GEO Wants Taxpayers to Foot Bill for Private Prison Exploitation

GEO Execs Demand More Money
click image to enlarge

GEO and ICE communications about litigation linked below

In the last five years, seven class action lawsuits have been filed seeking damages and injunctive relief from private prisons that stand accused of forcing people to work in violation of several federal and state laws.  In letters obtain from FOIA litigation, we now know GEO is demanding taxpayers cover their fees and even damages.  The government, even Trump's government, so far is refusing.

The first lawsuit was filed in Denver in 2014 against GEO Corp.  Judge John Kane saw through GEO's whining captioned as a Motion to Dismiss and an especially overwrought Motion for Reconsideration and allowed two of the three charges to proceed.  Other judges did likewise and even allowed the minimum wage claims to go forward, the one charge Kane had sidelined.

In 2017, GEO told the Tenth Circuit appellate panel that if the class action lawsuit in Denver were allowed to proceed it would pose a "a potentially catastrophic risk to GEO's ability to honor its contracts with the federal government."  

GEO also told the Tenth Circuit panel that "the skeleton of this suit could potentially be refiled against privately operated facilities across the United States, causing GEO and other contractors to defend them even though GEO firmly believes that policies give the Plaintiffs no legal claim."  

In early 2018, the Tenth Circuit panel unanimously green-lighted the litigation. Apparently they were concerned more about the rule of law than GEO's profits.  

On January 11, 2019, the plaintiff attorneys sent out the following notice to up to 60,000 people held in the Aurora facility: "If you were detained at GEO’s Detention Facility in Aurora, Colorado between October 22, 2004 and October 22, 2014, please read this notice. A class action lawsuit
may affect your rights..." 

After six more lawsuits were filed against private prison firms for using those in their custody to do the work on federal contracts and had survived the motions to dismiss, I was curious about how the government was responding and filed a new request for documents.  

Here are a few highlights from the 4,015 pages obtained to date, pursuant to ongoing FOIA litigation.   

In a February 14, 2018 letter from GEO's Senior Vice President of Business Development to Acting Director Thomas Homan we learn:

1)  GEO has been begging ICE to intervene and support their exploitation of immigrants and U.S. citizens in their custody. "There is an urgent need for the federal government to particpate in the current and anticipated future litigation, as well as to justify and defend the programs and policies that ICE requires of its detention contractors."

2)  GEO thinks the U.S. taxpayers should reimburse GEO for their legal fees and damages.  Of the Colorado case, GEO writes: 

The legal discovery costs could total several millions of dollars and potential damages could be in the tens of millions.  Understandably, GEO would need to be reimbursed for all of the costs through an equitable adjustment request to ICE. To date, GEO has expended $1,615,000 in legal costs for which we seek an equitable adjustment.

GEO's letter also noted an additional $442,000 in fees for its defense against two lawsuits in Washington and new litigation and laws threatening their operations in California, including one requiring GEO to release information:  "The City of Adelanto has recently received multiple broad reqeusts for information about the Adelanto facility under this provision from the news againcy BuzzFeed and one individual." 

Apparently GEO does not want the public to become aware of its operations.  (Just guessing they won't be thrilled about our reading their correspondence about them not wanting us to read their correspondence.)
 

3)  Just a few months later, in May, 2018 GEO ups the estimate of legal fees alone to $15 to $20 million, and claims damages could be in the tens of millions. (This seems low to me.  GEO provides no basis for this estimate.)

4)  GEO hopes that by dramatizing a mutual enemy, Washington State's Attorney General, perhaps ICE, a.k.a. "U.S. taxpayers," will pay off GEO: "the State of Washington's suit is pursued by Washington's Attorney General, who has publicly boasted of his victories over the current Administration, including several regarding immigration."

5)  GEO continues to live in its own legal bubble and presses claims that several judges rejected when it made these claims to ICE in February 2018:  "Decades of precedents under the Fair Labor Standards Act have upheld the $1 per day allowance for detainee work, holding that detainees are not 'employees' of detention facilities and that minimum wage standards are inapplicable to detainees...Yet, GEO finds itself defending the agency and its policies against allegations of state minimum wage violations."   This is absurd on its face.

