Does the Board of Immigration Appeals have the Authority to Solicit Amicus Briefs on Vague Policy Questions?

 

A few days ago the Board of Immigration Appeals posted a super confusing amicus invitation.  

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Some of my colleagues have identified the case behind the solicitation. But why the secrecy? How can "members of the public" weigh in on a case that the invitation declines to mention, especially when the question provides no information on the statute, regulation, or constitutional precedent(s) at stake?

This prompted me to wonder if there were any legal criteria or protocols to which the BIA was supposed to adhere when posing such questions. If so, what were they?

Down the rabbit hole 
Under current regulations, the only apparent authority for the Board to recognize amicus briefs is tied to briefs for "person[s]," not policy questions. 

§ 1292.1 Representation of others. 

(a) A person entitled to representation may be represented by any of the following.... 

(d) Amicus curiae. The Board may grant permission to appear, on a case-by-case basis, as amicus curiae, to an attorney or to an organization represented by an attorney, if the public interest will be served thereby.

A regulation authorizes amicus briefs for the benefit of a person. But nothing here references amicus curiae file a brief to support the Board's policy research.

"EOIR’s Board of Immigration Appeals Launches Pilot Program to Solicit Amicus Curiae Briefs"  -  The list of past solicitations of amicus briefs goas back to 2015.

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The Obama-era program  initiated a pilot project consistent with the ambit of the recent BIA solicitation. Its authority expired in 2016.  That said, an Interim Final Rule published in March, 2026 references the practice, but the practice itself has no independent authority. 

The Department also recognizes that, because these briefing procedures will apply when the Board has not summarily dismissed the case, such cases may present important or novel issues for the Board to resolve on appeal. Thus, this rule does not preclude the Board from exercising its expertise to determine whether to request or accept additional briefing to resolve the appeal. See8 CFR 1003.3(c) (“In its discretion, the Board may request supplemental briefing from the parties after the expiration of the briefing deadline.”); EOIR Policy Manual, pt. III, ch. 4.6(i) (last visited Jan. 30, 2026), https://www.justice.gov/​eoir/​reference-materials/​bia/​chapter-4/​6 [ https://perma.cc/​2QPY-HB5N] (discussing amicus curiae briefs); see also EOIR, Agency Invitations to File Amicus Briefs (Sept. 10, 2025), https://www.justice.gov/​eoir/​amicus-briefs [ https://perma.cc/​6R64-8GAM] (explaining that EOIR “occasionally invites members of the public to file amicus curiae briefs addressing issues of significance” and allowing members of the public to subscribe to receive such invitations).  

Is the incorporation of a protocol that expired in 2016 into an IFR enacted in March of 2026 sufficient to make it legal? No idea.  

Post-2016 authority? 
The authority for the recent solicitation is not tied to the 2026 IFR but to a regulation that itself does not authorize this practice.

The invitation states its authority as  EOIR Policy Manual, Part I: Introduction § 5.3(b)(6):

 (6) Amicus Curiae - An appearance as amicus curiae is not a request to represent a party before the Board.  Therefore, a Notice of Entry of Appearance Form is not required.  

The Board generally limits the appearance of amicus curiae to the filing of briefs.  See Part III, Chapter 3.6(i) (Amicus Curiae Briefs).  Amicus curiae may request an opportunity to present oral argument, but such requests are granted sparingly.  See Part III, Chapter 7.7(d)(5) (Supplemental briefs).  

A person or organization wishing to make an appearance as an amicus curiae must file a written request with the Clerk’s Office, preferably with a cover page labeled “REQUEST TO APPEAR AS AMICUS CURIAE.”  See Appendix A (Directory), Appendix D (Cover Pages).  That request should specify the name and alien registration number (“A number”) of the matter in which an amicus curiae wishes to appear and articulate why amicus curiae should be permitted to appear.  A brief should accompany the request to appear as amicus curiae.  If the Board grants the request, the parties will be provided an opportunity to respond.  See Part III, Chapter 3.6(h) (Reply Briefs), 3.6(i) (Amicus Curiae Briefs).  The( request and brief should be served on all parties to the proceedings.  See Part III, Chapter 2.2 (Service on the Opposing Party).

The Board may, at its discretion, acknowledge helpful amicus curiae brief(s) and contributors. 

Tunnel One - Chapter 3.6 (i), the first link, has no reference to any authority for soliciting a brief on a question generated by the Board of Immigration Appeals:

(i) Amicus Curiae Briefs

Amicus curiae briefs are subject to the same rules as parties’ briefs.  See Chapter 3.6 (Appeal Briefs), 3.7 (Briefing Deadlines).  The filing of multiple coordinated briefs from different amici that raise similar points is disfavored.  Rather, prospective amici should submit a joint brief along with the request to appear.  See generally Part I, Chapter 5.3(b)(6) (Amicus Curiae).  In addition, the Board may, at its discretion, acknowledge helpful amicus curiae brief(s) and contributors.

