"Unbelievable," "incredible," "crazy" are frequent responses to the story of how Mark Lyttle, born in North Carolina, was illegally ordered deported to Mexico on December 9, 2008 with the imprimatur of William Cassidy, a former ICE attorney who presides as an immigration judge over hearings for people detained in southern Georgia. He is employed as an attorney by the Executive Office of Immigration Review (EOIR), an agency in the Department of Justice (DOJ).
Similarly surreal, unreal, too real, calling to mind Alice as well as Kafka, were the events on Monday, April 19 at the Atlanta federal building on 180 Spring St. SW, where a phalanx of private security guards stormed the waiting room where I was writing notes on Mr. Cassidy's most recent bizarre behavior, discussed below. A private security guard told me I had to leave. I asked him why. Backed by others in his gang, he repeated his "order" and then he took out hand cuffs.
(It's a LONG story, but the punchline is fairly simple: Many but not all employees of EOIR and ICE have no interest in the rule of law; when folks try to hold them to account, they lash out. Both EOIR and ICE are grumpy about me writing on behalf of the U.S. residents whose rights the government is violating. The only thing surprising about the events described below is that Mr. Cassidy's character behaves in ways that are too cliched to be easily believable. And yet...)
I had a plane to catch and decided to go along with the young thugs in front of me. I walked out of the waiting room and asked the guy doing the talking for his name. "Officer Out the Front Door," he replied. As I turned, still walking, to look at his name tag on his right side he twisted away to hide it from my view, placed his hands on me and forced me to walk more quickly, suggesting more force if I paused to examine his identification more carefully. (The building is full of cameras and I have requested Federal Protective Services (FPS) preserve relevant video.)
(The name tag that he was trying to hide said T. Hayes or Hays; an Atlanta supervisor for Federal Protective Services (FPS), a branch of Department of Homeland Security (DHS) that handles security for federal buildings, told me the company handling security at the site is Paragon Systems.)
Hayes shouted to additional guards in the lobby that he was acting at the behest of Mr. Cassidy: "Judge Cassidy wants her out of here! He wants her out of the building!"
But Lauren Alder Reid, Legal Counsel for the EOIR's Office of Public Affairs explained to me that same day that as an employee of the DOJ, Mr. Cassidy has no legal authority over employees of the DHS.
I guess a guy deporting a U.S. citizen without authority might not be so squeamish about ejecting a court observer from a federal building without authority.
Atlanta Immigration Courts: "The Worst in the Country."
Mr. Cassidy has a long record of poor judgment and unlawful actions reaching back to the 1990s. I have published some of this information; he knows I have more. In addition to deporting Mark, Mr. Cassidy has held at least one ex parte conversation with an ICE attorney in which he said he would rule against a respondent even though he thought this would be overturned, filed baseless retaliatory complaints against immigration attorneys, failed to record hearings properly, backdated a court record, accepted into evidence materials that have not been served on both parties, and unlawfully closed proceedings to Mark and me in October on the strength of a lie conveyed by the court administrator, Cynthia Long, who said she was acting on the instructions of "the ju" -- and then stopped, apparently attempting to keep this a secret.
It was Mr. Cassidy's email to Jennifer Barnes in the EOIR's Office of General Counsel in late April, 2009, contemporaneous with Mr. Cassidy vacating his deportation order following Mark's return, that cemented my view of Mr. Cassidy as a classic bully, someone who kisses up to those who have power and influence, including certain Atlanta immigration attorneys, and kicks down those who do not--and I wrote as much in an affidavit that was copied to Mr. Cassidy in a case involving what I considered a frivolous, baseless, irrational misconduct complaint he filed and that the state bar to which it was referred closed without taking any action.
(Mr. Cassidy claims Mark was silent about his U.S. citizenship during the master calendar hearing, while Mark, who had never been in an immigration court before, offered in our first conversation, within days of his return, a very detailed narrative of their exchange and that of others in Mr. Cassidy's court, none of which are on the digital audio recording (DAR) Mr. Cassidy is charged with maintaining; instead the DAR has obvious stops and starts with the intervening conversations not recorded. Instead of letting the EOIR investigate a deportation order that appears to display at best gross incompetence, Mr. Cassidy wrote an absurd complaint against an attorney who had nothing to do with the events in Mr. Cassidy's court room the day he deported Mark as a vehicle to assert to the EOIR upper brass that Mark never spoke up.)
