U.S. Department of Jnstice Office of the Solicitor General The Sohc1tor General' Washington, D.C. 20530 August 26, 2016 Honorable Scott S. Harris Clerk Supreme Court of the United States Washington, D.C. 20543 Re: Demore v. Kim, S. Ct. No. 01-1491 Dear Mr. Harris: This letter is submitted in order to correct and clarify statements the government made in its submissions in Demore v. Kim, 538 U.S. 510 (2002), which this Court relied upon in its opinion. Demore is relevant to Jennings v. Rodriguez, No. 15-1204 (cert. granted June 20, 2016). In Demore, the government's briefs cited statistics the Executive Office for Immigration Review (EOIR) provided to this Office, in a chart, regarding its adjudication of removal proceedings for criminal aliens who had been charged with offenses triggering mandatory detention under 8 U.S.C. 1226(c) in fiscal year 2001. See Pet. Br. 39-40 & n.17; Reply Br. 16. This Office provided the statistics to respondent's counsel in Demore. The government's opening brief stated that, "in cases where the alien is charged with being removable on grounds that trigger mandatory detention under Section 1226(c), its immigration judges complete removal proceedings in an average time of 47 days and a median time of 30 days." Pet. Br. 39. The government's reply brief stated that, "on:ly about 15% ofremoval orders entered by IJs against criminal aliens are appealed" and that, "in the 85% of cases in which no appeal is taken," removal proceedings are completed in "47 days on average." Reply Br. 16. The government's opening brief also stated that the average and median times for the Board of Immigration Appeals to resolve an appeal were "approximately four months" and 114 days, respectively. Pet. Br. 40. 1 . The Court relied upon the government's representations to support the proposition that, "in the majority of cases," detention under Section 1226(c) "lasts for less than * * * 90 days." Demore, 538 U.S. at 529. The Court stated that "[EOIR] has calculated that, in 85% of the cases in which aliens are detained pursuant to § 1226(c), removal proceedings are completed in an average time of 47 days and a median of 30 days." Ibid. (citing Pet. Br. 39-40). The Court further stated that, "[i]n the remaining 15% of cases, in which the alien appeals the decision of the 1 The quoted figures were. for fiscal year 2001, and only counted aliens in immigration detention, not aliens who were still in criminal custody. Demore, 538 U.S. at 529; see Pet. Br. 40 n.17. The Honorable Scott S. Harris August 26, 2016 Page 2 immigration judge to the Board of Immigration Appeals, appeal takes an average of four months, with a median time that is slightly shorter." 538 U.S. at 529 (citing Pet. Br. 40). EOIR recently reviewed the statistics it provided to this Office in Demore, and that the government provided to the Court and the respondent. The General Counsel of EOIR has informed me that EOIR made several significant errors in calculating those figures. The errors are explained more fully in a letter from the General Counsel to the Acting Solicitor General, enclosed here. EOIR's letter states that, as a result of these errors, its original query missed more than 15, 000 cases that should have been counted. EOIR has performed a new statistical analysis calculating that the average and median completion times for aliens in immigration custody charged with offenses triggering mandatory detention under Section 1226(c), where there was no appeal, should have been 34 days and 15 days, respectively (not 47 anci 30 days, respectively). Furthermore, according to EOIR's new calculations, the average and median times for disposition of an appeal to the BIA should have been 141 days and 119 days, respectively (not ".approximately four months" and 114 days, respectively, Pet. Br. 40). EOIR's letter also states that, at the time of Demore, it used a definition of"completion" of cases by immigration judges that it subsequently changed. EOIR's definition of"completion" at the time included a change of venue or case transfer, as EOIR principally used its database to measure the workload of its immigration courts. See EOIR, Statistical Yearbook 2000, at Jl (Mar. 2001). 