If courts for decades were upholding GEO's legal analysis, the lawsuits would have been thrown out and GEO wouldn't be begging ICE for money.  GEO's own summary of the litigation makes it clear that some courts in recent years are holding that GEO's organization of work by those in ICE custody could be an employer-employee relation.

About one per cent of class action employment lawsuits survive motions to dismiss and go to trial.  For these class action lawsuits against GEO and CoreCivic to have gone this far, it's pretty obvious the firms made some big mistakes and might now have to pay for them.  (The mainstream media has stayed away from in-depth coverage, a reflection and perpetuation of the legal illiteracy that advantages the fraudsters who wrangle massive government contracts amid egregious violations of federal laws and regulations.)  
 
There are several problems for GEO and CCA. One challenge is that the law GEO's Senior V.P. references in the letter, 8 USC 1555(d), says that the payments should be "at such rate as may be specified from time to time in the appropriation Act involved."  The last time Congress set a rate in its appropriations act was 1978.  That appropriations act expired in 1979 and was for "no more" than one dollar/day.  It also was in effect during a time frame when few people were in detention for more than a few days. 

Anyway, on the one hand, GEO is claiming that it is paying people in accordance with this (irrelevant, because long-expired) appropriations act.  

On the other hand, GEO clearly is not doing even this.  Internal email shows ICE attorneys very attentive to how GEO is using the labor of ICE residents as a mainstay for its operations, including by paying in some cases up to six dollars/day to insure GEO has the labor supply to meet its ICE committments.  

In an email of July 20, 2017, one official writes, "It is interesting that GEO is paying different rates at the facilities."  A colleague replies 20 minutes later, "I know! I'm really curious why they would pay more at Jena.  It is odd. (But good, I guess?  Then again, I hear commissary items are outrageosly expensive.  So, they probably just recoup it all that way.)"

In the end, ICE and the Solicitor General put the law and the taxpayers before GEO and CoreCivic.  On June 21, 2018 ICE denied all of GEO's requests for contract adjustments to cover their legal fees in this litigation. (It's on the last page.) ICE also declined to file as an intervenor and refused to defend the private prisons.  

An amicus brief filed on April 1, 2019 by the Solicitor General, "in support of neither party,"  affirmed the Trafficking Victims Protection Act analysis of the plaintiffs and the district court judge, i.e., holding that a for-profit prison is not categorically excluded from TVPA protections:

As the district court [in the seventh case, filed in Georgia] correctly recognized, there is no basis for reading this broad provision to categorically exclude from its coverage facilities operated by private entities that contract or subcontract to provide immigration detention services to the federal government, particularly in light of Congress’s repeated efforts to ensure that federal contractors do not provide goods and services to the government through reliance on forced labor.

It's the Trump administration and filed on April Fool's Day so I just checked again.  Trump's S.G. really says this.

The Georgia case against CoreCivic, the facility that held Mark Lyttle and is the subject of the above S.G. brief, makes no minimum wage claims.  The Eleventh Circuit appellate court has not yet issued its decision on whether the case  can proceed.  If it adheres to the analysis of the district court and the Solicitor General, the case should be ordered to proceed.  If it does, the outcome will hang on whether the CoreCivic can prove it was running the facility consistent with the Performance Based National Detention Standards.  (We know from independent audits and the Office of Inspector General reports that CoreCivic has flunked already.)  
 
Some folks reading this may be wondering about the policy implications.  It is becoming painfully clear that there is a fundamental contradiction between the rule of law and the operations necessary to regulate the movement of people across national boundaries.  

In light of this, a lot of Trumpists think it's fine to suspend with the rule of law, the thought being: do we really want to make it either more difficult or more expensive to exclude or remove those without legal authorization from the United States? If the cost of controlling the ancestry of U.S. residents means blowing off our labor laws, then so be it, runs this line of reasoning, with no small support from some bad U.S. Supreme Court decisions from the nineteenth century.

This response reflects the success of our kleptocratic leaders in controlling public discourse.  They encourage the assumption that the object of the game is arbitrary population controls and not our intellectual, political, and economic vitality.