Nothing here that allows amicus briefs on behalf of "issues" and not "person[s."

Tunnel Two - Part III, Chapter 7.7(d)(5) (Supplemental briefs) - also no authority for BIA soliciting an amicus brief on a policy question:

  (5) Supplemental briefs - While the Board generally does not accept supplemental briefs, an exception is made for cases that have been granted oral argument.  Parties may submit supplemental briefs in anticipation of oral argument, but parties are not sent a supplementary briefing schedule.  Parties may submit supplemental briefs until 15 days prior to the date of oral argument.  Parties may reply to supplemental briefs up until 7 days prior to the date of oral argument.  Supplemental briefs should be directed to the Oral Argument Coordinator.  Supplemental briefs are subject to the same requirements as other briefs.  See generally Chapters 2 (Filing with the Board), 2.2 (Service), 3.6 (Appeal Briefs), 4.4 (Motion Briefs).  Amicus curiae are subject to the same supplemental briefing rules and limitations as the parties.  See generally Part I, Chapter 5.2(e) (Amicus Curiae); see also Part III, Chapter 3.6(i) (Amicus Curiae Briefs).  Supplemental briefs must be served on the opposing party as expeditiously as they are served on the Board. 

Again, nothing that allows amicus briefs on behalf of "issues."

Tunnel Three - Part III, Chapter 3.6(h) (Reply Briefs), 3.6(i) (Amicus Curiae Briefs).:

 (h) Reply Briefs

 (1)  Appeals of Immigration Judges’ decisions issued before March 9, 2026 - The Board does not normally accept briefs outside the time set in the briefing schedule, including any brief filed by the appealing party in reply to the response brief of the opposing party.  See subsection (f), above.

The Board may, in its discretion, consider an appealing party’s “reply brief” when the following conditions are met: (i) the brief is accompanied by a “MOTION TO ACCEPT REPLY BRIEF,” (ii) the motion is premised upon and asserts surprise at the assertions of the other party, (iii) the brief identifies and challenges the assertions of the other party, and (iv) the motion and brief are filed with the Board within 21 days of the filing of the other party’s brief.  The brief should comply generally with the rules for motions.  See Chapter 4.2 (Filing a Motion).  If the appeal was filed by a detained alien, see Chapter 3.7(a)(2) (Detained cases).

The Board will not suspend or delay adjudication of the appeal in anticipation of, or in response to, the filing of a reply brief.

(i) Amicus Curiae Briefs

Amicus curiae briefs are subject to the same rules as parties’ briefs.  See Chapter 3.6 (Appeal Briefs), 3.7 (Briefing Deadlines).  The filing of multiple coordinated briefs from different amici that raise similar points is disfavored.  Rather, prospective amici should submit a joint brief along with the request to appear.  See generally Part I, Chapter 5.3(b)(6) (Amicus Curiae).  In addition, the Board may, at its discretion, acknowledge helpful amicus curiae brief(s) and contributors.

So also no additional authority for inviting amicus briefs tied to a policy question and not a specific person.  

Why bother with any of this? 
Because the stakes are huge. Do we want executive agencies appropriating the prerogatives of the judiciary and declaring statutes unconstitutional?  Do we want the Department of Justice in particular to be doing this? What would this mean for the rule of law? If EOIR cannot follow its own internal rules, and if the BIA cannot form an intelligible legal question, do we really want the Board to be making constitutional decisions? Absent a concrete question tracking its own regulations, the only appropriate response to the BIA's solicitaiton appears to be rhetorical.  

 

 

 

 

Judge Orders Executive Office of Immigration Review to Produce Screenshots and other Requested Records, Fails to Find Fault When Agencies Blow Off Deadlines

Sharing the latest motions and order from FOIA litigation. Main takeaways from Northern Illinois Federal District Court Judge Matthew Kennelly's order of October 2, 2023: 

(1) Agencies cannot refuse to search records systems indicated by a requester without demonstrating the search is burdensome:

Federal agencies vary greatly in their size, mission, the type and amount of information they collect and generate, and their record-keeping practices. A request may be unreasonably burdensome for one agency but easy to satisfy for another. Stevens has argued that EOIR's limited role, combined with the manner in which it organizes its records, means that it could "easily" conduct a search of its "emails, case notes, scheduling, and case administration system . . . by the A- number and/or the name of the non-citizen." Pl.'s Resp. at 8. EOIR, on the other hand, has not argued or provided evidence that it could not do so. The Court therefore finds that EOIR did not make "a good faith effort" that was "reasonable in light of the request" when it searched for only the record of proceedings in response to the Silvestre, Archie, Hoang, and Charpentier requests. Rubman, 800 F.3d at 387. The Court orders EOIR to promptly conduct a good-faith and reasonable search for all remaining records specifically identified in the June 2021 Silvestre request, the August 2021 Archie request, the March 2022 Hoang request, and the August 2022 Charpentier request. 1:22-cv-05072 Document 53, 10/02/2, p. 11.

