Wednesday, October 20, 2010

New FOIA Documents: EOIR Performance Awards and Raises for 2008-2010

Excerpt from letter by man William Cassidy ordered deported, dated October 14, 2010, sent from a respondent held in the Stewart Detention Center to me.

UPDATE: 10/22/2010 "Lawless Courts" exposé of immigration court injustice in The Nation, by Jacqueline Stevens (print date November 8, 2010).

The quick answer is that even though the Executive Office of Immigration Review (EOIR) has been receiving misconduct complaints about William Cassidy since the 1990s, they keep him on because he used to work with the folks who are charged with investigating these complaints in then-Immigration and Naturalization Service headquarters, AND, he's good at kicking out of lots of U.S. residents very quickly, i.e., he is "efficient."

The documents linked below are here because I'd heard that the EOIR, the component of the Department of Justice (DOJ) that runs the immigration courts, relies on purely quantitative performance measures, like much of the rest of the federal government and many other institutions as well.

I wanted to understand how the anecdotal reports from current and former EOIR staff about "cash prizes" and days off being given to Board of Immigration Appeals staff for cranking out decisions -- with no special awards for thoughtful, intellectually careful decisions -- followed from the agency rules. (BIA decisions are initially drafted by EOIR staff attorneys and BIA members are under pressure from middle management not to make changes. According to a former EOIR employee with first-hand knowledge, the staff actually establishes the initial position and then sends it on to the Board members for rubber-stamping.)

In the event, in July, 2010 I filed a Freedom of Information Act (FOIA) request for policies governing their performance awards and raises, as well as individual level data about the recipients of these awards and raises.

A couple weeks ago, I received a genuinely responsive response in three parts. (Meanwhile, the top staff at the EOIR are violating the FOIA and Privacy Act statute and not responding to document requests on my behalf made by their FOIA staff. I will describe the details of what is being withheld in another post.)

I have not had time to review these documents carefully but wanted to post them so others could take a look. It is very important to note that although adjudicators (immigration judges and Board of Appeals members) are officially exempt from achievement awards based on "efficiency, effectiveness, and economy," in fact these individuals are literally, as the list of awards itself reveals, and otherwise affected by these standards.

That's why I put the excerpt from a Cassidy respondent on top. It asks the right question, which is not "why is Cassidy a kook?"-- who cares? --but, to paraphrase, why are the EOIR top brass not firing this kook?

One piece of this answer is that he goes way back with these folks but another is that the EOIR, as part of a law enforcement agency, is more influenced by the numbers than anything else. As long as Cassidy and J. Dan Pelletier, also in Atlanta and also a former INS prosecutor, are churning people out of the country at a rate 15% higher than their colleagues at other detention courts (TRAC data) that's an index of "efficiency, effectiveness, and economy" their bosses appreciate in itself and because it keeps the folks in the DOJ and Congress concerned about case backlogs off their backs.

Part I: EOIR Administrative Manual: Awards
18-page document with criteria for awards. (Hard copy sent, scanned and saved as pdf.)
"Special Achievement Awards are designed to reward employee efforts in improving Government efficiency, effectiveness, and economy" (pp. 1-2).

Part II: EOIR Employee Performance Awards, FY 2010 to date, and FY 2008 and 2009
213-page print out showing amounts paid and days off.

UPDATE 10/22: A former EOIR employee writes in an email, "Yep, pp. 1- 9 and 99-114 are BIA attorney-advisor perf. awards," meaning the EOIR staff who churn out the BIA decisions that are largely rubber-stamped by Board members. This helps explain why so many of the decisions on complex cases I've seen simply ignore the respondents' arguments. Faster to affirm the government attorneys in DHS and DOJ than to seriously research the legal arguments made by the respondents.

As far as the report details, I was struck by the fact that Cynthia Long, the Atlanta Court Administrator, received a relatively large performance award (27 hours or three days paid vacation compared to one day for others) even though her court has been described to me by other court administrators as "the worst" -- one EOIR official who works in a Pacific Standard Time detention facility said that the Atlanta court was notorious for lenghthy delays in forwarding respondent files, resulting in respondents being locked up far longer than they should be simply because the file was not available for review in that court.