The important questions are the ones the Republicans and the Democrats alike don't want us asking: if we want to deter from residing here people who drain the U.S. coffers and avoid paying taxes on their booty, then why aren't we deporting the Trump family, or for that matter the Pritzkers and the Crowns of Illinois, who for decades laundered funds illicitly funneled from government coffers to themselves in the guise of public spending, going back to war profiteering in the 1940s, and who continue this through bogus "philanthropic" gifts and tax deductions today?  

"Without justice, what are kingdoms but great robberies?" -St. Augustine, City of God, c. 380.

What are the marginal public benefits of a dollar spent on GEO holding a guy who wants to pick tomatos, and his children, compared to a buck spent on investigating General Dynamics Information Technology for anti-trust violations connected to their gobbling up of firms that handle databases for Homeland Security, including apparently one that lost track of migrant children?   

Is the giant sucking sound jobs shipped to China, or funds whisked into the offshore accounts of those turned into billionaires from padded federal contracts, and who fight on various fronts to insure our taxes will never be available for responsibly, not corruptly, designed and built high speed trains, Creative Commons licensing training (and the elimination of the Bayh Act), or public health investments?  

Do we really want to investigate fewer than 1,200 cases of tax evasion annually, down from 1,948 in 2010  and leave tens of billions on the table while spending scarce resources capturing and locking up hundreds of thousands of people who might actually assist the U.S economy and pay more taxes than the jailers who are exploiting them? A Department of Treasury report notes "a significant decrease in the Collection function’s staffing in recent years.  The number of revenue officers declined over 40 percent, from 4,068 at the end of FY 2010 to 2,425 as of June 2016."

The myth is that the one percent somehow earned their wealth through the miracle of capitalism.  Sure, a few did.  But most wealth is from intergenerational transfers and much of this is from assests or commodities acquired from the state and federal government.  The largest spender in the world is the U.S. federal government, and it spent about $1 trillion, including taxes from noncitizens, on some of the world's most toxic commodities, from cluster bombs to biometric databases to prisons.  The folks hauling in these billions run firms that buy or merge with their competition, and spend millions on making nice with the people who control the purse strings to not ask questions or to install those who they can insure will not.

Shouldn't we be taking care of the real vulnerabilities to the rule of law, i.e., the corruption of those managing our treasury and our jails, i.e., our resources and liberty, before worrying about the lineage of new arrivals, a population less likely to be convicted of any crimes if they cross borders instead of being born here?

"We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America." - Preamble, U.S. Constitution

Our wager as citizens is on a people defined solely by our desire to establish justice and further other principles, with no other criteria as to collective origins or fantasies thereof.  To the extent that ideas about ancestry and especially nationality favored by the identity politicians of the right and left crowd out these founding aspirations, they pose the real threats to the rule of law and hence the posterity of the founders.  Those arriving for the purpose of joining the  people of the U.S. Constitution are the posterity perfecting the rule of law and should be welcomed.  Any other decision-rules for admission or expulsion, especially hereditary, are distractions that are expensive and even lethal.

P.S. How this happened....

It's been just over ten years since June, 2009, when Mark Lyttle asked for help in obtaining what he said was $32 owed him by the Correction Corporation of America (CCA).  Mark had been working in the kitchen and had a midnight shift buffing floors at the Stewart Detention Facility in Lumpkin, Georgia.  CCA was paying him one dollar a day.

Mark, a U.S. citizen, in late 2008 was employed by a for-profit immigration jail.  The only difference between him and the janitor at the hospital down the road is that Mark was in the custody of his employer and was waiting for an immigration hearing. It's illegal for ICE to detain and deport U.S. citizens.  I was writing about that piece of his saga, and what it meant that William Cassidy, a federal attorney and hearing officer, a.k.a., immigration judge, could ship Mark to Mexico, lie about it, and still not be fired.    

I helped Mark find attorneys at the ACLU.  They filed a lawsuit for the detention and deportation.  No one followed up on the $32 CCA owed him.   

It bugged me.  I couldn't figure out why CCA thought they could pay him, or anyone who had not been convicted of a crime, one dollar per day, and not at least minimum wage.  (The 13th Amendment exampts from the prohibition against forced labor work performed as a condition of punishment.)

Thanks to the acumen of Andrew Free, who also handled the FOIA litigation crucial for obtaining documents for my research unwinding this, the class action lawsuits against the private prison firms for work programs along the lines of what Mark described to me rolled out nationwide. 

