Sunday, October 26, 2014

Slate's Reihan Salam Engages States Without Nations' Feminist Analysis



Most public discussion of States Without Nations: Citizenship for Mortals centers on a practical discussion of the first of its four proposals: eliminating birthright citizenship and allowing free movement and citizenship based on residency, along the lines of requirements for state residency in the United States. The overarching historical and theoretical framework tends not to receive much attention.  So I was pleasantly surprised to see journalist 's recent article on Slate "The End of Pregnancy and the Inevitable Rise of the Artificial Womb" explore the book's analysis of pregnancy envy.
Stevens suggests that our society is screwed up in large part because men have created myths, rituals, and laws that entrench their power as a way to compensate for a profound sense of inadequacy instilled early in life.
Salam explores the technological changes that may topple the current reproductive practices and thus the compensatory policies responsive to these, at least for elites working at Apple who have their eggs stored, thus readying them for the near distant future's possibility of ectogenesis. 

Salam claims that paternity testing also changes the compensatory rationales of inheritance and other policies.  But my argument is about the effects of early childhood fantasies boys have about the significance of their inability to give birth.  Empirical claims about new assessments for genetic paternity or men's actual contributions to child-rearing are not relevant to understanding the causes of the structures instantiating through law intergenerational families and nations.  Still, fun to think with Salam about new reproductive technologies and practices.  

For more on the relation between reproductive technologies and the feminist revolution, check out Shulamith Firestone's classic The Dialectics of Sex: The Case for a Feminist Revolution (1970).  Firestone wrote this at age 23, while a student at the Chicago Art Institute.  This reminds me that Gayle Rubin developed the central analysis in her classic essay, also theory-heavy, "The Traffic in Women: Notes on the 'Political Economy' of Sex" (1975) when she was an undergraduate at the University of Michigan, Ann Arbor and active in the feminist movement there. So here's a shout-out to the Midwest and campus activism in the 1970s for these two brilliant, iconoclastic feminist thinkers.

Thursday, October 23, 2014

GEO Sued for Minimum Wage and Forced Labor Law Violations, and Unjust Enrichment

Lawsuit seeks $5 million in minimum wage law damages and also compensatory and exemplary damages for Forced Labor (18 U.S.C. § 1589), 
and Unjust Enrichment 

American Friends Service Committee, May, 2010 vigil at GEO facility in Aurora, Colorado, sign reads, "We are not the NEW SLAVES"
Yesterday, Alejandro Menoca, Marcos Brambila, Grisel Xahuentitla, Hugo Hernandez, Lourdes, Argueta, Jesus Gaytan, Olga Alexaklina, Dagaberto Vizguerra, and Demetrio Valerga on their own behalf and others similarly situated filed a complaint informing a federal judge that their guards were breaking the law.

The complaint, filed by an intrepid team of lawyers who spent extensive time interviewing detainees at the GEO facility in Aurora, Colorado, states:
In the course of their employment by GEO, Plaintiffs and others scrubbed bathrooms, showers, toilets, and windows throughout GEO’s Aurora facility. They cleaned and maintained GEO’s on-site medical facility, cleaned the medical facility’s toilets, floors and windows, cleaned patient rooms and medical staff offices, swept, mopped, stripped, and waxed the floors of the medical facility, did medical facility laundry, swept, mopped, stripped, and waxed floors throughout the facility, did detainee laundry, prepared and served detainee meals, assisted in preparing catered meals for law enforcement events sponsored by GEO, performed clerical work for GEO, prepared clothing for newly arriving detainees, provided barber services to detainees, ran the facility’s law library, cleaned the facility’s intake area and solitary confinement unit, deep cleaned and prepared vacant portions of the facility for newly arriving detainees, cleaned the facility’s warehouse, and maintained the exterior and landscaping of the GEO building, inter alia.
 The complaint also includes violations of a federal law prohibiting Forced Labor, 18 U.S.C. § 1589:
5.  GEO or its agents also randomly selected six detainees per pod each day and forced them to clean the pods. In the handbook that GEO distributed to the detainees, GEO announced a “Housing Unit Sanitation” policy informing the people held at the facility that “[e]ach and every detainee must participate in the facility’s sanitation program.”
6. GEO or its agents forced Plaintiffs and other civil immigration detainees to clean the facility’s pods for no pay and under threat of solitary confinement as punishment for any refusal to work.
 And the complaint references Colorado Common Law prohibiting Unjust Enrichment.  In precise and riveting language the 21 page brief brilliantly lays out the legal problems with the private prison industry's business model.