The EOIR, in addition to tolerating Mr. Cassidy's persisting in conduct violating federal regulations, the Immigration Practice Manual and the Immigration Judge Benchbook, also has failed to admonish the Atlanta EOIR for requiring the public to "check in" before attending court hearings, an unauthorized restriction on court access that my interviews with observers as well as my own experience demonstrates has been abused to close hearings that should be open to the public. EOIR Public Affairs Officer Susan Eastwood told me last October that it is not EOIR policy for visitors to "check in" before they may attend hearings.
Moreover, the Atlanta EOIR court office appears to have committed document destruction, a violation of various policies not to mention the Freedom of Information Act. In order to document that Ms. Long and Mr. Cassidy were unlawfully closing his hearings I requested a copy of the docket the day I was turned away, by filing a FOIA request.
Only one of the three cases appearing on Mr. Cassidy's 1 pm docket posted in the waiting area October 7, 2009 appeared on the docket printed on December 16, 2009.
The cover letter, dated January 25, 2010 (far beyond the FOIA deadlines for a request submitted mid-October, another symptom of EOIR trying to cover up or delay exposure of misconduct) states: "Please be advised that the original Immigration Court calendar could not be located. However, the enclosed Immigration Court calendar was obtained from the Immigration Court database."
Each court's dockets are maintained in a computer database whose output may be accessed in Washington, D.C. and the local court. A court administrator elsewhere told me that the only way to explain the disappearance of the two cases would be if someone in the Atlanta EOIR office deleted these, a procedure this employee said was technically "easy." (EOIR staff elsewhere have noted different examples of incompetence on the part of the Atlanta court, including a failure to send files in a timely fashion after venue has been changed, leading to delays and confusion. One employee told me, "They're the worst." The Atlanta EOIR staff appear to be spending so much time chasing out the public and covering up misconduct that they are unable to perform basic tasks like sending files.)
When he is in court, Mr. Cassidy still fails to perform the duties of an immigration judge. He does not record significant portions of hearings, fails to note which portions are on and off the record, and does not summarize off-the-record exchanges when going back on the record--all required by the Immigration Judge Benchbook. He also fails to provide the name of the interpreter at the beginning of each proceeding. (The Immigration Judge Benchbook is online and is the EOIR's helpful response to critics who were pointing out the poor habits of some immigration judges. The fact that Mr. Cassidy and EOIR attorney and administrative judge Dan Pelletier (another former ICE trial attorney), also in Atlanta, fail to follow what is basically a script that any high school student could read suggests their disrespect for court rules and respondent rights are deeply ingrained; the EOIR clearly needs to do more than lead these horses to the water.
Other Peculiarities for those in Mr. Cassidy's Court
Most of the morning was taken up with bond hearings, an occasion that allowed for interesting insights by the ICE trial attorney (located in Stewart) into Mr. Cassidy's approach to full hearings. He repeatedly told attorneys he would not negotiate bond because their motions did not include attachments with ten years of income tax returns and, absent these, Mr. Cassidy had a categorical policy of denying relief. Since the ICE attorney was so certain that Mr. Cassidy would deny relief without considering any other factors, the ICE attorney was opposing bond.
(Bond is possible for those in ICE custody as long as their imprisonment is not ordered by Congress -- "mandatory detention." Whether an ICE attorney goes along with this will depend on various factors, including the possibility of relief from being deported, either on the merits of the order or because the immigration judge may use discretion and grant relief; the trial attorney's claim on Monday was that absent ten years of income tax returns, relief in Mr. Cassidy's court would be impossible. Like other actions in immigration court, ICE has more power in this matter than the immigration judge: if the judge orders bond and a family has the funds, ICE can continue to hold the respondent in custody pending an ICE appeal of the immigration judge's order, effectively nullifying the whole point of a bond. Therefore, it is effectively ICE, not the immigration judge, setting bond for those in ICE custody.)
The ICE attorney's rationale for denying bond violates a due process expectation that a bond hearing is different from merit hearings; if the trial attorney were in fact correct in surmising that Mr. Cassidy would never consider relief absent ten years of tax returns, this is a pretty grim summary of Mr. Cassidy's judicial temperment. But unless the ICE attorney expects respondents to know of Mr. Cassidy's strange proclivities on this point, legally available routes for relief should be sufficient to induce respondents to attend a future hearing and hence weigh on the side of granting bond.