This order is basically just telling the Executive Office of Immigration Review to do its job.  EOIR for years has produced screenshots, calendars, and outputs from case management systems indicating adjournments without a need for a court order.  Whoever is handling EOIR's FOIA office for these requests decided to make life difficult for the folks who need these records, including a guy born in California and deported to Mexico, as well as the AUSA handling their case, the judge, my attorney Nicolette Glazer, and me.  Whoever is behind this waste of time deserves a performance review noting their stunning waste of agency resources.

(2)   Summary judgement granted - Customs and Border Protection must immediately produce records responsive to my request for information about insurance executive and fake nurse Rep. Lauren Underwood's (D-IL) biometric database bill written at the behest of a federal contractor, seemingly General Dynamics. (Click on Lauren Underwood tag below for more on her role in depriving Cook County's poorest residents the health care she hypocritically claims that she supports.)

(3)  Agencies disregarding FOIA deadlines will not receive adverse orders via summary judgment, according to Judge Kennelly. (A bunch of us in the transparency community find the precedents cited here bad law.)

Will update next week with motions.

Department of Justice to Immigration Court Administrators: Ignore Pereira

In June, 2018 the Supreme Court made it clear that the immigration courts were accepting putative and not bona fide NTAs.  Shortly thereafter, the Executive Office of Immigration Review (EOIR) says, okay, we'll stop doing this.  And then, in July, EOIR reverses course and tells the courts to accept charging documents that are legally deficient.

On June 21, 2018, the Supreme Court held: "A putative notice to appear that fails to designate the specific time or place of the noncitizen’s removal proceedings is not a 'notice to appear under section 1229(a),' and so does not trigger the stop-time rule" (p. 9).

Less than a week later, on June 27, the EOIR sent an email to court administrators stating: "Effective immediately, NTAs filed at the window that do not specify the time and place of the hearing should be rejected."

Then, on July 11, 2018, EOIR's Deputy Chief Immigration Judge Christoper Santoro, apparently at the behest of the Department of Justice, reversed this instruction, as well as the Supreme Court:

The Department has concluded that, even after Pereira, EOIR should accept Notices to Appear that do not contain the time and place of the hearing. Accordingly, effective immediately, courts should begin accepting TBD NTAs. 

The message above supersedes the guidance below. [The email then quotes the email linked above.]

An attorney told me recently that he was no longer going to appear in any immigration courts: "They're not real courts."  Monopoly money works just fine in the game of Monopoly and bogus NTAs are par for the course in fake courts.

Tenth Circuit Orders Immigrant in Turlock, California Deported in Absentia, No Proof of Service

First Inn of Colorado, where ICE in 2007 sent Notice of Detainer for U.S. Citizen Peter Guzman, who was in the custody of the Los Angeles County Jail and had never been to the inn 

I was just browsing through recent Tenth Circuit opinions this morning and bumped into an order of March 30, 2017 deporting a Mr. Prabhjot Singh because he could not meet his burden of proving that the Executive Office of Immigration Review (EOIR) did not through regular mail send him a notice of his hearing.

For most people reading this, the order seems innocuous enough.  A guy from India is apprehended in March, 2014 in Arizona by a border patrol agent for entering illegally, blows off his notice to appear in immigration court, and then claims he never received it.  But a closer review raises questions not just about his case but the larger due process problems of relying on self-serving boilerplate statements of protocol by EOIR staff for deporting people whose affidavits offer evidence to the contrary.

Singh was first detained in Arizona and then transferred to Utah, where, 15 days after his apprehension, he was released on a  $7,500 bond after giving the Department of Homeland Security (DHS) a new address in Turlock, California.  On August 7, 2014, Singh is deported by an unnamed Salt Lake City immigration judge in absentia.  The Board of Immigration Appeals denies his October appeal to reopen the case, including his sworn affidavit stating he never received the Notice to Appear.

