsin 

LAMAR SMITH, Texas 

STEVE CHABOT, Ohio 

DARRELL E. ISSA, California 

STEVE KING, Iowa 

TRENT FRANKS, Arizona 

LOUIE GOHMERT, Texas 

JIM JORDAN, Ohio 

TED POE, Texas 

JASON CHAFFETZ, Utah 

TOM MARINO, Pennsylvania 

TREY GOWDY, South Carolina 

RAU ́ L LABRADOR, Idaho 

BLAKE FARENTHOLD, Texas 

DOUG COLLINS, Georgia 

RON DESANTIS, Florida 

KEN BUCK, Colorado 

JOHN RATCLIFFE, Texas 

MARTHA ROBY, Alabama 

MATT GAETZ, Florida 

MIKE JOHNSON, Louisiana 

ANDY BIGGS, Arizona 

JOHN CONYERS, JR., Michigan 

JERROLD NADLER, New York 

ZOE LOFGREN, California 

SHEILA JACKSON LEE, Texas 

STEVE COHEN, Tennessee 

HENRY C. ‘‘HANK’’ JOHNSON, JR., Georgia 

THEODORE E. DEUTCH, Florida 

LUIS V. GUTIE ́ RREZ, Illinois 

KAREN BASS, California 

CEDRIC L. RICHMOND, Louisiana 

HAKEEM S. JEFFRIES, New York 

DAVID CICILLINE, Rhode Island 

ERIC SWALWELL, California 

TED LIEU, California 

JAMIE RASKIN, Maryland 

PRAMILA JAYAPAL, Washington 

BRAD SCHNEIDER, Illinois 

SHELLEY HUSBAND, Chief of Staff and General Counsel 

PERRY APELBAUM, Minority Staff Director and Chief Counsel 

SUBCOMMITTEE ON IMMIGRATION AND BORDER SECURITY

JIM SENSENBRENNER, Jr., Wisconsin, Chairman 

RAU ́ L R. LABRADOR, Idaho, Vice-Chairman 

LAMAR SMITH, Texas 

STEVE KING, Iowa 

JIM JORDAN, Ohio 

KEN BUCK, Colorado 

MIKE JOHNSON, Louisiana 

ANDY BIGGS, Arizona 

ZOE LOFGREN, California 

LUIS V. GUTIE ́ RREZ, Illinois 

PRAMILA JAYAPAL, Washington 

SHEILA JACKSON LEE, Texas 

DAVID CICILLINE, Rhode Island 


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C O N T E N T S 

NOVEMBER 1, 2017 

OPENING STATEMENTS 

Page 

The Honorable Rau ́l Labrador, Idaho, Chairman, Subcommittee on Immigration and Border Security, Committee on the Judiciary .................................... 1 

The Honorable Zoe Lofgren, California, Ranking Member, Subcommittee on 

Immigration and Border Security, Committee on the Judiciary ...................... 3 

The Honorable John Conyers, Michigan, Ranking Member, Committee on 

the Judiciary ......................................................................................................... 5 

The Honorable Bob Goodlatte, Virginia, Chairman, Committee on the Judiciary ......................................................................................................................... 13

WITNESSES 

Mr. James McHenry, Acting Director, Executive Office for Immigration Review, U.S. Department of Justice 

Oral Statement ................................................................................................. 7 

OFFICIAL HEARING RECORD 

Responses to Questions for the Record from Mr. James McHenry, Acting 

Director, Executive Office for Immigration Review, U.S. Department of 

Justice 

http://docs.house.gov/meetings/JU/JU01/20171101/106561/HHRG115-JU01-20171101-SD005.pdf 


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ADDITIONAL MATERIAL SUBMITTED FOR THE RECORD

Statement of A. Ashley Tabaddor, President, National Association of Immigration 

Judges. Submitted by the Honorable Rau ́l Labrador, Idaho, Chairman, Subcommittee on Immigration and Border Security, Committee on the Judiciary. This 

material is available at the Committee and can be accessed on the Committee Repository at: 

http://docs.house.gov/meetings/JU/JU01/20171101/106561/HHRG-115- 

JU01-20171101-SD003.pdf 

Donald Trump promises ‘deportation force’ to remove 11 million and President 

Trump’s Immigration Policy Takes Shape. Submitted by the Honorable John Conyers, Michigan, Ranking Member, Committee on the Judiciary. This material is 

available at the Committee and can be accessed on the Committee Repository at: 

http://docs.house.gov/meetings/JU/JU01/20171101/106561/HHRG-115- 

JU01-20171101-SD002.pdf 

New York City ICARE Juvenile Docket letter, National Association of Immigration 

Judges, National Immigrant Justice Center, American-Arab Anti-Discrimination 

Committee, American Immigration Council, American Immigration Lawyers Association, Hebrew Immigrant Aid Society, Human Rights First, Kids in Need of Defense (KIND), Lutheran Immigration and Refugee Service (LIRS), National Immigration Law Center, Northern Illinois Justice for Our Neighbors, Tahirih Justice 

Center, USC International Human Rights Clinic, U.S. Committee for Refugees 

and Immigrants (USCRI) and Women’s Refugee Commission, and The Association 

of Pro Bono Counsel. Submitted by the Honorable Zoe Lofgren, California, Ranking Member, Subcommittee on Immigration and Border Security, Committee on 

the Judiciary. This material is available at the Committee and can be accessed 

on the Committee Repository at: 

https://docs.house.gov/meetings/JU/JU01/20171101/106561/HHRG-115- 

JU01-20171101-SD004.pdf 

Statement from the Honorable Sheila Jackson Lee of Texas for the hearing on Oversight of the Executive Office for Immigration Review. Submitted by the Honorable 

Sheila Jackson Lee, Texas, Member, Subcommittee on Immigration and Border 

Security, Committee on the Judiciary. This material is available at the Committee 

and can be accessed on the Committee Repository at: 

http://docs.house.gov/meetings/JU/JU01/20171101/106561/HHRG-115- 

JU01-State-J000032-20171101.pdf 


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OVERSIGHT OF THE EXECUTIVE OFFICE FOR 

IMMIGRATION REVIEW 

WEDNESDAY, NOVEMBER 1, 2017 

HOUSE OF REPRESENTATIVES

SUBCOMMITTEE ON IMMIGRATION AND BORDER SECURITY

COMMITTEE ON THE JUDICIARY

Washington, DC 

The subcommittee met, pursuant to call, at 2:05 p.m., in Room 

2141, Rayburn House Office Building, Hon. Rau ́l R. Labrador 

[chairman of the subcommittee] presiding. 

Present: Representatives Labrador, Goodlatte, Sensenbrenner, 

King, Jordan, Buck, Johnson, Biggs, Lofgren, Conyers, Jackson 

Lee, and Cicilline. 

Staff Present: Joseph Edlow, Counsel; Maunica Sthanki, Minority Counsel; and Sabrina Hancock, Clerk 

Mr. LABRADOR. The Subcommittee on Immigration and Border 

Security will come to order. Without objection, the chair is authorized to declare recesses of the committee at any time. 

We welcome everyone to today’s hearing on Oversight of the Executive Office for Immigration Review, and now I recognize myself 

for an opening statement. 

Today’s oversight hearing focuses on a critical facet of U.S. Immigration policy. The Executive Office for Immigration Review, or 

EOIR, is the linchpin of Immigration law as it administers, among 

other components, the U.S. Immigration Courts and the Board of 

Immigration Appeals. 

The adjudication and appeals of immigration matters is of critical importance to the proper administration of justice in this country, and we must ensure that our immigration laws are interpreted 

as Congress intended. 

As a former immigration practitioner who regularly appeared in 

immigration court, I certainly understand and appreciate just how 

important it is that the courts are administered effectively, and in 

a way that maximizes docket management and minimizes fraud 

and delay. 

Unfortunately, EOIR has been plagued by management problems 

that have consistently hampered its ability to operate the courts. 

During the past administration, the Department of Justice’s Inspector General’s office found that the office engaged in nepotism 

and other inappropriate practices. 


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These disturbing findings served as a distraction for EOIR making it impossible to focus on much-needed improvement. 

Additionally, a 2014 server crash paralyzed the courts nationwide for several weeks, again, necessitating the allocation of resources away from management and oversight of the agencies. 

The policies and practices instituted during the Obama administration served a decidedly political agenda throughout the Federal 

Government, and EOIR was not spared. 

Companion memos to those issued by the Department of Homeland Security and prosecutorial discretion and administrative closure policies raised, at a minimum, the specter of collusion between 

Department of Justice and the Department of Homeland Security. 

The prioritization of recent entrants, including the surges of unaccompanied minors and family units, likewise, were ill-advised 

and poorly executed. 

Ignoring the irrefutable evidence of spikes and asylum fraud before the court, EOIR chose its focus based on political expediency 

rather than judicial prudence. 

It is against this backdrop that the incoming leadership must 

begin to restore this agency and where necessary, needs to overhaul it. 

Of utmost concern to this subcommittee is the current backlog of 

pending cases. I am appalled, but really not surprised, that the 

previous administration created conditions that ultimately resulted 

in a backlog of almost 630,000 pending cases nationwide. This 

number represents a 22 percent increase in fiscal year 2017, and 

is simply unacceptable. The Government Accountability Office’s recent report on management practices at EOIR and the backlog 

identified several possible solutions, including reforming the hiring 

process for Immigration judges, and updating internal oversight 

practices to ensure better docket management. 

The GAO report noted that continuances were a contributing factor to the backlog. The report found that from 2006 through 2015, 

the court saw 23 percent increase in the grants of continuances. 

I would never suggest that continuances be disallowed. They can 

be valuable for attorney preparation. I’ve experienced that myself 

for purposes, and are essential and critical evidence must still be 

collected. However, the rash of continuances used for the purposes 

of delay, constitute and abuse of process that must be stopped. 

The July 2017 memo from Chief Judge MaryBeth Keller, outlining EOIR continuance, is a tremendous step in curbing this 

abuse, but represents only one of the solutions to reduce the number of pending cases. 