By second-guessing the respondents' mindset when faced with a judge who writes his decisions by-the-numbers and not individual circumstances--what if the tenth year were not filed because the respondent was suffering from an injury sustained after carrying NY fire fighters from the World Trade Center?--the ICE trial attorney forecloses the opportunity for such a respondent to appear in court (not by televideo) during the full hearing and present his case as a full human being, not a blurry monitor figure in orange uniform, or grey, if the monitor is not fully working.
(The morning televideo feed was in black-and-white--a poor image drawing notice by an attorney once it was observed that Mr. Cassidy was receiving affirmative responses to a voluntary deportation order by someone other than her client; the individual he believed he was addressing had actually left the room. The interpreter later said to the attorney that she had remained silent despite noticing the switch because Mr. Cassidy 'tells me to stop interfering so much.')
For the record, when he returned to the court room following one of these discussions Mr. Cassidy affirmed that the ICE attorney had accurately represented his rigid requirement for ten years of income tax returns.
More On Mr. Cassidy and his Gang
Other than to tell me that DOJ employees have no authority over DHS employees, EOIR's Ms. Reid, on behalf of Mr. Cassidy, provided no account for his rounding up his pals at Paragon. Mr. Cassidy also has not replied to previous telephone and email messages seeking comment on his deportation of Mark and the events in October.
The immediate trigger for Mr. Cassidy's ordering private guards to have me removed appears to be an exchange we had shortly after 3 pm. I was the sole observer as he left the bench and, out of the camera's line of vision, walked toward me and asked me to leave. I asked him why. He said he had the authority to close hearings. I said that immigration hearings were generally open to the public subject to certain exceptions. I asked him if the respondent had requested a closed hearing. He said "No, the respondent is pro se," meaning without an attorney.
Mr. Cassidy also said he could order me removed. I asked if he would give me a reason for why he was closing the hearing. He thought for a few seconds and then said, "No," and told me he was getting the regulation on closing hearings and that I should wait. I told him I was familiar with the regulation. He nonetheless left the court through the rear exit.
Concerned about his implied threat earlier and also not interested in continuing this exchange I told the interpreter and administrator that I was going to the front office and that if the respondent happened to have understood what was happening and wanted me back, I would be there. The entire episode occurred in about 90 seconds.
The reason I was concerned about the respondent is that Mr. Cassidy, according to Syracuse University TRAC analysis, has among the highest rates of denying asylum applications in the country. For 2004 through the end of 2008 he denied 88% of asylum applications, compared to 57 per cent nationwide; in 2008, the most recent year for data, the TRAC chart appears to indicate that he denied 100% of asylum applications.
The regulation and rules allowing judges to close hearings to protect respondents in asylum applications are for the purpose of protecting people from retaliation by government agents from their home countries. Mr. Cassidy's high rate of denials suggests that in Mr. Cassidy's court, the respondents may have more to fear from him as an agent of the U.S. government than an undercover agent from Burma hiding behind court benches, for example.
The relevant rule in the Immigration Practice Manual states:
Evidentiary hearings involving an application for asylum or withholding of removal (“restriction on removal”), or a claim brought under the Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment, are open toAt no point did Mr. Cassidy include either the ICE attorney or the respondent in this discussion. He certainly did not inquire whether the respondent requested a closed hearing.
the public unless the respondent expressly requests that the hearing be closed. In cases involving these applications or claims, the Immigration Judge inquires whether the respondent requests such closure.
In the front office I spoke with Ms. Long's replacement for the day, Marion Crosby. I told her what had transpired. She left, then returned and informed me that this was indeed an asylum hearing. (The Stewart docket is posted at that location, and is not available in the Atlanta EOIR front office so I was unable to verify this.)
Ms. Crosby and I had a conversation about whether discretion in closing a hearing entailed legal reasons being provided contemporaneously. Since the DOJ has interpreted the regulation on public access to require a respondent's assent to closing an asylum hearing, it appears that Mr. Cassidy simply broke a rule. If he in fact were weighing other factors, then he needs to state these. The regulation does not authorize immigration judges evading all accountability, especially an EOIR attorney with the record of Mr. Cassidy.
