Wednesday, December 8, 2010

EOIR Attorney Conceals Memorandum With Evidence of Unlawful Restrictions on Media Access


Among the many causes of the government unlawfully deporting U.S. residents, including U.S. citizens, is the effective secrecy in which many immigration hearings are conducted. (For more on this, please see "Lawless Courts," The Nation, October 20, 2010.)

A misconduct complaint I submitted on Monday, December 6 to the Department of Justice (DOJ) Office of the Inspector General (OIG) describes an unlawful policy reported to me by immigration court staff across the country. According to a policy of the Executive Office of Immigration Review (EOIR) Office of Legislative and Public Affairs (OLPA), court staff nationwide are asked to detain media representatives attempting to enter open hearings until receiving permission for their entrance from EOIR's public affairs office.

My misconduct complaint alleges violations of 8 CFR 1003.27 - Public access to hearings;18 USC § 2071 - (Concealment, removal, or mutilation generally); and serious administrative misconduct (wanton disregard for agency procedures for implementing 5 USC § 552, Freedom of Information and Privacy Act).

The OLPA policy is unlawful and so was EOIR OLPA Counsel Lauren Alder Reid's concealing from the EOIR's FOIA staff at least one memorandum providing evidence of it. (Late Monday I sent Ms. Reid and her colleagues a copy of the misconduct complaint, indicated I would be posting it on my blog, and asked if they wanted to comment on it. I have not received a reply.)

Pieces of the media monitoring policy are laid out in a memorandum that was issued under the name of Lauren Alder Reid, Counsel for OLPA, and, according to notes from my transcription while inspecting the document, "updated August 14, 2009." I had this document in mind and described it when I submitted the August, 2010 FOIA request.

This memorandum describes a policy whose implementation requires EOIR court staff detaining court visitors in order to ascertain if they are with the media. Especially troubling is that, according to FOIA staff, Ms. Reid concealed its existence from that office, which in turn failed to produce it in response to a request I filed in August.

(The EOIR FOIA office forwarded to Ms. Reid a FOIA request I submitted describing the document in question. In fact, Ms. Reid herself told me to request the agency policy through the FOIA process. Rather than produce the incriminating document, Ms. Reid, after a considerable delay, submitted to her colleagues a document that was produced AFTER the EOIR received my FOIA request and withheld from her colleagues the memorandum in question, one that she herself appears to have written and circulated.)

As I noted earlier, the EOIR's own misconduct complaint process is a sham, and indeed those administering it are themselves violating the rules that require government employees to direct evidence of serious misconduct to the DOJ OIG or Office of Professional Responsibility (OPR). Thus, EOIR stakeholders are best served by filing their complaints directly with these agencies.

28 USC 0.29c(a) states: Reporting to the OIG. Evidence and non-frivolous allegations of criminal wrongdoing or serious administrative misconduct by Department employees shall be reported to the OIG, or to a supervisor or a Department component's internal affairs office for referral to the OIG, except as provided in paragraph (b) of this section.)

"b"is similar, but requires reporting adjudicative misconduct, i.e., immigration judge misconduct, to the OPR, something MaryBeth Keller and other supervisors, including Gary Smith, fail to do. (Mr. Smith is the guy who has been covering-up for William Cassidy in Atlanta, including ignoring requests from the FOIA staff, itself serious administrative misconduct.)

For other experts recommending sending complaints about immigration judges to the OPR and not the EOIR, please read "The Immigration Judge War," a chapter from a textbook on the immigration courts.

Jonathan D. Montag and Socheat Chea write:
Although the Office of the Chief of the Immigration Judge (OCIJ) also accepts complaints of judicial misconduct,44 it appears the more effective practice would be to submit allegations of misconduct to the OPR. The EOIR stated at an AILA liaison meeting that the OCIJ will make its own preliminary assessment, and if it determines that the charges have substance, only then will it refer the complaint to the OPR. An immigration practitioner’s best approach is to file the charges with OPR, since it is separate from the EOIR branch.
Shockingly, as I learned from a FOIA response from the OPR, even when the EOIR finds that charges are non-frivolous, it still fails to comply with the law and withholds this evidence from the OPR, allowing EOIR supervisors to arbitrarily protect and punish its employees without the oversight Congress mandates.

The EOIR also withholds evidence of serious administrative misconduct from the DOJ OIG, something I learned from the OIG desk attorney last Wednesday when she insisted that the EOIR was not part of the DOJ but part of the DHS, an inference that makes sense de facto but was surprising to hear from a DOJ attorney.

(As this had been misinformation conveyed by a high-ranking DHS official to me with similar confidence on a previous occasion I had a certain ethnographic curiosity about this confusion. I told the DOJ OIG desk attorney the EOIR really was part of the DOJ and said I wanted to understand why she thought that the EOIR was part of the DHS. "Because it is," she snapped, and then said, "Have a nice day" and hung up the phone.)

In the event, the misconduct complaint against Ms. Reid
is here, perhaps to be investigated by the attorney who thinks the EOIR is part of the DHS, .

Exhibit A ("Lawless Courts") is here.
Exhibits B and C (email concerning events at Falls Church immigration courts, June 23 and 24)
Exhibit D (August 10, 2010 FOIA request text file, omitting personal contact information)
Exhibit E (EOIR FOIA response with document produced September 9, 2010)

I realize that the details of all this are too arcane for most people but am posting this because it may be useful for a few, especially researchers, journalists and civil rights activists encountering similar unlawful obstructions and obfuscations.

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