I am now also indebted to attorney Nicolette Glazer, who has stepped in to help out with the FOIA litigation, including the winding down of the prison contract litigation Andrew filed in 2014, which is still ongoing.  

Here's a link to a law review note updating the litigation last year.   

Eleventh Circuit Appellate Panel Hears Oral Argument on IJ Who Tossed Professor out of Building

Attorney Bruce Brown

On Tuesday, June 27 I had the honor of observing my attorney Bruce Brown present an oral argument on Stevens v. the Attorney General before a panel of three Eleventh Circuit judges in the Atlanta Appellate Court building on Forsyth St., a million miles from the arc of the moral universe that bottoms out at 180 Spring St., SW, the home of Atlanta's immigration courts, though just a few seconds distant as the crow flies.

You can stream or download the 39 minute hearing.  Attorney Ray Lerer, who has been with me in this since 2012, was in the second chair.  I am incredibly grateful to both of them.

The backstory is that over seven years ago a cranky and duplicitous INS prosecutor hired by the Executive Office of Immigration Review (EOIR) to wear a black robe and rubber stamp removal orders, closed a hearing improperly and then 20 minutes after I had left the courtroom ordered guards to remove me from the building.  I filed a misconduct complaint.  William Cassidy, the attorney-in-the-robe, then colluded with his friend and the guy supervising the investigation, Gary Smith, and claimed that Cassidy never ordered me removed from the building.  This cover-up was in the official letter closing my complaint in June, 2010, a few months after I was thrown out.

Next I filed a request under the Freedom of Information Act and obtained a contemporaneous transcript of the Paragon Security Guard Nathaniel Hayes telling the Battle Creek MegaCenter Operator that he threw me out because "the judge" told him to and that he had no idea what was going on until after he returned and learned EOIR was trying to ban me from immigration hearings.

Then I filed a pro se Complaint and a few months later the law firm of Keegan Federal (the Federal Firm) stepped in.

From left to right, Atlanta City Attorney Jeremy Berry (foreground), Ray Lerer, Bruce Brown after hearing

Through discovery we learned that EOIR's general counsel contacted the agency that handles federal building security to keep me out.  DHS informed EOIR that they couldn't just ban someone but first would need a policy. EOIR couldn't openly say "people critical of IJs and EOIR cannot enter immigration courts" and dropped the matter.

That said, Cassidy recently said as much to law students from Emory Law School who, with the Southern Poverty Law Center, released a letter they sent to the Executive Office of Immigration Review (EOIR) a few months ago about the ridiculous nonsense that passes as law in the Atlanta immigration courts:

The investigation found that during a hearing where Judge William Cassidy rejected a request for bond, he compared an immigrant to “a person coming to your home in a Halloween mask, waving a knife dripping with blood.” In a private conversation after a case, Cassidy told an observer for the project that the United States should be more like Russia, noting that “if you come to America, you must speak English.” Cassidy also said his cases involve people “trying to scam the system” and that none of them want to be citizens.

 The Emory Law School/SPLC letter to EOIR Director Juan Osuna states:

IJ Cassidy described why he sometimes did not permit observers in his court, although Immigration Court proceedings are open to the public. IJ Cassidy expressed dismay about “reporters who write all sorts of things about me.”

He continued: “I just follow the law. When you have an uninvited guest in your home, what do you do? You have to tell them to leave.”  IJ Cassidy then provided explanations for comments made during the proceedings. He promised the observer, “let me know if you want to clerk for us. Petition for it and I will put in a good word for you.” 

One observer noted in a later proceeding that IJ Cassidy glanced at him when he spoke harshly to a witness before apologizing and stating, “I did not intend to be abrupt.” In their conversation after the hearing, the observer reported that IJ Cassidy asked whether the observer thought he was “mean or harsh” in his ruling. He sought to explain to another observer why he ruled the way he did and then asked how the observers would use the information they have gathered. 

The panel on Tuesday -- a Reagan appointee, an Obama appointee who was a former public defender, and an Obama appointee who was a former prosecutor -- appeared to have decided in advance that the case would hang on whether or not immigration judges have absolute judicial immunity based on case law conferring an "inherent judicial function" to a penumbra of actions for real judges or Administrative Law Judges employed under the Administrative Procedures Act.