The GAO report further noted the inefficiencies associated with 

the hiring of additional Immigration judges, as your written testimony acknowledged, the Trump administration, through its immigration principles, has called for the hiring of an additional 370 immigration judges. 

I remain concerned that EOIR must reevaluate hiring practices 

and processes to meet even a fraction of this goal. 

The time between an initial job posting to the actual onboarding 

of a judge must be reduced. 


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Finally, I have long spoken about the need to modernize our immigration system. One of the key components must be the modernization of our immigration courts. 

EOIR currently lags behind other Federal courts in terms of 

basic items, such as filings and other similar items. This was never 

a priority for the previous administration as the U.S. immigration 

courts are one of the last remaining Federal adjudicative bodies relying on paper filings. 

Employing an e-filing system would drastically reduce the need 

for more filing space, and overall reduce the number of lost filings 

that could also lead to unnecessary delays. 

In addition, EOIR relies on other technology, such as video teleconference system, or VTC, but there are concerns that this equipment is either outdated in some locations, or not operational at all 

in others. 

With the challenges facing EOIR today, and the solutions of the 

new administration, I am hopeful that we can work together to 

bring real change to the agency and continue the goals of modernizing and reforming our immigration system. 

Before I recognize the gentlewoman from California, I would ask 

unanimous consent to place into the record, a statement from 

Judge Ashley Tabaddor, President of the National Association of 

immigration Judges. 

Without objection, the statement will be placed in the record. 

This material is available at the Committee or on the Committee 

repository at: http://docs.house.gov/meetings/JU/JU01/20171101/ 

106561/HHRG-115-JU01-20171101-SD003.pdf. 

Mr. LABRADOR. I now recognize our ranking member, Ms. Lofgren of California, for her opening statement. 

Ms. LOFGREN. The last time the Immigration Subcommittee 

gathered for an EOIR oversight hearing, we heard testimony from 

the former EOIR Director Juan Osuna. 

In August of this year, Juan passed away suddenly, and I would 

like to take a moment to acknowledge his life and service to this 

country. Juan worked for 17 years as a Senior immigration legal 

adviser in the Justice Department for both Democratic and Republican administrations. He was a former Board of Immigration Appeals Judge and Former Associate Deputy Attorney General in 

charge of immigration policy at the Department of Justice. Juan 

had a remarkable career in public service, and he will be greatly 

missed, and I would like to extend my heartfelt condolences to his 

family over this loss. 

We are assembled here now to take a close look at the administration of our immigration court system. The Executive Office of 

Immigration Review currently employs 339 immigration judges in 

58 courtrooms around the country. 

Immigration judges have a complex, often thankless task of making sophisticated legal decisions with decisive speed. Because there 

is no right to government-appointed counsel, immigration judges 

often have to act as a fact-finder and legal researcher to ensure 

that the result in each case is just, fair, and in accordance with 

legal precedent. The difficulty of this task is magnified by the severity of the consequences. 


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Immigration Judge Dana Leigh Marks has once said that immigration proceedings are, quote, ‘‘like death penalty cases heard in 

traffic court.’’ This is particularly true for asylum seekers, children, 

and other vulnerable populations. 

Yet despite these difficulties, the Trump administration has 

taken steps towards imposing numeric and performance quotas on 

immigration judges. This could add an additional obstacle to the 

immigration judge juggling act by requiring faster case completions 

with fewer continuances and shorter evidentiary hearings. 

In his written testimony, our witness states that ‘‘EOIR is transforming its institutional culture to emphasize the importance of 

completing cases.’’ He claims that this will improve the efficiency 

of our court system, but I don’t think it will do more, except increase the number of immigration removals, speedy deportations, 

and, also, increase appeals in our Federal court system. 

Much of the discussion today will focus on the immigration court 

backlog and ways that this can be reduced. I want to start by saying that Congress must fully fund hiring of immigration judges, 

law clerks, technology, and infrastructure. 

The immigration court backlog will not be fully remedied by policy shifts alone, it must include sufficient appropriations. But the 

immigration backlog is not one that happened overnight. There are 

reasons for the backlog. 

First, immigration enforcement, specifically funding for ICE and 

CBP, far outpace the funding for immigration courts. 

From 2002 to the present day, funding for immigration enforcement increased by over 400 percent. ICE and CBP went from a 

budget of $4.5 billion in 2002 to over $20 billion in 2017. In contrast, EOIR’s budget increased only 70 percent. 

This means that at the same time ICE and CBP are funneling 

cases into the immigration court system, the courts are not given 

requisite amounts of resources to adjudicate with speed and efficiency, and it’s created a massive bottleneck and backlog, which 

we’re seeing today. 

EOIR currently has approximately 640,000 cases pending, and in 

some courts, immigrants can wait 3 to 5 years to receive a final decision on their case. 

Immigration judges currently have an average caseload of close 

to 1900 cases. For perspective, the average caseload of U.S. District 

court judge is 440. 

Second, under both the Obama and Trump administration, EOIR 

implemented policy that prioritize cases at the southern border to 

the detriment of cases in the interior of the country. 

Under President Obama, EOIR implemented a rocket docket that 

expedited the cases of recent border crosses. These cases primarily 

consisted of children and families from Central America who were 

fleeing violence and seeking asylum. This EOIR implemented a 

last-in-first-out strategy, which meant that removal cases of immigrants who had been waiting for months or years were further delayed. 

Now, under the Trump administration, EOIR moved immigration 

judges from already backlogged courts to detention centers along 

the southern border. NewsPedia reports that many of these judges 

sat in empty courtrooms with little to do. 


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In his written testimony, our witness states that the mobilized 

judges completed approximately 2,700 more cases than expected if 

they had not been detailed, but what he fails to mention is that 

these so-called surge of immigration judges, over 20,000 non-detained immigration court hearings were rescheduled. 

We all agree that our border must remain secure and immigration courts must ensure that those who enter our country seeking 

protection be afforded due process and a full and impartial hearing 

in a prompt manner, but this cannot come at the expense of immigration court backlogs in the interior of the country. 

And lastly, one of the primary reasons for the immigration court 

backlog is a continued lack of representation, particularly for children and other vulnerable populations. 

When a respondent, particularly a child, appears in immigration 

court without legal representation, an immigration judge will 

spend a considerable amount of time assessing the child and determining her legal options. This is precisely what a judge should do 

when a vulnerable child is presented in a courtroom without legal 

representation, but it, nevertheless, creates delays for other respondents. 

The National Association of Immigration Judges has explained 

that, quote, ‘‘When noncitizens are represented by attorneys, immigration judges are able to conduct proceedings more expeditiously 

and resolve cases more quickly.’’ This conclusion is supported by 

outside economic consulting firms, which found that governmentfunded counsel would actually save the country $38 million 

through expedited hearing process and reduced detention. That’s 

why I’m proud to be the lead sponsor for the Fair Day in Court for 

Kids Act. My bill would provide government counsel to children, 

and, particularly, vulnerable individuals. This would help reduce 

the immigration court backlog, save the government money, and 

ensure that the due process rights of children are protected. 

I hope my Republican colleagues will join me in sponsoring this 

bill, and I look forward to a substantive discussion on our immigration court system today. And I yield back the balance of my name. 

Mr. LABRADOR. Thank you, Ms. Lofgren. I would now like to recognize the full committee ranking member, Mr. Conyers of Michigan, for his opening statement. 

Mr. CONYERS. Thank you, Chairman Labrador. And I want to let 

my colleague from California know that I am a cosponsor of her 

legislation with great pride. 

Members of the committee and to our distinguished witness, I, 

too, want to note the passing of Juan Osuna who served as the director of the Executive Office of Immigration Review, and who testified before this subcommittee in that capacity. 

Mr. Osuna was a model public servant who devoted the last 17 

years of his life to the Department of Justice. He was of a consummate professional, known for his leadership and the ability to balance access to justice with court efficiency. And I’m sure he’s deeply missed by the Department and those that work with him there. 

Now, turning to the focus of today’s hearing, we have an important opportunity to consider the current challenges facing the Executive Office for Immigration Review, particularly under the current 

administration. 


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To begin with, rather than the rule of law, is guiding immigration court policy under the Trump administration: the anti-immigrant ideology. 

Now, after all, since the earliest days of his campaign, now-President Trump has shown troubling disregard for that rule. He’s attacked the judiciary, issued an unprecedented pardon of a sheriff 

convicted of criminal contempt of court, and fired the FBI Director 

during an ongoing investigation by that agency into his own campaign. 

Unfortunately, the Executive Office for Immigration Review appears to have not escaped this broad erosion of rule of law principles based on the administration’s policies that threaten judicial 

independence, due process, and fundamental fairness within our 

immigration courts. 

First, media accounts report that the Trump administration 

could impose numerical and time-based case quotas on immigration 

judges. 

All of us, regardless of party, support commonsense measures for 

reducing immigration court backlogs, but quotas are not the solution. Their implementation would force already overstretched 

judges to hurry through lengthy dockets regardless of the circumstances of individual cases. Hearings would become lightning 

fast, fundamentally unfair, and devoid of due process. In short, a 

quota system would turn immigration courts into a forced march 

toward deportation. 

Secondly, the administration issued a memorandum effectively 

pressuring judges to deny motions for continuances, which often 

represent a vulnerable immigrant’s only chance for obtaining counsel essential to protecting his or her rights. 

Together, with case quotas, this will force many respondents, 

even young children, to face Immigration and Custom Enforcement 

prosecutors without counsel, which all but ensures their unjust removal. 

Thirdly, the Executive Office for Immigration Review has moved 

to strip children in immigration proceedings of other vital protections. In a callous break with prior policy, the agent’s office of general counsel issued an opinion concluding that immigration judges 

may revoke minors, unaccompanied alien child status, and associated legal safeguards. As with the first two measures, this will substantially increase removal of minors. 

The common denominators among these three measures are 

clear: far less due process and fairness; far more deportations, 

which is anything but the rule of law. 

Instead, these policies undermine that rule in the service of the 

President’s anti-immigrant ideology, intended to drive immigrants 

out of the United States. 

