[Senate Hearing 109-537] [From the U.S. Government Publishing Office] S. Hrg. 109-537 IMMIGRATION LITIGATION REDUCTION ======================================================================= HEARING before the COMMITTEE ON THE JUDICIARY UNITED STATES SENATE ONE HUNDRED NINTH CONGRESS SECOND SESSION __________ APRIL 3, 2006 __________ Serial No. J-109-67 __________ Printed for the use of the Committee on the Judiciary U.S. GOVERNMENT PRINTING OFFICE 28-339 WASHINGTON : 2006 _____________________________________________________________________________ For Sale by the Superintendent of Documents, U.S. Government Printing Office Internet: bookstore.gpo.gov Phone: toll free (866) 512-1800; (202) 512�091800 Fax: (202) 512�092250 Mail: Stop SSOP, Washington, DC 20402�090001 COMMITTEE ON THE JUDICIARY ARLEN SPECTER, Pennsylvania, Chairman ORRIN G. HATCH, Utah PATRICK J. LEAHY, Vermont CHARLES E. GRASSLEY, Iowa EDWARD M. KENNEDY, Massachusetts JON KYL, Arizona JOSEPH R. BIDEN, Jr., Delaware MIKE DeWINE, Ohio HERBERT KOHL, Wisconsin JEFF SESSIONS, Alabama DIANNE FEINSTEIN, California LINDSEY O. GRAHAM, South Carolina RUSSELL D. FEINGOLD, Wisconsin JOHN CORNYN, Texas CHARLES E. SCHUMER, New York SAM BROWNBACK, Kansas RICHARD J. DURBIN, Illinois TOM COBURN, Oklahoma Michael O'Neill, Chief Counsel and Staff Director Bruce A. Cohen, Democratic Chief Counsel and Staff Director C O N T E N T S ---------- STATEMENTS OF COMMITTEE MEMBERS Page Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont, prepared statement............................................. 91 Specter, Hon. Arlen, a U.S. Senator from the State of Pennsylvania................................................... 1 WITNESSES Bea, Carlos T., Chief Judge, U.S. Court of Appeals for the Ninth Circuit, San Francisco, California............................. 7 Cohn, Jonathan, Deputy Assistant Attorney General, Civil Division, Department of Justice, Washington, D.C............... 27 Martin, David, Professor of Law, University of Virginia, Charlottesville, Virginia...................................... 28 Michel, Paul R., Chief Judge, U.S. Court of Appeals for the Federal Circuit, Washington, D.C............................... 2 Newman, Jon O., Senior Judge, U.S. Court of Appeals for the Second Circuit, Hartford, Connecticut.......................... 10 Roll, John McCarthy, District Judge, U.S. District Court for the District of Arizona, Tucson, Arizona........................... 12 Walker, John M., Jr., Chief Judge, U.S. Court of Appeals for the Second Circuit, New Haven, Connecticut......................... 5 QUESTIONS AND ANSWERS Responses of Jonathan Cohn to questions submitted by Senator Leahy.......................................................... 40 SUBMISSIONS FOR THE RECORD American Bar Association, E. Anthony Figg, Chair, Washington, D.C., letter................................................... 44 American Intellectual Property Law Association, Michael K. Kirk, Executive Director, Arlington, Virginia, letter................ 46 Bea, Carlos T., Chief Judge, U.S. Court of Appeals for the Ninth Circuit, San Francisco, California, prepared statement......... 48 Benson, Lenni B., Professor of Law, New York Law School, New York, New York and Stephen Yale-Loehr, Adjunct Professor, Cornell Law School, Myron Taylor Hall, Ithaca, New York, letter 52 Center for Gender & Refugee Studies, University of California, Hastings College of the Law, Karen Musalo, Director, Stephen Knight, Deputy Director, and Leena Khandwala, New Voices Fellow, San Francisco, California, letter...................... 56 Cohn, Jonathan, Deputy Assistant Attorney General, Civil Division, Department of Justice, Washington, D.C., prepared statement...................................................... 60 Federal Circuit Bar Association, Kevin R. Casey, President-Elect, Washington, D.C., letter....................................... 71 Human Rights First, Maureen Byrnes, Executive Director, Washington, D.C., letter....................................... 73 Intellectual Property Owners Association, Marc S. Adler, President, Washington, D.C., letter............................ 75 Kozinski, Alex, U.S. Circuit Judge, U.S. Court of Appeals for the Ninth Circuit, Pasadena, California, letter.................... 77 Law professors and scholars who teach and study in the area of immigration law, joint letter.................................. 79 Law school deans and legal scholars whose areas of scholarship include immigration law, joint letter.......................... 88 Legal scholars in Pennsylvania whose areas of scholarship include immigration law, joint letter.................................. 94 Martin, David A., Professor of Law, University of Virginia, Charlottesville, Virginia, prepared statement.................. 99 Mecham, Leonidas Ralph, Secretary, Judicial Conference of the United States, Washington, D.C., letters....................... 108 Migration Policy Institute, Doris Meissner, Muzaffar A. Chishti, and Michael J. Wishnie, Washington, D.C., prepared statement... 115 Michel, Paul R., Chief Judge, U.S. Court of Appeals for the Federal Circuit, Washington, D.C., prepared statement and letters........................................................ 132 Newman, Jon O., Senior Judge, U.S. Court of Appeals for the Second Circuit, Hartford, Connecticut, prepared statement and letter......................................................... 147 New York Times, New York, New York, April 7, 2006, article....... 159 Noonan, John T., Jr., U.S. Circuit Judge, and Kim McLane Wardlaw, U.S. Circuit Judge, U.S. Court of Appeals for the Ninth Circuit, San Francisco, California, letter..................... 160 People for the American Way, Ralph G., Neas, President and Tanya Clay, Director, Public Policy, Washington, D.C., letter........ 164 Posner, Richard A., U.S. Circuit Judge, U.S. Court of Appeals for the Seventh Circuit, Chicago, Illinois, letter................. 167 Retired judges of the courts of appeals, joint letter............ 170 Roll, John McCarthy, U.S. District Judge, U.S. District Court for the District of Arizona, Tucson, Arizona, prepared statement... 172 Schroeder, Mary M., Chief Judge, U.S. Court of Appeals for the Ninth Circuit, Phoenix, Arizona, letter........................ 178 Thomas, Sidney R., U.S. Circuit Judge, U.S. Court of Appeals for the Ninth Circuit, Billings, Montana, letter................... 181 Walker, John M., Jr., Chief Judge, U.S. Court of Appeals for the Second Circuit, New Haven, Connecticut, prepared statement and letters........................................................ 184 U.S. Court of Appeals for the Federal Circuit, workload calculations, table............................................ 200 IMMIGRATION LITIGATION REDUCTION ---------- MONDAY, APRIL 3, 2006 U.S. Senate, Committee on the Judiciary, Washington, DC. The Committee met, pursuant to notice, at 10:04 a.m., in room SD-226, Dirksen Senate Office Building, Hon. Arlen Specter, Chairman of the Committee, presiding. Present: Senators Specter, Sessions, and Cornyn. OPENING STATEMENT OF HON. ARLEN SPECTER, A U.S. SENATOR FROM THE STATE OF PENNSYLVANIA Chairman Specter. Good morning, ladies and gentlemen. The Judiciary Committee will now proceed with our hearing on the subject of judicial review of immigration matters. The Senate is currently considering legislation on immigration reform. It follows extensive hearings and a markup by this Committee. We have on the floor now what we call the Chairman's mark or the Committee bill. We have proceeded under an expedited schedule where the Majority Leader wanted a bill on the floor on Tuesday of last week, and we had a very lengthy markup on Monday to complete action on the bill, except for the title on judicial review. And we kept that aside until we could make further inquiries to find out what we ought to be doing on judicial review and to hear from experts. My preference would have been to have approached the entire subject of immigration review with a more thorough analysis, which we have on the hearing process and on the so-called markup where the Committee sits down and goes over the text line by line to figure out what we ought to do. And there are, as you well know, very, very complex policy considerations on this bill at every turn. It is a highly emotional bill. There are those who want only border security, only enforcement, and there are others who want broader reform to accommodate the 11 million people who are in this country as undocumented aliens. The Committee bill provides to accommodate the 11 million people for a number of reasons, the most prominent of which is there is no way to round them up, detain them, deport them, and they are here. They are undertaking important jobs, and there is a heavy controversy on whether they are taking jobs that other Americans would fill or whether they are taking jobs other Americans would fill if the pay was higher. So there are lots of controversies. With respect to judicial review, we are considering the consolidation of all of the circuit appeals to the Federal circuit. That has drawn some objections on grounds that it is preferable to have the matters remain in the circuit courts where there are generalists who are at work. There is a very substantial imbalance, as you know, with the Ninth and Second Circuits having many more appeals than the other circuits. There are some suggestions. Judge Becker has made a suggestion that there be created something like the Multidistrict Panel to reassign cases. Judge Newman I understand has a suggestion for temporary assignments. And with you judges here today who have had a lot of experience in the field, we will be able to shed some light on that. We have a second panel which will take up additional questions as to what ought to be done with immigration judges, whether there ought to be reforms there, the Board of Immigration Appeal, and we will be asking you those questions as well. We have a practice of swearing in all witnesses, so I hope you will not mind. If you will rise and raise your right hand. Do you solemnly swear that the testimony you will give before the Judiciary Committee will be the truth, the whole truth, and nothing but the truth, so help you God? Judge Michel. I do. Judge Walker. I do. Judge Bea. I do. Judge Newman. I do. Judge Roll. I do. Chairman Specter. Thank you. Our first witness will be the chief judge of the Federal Circuit, Judge Paul R. Michel. He has been on that court since 1988, appointed by President Reagan. In the interest of full disclosure, I will tell you that he was my chief of staff before he became a circuit judge. And in the interest of fuller disclosure, I will tell you he was an assistant district attorney in my office in Philadelphia. And in 1967, 1968, and 1969, he was, in my opinion, the most knowledgeable lawyer in America on constitutional procedure in the era of implementing Mapp and Miranda and lineups, et cetera. Judge Michel, you have a very extensive biography. It will be included in the record, but we appreciate your coming here today and look forward to your testimony. Under our Committee procedure, we have a 5-minute rule. To the extent you can accommodate that, we will--Senator Cornyn has just arrived. He used to be a judge. Senator Cornyn, would you care to make an opening statement? Senator Cornyn. Mr. Chairman, thanks for the opportunity, but I will pass. Chairman Specter. OK. Judge Michel, Chief Judge Michel. STATEMENT OF PAUL R. MICHEL, CHIEF JUDGE, UNITED STATES COURT OF APPEALS FOR THE FEDERAL CIRCUIT, WASHINGTON, D.C. Judge Michel. Good morning, Mr. Chairman. Thank you for the opportunity to testify. It is a great pleasure for me personally to be back in this building and this room. I testify primarily in my capacity as the chief judge of the Court of Appeals for the Federal Circuit. I am also, as you know, a member of the Judicial Conference and, along with my friend Chief Judge John Walker and five other judges, a member of the Conference's Executive Committee. And indeed, I participated in the drafting of the two Conference letters which have been submitted to the Committee, and I agree with their content. However, rather than cover the policy aspects that are well covered in those two letters, I thought I could best contribute to the work of the Committee by concentrating on the capacity of the Federal Circuit to handle such a large increase in jurisdiction and caseload. If I might, I would like to first mention that I think that in many recent news articles and also in some of the letters sent by various people to the Committee, the notion that the Federal Circuit is a narrowly specialized court has been greatly overstated. I saw a news article published as recently as yesterday that said the Federal Circuit does patents and bankruptcy. Of course, it is entirely erroneous. We do no bankruptcy at all, and the patent cases make up a minority of our cases. I had sent the Committee a letter, and rather than spend more time on the extent to which we are not a narrowly specialized court, I might ask the Committee if the record could include my letter to the Committee of March 24th. It provides details about our actual jurisdiction. Chairman Specter. Without objection, your letter will be made a part of the record, Judge Michel. Judge Michel. Thank you kindly. Now, with respect to the workload, as the Committee knows, the present annual filings in the Federal Circuit Court of Appeals are about a thousand and a half. If the Chairman's mark were to be enacted into law, that would grow and become something on the order of 13,500, perhaps more, since the immigration petitions for review have been steadily increasing--so a huge, more than tenfold increase. At present, we have 15 judges, and just to make a comparison, the Ninth Circuit, which has something like a third of the present petitions for review, has 47 judges. We have 15. The Ninth Circuit has 85 staff attorneys. We have four. The Ninth Circuit has over 110 deputy clerks. We have 20. So when you multiply by a factor of 2 to 3 the Ninth Circuit resources, we would need essentially, as I indicated in my prepared testimony, to triple the size of our staff. That would also require the budget to be magnified at the level of 2 to 3 times, and we would also need the equivalent of another courthouse in order to accommodate all those additional staff members. I should add that even with that very large-sounding staff, the Ninth Circuit, according to reports, has had great difficulty in carrying its one-third or so of the national immigration caseload. I also see that the caseload is rapidly rising, and there is a big difference between how it was measured last September versus now. Another way to focus on this is how long a ramp-up period we would need. Even if we were given triple the budget, triple the staff, double the space, we do not have the capacity to surge in a short period of time to absorb that kind of resource. For example, our computer system could not be expanded to support the staff of 400-plus or a caseload of on the order of 13,000 or 14,000. And certainly a transition period would be extensive, running into the order of a year and a half to 3 years, by my best estimate. Over the weekend, Senator, I tried to calculate the effect on the daily life of a member of our court if this increased caseload were given to us. I am down to 5 seconds, but, in essence, assuming that three-quarters of the immigration cases dropped off on the one-judge review, our workload would go from 240 judge dispositions per year to 1,500, about a 7-time increase. And even counting the three