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STATEMENT OF

PEGGY PHILBIN, ACTING DIRECTOR

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW

BEFORE THE COMMITTEE ON THE JUDICIARY

SUBCOMMITTEE ON IMMIGRATION AND CLAIMS

MAY 15, 2001

MR. CHAIRMAN, RANKING MEMBER JACKSON-LEE, AND MEMBERS OF THE SUBCOMMITTEE:

It is my pleasure to appear before you to discuss the functions and organization of the Executive Office for Immigration Review (EOIR), to highlight some of the recent accomplishments and goals of our agency and to outline the President's Fiscal Year 2002 budget proposal for EOIR.

EOIR was established in 1983 when the Department of Justice (Department) created the Office of the Chief Immigration Judge and its Immigration Courts and combined this function with the existing Board of Immigration Appeals (Board). EOIR is an administrative hearing tribunal, hearing both trial and appellate immigration cases throughout the United States. Prior to the creation of EOIR, the initial hearing function had been previously performed by special inquiry officers at INS. The functional move of cases from INS to EOIR was to ensure impartiality in the immigration adjudication context by having cases decided by a different entity than the one that prosecuted them. In 1984, there were approximately 100,000 cases brought before the Immigration Judges. In Fiscal Year 2000, over 250,000 cases in 52 locations nationwide were brought before EOIR's Immigration Judges and over 30,000 cases were appealed to the Board.

In 1987, a third component, the Office of the Chief Administrative Hearing Officer (OCAHO), was added to EOIR. Administrative Law Judges within OCAHO interpret the laws sanctioning the hiring of illegal aliens, immigration-related employment discrimination and immigration-related document fraud.

EOIR's primary function is to provide a uniform interpretation and application of immigration law, through an adjudication process involving individual cases, and to provide due process and fair treatment to all parties involved.



The Three EOIR Components and Their Missions

Office of the Chief Immigration Judge and the Immigration Courts:

The Chief Immigration Judge provides overall program direction, articulates policy, and establishes priorities for the Immigration Judges. The Immigration Courts are comprised of 211 Immigration Judges in 52 Immigration Courts throughout the United States, with eighteen of the 52 immigration courts located in either detention centers or prisons. Additionally, Immigration Judges travel to over 100 other hearing locations to conduct proceedings.

Immigration Judges preside over ten types of hearings. The most common hearing is a removal hearing, in which INS charges that an alien is unlawfully in the United States and should be removed. However, while almost all hearings include the issue of removability, the outcome of many of these hearings does not turn on this issue, but rather on the issue of relief from removal. Even if an alien is removable, he or she be able may claim asylum, voluntary departure, suspension or cancellation of removal, adjustment of status, registry or a waiver of removability due to criminal activity. Immigration Judges are experts in the many and varied issues of immigration law, and are often called upon to determine such complex issues as derivative citizenship claims or interpretation of state or federal criminal laws as they relate to immigration. In addition to the substantive issues surrounding removability, the Immigration Judges hold bond hearings for eligible aliens. Bond redeterminations are held when an alien in custody seeks release on his or her own recognizance, or a reduction in the amount of bond. The law states that decisions of Immigration Judges are final, unless appealed or certified to the Board.

One of the most significant activities our judges perform is providing removal hearings for aliens convicted of criminal offenses who are incarcerated in prisons across the United States. Our judges travel to 44 states (and Puerto Rico) and 72 prisons on regular details and currently complete 98 percent of all hearings for incarcerated aliens before their release from prison. Last year alone, Immigration Judges spent 1815 days on these hearings.

The Institutional Hearing Program (IHP) provides the framework for hearings that determine the immigration status of aliens convicted of criminal offenses who are incarcerated in prisons across the United States. In concert with the INS, EOIR has concentrated on the Federal prison system and those in the seven states most affected by illegal immigration: California, Texas, New York, Florida, Arizona, New Jersey, and Illinois. There are also programs in virtually all other states, the District of Columbia, Puerto Rico, the Virgin Islands, and selected municipalities. The seven state programs, known collectively as the Enhanced IHP, account for the vast majority of the state program caseload, as well as that of the total IHP. Consequently, Enhanced IHP is a central component of a variety of initiatives designed to expedite the removal of criminal aliens who are found removable from the United States. This involves close coordination with INS, the Federal Bureau of Prisons, and state and local correctional authorities.