 The attorneys who filed this lawsuit are Brandt Milstein, Boulder, CO; Andrew Turner, Denver, CO; Alexander Hood, Golden, CO; Hans Meyer, Denver, CO; and Andrew Free, Nashville, TN.

I have been filing FOIA requests on this topic for several years and Andrew Free is currently representing me in extricating additional material for use in a working paper that will be revised for publication next year in the Georgetown Immigration Law Journal.  For more research on related violations, please go here.

Wednesday, October 15, 2014

EOIR Refuses to Investigate Lying Adjudicator William Cassidy: DOJ Needs to Re-read Edward Coke




Edward Coke is the genius behind independent judicial review and thus the rule of law.  Familiar with the king's courts, Coke would recognize the immigration courts as a poor excuse for the real thing. (More at bottom)

New Filings in Lawsuit against EOIR for Bivens Remedy and Injunctive Relief

October 14, 2014, Case 1:12-cv-01352-ODE:





These are the most recent motions in the lawsuit I filed April 18, 2012 after receiving information proving that Atlanta's William Cassidy indeed ordered a guard over whom he had no legal authority to push me out of a building lobby where I was writing in my notebook.  Cassidy then lied about this in a formal response to his friend Gary Smith's sham investigation of my misconduct complaint.   (Immigration judges have no authority over building guards, so Cassidy and Smith decided to put together a record suggesting this never happened.)  

In Cassidy's sworn affidavit, produced after the guard confirmed Cassidy had ordered my removal, he no longer denies the order and is just silent on the event altogether.

A few highlights from discovery and filings not under any request for a protective order are: 

-The guard who initially accosted me admitted to the Paragon Security firm lawyers that Cassidy had told him to have me removed from the building;

-MaryBeth Keller, in charge of immigration judge misconduct investigations for EOIR, as soon as she received my formal complaint, called a meeting with the people whom Cassidy's pal Gary Smith was organizing to ban me from the immigration court to "avoid a right-hand/left-hand scenario," as she instructed in the email, and she assigned Smith to coordinate the sham investigation of my complaint. 

Even when confronted with clear evidence of Cassidy lying, and conceding that this was a concern, Keller is refusing to investigate at this point because of "litigation."  

Keller used to run EOIR's Office of General Counsel and her statement reflects the worst of professional ethics --one would think that especially someone who is employed by an agency of the Department of Justice would view verification of illegal conduct brought to the agency's attention by any means, especially a lawsuit, would be a reason for firing someone.  For Keller, it's a reason to sit on her hands.

It is a blight on the DOJ and the immigration courts that MaryBeth Keller is in charge of misconduct complaints; a cursory review of their incomplete release responsive to the lawsuit brought by AILA and Public Citizen shows she is running an operation that is largely toothless. Complaints take hundreds and even thousands of days between the date of the incidents and being closed.  If you want action, file your complaint against an IJ with the respective state bar and instruct them NOT to forward it to EOIR.  

Keller  is still a defendant in the lawsuit's claim for a Bivens remedy and injunctive relief; she, like Smith, are claiming that the job title "Assistant Chief Immigration Judge" gives them judicial immunity. Our filing yesterday explains why this position is ridiculous.  

-Gary Smith, who had spoken with Cassidy shortly after Cassidy ordered me pushed out of the building and presumably knew all along what happened, failed to obtain statements from the two eye-witnesses to Cassidy's order and exchange with me (Paragon guard Nathaniel Hayes and Cassidy's assistant), and did not acknowledge that other accounts contradicted the one Cassidy gave and backed up my account.  (Shortly after I filed my lawsuit Smith retired and is now living in Georgia; he also remains a defendant in the Bivens claim.)