additional judges provided for in the Committee mark, and assuming only 1 hour to do the one-judge review, which I think is probably not an accurate assumption, but even assuming that, the effect on the time allowed to do everything on a case, from reading the briefs, master the case, decide the case, write the opinion and so forth, which greatly decrease. Right now we do about a case a day. So we have 8 or 10 hours on average to do all the different aspects of adjudicating a case. At the assumption of a 75-percent dropoff rate and one-judge review, the 8 hours per case would drop to an hour and a half. And I think realistically we could not even learn the case by reading the briefs in an hour and a half. The briefs always consist of several hundred pages, the records often of thousands of pages. It is just not humanly possible, even with increased staff resources and three extra judges, to keep up with this kind of a caseload. So I think what would happen would be that the backlog would swell rapidly, and the risk would also be incurred that the quality of the dispositions, both in non-immigration cases and immigration cases, might not be what it should be or what it is presently. I thank the Committee for the chance to appear, and I would be happy to respond to questions when the time comes. [The prepared statement of Judge Michel appears as a submission for the record.] Chairman Specter. Well, Judge Michel, what you are saying, in essence, is that it would immediately overload, really swamp your Federal Circuit. Judge Michel. It would, Senator, under any set of assumptions that I have been able to make, because the combined one-judge review and panel caseload would be unsustainable even by 20 judges or 24 judges. It is hard to know the number of judges and assuming all the ratio of support staff that it would take. But it certainly could not be done by 15 judges. Chairman Specter. Well, when you say that you would need a new courthouse to accommodate the workload and the personnel you would have, that is something that cannot be provided overnight or very fast. Judge Michel. Exactly. The staff would have to swell from its present total of 140 by my calculation to approximately 420. So we would need commercial office space or another building about the size of our present courthouse on Lafayette Park, where you yourself have visited, a nine-story modern office building. And it would take a lot of time to get such a building, if one is even available anywhere proximate to our courthouse. That is part of why we do not have the surge capacity. Even if handed all the money immediately, it would take time to get the office space, time to hire the staff. We would probably have to start an entire new computer system, which would have to be designed, built, tested, and implemented, which, again, would take probably years. Chairman Specter. Thank you very much, Chief Judge Michel. It is a bleak picture, but we want to know what the facts are so we can figure out what to do--try to figure out what to do. Our next witness is the chief judge of the Court of Appeals for the Second Circuit, Chief Judge John M. Walker, Jr. Judge Walker came to the circuit court in 1989. Prior to that he was district court judge in the Southern District of New York and has been chief judge since October 1st of the year 2000. Welcome, Chief Judge Walker, and the floor is yours. STATEMENT OF JOHN M. WALKER, JR., CHIEF JUDGE, UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT, NEW HAVEN, CONNECTICUT. Judge Walker. Thank you, Mr. Chairman, Senator Cornyn, and members of the Committee. I thank you for the opportunity to appear here. As chief judge of the Second Circuit, I am responsible for one of the two courts that is bearing the brunt of the immigration appeal explosion right now, along with the Ninth Circuit. I do appear today in my individual capacity. I do not speak for the other judges in my court. And I do appreciate also the Committee's hard work on the very difficult issues relating to the whole issue of immigration reform, the national debate that is going on, but also, in particular, the impact of the proposed legislation on the adjudication of these disputes. For the past few years, I just wanted to give a little background. My court has been receiving immigration appeals at the rate of about 2,500 cases per year. Around a quarter of the cases that are filed nationally come to the Second Circuit. What we thought was a one-time bubble, as the BIA was ordered to clear its backlog in 2002, has now turned into a steady flow of cases, and most of these raise asylum issues. Over 90 percent raise asylum issues. They are fact-intensive cases in which the petitioner is seeking to be relieved of the obligation to return to their home country by virtue of the fact that they claim persecution. To deal with this backlog that we had and that we currently have and are working on, in October 2005 a special non-argument calendar was set up for asylum cases, and we are adjudicating 48 cases a week on the basis of this calendar, which we call the NAC, N-A-C. And we are doing it with three judges on each case. In the 6 months that it has been in effect, it is reducing our backlog, and we expect to eliminate it in no more than 4 years, maybe even 3 years. In this regard I want to publicly commend Circuit Judge Jon O. Newman, who is here today, who was the principal architect of the NAC Program. The principal reason, I think, for the current backlog in the Courts of Appeals, and the reason that we have higher expected numbers of cases being remanded are a severe lack of resources and manpower at the immigration judge and BIA levels in the Department of Justice. Only 215 immigration judges process filings of over 300,000 cases a year. That means a single judge has to dispose of 1,400 cases a year or nearly 27 cases a well, or more than 5 each business day. Immigration judges simply cannot be expected to make thorough and competent findings of fact and conclusions of law under these circumstances. The BIA faces similar pressures. It has 11 members currently and faces 43,000 filings a year. So each judge has to decide nearly 4,000 cases a year, a virtually impossible task. So I think there needs to be a substantial increase in the number of immigration judges and BIA members, and my testimony specifies in some detail the numbers that I think would be appropriate, basically doubling the numbers. Turning to Section 701 of the Chairman's original bill, which would take petitions for review out of the Regional Courts of Appeals and put them in the Federal Circuit, with all due respect, I believe that consolidating these appeals in the Federal Circuit would be a mistake for the following reasons. First of all, it will do nothing to improve the performance and productivity of the IJs and the BIA, which I think is the core problem in immigration adjudications, and which can only be addressed by additional resources. Second, as has been noted, it will swamp the Federal Circuit with petitions, a ninefold increase at least in its caseload, reducing the time for careful consideration, delaying dispositions and exacerbating the backlog. Third, it will run counter to the firmly accepted idea of our Nation's relying on generalist judges to adjudicate disputes, and it will also run afoul of the policy of the Judicial Conference, which disfavors specialized courts except in limited circumstances. It also, I think, runs the risk of politicizing the Federal Circuit, which could affect the reputations, not only of the Federal Circuit but of the judiciary as a whole, as the public and those responsible for nominations begin to view the Federal Circuit as determining primarily immigration cases, and then the views of the judges as pertains to immigration cases, and how they might dispose of such cases, would become paramount in the appointment process. Finally, I think that the centralization in the Federal Circuit would lose the benefits of having appeals heard in the community where the parties are located. Now, every circuit judge in the country today is available--if I could continue just for a few minutes, Mr. Chairman. Chairman Specter. Yes, you may, Judge Walker. Proceed. Judge Walker. At present, every circuit judge in the country, with the exception of those in the Federal Circuit today, is available to review immigration petitions. There are 70 Federal judges available to dispose of these cases in the Second and Ninth Circuits alone, but even with the proposed expansion of the Federal Circuit to 15 judges, 15 judges would be responsible for the more than 12,000 petitions for review on top of that court's current caseload, and that current caseload is about 1,500 cases a year, as we have noted, as Judge Michel has noted. The Judicial Conference has long opposed the specialization of the Article III judiciary in favor of using generalist judges to decide cases, and this is a system that has served our Nation well throughout its history. The executive committee, just last Friday, confirmed that position, and is on record opposing the consolidation of immigration appeals in the Federal Circuit. At present, judges are not appointed to decide a specific class of cases generally. However, under the proposal, since the overwhelming majority, 90 percent of the docket of the Federal Circuit would be immigration appeals, that would change, and even if done with the best of motives, the appointment and confirmation of judges to the Federal Circuit would inevitably, I believe, tend to focus on how the nominee would be inclined to rule in immigration matters. Should this occur, the prestige of the Federal Circuit Court of Appeals, I think, would be impaired, as would the perception of impartiality that is so critical to the public's favorable view of the judiciary as a whole. Mr. Chairman, I am also troubled by the provisions of the proposed bill that provide that one judge decide whether the petitioner is entitled to Court of Appeals review. Currently, even under the more efficient NAC procedures of the Second Circuit, each alien's position receives the attention of three judges. But with the hastily administrative records that we are seeing, single-judge gatekeeping review would diminish, I think, the quality of review that these cases receive, and would not appreciably speed up the process, because all of these cases are so fact intensive, that the same staff attorney support would be required, as is the case today, and our NAC calendar is moving expeditiously in handling our backlog, and I don't think a single-judge review process would significantly improve that disposition rate. Again, I thank the Chairman and members of the Committee again, for bringing to light these issues, and in my view, again, the most single effective way to improve the functioning of judicial review of immigration proceedings is to give the Department of Justice the adequate resources to handle its caseload. I think the present structure of immigration review is really not the problem, and that the solution does not rely in changing it. Thank you, Mr. Chairman. [The prepared statement of Judge Walker appears as a submission for the record.] Chairman Specter. Thank you very much, Judge Walker. We now turn to Judge Carlos Bea of the Court of Appeals for the Ninth Circuit. Prior to coming to the Ninth Circuit, Judge Bea was on the Superior Court of California. May I add that the Ninth Circuit Chief Judge, Chief Judge Schroeder, has submitted testimony, as has Circuit Judge Kozinski of the Ninth Circuit, as has Judge Posner of the Seventh Circuit. We have also had the submission from the Judicial Conference of the United States. Thank you for joining us, Judge Bea, and we look forward to your testimony. STATEMENT OF CARLOS T. BEA, CIRCUIT JUDGE, UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT, SAN FRANCISCO, CALIFORNIA Judge Bea. Thank you very much, Mr. Chairman. Good morning, Senator Cornyn. Good morning, Senator Sessions. Good to see you again. Like Judge Walker, I want to make quite clear that the opinions I am about to express are my own, and do not represent those of the Ninth Circuit, which as you might guess, are on both sides of this issue. I am here to support the Chairman's mark, Title VII of this bill. My personal experience, if you will allow me, is a little bit unusual. I am probably the only circuit court judge in the United States who went through a deportation hearing as an alien, was deported, and won at the Board of Immigration Appeals. So I have been there and seen it. And also, in private practice, as the Honorary Vice-consul of Spain, I did a lot of pro bono work with Basque shepherds, and went to the Immigration Court and also the Ninth Circuit, so I have a little bit of experience as a lawyer also. I think the overwhelming need that is addressed by this mark is a need for national uniformity, a national policy. One doesn't immigrate to Idaho or Texas, one immigrates to the United States. We have very important problems which are circuit splits, and they can be in such issues as what is an aggravated felony from one State and what is not; is an order of removal necessary when somebody comes back in the country by an immigration judge, or can you do it by having the agent enforce or reinstate the order of removal? That is an issue which is presently split. The Supreme Court cannot take enough cases to give us supervision in all areas. What happens with this lack of uniformity is that you get forum shopping. It is very clear, asylum cases, which I agree are 90 percent of our immigration cases, which by the way, in the Ninth Circuit, immigration loaded between 46 and 48 percent of our overall calendar. In asylum cases the Fifth Circuit in Texas and in New Orleans has had 125 percent rise over the last 5 years. But the Ninth Circuit has had a 590 percent rise over the last 5 years. Now, why is that? The Fifth Circuit grants 9 percent of the Board of Immigration denials by reversing them. The Ninth Circuit grants 33 percent. If I were representing one of my old clients, I would do everything in the world to have him given up and proceed in the Ninth Circuit rather than in the Fifth Circuit. That is the forum shopping which actually exists today as a practical matter. The review by a one-judge court is not so unusual. We presently have reviews of habeas cases by a one-judge court, the district judge, and if he does not grant it, we have a two- judge court in the Ninth Circuit take a look for certificate of appealability. It is not a new function. The criticisms that we have had that I have heard about generalists, the idea being that it would politicize the regime of appointing judges, I don't think that the appointing for results, which was talked about, has worked so well in the Supreme Court of the United States, and I don't think it is working in an of the circuit courts either. Judges tend to be very, very independent once they become Article III judges. The idea that the court located in Washington could not give justice throughout the country, I think, overlooked something which is very important. The Federal Circuit is the only circuit under 28 U.S.C. 48(a), which can hold hearings in any of the other circuits and any of the other cities. So they can come out to San Francisco. We have got plenty of courtrooms where they can have hearings. Plus, one must remember that in our particular circuit, last year we had 4,700 terminations of determinations of immigration cases. We had, of those 4,700, only 9 percent actually reached three-judge panels. We determined the rest of them either by motions or by