2 That definition is unsuitable, however, when measuring the duration of an individual alien's removal proceedings (and his or her detention during that time). Both the government's brief and this Court's opinion accurately state that the figures indicate when the case was "completed" given that definition. See 538 U.S. at 529, Pet. Br. 39-40. But, as a result, we assume this Court labored under the misapprehension that the figures represented how long the alien was in removal proceedings (and thus detention), rather than how long an individual immigration judge was working on each case. EOIR's has since revised its definition of "completion." It now excludes changes of venue and transfers, and its statistics thus now represent the duration of an individual's case. EOIR states in the attached letter that, using the new definition, the average and median completion times given above, for fiscal year 2001, would be 39 days (instead of34) and the median would be 14 days (instead of 15). The General Counsel's letter apologizes for EOIR's errors and their late discovery. The letter also states th.at, since 2001, EOIR has added internal controls to prevent similar errors from · happening again. Finally, this Court stated in Demore that, in cases in which the alien chose to appeal, the time of detention was "about five months." 538 U.S. at 530. The Court's opinion indicates that it drew that conclusion by adding (1) EOIR's calculation that, "in 85% ofcases in which aliens are 2 https://www.justice.gov/sites/default/files/eoir/legacy/200!/05/09/SYB2000Final.pdf. The Honorable Scott S. Harris August 26, 2016 Page 3 detained pursuant to § 1226(c), removal proceedings are completed in an average time of 47 days and a median of30 days"; and (2) that, "[i]n the remaining 15% of cases, in which the alien appeals the decision of the immigration judge to the Board of hnmigration Appeals, appeal takes an average of four months, with a median time that is slightly shorter." 538 U.S. at 529 (citing Pet. Br. 39-40); see Pet. Br. 40; Reply Br. 17. The conclusion the Court drew is understandable, but it is incorrect. An implicit assumption of adding the two figures together is that the immigration-judge stage of the proceedings itself typically lasted the same amount of time in cases that were later appealed as in cases where no appeal was taken. In fact, the immigration-judge . stage was typically considerably longer in cases where there was later an appeal. The chart EOIR furnished to this Office at the time of Demore stated that the average and median times for the immigration-judge stage alone in cases where there was an appeal were 113 and 89 days, respectively, and that the total time between the filing of charges with the Immigration Court and the BIA's completion in appealed cases was 233 and 221 days, respectively. The corrections· EOIR has now made yield an average and median of 382 and 272 days, respectively, for the total completion time in cases where there was an appeal, using the definition of "completion" EOIR used at the time of Demore. The government's briefs did not separately flag these statistics for this category of cases, or say that the average and median times specifically for cases where there was later an appeal were not 47 and 30 days, respectively. This Court's opinion cites figures that "EOIR ha[d] calculated," 538 U.S. at 529, and those are, in fact, the figures EOIR had calculated, albeit incorrectly. The corrected calculations also do not alter the proposition that, "in the majority of cases," detention lasts "for less than • • •· 90 days." Ibid. It turns out that EOIR's corrected calculations still indicate that the vast majority of cases were not appealed, and yield average and median completion times in non-appealed cases in 2001 that were shorter than originally calculated, regardless of which definition of"completion" is used. The times to resolve administrative appeals, however, were somewhat underestimated. But the clause in the Court's opinion stating,", and about five months in the minority of cases in which the alien chooses to appeal," 538 U.S. at 530, was incorrect on the basis ofEOIR's statistics at the time. The Court therefore may wish to amend its opinion to delete that clause. The government recognizes its special obligation to provide this Court with reliable and accurate information at all times. The government sought to carry out that obligation in good faith in this case, and we greatly regret the necessity for this letter. Please circulate copies of this letter to the Members of this Court. Sincerely, ~/jdlt. #B Gersh~ Ian Heath Acting Solicitor General cc: See Attached Service List U.S. Department of Justice Executive Office for Immigration Review Office ofthe General Counsel General Counsel 5107 Leesburg Pike, Suite 2600 Falls Church. Virginia 20530 August 25, 2016 Ian Heath Gershengom Acting Solicitor General Office of the Solicitor General 950 Pennsylvania Avenue, NW Washington, DC 20530-0001 Re: Statistics provided by the Executive Office for Immigration Review in the case of Demore v.Kim, 538 U.S. 510 (2003) Dear Acting Solicitor General Gershengom, We are writing to inform