Our task today must be to gain a greater understanding of how 

this administration’s Executive Office for Immigration Review policies concretely advance that agenda and how they serve to further 

his mass deportation plan. 

I thank Acting Director McHenry for his appearance before the 

subcommittee and look forward to a substantive dialogue with him 

on these critical matters. 


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I thank the chair, and yield back any time that may be remaining. 

Mr. LABRADOR. Thank you, Mr. Conyers. 

Without objection, other members’ opening statements will be 

made a part of the record. 

We have a distinguished panel here today, a panel of one. And 

the witness’ written statement will be entered into the record in its 

entirety. 

I ask that you summarize your testimony in 5 minutes or less. 

To help you stay within that time, there is a timing light on your 

table. When the light switches from green to yellow, you will have 

1 minute to conclude your testimony. 

When the light turns red, it signals that your 5 minutes have expired. I will give you a little bit of leeway because you’re the only 

witness, but don’t go much beyond the 5 minutes. 

And before I introduce our witness, I would like you to stand and 

be sworn in. 

Do you swear that the testimony you’re about to give is the 

truth, the whole truth and nothing but the truth? 

Mr. MCHENRY. I do. 

Mr. LABRADOR. Let the record reflect that the witness answered 

in the affirmative. 

Thank you. Please be seated. 

Mr. McHenry was appointed Acting Director of the Executive Office for Immigration Review on May 30th, 2017. 

Prior to his appointment, he served as the Deputy Associate Attorney General in the Office of the Associate Attorney General. He 

was previously an administrative law judge for the Office of Disability Adjudication and Review in the Social Security Administration. Mr. McHenry has also worked as an attorney for the U.S. Immigration and Customs Enforcement. 

Mr. McHenry earned a bachelor of science from the Georgetown 

University School of Foreign Service, a master of art in political 

science from the Vanderbilt University Graduate School, and a 

juris doctor from the Vanderbilt University Law School. 

I now recognize Mr. McHenry for his statement. 

STATEMENT OF JAMES McHENRY, ACTING DIRECTOR, EXECUTIVE OFFICE FOR IMMIGRATION REVIEW, UNITED STATES 

DEPARTMENT OF JUSTICE 

Mr. MCHENRY. Thank you, Mr. Chairman, Representative Lofgren, and other distinguished members of the subcommittee. 

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

Department of Justice’s Executive Office for Immigration Review, 

or as we affectionately call it, EOIR. 

This is my third stint with the agency during my government career, and I have a deep respect for EOIR’s mission. 

I began my legal career as a judicial law clerk at EOIR for immigration judges, and then I returned to the agency several years 

later as an administrative law judge. 

I am honored to now serve as its Acting Director and to be able 

to appear before you to discuss some of the challenges and opportunities it currently faces. 


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At EOIR, our primary mission is to adjudicate immigration cases 

by fairly, expeditiously, and uniformly interpreting and administering the Nation’s immigration laws. 

We do that under delegated authority from the Attorney General 

by conducting immigration court hearings, administrative hearings, 

and appellate reviews. 

The last several years have raised significant challenges for 

EOIR as policy changes and docket management practices have 

contributed to a pronounced increase in pending immigration cases. 

EOIR’s pending caseload currently is approximately 640,000, which 

is an all-time high. The caseload has almost tripled since fiscal 

year 2009, and doubled since fiscal year 2012. 

Addressing this caseload is a top priority for the agency. And 

EOIR has formulated a multi-front plan to achieve our goal of expeditiously reducing the number of pending cases while maintaining due process. 

We are actively implementing a number of initiatives towards 

that goal that I’m happy to talk about today. 

First, we’re increasing our adjudicatory capacity by hiring more 

immigration judges. We’ve hired 61 new judges since January 1, 

and we’re in the process of filling up to 42 additional positions utilizing a new streamlined hiring process announced by the Attorney 

General earlier this year. 

Second, we are maximizing our existing adjudicatory capacity by 

addressing both docket inefficiencies and unused courtroom capacity. For example, earlier this year, we issued guidance to assist immigration judges with fair and efficient docket management practices related to continuances. 

We have also implemented a policy of ‘‘no dark courtrooms’’ by 

expanding our use of video teleconferencing, and by rehiring retired 

immigration judges on a part-time basis to hear cases as needed, 

when permanent immigration judges are unavailable. 

Third, we are transforming EOIR’s institutional culture and improving its infrastructure by focusing on reorienting the agency towards its core mission of adjudicating cases, and by upgrading our 

infrastructure to switch from a paper-based to an electronic-based 

system. We are committed to piloting an electronic filing system in 

2018. 

Fourth, we are working with our Federal partners, particularly 

at the Department of Homeland Security, to ensure that any influx, 

sudden influx of new cases, does not undermine our efforts. 

Fifth, we are reviewing all of our internal regulations and policies to evaluate ways in which our own guidance may be utilized 

more effectively in the disposition of pending cases. 

All these initiatives are beginning to yield some signs of 

progress. For instance, in fiscal year 2017, our judges completed 

approximately 20,000 more cases than they did the prior fiscal year 

and the most cases overall since fiscal year 2012. But we know that 

more challenges lie ahead of us. 

There are two other EOIR programs that I would like to mention 

for the subcommittee, for they are also integral to the overall success of the agency. 

First, we have expanded our Fraud and Abuse Prevention program, and in June, I issued a directive reminding all EOIR employVerDate Sep 11 2014 06:02 Aug 11, 2018 Jkt 030995 PO 00000 Frm 00012 Fmt 6633 Sfmt 6602 E:\HR\OC\A995.XXX A995

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ees of their responsibility to report suspected fraud and abuse, particularly in regard to applications for relief or protection in immigration proceedings. EOIR has no tolerance for misrepresentations 

or fraud in our system. 

Second, we have reinvigorated our strategic planning and analytics division, which has been underutilized in the past few years. 

None of our efforts can be successful without solid data analysis, 

and we are pleased to have a robust analytics division to aid us in 

our policy development and implementation. 

Mr. Chairman, Representative Lofgren, I am proud of EOIR and 

proud of its employees, and I am also proud to highlight some of 

the progress that we have made. 

However, we are also cognizant that more work needs to be done. 

Nevertheless, we are confident that with the continued support of 

the Department of Justice and Congress, we will continue to make 

significant strides in 2018 in reversing some of the negative trends 

of the recent past. 

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

may have. 

Mr. McHenry’s written statement is available at the Committee 

or on the Committee Repository at: http://docs.house.gov/meetings/ 

ju/ju01/20171101/106561/hhrg-115-ju01-wstate-mchenryj-20171101. 

pdf. 

Mr. LABRADOR. Thank you, Mr. McHenry. We will now proceed 

under the 5-minute rule with questions. 

I will begin by recognizing myself for 5 minutes. 

Mr. MCHENRY, how many immigration judges do you anticipate 

hiring and onboarding in the upcoming fiscal year? 

Mr. MCHENRY. It’s hard to say for the entire fiscal year. We have 

19 that are currently in the pipeline, and we’re in the process of 

hiring up to 42 additional ones. So that would be a total of 61. Beyond that, it will be depend on factors, such as availability, retirements, and things like that. But at least 61 by the spring of next 

year. 

Mr. LABRADOR. What step is EOIR taking to begin the process 

of converting to an e-filing system? 

Mr. MCHENRY. We have had several meetings with our Office of 

Information Technology, and I have made it clear, in no uncertain 

terms, that e-filing and electronic case system is an absolute priority for the agency. 

We have begun piloting—well, we have begun developing a process to pilot an electronic filing system next year, but it’s more than 

just an electronic filing system; it’s an overall electronic case management system. 

We’re in the process of developing the prototype for it now and 

soliciting additional feedback, but I am confident that we will have 

a pilot of some type in one or more immigration courts by 2018. 

Mr. LABRADOR. Okay. Judge Keller’s memorandum of July 2017 

provided the framework for continuances in immigration court. 

How is EOIR able to enforce that memorandum and ensure that 

immigration judges are not overtly ignoring it when ruling on continuances? 

Mr. MCHENRY. The memorandum, by its own terms, it’s an operating policies and procedures memorandum, doesn’t direct a deterVerDate Sep 11 2014 06:02 Aug 11, 2018 Jkt 030995 PO 00000 Frm 00013 Fmt 6633 Sfmt 6602 E:\HR\OC\A995.XXX A995

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mination in specific cases. It does remind judges, however, of considerations they should keep in mind regarding docket efficiencies 

when entertaining certain types of continuance requests. 

That memorandum was issued at the end of July, so we’ve just 

come upon about a 3-month window since it went into effect, and 

we’re just now getting the data to analyze it. 

Once we review the data and see what it shows, then we’ll take 

appropriate steps, if necessary, to go back and revisit it. 

Mr. LABRADOR. Do you have any preliminary findings from the 

data you’ve looked at so far? 

Mr. MCHENRY. We had a couple of initial findings, but there 

seem to be some data quality issues, and that’s why we’re going 

back and double-checking them. 

Mr. LABRADOR. Okay. Much of today’s hearing focuses on the 

backlog, which as previously stated, stands at about 630,000 pending cases. To what extent do you believe that the reallocation of resources and judges to so-called priority dockets of unaccompanied 

minors and family units beginning in 2014 contributed to the backlog? 

Mr. MCHENRY. I don’t believe there’s any question that it contributed to the backlog in a significant way. A measurement of the 

precise magnitude is perhaps a little difficult to come by, but it’s 

clear, especially unaccompanied alien children cases, they typically 

take longer to resolve than other cases, other immigration cases for 

various reasons. So by putting them to the front of the line, you 

put cases that take longer to resolve first and then you continue 

cases that otherwise might have been resolved in their place. So it’s 

had a significant impact, as I said, though, I’m not sure that we 

can—— 

Mr. LABRADOR. So it’s almost the opposite of triage. That we actually put the ones that takes the longest in the beginning instead 

of taking care of the ones that we could handle right away. 

Mr. MCHENRY. It was a system that was counterproductive, I 

think, to its stated goal of trying to resolve the cases more quickly. 

Mr. LABRADOR. Does EOIR still prioritize these cases? 