screening panels of three judges that we did not think were worthy of argument, somewhat like the non-argument calendar. The idea that Federal judges have no immigration experience, I don't think many of us have immigration experience. I think I am an exception because I had some trial practice immigration experience. Immigration is a very complicated area. It is somewhat like tax law because we keep passing immigration bills, and there are layers. For instance, in asylum, you have asylum, you have withholding of removal, and you have the Convention Against Torture. It is three different acts, three different layers you have to go through in practically every immigration case. And it is a little bit like tax. That is why we have a Tax Court, and that is why we could have a review court here in the Federal Circuit. The backlog of cases is just growing, and there is an incentive--the backlog is an incentive for appeals. I agree with everything that Judge Walker said about the necessity to beef up the BIA process and the BIA opinions, and I know that is going to be the subject of the second panel so I will not address that. Some of the letters say that the only way to handle an immigration case is to do it as it is being done now, an immigration appeal. Some of the letters say that the particularized determination, the compassion that is shown by regional circuit court judges cannot be duplicated in a centralized court. I don't think we have a corner on compassion, and I think we can do some of the things which the chairman's mark has indicated and improve the rendition of justice immensely. Thank you very much. [The prepared statement of Judge Bea appears as a submission for the record.] Chairman Specter. Well, thank you very much, Judge Bea. We now turn to Judge Jon Newman, on the Federal bench for 33 years, 7 years on the district court in Connecticut, 26 years on the Second Circuit, had been chief judge for 4 years. And, again, in the interest of full disclosure, Judge Newman and I were classmates at Yale--I will not mention the year-- squash partners, and long conversations at a midway point between the two apartments where we lived. I could tell you more but I will not. Judge Newman. Thank you. [Laughter.] Chairman Specter. But I will mention one additional relevant factor, and that is that Judge Newman was a member of the Senate family. He was chief of staff for Senator Ribicoff. Thank you very much for joining us, Judge Newman. We look forward to your testimony. STATEMENT OF JON O. NEWMAN, SENIOR JUDGE, UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT, HARTFORD, CONNECTICUT Judge Newman. Thank you, Mr. Chairman, Senator Sessions, Senator Cornyn. It is a great pleasure to be here and have a chance to discuss this issue with you. I want to touch briefly on three aspects of the proposal: the transfer proposal, the Certificate of Reviewability proposal, and the proposal to increase the personnel throughout the administrative process. With respect to the transfer to the Federal Circuit, I think it is useful if you think of that proposal as comprehending two very distinct issues: the first is whether there should be centralization at all, as distinguished from leaving the cases in the regional circuits; the second issue is if you decide in favor of centralization, where do you centralize. Those are separate issues. Like others who have testified and written, I strongly oppose centralization. I say this with all respect to the Federal Circuit. I do not doubt that they are estimable men and women who could handle it. I don't think it is an issue of who has more or less compassion. But never in the history of this country have we put cases involving personal liberty in a specialized court. The country has been served well by two centuries of leaving those issues in the courts of general jurisdiction manned by men and women selected for their broad experience. The Federal Circuit judges were selected in large part for their expertise in technical matters. Whether centralization is needed for uniformity I seriously doubt. Of course, in any system that is adjudicating thousands of cases, there are going to be a handful of examples of different outcomes. But the basic issue arising in asylum cases is not technical construction of the immigration statute. It is the much more mundane issue of reviewing a finding by an immigration judge and the BIA that the witness, usually the alien, was not credible, and the issue is was the credibility finding supported by substantial evidence. That is the type of thing generalist appellate judges do all the time when we review bench findings of district judges. And I suspect that in the general run of patent cases--I used to try those as a district judge. I don't think there are many credibility issues that come up in a patent issue. But we review credibility findings all the time in asylum cases, and I think it's better to leave those in the generalist court. The other issue against centralization, of course, is volume. Judge Michel and Judge Walker have given you the numbers, and I will not repeat them, and you have more detail on that from Judge Posner. To put all that volume in one place is a prescription for a train wreck. You are just going to clog the court, or you are going to have to so expand it and gear up its personnel, its staff, and even its building, as Judge Michel says, and at a huge cost. Do you add judges? The current figures I have seen are it is $1 million every time you create a new judgeship: the judge, personnel, staff, support and all that. So I would strongly urge you not to centralize, to leave personal liberty cases among the regional courts where they have always been in the history of this country. If you are going to centralize, then I urge you to consider not putting them in the Federal Circuit, whose personnel were not selected for that, but to give serious consideration to an alternative centralization proposal, namely, a panel of immigration--a special panel on immigration appeals drawn from the existing complement of circuit judges throughout the country and/or district judges, if you like, modeled on the FISA Court, with which this panel is very familiar, or the old TECA Court, Temporary Emergency Court of Appeals. Those were courts to handle a group of cases drawn from the courts of appeal, selected by the Chief Justice, and there are other selection mechanisms which you could consider. It would provide one court. It would be based in Washington, if that is where the Department of Justice thinks it is better to litigate. And it can sit around the country if it wants, and it would provide flexibility. Your bill proposes adding three judges to the Federal Circuit. I think most people think three judges could not possibly handle this problem. But a panel drawn from the ranks of the sitting judges would, A, not cost you any money, which I think is a virtue; and, B, provide you flexibility. If the Chief Justice saw the volume needed judges, nine judges, 21 judges in 1 year, 21 could be drawn. If in the next year the volume was down, only needed 15 or 11, you could adjust the volume. So it offers flexibility. It offers a primarily Washington-based court. It offers generalist judges. And it follows the pattern we have used in the past and avoids a specialized court. Just briefly on Certificate of Reviewability. We have never in the history of this country allowed one judge to cutoff appeal on an issue of personal liberty in a case that has not been fully reviewed by a prior judicial system. My guess is this proposal was modeled on the COA, the Certificate of Appealability, which applies from appeal on a district court denial of habeas corpus. But those cases, as this panel well knows, are cases that have been fully reviewed by the entirety of a State judicial system and by an Article III district judge. To permit a Certificate of Reviewability there made sense, although it is interesting that almost every circuit uses three judges even to review those. But there has been full review. We have never, never let one judge cutoff review on a case involving personal liberty that has not been fully considered by a full complement of judges. A last point on the personnel. That is the best part of the bill, if I may say so. You need more IJs. You need more BIA members. You need to go back to the so-called streamline proposal, which proved to be a disaster and burdened all of us with these thousands of cases, many with one-line affirmance opinions which are not the way to handle an administrative process. So you need more IJs. You need more BIA members. And you need the cohort of attorneys that your bill calls for, both in OIL and EOIR and the U.S. Attorney's Office to properly staff it. In short, you need a thoroughly financed, well-funded administrative system to handle these thousands of cases. You do not need to disrupt it by moving all the cases out of the hands of generalist judges. But if you are interested in centralization, then I urge you to centralize in a special panel drawn from the courts of appeals and not put into a specialized court. Thank you, Mr. Chairman. [The prepared statement of Judge Newman appears as a submission for the record.] Chairman Specter. Thank you very much, Judge Newman. Our final jurist on this panel is Judge John Roll from the United States District Court for the District of Arizona, where he has been a judge since 1991, and prior to that time was in the State court system of Arizona. Thank you for coming in today, Judge Roll, and we look forward to your testimony. STATEMENT OF JOHN MCCARTHY ROLL, DISTRICT JUDGE, UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA, TUCSON, ARIZONA Judge Roll. Thank you, Chairman Specter. Good morning, and good morning, Senator Sessions and Senator Cornyn. My name is John Roll. I am a district judge in Arizona. Beginning May the 1st, I will be the chief judge for the district. I speak only for myself at this time. It is an honor to appear before this Committee, and it is certainly daunting to appear as a member of such a distinguished list of witnesses. I speak in favor of the Chairman's mark in this case. I believe that consolidation would be a good thing. I think it is appropriate. I realize you have received the letter from the Judicial Conference in opposition to the proposal of the consolidation. I would like to touch on just a few points in connection with that. The letter points out that subject-matter courts are only appropriate where national uniformity is crucial. It would seem that immigration is exactly such a topic. The written testimony that I have submitted points out several examples of inconsistencies, not only inter-circuit but intra-circuit, in connection with immigration issues. These include how circuits go about evaluating immigration judges' credibility determinations, derivative asylum issues, and retroactivity of deportation orders. There are conflicts inter- circuit and intra-circuit as to these various matters, and there should be national uniformity. The letter from the Judicial Conference also refers to regional courts that have developed expertise, and I am certain that is true. But if one circuit were to handle all of the appeals from the Board of Immigration Appeals, they would have an expertise unmatched by any circuit that currently hears these matters. It has also been referred to in the letter the fact that litigants may find that their cases are decided in distant tribunals. I suspect that many litigants already feel that their cases are being decided in distant tribunals when they are heard in San Francisco, for instance, in the Ninth Circuit. But as has already been mentioned, 28 U.S.C. Section 48 would permit the Federal Circuit to go to the busiest cities and to conduct hearings in connection with those matters. It has also been mentioned that most of these cases are submitted on the briefs. Another reason that is a compelling reason for this particular consolidation is that it would help a severely overburdened Ninth Circuit Court of Appeals. The caseload in the Ninth Circuit is now approaching 17,000 pending appeals, several times what the average is for the other circuits. That represents 28 percent of all of the pending Federal appeals in the United States of the 12 geographical circuits. Its population is one contributing factor to this. The population in the Ninth Circuit is approaching 60 million people, one- fifth of the United States. It consists of nine States, a territory, and a Commonwealth. The other circuits average four, and, of course, one of those nine States is California. This shows up in a number of different ways, and I will just pick two examples. One of them is the Ninth Circuit is the slowest circuit in the United States in decisional time. That is the time measured from the time of the filing of notice of appeal to the time of disposition. And that is the time that matters to the litigants. The Ninth Circuit now takes 16.6 months per case. The average for all of the circuits, even when you add in the Ninth Circuit, is 12.1 months. The next lowest circuit is 2.5 months faster than the Ninth Circuit Court of Appeals. Also, the Ninth Circuit is the most reversed circuit, and perhaps that would be understandable because of the volume of cases that the Ninth Circuit hears. But the Ninth Circuit is the most unanimously reversed circuit by the Supreme Court. Since the White Report was issued in 1998, the Ninth Circuit has unanimously been reversed by the Supreme Court 59 times. I have included in my submission in conjunction with my written testimony, Attachment G, which lists those 59 unanimous reversals by the Supreme Court. I have included, as Attachment C, the list of Administrative Office records that show that the Ninth Circuit is the slowest circuit, and Attachment A reflects the caseloads among the various circuits. The Chairman's mark would result in about 6,500 cases-- assuming the pending cases were transferred--being removed from the Ninth Circuit Court of Appeals. This would be of benefit to a circuit that is severely overburdened. Thank you again for the opportunity to appear before you. [The prepared statement of Judge Roll appears as a submission for the record.] Chairman Specter. Thank you very much, Judge Roll. We now proceed to the questioning from the Senators, and our practice is to limit it to 5 minutes, but we will obviously have more than one round today as we go through the process. Judge Newman, would your suggestion be that the new court of Washington, presumably, would be full time for these circuit judges, or would they retain responsibilities in the circuit for regular assignment as well? Judge Newman. I think that would depend on how many were initially chosen. If only three were chosen, I think they would be pretty much full time. If a large panel were chosen along the models of FISA, then I think they could retain a substantial caseload in their own circuit. Chairman Specter. Don't we face a similar problem to that that Judge Michel has stated, a courthouse, computer system, staff, if we are going to put all these-- Judge Newman. I don't think so. For example, if one, two or three judges were selected from the Second Circuit to staff such a panel, I would think they would use the staff resources of the staff attorneys office in New York who are already there, who are writing memos on these cases, scores of them every day. I don't think they would move to Washington. The judges could come to Washington for the hearing, or the hearing could be held elsewhere, or it could be done by closed circuit television, as we now do with