-Frances Mooney said she also heard that Cassidy had ordered the guards to remove me from the building.  (Mooney was a defendant Judge Orinda Evans dropped from my lawsuit because my amended complaint didn't include enough details about her specific actions; that's too bad because the record shows she was using her KGB-like position of managing the immigration courts' building security and public affairs to try to ban me and admitted that the reason I was targeted for surveillance and banning was because of what I wrote.)

-Cynthia Long is still the court administrator in Atlanta.  A highlight was her claim that before I had ever set foot in that building she circulated an email to a bunch of folks in EOIR headquarters and all the staff and IJs in Atlanta announcing Mark Lyttle and I would be arriving and might try to observe hearings.  She acknowledged that "in the history of the world" she had never sent another such an email on the occasion of someone picking up a file.  And she acknowledged I was singled out for needing special permission to enter the immigration courts.

Long was also dismissed from the lawsuit because of lack of specificity in the First Amended Complaint but the email and deposition make it obvious she was involved in unlawful restrictions on my observing hearings throughout the entire time frame; the statements and actions of which her supervisors are well aware violate the regulations and the First Amendment. The Atlanta immigration court is an object of derision and, save the fact that Long used to work in Falls Church headquarters and is part of the crony culture there, her persistence in that position would be a mystery.

-Lauren Alder Reid, who runs the public affairs office under the supervision of Frances Mooney, is someone whom I rightly suspected also played a role in working to ban me from immigration courts.  I did not name her in my lawsuit because, unlike Cassidy, Smith, and Keller, she was the only one who turned over email responsive to my FOIA request before I filed the lawsuit and I was grateful to her for this. (This was before I was litigating under the FOIA statute.) 

Alder Reid's email gave me information I needed to file the complaint.  I think the reason she is the one who coughed up her email is that I had filed a misconduct complaint against her previously because she had been giving me the run around about the access policy for immigration courts and then when I finally FOIAd it and I learned she was the one the who wrote it I realized she'd been lying to me.  

Alder Reid claims that the OIG investigated my complaint and found it baseless; she said her source for this information was a telephone conversation with a man whose name she could not recall; I have a letter from OIG saying that they never conducted an investigation and referred my complaint back to EOIR, and I have a phone message recording on my answering machine I saved from EOIR saying the agency never investigated my complaint.

Alder Reid also claims that my misconduct complaint had nothing to do with her decision to turn over email and that this was just a result of her open and forthcoming habits. Based on releases in discovery I find this disingenuous.  Judge Evans denied the government's request for a protective order a while back but I'm not sure of the current status of some documents for which they have requested this since then and will wait before going into this further.

-Cassidy has withheld responsive email and also seems to prefer the phone to a digital trail.  But his pals sell him out:  immediately after hanging up, the folks with whom he speaks send emails to each other.  The picture that emerges is him coordinating with the court administrators Long and Ray Bethune to mask his hearings from me by not posting his dockets, or avoiding hearings when I'm around.  Again, his job security seems due to his longtime ties with folks in agency headquarters; other IJs have been forced out for less egregious actions.  One of the problems is that the misconduct complaints against him were for a long time handled by Smith and Keller, who were covering up violations much more egregious than those about which I was complaining.  

Finally, to Attorney Bruce Brown, for being such a smart guy and terrific attorney: Thank you!!!

 Coke was the Attorney General under Elizabeth and when he supervised the courts under James I he challenged the legality of a ruling in the King's court on behalf of James, and was fired.  But a few years later, from Parliament, Coke brought 23 corruption charges against his nemesis, the Royalist Francis Bacon, then Lord Chancellor (in charge of all courts).  The charges stuck and Bacon was fired and spent a brief time in the Tower of London.  Thomas Hobbes prepared Bacon's work for publication in the few years between the conviction and Bacon's death in 1626.  (I was just lecturing on Coke in my political theory class and was tickled to see my attorney Bruce Brown had referenced a decision by Coke in the motion below.)

Friday, October 10, 2014

More on the Government Illegals Running the Immigration Courts


Attorneys are filing complaints against the sadistic clowns showing up for work in black robes at the Atlanta and Dallas immigration courts.  Will the Executive Office of Immigration Review do something, or will MaryBeth Keller and her cronies in the Office of General Counsel continue with their typically fake investigations and cover-ups?  

