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."
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The vast number of cases handled by Pelletier and William Cassidy, another Atlanta adjudicator, has made them into agency superstars. In 2008, 83 percent of the respondents held in Georgia's Stewart Detention Center were ordered deported, virtually all by Cassidy and Pelletier, compared with 72 percent nationwide. Glenn Fogle, an Atlanta immigration attorney, says of the ICE and EOIR operation at Stewart, "They're basically a deportation machine, trying to use the discretion of the judge, who's not following the law but making his own law."
Fogle expresses frustration that Pelletier, Cassidy and a third Atlanta adjudicator, Grace Sease, are all former DHS attorneys. "They're your archenemies for fifteen years and now they're the judge," he says. A new hire at the Stewart court also comes from ICE.
The disregard for due process in Georgia, which has the country's third-largest docket and respondents from across the country, is a national catastrophe—although the effects are personal to Logan Guzman, a 3-year-old who for more than a year has missed the affection of his father, Pedro, because Cassidy is resisting a recommendation from the Board of Immigration Appeals to grant Pedro bond based on his close ties to US citizens. (Cassidy turned this around, ruling that these close ties would make Pedro a flight risk and held him even though Guzman had a slam-dunk case on the merits.) Fogle, Guzman's attorney, says, "That's the logic of someone who wants to keep somebody in jail no matter what, to make them give up on their case and leave. That's this whole system, not just [Cassidy]. It's a strategy used by the DHS. You don't give someone a bond or give them a high bond, and they'll give up on their case and just leave."
Some adjudicators, relying on "stipulated removal orders," are deporting people without even seeing them. According to Rachel Rosenbloom, a professor at Northeastern Law School, an immigration judge who insists on "thoroughly questioning" people who sign these orders "regularly encounters US citizens." Rosenbloom adds, "There are many judges who don't question people, and it's very likely there's going to be US citizens among those people as well, and they're not being [identified]." (The EOIR statistics on the citizenship of respondents in immigration courts come from DHS filings, not the adjudicator decisions. As a result, even though thousands of citizens have been in deportation proceedings, the official EOIR number is zero.)
The country's 238 adjudicators in fifty-nine immigration courts rule on everything from asylum applications to whether a marijuana conviction warrants deportation. Many, especially the good ones, are burned out from their share of the massive annual caseload: 390,000 cases were initiated across the country in 2009. The laws, regulations and infrastructure are inadequate to the high stakes of prolonged incarceration or banishment. Dana Marks, leader of the immigration judge union—which has been pushing Congress for more personnel and logistical support, and independence from the Justice Department—says, "We're doing death penalty cases in traffic court settings." Marks's union presidency exempts her from the agency's ban on its employees' speaking to the media.
The rot at the core of many immigration proceedings, especially in detention centers, where 50 percent of all hearings were held in 2009, up from 30 percent in 2005, deprives the public of confidence that the hundreds of thousands of people being kicked out are genuinely deportable. The Boston College Post-Deportation and Human Rights Project receives inquiries from people worldwide and has identified dozens of US residents unlawfully shipped back to their countries of origin. The group is joining other advocates in pressing for legal changes to allow former US residents to reopen their cases from abroad.
The Post-Deportation Project, formerly known as Ruby Slippers, has an office in Zacualpa, Guatemala, and is establishing points of contact in the Azores and Ecuador for research and legal assistance. Referring to the thousands of unlawful deportations, co-director Daniel Kanstroom, a Boston College law professor, says, "We're only limited by the number of lawyers we can hire."
The underlying problems go back to the Clinton administration's support of the bad 1996 immigration law and bad adjudicators. In 1999 John Zastrow, employed as an adjudicator since 1983, deported Johann Francis, a US citizen, from the Eloy Detention Center in Arizona to Jamaica. It took Francis ten years to return. (Following a 1998 teenage brawl, Francis, then 19, completed a six-month sentence at an Oregon boot camp. The day of his release, without warning, he was picked up by immigration agents and shipped to Eloy.)
According to Francis's file, an agent at Eloy filled out a "Request for a Prompt Removal," but Francis never saw or signed it. Nonetheless, on April 7, 1999, without a hearing, Zastrow ordered Francis deported. Two months later, still in Eloy and unaware of Zastrow's ruling, Francis followed the instructions of a deportation officer and hand-wrote a request to be deported so he could leave confinement. "I guess it was just a CYA [cover your ass] thing," he now says of this document. "How can this happen in America?"
In late June 1999 Francis, "the guy who runs for school president," as he puts it, was sleeping on the streets in Kingston; he later moved to a rural area, where he survived on coconuts. "You drink two and you'll be full," he explains, adding that he became very sick from malnourishment.