lawyers all over the country. There are many flexible ways to handle the logistics of this. Chairman Specter. What do you think of Judge Becker's idea to reassign cases to have some--an analogy to the Multidistrict Panel, where you take a look at the Ninth Circuit is overburdened, the Tenth Circuit has very few, and we assign some cases there. What do you think of that? Judge Newman. Between circuits? Chairman Specter. Yes. Judge Newman. Well, of course, I think you would have to change the venue provisions. You would want to discuss-- Chairman Specter. You have that in any event. Judge Newman. You would, you would. You would want to discuss with the bar whether the lawyers from one part of the country want to be transferred to another part of the country. Chairman Specter. Well, if you have it in Washington, they are going to be traveling. Judge Newman. They would, yes. Oh, I thought you meant just from the Ninth to the Tenth, and send them-- Chairman Specter. No, no. Some administrator or panel would take a look at the imbalance. Say the Ninth Circuit was overburdened, say the Second Circuit was, another circuit is not. Judge Walker, you have your hand up. Judge Walker. There is an option here, and that would be using a panel like that to, in effect, allocate cases to the circuits on a pro rata basis. Every circuit has a--this does not address, of course, the uniformity question, but it does address the backlog unevenness that would occur, that is occurring now. And you could take into account the pro rata amount of decisions that each circuit is making in a general way on all their cases, and then simply assign the immigration cases to those circuits on that basis. Chairman Specter. You think that would be a practical way of handing it? Judge Walker. I think it would a practical way of handling it. Chairman Specter. I was-- Judge Walker. I have one other comment if I could, and that is with regard to Judge Newman's, in effect, fall-back position, which would be this panel. It would have the virtue of creating a uniform body of law because it would be a separate panel that would be presumably subject to rules of precedence that would apply to that panel, so that notwithstanding--if I am a Second Circuit Judge, and I have ruled or our court has ruled in a certain way, when you are transferred to the panel, the immigration panel, you would be governed by rules of law that would apply to that panel, as if it were a separate court. Chairman Specter. I am going to want to explore with you, but not on the record at this moment, logistically how we would do that. I was struck by your comment that going to the Federal Circuit, you would be politicizing. I will ask you first, Judge Walker, and then Judge Michel, why do you think it would politicize matters, and then I will let the defense speak. Judge Walker. Well, I don't particularly think that it necessarily would. I just thought that--I do believe that there is always a risk when you take a highly politically charged issue and put it into-- Chairman Specter. What is there political about the individual cases? There is a lot of politics involved on whether we are going to have a guest worker program, but when an individual matter comes to the circuit court, what is so political about that? Judge Walker. There's nothing terribly political about that itself. It would really be a question of--courts get reputations. Are they more or less inclined to favor one side rather than another. That would be the only issue that would come up. Chairman Specter. Chief Judge Michel, if you do draw this assignment, what do you think about Chief Judge Walker's concern about the politicization? Judge Michel. I really have no way to evaluate it. It depends on the Justice Department, the White House, and the Senate on confirmations. It seems to me it's hard to know. There is a danger if the court becomes a 90 percent plus immigration court, that immigration predictions will play a significant role in selection of judges. So there is some risk. How to quantify it, who knows? Chairman Specter. The red light went on during Judge Michel's answer. You are permitted to answer. The red light just governs the questioner. Senator Cornyn, under the early bird rule. Senator Cornyn. Thank you, Mr. Chairman. I would like to express my gratitude to the panel for being here and helping us figure this out. I think all of you have made a valuable contribution trying to figure this difficult issue out. It strikes me that probably no judge would like to sit, get up in the morning and go to work and decide immigration appeals from start to the end of the day, and do that day after day, 365 days a year for their entire tenure, and I think there is something to be said for avoiding judicial burnout. I would also tend to agree that there is virtue in the generalist judge who brings a variety of experience to decide individual cases. But here it strikes me we are trying to figure out how do we achieve the value of uniformity and predictability and the expertise that judges would bring to these appeals that would allow us to handle such a high volume, and to do it in a shorter period of time than is done now. Mr. Chairman, I am glad that we are also talking about the additional staff that would be necessary. These judges would not be the only ones looking at the case. In fact, every judge depends a lot on the staff to prepare the case for their review, and I think if we are going to make this massive immigration reform bill work, we are going to have to make sure at all levels, whether it is the Department of Justice or the judiciary, or through Department of Homeland Security, that the staff is there to process the huge caseload. Let me turn to--Judge Walker, you mentioned that you thought the alternative to the proposal before us would be to make sure that the Department of Justice has adequate resources. Would you see that as a complete solution, and if so, would you explain that, please? Judge Walker. Yes. Well, part of the backlog, the real reason for the backlog I think can be traced back to the streamlining decisions that have occurred in the Department of Justice, which are understandable given the huge backlog that they have, and that is, the idea that a single BIA judge can effectively decide an immigration appeal by affirming without opinion. So that streamlining procedure has led to a push on the part of the litigants to have their cases now decided in the Courts of Appeals, instead of in the administrative agency. So the Court of Appeals becomes the first effective review of the immigration judge's decision. With that, there has been this burgeoning of cases, and in addition, we're seeing, with the streamlining and the burgeoning of cases, that not only are more cases coming through the BIA at a faster rate, but more--but a higher percentage of the cases that are pushed through the BIA are being appealed than was the case before. So it's a ratcheting on two different levels, and that's what explain, in my view, this huge backlog and flood of immigration cases that amount to now 12,000 a year. So that if we go back, just to answer your question again, if we can go back to basics and see that the BIA and the IJs have sufficient resources, then the issue will basically be litigated at the agency level which is where it should be litigated. Senator Cornyn. That sounds to me like that would be a valuable thing to push the cases down to be decided at the lowest level of the administrative process they could be without the necessity of getting circuit court judges involved. But would you agree with me that if you could get greater uniformity of results, that would have a tendency to decrease the number of appeals, and thus, make the problem more manageable? Judge Walker. I think that to some extent, that is true. Also, I think though that the number of appeals depend upon the backlogs that have been generated, so that if you have--and that's the venue provision that we're talking about. Currently, the venue provision is tied to the place where the immigration judge renders his final decision. If it's the Ninth Circuit, then it's there. If it's the second Circuit--and a lot of these litigants have connections to the Ninth Circuit or reside in the Ninth Circuit or the Second Circuit. In the Second Circuit we have a huge number of immigrants of Chinese national origin, and they congregate in New York. So that is another reason why cases are coming to particular circuits. And then once they come to particular circuits, and the backlogs develop in the particular circuits, then that becomes a desirable place for future litigants to file their cases because they'll be at the end of the queue, and the longer they're at the end of the queue, the better off they are, because the name of the game for them is to remain in the country. Senator Cornyn. Mr. Chairman, I am intrigued by Judge Newman's idea of an analog to the FISA Court. It seems to me it strikes an interesting balance between the need for uniformity, yet sort of an alternative to dumping all of the cases on one court. If I may, Judge Bea, you had a comment, I believe on the question of-- Judge Bea. Yes. I quite agree with what Judge Walker said regarding the attractiveness of the appeals process to the alien who wishes to stay here. The bigger the backlog you have, if the alien could be put at the back of the line, he can wait out changes in legislation such as are happening at the present time. Also there may be changes in his personal circumstances that would help him in getting a cancellation of removal. So while it is absolutely necessary to better the Board of Immigration Appeals--and I think on that we're all in agreement--let's not think that that's going to stop the appeals going to the Courts of Appeal. When there is greater uniformity and the sure prospect of a denial, that might help. Chairman Specter. Thank you, Senator Cornyn. Senator Sessions. Senator Sessions. Thank you, Mr. Chairman, for wrestling with this important issue as we deal with, I think, 300,000 plus appeals a year. It is obvious that this is a massive undertaking and it needs to be given a great deal of thought. Weaknesses in any part of the system can allow problems to occur, increase appeals in a way that is not legitimate, and drive these numbers to an even greater degree. I guess, Judge Bea, you were saying that to the extent to which you had a system that rule promptly and consistently with predictability, and a litigant knows that their case, based on the consistent law of the circuit or the court, is inevitably weak and will not prevail, that they are less likely to appeal in the first place? Judge Bea. They should, that should work. When you know that your chances in the Fifth Circuit are going to be one third of what they are in the Ninth Circuit, then there is an incentive, obviously, to give up, or have your hearing in the Ninth Circuit. If there were uniformity of result or of appeal, then you would think that there would be less appeals from the Board of Immigration Appeals. Senator Sessions. There is still a fairly low standard for this certificate in the Chairman's mark. I mean, all the petitioner would need to do to establish a petition for review would be a prima facie case; is that right, Judge Walker? So it is still not an overly high standard to get a hearing, a full hearing. Judge Walker. My understanding is that that is true. If it's just--and I understand there's been debate about what the standard would be. I am not sure exactly what the Committee is thinking of at the moment, but if it's a prima facie case, that's true. The problem-- Senator Sessions. That is the language in the mark. Judge Walker. That's currently the mark. But the problem is, as Judge Newman has pointed out, that these cases really don't--really turn on credibility issues, so they're fact intensive, and a prima facie case could be made out by the alien, but then you would have to assess credibility, and whether the IJ has really focused on credibility in reaching that determination, that there was no merit to the case. So that is going to require essentially the same investigation by the judge in reviewing the case as currently occurs. Senator Sessions. Judge Michel, on the caseload per circuit, per judge in a circuit, your circuit is one of the lower; is that correct? Judge Michel. Yes, it is, Senator, and we struggle to stay current and deal with the massive patent and trade and contract and personnel cases that we have in very large numbers. Senator Sessions. Is it the D.C. Circuit that is lower per judge than you are, or are you the lowest in the circuit? Judge Michel. They're very similar. They're very similar annual case filings, similar caseloads per judge. Senator Sessions. I thank you for your willingness to consider this, and respond appropriately. We are in a situation in our country that the immigration legal system is not working. As a result the immigration has become more and more illegal. In the whole system, there are a host different problems that arise in a whole series of different areas, and in almost each one of those areas we are not functioning well. So I would salute the Chairman for thinking creatively to try to make our court system be able to respond effectively. At some point if people oppose every single process reform necessary to make this system work, we are never going to make it work. And my observation has been that anytime someone comes up with an idea that might actually work in the real world and relieve the stress on the courts or the border or the workplace, that turns out to be controversial. So it is a difficult thing, and I look forward to studying this carefully. I do note, Mr. Chairman, that all of our circuits carry a pretty good number of immigration cases, and one of the principles I have observed as Chairman of the Courts Subcommittee is that most of our courts do not want to keep adding more and more judges and getting larger and larger because it impacts their collegiality and ability to function. And they would like to keep it slower. They complain about too many Federal laws creating too many causes of action. That stresses the courts. So I would think that from that point of view--Judge Roll, you might comment on it--it could relieve some pressure to make the circuits larger and larger. But with regard to the Ninth Circuit, do you think this would impact your view that the court still would be too large to function effectively if it took these cases out? In other words, one of the issues at the Ninth Circuit is the caseload is heavy. It is not the heaviest per judge in the country, but it is heavy. And how would this impact your view about division of the circuit? Judge Roll. Well, it wouldn't change it. I think that there would still be compelling reasons for a circuit split. I think that the best of all worlds would be the Chairman's mark coupled with S. 1845. And I say that because just this alone won't change some of the factors that are just present in the Ninth Circuit. You will still have a fifth of the population in the Ninth Circuit. That is going to generate significant caseload. The Ninth Circuit has 28 active circuit-authorized judgeships and needs seven more. That is why they have to have the limited en banc, which is structurally flawed, and Justice O'Connor pointed that out in her letter to the White Commission in the summer of 1998. If this were to be adopted, the Chairman's mark, along with the proposal to split the Ninth Circuit, it would result in a new Ninth Circuit consisting of California, Hawaii, and the islands that would have 60 