Shielded from Public Scrutiny, Immigration Judges Ignore Due Process

One day in April, J. Dan Pelletier, a government adjudicator, faces a video camera in an Atlanta immigration court. At the same moment, in a Stewart Detention Center mini-court in the Georgia hinterland, two dozen men in orange and blue jumpsuits seated behind a low rail are watching Pelletier on a monitor wheeled in front of a vacant dais. Pelletier addresses the men brusquely: "I have been told each of you has admitted the allegations and conceded removability back to your home country. Is there anybody in this group that does not want an order of removal to their home country?"

Giving the men no time for comprehension or to summon the courage to reply, Pelletier pushes on, ignoring the rule requiring him to ascertain whether each individual is abandoning a claim to remain in the United States. The interpreter, also in Atlanta, repeats in Spanish, "Nobody said anything. Does each one accept this? Please respond in the affirmative." The men sit there, mute, befuddled, watching the cranky old man like they might watch any other bad TV. The Department of Homeland Security (DHS) prosecutor sits quietly in front of the rail.

Pelletier says, "I'm asking each of you to please respond orally." A few say yes or sí in a tone bespeaking a desire to end their confinement and stop the badgering. Many say nothing. No one has a lawyer.

Pelletier, who has the job title "immigration judge" but is employed by the Justice Department and not the judiciary, says, "If you object, say something. If you remain silent I will issue the order in each case."

Immigration court rules state, "It would offend due process if the immigration judge obtains from the group a 'mass silent waiver of the right of appeal.'" Nonetheless, Pelletier says, "I will take their silence as a waiver of their right to appeal, and I will issue an order," deporting the men en masse. Guards usher them to the hall, but four men are agitated and lag behind. "Hey," says one, "I thought we were going to talk to the judge!" Too late, a guard says, and orders them into the hall. One obeys. The DHS prosecutor notices the commotion, and at my prompting, she requests that Pelletier reopen the cases of the three still there.

Victor, 24, has been in the United States lawfully since arriving from Guatemala when he was 3. (Immigration and Customs Enforcement, or ICE, targeted him because of a seven-month misdemeanor marijuana conviction.) The DHS attorney looks through his file and tells Pelletier that Victor's mother probably included him as a dependent on her asylum application. Pelletier says he is "not comfortable" issuing an order against him, adding, "You may have an unadjusted status," meaning that Victor can apply for legal residency and be free pending a final decision.

This is Victor's big break, his reward for fighting for a hearing. Victor, however, confused by Pelletier's expression of discomfort and irritated demeanor, to say nothing of the legal gobbledegook, says, "I'll take the removal because my daughter [a 2-year-old US citizen] needs my help, and I cannot do it behind bars." Suddenly Victor is heading to Guatemala, a country he hasn't seen since infancy.

Pelletier and his colleagues are able to run roughshod over the rights of US residents because the agency that runs immigration hearings, the pompous and obscurely titled Executive Office of Immigration Review (EOIR), headquartered in Falls Church, Virginia, is a paranoid bureaucratic backwater that shields immigration judges from accountability. As long as adjudicators process a high volume of cases, the agency will ignore and even cover up serious misconduct, including deportations of US citizens or people who have other avenues of relief. One immigration judge told me, "I'm afraid there's a premium on quotas and productivity, and not the truth."