Mr. MCHENRY. We changed our priorities for the third time in 

3 years in January of this year. That was before I became Acting 

Director, so I can’t speak entirely to the process that drove that. 

Currently, our priorities regarding unaccompanied children are 

only those who are in the custody of the Department of Health and 

Human Services. Other unaccompanied alien children are no longer 

considered a priority. But I can say that within the agency, within 

EOIR as a whole, myself, my senior management team, are reviewing our overall priorities in general and looking at whether that 

priorities memo, the last one that we issued, is still the best statement of how we look at cases. 

Mr. LABRADOR. As EOIR is considering instituting certain performance metrics for immigration judges, including possible case 

completion goals, how would you expect such metrics to impact the 

current backlog? 

Mr. MCHENRY. Well, EOIR already operates under a number of 

performance metrics, some of those are established by the Immigration and Nationality Act. Some of those have been developed by 

the Government Performance and Results Act, or GPRA. Those reVerDate Sep 11 2014 06:02 Aug 11, 2018 Jkt 030995 PO 00000 Frm 00014 Fmt 6633 Sfmt 6602 E:\HR\OC\A995.XXX A995

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sults have been positive so far, the goals that we do have. We 

would anticipate if we develop new goals, and we’ve been recommended to do those by the GAO, the Office of the Inspector General, by Congress. If we develop those new goals, we would expect 

the judges to be able to comply with those as well. We feel our 

judges are professional enough that they can understand the importance of adjudicating cases, while at the same time, maintaining 

due process in each individual case. 

Mr. LABRADOR. So according to tract data, the average number 

of days that a case is pending before the immigration court is 691. 

It seems that it is meaningless for ICE to apprehend individuals 

and place them into removal proceedings if they will then be in 

limbo for over 2 years before there is final disposition of their case. 

What is EOIR doing to reduce this average number of days pending? 

Mr. MCHENRY. On data, I think, I don’t have it in terms of days, 

I have it in terms of months, of the average pending non-detained 

case is approximately 21 months. But we are trying to reduce that. 

As I mentioned, we’re looking at docketing efficiencies, we’re looking at instituting specialized dockets to try to consolidate cases, 

achieve efficiencies of scale. We’re also committed to no more dark 

courtrooms. Whenever we have a judge who is absent, we’re going 

to have, either by VTC or rehired—retired immigration judge, be 

able to hear those cases in their absence. Together, that should 

start to bring the average down. 

Mr. LABRADOR. Thank you very much. 

I now recognize the gentlelady from California, Ms. Lofgren. 

Ms. LOFGREN. Thank you, Mr. Chairman. It’s good news that 

we’re making progress on the electronic case filing system. So that 

would be, I think there’s unanimous support here for that success. 

I do have some concerns, however, about some of the other proposals. I wanted to raise an issue, first, about the—what I understand is disbanding the juvenile court docket in New York City. 

It’s my understanding that almost the highest amount of pro 

bono service was provided to children in New York. And I’d like to 

ask unanimous consent, Mr. Chairman, to enter into the record a 

letter from Kids in Need of Defense, Safe Passage Project, and The 

Legal Aid Society of New York, and The Door about the closure of 

this docket. Can you explain the decision in this case? Or am I incorrect? 

This material is available at the Committee or on the Committee 

repository at: https://docs.house.gov/meetings/JU/JU01/20171101/ 

106561/HHRG-115-JU01-20171101-SD004.pdf. 

Mr. MCHENRY. My understanding is that occurred in January of 

this year. I was not at EOIR at the time, so I can’t speak to what 

was the driving force behind it. I do know, as I alluded to a moment ago, we issued a new priorities memo about the same time 

that limited the types of unaccompanied alien child cases that were 

considered priorities. So I assume that had something to do with 

it, but I can’t speak to it directly. 

Ms. LOFGREN. You know, in immigration removal proceedings, 

we all know that the government doesn’t provide lawyers. And I 

think it was one Supreme Court decision that described immigration law as close to the complexity of tax law. I think they deVerDate Sep 11 2014 06:02 Aug 11, 2018 Jkt 030995 PO 00000 Frm 00015 Fmt 6633 Sfmt 6602 E:\HR\OC\A995.XXX A995

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scribed it as ‘‘bugs on the page.’’ That’s problematic for an adult, 

but for a child, it’s very challenging. There are children, some as 

young as 3 or 4, representing themselves in immigration court. 

In 2016, Assistant Chief Immigration Judge Jack Weil made the 

claim that he was able to teach 3- and 4-year-olds to represent 

themselves in immigration court. Do you believe it’s possible for a 

3- or 4-year-old to represent themselves in immigration court? 

Mr. MCHENRY. I can’t speak for Judge Weil directly. 

Ms. LOFGREN. No, but I asked what you think. 

Mr. MCHENRY. But our judges don’t teach the law. That’s not 

their role. Their role is to adjudicate the case. 

Ms. LOFGREN. No, I understand that. But do you think a 3- or 

4-year-old has the legal capacity to understand the consequences of 

their statements, the validity of immigration claims? 

Mr. MCHENRY. As the parent of a 4-year old, I can say no. 

Ms. LOFGREN. Thank you. I have 2-year-old twin grandsons, so 

heading towards 4. 

Thinking about the need to get representation for these kids—I 

won’t ask you to comment on my bill—but you’re going to have continuances because judges have an obligation to uphold due process 

and fairness. And I’m just wondering whether you might be willing 

to revisit the decision in New York and to take a look about how 

we could enhance representation of children, not only for fairness 

to them, but for efficiency in the system? 

Mr. MCHENRY. I will look into that. 

Ms. LOFGREN. I would like to talk also about the hiring issues. 

In your testimony, you talk about streamlining the hiring process. 

And it reminded me of the concern that we had here in 2008 when 

the Bush administration went on a hiring spree, and the Department of Justice found that Monica Goodling and others violated the 

Federal law and committed misconduct when they considered political and ideological affiliations when selecting immigration judges, 

and the EOIR’s hiring process was reformed to prevent that from 

ever happening again. 

Have you changed those standards that were implemented following that hiring scandal to expedite, or are they basically the 

same and you’re moving through them quicker? 

Mr. MCHENRY. The process is very similar. It’s still conducted according to merit systems principles. 

The new process, however, has specific deadlines that each component has to meet. That’s one of the things that makes it faster 

and more streamlined. 

Ms. LOFGREN. I’d like to just close with this: We remember when 

John Ashcroft was Attorney General. And streamlined measures at 

the Board of Immigration Appeals, which resulted in lack of opinions, which caused a flood of appeals to the Court of Appeals. And 

I’m concerned—and as a matter of fact, the immigration judges 

have written to us indicating their concern that these metrics are 

going to result in the same kind of flood of appeals to the court of 

Appeals. And that rather than making the process more efficient, 

the change—and this is a quote from their letter—‘‘will encourage 

individual and class action litigation creating even more backlogs.’’ 


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We certainly do need to have efficiency in the system, but I am 

concerned, as are the judges, that having these metrics is going to 

backfire on us. 

And I would ask unanimous consent, Mr. Chairman, to place in 

the record a letter from the—a statement from the National Immigrant Justice Center, letter from 13 immigration groups—and did 

you put the letter from the judges in the record already? 

Mr. LABRADOR. Yes. 

Ms. LOFGREN. Okay. Then I will not ask for that. 

Mr. LABRADOR. All right. 

Ms. LOFGREN. Unanimous consent? 

Mr. LABRADOR. Without objection. 

This material is available at the Committee or on the Committee 

repository at: https://docs.house.gov/meetings/JU/JU01/20171101/ 

106561/HHRG-115-JU01-20171101-SD004.pdf. 

Ms. LOFGREN. Thank you. And I yield back. 

Mr. LABRADOR. The chair now recognizes the chairman of the full 

committee for his statement. 

Chairman GOODLATTE. Thank you, Mr. Chairman. I apologize for 

being late, but I do appreciate your holding this hearing on a very 

important subject. 

The Executive Office for Immigration Review is charged with the 

administration of the U.S. immigration courts and the Board of Immigration Appeals. As a component of the Department of Justice, 

EOIR has the task of adjudicating immigration cases, and ultimately interpreting the immigration laws enacted by Congress. 

I am pleased that today, we can conduct our critical oversight 

role and hear more about the future of our immigration court system. 

Just as in any other court matter or appeal, the onus is on the 

trier of fact to ensure that the law is applied correctly, and that 

justice ultimately prevails. 

Over the past several years, this committee has engaged in review, both in an oversight capacity, and in the form of legislative 

action of the Obama administration’s failed immigration policies. 

The politicization of the immigration courts and the clear bias by 

former individuals in top administration jobs, have led to a degradation of the courts. 

The U.S. immigration courts, and, to a lesser extent, the BIA, are 

often thought of as a policy mechanism of whatever administration 

is in office. This was unfortunately illustrated by guidance aimed 

at ensuring that immigration judges were playing their role in carrying out the Obama DACA initiative. 

While politics certainly played a role, mismanagement of the 

agency and the apparent lack of any meaningful guidance on docket control has resulted in an explosion of pending cases, some with 

hearing dates more than 5 years from now. 

The allocation of resources to so-called priority dockets have left 

the typical non-detained alien without resolution, but with almost 

certain ability to receive work authorization in the United States. 

Rampant continuances or postponements of both initial and 

merit hearings have further escalated this backlog, which has 

reached epic proportions. 


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As we know, the GAO identified several sources for the backlog. 

I am eager to hear about EOIR plans to hire additional immigration judges to implement best management practices and to potentially set some metrics for case completion. 

Make no mistake, immigration judges must be autonomous and 

without bias while hearing cases and rendering decisions. But they 

must also be mindful of all components of the administration of 

justice. 

Needless changes of venue or continuances made in bad faith for 

the purpose of delay are detrimental to our system and should not 

be tolerated. 

It may turn out that legislative action is the best recourse to ensure that no matter what administration is in charge and what 

their principles may be, EOIR will have clear statutory parameters 

under which to function. I look forward to hearing from our witness 

on that issue. 