percent of the judges and 60 percent of the caseload, and the new Twelfth Circuit would have 40 percent of the caseload and 40 percent of the judges--a parity that was discussed at a previous hearing in October of last year concerning the disparity that might exist if just S. 1845-- Senator Sessions. Well, we better not go too much into all of that. Judge Roll. All right. Thank you. Senator Sessions. We could have a long discussion. But thank you for your perspective. Chairman Specter. Judge Newman, would you care to respond? Judge Newman. Yes, I just had a couple of words on the uniformity issue. Sure, there are some circuit splits, but there are examples of circuit splits on every issue you can mention. In the aftermath of Booker in the Supreme Court, the circuits were all over the lot. You could make the argument that any category of cases should be centralized in order to avoid uniformity. We have never gone down that road wholesale in this country. I don't think we should. Second, to think that straightening out circuit splits on the statute would decrease the appeals I think is an illusion, and I will tell you why. They do not appeal because they want the benefit of a construction of the statute. They appeal because they are challenging the credibility finding. That is the dominant issue in almost all the cases. And it does not matter how you read the statute. You are always going to have a credibility finding by the IJ, and the alien and his lawyer are going to say it is not supported by substantial evidence. Third, to the extent you are worried about lack of uniformity, if instead of putting these cases in the Federal Circuit you went to some sort of a special immigration panel drawn from the sitting judges of the Article III courts around the country, they could resolve any disputes by either a full en banc procedure or a mini-en banc procedure following the Ninth Circuit model; or if you wanted, you could even have a special panel that only resolved disputes, which was the proposal Chief Justice Burger made many, many years ago to resolve inter-circuit disputes. So there are ways to resolve statutory conflicts without moving all these cases wholesale to one court. But if you want to centralize, please centralize in a court drawn from the existing cadre of personnel. We have never done it differently in the history of this country on issues of liberty, and to do it into one court and overburden it will cost you a lot of money and create a huge logjam. Thank you. Chairman Specter. As we begin the second round, I am glad to see the clock is reset at five. Judge Newman, following up on that idea, the thought of having a court below the Supreme Court resolve circuit splits has never taken hold. But there might be a little narrower ground here on uniformity by utilizing a special panel, perhaps of five circuit judges, to resolve the split, so that if we did not go to the Federal Circuit, we would be able to maintain the uniformity factor. Do you think that is a practical way to handle it? Judge Newman. Yes, I think that is one of the ways to handle it. If you want to centralize all the cases in the court, then I would suggest, as I said, centralize them all in a broad panel drawn from the existing ranks, staff with-- Chairman Specter. Well, I am thinking-- Judge Newman. If you just want to do uniformity, if that is the focus, then authorize the Chief Justice to designate a panel of five, seven, whatever number seems appropriate, to resolve inter-circuit conflicts. Chairman Specter. Well, I am thinking about the possibility of reassigning among the circuits in order to have it spread out better, but then to solve this issue of uniformity, where we are looking to the Federal Circuit or one circuit to have uniformity, to create a special panel of five judges to sit en banc or seven. Judge Michel, I was surprised to find that after an immigration judge decides a case and the Board of Immigration Appeals affirms, the Attorney General has the authority to set that aside. We questioned Attorney General Ashcroft on that subject at substantial length, and the best answer that the Department of Justice could give was that it is very infrequently used. Do you think that it is sound to leave with the Attorney General the authority to overrule the immigration judge upheld by the Board of Immigration Appeals? Judge Michel. Well, Senator, there is an analogue in trade law, where the President can overrule the decisions of the International Trade Commission for broad reasons of world economics or foreign policy. Chairman Specter. Well, that is the President, and that is a foreign policy implication. Judge Michel. Well, it seems to me the Attorney General has the responsibility for the employees of the Justice Department who make up the immigration judges and the immigration board. So it doesn't seem to me particularly anomalous. It is apparently not used often. There is some dispute about the extent to which it should be reviewable by an Article III court of appeals. But it doesn't seem to me that it is a big factor in these 43,000 decisions and the 30-plus-percent appeal rate that is now flooding all of the Federal appeals courts. Chairman Specter. But you would not let the Attorney General overrule the circuit court? Judge Michel. Certainly not. Chairman Specter. OK. Well, I want to come to the composition of the immigration judges, which is very much on our minds, and I want to start with you, Judge Roll, on this question. We are considering having, first of all, a substantial increase in the number of immigration judges, about 214 now, to go up by 100 over 5 years. And our thinking to give them greater independence is to have them appointed by the Director, a newly created position, on consultation with the Attorney General where they have to meet minimum standards and be ranked by the Merit Systems Protection Board and be fireable for cause subject to review by the Merit Systems Protection Board. Considering your experience in this field, do you think that would be an improvement on the selection and composition of immigration judges? Judge Roll. Mr. Chairman, I think that the immigration judges have an enormous caseload that they attempt to address, and they do the best that they can under very difficult circumstances. I think anything that could be done to increase their number, to increase the pool of individuals, the qualifications, all of that would be useful. But there are obviously-- Chairman Specter. But how about the issue of giving them a little more independence from the Attorney General? Judge Roll. Rather than venture an opinion on that, and I think that it may certainly have something to commend itself, I would rather defer to the other members of the panel as far as-- Chairman Specter. Judge Bea, what do you think about a little more independence for the immigration judges? Judge Bea. I am always in favor of independence for judges. [Laughter.] Chairman Specter. I am, too. Judge Bea. And I think it is a very good idea. As someone who has been before immigration judges, I quite agree they are overburdened, they have too much work, we need more of them. But nothing helps more, I think, for a judge to know that he is not beholden to any particular district attorney or U.S. Attorney or Attorney General. I think it would help. And I don't know what the position of the administration is on this bill, but it makes a lot of sense to me. Chairman Specter. Senator Sessions, round two. Senator Sessions. Well, it is an executive function primarily to enforce the laws and determine these matters and make decisions, and having been in the Department of Justice quite a long time, you realize you are an executive branch function. Ultimately, we do provide judicial review to make sure that the executive has conducted themselves properly in handling the laws that are passed. So I am not confident that this is the correct way to do this, to remove it from the executive branch. And then we want to know, well, why don't you fix it? Why isn't it working? And nobody is responsible. Everybody blames somebody else. At least when the executive has the responsibility and the authority, you can hold them accountable. Well, I don't know, Mr. Chairman. I will just wrap up and say I think uniformity would be good, and we could attain that by this court. I believe we could enhance the speed of disposition, which in itself the delays can encourage appeals for the reason Judge Bea suggested. Many times a delay could be advantageous to someone. And the Ninth Circuit, who is doing most of the cases, has the biggest backlog and the longest delay of any other circuit. I do think that a good case has been made that we need more immigration judges that when the cases hit the Federal courts, they are more and better prepared and more thoughtfully put out. With regard to liberty, I take very seriously liberty in the United States, but I think these are somewhat different than what we would normally consider liberty cases. A person wants to come into the United States, they do not have the constitutional right to enter the United States, and it is not really a denial of liberty to say you do not quality to be able to come into the United States. But they certainly are matters of great import and need to be treated with great care. Thank you for this panel. Chairman Specter. Thank you very much, Senator Sessions. With respect to the Board of Immigration Appeals, there has been a lot of dissatisfaction expressed from the one-line opinions and the reduction of number. The Chairman's mark increases the number to 23, and provides for three-judge panels, and opinions to be written. Judge Walker, what is your evaluation of the current system with respect to placing an additional burden on the circuit courts which have to review them? Judge Walker. Mr. Chairman, if the one-line orders are removed from the picture and the streamlining process is eliminated so that three-judge panels are deciding it, and more resources are given to the BIA, then the Courts of Appeals will have much more confidence in the BIA's determination, and it will shift the first review from the Courts of Appeals, as it presently is now, back to the BIA, which is where it belongs. So I totally applaud this effort on the part of the Chairman, on the part of you, to give the BIA adequate resources and ask them to do their job of deciding these cases and doing so by written opinion. It will make a big difference to the Courts of Appeals. Chairman Specter. You talk about more confidence. If you have an opinion, do you have better analysis, do you have more-- Judge Walker. We don't have confidence, frankly, that the BIA has really looked at the case. I mean, even though they've reviewed, they're told--they affirm without order, but we look at the numbers, the drastic numbers that they have to deal with, 4,000 cases per judge under the current system per year, which, as I pointed out, is a huge number per day, 80 per week or something of that sort, and so one really gets the sense that we are the first line of review for these cases. Mr. Chairman, if I could also point out the issue, or speak to the issue that you mentioned about the independence of the IJs. I am not sure that a lack of independence is a problem. I don't have the specific numbers here, but I was surprised to learn that a large number of cases result in asylum being granted by the asylum officer before it even gets to the IJ, and then after it gets to the IJ, a high percentage, about, as I recall, some 30 percent are granted asylum by the IJs. We never see those cases. So a high percentage of cases--and I think that it would be useful to get these figures--result in asylum being granted before the cases ever come into litigation. The cases that we see, of course, are the ones where the IJ is denied asylum, usually based on a finding of lack of credibility on the part of the petitioner, and that the BIA has summarily affirmed. And then it comes to us, and we just review the record to see whether the IJ had substantial evidence for the credibility determination. That's the way these cases break down. But there are a whole lot of other cases that we never see, and I think we need to factor into this. And if that's the case-- Chairman Specter. On those cases which you do not see, do you think you should see them? Judge Walker. No. I'm not saying we should see them. Nobody's appealed them. I'm saying we don't see them because the IJs have granted asylum, and they don't come to us when the IJs have granted asylum. Chairman Specter. Do you sense that the decisions on asylum, for example, are decided by and large correctly by the immigration judge? Judge Walker. Generally speaking, I think they do a good job, yes. I mean the only time it is an issue is when we can't really tell how they went through the process, but in my view, the IJs are doing a good job of the cases that I see. When they're denying asylum, I think that in most cases that is a correct decision. My point goes to the question of independence. It seems to me that the IJs are exercising independence if they are granting asylum in some cases and denying asylum in other cases. They're looking at the cases as any judge would, taking an independent look at the facts, and deciding it under the law. I don't see, and I would never suggest, frankly, based on anything that I've seen, that the Attorney General is overbearing in terms of the way the IJs are deciding the cases, that somehow pressure is being put on the IJs to come out a certain way. Chairman Specter. Judge Bea, would you try to comment on that? Judge Bea. In my own particular case, I had about a 12-page BIA decision, which was marvelously well reasoned and came to a terrific result. Chairman Specter. You won that case. Judge Bea. I won that case. Now, that doesn't happen anymore, and the result is we get the one-line affirmance. And instead of having a three-judge panel that has analyzed the issues and gone to the one issue on which the case turns, and then you can check the record to see if that is correctly decided, we get a one-line affirmance and we have to take a look at the whole record below, and sort of fish through to see if there are any issues worthy of appeal. The cost is in time and delay, and I'm very conscious of the fact that 46 to 48 percent of our cases in the Ninth Circuit are immigration cases. If those were reassigned either to the Federal Circuit, or under Judge Newman's proposal, to a panel, that would be a sea change as far as the Ninth Circuit would be concerned. Chairman Specter. Judge Newman, we hear complaints from time to time about various judges not Article III judges, who may be following the administration wish on Social Security cases or on immigration cases, and there has been a periodic push to have more independence along these judicial lines, so- called judicial lines, where they are not independent. It seems to me, when we are taking a look at rewriting the immigration laws, this is a chance for us to take a look and make some changes to the immigration judges. Do you think some modification would be desirable to grant greater independence to the immigration judges? Judge Newman. I'm not certain. I think Judge Walker makes a very strong point, that taking the administrative process as a whole, that is to say, the asylum officer, then the IJ, then the BIA, the outcomes are sufficiently varied. There's a very substantial grant of asylum along with the cases of denial. I think the outcomes of the whole process are such that it would not be entirely fair to suggest that that process is tilted against the