1 00:00:00,200 --> 00:00:03,240 Speaker 1: Is the Trump administration trying to slam the courthouse doors 2 00:00:03,320 --> 00:00:07,080 Speaker 1: on immigrants seeking asylum. The latest move by the administration 3 00:00:07,240 --> 00:00:11,440 Speaker 1: is being called unprecedented, a violation of judicial independence, and 4 00:00:11,480 --> 00:00:15,400 Speaker 1: an attempt to stack the deck against immigrants by advocates 5 00:00:15,440 --> 00:00:19,239 Speaker 1: of immigration reform. The Justice Department is taking steps to 6 00:00:19,280 --> 00:00:24,280 Speaker 1: impose quotas or numeric performance standards on federal immigation immigration judges, 7 00:00:24,280 --> 00:00:27,600 Speaker 1: according to The Washington Post last Thursday, in a speech 8 00:00:27,600 --> 00:00:31,360 Speaker 1: to immigration officials, Attorney General Jeff Session said there's rampant 9 00:00:31,440 --> 00:00:34,400 Speaker 1: fraud and abuse in the policies that let immigrants seek 10 00:00:34,440 --> 00:00:39,960 Speaker 1: asylum in the US. We also have dirty immigration lawyers 11 00:00:40,280 --> 00:00:44,879 Speaker 1: who are encouraging their clients otherwise unlawfully present in the 12 00:00:44,960 --> 00:00:49,080 Speaker 1: United States to make claims of asylum, providing them with 13 00:00:49,159 --> 00:00:53,360 Speaker 1: the magic words needed to trigger the credible fear process. 14 00:00:53,920 --> 00:00:56,560 Speaker 1: Sessions said there's a backlog of more than six hundred 15 00:00:56,600 --> 00:01:00,200 Speaker 1: thousand immigration cases pending, triple the number of k IS 16 00:01:00,240 --> 00:01:04,319 Speaker 1: in two thousand nine. Joining us are David Deer, immigration 17 00:01:04,400 --> 00:01:07,680 Speaker 1: policy analyst at the Cato Institute, and Leon Fresco, a 18 00:01:07,760 --> 00:01:12,240 Speaker 1: partnered holiday night Leon. Let's start with immigration judges. How 19 00:01:12,280 --> 00:01:15,560 Speaker 1: are they appointed and how are their roles different from 20 00:01:15,600 --> 00:01:20,119 Speaker 1: that of other federal judges. Sure, immigration judges go through 21 00:01:20,200 --> 00:01:24,360 Speaker 1: a three step hiring process, where in step one they just, 22 00:01:24,520 --> 00:01:27,000 Speaker 1: you know, they put in an electronic application and they 23 00:01:27,000 --> 00:01:29,840 Speaker 1: have to meet certain metrics, certain amount of years that 24 00:01:29,920 --> 00:01:33,240 Speaker 1: they are an attorney, but they don't have to actually 25 00:01:33,280 --> 00:01:37,440 Speaker 1: have any immigration background. Then that is vetted electronically. A 26 00:01:37,600 --> 00:01:40,319 Speaker 1: list of you know, a few attorneys is given, they're 27 00:01:40,360 --> 00:01:44,080 Speaker 1: interviewed by the Department of Justice, and then one candidate 28 00:01:44,400 --> 00:01:48,960 Speaker 1: emerges who then is either vetoed or approved by the 29 00:01:49,000 --> 00:01:52,960 Speaker 1: Attorney General, and so these are all employees of the 30 00:01:53,000 --> 00:01:56,160 Speaker 1: Department of Justice. There they'll go through the Article three 31 00:01:56,240 --> 00:02:01,760 Speaker 1: confirmation process that a normal federal judge would go through. David, 32 00:02:01,800 --> 00:02:05,880 Speaker 1: these performance metrics are, to the extent they ever get developed, 33 00:02:05,920 --> 00:02:08,840 Speaker 1: are supposed to be in a response to the backlog 34 00:02:09,400 --> 00:02:14,480 Speaker 1: of cases in in these tribunals. How did