you that the Executive Office for Immigration Review (EOIR) recently discovered that it made significant errors in generating statistics that it provided to the Solicitor General's office in connection with the case of Demore v. Kim, 538 U.S. 510, 530-31 (2003), upon which the Solicitor General relied. As more fully explained below, EOIR overestimated the average and median length of removal proceedings before an immigration judge for aliens in immigration custody who were charged with being removable on grounds that trigger mandatory detention under Immigration and Nationality Act (INA)§ 236(c), 8 U.S.C. § 1226(c). EO IR also underestimated the time for appeals to the Board of Immigration Appeals (BIA). The original and corrected statistics are attached. The Government's brief to the Court in Demore stated that "[EOIR] has calculated that, in cases where the alien is charged with being removable on grounds that trigger mandatory detention under Section 1226(c), its immigration judges complete removal proceedings in an average time of 4 7 days and a median time of 30 days, both far below the six-month period that this Court determined was presumptively reasonable for detention after a final order of removal" in Zadvydas v. Davis, 533 U.S. 678 (2001). Brief of Petitioner at *39, Demore v. Kim, (No. 011491) 2002 WL 31016560. The Court referred to the statistics at issue in its decision in Demore, stating that, "in the majority of cases [detention] lasts for less than ... 90 days," and that EOIR had calculated that, in the 85% of cases where there is no appeal and the alien is in immigration detention, "removal proceedings are completed in an average time of 47 days and a median of 30 days." Demore, supra at 529. The Court further stated that "[i]n the remaining 15% of cases, in which the alien appeals the decision of the Immigration Judge to the Board of Immigration Appeals, appeal takes an average of four months, with a median time that is slightly shorter." Id. These figures reflected calculations for fiscal year 200 l, and were drawn from a chart of data from fiscal year 1999 through 2001 that EOIR provided to the Solicitor General's office at the time of Demore, which is attached. 1 EOIR reviewed the statistics it furnished and found serious errors in the query of its data it undertook at the time. The most significant miscalculation discovered was the inadvertent exclusion of cases in which an individual was charged with only one ground of removal that would have subjected the individual to mandatory detention under Section 1226(c); the figures inadvertently included only aliens who were charged with multiple grounds of removal. An alien charged with a single aggravated felony, for example, should have been counted but was not. In addition, although the search correctly included a charge of inadmissibility under 8 U.S.C. § 1182(a)(2), in practice aliens are actually charged under one of its many subsections, such as 1182(a)(2)(A)(i) (crimes of moral turpitude) and 1182(a)(2)(B) (multiple criminal convictions). The query, however, failed to identify and count aliens charged under a particular subsection. The result was that the individuals charged under those subsections should have been included, but were not. These errors resulted in the exclusion of more than 15,000 cases in the analysis of immigration court completions for cases of aliens detained in immigration custody who were subject to mandatory detention under Section 1226(c) and who did not file an appeal. Upon the discovery of these errors, EOIR engaged in a new statistical analysis of the electronic data it maintains for fiscal year 1999 through 2001. This new analysis corrected the earlier data errors in order to produce accurate information for those years regarding the length of removal proceedings for aliens subject to mandatory detention under Section 1226(c). According to the new calculations, cases completed in Fiscal Year 2001 in which aliens were charged with grounds of removability and inadmissibility that subjected them to detention pursuant to 8 U.S.C. § 1226(c), and where the alien was in immigration detention and there was no appeal, were completed in an average time of 34 days and a median of 15 days. For cases in which an appeal was filed, the appeal took an average of 141 days, with a median of 119 days. Please note that the length of appeal time measures the time between when a party files a notice of appeal with the Board of Immigration Appeals (BIA) and when the BIA renders a decision on that appeal. Consequently, as a result of the error, EOIR overestimated the average and median length of time of a removal proceeding before an immigration