Analysis of misconduct complaint management from FOIA releases and lawsuit shows agency malfeasance.  To be serious about housecleaning, the agency needs to fire MaryBeth Keller, EOIR's leadership in the Office of General Counsel, and bring in the GAO for audit

A solo practitioner on Wednesday lodged with the Executive Office of Immigration Review (EOIR) a misconduct complaint against Atlanta immigration court case manager Dan Pelletier because he denied at the last moment her unopposed motion for a continuance to accommodate her maternity leave, and then yelled at her in a crowded court for showing up with her infant daughter, ultimately rescheduling the hearing per her initial request.

Attorney Stacy Ehrisman-Mickle's motion for a continuance is copiously cited and also accompanied by a detailed report from her physician.

 Ehrisman-Mickle's wrote to EOIR, in part:
 My complaint is simple: the IJ denied my motion for continuance for a master calendar hearing because he believed that being on maternity leave is not “good cause”. My initial consultation with the relevant clients (juvenile brothers) was on July 8, 2014. Due to financial constraints, the boys did not hire me right away. They went to their first master calendar hearing unrepresented on September 2, 2014. The boys and their mother came to my office on September 6 - the Saturday after their first master calendar hearing. The clients hired me that day and did not care that I had to file a motion for continuance due to my maternity leave. On Monday, September 8, I mailed a motion to continue their second master calendar hearing scheduled for October 7, 2014. The court received the motion on Tuesday, September 9. Counsel for DHS did not oppose my motion. The IJ did not rule on the motion until Thursday, October 2. I received the decision denying the continuance on Friday, October 3. I appeared with my clients this morning at their scheduled master calendar hearing. I was forced to bring my weeks old daughter with me as day care centers do not accept infants less than 6 weeks of age and I have no family in Georgia that could help me look after my baby. My husband is a truck driver and was out of state today. My family is in Iowa and my husband’s family is in New York and New Jersey. We have only lived in Georgia since November of last year. When the IJ saw me with my daughter, he was outraged. He scolded me for being inappropriate for bringing her. He questioned the fact that day care centers do not accept infants less than 6 weeks of age. He then questioned my mothering skills as he commented how my pediatrician must be appalled that I am exposing my daughter to so many germs in court. He humiliated me in open court.
Ehrisman-Mickle told me that that the EOIR supervisor of the Atlanta courts, Elisa Sukkar, called and expressed her frustration that Pelletier failed to record the exchange and indicated this meant Ehrisman-Mickle had the presumption of accuracy in any dispute about the facts, though Sukkar also indicated she might need further evidence from the attorneys then present.

Dallas Case Manager Dietrich Sims Targeted for Removal
On Thursday I received an email through a listserve from Attorney Niloufar Khonsari.  She indicated her own recent grievance filed against Dallas immigration court case manager Dietrich Sims, and called for other attorneys to share with EOIR their complaints at this time as well.

Khonsari is asking that EOIR terminate Sims and is asking attorneys to forward their complaints against Sims to ACIJ Dee Nadkarni at:  eoir.ijconduct@usdoj.gov

To make sure they don't ignore your Sims complaint, you can also send a copy to Khonsari.  Her email address is -- nilou AT pangealegal.org.

Khonsari Complaint
Khonsari was concerned because Sims first denied her motion for a change of venue because he found her client prima facie ineligible for relief even before his first master calendar hearing (he is eligible for cancellation and asylum). And then, when her client had flown from San Jose to Dallas (he'd been picked up for "driving too closely" and then brought by Dallas police into ICE custody before being released on bond) case manager Sims failed to call the pro bono attorney, per the telephonic hearing to which he had previously agreed.