this backlog 35 00:02:15,280 --> 00:02:20,120 Speaker 1: end up happening? Well, the Attorney General is definitely right 36 00:02:20,240 --> 00:02:25,200 Speaker 1: that decreases in productivity in the immigration courts. Explain the 37 00:02:25,240 --> 00:02:30,720 Speaker 1: backlog in cases. Each immigration judge is completing just six 38 00:02:31,360 --> 00:02:35,880 Speaker 1: as many cases each year, or at least in they 39 00:02:35,880 --> 00:02:38,760 Speaker 1: were as they were in two thousand five, So there's 40 00:02:38,800 --> 00:02:41,760 Speaker 1: been a huge decrease in the number of cases that 41 00:02:41,800 --> 00:02:46,200 Speaker 1: they're completing. Um. But he's wrong to blame asylum seekers 42 00:02:46,240 --> 00:02:50,440 Speaker 1: for that problem. Almost all of the decline in productivity 43 00:02:50,520 --> 00:02:57,560 Speaker 1: happened before the surge in asylum seekers which started in so. Um. 44 00:02:57,960 --> 00:03:02,440 Speaker 1: The reason why is is more deeply in terms of 45 00:03:02,480 --> 00:03:07,440 Speaker 1: why they are being less productive is not clear. Um. 46 00:03:07,600 --> 00:03:11,840 Speaker 1: The you know, best explanations that I've found looking at 47 00:03:11,919 --> 00:03:13,680 Speaker 1: all of the numbers that you can get from the 48 00:03:13,680 --> 00:03:19,960 Speaker 1: immigration courts is that, uh, there are more difficult cases today. 49 00:03:20,160 --> 00:03:23,760 Speaker 1: The law has become more complicated, and uh, there are 50 00:03:23,800 --> 00:03:28,760 Speaker 1: more immigration attorneys involved, but later in the process, So 51 00:03:28,960 --> 00:03:34,360 Speaker 1: you have continuances being issued to allow immigrants to get attorneys, 52 00:03:34,400 --> 00:03:38,400 Speaker 1: and that lengthens the process, and then the attorney's ultimately 53 00:03:38,440 --> 00:03:42,680 Speaker 1: helped finish the cases quicker. Uh. So one reform could 54 00:03:42,680 --> 00:03:47,120 Speaker 1: be to allow the immigration attorneys to be appointed by 55 00:03:47,160 --> 00:03:50,080 Speaker 1: the court at the very start of the process rather 56 00:03:50,120 --> 00:03:54,240 Speaker 1: than later on. So leon, As David said, some of 57 00:03:54,280 --> 00:03:59,000 Speaker 1: these asylum cases are complex. Sometimes immigrants have to represent 58 00:03:59,080 --> 00:04:03,360 Speaker 1: themselves and they require more than one court appearance. Could 59 00:04:03,440 --> 00:04:07,360 Speaker 1: evaluating judges based on the number of cases they here 60 00:04:07,360 --> 00:04:11,320 Speaker 1: are some kind of metric formula affect the fairness of 61 00:04:11,360 --> 00:04:17,440 Speaker 1: the proceeding and the law that guarantees due process. Yes, 62 00:04:17,680 --> 00:04:20,960 Speaker 1: And in fact, I'll add some context to what Davis said, 63 00:04:21,520 --> 00:04:24,880 Speaker 1: which is that the reason this productivity has gone down 64 00:04:25,320 --> 00:04:28,880 Speaker 1: has been because the judges whose decisions are ultimately reviewed 65 00:04:29,160 --> 00:04:32,400 Speaker 1: by the various federal Courts of appeals around the country 66 00:04:32,600 --> 00:04:36,560 Speaker 1: have seen their cases be reversed over the courts of 67 00:04:36,560 --> 00:04:39,520 Speaker 1: the last ten years, as the federal courts of appeals 68 00:04:39,680 --> 00:04:43,840 Speaker 1: have added more standards and safeguards that these proceedings needs 69 00:04:43,880 --> 00:04:47,080 Speaker 1: to have in terms of giving people time to