judge involving an individual charged with removability grounds that would subject him or her to mandatory detention under Section 1226(c). EOIR underestimated the average and median length of time for disposition of appeals to the BIA. EOIR has updated the chart provided in 2002 with the results of the corrected statistical queries. This chart includes charges that subject an alien to mandatory detention.2 The data use the definition of case "completions" that was used by EOIR for all statistical queries at the time of Demore so that it can be compared to the original chart. That definition included change of 1 These charts encompass only aliens in removal proceedings conducted by EOIR, and not aliens in expedited removal proceedings conducted by the Department of Homeland Security under 8 U.S.C. 1225(b) or 1228. 2 The charges are listed in the updated chart. It does not include a charge under 8 U.S.C. 1227(a)(2)(A)(i). That charge triggers mandatory detention only if the alien's sentence for that offense was at least one year, 8 U.S.C. 1226(c)(l)(C), and EOIR's data do not track the length of an alien's underlying sentence. 2 venue and case transfers as completions, as EOIR principally used the database to measure the performance of its immigration court. In 2013, EOIR developed a new methodology for its statistical reports, which excluded change of venue and case transfers as case completions. When applied to the data for 2001, the change in the definition of"completions" decreases the number of cases by 6%, increases the average time to 39 days (from 34), and decreases the median to 14 days (from 15). We hope that you understand the seriousness with which we take the integrity of the agency's data and apologize for the significance of these errors and their late discovery. In the years since 2001, EOIR has added internal control mechanisms to ensure that errors of this sort do not happen again. Sincerely, ~ J.< Jean C. King General Counsel Attachment 3 U.S. Department of Justice Executive Of?ce For Revuew Immigration Court Completions Detained Cases for Speci?c Charges" COMPLETIONS (for which no appeal was ?led) 7 Court In Days For ?rout Cases 0! Total, Over Average Median FY 13"] Cases Not Six 5) J:;Tml Not ?Total Cases Appealed from Receipt to Receipt to 'Date of Charging I I to 'DaCe ?Charging Bellie" I Not Appeabd Completion Document to Document to Conpletinn Completion 2.840 11% 87 160 62 113 15 0.5% 2.839 25% 203 94 159 17 0.6% 1. - 200! 2.489 25% [20 232 95 154 15 0.6% I Immigration Court Completions Detained Cases for Speci?c Changes" 7 COMPEETIONS (for which no appeal was ?led) 7 I Conn Processing Timeln Day: For Total Case: 0! Total. Over Average Median Total Cases Not so (5) Month": leg-3:: of'l?otal Cases Anne-led 0w- Rmim . 'Date of Charging . 11 ?pm ?cumin; 6mm, new Not Annealed Convictio- Doen 11 Do mm Completion men Completion co Completion Completion 1999 4.675 2% 3! 127 20 71 2H 4.6% 2000 4.148 6% 44 186 26 100 34 5.6% 2001 3.311 I ms 41 210 so so 155 6.1% 'In some Instances there IS a sugm?cant penoo o' me between Issuance of the chargmg document by INS and ?ling the chargmg document EOIR. This column measures the full length of ttme between 'ssuance of the charging document and the L1 completton even though the case Is not wathtn EOIR's jurisdiction until the charging document ts ?led EOIR Mt I4. Revue! Au; l6. 2W2 US. Department of Justice Exewttve Of?ce For Renew Immigration Court Completions Detained Cases for Speci?c Charges? 0C1.) Slot which an oz? woo sum-end: ?led: Framing Time In Boys For Toto] Cocos O'Tol?. .lo Modlon FY Six (6) Months from Receipt to . . . I Due Date ?Charging Completion .2: Docnnont to 2mm, Document to 1.1 Connlodon Completion 1999 23% 137 211 120 170 2000 43% 195 184 162 211 2001 JI 42% 19? 295 162 215 Immigration Court Completions Detained Cases for Speci?c Charger" OCIJ (for which on goal woo whoa-emu ?led) Proust: Time In Doyo For Total Com OlTotnl. 0m- Median FY Six (6) Months from Receipt to . .9 . ?Doto "Co-m- gee-93?" otnp tion on: Completion Completion 1999 6% ?75 176 56 119 2000 16% 103 157 77 179 zoo: I 16% 313 :9 no 'ln some Instances. there us a Signi?cant penod of time between Issuance of the charging document by INS and ?hng the charging document EOIR. This column measures the full length of tume between ISSUanoe of the charging document and the completion even though the case IS not wuthtn EOIR's Junsductton untnl the charging document Is ?led EOIR. Mir. l4. All; l6. 