Such burdens are unwelcome for most firms and a serious obstacle to due process when imposed on already overburdened nonprofits representing indigent clients. Khonsari's complaint to EOIR, including complaints from local attorneys preferring anonymity to incurring further wrath from Sims, states in part:
 -“[H]e is erratic and unpredictable.” 
 -“[He] never grants COV – especially not to CA.” 
 -“He made one of my clients travel from New York City for more than two years worth of hearings…” 
 -“[He] denies most cases.” 
 -“Sims acts as a prosecutor, rather than judge, and invented requirements, such as proving a prima facie case for asylum as a prerequisite to changing venue, that exist in no statute, regulation, or case law.” 
 -“Please file a complaint with the chief immigration judge [against Judge Sims]!” 
- One attorney recently reported that IJ Sims denied a child-client a continuance and ordered a deportation after the child had been granted special immigrant juvenile status. In that case, IJ Sims claimed he had no jurisdiction over the child's adjustment application and sua sponte, ordered the child deported.
Misconduct Investigation Data
The feeling among attorneys is that EOIR's system of  misconduct investigations is a farce. And a preliminary analysis of data released so far backs them up.

Since late 2013, EOIR has been releasing immigration judge misconduct complaints and investigations in summary form, and, since April, 2014 many of the associated underlying complaints and findings.

There are several huge problems with the release to AILA, represented in their FOIA litigation by Public Citizen.  But even the release as doctored by EOIR reveals some interesting results.

Here are some observations based on a quick analysis of the first "200" of their release (really 197-- three inexplicably are missing) from a spreadsheet, produced by Northwestern undergraduates Sam Niiro and Adelina Pak and a crosstab spreadsheet produced by Sam Niiro by complaint source and ACIJ, for the outcomes.

Summarized below are some glaring problems that stuck out as my colleague Professor Heather Schoenfeld and I began assembling data for a more systematic analyses of the release, and press for more accurate reports.

-The number of days lapsed between the conduct and the case being closed are incompatible with any process of remediation. 
Highlights include a complaint submitted by an attorney requesting the ACIJ's assistance with a request for an IJ's recusal that ACIJ Sarah Burr dismissed for "failure to state a claim" after a mere 2,793 days.   This is an outlier but the median range of several hundred days is not much more comforting. Nor are the problems with Gary Smith's "investigations," leaving aside for now his coverup of my own misconduct complaint. For instance, the Board of Immigration Appeals sent Smith a complaint noting an "IJs written order denying R[espondent]'s motion to reopen accuses counsel of attempting fraud," and the next day Smith "dismissed" the complaint "because it cannot be substantiated."  (Emphasis added.)

Nor is it encouraging to note rare punitive decisions taken after the offending IJ has been deporting thousands more, as when, responsive to allegations an IJ "maligned and exhibited hostility towards complainant's law firm, its attorneys, and clients" and intervened in "civil state court adoption proceeding involving an alien child and parent." ACIJ Larry Dean suspended an IJ on October 15, 2012, 1,026 days after the complaint was received.

Dean likewise ignored a complaint that an "IJ prematurely ended the proceedings following a terse exchange and did not adequately evaluate the removal charge," a complaint brought by the BIA on June 9, 2009 for behavior on July 18, 2007 and closed on September 8, 2010 with the IJs retirement.

-Lame or no responses predominate
"Oral counseling" leads all categories of responses (73), and an additional 64 are dismissed because they are "unsubstantiated" (28, including the one above), "merits-related" (22), failure to state a claim (8), disproven (4), or frivolous (2).
15 cases close because the IJ retires.  These are not 15 separate IJs but include multiple complaints against the same IJ--the exact number is not clear because of EOIR coding mistakes, about which EOIR refuses to comment).

-Single IJ terminated over AILA Objections  (#126)
I was contacted by an active AILA attorney in 2010 who felt EOIR was using the complaint as a pretext to go after the IJ for her rulings.  Keller, who managed the investigations, assigned Smith to do the dirty work, even though this was not among the courts he supervised.  The IJ EOIR fired had the reputation of being more progressive.  (She was dismissed after "IJ alleged to have misused position and equipment to influence court action against her husband" and related charges based on assisting her husband with his own traffic case.)

This is all of course the tip of the black ice floe that is EOIR.  Ehrisman-Mickle and Khonsari are to be commended for standing up to these bullies and on behalf of  integrity of a system that is sorely lacking in it.

(The disturbing scope and character of the misconduct complaint misrepresentations in the data released under the supervision of MaryBeth Keller will be discussed at another date, and also the actions of her colleagues in the agency's Office of General Counsel.)



 
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