find counsel, 70 00:04:47,760 --> 00:04:52,040 Speaker 1: giving people time to find witnesses, allowing those witnesses to testify, 71 00:04:52,120 --> 00:04:56,640 Speaker 1: allowing corroborating evidence to be introduced, and when judges try 72 00:04:56,720 --> 00:04:59,360 Speaker 1: to cut off that process is actually going to turn 73 00:04:59,400 --> 00:05:03,040 Speaker 1: out to be an exercise in cutting off one's nose 74 00:05:03,160 --> 00:05:06,480 Speaker 1: to fight their face, because they may get an initial 75 00:05:06,640 --> 00:05:10,039 Speaker 1: up surge in decisions, only to find that all of 76 00:05:10,040 --> 00:05:12,720 Speaker 1: those decisions end up getting reversed by the courts of 77 00:05:12,760 --> 00:05:15,479 Speaker 1: appeals and then they have to start over again. And 78 00:05:15,600 --> 00:05:18,240 Speaker 1: so this I think is a fool there. And to 79 00:05:18,360 --> 00:05:21,360 Speaker 1: try to expand these gates to try to expedite these 80 00:05:21,360 --> 00:05:24,359 Speaker 1: cases any faster than they're going rather than trying to 81 00:05:24,400 --> 00:05:28,120 Speaker 1: find more immigration judges, and as David points out, don't 82 00:05:28,160 --> 00:05:30,720 Speaker 1: give people an excuse to ask for continuance as a 83 00:05:30,800 --> 00:05:34,159 Speaker 1: point council immediately so that you don't spend three four 84 00:05:34,240 --> 00:05:38,599 Speaker 1: months trying to find them. Attorney David in about thirty seconds. 85 00:05:39,000 --> 00:05:44,200 Speaker 1: Can the Justice Department simply impose performance standards here? Yes? Absolutely. 86 00:05:44,400 --> 00:05:47,760 Speaker 1: Immigration judges serve at the discretion of the Attorney General, 87 00:05:47,880 --> 00:05:50,680 Speaker 1: so ultimately it's his decision how he wants to run 88 00:05:50,720 --> 00:05:54,479 Speaker 1: the immigration courts. Leon. It's unusual to think of judges 89 00:05:54,520 --> 00:05:58,320 Speaker 1: as being in a union, but the Immigration Judges Union 90 00:05:58,760 --> 00:06:02,000 Speaker 1: has a contract with a government, and from what I've read, 91 00:06:02,040 --> 00:06:05,840 Speaker 1: it prohibits judges from being rated based on how many 92 00:06:05,920 --> 00:06:10,000 Speaker 1: cases they resolve or how quickly they resolve them. Is 93 00:06:10,040 --> 00:06:13,320 Speaker 1: that what your knowledge of it is and is that 94 00:06:13,360 --> 00:06:16,960 Speaker 1: going to be a problem. Yes, that's correct, June. What 95 00:06:17,080 --> 00:06:19,960 Speaker 1: happened is that because these judges, again are not Article 96 00:06:20,000 --> 00:06:23,479 Speaker 1: three judges, they're just employees of the Department of Justice, 97 00:06:23,520 --> 00:06:27,280 Speaker 1: they actually have a national Association of Immigration Judges and 98 00:06:27,400 --> 00:06:30,080 Speaker 1: the president of the union was a judge named judge 99 00:06:30,080 --> 00:06:31,960 Speaker 1: Mark for many, many years. She just came off the 100 00:06:32,040 --> 00:06:35,600 Speaker 1: bench and she was she has been the most prominent 101 00:06:36,200 --> 00:06:39,960 Speaker 1: UH person against these UH standards because these were things 102 00:06:39,960 --> 00:06:42,840 Speaker 1: that have been put in originally under the Bush administration, 103 00:06:42,880 --> 00:06:46,760 Speaker 1: and so she had collectively bargained a new deal that 104 00:06:46,839 --> 00:06:49,120 Speaker 1: had taken these standards out during the time of the 105 00:06:49,120 --> 00:06:52,200 