Monday, November 22, 2010

Immigration Judge in Bed with DHS: Not Just a Metaphor

I received an email today from an immigration law practitioner in Colorado pointing out yet another strange understanding of justice on the part of the Executive Office of Immigration Review and the Department of Justice: hire an immigration judge who is married to a high-ranking Department of Homeland Security prosecutor in the ICE Denver field office, the same one where the newly appointed adjudicator was an assistant chief counsel.

Hard to understand how justice can be blind when the new Denver immigration judge Eileen Trujillo is not only a former DHS prosecutor but also married to the ICE Deputy Chief Counsel in Denver, Donald O'Hare.

Here's the message from the practitioner:

"Here in Denver, a new immigration judge has been hired and will begin taking cases in December 2010, Judge Eileen Trujillo. Although she may be an excellent judge, there is a major concern about her on the bench that EOIR seems to fully be ignoring. That is: She is married to the #2 in charge for the Department of Homeland Security, government counsel.

Yes, the incoming judge is sleeping with the boss of the government prosecutors and that is apparently not a conflict for EOIR. I don't know how, since it is one of the most transparent and visible conflicts in all of the law. Apparently all fears should be allayed by the verbal assertion by the new judge and her husband that they will not work on cases that are in front of each other. Huh? Impossible! He reviews ALL cases as a supervisor and her conflict can reach the whole bench here in Colorado.

The story remains to unfold--someone from EOIR's Chief Judge office is coming to speak to AILA here soon, but like I said, cases are already scheduled before the new judge. For all intents and purposes, immigration lawyers may be forced to one-by-one request the judge to recuse herself from their cases and face the wrath (by all sides) for their requests."

Sunday, November 21, 2010

Update on Law-breaking and Misconduct at the Atlanta Immigration Courts

The Executive Office of Immigration Review (EOIR) has been on notice for quite some time that its adjudicators have been obstructing access to the immigration courts in Atlanta and also destroying evidence of this.

This post
- publishes a recent misconduct complaint I submitted to the Department of Justice (DOJ) Office of the Inspector General (OIG) and the Office of Professional Responsibility (OPR), and the context for this;

- links to the Twitter account for Professor Vincent Lloyd, who has been attending hearings at the Atlanta Immigration Courts in the last few weeks; and

- reports information from respondents appearing in William Cassidy's court quoting him indicating his impending retirement, even though he is under the normal retirement age for federal employees.

Instead of forwarding the information about serious employee misconduct to the DOJ or the DOJ OPR as required by law (28 USC 0.29c(a) and (b)), longtime EOIR supervisor MaryBeth Keller, responsible in recent years for supervising misconduct investigations of immigration judges, has swept these under the rug, prioritizing agency face-saving over protecting the rights of indigent respondents.

The statute states:
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) Reporting to the Department’s Office of Professional Responsibility (DOJ-OPR).
Employees shall report to DOJ-OPR evidence and non-frivolous allegations of serious misconduct by Department attorneys that relate to the exercise of their authority to investigate, litigate, or provide legal advice.
According to EOIR data posted online, dozens of complaints were received that would appear to meet the level of providing evidence of serious misconduct by up to 88 immigration judges last year, but, according to reports I received from the OPR, no one from the EOIR passed these on to the OPR.

(Ms. Keller and other middle management bureaucrats supervising immigration courts have the job title "Assistant Chief Immigration Judge," another symptom of the EOIR's pomposity and opacity -- most of these individuals do not hold any hearings or issue opinions. Perhaps the more accurate title would be Assistant TO THE Chief Immigration Judge but such directness would be an agency anomaly.)

In a delightfully revealing comment during our June, 2010 conversation about the agency's cover-up of Atlanta adjudicator William Cassidy's misconduct, Ms. Keller said, in a sing-song voice a parent might use when catching a child in hide-and-seek, "I can hear you typing," interrupting her speech about the EOIR's new commitment to transparency. (I kid you not.)

In the event, in light of her and Acting Director Thomas Snow's prioritization of public relations over enforcing the rule of law, over the next few weeks I will be passing on information to the OIG and OPR myself, and sending these misconduct complaints to the respective state bar associations as well as posting them here.

Complaint 11/21/10
Exhibit A (cover letter on destroyed docket information)
Exhibit B (docket with missing cases)

The first misconduct complaint documents long-standing access problems at the Atlanta Immigration Courts, including my colleague Vincent Lloyd's recent encounter with adjudicator Wayne Houser. Mr. Houser told Dr. Lloyd that he could not attend an asylum hearing, but did not indicate the legal reason for this.

(As the complaint points out, EOIR rules indicate asylum hearings are open to the public unless the respondent requests a closed hearing; according to Professor Lloyd, Mr. Houser did not indicate that the respondent had requested a closed hearing.)

Professor Lloyd has been attending hearings in Atlanta during the last few weeks and will be episodically reporting in real time the dockets for each day, so that anyone interested in observing hearings for detained respondents in particular might be on notice to attend. (These are generally in the morning and at this point are for people being bussed in from Etowah, Alabama and northern Georgia; hearings for respondents locked up in Stewart are largely being handled by the adjudicators in that facility.)

Mr. Houser has an exceptionally high rate of denying asylum claims (83%, according to TRAC), meaning respondents are more at risk from him failing to follow due process--more likely if the hearings are held in secret--than from a foreign agent impersonating Professor Lloyd for the purpose of harming the respondent or her family (preventing this being the goal of the asylum rule on requesting closed hearings is to prevent this).

In the last couple of months I have received two independent reports from people who reported to a third party via telephone and email (forwarded to me), respectively, that Mr. Cassidy announced to respondents in October that he will be retiring at the end of November.

On hearing the first report, I contacted the EOIR and also sent an email to Mr. Cassidy informing them of this report and indicating that I was intending to publish this information and was requesting their comment. I also pointed out that it appeared that the only justification for this retirement would be if the EOIR had fired him.

(Federal employees typically must be 55 before they retire; however there is an exception, among others, for employees who are under 55 and have worked for the federal government at least 20 years, as is the case for Mr. Cassidy, and have an "involuntarily separation," typically following poor performance reviews.)

I received an unsigned reply from the EOIR instructing me to file a FOIA request--comical in light of the agency's frequent failure to reply to these--and no reply from Mr. Cassidy.

Professor Lloyd informed me that in recent weeks Mr. Cassidy was not listed as holding hearings on a few occasions when Professor Lloyd had stopped by and that there was no docket posted for Mr. Cassidy in Atlanta on Friday, November 19, though other adjudicators were holding hearings.

Why is the EOIR's Office of General Counsel persecuting immigration attorneys who prevail in the federal courts or otherwise embarrass the immigration judges? More on this to come.

Monday, November 8, 2010

Talk Wednesday at University of Chicago

The talk will discuss and respond to questions about the States Without Nations: Citizenship for Mortals. It is Wednesday, November 10 at 4:30 p.m., free and open to the public.

The Franke Institute for the Humanities
The University of Chicago
1100 East 57th Street, JRL S-118
Chicago, Illinois 60637

For more information, you can look here.

Other book news: the first review, by Elizabeth Cohen, appeared last month in the American Political Science Association's Perspectives on Politics.

Columbia University Press will be reissuing States Without Nations in paperback in the spring, 2011.
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