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Immigration Law

Jeffrey S. Chase on the Need for Transparency...and Boiling the Frog

Jeffrey S. Chase, Dec. 30, 2019

"A respected colleague of mine, former Immigration Judge Ilyce Shugall, generously volunteered to take time from her own schedule to travel halfway across the country to San Antonio, TX and observe immigration hearings conducted under the MPP, or “Remain in Mexico,” program.  Most of the judges she observed that week honored her right to be present. The views of many judges were expressed by the president of their union, Hon. Ashley Tabaddor, when she recently told CNN that the lack of public access to the MPP program was a “new low,” adding “this is not the way we as judges or courts should function.”1

However, one immigration judge had Judge Shugall and a fellow observer from Human Rights First escorted from her courtroom and barred from returning, claiming that their notetaking was “distracting.”  The excuse was frankly ridiculous; the true motive was to prevent a knowledgeable member of the public from witnessing the operation of a horrific program. Soon thereafter, EOIR announced that some MPP hearings will be conducted by judges sitting in courts allowing no public access.  Judge Shugall wrote a letter of protest to EOIR’s director and the acting chief immigration judge on behalf of our Round Table of Former Immigration Judges, which 23 of us signed.  

As Judge Shugall pointed out in the letter, such problem is not unique to MPP cases.  A recent article in the Daily Beast detailed a FAMU hearing in NYC presided over by televideo.  Upon realizing a reporter was in the courtroom towards the end of the hearing, the immigration judge exclaimed “Oh, Jesus Christ!” before chastising the attorneys, asking “What’s the matter with you?” for allowing someone to observe a hearing that was open to the public, and who had further obtained  the respondent’s own permission. The judge required the reporter to leave the courtroom for the decision.

Due to the intense pressure put on the judges, it is unknown if such actions were taken based on the true personal opinions of the judges involved, or out of self-preservation (a particular concern for new hires, who may be terminated without cause during their first two years on the bench).

In a May 9, 2018 public notice, EOIR (the agency that houses the immigration courts and the Board of Immigration Appeals) announced a transparency initiative, in what EOIR’s director termed an attempt to introduce accountability into the immigration court system.

An earnest initiative would be appropriate.  Although housed inside an enforcement agency and answering to the nation’s prosecutor-in-chief, the entire purpose of the immigration courts is to act as a neutral check on executive overreach in the enforcement of our immigration laws.  In their detached and learned interpretation of the laws and regulations, immigration judges exist to correct overzealous bureaucrats and policy makers when they overstep the bounds of reasonable interpretation and the requirements of due process.

However, a lawsuit recently filed by several immigrants’ rights groups charges the Trump Administration with attempting to turn the courts into something quite different: “a deportation machine” that violates both a Constitutional and statutory requirement to adjudicate claims on their individual merits on a case-by-case basis.  The suit notes that Article II of the U.S. Constitution (which Trump has falsely stated allows him to do whatever he wants) requires the executive branch to “take Care that the Laws are faithfully executed.”

Instead, the system is being gamed based on the administration’s false claims that refugees and immigrants are criminals and undesirables aided by lawyers who are dishonest cheats, and are thus undeserving of the rights our legal system affords them.  Several policies underscore this credo. First, Immigration Judges are now required to satisfy performance quotas that aim to turn them into assembly line workers. Second, EOIR has sped up the assembly line to “I Love Lucy” candy factory speeds for certain categories of cases, most notably, “FAMU” cases.  FAMU stands for “Family Unit” cases, a reference to those the government has been forced to release from detention into the U.S. pursuant to a stipulated court settlement known as the Flores Agreement.

Because the administration is unhappy that it has been unsuccessful in challenging or bypassing the terms of the Flores Agreement, it has instead created a policy designed to punish those asylum seekers falling into a category affording them rights by rushing them through the system so quickly that they cannot obtain counsel or properly prepare for their hearings, and then deporting them just as swiftly to deter others from seeking asylum in this country.  Immigration Judges are pressured to speed these cases through by directives that seem unconcerned with the requirements of fairness.