There is no question that Congress must take action to reform 

many facets of immigration law in an attempt to ensure national 

security and streamline the process. But those actions will mean 

little if EOIR continues to lag behind the rest of the system. 

Resource allocation must be prioritized to ensure that detailed 

judges have full dockets and incoming judges have courtrooms 

waiting. EOIR plays a vital role within the U.S. immigration system and the time has long past to make necessary reforms. 

I’m encouraged by the steps taken in the past 10 months to address some of the issues already raised, and I look forward to hearing more about that. 

Mr. McHenry, welcome. Thank you for your work. And I’ll start 

with a question on the extent to which additional immigration 

judges in courts along the border accelerate removal proceedings, 

especially for those aliens referred following a positive credible fear 

determination. What’s your opinion on that? 

Mr. MCHENRY. I haven’t seen a specific proposal, and we would 

have to take into consideration a number of logistical factors, staffing, personnel, things like that. If the idea would be to send them 

to detention facilities, we would also have to coordinate that with 

the Department of Homeland Security. So in the absence of a specific proposal, I’m not sure I can give a broad opinion. 

Chairman GOODLATTE. The GAO noted that a strategic workforce 

plan was needed at EOIR in order to better anticipate workforce 

concerns, including the eventual replacement of immigration judges 

eligible for retirement. 

As 39 percent of immigration judges are currently eligible for retirement, has a workforce plan been created and implemented at 

the agency? 

Mr. MCHENRY. We completed the plan, actually, just before I became the Acting Director. And we’ve set up a staffing committee 

subsequently that’s doing a top-to-bottom review of all positions 

within immigration courts. So that plan is in motion. 

As to the immigration judge retirements, that’s been a common 

issue that we’ve heard in the past. With the number of actual retirements averages fewer than 10 per year over the past decade. 

So the number hasn’t quite gotten to a critical point. 


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Even if it were greater, we believe, under the new streamlined 

hiring plan, we’re able to replace those judges within 6 months that 

wouldn’t have a strong negative effect as it has in the past. 

Chairman GOODLATTE. Thank you. 

Going back to my first question. What would you—I think we all 

agree that you need more judges. Do you agree with that? 

Mr. MCHENRY. Yes. 

Chairman GOODLATTE. Okay. So how would you deploy those 

judges? 

Mr. MCHENRY. We would look at a variety of factors. We would 

look at where the dockets are the most critical, where we have the 

largest dockets, but we also have to be mindful of space, personnel, 

logistical issues, things like that. We maintain sort of a running review of different locations around the country. We have cases broken down by Zip Code, by location. But we have to consider all of 

those factors in making determinations as to where we’re going to 

deploy the next judges. 

Chairman GOODLATTE. Thank you. 

Thank you, Mr. Chairman. 

Mr. LABRADOR. Thank you, Mr. Chair. And the chair will now 

recognize the gentleman from Michigan, the ranking member of the 

full committee, Mr. Conyers. 

Mr. CONYERS. Thank you very much, Mr. Labrador. 

Mr. McHenry, I understand that you’re the chief administrator 

for immigration court system, and that you were recently appointed 

to this position under the Trump administration. 

Now, as you and all of us are aware, President Trump has repeatedly promised to deport all 11 million undocumented immigrants. You’re aware of that, I presume? 

Mr. MCHENRY. I’ve heard that reported. 

Mr. CONYERS. You’ve heard it, yeah. 

This committee has marked up legislation that would unfortunately implement President Trump’s vision for mass deportation. 

And these plans often involve expediting removal hearing, streamlining immigration court procedures and denying legal representation. 

Now, under your watch, do you believe that the immigration 

court system will implement a mass deportation agenda? 

Mr. MCHENRY. Our judges adjudicate immigration cases that are 

brought to us by the Department of Homeland Security. So I would 

defer any questions about their enforcement actions to them. I can’t 

speak for that agency. 

Our judges adjudicate the cases that are brought in front of 

them. They adjudicate them in a professional and dedicated manner, based on the facts and the evidence that are before them. And 

they ensure that due process is met. 

Mr. CONYERS. Well, I’m not asking them. I’m asking you what 

you think about it? 

Mr. MCHENRY. About? I’m sorry. 

Mr. CONYERS. Well, the plans of the President are such that I 

want to know if you believe the immigration court system will implement a mass deportation agenda? 

Mr. MCHENRY. I can’t speak fully, and I’m not entirely sure what 

mass deportation agenda means in this context. 


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Mr. CONYERS. Deporting all 11 million undocumented immigrants. 

Mr. MCHENRY. Our immigration judges aren’t involved in the actual deportation or removal of aliens. They make determinations as 

to whether an alien or someone is removable in the first instance, 

and then they make a second determination whether that person 

is entitled to relief or protection from removal. 

Mr. CONYERS. Well, that gets us right back to where we began. 

That’s what they do, is determine removal. That’s two steps you 

mentioned. 

Mr. MCHENRY. But they do also determine relief and protection 

from removal as well. 

Mr. CONYERS. Yes. But I’m asking you about President Trump’s 

promise, or threat, to deport all 11 million undocumented immigrants. And all I want to know is that, do you believe that the immigration court system might implement a mass deportation agenda? 

Mr. MCHENRY. Again, it’s not the role of the immigration courts 

to implement any particular agenda. They adjudicate the cases 

that are brought to them by the Department of Homeland Security 

and issue decisions, either based on removability, or based on protection and relief from removal. 

Mr. CONYERS. You don’t think they’re influenced by President 

Trump’s public position on this question? 

Mr. MCHENRY. I have confidence that our judges apply the law 

in each particular case to the facts and evidence of that case, and 

they make their best decisions based on the evidence before them. 

Mr. CONYERS. Well, do you believe that President Trump’s promise or threat has any bearing or influence upon them at all? 

Mr. MCHENRY. I can’t speak to the mindset of all of our judges. 

As I said, I do have confidence that they carry out their duties to 

the best of their abilities, the best of their understanding of the 

law, based on the facts and the evidence of each case that comes 

before them. 

Mr. CONYERS. Well, do you believe that the policies implemented 

by the Executive Office for Immigration Review may lead to mass 

deportation? 

Mr. MCHENRY. Our policies are not outcome-determinative, and 

they are not implemented with any specific outcome in a particular 

case in mind. 

Our policies are essentially outcome-neutral. We’re trying to resolve more cases, but we’re not trying to reach any particular outcome one way or the other. 

Mr. CONYERS. Well, I know, but you mean they may be neutral, 

but the policies may lead to mass deportation anyway, or they 

could. Or you may think that they wouldn’t. I mean, in other 

words, I’m not asking you how they operate, but if there was implemented such a—such a policy, would this lead to mass deportation? 

Mr. MCHENRY. I’m not sure I understand which policy in particular. 

Mr. CONYERS. The policies that I’ve just mentioned, that President Trump has repeatedly promised to deport 11 million, all 11 

million undocumented immigrants. 


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Mr. MCHENRY. I haven’t seen a specific proposal as to how that 

would impact EOIR. 

Mr. CONYERS. Well, I didn’t say you did see it—— 

Mr. LABRADOR. The gentleman’s time has expired. 

Mr. CONYERS. I ask for consent for one additional minute, sir. 

Mr. LABRADOR. Without objection, but I think you’ve asked him 

the same question, like, seven different ways and he’s answered 

your question, so I’m not sure what else you want the gentleman 

to do but—— 

Mr. CONYERS. So could I get a minute? 

Mr. LABRADOR. You can get an additional 30 seconds, yes. 

Mr. CONYERS. 30 seconds. Well, thank you very much. 

Mr. LABRADOR. It’s already 2 minutes over the time. 

Mr. CONYERS. Do you, Mr. McHenry, believe that the policies implemented by the Executive Office for Immigration Review will protect the due process rights of immigrants? 

Mr. MCHENRY. All the processes, or all of the policies that EOIR 

has implemented, at least since I’ve been Acting Director, due process is certainly a significant consideration. 

Mr. CONYERS. Is it fair for me to assume that you’ve said yes? 

Mr. MCHENRY. Yes. 

Mr. CONYERS. Okay. Last question. In recent Executive Office for 

Immigration Review announcements, the minimum qualifying experience required to apply has been changed from 7 years of relevant legal experience to 7 years of litigation in government-instituted proceedings. 

Can you think of any kinds of legal examples, of any kinds of 

legal experiences that would qualify as litigation in government-instituted proceedings? 

Mr. MCHENRY. With respect, Congressman Conyers, I believe 

that’s a misreading of the advertisement that we sent out. The advertisements, I actually had occasion to look at this, because we got 

an inquiry to our Public Affairs Office on that very point not too 

long ago. The advertisement actually says a full 7 years of experience in either litigation or administrative proceedings at the Federal, State, or local level. It doesn’t require, and it’s not limited to 

proceedings that were just initiated by the government. That’s one 

example that’s given in the advertisement, but it’s not the only example. 

Mr. LABRADOR. All right. The gentleman’s time has expired. 

Thank you. 

Mr. CONYERS. I thank you very much, Mr. Chairman. 

Mr. LABRADOR. And I recognize Mr. King, the gentleman from 

Iowa. 

Mr. KING. Thank you, Mr. Chairman. Mr. McHenry, thank you 

for your testimony. 

I’m just listening to the gentleman from Michigan in his discussion about the alleged effort to round up and deport 11 million people. I still haven’t heard anyone advocate for that that seems to be 

for it. I make that point, but I’m also, I’m looking at the overruns 

here, I’ll call it, the 691 days, the average wait for resolution, and 

630,000 pending cases, and your intent to hire at least 61 new 

judges by spring. 


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And I’m wondering what your opinion would be if we were able 

to, and in short order, by spring—we won’t get it done that soon— 

but build a 2,000 mile wall, 30 feet high. And if we were able to 

do that successfully, what would that, how would that impact your 

caseload over the longer term? 

Mr. MCHENRY. Ultimately, I can’t answer that. It’s—— 

Mr. KING. I know. 

Mr. MCHENRY [continuing]. Speculative and a bit of a hypothetical at this point. Moreover, DHS, the Department of Homeland 

Security would have primary responsibility for the wall and for border crossers. So a lot of it would depend on their actions and I 

would have to defer to them. 