A sad coda to all this is that MaryBeth Keller, who was the person who coordinated the investigation of my complaint by first convening a meeting with the people trying to ban me to "avoid a right hand/left hand" situation, to quote from her email in 2010, and who squashed numerous misconduct investigations under her supervision by officially categorizing complaints as "frivolous" despite her own notes indicating they were not--including allegations of bribery at the Dallas immigration court-- and should have been fired for this many times, was promoted by the Obama administration to Chief Immigration Judge.

Atlanta's "Immigration Courts": Where Judge Judy might end up after she retires from her reality TV show

Here's the wonky history informing our argument that Immigration "Judge" William Cassidy has more in common with Judge Judy than he does with any of the judges in the Forsyth building.

As you'll see, both the phrases "immigration judge" and "immigration court" are created by agency via housekeeping rules with no review and no claim to map onto any underlying functions that are either those of courts (which must maintain independent records), nor recognizably judicial.

1.  In 1950, the Supreme Court in Wong Sang v. McGrath, Attorney General, ruled that a deportation order was unconstitutional because the "special inquiry officer" ordering the removal was not employed nor the hearings conducted under the Administrative Procedures Act:

But if hearings are to be had before employees whose responsibility and authority derives from a lesser source, they must be examiners whose independence and tenure are so guarded by the Act as to give the assurances of neutrality which Congress thought would guarantee the impartiality of the administrative process. We find no basis in the purposes, history or text of this Act for judicially declaring an exemption in favor of deportation proceedings from the procedural safeguards enacted for general application to administrative agencies. We hold that deportation proceedings must conform to the requirements of the Administrative Procedure Act if resulting orders are to have validity. Since the proceeding in the case before us did not comply with these requirements, we sustain the writ of habeas corpus and direct release of the prisoner.")

2.  A couple months later, in a Senate Appropriations Hearing, the Supreme Court mandate is discussed.  Only economic considerations are taken into account and the Appropriations Act includes a proviso that explicitly mandates immigration hearings be conducted outside the provisions of the Administrative Procedures Act.

from 1950 Appropriations Hearing

EFFECT OF SUPREME COURT DECISION INVALIDATING DEPORTATION PROCEDURES 

Senator McCARRAN. The committee has just one other question here. In regard to the 1951 appropriation, what will be the effect of the Supreme Court decision in the case of Sung v. U. S., wherein they invalidated the system previously used by the Immigration Service, in having the same inspector act as both the investigative officer and the hearing officer at deportation proceedings? What have you to say to that? 

Mr. MILLER. We have an estimate before the Bureau of the Budget at the present moment, which involves something like $25,000,000 of this sum of about $20,000,000 is for the cost of conducting hearings on the southern frontier and $5,000,000 for other types of cases. One very perplexing phase of that is the necessity, upon application, to get such hearings under the APA Act. 

The Mexicans they apprehend are returned to Mexico. There were over 232,000 Mexicans apprehended in the first 6 months of this fiscal year. They were not all different persons because there are some repeats, of course. That means a half million a year. Right now they are demanding and receiving hearings under 19 (c) suspension of deportation on the ground of economic detriment to American-born children or American spouses, for example. That discretionary relief was, of course, granted and approved by Congress. 

It might in one single instance fix the status in this country of maybe a husband and wife and maybe 12 children, with just 1 of them having been born in this country, usually very shortly after arrival. If we have to give hearings under the Administrative ProcedureAct, and a number of attorneys along the border, I think quite properly, legitimately, are applying for recognition to practice before our service, I think it is going to be a terrific problem. It might possibly cost $150,000,000. 

Probably in 10 years we could give hearings to a half million applicants, we will say. But we will possibly have a million next year and following years. That problem is increasing from a trickle of 10,000 in the last 10 years to this figure that I have just given you. 

Mr. Chairman, may I ask a question about another matter?

Senator MCCARRAN. Yes.

That's the entire Congressional response to the Supreme Court in Sung.

"Justice?
Expensive.
Next item!"