He was stuck there even after he found his mother two years later. "I was able to prove who my mother was," he says, but since Jamaica filed birth certificates by number, not name, "I couldn't prove who I was." After Jamaica digitized its birth certificate registry, Francis was able to apply for a passport and return home in late 2009. He is now advising two other men in Jamaica, one deported last year, struggling to document their own US citizenship. Zastrow's last year on the job was 2000, but the federal courts are still overturning his orders for the few lucky enough to return for a hearing. And the decades-old pattern of wrongful deportations is continuing under the Obama administration.
Among those stuck in immigration jails today are people with no criminal history and, crucially, no lawyers to demand bond hearings. People who should be free may languish for months. When I met Clifford Bryan in Stewart, he was crying and contemplating suicide, largely because the adjudicators refused to grant a bond hearing and he feared being stuck there forever. "I filled out the paper [requesting a bond hearing] and sent it two times. They didn't send it back to me," he said. He was held for almost four months in Georgia before Cassidy finally set a $1,500 bond, the lowest amount possible, and Bryan was free to return to his wife in Michigan. Meanwhile, taxpayers had paid about $8,000 to the Corrections Corporation of America for his incarceration. In October the DHS issued welcome new rules resulting in ICE freeing hundreds nationwide, but many more who meet the criteria for release remain locked up, including Pedro Guzman.
The public's ignorance of the idiocies endemic to the EOIR's business as usual and the calamities these entail is no accident. The agency deliberately withholds basic information from the media and researchers, and its top officials routinely decline requests for interviews, as acting director Thomas Snow and others did twice for this article. (Snow is "acting," so he won't lose his civil-service job in the EOIR.)
According to David Burnham, a former New York Times reporter and co-director of the Transactional Records Access Clearinghouse, the staff in the EOIR public affairs office have a "bizarre conception of their role. We ask simple administrative questions and they say, Oh, you have to submit a FOIA request." Lauren Alder Reid, the agency's public affairs legal counsel, sent numerous e-mails along these lines to me but, along with top agency officials, is not responding to document requests from the agency's FOIA office as required by law.
The EOIR obscures its operations as well by admonishing immigration judges not to speak with the media, in contrast with other adjudicative agencies and the judiciary. When alerted to this, Charles Geyh, a law professor at the University of Indiana and a reporter for the American Bar Association's Model Code of Judicial Conduct, sounded taken aback. With the exception of prohibiting judges from commenting on pending cases, "it's not just that the rules say that you can do it, but they actively encourage it. Banning it makes the process seem less transparent and doesn't promote the confidence in the courts we're trying to encourage. Not conveying to the public the work they do and why they do it and how they do it is nonsense."
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Even the court hearings are hidden from public scrutiny, especially those in detention centers, despite a regulation requiring otherwise. In August Dan Kowalski, an immigration attorney in Austin, Texas, and editor of Bender's Immigration Bulletin, sent the EOIR an e-mail asking whether the public would be allowed to attend hearings at a new court in the Pearsall, Texas, detention center. Kowalski explained his concern to me: "Sunlight is the best disinfectant. If there's nobody watching, it's easier for the prosecutors and immigration judges to take shortcuts or be dismissive or even abusive with the respondents." The EOIR's public affairs officer, Elaine Komis, replied to Kowalski's query by telling him to "contact GEO," a private security firm under contract to the DHS.
GEO's track record is bleak, according to Sandy Restrepo, an ACLU policy intern in Washington State. "Community members and law students...are getting hassled or turned away by security when they come in to watch the immigration hearings" at the Tacoma Detention Center run by GEO, Restrepo wrote in her July message to an immigration advocate listserv. Restrepo told me that since a 2008 Seattle University report documenting GEO's mistreatment of people in its custody, there have been "constant problems" with court access. She blames the EOIR as well as GEO. "The court administrator doesn't want a similar type of report to come out" about the Tacoma immigration courts, Restrepo believes.
Irina Kalinka, a Bard College student, decided that for her spring research project she would attend hearings at a nearby immigration court housed in the Downstate Prison in Fishkill, New York. The Fishkill EOIR office said she should call the prison for "security clearance." After being transferred to different prison personnel and calling several times, she was told by a prison official to fax a letter to the "Central Office." She asked where that was. "After a long silence," Kalinka wrote in an e-mail, "he just hung up." She left messages, but no one called her back. "The process of trying to find access is not just confusing," she wrote, "but I would go so far as to say actively discouraging." Kowalski suggests relocating the courts to a "different part of the building that doesn't need so much security, or give up on the notion of having them in the detention center altogether."