Mr. KING. But I don’t think it takes Department of Homeland Security to answer the question, if we build an impermeable wall all 

the way down to hell and all the way up to heaven, what would 

happen to your caseload? 

Mr. MCHENRY. Again, I can’t speak to that. 

Mr. KING. Sure, you can. 

Mr. MCHENRY. It’s a little too speculative for me to speak to. 

Mr. KING. But if you had no one crossing the border—I guess I 

have to put this in some different terms. If no one crossed the border, yet, all done, then what happens to your caseload? 

Mr. MCHENRY. Well, the other factors would have—— 

Mr. KING. Well, excuse me. I want to rephrase that. If no one can 

cross the border, now what happens to your caseload? 

Mr. MCHENRY. There are other factors we would still have to 

consider. Some of our caseload is driven by interior cases. Individuals come in—— 

Mr. KING. Does it go up or does it go down? 

Mr. MCHENRY. Again, I can’t speak to it—— 

Mr. KING. Can you, can you—all right. How many judges does 

it take, then, to deplete this caseload down to a reasonable time? 

Mr. MCHENRY. We’ve run several estimations, and we’ve asked 

for additional judges. I think up to a total of 700 is where it really 

starts to turn around. 

Mr. KING. Judges? 

Mr. MCHENRY. Yes. 

Mr. KING. It’s not a surprise to me to hear a number like that. 

It’s actually not very often we get someone that lays out a proposal 

to get there. And then, how many judges does it take to maintain 

the current flow? 

Ms. LOFGREN. Could the gentleman restate—I didn’t hear what 

you said in terms of the number. I’m sorry, Mr. King. 

Mr. KING. I’ve forgotten. 

Ms. LOFGREN. You said the number of judges, and I didn’t hear 

what you said. 

Mr. MCHENRY. Yeah, we currently have authorization for 384. 

The next budget request brings it up to 449. The President has outlined a policy that would add 370. That gets to approximately 700. 

Ms. LOFGREN. Thank you. 

Mr. KING. Now if I could go back to where I was. And that would 

be the question of, if you get up to that number that’s the number 

that you said it takes to deplete your caseload down to a reasonable turnover time. 


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How many judges does it take to maintain it at the current level 

that cases are coming in the door? 

Mr. MCHENRY. I don’t know that I have the analytics or the data 

on that in front of me. 

Mr. KING. That’s curious. How many judges does it take to get 

this under control, about how many does it take to maintain it are 

two separate questions that I would think would answer before you 

would have the answer to the first question. 

Mr. MCHENRY. Well, we’re actually, because we’re focused on reducing it and bringing it down to a manageable level, we haven’t 

studied sort of maintaining the status quo. That may be part of it. 

Mr. KING. I see. And when you’re evaluating the applicants, I listened to the gentlelady from California talk about the Monica 

Goodling case, and I recall her testifying here before this committee in this room. And I would ask the question: Do you, when 

you evaluate the applicants, do you examine their bios carefully? 

Mr. MCHENRY. We look at their resumes. They typically 

have—— 

Mr. KING. And that’s it? 

Mr. MCHENRY. Yeah, they typically have to submit a resume. 

Mr. KING. If they don’t put it on the resume, then do you go beyond that? 

Mr. MCHENRY. I think the last ad required a resume. I know in 

prior ads, we required law school transcripts. Going back a few 

years, I think we’ve also required letters of recommendations but 

our most—— 

Mr. KING. What about professional affiliations or NGO affiliations? 

Mr. MCHENRY. Those have never been required, to my knowledge. 

Mr. KING. Never required. So you could have someone there 

whose job is to bring about a legitimate adjudication that maybe 

had a long history with LULAC or MALDEF or La Raza or ACLU 

or SPLC, and you wouldn’t know that? 

Mr. MCHENRY. Our immigration judges, I think, represent a 

wide variety of careers. I mean, we run some numbers on that because it’s an issue that comes up. And I think the vast majority of 

them have worked for many different organizations, entities, and 

government agencies throughout their careers. 

Mr. KING. You know, if I were to request that information in a 

more precise fashion, would you be able to deliver that? 

Mr. MCHENRY. I think all of the biographies of most of them are 

online currently. 

Mr. KING. Then I just, in my concluding question here is, as the 

attorney advisers, can you tell me how they are chosen? 

Mr. MCHENRY. Which—— 

Mr. KING. Attorney advisers, those that might be chosen to write 

or give an opinion? 

Mr. MCHENRY. Are you talking at the Board of Immigration Appeals level, or at the immigration court level, or at some other 

agency or some other component of EOIR? 

Mr. KING. Why don’t you tell me both of them? 

Mr. MCHENRY. Our judicial law clerks are typically hired 

through the honors program every fall. Those go to the immigraVerDate Sep 11 2014 06:02 Aug 11, 2018 Jkt 030995 PO 00000 Frm 00023 Fmt 6633 Sfmt 6602 E:\HR\OC\A995.XXX A995

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tion courts. They typically serve for 2 years and then go onto some 

other career. 

Mr. KING. Okay. That’s how you choose. But how do the case— 

how are the cases chosen? Is it a random selection process? How 

are they assigned? 

Mr. MCHENRY. The cases at which level? 

Mr. KING. At the board level. 

Mr. MCHENRY. There are panels and teams that are assigned. I 

don’t have the specific mechanics in front of me though. 

Mr. KING. But you don’t either testifying that it’s a random selection process? 

Mr. MCHENRY. Well, they do—they’re required by regulation to 

have screening panels, so there are panels that look at the cases 

on the front end to determine if they’re subject to summary dismissal or something like that. 

Mr. KING. I’ll follow up with that in written request. And I thank 

you, Mr. McHenry. And I yield back the balance of my time. 

Mr. LABRADOR. Thank you. 

The chair will now recognize Mr. Cicilline for 5 minutes. 

Ms. LOFGREN. May I ask unanimous consent to put in the record 

the letter from the Association of Pro Bono Counsel? 

Mr. LABRADOR. Without objection. 

This material is available at the Committee or on the Committee 

repository at: https://docs.house.gov/meetings/JU/JU01/20171101/ 

106561/HHRG-115-JU01-20171101-SD004.pdf. 

Mr. LABRADOR. The gentleman is now recognized. The chair recognizes Mr. Cicilline. 

Mr. CICILLINE. Thank you, Mr. Chairman. 

I’m sure, sir, that you are aware that there is tremendous disparity in the asylum grant rates by our immigration judges. As recently as 2006, the Government Accountability Office confirmed 

this disparity noting that, for example, the grant rate in the New 

York Immigration Court was 52 percent, while the grant rates at 

the Omaha, Atlanta, and Bloomington, Minnesota, courts were less 

than 5 percent. 

The GAO additionally found that this disparity persisted, even 

holding constant various case and judge characteristics. These jurisdictions with grant rates of 2 and 15 percent have earned the 

name ‘‘asylum-free zones,’’ and include Houston, Dallas, Charlotte, 

Atlanta, and Las Vegas. The asylum denial rate in Atlanta, for example, is 98 percent. Almost no one is granted asylum. 

I understand that you were an ICE trial attorney in Atlanta, and 

some of your colleagues at both DOJ and DHS are also former ICE 

trial attorneys from Atlanta. There have been reports that the goal 

of EOIR, and possibly even the goal of DHS, is to replicate the Atlanta model for the rest of the country with the goal of driving 

down asylum grant rates to minuscule percentages. 

Do you think that the Atlanta courts with a 98 percent rate of 

asylum denial is the model that other immigration courts should 

be following? And is there any discussion, overtly or implicitly, in 

suggesting that model be followed? 

Mr. MCHENRY. I’m not sure that we have a model, sort of a onesize-fits-all for any of our immigration courts—— 


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Mr. CICILLINE. It’s not a one-size-fits-all. My question is, is that 

model of that rate of denial is something that you, as the leader 

of the office, are promoting, or there’s an active effort to use that 

as a standard? 

Mr. MCHENRY. As I mentioned a moment ago, the policies that 

we’ve implemented are not driven by any particular outcomes. 

They’re designed to be outcome-neutral. We’re not looking to make 

one court like any other court. In fact, it would be inappropriate 

for us to start going into specific cases to tell judges which cases 

they should deny or which ones they should grant. 

Mr. CICILLINE. Well, I mean, you don’t think that that rate of 98 

percent denial that the Atlanta courts follow ought to be a model 

followed by other immigration courts? 

Mr. MCHENRY. No. As I indicated, we don’t believe there’s one 

standard model, whether it’s a court that grants a lot of cases or 

a court that denies a lot of cases. We’re not—our role is not to go 

in and pick and choose which cases should be granted, or which 

ones should not. 

Mr. CICILLINE. No, I recognize you don’t pick and choose. I guess 

my question is, does it concern you—this is a second question—that 

that kind of disparity exists? 

Mr. MCHENRY. We’ve looked at this, because this concern has 

been raised before, but it’s difficult to compare sort of apples and 

oranges once you start looking at specific or individual cases. Cases 

that may look the same on the surface turn out not to be the same 

down below. 

Mr. CICILLINE. Yeah. Well, thank you very much. I mean, it is 

not so difficult to do—courts do this all the time. They do an analysis of sentencing, and they do an analysis of charging and they 

are able to control for the different jurisdictions and different 

judges. There’s lots of good ways to do that. So I would urge you 

to look at this disparity and pay close attention to it, because I 

think it undermines confidence in the system. 

The second thing I want to discuss with you, and I apologize if 

someone mentioned this while I was out of the room, but this report that we have been hearing, that the Department of Justice 

plans to use a numeric and time-based completion quotas to evaluate the performance of immigration judges with the idea, I presume, that someone would either be rewarded or disciplined for 

failing to complete a certain number of cases in a particular period 

of time. 

I take it that you will publicly reject that idea, and that is not 

the plan to actually use the number of cases and the time it takes 

as a method of deciding whether or not a judge is doing his or her 

job? 