Two other points stood out on quick inspection. One was that some courts were receiving a much larger share of these award goodies than others. And another was that despite the policy exempting immigration judges and Board members from performance or other bonus awards based on their adjudicative work, a few immigration judges did receive significant bonuses ($7,000). The EOIR did not release any additional information that would explain how they assess nonadjudicative work by their adjudicators.

I'm guessing once EOIR staff take a look at this they'll have some questions and answers of their own.

Part III. Quality Step Increase Performance Awards
98-page document showing salary adjustments with civil service rank.

This is going to be a snoozer for all but the most dedicated EOIR junkies, but EOIR employees may enjoy taking a peek. (The GS levels refer to the different civil service levels, with GS15 the highest.) These are really the most significant financial rewards because they change an employee's base pay.

TV Bonus: Democracy Now coverage of Nation article, aired Friday, October 22, 2010.

Thursday, October 14, 2010

Troutman Sanders and ACLU File Complaints on Behalf of Mark Lyttle, Deported U.S. Citizen (and Puerto Rican?)

I took this photograph of Mark last year when we visited a Christian boarding school that cared for him when he was young. He now stands again, still, in front of another semi-mythical story of origins about his "Puerto Rican descent" the ACLU has highlighted, one not so different from everyone else's stories of descent that we repeat based on the inventions of others.

Yesterday Troutman Sanders, a top tier Atlanta law firm, alongside the ACLU, filed a pro bono lawsuit on behalf of Mark Lyttle against a bunch of bad government actors and agencies that deported Mark, a U.S. citizen, from the United States to Mexico. The complaints tell an amazing story of government malfeasance and worse, and have the documents to back it all up. The legal and narrative work here is overwhelming and impressive.

You can find the lawsuit filed against bad government actors in North Carolina here, and the complaint against bad government actors in Georgia here .

Since the ACLU has put its public relations muscle behind this, the story, thank goodness, is all over the world, which is terrific because the complaints document systemic civil rights abuses that affect thousands of U.S. residents in ICE custody today, including U.S. citizens.

One lead item in these media stories, based on a paragraph in the complaints, however, bothers me. The problem is not the fault of Troutman Sanders or the ACLU, which put together a remarkably compelling, clear, detailed, and accurate narrative of Mark's ordeal. And yet, the statement that Mark is a "U.S. citizen of Puerto Rican descent" has only his adoptive mother's own observations based on his appearance, reiterated by her sons, including Mark, to back this up.

The "only" here is not a feature that is unique to Mark's story; after all, how else do we know who we are? Every family has its own confusions about its background and a compulsion to come up with a story, to wit my mother and grandmother used to argue about whether her father was from Hungary or Romania and I honestly don't remember who "won."

I guess my point here is that family narratives of ethnicity make me queasy and I don't feel better reading about Mark's Puerto Rican descent in the newspaper than I do hearing his adoptive mother give me her reason for believing this, "He's always looked Caribbean to me."
I have spent a lot of time with Mark and his family, and while Mark's mother, Jeanne, has offered various speculations on the ethnic identity and background of Mark's biological parents, including that his biological father is Puerto Rican, neither she nor anyone else, as far as I can ascertain, have any concrete evidence this is the case.

This seems such a small point that mentioning it calls for an explanation. The reason this bothers me so much is that putting forward a claim about someone's ethnicity in this context capitulates to a narrative quest for ethnic origins that is at once commonplace and understandable, especially if the desire is to offer an explanation for how this happened to Mark, but also consistent with arbitrary divisions and background narratives that have proven troublesome. I am not suggesting that Troutman Sanders or the ACLU were wrong to include this information in the context of a lawsuit, but wondering whether as a society there is something wrong with us for expecting or even needing it.

The bulk of the complaints reveal that the U.S. government had no evidence that Mark was born in Mexic and had a lot of evidence that he was born in the United States. Period. Why is there an expectation that the story needs more?

Now that the ACLU, understandably following the lead of Mark's family, has asserted Mark is of Puerto Rican descent, the press has picked up on this and this "fact" appears close to the lead in many of the articles describing his ordeal, the complaint brilliantly nailing ICE for its egregious violations of the law and Mark's dignity while perhaps abetting along the way a curious and unsurprising fiction.
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