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MAY 8, 2003


It is my pleasure to appear before you to discuss how the Executive Office for Immigration Review (EOIR) has responded to the challenges facing the nation’s immigration system in the aftermath of the events of September 11th, 2001. Background Information Regarding EOIR

EOIR is an administrative hearing tribunal which presides over both trial and appellate immigration cases throughout the United States. It 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). In 1987, the Office of the Chief Administrative Hearing Officer (OCAHO) was added to EOIR to interpret the laws sanctioning the hiring of illegal aliens, immigration-related employment discrimination, and in 1991, immigration-related document fraud was added to OCAHO’s jurisdiction. EOIR operates under a delegation from the Attorney General of his authority to interpret the immigration laws.

Prior to the consolidation of the Immigration Courts and the Board under EOIR, initial immigration hearings were conducted by the Immigration and Naturalization Service (INS). Moving the adjudication function to EOIR ensured impartiality in immigration proceedings by having cases decided by a different administrative entity than the agency initiating the removal proceeding. EOIR does not have jurisdiction over an alien’s case unless the government files charging documents with EOIR. On March 1, 2003, the functions of the INS moved to the Department of Homeland Security (DHS). DHS, therefore, now prosecutes immigration cases before EOIR’s tribunals, which remain in the Department of Justice under the Homeland Security Act of 2002.

The most common type of proceeding before EOIR is the removal hearing. In these hearings, the DHS charges, and must prove, that an alien is in the United States unlawfully 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. Most aliens concede that they are removable, but then apply for one or more forms of relief from removal. The burden then shifts to the alien to prove that he or she is eligible for relief, including asylum, voluntary departure, cancellation of removal, or other remedies. Another frequent proceeding conducted by EOIR is the bond redetermination hearing for aliens in pending immigration hearings. Eligible aliens can ask an immigration judge to reduce the amount of bond set by DHS, or to set a bond if DHS has determined that no bond should be set.

If either the alien or DHS disagrees with the decision of the immigration judge, that party may appeal the decision to the Board. The alien may litigate disagreements with rulings by the Board in federal court, or, in rare cases, DHS, the Board or the Attorney General may refer a Board decision to the Attorney General for de novo review.

EOIR’s primary functions are: 1) to provide a uniform interpretation and application of immigration law, through a timely adjudication process involving individual cases; and 2) to provide due process and fair treatment to all parties involved. In FY 2002, the 52 Immigration Courts received more than 290,000 matters, an increase of more than 8,000 from FY 2001, and an increase of more than 37,000 from FY 2000. During FY 2002, the immigration judges completed nearly 275,000 matters. As an appellate body, the Board handled a proportionate volume. In FY 2002, the Board received nearly 35,000 cases, up from 28,000 the year before. It completed more than 47,000 cases, an increase from 32,000 from the year before. This increase in case completions is principally attributable to the implementation of the Board’s restructuring regulations, which I will address later. As DHS increases its enforcement activities, EOIR expects the number of cases it receives each year to continue to rise. September 11 and National Security Issues

EOIR’s mission has never been more critical than in the aftermath of September 11th. The terrorist atrocities of that day have presented the Justice Department, and the nation, with an extraordinary challenge. Immigration policy is a crucial element in meeting that challenge, and as the Attorney General’s primary interpreter of immigration laws, EOIR is at the forefront of the effort.

 Ten days after the attack on the United States, we implemented new procedures for handling immigration cases involving aliens linked to the government's ongoing investigation of the September 11th attacks and other terrorist activity against the United States. These immigration matters were identified as “Special Interest Cases.” In conjunction with that effort, the Chief Immigration Judge instructed immigration judges and court administrators to close to the public hearings involving Special Interest Cases, and to bar access to the related administrative record and docket information. These instructions were issued to protect national security and public safety by preventing sophisticated terrorist organizations like al Qaeda from learning about the government’s ongoing terrorism investigation. But they also were designed to protect the identities and the privacy interests of the aliens in these proceedings. At the same time, these aliens were neither prevented from seeking legal counsel nor from presenting evidence in support of their claims, including witness testimony, nor were they prevented from making their identities public. In fact, more than 75 percent of the 611 aliens whose hearings were closed under these procedures were represented by counsel. Litigation involving the closures has drawn different results. The Third Circuit Court of Appeals has upheld the Special Interest Case procedures while the Sixth Circuit reached the opposite conclusion. The plaintiffs in the Third Circuit have asked the Supreme Court to consider the case, and we await its decision. At present, there are no aliens that are subject to the closure rules because the immigration court hearings in all designated Special Interest Cases have been completed.

This comprehensive approach to national security interests in the immigration context is also reflected in the Attorney General’s recent decision in Matter of D-J-, 23 I&N Dec. 572 (A.G. 2003). This case arose when a ship carrying 216 undocumented aliens sailed from Haiti into Biscayne Bay, Florida in October 2002. Mr. D-J- was among the aliens apprehended by law enforcement authorities, detained, and placed in removal proceedings as being inadmissible to the United States. He applied for a bond to obtain his release pending his hearing on his asylum application. The government argued, based on information received from the Departments of Defense and State and the Coast Guard, that granting bond to Mr. D-J- and the others on that boat threatened national security because such a grant would encourage other mass migrations and strain the capabilities of the Coast Guard to protect this country. The Department of State memorandum stated that potentially threatening nationals from other countries were using Haiti as a launching point to enter the United States. The immigration judge granted the bond, and the Board upheld the grant based on its finding that the broad national interests invoked by the government were not appropriate considerations for the immigration judge or the Board in making the bond determination without further direction from the Attorney General. Upon reviewing the decision, the Attorney General provided such guidance and directed the immigration judges and the Board to consider national security interests when deciding bond applications.