Here's the language in the Supplemental Appropriations Act passed shortly after the above exchange, in which Congress uses ye olde Plenary Authority:

GENERAL PROVISIONS-DEPARTMENT OF JUSTICE

Proceedings under law relating to the exclusion or expulsion of aliens shall hereafter be without regard to the provisions of sections 5, 7,and 8 of the Administrative Procedure Act (5 . S. C. 1004, 1006, 1007).

One sentence.  Not much longer than "screw you" and not much different. No due process rights for aliens, or U.S. citizens profiled as such.  

3.  As far as open hearings: the hearings before Special Inquiry Officers were not explicitly required to be open to the public until 1965, when the Department of Justice approved a rule change revising 8 CFR 2.16 in language that largely tracks that of the current 8 CFR 1003.27.

4.  1973: Here Come the "Judge"   -  Another federal rule change allowed for "immigration judge" to be used interchangeably with "special inquiry officer," but without one single substantive change in functions, as emphasized by the fact that a formal, public rule change procedure was not followed.

CHAPTER I-IMMIGRATION AND NATURALIZATION SERVICE,

DEPARTMENT OF JUSTICE

PART I-DEFINITIONS

Immigration Judge

Pursuant to 5 U.S.C. 552 and the authority contained in 8 U.S.C. 1103 and 8 CFR 2.1, part 1 of chapter I of title 8 of the Code of Federal Regulations, as hereinafter set forth, Is amended to provide that the terms "immigration judge" and "special inquiry officer" may be used interchangeably.

Section 1.1 is amended by adding at the end thereof a new paragraph (1) to read as follows: § 1.1 Definitions 

(1) The term "immigration judge" means special inquiry officer and may be used interchangeably with the term special inquiry officer wherever it appears in this chapter.

Compliance with the. provisions of 5 U.S.C. 553 (80 Stat. 383) as to notice of proposed rulemaking and delayed effective date is unnecessary in, this instance and would serve no useful purpose because the amendment to § 1.1 relates to a rule of agency organization.

5.  1983  Executive Office of Immigration Review is created.  Again, no formal rule-making process occurs.  It should be noted that through this time period, there are no "immigration courts," only "reviews" and "proceedings."

6.  1987  EOIR makes substantive changes to regulations, including removing the language added in 1965 to require the special inquiry officers to follow the Federal Rules of Civil Procedure whenever possible.

7.  1995 EOIR waves a magic wand and creates "immigration courts," but, like the name change to "immigration judges," provides zero substantive changes.

This final rule amends 8 CFR 3, 103, 204, 208, 212, 236, 240, 242, 245, and 292 by replacing the tribunal name "Office of the Immigration Judge" with the tribunal name "Immigration Court." This rule codifies current usage of the term "Immigration Court" in reference to deportation and exclusion proceedings conducted before Immigration Judges throughout the United States. The rule makes no substantive changes in Immigration Judge proceedings.

EFFECTIVE DATE: This final rule is effective on June 30, 1995 except that the amendment to Sec. 242.1(a) as revised at 59 FR 42414, August 17, 1994, is effective August 17, 1995.

SUPPLEMENTARY INFORMATION: The final rule is a nomenclature change. The rule changes the name of the administrative tribunal which initially hears deportation and exclusion proceedings from "Office of the Immigration Judge" to "Immigration Court."

 So first the agency invents the "immigration judge" and then, inspired by its own fiction, decides if there is a judge, there must be a court!

In the interests of truth in advertising, at the beginning of each hearing the IJs should be forced to make the following announcement: "Just to be clear, this [motions to the dais and seal] is only a 'court' in nomenclature.  And the title?  Some DOJ colleagues made it up a few decades ago without telling anyone first.  The robe?  Do you have any idea how much laundry I avoid with this?  And that nonsense about 'the whole truth and nothing but the truth?'  Hah!  The truth is that there are no independent records created, as would be required for a real court.  I get to create the record all by myself when I push this record button on and off, as the regulation authorizes."

The Weeds
The District Court dismissed my case because EOIR does not make these statements but ignores the statutes and regulations and pretends these are real courts and judges.  District Court Judge Orinda Evans was tricked by this and granted Cassidy absolute judicial immunity, claiming that since real judges can order guards around based on "inherent judicial functions," so, too, can Cassidy.