asylum applicant. There are some individual cases that are, frankly, outrageous, and they're being reversed, but as a total process, I think it's working reasonably well. This isn't--as Senator Sessions pointed out, this is an executive branch function. The Attorney General has this discretion, and whether that discretion should be exercised through IJs and BIAs that are structured within the Department, or structured outside the Department, it seems to me, frankly, is an executive branch decision that I, as an Article III judge, ought not to get into. I think that's an executive branch choice, appropriate for the Senate to get into it. I don't think I ought to, but I do think the outcomes do not cry out for a fundamental change. Chairman Specter. Judicial review is not an executive function. Judge Newman. No. To the extent it is review--and that's why I think everyone on this panel agrees that beefing up the capacity of the administrative process, giving them the number of personnel, and then giving the Department the number of attorneys to properly represent the interests of the United States, that is appropriate for us because we will get better reasoned decisions. Chairman Specter. Well, the Board of Immigration Appeals is a level of judicial review. Judge Newman. Well, it is, but it's within the Department of Justice. Chairman Specter. Well, it is now, but should it stay there? Judge Newman. I really hesitate, as a member of the judicial branch, to advise the executive branch how it should be organized. Chairman Specter. How about advising the congressional branch, Article I? [Laughter.] Judge Newman. I think you have plenty of knowledge, experience and expertise to make those judgments yourself. Chairman Specter. That is the first time in years that I have disagreed with you, Judge Newman. [Laughter.] Judge Newman. I am so concerned about Article III judges maintaining their independence as an Article III branch, and one way to do that is to not meddle even with advice, invited as it is, in the affairs of the executive branch. If we have a case, we will rule, but I don't think we ought to be telling them how to structure the executive branch, at least that's my view. I don't quarrel with anyone else doing it, I just prefer not to. Chairman Specter. Well, but the Congress is wrestling with the problem as to what is fair, what is just, what is appropriate? Judge Newman. And you are the political branch, and it's quite appropriate for you to do it. We're not. Chairman Specter. But you have had the experience. We have not. You have seen these cases. We have not seen these cases. Judge Newman. We have told you our view of the cases. Our view of the cases, as Judge Walker says, is that right now the totality of the administrative process, that is, asylum officer, IJ and BIA, is handling these cases without a pronounced tilt either way. Chairman Specter. Judge Bea. Judge Bea. I would agree with what Judge Newman said. I think when you get into the trial record, which we have to in reviewing the IJ's decision, because in a one-liner from the BIA, we look at the last reasoned decision which is the IJ. I haven't been able to see any particular tilt. I agree with Judge Newman that once in a while you get a bizarre result, and that's why there's an appeal process. But I'm only speaking toward my general favor of judicial independence, whether it's Article III judges or any judge. Chairman Specter. Aside from the asylum cases, what are the other principal issues which the immigration judge considers and BIA considers? Judge Bea. Well, besides the asylum cases you have the removal cases which are caused by a person being removed because of a prior aggravated offense--prior aggravated felony. The question is, is this person, who is a legal permanent resident, removable because he has committed a crime which is, by Federal definition, a removable offense? And then there is--but I have to agree that right now we're doing almost nothing but asylum cases. Now, asylum cases also break down not only into credibility issues, but what is persecution? Is it persecution to have discrimination but not incarceration? Is it discrimination to have a particular controlled birth policy, which now we have legislation on that issue? Those are the issues we are principally involved with. Chairman Specter. Senator Sessions, do you have any further questions for this panel? Senator Sessions. I thank the judges for their thoughts about this process, because, as I see it, it's a classic executive branch matter. They must comply with the laws passed by Congress. They must follow the law in how they determine whether a person should enter or not be allowed to enter this country. They must not abuse their discretion in making credibility choices or other matters, but you give some deference to the administrative procedures in making those decisions. And it is from that that these appeals are all coming. I mean we have had the process of administrative review and then a final decision is then made that the applicant does not qualify for the immigration benefit they desire, and now they are appealing on the basis either the law was not followed or the judge who made the decision, abused discretion in some fashion. I think that is the proper way to do this because now we can blame the President if it is not working. Somebody is accountable. He can be blamed, I think, for not asking for enough judges. That is one thing he can be blamed for, and if he is not responding effectively to a backlog or we are not getting adequate opinions. So I think I am dubious about making a change from the Department of Justice. It seems to me that is the normal way we would do these things, and we should probably leave it right there. Chairman Specter. Thank you very much, Senator Sessions. One final question, Judge Michel. Senator Sessions thanked you for your consideration of the Chairman's mark. Are you considering that? I know you are a good soldier, but I would be interested in your own thinking as to whether it is a wise idea, and part of that is the impact on the Federal Circuit on your other jurisdiction. Judge Michel. Right. Senator, the flip side of Judge Walker's comment about judges for the Federal Circuit being selected on the basis of how the selector would predict they would rule on immigration decisions and asylum grants would be, I fear, could you get good contract lawyers, good personnel lawyers, good patent lawyers, good claims lawyers, good fifth Amendment taking lawyers? We have many cases like that. Tax lawyers, could you get lawyers interested in serving on the Federal Circuit if the diet, which Senator Sessions and Senator Cornyn pointed out, was 90 percent plus immigration cases? I would be very worried that you could not get top lawyers in any of those varied areas with the diet being 90 percent plus immigration cases. The other thing I would like to say to the Committee is that there is a underlying premise, as I sense it, in the idea of a certificate of reviewability that there are shortcuts here, and I agree with what all of my fellow judges have said, but I want to reinforce one aspect of it. My own experience in personnel cases, which for most of the quarter century life of our court have actually been our largest single caseload, not patent cases, personnel cases. They all turn on credibility. They are all reviewed under the substantial standard of review, just like the immigration cases are. And in every case the only way that a single judge or a panel of judges can make a reasoned, intelligent, reliable decision, is to read the testimony, read the opinion, if there is one, of the fact finder, read the primary documents in the record. It is a laborious painstaking process. There are no shortcuts. I think it's entirely illusory to think that these 12,000, 13,000, soon to be 14,000 cases per year can be handled on a shortcut basis either by staff or by judges. You have to read the whole file. Chairman Specter. Thank you very much, Judge Michel, Judge Walker, Judge Bea, Judge Newman and Judge Roll. We will just take a moment or two to thank the panel, and then call Panel No. II, Mr. Cohn and Mr. Martin. [Pause.] Chairman Specter. The Judiciary Committee will now resume with Panel No. II, and our first witness is Mr. Jonathan Cohn, the Deputy Assistant Attorney General in the Civil Division. Mr. Cohn is a graduate of the University of Pennsylvania, bachelor degree, summa cum laude; Harvard Law, magna cum laude; and was primary editor of the Harvard Law Review. Thank you very much for joining us, Mr. Cohn, and we look forward to your testimony. STATEMENT OF JONATHAN COHN, DEPUTY ASSISTANT ATTORNEY GENERAL, CIVIL DIVISION, DEPARTMENT OF JUSTICE, WASHINGTON, D.C. Mr. Cohn. Thank you, Mr. Chairman, and members of the Committee. Thank you for allowing the Department to testify here today. I think we can all certainly agree that the immigration system is in dire need of change, and thus, the Department looks forward to working with the Committee in developing the most appropriate and effective solutions. Today, on behalf of the Department, I would like to address two particular sets of potential reforms. First, the provisions that were in Title VII-A of the Chairman's mark, which would help reduce immigration litigation in the Federal Courts nationwide, and second, Title VII-B of the mark, which would effectively render the Executive Office for Immigration Review, or EOIR, an independent agency, unaccountable to the executive branch. The Department strongly supports most of VII-A and commends the Chairman for including it in his original mark. We cannot, however, support VII-B, because it would undermine the executive branch's ability to control the border and effectuate immigration policy. If I may, I will start with VII-A. By way of background, since 2001, there has been a 603 percent increase in the number of immigration appeals filed by aliens in the Federal Courts, often without a serious argument, and simply to achieve delay. This flood tide of cases presents a critical problem for the Department, the courts and the rule of law. First, the cases impose and intolerable drain on resources, requiring attorneys throughout the Department to put aside other critical work, and instead turn to writing immigration briefs. Second, the cases impose delay on the courts because of the growth in litigation. The Second Circuit, for example, now takes over 2 years to decide the average immigration appeal. As a result, illegal aliens can remain in the country, and aliens warranting relief, have to wait longer for legal status. The delay is not good for them either. Moreover, delay creates an increased incentive for illegal immigration because aliens know that by simply filing an appeal, however meritless, they can often stay in the country for years. Finally, there is even greater incentive to file frivolous appeals, thereby perpetuating an endless loop of more delay, more illegal immigration, and more litigation. The loop doesn't end, it just gets worse. But Title VII-A would help break this loop, and stem the flood tide of immigration appeals. Most importantly, Section 707 would require an illegal alien to obtain a certificate of reviewability before he could pursue an appeal. This is precisely the same mechanism that exists in the habeas context as the result of a bill that the Chairman and Senator Hatch wisely introduced 11 years ago. It makes sense in the immigration context too. It would help reduce unnecessary litigation while simultaneously leaving the courthouse doors open to every single alien. No one, absolutely no one, would be precluded from raising his legal and constitutional claims. We support VII-A. We cannot, however, support VII-B. First and foremost, the provisions in VII-B largely insulate adjudicators and EOIR from any executive branch oversight or supervision. Immigration judges would be able to decide who stays and who goes without any prospect for review by the Attorney General, the Nation's chief law enforcement officer. This is a problem because we can all agree that controlling one's borders is a quintessential and critical element of sovereignty. It is inextricably intertwined with foreign policy, the economy and domestic security. Without question, the power to decide immigration cases and develop policy through case-by-case adjudication, should not be transferred to unaccountable agency officials. Finally, such a transfer is bad timing for two reasons. First, it is premature because it would short circuit the Attorney General's comprehensive review of EOIR, which has been enthusiastically welcomed by the Federal Courts; and second, it would give rise to additional litigation as it would allow, and effectively require, the Secretary of Homeland Security to challenge erroneous agency decision I Federal Court. Once again, thank you very much for the opportunity to testify. I look forward to any questions that the Committee might have. [The prepared statement of Mr. Cohn appears as a submission for the record.] Chairman Specter. Thank you very much, Mr. Cohn. We now turn to Professor David Martin, professor of international law at the University of Virginia Law School; bachelor's degree from DePauw University and a law degree from Yale, where he was editor-in-chief of the Yale Law Journal, quite a distinction. Thank you for coming in, Professor Martin, and we turn to you now. STATEMENT OF DAVID A. MARTIN, PROFESSOR OF LAW, UNIVERSITY OF VIRGINIA, CHARLOTTESVILLE, VIRGINIA Mr. Martin. Thank you very much, Mr. Chairman, Senator Sessions. I appreciate the invitation to be here and address these important questions. I have taught and written about immigration law and constitutional law for 25 years, and I have also served as General Counsel at the Immigration and Naturalization Service for two and a half years in the mid 1990's, and that afforded me some close inside acquaintance with how review affects the operations of the agencies. The Committee is right to be concerned about the current system for administrative and judicial review of immigration decisions. it has been under stress in recent years with some of the difficult consequences that Mr. Cohn, in his testimony, has talked about. But it would be unwise, in my opinion, to consolidate all judicial appeals in the Federal Circuit. The Nation and the agencies involved actually benefit from the involvement of the general jurisdiction courts and the consideration of immigration issues. They have been finding ways to adapt to the new caseload. Their efforts should be allowed time to mature. Also, I believe that the single-judge screening mechanism provided by Section 707, would risk denying court consideration in cases where careful review should be provided. It might also prove counterproductive, ultimately creating more work for the court or courts involved, as Judge Michel suggested in the earlier panel. The remedies should focus instead on restoring sound functioning by the Board of Immigration Appeals and the immigration judges. This requires both additional resources and the return, in essence, to a system of administrative and appellate review that operated before the 2002 streamlining regulations. Let me turn to the issue of consolidation. Two main arguments are offered in support of consolidation, one having to do with a risk of forum shopping, and the other the important desirability for uniformity and consistency in administration. Forum shopping, I would submit, is not a significant issue after amendments adopted by the Congress in 1996, that require that review be had in the circuit with jurisdiction