Mr. MCHENRY. As I mentioned earlier, EOIR already operates 

under a number of performance metrics. Some of them are set by 

the Immigration Nationality Act. Others we’ve developed—— 

Mr. CICILLINE. Do any of those metrics involve the number of 

cases you complete and how long it takes you to complete them? 

Mr. MCHENRY. Yes. The Immigration Nationality Act, Section 

235, requires credible fear reviews to be conducted within 7 days. 

There’s also a time limit for asylum applications in Section 208. 


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Mr. CICILLINE. Other than requirements by statute of meeting a 

certain deadline, are there other evaluations of immigration court 

judges that relate to how quickly or how many cases they resolve? 

Mr. MCHENRY. We’ve developed standards under the Government Performance and Results Act that also looks at similar measures. And, in fact, for detained cases—— 

Mr. CICILLINE. Similar to what? What do you mean, similar 

measures? 

Mr. MCHENRY. In terms of completing cases, moving cases more 

efficiently, that sort of thing. 

Mr. CICILLINE. So are you telling me, sir, that you currently 

evaluate, in part, the performance of immigration judges based on 

the number of cases and the period of time of which it takes them 

to resolve those cases? 

Mr. MCHENRY. It’s not part of the individual judge’s performance 

work plan currently, but it is numbers that we do track because 

we keep that data to make the process better. 

Mr. CICILLINE. You intend to make it part of the performance 

plan of individual judges? 

Mr. MCHENRY. That’s something I can’t get into, but that still requires some additional discussions with the union, so it’s not appropriate for me—— 

Mr. CICILLINE. It’s something you’re pursuing? 

Mr. MCHENRY. It’s something that we’re looking at again in consultation with the union. 

Mr. CICILLINE. So, Mr. Chairman, I would just ask an indulgence 

for one moment. The National Association of Immigration Judges 

explains that this sort of effort would be, and I quote, a huge, huge, 

huge encroachment on judicial independence. It’s trying to turn immigration judges into assembly line workers. 

And I would ask, again, that you reject publicly the idea that you 

would use simply the numbers of cases or the amount of time it 

takes to complete immigration work as a measure of the quality of 

a judge’s work. I think it turns our judicial system and proceedings 

such as this on their head. 

And with that, I yield back. 

Mr. LABRADOR. Thank you. 

Just a follow-up question, Mr. McHenry. There is a split in the 

circuits, right, as to asylum law and all these different areas, so 

wouldn’t that yield different results in different areas? 

Mr. MCHENRY. Well, there are a number of reasons for the discrepancy in the rates. Not only are there differences in circuits, but 

many asylum applications are denied for reasons that are unrelated to the merits. An individual may be denied asylum, but 

granted withholding of removal or some other form because they 

didn’t file for asylum on time, or because there’s some criminal 

ground. 

There are a number of explanations for the disparities, but it becomes difficult to sort of get down to that level of granularity without essentially re-deciding each case. 

Mr. LABRADOR. All right. Thank you. 

I now recognize the gentleman from Arizona. 

Mr. BIGGS. Thanks, Mr. Chairman. 

Thank you, Mr. McHenry, for being here. 


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The Trump administration is considering expedited removal procedures to increase those who can be immediately removed from 

the United States without first appearing before an immigration 

judge. In the past, this group has included illegal aliens caught 

within 100 miles of the border, and within 2 weeks of entry. 

Reports say that could be expanded nationwide and to aliens who 

cannot prove they have been in the United States for at least 2 

years. Do you think such a policy would be beneficial in eliminating 

the number of new cases that come before a court? 

Mr. MCHENRY. Expedited removal is a policy that’s undertaken 

by the Department of Homeland Security. I’d have to defer to them 

on any questions about it. 

Mr. BIGGS. You don’t—you can’t make any assessment on whether that might decrease, because the number of people that would 

be in that pool that would normally come before a court—you don’t 

know—you can’t assess whether that would actually decrease 

your—— 

Mr. MCHENRY. It would be speculative for me to say, because 

there are a number of exceptions to expedited removal that are already enshrined in the statute. And we’d have to take into account 

all of those before giving any sort of impact on our caseload. 

Mr. BIGGS. You said in your opening statement that—and I’m 

going to give a rough quote, because I was trying to get it while 

you were saying it—that you were concerned that the new influx 

doesn’t overwhelm our capabilities. And I wondered what you 

meant by that, and if you would expand on that, please? 

Mr. MCHENRY. I don’t want to speak for the Department of 

Homeland Security, but my understanding is they have their own 

adjudicatory backlog concerns, so we have to make sure that we 

don’t get swamped by any sudden influx of new cases that they 

bring to us. 

Mr. BIGGS. Okay. And you talked about fraud in your opening 

statement and in your—and in your summary—or excuse me, in 

your document that you provided to us. Please tell me a little more 

about fraud, and more specifically, how you are dealing with fraud? 

And with the amount of backlog that you have, I am interested 

in the number of fraud complaints being below—looks like it’s 

below 200. Explain to me what that—how that impinges on the 

backlog? 

Mr. MCHENRY. Well, we’ve—the Fraud and Abuse Prevention 

program was set up in the mid-2000s. And we’ve sort of tried to 

revitalize it or reinvigorate it in the past few months. The number 

of referrals that are coming in from the field has gone up, I think, 

over 100 percent. 

I also issued a memo earlier this year to remind all the employees, all of our employees, including immigration judges, that they 

do have a duty and a responsibility to report fraud misrepresentations where they see them. So we are starting to see an increase. 

Some of those are still in investigations, so I can’t really speak to 

them directly. But it looks like we’re trying to ensure that our employees are focused on that. 

In terms of the backlog, obviously, any misrepresentations undermine the integrity of the system. They cause cases to have to be 


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delayed to investigate allegations, things like that. The more that 

we can root out fraud, the more efficient our system is going to be. 

Mr. BIGGS. And I get the impression that you’re not satisfied 

with a very—basically a fraction of a point of fraud detection and 

apprehension? 

Mr. MCHENRY. I wouldn’t say that we have a specific target in 

mind, but we do know anecdotally there are a number of instances 

that are out there, a number of instances have been reported in the 

past few years. So we are marshaling all of our efforts to make 

sure we can root it out as much as possible throughout our proceedings. 

Mr. BIGGS. So after an order of final removal is issued, what’s 

the process for removal? 

Mr. MCHENRY. I would defer that to the Department of Homeland Security. They’re responsible for actually executing the order 

of removal. 

Mr. BIGGS. And so you would not know how many individuals 

are currently present in the U.S. without a final order—or excuse 

me, with a final order for removal? 

Mr. MCHENRY. I would not. 

Mr. BIGGS. Okay. What penalty occurs for those who commit 

fraud in the system? 

Mr. MCHENRY. It would depend on the nature of the fraud. I 

mean, it could be anything from a criminal penalty to a sanction 

to the denial of an application, to a permanent ineligibility for most 

benefits. 

Mr. BIGGS. And in the criminal—in the field of criminal law, everybody has a certain period of time before they—their case has to 

actually be adjudicated and completed. 

So, for instance, if you’re in custody, it may be 90 days; if you’ve 

been in custody but you’ve been released, it’s 120; and if you’ve 

never been in custody, maybe 150 days, depending on the State 

and the rules that govern. 

What’s the rule for immigration cases? Do you have any deadline 

for somebody who has to make an appearance and actually adjudicate the case? 

Mr. MCHENRY. For a typical removal case, there’s nothing like 

the Speedy Trial Act or something like that. 

Mr. BIGGS. Thanks, Mr. Chairman. 

Mr. JOHNSON [presiding]. The gentleman yields back. 

The chair recognizes Ms. Jackson Lee from Texas for 5 minutes. 

Ms. JACKSON LEE. Let me thank the witness and thank the 

chairman and the ranking member. This is an important hearing. 

But I think, as some of my colleagues know, periodically, I’ve 

taken just a moment—and I guess it will be just a brief moment— 

to reassert, even as we discuss these vital issues, that in light of 

the indictments on Monday, October 30, we are not really focusing 

on the institutions that are important to stabilizing our government. 

So I hope that I will place on the record the concern that many 

of us have that we’ve not begun to look at the questions of obstruction of justice, collusion in the 2016 election with Russia, and, 

frankly, the beginning of the Mueller special counsel work is not 

ending, but it is beginning, and to ensure that we discuss any proVerDate Sep 11 2014 06:02 Aug 11, 2018 Jkt 030995 PO 00000 Frm 00028 Fmt 6633 Sfmt 6602 E:\HR\OC\A995.XXX A995

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hibition or any stopping of the administration attempting to fire 

Director Mueller. 

So I wanted to place that on the record even as we questioned 

the witness. And, Mr. McHenry, thank you so very much for your 

presence here today. 

I introduced legislation dealing with the need for immigration 

judges, and continuing to do so. At that time, I asked for 75 new 

judges. Did I hear you correctly that you are seeking to—or I think 

they’re not immigration judges, you’re looking to do sort of attorney 

advisers for 61? What was the 61 number that you were trying to 

do? 

Mr. MCHENRY. We have 19 immigration judges currently in the 

hiring pipeline, and we’ve had three advertisements since July for 

up to 42 additional positions that we’re in the process of also filling. So we expect or anticipate getting 61 additional immigration 

judges on board by the spring of next year. 

Ms. JACKSON LEE. So we are speaking of judges? 

Mr. MCHENRY. Yes. 

Ms. JACKSON LEE. Permanent immigration judges? 

Mr. MCHENRY. Yes. 

Ms. JACKSON LEE. And so my number 75 was not unrealistic. I 

would encourage you to raise that number and the administration 

to raise that number. 

Now, we have a different perspective on how—what we perceive 

this court to do. Do you seek judges who adhere to due process and 

the recognition that immigrants have a right to present their case 

fully? 

Mr. MCHENRY. We expect all judges that we hire, after we train 

them, that they will respect the due process rights and apply the 

law as they see fit to the case and facts before them. We advertise 

and we hire from a wide range or wide variety of backgrounds 

when we select immigration judges. 

