Atlanta IJs coordinating their rulings. Headquarters meddling in individual case orders. Atlanta IJs misquoting tax law
Yesterday I bumped into an email from "PBZ"* to Assistant Chief Immigration Judge (ACIJ) Gary Smith. It documents everything Atlanta practitioners knew but couldn't exactly prove: 1) The Atlanta IJs were coordinating their rulings; 2) EOIR headquarters is meddling in individual case orders; and 3) Atlanta IJs do not follow the law, and in fact cannot even quote it accurately. And correspondence from PBZ indicates that Board decisions depend on the staff attorney who writes them, not the Board members.This is from the AILA trove of IJ Misconduct Complaints obtained through FOIA litigation. My Northwestern colleagues and I are moving from our quantitative to qualitative analyses of the complaints. After reviewing the randomly selected complaints, I am now focusing on PBZ--distinguished for the number of complaints he drew.
PBZ is responding to ACIJ Smith passing on a complaint from the Board of Immigration Appeals (BIA). The BIA remanded because PBZ relied on government claims about IRS filings to issue an order finding the respondent lacked good moral character, without holding a hearing. Here's the email from the IJ EOIR coded as "PBZ," and whom I believe is J. Dan Pelletier:
To refresh your memory, 2 yrs ago, the IJ's in [redacted] had our legal clerk, [redacted] research this issue. After he researched it and gave us his opinion, Judge [redacted] wrote a decision on this issue and forwarded it to you for your revue before issuing it. (May have forwarded it through [redacted].) All [redacted] of the IJs in [redacted] took this position at that time. Each of us have received decisions from the Board upholding us on that finding. Please note I cited both IRS publications and Board cases.
Since there does not appear to be any reason for this referral, I cannot help but feel that this action may have been taken against me in retaliation for purusing an arbitration case against EOIR. (Email from PBZ to Gary Smith, November 24, 2009)
PBZ alleges that the reason his decision of October, 2008 was referred to Smith was harassment and speculates as to "[w]hether [a transcription error] was deliberate misconduct on the Board's behalf" (Complaint 69, p. 20).
Immigration Courts are not Judicial
We now have proof that adjudicators are collectively and categorically deciding orders for all their cases that by law mandates the use of discretion for individual relief. Furthermore, EOIR headquarters knows about this, facilitates this, and then lamely tries to cover this up. PBZ is effectively calling Smith out on being disingenuous. (To paraphrase, "Dude, WTF? You KNEW we are doing this because you signed off on it!")
MaryBeth Keller, who then and now supervises the IJ misconduct complaint process, saw these emails and ignored them.
You think the district court judges meet to decide that any defendant whom the government alleges has committed tax fraud automatically will be found guilty of unrelated charges without a trial? How about running a draft decision up the chain to see if an appellate court judge will like it? In fact, this is even worse: the adjudicators are running their decisions by the people who write their performance evaluations and set their pay.
Also, misconduct investigations for Article III judges typically are run by independent panels or commissions, for state and federal courts. But EOIR misconduct investigations are triggered by Board members and overseen by the adjudicators' supervisors. The actual process is identical with a review for any other bureaucracy trying to keep its field employees on track. When PBZ asks Smith, "do these responses go to the Board?" (Complaint 255, p. 26) he is wondering about how his response as an employee to a supervisor is going to affect how they treat his orders--his earlier correspondence indicates his belief that if, as an employee, he antagonizes the Board, then they will retaliate by remanding his orders and this could affect his reputation if not his salary.
(Pay for real judges is uniform, but EOIR adjudicators are unionized civil servants and their salaries are tied to seniority and performance.)
In short, in a few words of Complaint 42, PBZ has provided the smoking gun proving what many of us had put together from a number of sources and encounters: the immigration courts that are run by government attorneys are fancy offices for bureaucrats who dress up in black. When they meet and decide on a rule across all cases, they are making policy, not providing justice. Some of the government attorneys at other offices are incredibly smart, thoughtful, and judicious, but too many others are like PBZ and the colleagues he describes in Atlanta. (For another complaint against PBZ, Smith writes the wife of a detained respondent that PBZ's failure to comply with the Board remand for a bond was in Smith's discretion, and that it would be "inappropriate for me to intercede" in a matter before the immigration court (Complaint 161, p. 12).