over the place where the immigration judge issued the initial ruling. That initial venue is largely determined by where the Department of Homeland Security files the case. As to consistency and uniformity, the focus on a few well- known circuit splits obscures the vast range of complex issues on which there is no real dispute, or where courts have properly deferred to administrative interpretations. I was very much involved in the internal process in implementing the 1996 changes, presenting a lot of complex issues. We worked hard in resolving those questions. I have been pleased to see over the years that most of those resolutions that we achieved have simply been accepted and have not been challenged. It is only a small number of instances that the circuits have split, but these differences are probably beneficial for the overall health of the system, because circuit splits serve the purpose of helping to signal when there are ambiguities in the law, significant constitutional issues, or difficulties in reconciling the many policy objectives our immigration laws serve. Ultimate resolution by the Supreme Court benefits from the efforts of seasoned judges from different circuits to analyze the issues afresh. If all appeals went only to the Federal Circuit, a prematurely uniform resolution of truly difficult questions might impede this valuable percolation process. I would add that Congress is also quite capable of resolving circuit splits over statutory interpretation. It did so in the REAL Id Act passed last year. I addressed one of the specific splits in the circuits, that over standards for reviewing credibility determinations that has been invoked in some of the testimony. And Section 705 of the Chairman's mark would resolve another oft-invoked split over reinstatement of removal. With regard to the certificate of reviewability, like the Judicial Conference and several of the judges here, I urge the Committee not to adopt that procedure. The individuals involved in standard removal cases deserve at least one opportunity for full consideration by Article III judges. We should at least gain more experience with the full impact of the current judicial management measures that the circuits have adopted before undertaking so sharp a departure from our usual approach to court access where individual stakes may be quite high, and constitutional claims may be implicated. Furthermore, screening mechanisms of this kind ordinarily presuppose the availability of robust review of the initial decision elsewhere. With the 2002 changes at the BIA, unfortunately, this is not the case in many of the cases in immigration law. The Department of Justice has analogized this procedure to the certificate of appealability and the habeas framework, but that is provided for a screening of appeals from a full decision by a district court judge and its collateral review after full direct review has been available earlier. At issue here is the only opportunity for direct judicial review of immigration decisions. So I agree with the Judicial Conference's conclusions on that point. If I might have just 30 seconds to finish up. Chairman Specter. Go ahead, Professor Martin. Mr. Martin. Thank you very much. The Federal Judicial Conference, the U.S. Judicial Conference suggested in its response to Section 707, and I quote, ``Streamlining both the administrative and appellate review of immigration cases raises concerns about whether the process would provide a meaningful review.'' As that letter indirectly suggests, the current stresses on the system for judicial review could best be addressed by restoring sound functioning of the adjudication and appeals system at the administrative level, and Title VII of the Chairman's mark contains many promising provisions to this end. The most useful investment that Congress could make in solving the problems would be additional resources for the immigration courts and the Board of Immigration Appeals. Also restoring the Board to the size of 23, or perhaps at some point, to even more members. Section 712 of the Chairman's mark would also make very important changes in the procedures set up by the 2002 regulations. Particularly, it would greatly limit the occasions in which single-member decisions, affirmances without opinion, or other summary dispositions would be permitted. I think this would reduce litigant frustration that has contributed to the striking increase in appeals, and for those appeals that are still taken, as the judges said, such administrative treatment should foster prompt resolution by the courts and help assure proper deference to administrative decisions. Thank you. [The prepared statement of Mr. Martin appears as a submission for the record.] Chairman Specter. Thank you very much, Professor Martin. Mr. Cohn, in your testimony and in your written statement, you say the provision in Title VII-B would insulate adjudicators in the Executive Office of Immigration Review from executive branch oversight or supervision. Where you have immigration review by the immigration officer or the Board of Immigration Appeals, isn't that essentially a judicial function? Mr. Cohn. Mr. Chairman, it is not essentially a judicial function. As the Supreme Court has recognized, the execution of the immigration laws is the quintessential sovereign function, is, in fact, the quintessential executive branch function. When you look at the types of cases that come before the IJs and the BIA, it makes sense why the AG should have review of their decisions. We were talking about fundamental decisions that affect foreign policy and national security. Chairman Specter. Well, those decisions, foreign policy and national security, are involved in the decision by the circuit courts when they review what has been done. Obviously, you are not making any claim that the judicial review by the circuit would be subject to executive control under Article II. And when you have judicial review, it is pretty hard, it seems to me, to say it is anything but judicial review where you have an immigration judge--you call him a judge--where you have a Board of Immigration Appeals--you call it an appeal. It seems to me those are essentially judicial functions. Now, maybe it is working our fine and does not need to be altered. But you have already stated your opinion. I just have a question about-- Mr. Cohn. If I may, though, some decisions are not reviewed by the Federal courts. For instance, most forms of relief are discretionary--asylum, adjustment of status, cancellation. And under the INA, the Federal courts do not and cannot review the discretionary determinations. Those are properly left to the executive branch. Chairman Specter. But the circuit courts of appeal review them. Mr. Martin. No, they don't. Under 242(a)(2)(B)(ii), they do not have jurisdiction to review those discretionary determinations. Chairman Specter. Well, if there is an asylum appeal, is that discretionary? Mr. Martin. There are some factual and legal elements in the asylum case which are reviewable, and there is a carve-out for the discretionary-- Chairman Specter. Well, wait, wait-- Mr. Martin [continuing]. Determination for asylum. Chairman Specter. Asylum cases are discretionary and reviewable. Mr. Martin. There is a carve-out in 242(a)(2)(B)(ii) for asylum, but for instance, adjustment of status for cancellation, those final discretionary determinations are currently unreviewable. And those determinations would be made by the IJs and the Board without any oversight by the Attorney General if Title VII-B were enacted. And let's look at a couple of examples because this gives life to the point, give some life to the argument. Over the past 5 years, the Attorney General, back when Ashcroft was the Attorney General, he heard a couple cases involving claims for discretionary relief. One involved a terrorist. Another involved a child abuser who killed a baby by shaking it. In those cases, the Board granted discretionary relief, but the Attorney General stepped in and reversed it. Being opposed to terrorists and child abuse, I think that the Attorney General made a wise decision in stepping in and reversing those discretionary determinations. Chairman Specter. How do you account for the decisions by the Board of Immigration Appeals? Mr. Martin. Even hard-working, committed civil servants sometimes make mistakes, and that is why you want to have-- Chairman Specter. How about the Attorney General making mistakes? Mr. Martin. And that is why you want the decision-- Chairman Specter. How about the Attorney General making mistakes? Mr. Martin. If the Attorney General makes a mistake, he is directly accountable to the President, who is accountable to the American people, and political action should be taken. And that is precisely why these very sensitive determinations should remain in the hands of accountable executive branch officials and not immigration judges and unaccountable Board members. Chairman Specter. Mr. Cohn, the Department of Justice has no objection to adding more Board of Immigration Appeals personnel and to having three of those in the Board make the decision and writing opinions? Mr. Cohn. Both of those matters are currently being reviewed by the Attorney General as part of his top-to-bottom comprehensive review, which has been warmly welcomed by the Federal judges and the immigration bar as a whole. At this point we think it is premature to preempt that review and take action in that regard. He is considering both the issue of whether to cut back on the use of AWOs, affirmance without opinions, and also considering whether the size of the Board should be changed. Chairman Specter. Well, just one follow-up question. My red light is on. You say it would be premature, but the Congress is considering immigration reform. Are you suggesting that it is beyond our purview to make a judgment on those questions just because the Attorney General has not finished his top-to-bottom review? Mr. Cohn. Oh, absolutely not. Mr. Chairman. It is definitely your prerogative to act now. I was just suggesting that it might make sense to hold back just a little bit. The review is shortly going to be completed, and if the Attorney General does not take reforms that measure up to what this Committee would like to see, then at that point it makes sense, I believe-- Chairman Specter. Mr. Cohn, I do not know how to hold back a little. I wanted to hold this bill back a little and was put--not on the fast track, but on the speed track. So if the Attorney General has something to tell us, it would be very useful if he would do so before we make an independent judgment, although we prize our independence, too. Senator Sessions? Senator Sessions. Well, Mr. Cohn, are you saying that the Department of Justice may request more immigration judges but have not yet done so? Mr. Cohn. Oh, there are two issues. One is the question of resources, and we have requested more immigration judges. Senator Sessions. When did you do that? Is that part of this year's budget request or last year's? Mr. Cohn. Yes, in this year's budget request. We have also requested more attorneys for my office, the Office of Immigration Litigation. We are currently overwhelmed by the flood tide of cases, and the President requested roughly $10 million more to cover 114 new positions, including 86 new attorneys. What I was referring to earlier is the composition of the Board, the number of Board members, and for that, the Attorney General is reviewing that issue and has not made a determination on that. Senator Sessions. What Board members are you referring to there? Mr. Cohn. Sure. Within the-- Senator Sessions. I mean, what precisely do you mean? What Board are you talking about? Mr. Cohn. The Board of Immigration Appeals. That is the body in the Department of Justice that reviews the decisions of the immigration judges. Senator Sessions. All right. Well, first, I think it has been slow coming to this. Obviously, we have got a problem and sometimes the fact that you have insufficient resources exacerbates the problem in a lot of different ways. For example, is it correct that it is a 600-percent increase in appeals since 2001? Mr. Cohn. Absolutely, Senator. Senator Sessions. I mean, that is an incredible number, 6 times the number of appeals just since 2001. We are not seeing that many more people come into our country. So obviously, there is just more litigation. Mr. Cohn. Much more litigation, and there are two reasons for it. The first is there is increased enforcement, and the second is the appeal rate has risen. The rate at which aliens challenge the decisions of the Board of Immigration Appeals in the Federal courts has increased dramatically since 2002. In 2002, the rate of appeal was only 10 percent nationwide, and this past year, it reached 30 percent. That is a tremendous increase in the rate of appeal. What is interesting is the conventional wisdom, as Professor Martin noted, is that the reason for the increase in appeals is the increase in the affirmances without opinions, the AWOs. But that conventional wisdom is actually erroneous. The rate of appeal, again, in 2002 was 10 percent, but back then 31 percent of all Board decisions were AWOs. Now, only 20 percent of Board decisions are AWOs, yet the appeal rate has risen to 30 percent. That is directly contrary to the conventional wisdom that Professor Martin-- Senator Sessions. Well, are they winning more on appeal? Does that indicate that there are more errors made? What is the reversal rate? Mr. Cohn. The reversal rate is extremely low, Senator. If you look at cases that are terminated on the merits, the Department of Justice prevails in 86 percent of those cases nationwide. Oftentimes, people point to the Seventh Circuit, which reversed us last year 39 percent, but the Seventh Circuit is an outlier in that regard, and they have only 2 percent of the total number of appeals. Eighty-six percent is the nationwide number, and that understates the rate of success of the Board for a couple reasons. First of all, it does not take into account the procedural victories. If you take those into account, the rate of success is over 90 percent. Also, it does not take into account the very large number of cases that never make it to Federal court. In 2005, there were 265,000 decisions by immigration judges in removal cases, and there were only 560 or so reversals by the Federal courts. So if you look at those numbers, it is unfair to suggest that the Board is making erroneous decisions systematically. In fact, I think those numbers show the Board, despite the large volume, is doing a very fine job. Senator Sessions. Tell me about this, though. It takes 27 months--I saw on page 3 of your testimony--to process a BIA appeal. What does that mean? Does that mean from the time that the Board of Immigration Appeals rules or the time the appeal is filed is 27 months? Mr. Cohn. It is from the time the appeal is filed. An alien has 30 days to file the appeal, and then once he files it, it took on average 27 months for the Second Circuit to decide the case. And that is a problem, as you know, because that delay-- Senator Sessions. Now, wait a minute, 27 months from the time he appealed from the BIA, the immigration judge's ruling, or from the time the appeal from the initial determination? Mr. Cohn. It is calculated from the time the alien appeals the BIA's decision to Federal court. Senator Sessions. Well, that is an extraordinary number there. I mean, during this time what if this person was not supposed to be here, clearly, and they have just filed an appeal because they know it is going to take on