Lofgren Statement at EOIR Oversight Hearing

November 1, 2017
Press Release
U.S. Rep. Zoe Lofgren (D-Calif.), the Ranking Member of the House Judiciary Subcommittee on Immigration and Border Security, issued the following statement today during an oversight hearing of of the Executive Office for Immigration Review.:

"The last time the Immigration subcommittee gathered for an EOIR oversight hearing, we heard testimony from the former EOIR Director, Juan Osuna. In August of this year, Juan passed away suddenly, and I would like to take a moment to acknowledge Juan's life and service to this country.

"Juan worked for seventeen years as senior immigration legal advisor in the Justice Department for both Democratic and Republican administrations. He was a former Board of Immigration Appeals Judge and former Associate Deputy Attorney General in charge of immigration policy at the Department of Justice. Juan had a remarkable career in public service and he will be greatly missed. And I would like to extend my heartfelt condolences to his family over this loss.

"We are assembled here to take a close look at the administration of our immigration court system. The Executive Office of Immigration Review currently employs 339 immigration judges in 58 courtrooms around the country. Immigration judges have a complex, often thankless task of making sophisticated legal decisions with decisive speed. Because there is no right to government appointed counsel, immigration judges often have to act as a fact-finder and legal researcher to ensure that the result in each case is just, fair and in accordance with legal precedent.

"The difficulty of this task is magnified by the severity of the consequences. Immigration judge Dana Leigh Marks once said that immigration proceedings are like "death penalty cases heard in traffic court settings." This is particularly true for asylum seekers, children and other vulnerable populations.

"Yet despite these difficulties, the Trump Administration has taken steps towards imposing numeric and performance quotas on immigration judges. This could add an additional obstacle to the immigration judge juggling act by requiring faster case completions with fewer continuances and shorter evidentiary hearings. In his written testimony, our witness states that "EOIR is transforming its institutional culture to emphasize the importance of completing cases." He claims that this will improve the efficiency of our court system, but I don't think it will do more, except increase the number of immigration removals, speedy deportations and increased appeals in our federal court system.

"Much of our discussion today will focus on the immigration court backlog and ways that this backlog can be reduced. I want to start by saying that Congress must fully fund the hiring of immigration judges, law clerks, technology and infrastructure. The immigration court backlog will not be fully remedied by policy shifts alone, it must include sufficient appropriations.

"But the immigration backlog is not one that happened overnight. There are reasons for the backlog.

"First, immigration enforcement, specifically funding for ICE and CBP has far outpaced the funding of our immigration courts. From 2002 to the present day, funding for immigration enforcement increased by over 400%. ICE and CBP went from a budget of $4.5 billion in 2002 to over $20 billion in 2017. In contrast EOIR's budget only increased by 70%. This means is that at the same time that ICE and CBP are funneling cases into the immigration court system, the courts are not given requisite amounts of resources to adjudicate with speed and efficiency and it's created a massive bottleneck and we are seeing the effects of this backlog today.

"EOIR currently has approximately 640,000 cases pending and in some courts, immigrants can wait three to five years to receive a final decision on their case. Immigration judges currently have an average case load of close to 1,900 cases. For perspective, the average caseload of a U.S. District Court Judge is 440.

"Second, under both the Obama and the Trump Administration, EOIR has implemented policies that prioritize cases at the Southern border to the detriment of cases in the interior of the country. Under President Obama, EOIR implemented a "rocket docket" that expedited the cases of recent border crossers. These cases primarily consisted of children and families from Central America who were fleeing violence and seeking asylum. EOIR implemented a "last in, first out" strategy which meant that removal cases of immigrants who had been already waiting for months or years were further delayed.

"Under the Trump Administration, EOIR moved immigration judges from already backlogged courts to detention centers along the Southern border. News media reports that many of these judges sat in empty courtrooms with little to do. In his written testimony, our witness states that the mobilized judges completed approximately 2,700 more cases than expected if they had not been detailed. But what he failed to mention that during this so called "surge" of immigration judges, over 20,000 non-detained immigration court hearings were rescheduled.

"We all agree that our border must remain secure and the immigration courts must ensure that those who enter our country seeking protection be afforded due process and a full and impartial hearing in a prompt manner. But this cannot come at the expense of immigration court backlogs in the interior of the country.

"Lastly, one of the primary reasons for the immigration court backlog is the continued lack of representation particularly for children and other vulnerable populations. When a respondent, particularly a child, appears in immigration court without legal representation, an immigration judge will spend a considerable amount of time assessing the child and determining her legal options. This is precisely what a judge should do when a vulnerable child is presented in a courtroom without legal representation. But it nevertheless creates delays for other respondents.

"The National Association of Immigration Judges (NAIJ) has explained that "when noncitizens are represented by attorneys, Immigration Judges are able to conduct proceedings more expeditiously and resolve cases more quickly." This conclusion is supported by outside economic consulting firms, which found that government funded counsel would save the country $38 million through expedited hearing processes and reduced detention.

"This is why I am proud to be the lead sponsor for the Fair Day in Court for Kids Act of 2017. My bill would provide government counsel to children and particularly vulnerable individuals. This would help reduce the immigration court backlog, save the government money and ensure that the due process rights of children are protected.

"I hope my Republican colleagues join me in sponsoring this bill and I look forward to a substantive discussion on our immigration court system today and I yield back the balance of my time.