Speaker 1: Obama administration. And so now yes, I would have to 106 00:06:52,200 --> 00:06:56,359 Speaker 1: be collectively rebargained if they're going to do it again, 107 00:06:56,480 --> 00:06:59,560 Speaker 1: or they could file a grievance with the Merite system 108 00:06:59,800 --> 00:07:03,760 Speaker 1: for format Board, and it becomes a gigantic UH sword 109 00:07:03,760 --> 00:07:05,800 Speaker 1: spots to try to get any of this done. So 110 00:07:06,400 --> 00:07:09,680 Speaker 1: and so the point being that a lot of this 111 00:07:09,720 --> 00:07:13,040 Speaker 1: will have to be done through sort of persuasion rather 112 00:07:13,080 --> 00:07:18,000 Speaker 1: than through compulsion. So, David, what would if the JUST 113 00:07:18,120 --> 00:07:20,280 Speaker 1: Department were to come up with some kind of rational 114 00:07:21,520 --> 00:07:25,240 Speaker 1: version of perform performance standards for judges, what would it 115 00:07:25,280 --> 00:07:29,600 Speaker 1: look like? Well, look, it's it's really difficult to know 116 00:07:29,760 --> 00:07:37,040 Speaker 1: without very detailed um analysis of how these decisions are 117 00:07:37,040 --> 00:07:41,040 Speaker 1: being made to really extend cases. So right now you 118 00:07:41,080 --> 00:07:43,480 Speaker 1: have a decrease in the number of completions and an 119 00:07:43,520 --> 00:07:46,720 Speaker 1: increase in the number of continuances and you'd really have 120 00:07:46,880 --> 00:07:50,920 Speaker 1: to dig in detail into how each one of these 121 00:07:50,920 --> 00:07:54,320 Speaker 1: decisions are being made. And as Leon said earlier, a 122 00:07:54,320 --> 00:07:56,880 Speaker 1: lot of these decisions are being made based on whether 123 00:07:56,960 --> 00:08:01,400 Speaker 1: someone has counsel or needs to find a witness. Sometimes 124 00:08:01,400 --> 00:08:03,760 Speaker 1: that they are initiated by the government as well. So 125 00:08:03,840 --> 00:08:08,000 Speaker 1: the longest delays actually occur when the government needs to 126 00:08:08,040 --> 00:08:12,680 Speaker 1: do research or obtain information in order to rebut a 127 00:08:12,760 --> 00:08:16,640 Speaker 1: claim or confirm acclaim that's being made in the courts. 128 00:08:16,680 --> 00:08:21,200 Speaker 1: So you can't That's why it's it's a bad idea 129 00:08:21,280 --> 00:08:25,160 Speaker 1: to impose these types of standards because it is so 130 00:08:25,280 --> 00:08:28,720 Speaker 1: complex and each individual case is going to be uh 131 00:08:28,840 --> 00:08:34,000 Speaker 1: so different. So, Leon, I want your reaction to this. 132 00:08:34,240 --> 00:08:36,959 Speaker 1: I read the guidance sent from the Justice Department to 133 00:08:37,160 --> 00:08:41,920 Speaker 1: immigration judges in July discourages them from being too lenient 134 00:08:42,040 --> 00:08:45,680 Speaker 1: in allowing immigrants to reschedule their hearings to a later 135 00:08:45,800 --> 00:08:50,920 Speaker 1: date while evidence is being gathered. Right, I mean, look, 136 00:08:51,000 --> 00:08:53,560 Speaker 1: this is one of the efforts but this administration is 137 00:08:53,559 --> 00:08:56,600 Speaker 1: going to try to make is to try to make 138 00:08:56,640 --> 00:09:01,240 Speaker 1: a tighter frame on the continuance. And look, there are 139 00:09:01,280 --> 00:09:04,640 Speaker 1: certainly there are certain nothing is perfect. And I have 140 00:09:04,760 --> 00:09:06,720 Speaker 1: been one of these people for years who have said 141 00:09:06,760 --> 00:09:09,920 Speaker 1: that the immigration court system is badly in need of 142 00:09:10,000 --> 00:09:13,880 Speaker 1: hiring some type of McKenzie or you know, other consulting 143 00:09:13,960 --> 00:09:18,960 Speaker 1: firms to help UH manage its scheduling processes. Having said that, 144 00:09:19,080 --> 00:09:23,120 Speaker 1: I think that only gets you a very marginal return here. 145 00:09:23,200 --> 00:09:25,840 Speaker 1: That's not getting that might get your cake slowed down 146 00:09:25,880 --> 00:09:29,040 Speaker 1: from six hundred thousand to five hundred and seventy five 147 00:09:29,040 --> 00:09:31,600 Speaker 1: thousand or something like that, but a lot of this 148 00:09:31,720 --> 00:09:34,560 Speaker 1: is not going to be based on the you know, 149 00:09:34,600 --> 00:09:37,160 Speaker 1: if you move up a continuance from one month to 150 00:09:37,320 --> 00:09:40,000 Speaker 1: three weeks, you're not going to really get the kind 151 00:09:40,040 --> 00:09:43,120 Speaker 1: of yield that that there that the Attorney General is 152 00:09:43,160 --> 00:09:46,600 Speaker 1: actually really talking about here, David, in about a minute, 153 00:09:46,640 --> 00:09:50,559 Speaker 1: did you know the h the administration wants these standards, 154 00:09:50,600 --> 00:09:53,760 Speaker 1: they're trying to get tougher on immigrants, immigration advocates or 155 00:09:53,760 --> 00:09:56,120 Speaker 1: against these standards. They obviously want to preserve things for 156 00:09:56,360 --> 00:10:00,320 Speaker 1: people who are in detention. Is there away to put 157 00:10:00,400 --> 00:10:03,079 Speaker 1: performance cndards in neutrally or is it inevitably going to 158 00:10:03,160 --> 00:10:08,559 Speaker 1: favor one side or the other. Ultimately, continuances typically benefit 159 00:10:09,200 --> 00:10:12,520 Speaker 1: the immigrant more than they benefit the government, because any 160 00:10:12,520 --> 00:10:15,360 Speaker 1: any delay allows you not only more time in the 161 00:10:15,480 --> 00:10:17,880 Speaker 1: us of your claim is is a poor one, but 162 00:10:18,000 --> 00:10:21,800 Speaker 1: also the ability to gather more evidence and present a 163 00:10:21,840 --> 00:10:24,959 Speaker 1: better argument to the court. And look these these that 164 00:10:25,440 --> 00:10:29,319 Speaker 1: intrusion into the immigration courts is not a new thing either. 165 00:10:29,600 --> 00:10:34,679 Speaker 1: The Obama administrator administration did the same thing in response 166 00:10:34,760 --> 00:10:39,920 Speaker 1: to the child migrant crisis, prioritizing child migrant cases. That 167 00:10:40,000 --> 00:10:44,520 Speaker 1: actually didn't work at all. Ultimately, it's just slowed down 168 00:10:44,520 --> 00:10:49,320 Speaker 1: the process and and all of those kids got continuances 169 00:10:49,440 --> 00:10:52,600 Speaker 1: and in order to find attorneys and and present their 170 00:10:52,640 --> 00:10:56,400 Speaker 1: claims anyway. So, uh, we've seen this type of intrusion before. 171 00:10:56,520 --> 00:10:59,559 Speaker 1: It hasn't worked in the past. Really, you do need 172 00:10:59,640 --> 00:11:02,680 Speaker 1: to keep the independence of the courts. I want to 173 00:11:02,679 --> 00:11:05,199 Speaker 1: thank you both as always for being with us here 174 00:11:05,240 --> 00:11:08,800 Speaker 1: on Bloomberg Law. That's David Beer, immigration policy analysts at 175 00:11:08,840 --> 00:11:11,960 Speaker 1: the Cato Institute, and Leon Fresco, a partner at Hallen 176 00:11:12,040 --> 00:11:12,360 Speaker 1: and Knight.