average 27 months, and they get to stay here 2 more years. Is that what is happening out there? Is that driving some of the increase in appeals? Mr. Cohn. In our view, that is absolutely what is happening. If I were an attorney-- Senator Sessions. Now, let me ask you this: To the extent to which this is in your responsibility, the Department of Justice, I can blame the President. But I cannot blame the President about this, can I? I mean, this is the time it leaves the executive branch for 27 months to the judicial branch. They have lifetime appointments. Mr. Cohn. Yes, Senator. This is not the President's fault at all. Senator Sessions. I can't even cut their pay. Mr. Cohn. That is exactly right, Senator. Senator Sessions. So we need--I believe this system is broken. It is not working effectively, and these delays indicate part of it, and the longer the delays occur, would you not agree, the more likely people will appeal for frivolous, unsound reasons, but simply to get the delay. Mr. Cohn. Absolutely. Mr. Martin. Senator? Senator Sessions. Should we have--did you want to-- Mr. Martin. If I could just comment on part of that, if that would be all right, the delay factor, clearly it has been a situation in immigration appeals that the chance for delay can bring about some additional appeals. But that factor operates no differently after 2002 than it did before 2002. I don't think that can really account for the change in the appeal rate from 10 percent to 25 or 30 percent of BIA decisions being appealed to the courts in that period of time. Mr. Cohn suggested I was somewhat saddled with the conventional wisdom as to why that change had taken place. Actually, in my testimony, I offer a more complete explanation or analysis of why that change has occurred. But it is really worth reflecting that the change--there is a marked change around the time of the regulatory changes in 2002 in the way that the BIA, the Board of Immigration Appeals, deals with their appeals. I think, as I suggested in my testimony, we should look very closely at undoing some of those procedures and augmenting the resources of the Board, and I think that would over time have an impact on reducing the appeal rate and allowing the courts also to get much more on top of their overall caseload. They have been making headway along those lines. Mr. Cohn. If I may, if it is possible, I would like to respond to a point the professor made about delay. He says delay cannot account for the increase in appeals, there was delay before, but a few points. First of all, the delay in the courts has increased. In 9 of the 11 circuit courts, there has been a significant increase in the delay in the past few years. In the Second Circuit, as I noted, there is an increase of roughly 170 percent. There has been a tremendous increase in delay, and that gives rise to the incentive for aliens to file these frivolous appeals just to get delay. The second point, before 2002, the Board provided a lot of delay because of their backlog. But the backlog is gone. There isn't so much delay. It takes months instead of years for the Board to decide cases. So aliens who want delay can't rely on the Board anymore. They have to file their appeal, however meritless, in the courts of appeals, and that is why delay matters. Finally, it is interesting to note that the appeal rate did not rise precipitously after streamlining the AWOs. It rose recently perhaps as a result of the conventional wisdom catching on. The more that advocates and judges and Members of Congress speak of the problems with the Board, which really don't exist, there is more reason for aliens and their attorneys to think that there is relief in the circuit courts. They are not winning in the circuit courts, but they hear the conventional wisdom, and they think that is a reason to appeal. Chairman Specter. Thank you, Senator Sessions. Senator Sessions. Sorry to go over, Mr. Chairman. Chairman Specter. Professor Martin, what is your view of the Chairman's mark to increase the number of Board of Immigration Appeals to 23 and have the requirement that they sit in panels of three and write opinions? Mr. Martin. I would favor that change. I think that that is necessary, given the volume of immigration appellate business. And I think there may be some instances in which a single- member disposition may be appropriate, but it would be a very short list of very discretely identified circumstances, such as was the case under the 1999 regulations, much more carefully designed, had a much more limited use of summary dispositions. So I would favor that. If I might also address the independence question that you raised earlier with Mr. Cohn, if that would be OK? Chairman Specter. Go ahead. Mr. Martin. It is clearly important to have immigration judges and Board members act independently in the individual decisions that they make. Nobody disputes it would be improper for someone from the Justice Department or the private bar to call up the decisionmaker and influence the way in which it should come out. There are parts of the Chairman's mark that I think would help to make sure that there is adequate insulation along those lines. For example, a stated term of reasonable length for-- Chairman Specter. Do you think there is adequate insulation, as you put it, available now? Mr. Martin. Well, I do. In general, I think that is the case, and I think the reaction from the judges, when you posed a similar question to them, reflects that there is not a major problem with undue influence or a skewing of results under the current structure of the Board. Chairman Specter. Professor Martin, if the Attorney General does not like the result reached by the immigration judge and affirmed by the Board of Immigration Appeals, why wouldn't it be a better process to have him take the appeal to the circuit court rather than simply disagreeing with those two judicial decisions? Mr. Martin. Well, I think that is the second part of overall independence. The decisional independence by the judges when they make their decision, or the Board, there is a very limited procedure now, as the Chairman knows, for the Attorney General in a formal procedure to take referral or certification of the case and issue the final decision, essentially become the highest level of administrative appellate review. That is a formalized-- Chairman Specter. The Attorney General personally. Mr. Martin. The Attorney General personally, that is right. And I think-- Chairman Specter. Well, is that-- Mr. Martin. --that is appropriate-- Chairman Specter. Is that more desirable than having the circuit court, if the Government wins, the individual goes to the circuit court. If the Government loses, why shouldn't the Government go to the circuit court? Mr. Martin. Well, I do think there is a limited range of issues. This certification process has been sparingly used. There is a limited range of issues where there are difficult questions of both policy and law that are involved in a decision by the BIA or ultimately by the Attorney General. To have the possibility on a limited range of occasions for the Attorney General to take certification, to decide that matter, to draw upon his own perspective on foreign policy implications, national security implications, I think that is appropriate. But the Attorney General has to write an opinion, has to give formal reasons, and the Attorney General's decision in that way is subject, as it should be, to court of appeals review. Chairman Specter. Well, if the matter involves foreign policy and national security, those issues are decided by the circuit courts if the appellate process goes in favor of the Government. Mr. Martin. That is true, and I think it is a close question as to whether that structure for more independence from the Attorney General would be superior to what we have now. I just want to point out that the current system does not involve, in my mind, undue influence by the enforcement branch in this field, and the way in which the Attorney General can issue a precedent decision on a very limited range of occasions structures and confines any role that the Attorney General has. Chairman Specter. What would you think of having the immigration judges ranked by the Merit Systems Protection Board and dischargeable only for cause and reviewed by the Merit Systems Protection Board? Mr. Martin. Well, I think I am not deeply familiar with the ranking system by the Merit Systems Protection Board. There certainly have been issues of--occasional issues of quality of performance by certain individual judges, so that might be appropriate. I do think it is a good system to have a stated term of years with removability only for cause. I would want to think more carefully about whether that should ultimately be reviewable in the Merit Systems Protection Board rather than leaving a bit more discretion to the Attorney General to decide whether or not good cause has been shown for removal. But it is very rare to remove an immigration judge. Chairman Specter. Thank you, Professor Martin. Senator Sessions, you have the last word. Senator Sessions. Thank you. Well, that question of the executive branch taking itself--it really would be taking itself to court because the bureau of appeals is an executive branch/Department of Justice entity and so is the Attorney General, so they are suing one another in court. In our scheme of Government, often misunderstood, they are heads that make final decisions, so this simply says that the Attorney General, Mr. Cohn--I want to get this straight. You talked about Attorney General Ashcroft had overruled the BIA's final decision, right? But you indicated that was the final decision, but his decision then is subject to appeal to the courts to make sure he conducted his process in a fair and objective way, followed the law, and acted within his discretion. Is that not right? Mr. Cohn. That is right, Senator. Senator Sessions. So what you are talking about is you always need to look for a final decision of the executive branch, and it simply allows the Attorney General to make that branch as an accountable officer who has a name, who has a responsibility to the public, who can be held account and the person who appoints him can be held accountable. But these judges have got terms and outside of the Department of Justice and the whole political process, they are not answerable to anybody if we go with the suggestion we have heard here. Would you agree that that would be a problem, Mr. Cohn? Mr. Cohn. I could not agree more with you. That is absolutely correct. That would be a problem if you had unaccountable immigration judges and Board members deciding these matters, which involve quintessential sovereign functions. The keys to our borders should not be handed over to unaccountable officials. Senator Sessions. And just for the record, I don't know if you mentioned this, but the streamlining procedures that allow one judge to make the decision and can affirm without opinion, those were--that procedure was established in 1999. Is that right? Mr. Cohn. That is right, Senator. Senator Sessions. That was when Attorney General Janet Reno was the Attorney General of the United States. Mr. Cohn. Yes, that is right, Senator. They were revised in 2002, but the original streamlining was in 1999, and it is important to note, again, that the year before Attorney General Ashcroft changed the procedures, 31 percent of all Board decisions were AWOs, which is higher, about 50 percent higher, than what it is today. Mr. Martin. Could I address that? Senator Sessions. Go ahead. Mr. Martin. Because the 1999 regulations did provide for AWOs, affirmances without opinion. But it allowed them in a much more limited range of circumstances. It was much more carefully crafted to focus only on truly frivolous substanceless appeals. The rate was high because the Board was trying initially to clear out a lot of the old weak appeals, and they were able to do that at a high level at that time. It is very different under the current situation where a much wider range of cases can be resolved, to the frustration of many judges, as we saw in the earlier panel. Senator Sessions. With regard to this asylum question, my time is about out, and I do not want you to go over, if you can avoid it. But you have worked on that a lot, I think, Mr. Martin and Mr. Cohn. Is there any way we can draft the statute so asylum is clearer and have clearer standards so that it is easier to review on appeal and can result in less appeals and less decisions being made based on the length of the chancellor's foot or how he may feel that day? Do you think we could do better with that? Mr. Cohn. You definitely could, Senator, and one way to reduce the rate of appeal, of course, is this Certificate of Reviewability I have because that would allow the courts to eliminate the frivolous appeals expeditiously, thereby reducing the incentive that aliens have to file the frivolous appeals. And some judges have suggested that particular cases are difficult to decide, and they have to look at the entire record. And some might be, and in those cases they can grant the Certificate of Reviewability. But many cases are not very difficult to decide. In some cases, the alien makes no argument at all in his brief and just files a brief to get delay. Sometimes he files the brief out of time. It is untimely, there is no jurisdiction, but there is still a delay. It does not require three judges to see that a brief has no argument or is filed out of time. And in some cases, even when there is a timely brief with an argument, it is clear the argument is meritless. For instance, in one recent case, an alien claimed he was going to face persecution back in Mexico because he hurt his elbow and could not work a manual labor job. Well, of course, he admitted that he is currently in the United States working a manual labor job as a fence builder, so that claim is facially frivolous. Nonetheless, it does take time. It delays his proceedings. He can remain in the country longer. Senator Sessions. Mr. Martin, any final comments? My time is about up. Mr. Martin. Thank you. I will be brief. I take it that at least a part of your question was about whether the asylum provisions themselves could be rewritten to make the standards crisper and cleaner. I think that is unlikely to work. Many countries around the world, democratic countries, are struggling with this. A lot of them face difficulty asylum caseloads. The best I think we have been able to do is develop a body of case law that has provided much-- some clearer guidelines along the way, and those issues have gradually been settling in over time. I think we have made a lot of progress in improving the efficiency of the asylum system. So I think that is the way to do it, and I think we can continue. It is an important commitment to this country from our earliest days to provide asylum. And as frustrating and difficult as that can be, I believe we can structure a system that adequately protects individuals and still allows for efficient resolution of the claims. Chairman Specter. Thank you, Senator Sessions. Thank you, Mr. Cohn. Thank you, Professor Martin. Without objection, we will introduce the written statement of Senator Leahy, who could not be here because of a prior commitment. This hearing was scheduled just a week ago today. And also the statements of Chief Judge Schroeder of the Ninth Circuit, Judge Kozinski of the Ninth Circuit, Judge Posner of the Seventh Circuit, and the Judicial Conference of the United States. Thank you all. 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