Fortunately, a real federal judge (see below) has ruled on this question. Here's what Sixth Circuit Judge Damon Keith wrote when the EOIR tried to block the press from attending so-called deportation cases in immigration courts by invoking a "special interest" exemption and claiming the same broad latitude Mr. Cassidy was asserting:
Today, the Executive Branch seeks to take this safeguard away from the public by placing its actions beyond public scrutiny. Against non-citizens, it seeks the power to secretly deport a class if it unilaterally calls them "special interest" cases. The Executive Branch seeks to uproot people's lives, outside the public eye, and behind a closed door. Democracies die behind closed doors. The First Amendment, through a free press, protects the people's right to know that their government acts fairly, lawfully, and accurately in deportation proceedings. When government begins closing doors, it selectively controls information rightfully belonging to the people. Selective information is misinformation. The Framers of the First Amendment "did not trust any government to separate the true from the false for us." Kleindienst v. Mandel, 408 U.S. 753, 773, 92 S.Ct. 2576, 33 L.Ed.2d 683 (1972) (quoting Thomas v. Collins 323 U.S. 516, 545, 65 S.Ct. 315, 89 L.Ed. 430 (Jackson, J., concurring)). They protected the people against secret government.The decision as a whole is a great read, and demolishes the claims shared with me by Ms. Reid and Ms. Crosby that an immigration judge has unreviewable discretion to close hearings without providing a reason. (From the decision above, e.g., "... the Government contends ... Congress took the INS's discretion away for exclusion hearings and specifically gave them discretion to open or close deportation hearings. We find the Government's reading unpersuasive.")
On Tuesday afternoon I spoke with FPS Central District Commander Darren Summers. FPS is the DHS agency that contracts with the Paragon guards. After quizzing me on why I was "hanging out" at the immigration courts and asking who had "detailed" me to Atlanta for my research, Mr. Summers told me the guards had responded to an "order of a federal judge." Mr. Cassidy is not a federal judge but an administrative judge. I told Mr. Summers that Mr. Cassidy was employed by the DOJ and asked him how an employee of the DOJ could have authority over employees of the DHS.
Mr. Summers, his voice dripping with condescension, said that I needed to do more research, as this would show me that "immigration courts are part of the Department of Homeland Security."
This statement, so indecorous as to ignore the thin legal veil between EOIR and ICE, is also pretty awesome for illustrating the actual overlapping personnel and missions of the EOIR and ICE. (Three of the four EOIR attorneys in Atlanta are former ICE trial attorneys.) This blurring of legal authority between DOJ and DHS has consequences far more harmful than wrongfully removing a scholar/reporter from a building and committing battery.
It pervades the atmosphere in which EOIR attorneys are rubber-stamping ICE attorneys' claims that are demonstrably lies and evidence of agent misconduct, including faked fingerprint reports, false assertions on ICE arrest reports, and illegally hiding exonerating evidence from respondents' and their attorneys.
Most immigration judges, especially those who oversee hearings for non-detained populations, follow the rules and suffer the consequences of being overworked and underappreciated for their judicial temperment. Immigration judges with whom I've spoken mention only quantitative, not qualitative assessments, and believe that all EOIR HQ notices is their pace of hearings, and not the quality of their decisions. The fact that EOIR has continued to employ Mr. Cassidy, and colleagues who also show a long record of ignoring rules and regulations--more on others later!--seems to confirm this assessment.
The actions initiated by Mr. Cassidy violated not only my civil rights, but are also a crime. Under Georgia law, misdemeanor simple battery is when an assailant "Makes intentional contact of an insulting or provoking nature with the person of another," which is a great definition of what happened. Mr. Cassidy appears to be running a criminal gang, one that is using force and threats of force to harm the public. I have asked FPS to retain a copy of the video and I have been in contact with the Atlanta police exploring the possibilities for filing charges.
UPDATE, Monday, April 26: thanks so much for the comments (below) supporting filing criminal complaints against the guards and William Cassidy. I'd like to do this but am not in Atlanta. My understanding from the Atlanta police is that an attorney would need to file an affidavit written by me at a downtown office. If there's someone in the Atlanta vicinity willing to help out with this, please shoot me an email: jstevens AT law.berkeley.edu
(The photo is a vigil organized by Atlantans Building Leadership for Empowerment in front of the building from which I was removed. In addition to the immigration courts, it houses DHS agencies including ICE and FPS.)
Correction 4/27/10: The original post said of Mark's comments to me on April 24, 2009, "Mark, who has never been in an immigration court before..." This was a mistake I just caught. It is corrected to read "had" since Mark has come with me to immigration court hearings in Stewart on a few occasions in 2010, long after the account he gave and I posted two days after he returned. You can read that here.