Less fortunate than the FAMU class are those forced to remain in Mexico awaiting their hearings under the ironically-named “Migration Protection Protocols” (MPP).  The asylum seekers falling under this program are not from Mexico, and fled their home countries with little but the clothes on their back. They sleep in shelters (if they’re lucky) or in parks (if they’re not) in squalid,  life-threatening conditions.   As they have no address, they cannot be notified of changes in their hearing dates.  In order to attend their hearings, they must report on the designated date at 4:30 a.m. to be admitted to a tent court with no public access, where their case is heard by an immigration judge on a video screen beamed in from a distant court.  Under the terms of the MPP agreement, the respondent may only be returned to Mexico after the hearing if there is a future hearing scheduled. In some cases in which proceedings were terminated (and in at least one in which asylum was actually granted), ICE has forged notices of future hearings with made-up dates in order to return the noncitizens to Mexico under false pretenses (and yet they claim it is the private attorneys, many of whom are providing representation pro bono, who are dishonest cheats).  Those falling under the program are targets of crime; I have heard and read of criminal cartels kidnapping asylum seekers upon their return to Mexico and extorting their relatives to pay ransom in order to release them in time to attend their next scheduled hearing.

I don’t believe that immigration judges signed up with the intention of serving as assembly-line workers in a deportation machine.  More subtle changes under prior administrations, including an increased reliance on televideo hearings beaming in remote judges, and an increased emphasis by EOIR on quantity of decisions at the expense of quality, paved the way for the present onslaught on fairness.  One sitting judge told me that she feels like a frog in a pot in which the water has slowly been brought to a boil, only to realize too late that the temperature is fatal to the due process her oath of office requires her to provide. [Emphasis added.]

Some judges have courageously pushed back, granting continuances against the will of their higher-ups, granting relief in deserving cases, and even terminating MPP cases.  In one such case, an immigration judge terminated proceedings where the respondent did not appear on the grounds that ICE had not established that the respondent was able to attend the hearing, given all of the obstacles created for such attendance.  The BIA  invited amicus briefs in the case, after which it will almost certainly reverse the judge and set an awful precedent intended to force judges to enter deportation orders under such circumstances (a pointless exercise, as a person in Mexico can’t be deported from the U.S.).2

It bears mentioning that MPP has put DHS asylum officers in a terrible bind as well.  A brave DHS asylum officer, Doug Stephens, recently wrote a scathing letter to his higher-ups stating his refusal to participate in the MPP program before resigning from his government position.  Stephens correctly identified the policy as immoral, stating that it involves “literally sending people back to be raped and killed.”  The asylum officers’ union filed amicus briefs in lawsuits challenging MPP and another illegal policy of this administration.

This is a system that is screaming out for transparency.  Towards that end, a December 29 Wall St. Journal article reported that DHS intends to permit public access to the tent courts. However, immigration judges work for the Department of Justice, and not DHS.  Furthermore, judges retain the authority to bar the public from hearings. Hopefully the two immigration judges cited above are in the minority. It is hoped that on further contemplation, they agree with their fellow judges, the union that represents them, their former colleagues in our Round Table, and their DHS asylum officer counterparts, and at the very least, refrain from shielding what is so clearly wrong from those seeking to bear witness and advocate for change.

Notes:

1. It is because of the ability and willingness of its officers to make such public statements in defense of fairness and due process that the Department of Justice has brought action to decertify the immigration judges union.  If successful, decertification would silence all sitting immigration judges.

2. Those doubting the foregone conclusion of the Board’s future decision in this matter are referred to the following statement from a recent decision of the U.S. Court of Appeals for the Third Circuit in Quinteros v. Att’y Gen. of U.S.: “it is difficult for me to read this record and conclude that the Board was acting as anything other than an agency focused on Quinteros’ removal rather than as the neutral and fair tribunal it is expected to be.  That criticism is harsh, and I do not make it lightly.”

Copyright 2019 by Jeffrey S. Chase.  All rights reserved."