An employee of the immigration court in the agency's headquarters in Falls Church, Virginia, concerned I might be with the media, would not allow me to attend a hearing even after I had passed security; she was overruled by a superior, who said this was a "mistake." Despite a regulation stipulating that hearings are open to the public, another official disclosed a policy requiring court personnel to ascertain if an observer is with the media before entrance is allowed.
On my entering the hearing, immigration judge Roxanne Hladylowycz announced to the respondent, her attorney and the DHS attorney that an observer had entered her courtroom and indicated that she was not asking their permission for the observer to remain. Immigration courts are open to the public, she explained to a group in Memphis, who appeared on a huge, gorgeous flat-screen worthy of the Super Bowl. "She has a right to be here."
And then I observed a fascinating and scrupulously well-run hearing in which Hladylowycz figured out that the government's claim of fraud was based on confusion arising from the fact that the respondent, Alina, and her sister, despite both taking on their husbands' last names, had married men with the same last name. Alina's hearing took about an hour, sixty minutes longer than those for people in mass removal hearings.
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Complaints about immigration judges fall under the jurisdiction of the Office of Professional Responsibility (OPR), and people may file there directly, but the EOIR instructs immigration court stakeholders to lodge complaints with the EOIR itself. Instead of passing complaints on to the OPR, as the website promises, the EOIR top brass, to protect their cronies and avoid outside scrutiny, sweeps complaints under the rug. From September 2009 to August 2010, none of the OPR investigations originated with misconduct complaints filed with the EOIR. All but one occurred when federal courts overruled immigration judge decisions, per OPR policy. Since more than 84 percent of people in immigration jails lack attorneys and may submit complaints to the EOIR but will not file appeals in federal court, the OPR will never learn of most misconduct.
The EOIR batted away my recent complaint documenting extensive misconduct over the past eighteen months by Cassidy, who has worked in EOIR headquarters, and the Atlanta court administrator, Cynthia Long, including criminal and civil lawbreaking. The information should have been passed on to the OPR and the Office of the Inspector General, but according to EOIR attorney MaryBeth Keller, it stayed in-house at the EOIR.
Protecting misconduct is old news at the EOIR, which has been receiving complaints about Cassidy for years, including in the late 1990s from David Farshy, an attorney who attracted Cassidy's ire for protesting his due process violations. In one case, Cassidy left a message on Farshy's answering machine revealing an unlawful private conversation with the government's attorney and stating that he had decided Farshy's client's case before the hearing. Rather than fire Cassidy for these flagrant violations, the agency hired the government attorney with whom he'd had the conversation—Sease, now an Atlanta adjudicator who attracts her own misconduct complaints.
The experience of Adolfo Equite-Sequen, who lived in Los Angeles for twenty years and is eligible to apply for a green card, is another chilling example of the effects of moving DHS prosecutors from behind the table to behind the judge's bench. In September 2009, Equite was arrested for public drunkenness and, because of ethnic profiling, sent to ICE custody. A few days later he was shipped to Eloy based on an unauthenticated fingerprint match with the record of someone whose first name is Martin and who was ordered deported in 2004. ICE claimed no records existed for Equite.
Linda Spencer-Walters was a DHS attorney in 2008. In February 2010, she was Equite's adjudicator. Relying solely on the evidence from her old office, she discredited all of Equite's statements, denied bond and would not reopen his case even after a nonprofit attorney proved the DHS possessed Equite's bona fide immigration file.
Equite's pending appeal points out that Spencer-Walters ignored blatant inconsistencies in the ICE arrest report and admitted into evidence an unauthenticated fingerprint associated with a signature that did not match that of Equite, now in Guatemala.
Sarah Owings, EOIR liaison for the Atlanta chapter of the American Immigration Lawyers Association last year, said of similar events she has observed in immigration hearings, "Things are happening so quickly. They're trusting ICE has done their job and done the paperwork. They're not acting as adjudicators when they only get one side of the story and it may not be correct." Dana Marks sums up the problem: "As long as we are housed in the culture of a law enforcement agency, it's going to be difficult to achieve judicial neutrality." But severing the EOIR from the Justice Department, and the union's other worthwhile objectives, could take years.
Starting today, Attorney General Eric Holder can appoint a new director for the EOIR, ideally someone who will run this law enforcement agency according to the rule of law. The Justice Department could also issue new regulations for the EOIR to achieve immigration reforms that may not be possible through Congress or the DHS, including one mandating the release of anyone who is not given a bond hearing within forty-eight hours of a request. President Obama, whose own citizenship has been called into question, might want to take advantage of it.