Ms. JACKSON LEE. Well, you were asked by a colleague of mine 

whether or not you distinguish, or you weed out, individuals who 

may have differing legal backgrounds, whether they were on the 

defense side of the immigrant bar, whether they were individuals 

from the ACLU or various other advocacy groups. Do you do that? 

Do you weed them out? 

Mr. MCHENRY. No, ma’am, we do not. We—all of our hiring is 

conducted according to merit systems principles. We don’t require 

any information regarding any organizations or anything like that 

that individuals belong to. We evaluate them based on the resume, 

interviews, writing samples, things like that. 

Ms. JACKSON LEE. And, Mr. McHenry, this is not a personal offense. Can I take you at your word? Because obviously, we come 

from different sides of the aisle and may have a different perspective. But I think your answer is more than a credible answer. 

I know that you’re a member of the bar, so am I, and not the 

drinking bar. And I hope that you would really be saying to me 

what is fact and truth and how you will implement that process. 

Is that—am I to understand that? 

Mr. MCHENRY. Again, all—— 

Ms. JACKSON LEE. Is that your accurate and true representation 

of what occurs and will occur? 


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Mr. MCHENRY. All of our hiring is conducted according to merit 

systems principles, so we don’t consider things like race, religion, 

political opinion, things like that. 

Ms. JACKSON LEE. And, therefore, you do not attempt to exclude 

because of race, religion, or other aspects? 

Mr. MCHENRY. No, we don’t screen out any particular candidates 

one way or the other. 

Ms. JACKSON LEE. Let me raise this question with you, if I 

might. And I want to read this story. I know that we went down 

this line of questioning before, but I think this is important. 

The former majority leader, Senator Reid, often talked about an 

experience that he had in immigration court. Some of us had this 

experience where we saw the unaccompanied children. I was actually at the border with my colleague, Congresswoman Lofgren, and 

we saw children who were fleeing persecution. 

But in this instance, the child was 5 years old, clutching a doll 

as she appeared before the judge. She was barely tall enough to see 

over the microphone. The judge asked her a series of questions to 

which she had no response. 

Finally, after several non-responses, the judge asked her the 

name of her doll. She responded, Baby Baby Doll. That concluded 

the hearing. Baby Baby Doll. So do you think in the hiring of 

judges that that would be an effective way to run a courtroom of 

the judges that you might be hiring? 

Mr. MCHENRY. I can’t speak to that specific example. I’m not familiar with that case or that incident. But I do know that our 

judges, once they are hired, they receive—they undergo a rigorous 

training program that includes training on handling different types 

of cases, including juveniles, unaccompanied alien children, things 

like that. 

Ms. JACKSON LEE. Well, that’s a 5-year-old. And do you believe 

that in that instance, putting aside the very fine way in which 

you’re going to be hiring judges, if you were in the back of the 

room, would that be an appropriate way—we haven’t called the 

judge’s name so we’re not going to be citing who the judge was. But 

the point is, would that be an appropriate way for a 5-year-old to 

be handled in a proceeding? 

Mr. MCHENRY. As I said, I can’t comment on the specifics of that 

because I don’t know the context or the background or any other 

factors. As I said, I do know our judges are trained to handle these 

types of cases. 

Ms. JACKSON LEE. But common sense would say, if you just—not 

on the facts, and that’s an answer that we as lawyers give—common sense, if you just were in the back of the room and that was 

the end of the case, would you argue that that child needed at least 

representation or better understanding of what was going on? 

Mr. MCHENRY. Well, the issue of children and representation is 

in litigation, I can’t comment on that specifically. As I said, in that 

particular case, I’m not familiar enough with the example. I would 

need to know more about the context and the facts. 

Ms. JACKSON LEE. Just one more point on that. Would you think 

that this approach that may be being proposed by the administration of quotas, meaning that judges have a cycle of which they have 


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to meet, and meet certain numbers of processing cases, would that 

be effective if a child was in the courtroom? 

Mr. MCHENRY. I’m not sure I understand the question. 

Ms. JACKSON LEE. If the judge has to run through his or her 

cases, and a child happens to come before it as a petitioner in the 

courtroom unrepresented, so I’m not obviously—or represented, is 

that quota still going where you have to run through these cases 

or allowing a child to understand what was happening in the courtroom? 

It takes a little bit more time, doesn’t it? Under this quota system, is the judge going to be allowed to take the time necessary to 

give a fair hearing to an immigrant or defense, or petitioner’s position? 

Mr. MCHENRY. I have confidence that our judges can efficiently 

and effectively move cases and dispose of those cases while maintaining due process in individual cases, yes. 

Mr. JOHNSON. The gentlelady’s time has expired. 

Ms. JACKSON LEE. That is an adherence that you—that’s a commitment that you’re making based on your testimony? 

Mr. MCHENRY. I believe our judges are professional enough to be 

able to expeditiously adjudicate cases in conjunction with the mission of EOIR while maintaining due process. 

Ms. JACKSON LEE. We will be watching. Thank you very much. 

Mr. CONYERS. Mr. Chairman, may I have unanimous consent to 

enter into the record two documents that, one, ‘‘Donald Trump 

Promises Deportation Force to Remove 11 Million People’’; and the 

second, ‘‘President Trump’s Immigration Policy Takes Shape’’ 

prioritizing almost all undocumented immigrants for deportation? 

Mr. JOHNSON. Without objection. 

This material is available at the Committee or on the Committee 

repository at: http://docs.house.gov/meetings/JU/JU01/20171101/ 

106561/HHRG-115-JU01-20171101-SD002.pdf. 

Mr. CONYERS. Thank you, sir. 

Ms. JACKSON LEE. Mr. Chairman—— 

Mr. JOHNSON. Yes. 

Ms. JACKSON LEE [continuing]. I want to put a question on the 

record for answer in writing, please. 

Mr. JOHNSON. Without objection. 

Ms. JACKSON LEE. The question is, and I’ll just—it’s just very 

brief, the media is reporting that the Department of Justice—and 

I used this previously, but this is the specific question—the Department of Justice plans to use numeric and time-based case completion quotas to evaluate immigration judge performance, and that’s 

obviously for compensation or to maintain that judge. 

And so I’d like our Director to answer the question, whether that 

is accurate and whether that will mean that judges will be dismissed or disciplined because they take extra time to hear the 

cases of those who need extra time, whether it’s a child, whether 

it’s an elderly, whether it’s a disabled, or any kind of petitioner before the court. 

I’d like to know how that matches with your recommendation— 

not your recommendation, but your agency’s work juxtaposed with 

the Department of Justice’s representation about quotas and numeric time-based completion of their work? 


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Mr. JOHNSON. Thank you. Mr. McHenry, you can answer that in 

writing at a later time. 

The gentlelady yields back. And the chair will yield myself the 

remaining time of the hearing here. 

Mr. MCHENRY, there’s been some discussion back and forth 

about handling of minors’ cases, juvenile cases. There is, in fact, a 

set of rules and procedures that would apply to those types of 

cases, correct? 

Mr. MCHENRY. Well, we have—I mean, they are both—depending on the exact facts of the particular case, there’s both law and 

regulations that would govern it. We also have an operating policies and procedures memorandum that details—gives additional 

guidance to the judges on how to handle juvenile cases. 

Mr. JOHNSON. Thank you. 

As a result of the fraud and abuse prevention program that 

you’ve discussed today, do you anticipate, with regard to asylum 

cases, that we’ll see a further decline in asylum grant rates as a 

result of these efforts? 

Mr. MCHENRY. Again, I can’t speculate because each asylum case 

is determined based on the evidence and the facts before it, so I 

can’t speculate to what the future rates will hold. 

Mr. JOHNSON. There was a recent report issued by the Government Accountability Office that found that EOIR failed on numerous procedures across the agency to adequately prevent asylum for 

all in the adjudication process. We’ve talked a lot about that today. 

And they recommended regular fraud risk assessments across the 

asylum claims in the courts. 

You may have referenced this already this morning, but many of 

us had to come in and out. Have you consulted the GAO’s specific 

representations that they issued in that report? 

Mr. MCHENRY. I have. My understanding is my general counsel’s 

office, they’ve completed one of the first risk assessments and we’re 

still reviewing the results of that. 

Mr. JOHNSON. So none of that has been implemented yet, is 

that—you’re in the process of implementing risk assessments. Is 

that right? 

Mr. MCHENRY. My understanding is it has been conducted, at 

least the initial one, but we’re still reviewing the results of what 

came back. 

Mr. JOHNSON. Could you get to us later a quick summary of what 

you find with that? I’m sure a lot of us would be interested in it. 

This is—personally, you were a former judge. And do you agree 

that judges face greater difficulties in assessing an individual’s 

statements being true or not when they’re not recorded electronically? Isn’t that—wouldn’t that be of benefit to the judges to have 

electronically recorded statements? 

Mr. MCHENRY. Speaking as a judge, every judge I know wants 

as much evidence as they can possibly get. 

Mr. JOHNSON. And it is easier to determine, is it not, whether 

someone is being consistent in their statements if you have an electronic recording of what they’ve said prior? 

Mr. MCHENRY. I think that’s typically correct, yes. 

Mr. JOHNSON. And you’ve testified earlier that those efforts are 

underway, that you’re—I think the words you said—ramping up, or 


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someone said ramping up the technology in what you’re able to do 

in these proceedings? 

Mr. MCHENRY. In terms of our electronic filing and our electronic 

case adjudication, yes. 

Mr. JOHNSON. Does that also extend to the recording of statements? Is that something you’re working on? 

Mr. MCHENRY. That’s something that DHS would handle. We 

don’t—we record our hearings, of course, but individual statements 

or anything that occurs outside of the hearing, I’d have to defer to 

DHS for that. 

Mr. JOHNSON. Okay. Well, there’s no further questions, and we 

want to thank you for attending today. This concludes the hearing. 

Without objection, all members have 5 legislative days to submit 

additional written questions for the witness, or additional materials for the record. 

With nothing further, the hearing is adjourned. 

Mr. MCHENRY. Thank you. 

Mr. JOHNSON. Thank you. 

[Whereupon, at 3:33 p.m., the subcommittee was adjourned.] 

Æ 


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