2002 U.S. Depattment of Justice Executive Ot?oe F01 Immigration Review Board of Immigration Appeals Completions Detained Cases for Speci?c Charges" BIA commons mm; The 1. Day: For Total Cases I 0! Total. Over Six (6) Months Average Median FY from ocu Re??l" 3? Date of Appeal to ocu Receipt to on. of Appeal 1. ocu Receipt to on Decision 31A BIA Deelsioo BIA Decision 1999 91% 149 325 141 295 I zone 95% 150 395 151 351 I 2001 35% 114 331 105 303 I Board of Immigration Appeals Completions Detained Cases for Speci?c Charger? BIA commons Processing Time In Days For Total Cases Ot?Tetal, Over Six (6) Months Average Median from 0cm 3? Date of Appeal to OCIJ Receipt to Date of Appeal to OCU Receipt to ?mm" BIA Decision BIA Decision BIA Decision on Decision 1999 I 75% 153 215 139 225 2000 I 33% M9 312 153 277 2001 I 63% 125 233 114 221 237(aX2XAXu'il. 0' Mar. l4. momma-nus) Raised Aug I6. 2W2 Executive Office for Immigration Review Office of Planning, Analysis and Statistics Updated Demore v. Kim, 538 U.S. 510 (2003) Data Query (02-28) Database as of June, 2016 Immigration Court Completions• for Which No Appeal Was Filed Detained Institutional Hearing Program (lliP) Cases for Specific Charges2 Court Processing Time In Days For Total Casa Fiscal Year Total Cases Not Appealed Of Total, o/o Over Six (6) Months rrom Receipt to laltlal Cue Completion Average Median Receipt to Initial Case Completion Date or Charging Document to Initial Case Completion3 Receipt to laitial Case Completion Date of Cbargiag Document to Initial Case Completion" Of Total Case Not Appealed, Number Granted Relief o/oofTotal Cases Not Appealed 1999 9,181 8% 72 145 4(j 92 44 O.So/o 2000 9,357 15% 90 175 51 108 64 0.7% 2001 7~76 15% 96 200 49 110 54 0.7% Immigration Court Completions• for Which No Appeal Was Filed Detained Non- Institutional Hearing Program (IllP) Cases for Specific Charges2 Court Processiag Time In Days For Total Cases Fiscal Year Total Cues Not Appealed Of Total, % Over Six (6) Months from Receipt to Initial Case Completion Median Avera1e Receipt to lnltiaJ Case Completion Date of Charging Document to Initial Case Receipt to Initial Cue Completion Date of Charging Document to Initial Case Completior Completion~ Of Total Case Not Appealed, Number Granted Relief % ofTotal Cases Not Appealed 1999 22,610 1% 26 96 II 39 914 4.0% 2000 19,940 3% 33 125 14 44 979 4.9% 2001 19,655 1% 34 137 15 43 971 4.9•.4 •Consistent with EOIR's statistical methodology in Fiscal Years 1999-2001, cases resulting in a change of venue or transfer are considered completions. Specific charges included in this data query: 212(a)(02)(A)(i}(I), 212(a)(02}(A)(i)(ll), 212(a}(02)(8), 212(a)(02)(C), 212(a)(02}(D)(i), 212(a)(02)(D}(ii), 212(a}(02}(D)(iii), 212(a)(02}(E), 212(a}(02)(H)(i), 212(a)(02)(1)(i), 237(a)(02)(A)(ii), 237(a)(02)(A)(iii), 237(a)(02)(B)(i), 237(a}(02)(B)(ii), 237(a)(02)(C), 237(a}(02}(D)(i) , In some instances, there is a significant period of time between issuance of the charging document by OHS, and filing the charging document with EOIR. This column measures the full length of time between issuance of the charging document and the Initial Case Completion even though the case is not within EOIR's jurisdiction until the charging document is filed with EOIR. 2 Board of Immigration Appeals Completions Detained Institutional Hearing Program (IHP) Cases for Specific Charges• - ~ Proceuln1 Time In Days For Total Cues Of Total, % Over Sb: Fiscal Year ,- 1999 2000 2001 (6) Months from OCIJ Receipt to BIA Decision 92% 96% 92% Averap Date of Appeal to BIA Decision Median lmmlp'ation Court Receipt to BIA Decision 138 145 525 119 471 437 Date or Appeal to BIA Decision Immigration Court Receipt to BIA Decision - 131 143 106 297 370 338 - 1 Specific charges included in this data query: 212(aX02XAXiXI), 212(aX02XAXi)(ll), 212(aX02)(B). 212(a)(02)(C), 212(a)(02)(D)(i), 212(a)(02)(D)(ii), 212(a)(02)(D)(iii), 212(a)(02)(E), 212(a)(02)(H)(i), 212(a)(02)(I)(i), 237(a)(02)(A)(ii), 237(a)(02)(A)(iii), 237(a)(02)(B)(i), 237(a)(02)(B)(ii), 237(a)(02)(C), 237(a)(02)(D)(i). Board of Immigration Appeals Completions Detained Non- Institutional Hearing Program (IHP) Cases for Specific Charges• - Processing Time In Days For Total CISeS Of Total, % Over Six Fiscal Year ~ I 1999 2000 2001 (6) Months from OCU Receipt to BIA Dedslon 81% 87% 80% Average Date or Appeal to BIA Decision 169 174 141 Median Immigration Court Receipt to BIA Decision Date of Appeal to BIA Dedslon 446 134 151 382 119 46!5 Immigration Court Receipt to BIA Decision 253 298 272 - - •specific charges included in this data query: 212(a)(02)(A)(i)(I), 212(a)(02)(A)(i)(ll), 2 I2(a)(02)(8), 212(a)(02)(C), 212(a)(02)(D)(i), 212(a)(02)(D)(ii), 212(a)(02)(D)(iii), 212(a)(02)(E), 212(a)(02)(H)(i), 212(a)(02)(1)(i), 237(a)(02)(A)(ii). 237(a)(02)(A)(iii), 237(a)(02)(B)(i), 237(a)(02)(B)(ii), 237(a)(02)(C), 237(a)(02)(D)(i).