Another tool developed by the Attorney General to address national security issues that arise in cases before EOIR is the protective order. On May 28, 2002, the Department published an interim regulation that provided a mechanism for the government to ask an immigration judge to place a protective order over information that, while not classified, was sensitive and could damage law enforcement or national security interests if released beyond the parties to a specific immigration proceeding. If an immigration judge grants a protective order, the alien, counsel, and anyone else approved by the government, is given full access to the protected information, but can not disclose that information to others. The alien may challenge the admissibility of the evidence and may appeal the granting of the protective order if he or she appealed the case to the Board. The public may attend all portions of the alien’s hearing, except those parts where the protected information is discussed. A violation of the protective order could render the alien ineligible for discretionary relief and could subject the alien’s attorney to disciplinary procedures. This tool demonstrates the careful balancing of rights and interests in the post- September 11th environment: it provides the maximum access to evidence for the alien and to the hearing for the public without compromising important governmental interests. While an important instrument in the effort to protect national security, protective orders have been requested in a limited number of cases. Since their introduction, the government has sought them no more than a dozen times. Reform of the Board of Immigration Appeals

Shortly after taking office, the Attorney General expressed concern that inefficiency and delay in the adjudication of appeals by the Board effectively denied justice to all parties. To address this concern, the Attorney General proposed in February 2002 and finalized in August 2002, a regulation to restructure the Board (Board Restructuring Regulation). During the last decade, the Board experienced a dramatic increase in the volume of appeals filed for adjudication. In 1992, the Board received more than 12,000 new cases; by 1999, it received more than 31,000 new cases. This upsurge in new cases can be attributed, in large part, to greater enforcement activities on the part of the former INS and significant changes in the immigration laws. During that time, the number of pending cases also grew at a striking rate. At the end of 1992, the Board had more than 18,000 pending cases; by 1999, the number of pending cases had grown to nearly 52,000. The result of this backlog was a significant delay in the adjudication of a large number of cases. To remedy this untenable situation, a reform of the structure and procedures of the Board was required.

In response to both the growing number of appeals and the growing backlog, the Department began to address these problems comprehensively and developed methods to increase the Board’s efficiency without compromising its mission. In October 1999, EOIR promulgated a regulation to streamline some of the Board’s processes (Streamlining Regulation). The Streamlining Regulation allowed single Board Members to decide straightforward and non-controversial kinds of appeals in certain types of cases with either a short order on the merits or without a separate written opinion, in essence affirming an immigration judge’s decision without further opinion.

The Attorney General’s Board Restructuring Regulation expanded the Streamlining regulation to include most types of cases before the Board. The Attorney General concluded that further streamlining the Board’s processes was the most effective means of allocating the Board’s resources to create the best possible appellate review for all cases within the Board’s jurisdiction. Accordingly, review of cases by three Board Members or the entire Board is reserved for controversial or novel cases that require the Board to correct errors of fact, to settle inconsistencies in the rulings of different immigration judges, or to apply new provisions of law, including those case determinations to be issued as precedent decisions. Other features of the regulation include establishing reasonable deadlines for completion of adjudications, generally 90 days for single Board Member adjudications, and 180 days for three Board Member decisions; establishing immigration judges as the primary fact finders in immigration matters because they reach the correct result in the overwhelming majority of cases; and reducing the size of the Board to 11 members, a number consistent with the historic capacity of appellate courts and administrative appellate bodies to adjudicate the law in a cohesive manner, the ability of individuals to reach consensus on legal issues, and the requirements of the existing and projected caseload of the Board.

The results of the Attorney General’s Board Restructuring Regulation have been impressive. On September 25, 2002, when the final rule became effective, nearly 22,000 cases were ready to be adjudicated by the Board. During the past 7 months, the Board completed all of its single Board Member adjudications and only 1,700 cases remain for adjudication by three Board Member panels. The Board also will reach its optimal size of 11 members in the coming weeks after reassigning five Board Members to other important roles within EOIR. Arising from the challenges facing the Department after September 11th, EOIR’s more efficient Board has, through the Attorney General’s initiatives, preserved its role in providing full review and careful deliberation to the cases before it, and will continue to be of great value to the immigration community. Ongoing Coordination with the Department of Homeland Security

The development of the protective order regulation occurred while the INS was still in the Department of Justice and exemplified the cooperation of intra-departmental components in promulgating regulations. EOIR worked with the rest of the Department by supplying its expertise in the operations of the Immigration Courts and the Board. Because it is uniquely situated to evaluate the practical outcome of regulatory proposals on its operations, EOIR’s viewpoints are sought on those proposals that will affect our activities. With the transfer of the INS from the Department of Justice, we continue to have the same cooperative working relationship with DHS on issues that affect both of our agencies. The Department’s and EOIR’s participation in these discussions continues our tradition of ensuring that the application of homeland security and other immigration-related initiatives incorporates the principles of due process and fairness, ensuring that EOIR continues to adjudicate matters thoughtfully and efficiently.

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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