Due to increasing reliance on INS's administrative removal procedures, where an INS official may order certain criminal aliens removed without a hearing before an Immigration Judge, the number of IHP receipts has decreased by 22 percent from Fiscal Year 1996 to Fiscal Year 2000. For Fiscal Year 1996, the Immigration Courts received 15,685 IHP cases and completed 15,888 cases (which is more cases than they received, due to cases pending from the previous fiscal year). For Fiscal Year 2000, the Immigration Courts received 12,525 IHP cases and completed 13,655 cases.

One of the most complex areas of immigration law involves asylum. In 1995, the Department completed work on a comprehensive asylum reform initiative, which provided greater avenues for relief for those with meritorious cases, while closing down the loophole of automatic employment authorization for all asylum filers.

Asylum reform has streamlined the procedures involved for processing asylum cases, integrated INS and EOIR processes, and eliminated duplicative adjudications. Asylum reform requires claims that are not approved by INS to be automatically referred to EOIR's Immigration Judges, who conduct full asylum adjudications during the alien's removal proceedings. These regulatory asylum procedures include provisions limiting the INS approval of employment authorization to those aliens who have been granted asylum, or whose applications are not adjudicated within 180 days of the filing date. Consequently, the success of asylum reform largely depends on the ability of Immigration Judges to render decisions within the established time frames. Otherwise, the benefit of work authorization would accrue to thousands of aliens who may not be entitled. Currently, Immigration Judges are completing 90 percent of the expedited asylum adjudications within the 180-day time frame.

The number of requests for asylum from the Immigration Courts has gradually decreased over the last few years. While in Fiscal Year 1996, the number of asylum receipts was 84,293, for Fiscal Year 2000, the number of asylum receipts declined to 51,241, a 39 percent decrease. In Fiscal Year 2000, 60 percent of asylum filings were received in New York City, San Francisco, Miami, and Los Angeles Immigration Courts.

EOIR has coordinated the implementation of expanded programs with the INS to ensure the optimal placement of resources based upon the volume and geographic concentration of detained, asylum, and criminal alien workload. To enhance the implementation of the asylum reforms, EOIR expanded the number of Immigration Judges in many courts and established several new courts. EOIR's computer system has been modified to facilitate the implementation of asylum reform by enhancing case tracking capabilities and by allowing all local and regional INS asylum offices limited access to the system. INS personnel can now access the Automated Nationwide System for Immigration Review (ANSIR) system and schedule cases for Immigration Judge hearings immediately upon their decision to refer asylum claims to EOIR. INS regional service centers can now access the ANSIR database and ascertain the status of cases to determine an alien's eligibility for employment authorization. This interactive scheduling system is now available to INS nationwide for all case types.

EOIR has also been active in the regulatory area, publishing regulations that include provisions allowing the use of stipulated removals, thereby enabling the expedited removal of criminal aliens in applicable cases. Regulations also authorize the Immigration Judges to conduct telephonic hearings as well as video electronic hearings, which are particularly effective in providing hearings in remote detention settings.

Finally, INS initiatives continue to have a significant impact on EOIR's caseload. In Fiscal Year 2000, the total number of matters received by the Immigration Courts was 254,515, a ten percent increase over receipts in Fiscal Year 1999. The number of cases completed in Fiscal Year 2000 was 255,194.

The Board of Immigration Appeals:

Under the direction of the Chairman, the Board hears appeals of decisions of Immigration Judges and certain decisions of INS officers in a wide variety of proceedings in which the Government of the United States is one party and the other party is either an alien, a citizen, or a transportation carrier. Board decisions are binding on all INS officers and Immigration Judges unless modified or overruled by the Attorney General or a federal court. The Board exercises its independent judgement in hearing appeals for the Attorney General, and provides a nationally uniform application of the immigration laws, both in terms of the interpretation of the law and the exercise of the significant discretion vested in the Attorney General. The majority of cases before the Board involve appeals from orders of Immigration Judges entered in immigration proceedings. The Board has received approximately 30,000 cases per year for the last several years, an extremely large volume for an appellate body. This is a dramatic increase from the number of cases received in the early 1990's. For example, in 1992, the Board received only 12,774 appeals, less than half of the current number of cases now received annually. In Fiscal Year 2000, the Board completed 21,278 cases. While the Board began with five Board Members in 1940, it has grown to its current size of 21 Board Members, including the Chairman and two Vice Chairmen, and a staff of over 100 attorneys and paralegals.