IRS "Resident Alien" IS NOT the same as a "Legal Resident Alien" under Immigration Law
Finally, the decision rule on "resident aliens" PBZ is using is wrong. The respondent in this case appears to be a Gambian woman who was applying for discretionary relief and met the requirements for physical presence and the absence of a criminal record. She had filed for an Earned Income Tax Credit (EITC). PBZ misquoted the IRS rule, and pretermitted her claim for relief on the grounds that the EITC is available only to U.S. citizens or legal residents. In other words, PBZ incorrectly inferred the woman committed fraud, and used this to deny her claim for discretionary relief without a hearing.
The problem: PBZ spends so much time trying to deport people using immigration law that he is apparently blind too the actual text for other agencies. PBZ, claiming to quote the IRS from 596 ch. 1, rule 4 writes: "'You must be a U.S. citizen or a lawful resident alien all year.'" But the text itself says, "You must be a U.S. citizen or a resident alien all year."
The rule as quoted by PBZ:
Tax law uses a "Substantial Presence" definition of a resident alien that is not the one PBZ was using:
An alien individual is a resident alien if the individual meets the substantial presence test. An individual satisfies this test if he or she has been present in the United States on at least 183 days during a three year period that includes the current year.
Tax Credits. U.S. resident aliens generally claim tax credits and report tax payments, including withholding, using the same rules that apply to U.S. citizens. The following items are some of the credits you may be able to claim: child and dependent care credit, credit for the elderly and disabled, child tax credit, education credits, foreign tax credit, earned income credit, and adoption credit. For further information, see Form 1040 and its instructions.(Just to be on the safe side, I found the IRS publication 596, Rule 4 on resident aliens for 2008 and the language is identical.)
Finally, PBZ confirms that staff attorneys are behind the Board orders: "[O]n several occasions the Board has upheld my findings of lack of GMC [good moral character] for failure to file taxes. On other occasions they have found failure to file taxes insufficient to find lack of GMC. As we discussed, it just depends on what member (or perhaps more accurately, which staff attorney) happens to handle the case" (Complaint 69, p. 20, April 2010).
The upshot: Smith is gone, and so is Grace Sease, another Atlanta adjudicator and former INS attorney. But Keller, Pelletier and of course William Cassidy still remain. (My hunch is that he's the one who ran the draft IRS opinion by Smith.) Cassidy also is the guy who deported U.S. citizen Mark Lyttle and whom I am suing because he ordered guards to throw me out of the lobby of the Atlanta immmigration courts and then lied about it. When I filed my complaint about these events, of April 19, 2010, I also pointed out to Smith that Cassidy that morning had been categorically denying bond to respondents who had not submitted 10 years of IRS income tax forms. Smith found Cassidy only made individualized determinations. Too bad we didn't have this email when we were deposing him...
Federal District Court Judge Orinda Evans derailed the case, bestowing on Cassidy absolute judicial immunity. My attorneys Bruce Brown and Ray Lerer are presently working on our appeal.
*Narrative material from other complaints refers to PBZ as a former trial attorney in the same court where he was appointed an IJ. J. Dan Pelletier is the only IJ under the supervision of Smith who meets that criterion and was appointed in the time frame indicated; plus the content of the complaints match up with everything others and I have observed about Pelletier first-hand.
Other snippets of note from PBZ:
PBZ response to BIA referral, Complaint 302:
The Board remands, finding that PBZ mischaracterized the record and made inaccurate credibility findings about the Respondent's fear her daughters faced female genital mutiliation if they were to return to Mali, thus meeting the standard of "extreme hardship." In responding to the complaint, PBZ writes that he and others are on a "target list": "This remand to another Judge is patently transparent. I know for 'plausible deniability' you have to eschew any knowledge of a target list of Immigration Judges the Board is keeping an eye on and applying a different standard of review. Each of these baseless referrals from the Chairman of the Board is further evidence of such a list. I request each member of the Board be placed under oath before the OPR and asked whether any such list exists" (May 2010, p. 26)
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