The ruling fails to grapple with basic tenets of statutory construction: Congress has spoken very clearly and specifically on the authority available immigration judges.  Unlike Article I courts, i.e., courts of record Congress created and to whom they gave contempt authority and authority over the U.S. marshals, and unlike Article III judges, Congress has deliberately restricted IJ contempt authority to civil fines, which the Attorney General has not implemented.  Congress also has limited the independence of IJs, whose decisions may be fashioned at the behest of the Attorney General, to whom they report and who controls their salaries.  (During the hearing Judge Williams pointed out that Cassidy ordering the guards to push me out after talking with headquarters would not occur under the APA.)

As to the question of what IJs should do if there are disturbances: there are thousands of federal employees across the country who make decisions in tense situations and disappoint petitioners, taxpayers, and other citizens every day: they and anyone else feeling unsafe in a federal building may alert a guard.  Either the guard encounters the disturbance in real time and makes an arrest or intervention based on reasonable suspicion of a crime, or an arrest report or request for a restraining order is created.  You don't need to give everyone who works in a federal building absolute judicial immunity in order to maintain order.  Judge Williams came pretty close to stating a version of this in her questioning of the government's attorney, Chris Hollis.  And of course all immigration proceedings throughout the country are in spaces accessible only after passing through a metal detector.

We are not challenging the Constitutionality of IJs to close hearings (though I would like to), but rather making the claim that since the regulation makes the hearings presumptively public, the IJ can't close them because a critic is present.  8 CFR 1003.27 is a federal regulation titled "Public Access to Hearings." The first phrase states, "All hearings, other than exclusion hearings, shall be open to the public." It also gives the immigration judge discretion to close them.

This regulation is similar to any other administrative or legislative body that opens its proceedings to public scrutiny as a matter of course. The First Amendment claim is not whether the discretion afforded EOIR in regulating access is too broad, but whether in implementing this discretion, EOIR employees, including immigration judges, court staff, and agency supervisors, can exclude people because of viewpoint. The First Amendment case law on this is clear that they may not.  (Our record is overflowing with examples of my being tracked and singled out because, as Fran Mooney, in charge of Public Affairs and Building Security put it in the depositions, "she is very critical" of the agency.  (You can find my six articles published in The Nation between 2008-10 here.)

Under our Constitution, proceedings that are generally open to the public may on occasion be closed without turning this discretion into an excuse for subverting public access for unconstitutional reasons. For instance, as we have recently seen, Congress's Judiciary Committee largely meets in public, but on occasion it has closed sessions. Congressional office halls and lobbies are generally open to the public, but some portions are not. And libraries are generally open to the public, but on a schedule determined by library staff, funds permitting.

None of these discretionary restrictions are inconsistent with a government policy requiring access, unless the discretion is based on viewpoint. If the library posts its hours are 9-5 and a librarian, on seeing someone whose religious views he deplores approach and locks the doors, this is no more legal than what EOIR, including Cassidy, did in hiding hearings from me and ordering me pushed out of the building.

Finally, every morning dozens of U.S. citizens show up at immigration courts around the country, don their black robes, and despite and not because of these laws and regulations, adhere to norms of due process and deliver justice as best they can.  Their integrity and fairness redeem our institutions and their character, but do not change the underlying deformities of their supervisors and the agency that cuts their check.

The panel should issue its decision in a few months.  

"PBZ" (aka J. Dan Pelletier?) Reveals Atlanta IJs WERE Using Boilerplate [And Incorrect] IRS Analyses

 
From article on the Court of the Star Chamber.

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)

These few lines, from Complaint 42, completely blows the cover for any pretense of judicial integrity or the judicial independence of immigration courts.  First, the IJs in Atlanta had together decided to use perceived IRS violations as grounds for categorically inferring poor moral character for all cases before them. Second, their decisions in individual cases are being vetted through an agency supervisor. And third, PBZ is just wrong about tax law!

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. 

Further clarifying, in a different document, the IRS states:

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)

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

1614 portrait by Gilbert Jackson

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:

Plaintiff's Motion for Partial Summary Judgment (6 pages)

Memorandum of Points and Authorities in Support of Plaintiff's Motion for Partial Summary Judgment (38 pages)

Plaintiff's Statement of Material Facts as to which there is no Genuine Issue to be Tried (24 pages)

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.)

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.)

Thanks to Tom Fritzon for the art!