Processing an increasing caseload has been a challenging task in a time of major legislative action in the immigration arena. The Board has provided the principal interpretation of the Immigration Reform and Control Act of 1986 (IRCA); the Immigration Amendments of 1988; the Anti-Drug Abuse Act of 1988; the Immigration Act of 1990 (IMMACT 90); the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA); the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA); the Nicaraguan Adjustment and Central American Relief Act of 1997 (NACARA); and the Haitian Refugee Immigration Fairness Act (HRIFA) of 1998. New challenges will include interpretation of the Victims of Trafficking and Violence Protection Act of 2000 (VTVPA) and the Legal Immigration and Family Equity Act of 2000 (LIFE). These laws have represented the most fundamental restructuring of the Immigration and Nationality Act (INA) since its enactment in 1952, and have presented a myriad of new issues of statutory construction. The Board's mission requires that national policies, as reflected in immigration laws, be identified, considered, and integrated into its decision process.

In response to the continuously increasing caseload associated with increased INS apprehensions and legislative developments, the Board has initiated a variety of management and regulatory improvements designed to increase efficiency, while maintaining due process guarantees for all parties. A key initiative has been the expansion of the Board to 21 members, allowing the consideration of appeals using multiple panels of three Board members each. Further, Board attorney staff has been restructured into eight discrete teams, each assigned directly to a Board panel. En banc review of cases has been expedited by using a newly created electronic en banc system. These structural changes have greatly improved caseload management, accountability and communication.

In addition to its numerous management initiatives, EOIR has continued to improve programs through the regulatory process. For example, the Board's jurisdictional and procedural regulations have been amended to expedite the motions and appeals practice to allow the Board to assume direct control of appellate filings, replacing a cumbersome and decentralized system of filing at local Immigration Courts. Further, the regulations establish time and number limitations on motions to reopen and motions to reconsider. Regulations also allow consideration of appeals using two en banc panels.

A much broader regulatory initiative, called "streamlining", to streamline the Board's appellate procedures was also recently implemented. Under these published regulations, noncontroversial cases that meet specified criteria may be reviewed and adjudicated by a single Board Member. The type of case amenable to this "streamlining" procedure is limited to the following:(1) where the result reached in the decision under review was correct and that any errors in the decision were harmless or nonmaterial and (2) where the issue on appeal is squarely controlled by existing Board or federal court precedent and does not involve the application of precedent to a novel fact situation; or (3) where the factual and legal questions raised on appeal are so insubstantial that three Member review is not warranted. This initiative is currently being implemented through a pilot project, and the results of this project will be used to implement streamlining on a permanent basis. From September of 2000 through April 2001, just over 30,400 cases have been screened for eligibility. Of those, 15,614 were initially placed into streamlining and 6,029 -- 20 percent of those screened for eligibility -- resulted in decisions signed by a single Board Member.

Office of the Chief Administrative Hearing Officer:

The Office of the Chief Administrative Hearing Officer (OCAHO) is comprised of a Chief Administrative Hearing Officer (CAHO) and three Administrative Law Judges (ALJs). The ALJs adjudicate individual cases according to the Administrative Procedures Act. OCAHO cases involve: (1) the unlawful hiring, recruiting, referring for a fee, or continuing employment of unauthorized aliens by employers, and their failure to comply with employment verification requirements (employer sanctions); (2) immigration-related unfair employment practices; and (3) immigration document fraud. Complaints under these sections of the Act are brought by the INS, the Office of Special Counsel for Immigration-Related Unfair Employment Practices, or private individuals. All decisions by this office are considered final unless overturned by a Federal court or the Attorney General.

In the area of document fraud, a settlement was recently approved in the class action lawsuit ofWalters v. Reno, the case which has effectively suspended enforcement of the civil document fraud provisions of Section 274C of the INA and resulting cases for the past four years. Settlement of theWalters case could increase OCAHO's caseload substantially as INS resumes enforcement of Section 274C, since the coverage of the statute was broadened considerably by amendments to the law in 1996 and because a higher percentage of respondents in document fraud cases can be expected to request an ALJ hearing with the adoption of new procedures included in the settlement.

In FY 2000, OCAHO received 31 cases and completed 122. In addition, OCAHO judges have also been empowered to assist Board panels in the adjudication of Board cases as temporary Board Members, and have adjudicated 7,834 Board cases in this capacity.

Other initiatives:

Last year, EOIR established a position of nationwide Pro Bono Coordinator to work collaboratively with immigrant organizations, the INS, Bar Associations, law schools, and other groups to improve the level and quality of pro bono representation before the Immigration Courts and the Board. In its first year, the EOIR Pro Bono program has initiated several successful programs. First, EOIR has forged partnerships with several national non-profit organizations to pilot the Board of Immigration Appeals Pro Bono Project, where case appeals before the Board involving detained and unrepresented aliens are matched with pro bono counsel who write and file appeal briefs. Second, EOIR, in partnership with local bar and pro bono groups, is providing intensive training to small groups of pro bono attorneys in Immigration Court practice, procedure and advocacy skills through role playing exercises with volunteer Immigration Judges in the immigration court. Third, EOIR is looking for ways to develop and expand joint efforts for pro bono representation to unaccompanied minors in INS custody, such as through the Phoenix Pilot Project. Finally, EOIR is assisting in the development and expansion of the use of Group Rights Presentations to INS detainees and other related projects which improve access to legal information and counseling.

While EOIR is interested in providing opportunities for more aliens to have representation before its courts, EOIR also has established a new program to ensure that unscrupulous attorneys are not practicing before its courts or the INS by establishing an "Attorney Discipline" program. This program was established to address the growing problem of fraud or malfeasance by attorney practitioners. In the first nine months of this program, EOIR has disciplined 44 attorneys, including 28 who have received final orders of discipline. Sanctions have ranged from suspension to expulsion from practice before the Immigration Courts and the Board. Virtually all of these attorneys previously have been disciplined by their state bars; some have even been convicted of felonies from immigration fraud to witness tampering.

EOIR and INS together have achieved significant success in the processing of detained aliens. As a result of a joint INS-EOIR "Detained Delays Task Force, " we have reduced the average detention time from the date an appeal is filed with EOIR to removal by INS by 72.5 days per alien. This has reduced the number of days in detention, resulting in approximately 23,000 detention days available for use to detain other aliens. It has also reduced by 70 percent the number of detained cases pending at the Board for longer than 180 days.

In keeping with our customer service goals, EOIR has established a menu driven electronic phone system (a 1-800 number) which provides ready access to Immigration Court information such as hearing dates, times and locations, status of asylum cases, Immigration Judge decisions and appeal information. This system, provided in English and Spanish, reduces the time required for the public to obtain information and schedules. The system is currently receiving more than 150,000 calls per month.

Further, in January of this year, EOIR produced for the first time a Statistical Year Book, which is available on our website ( www.usdoj.gov/eoir). This year book provides the public with caseload data for each of its components, including type of cases, cases by nationalities, language, representation status, and custody.

Budget Request for Fiscal Year 2002

For Fiscal Year 2002, the President seeks $176.7 million to support EOIR's adjudications programs. This request includes funding for mandatory expenses, such as rent and salary increases, and a program increase of $4.85 million, which will fund 59 new positions, including Immigration Judges and appellate staff attorneys.

The increase requested for EOIR is made in conjunction with enforcement increases sought by the INS, specifically funds in support of an additional 1,607 detention beds and 570 new Border Patrol agents. We anticipate that these INS initiatives will bring 10,000 additional new cases and appeals to EOIR annually.

The Administration and Congress have recognized the importance of coordinating funding decisions that have cross-organizational impact. For EOIR, the importance of this coordination is critical because the volume, types and location of case largely depend upon the enforcement resources and policies of the INS. Similarly, the realization of the INS enforcement goals as articulated by the Administration and Congress, for example an enhanced ability to apprehend, detain and remove increasing numbers of criminal and non-criminal aliens, rely in part on EOIR's ability to adjudicate the resulting caseload in a timely manner.

Thank you for this opportunity to appear before the Subcommittee. I look forward to working with members of the Subcommittee and would be pleased to answer any questions you may have.


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