The Tenth Circuit affirms:

The alien bears the “burden of demonstrating the claimed lack of notice.” Gurung v. Ashcroft, 371 F.3d 718, 722 (10th Cir. 2004)“The burden is not alight one.” Id. “Evidence that the notice of hearing was mailed to the alien [at his most recent address] raises a presumption of receipt.” Thongphilack v. Gonzales, 506 F.3d 1207, 1209 (10th Cir. 2007); see also Gurung, 371 F.3d at 721-22 (“A notice to appear is sufficient, both for due process and statutory purposes, if it is sent by regular mail to an alien’s contact address of record”; “the alien must overcome the presumption of due receipt raised by the evidence of mailing”). “The alien must support his motion to reopen with affidavits or other evidentiary materials in order to overcome the presumption of receipt.” Thongphilack, 506 F.3d at 1210. Deliberate ignorance is most convenient and most difficult to disprove. The presumption is, therefore, most appropriate. 

In his affidavit, Singh admits he gave the government the Turlock, California, address upon his release from custody on March 25, 2014. He also admits he resided at that address upon his release. Nevertheless, in the same affidavit, he alleges he did not receive notice of the August 7, 2014 hearing. But, as the BIA aptly said, such self-serving, conclusory statements are insufficient. Thongphilack, 506 F.3d at 1210; see also Gurung, 371 F.3d at 722; Sajidi v. Holder, 438 F. App’x 693, 695 (10th Cir. 2011) (unpublished)

I'm posting this because a few details prompt some head-scratching.  First, someone in the DHS and possibly the IJ -- the order does not say if there was a bond hearing -- in Salt Lake City, Utah trusted Mr. Singh enough to release him on bond.  This was before the November, 2014 implementation of prosecutorial discretion.  And even with this, as a recently arriving alien, Singh would be in the second priority group targeted for removal. (The Tenth Circuit order does not review the substantive merits of Singh's claim to remain, but these facts are consistent with him passing a credible fear interview as part of an asylum claim.)  If he's credible enough for bond and DHS is at best not appealing, why is the judiciary essentially second-guessing the credibility findings of DHS and asserting Singh is not credible enough to believe about receiving mail?  (The fact that he is affirmatively trying to make his case in immigration court and not fleeing is itself evidence of his good faith testimony that the Tenth Circuit simply ignores.)

Second,  on March 25, 2014 the Department of Homeland Security (DHS) had a new address for Mr. Singh in Turlock, California.  Assuming he was pro se, why didn't the DHS, which granted bond, file a motion to change venue to California?  Even if the notice of the August 7 hearing were received, it would have required Mr. Singh to return to Utah.

Third, what crazy prejudice on the part of our judges allows the government to falsely imprison or kidnap people -- capture and send them away regardless of potentially legitimate asylum claims -- for no reason other than that the person about to lose her liberty cannot prove a negative, i.e., the absence of a piece of mail?  If proof of service is required for Colorado Small Claims courts for damages of up to $7,500, then how can the Tenth Circuit find any due process in deporting people without the government bothering to show the U.S. Post Office certified delivery?  (Indeed, this is the position of the Ninth Circuit, as characterized in a 2008 BIA decision published on this point.)

Fourth, Executive Office of Immigration Review (EOIR) administrators make all sorts of mistakes all the time, including with their own address (!), and the same for ICE, including not only deporting U.S. citizens but sending U.S citizen Peter Guzman's detainer to a Colorado inn in the Tenth Circuit, even though he was in the custody of the Los Angeles County Jail and had never been to Colorado.  If the government cannot afford to pay for Certified Mail to ensure Mr. Singh has his day in (fake) immigration court, it cannot afford to deport Mr. Singh.

"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!

Guatemalan Locked Up for One Year to Win Right to Attorney in Deportation Proceedings

The docket information for a Guatemalan respondent who had appealed his deportation order based on his need for an attorney was recently released by the Executive Office of Immigration Review following FOIA litigation. The respondent also was released from custody, after being locked up for about a year.

The docket information on the case locator system used by the Executive Office of Immigration Review shows more evidence of the incompatibility of the deportation machine with the rule of law.  In January, 2012 the respondent requested an attorney and to be released from custody.  Unfortunately the respondent had the bad luck of  appearing before Sylvia Arrellano, who ignored his entreaty for a hearing on his asylum claims and ordered him deported to Guatemala.

The respondent in Matter of CB appealed and won, but it took a year.

As the docket shows, after the case was remanded in August, 2012.  Then it took more than a month before a new master calender hearing.  A new full hearing is scheduled for January, 2014, 2 years after the respondent was first taken into ICE custody.

The record here is not clear on the terms of release, if any.  UPDATE: sorry, worked on this late last night and just noticed that docket indicates the respondent has been released!  Somehow it took a year for this to happen.  The case was assigned to immigration judge Dana Marks in San Francisco. It's still unclear how this happened because  no new bond hearing is noted. The information here is consistent with a) the DHS unilaterally changing the terms of custody; b) poor record keeping.

Meanwhile, two Guatemalans committed suicide this spring at the nearby Eloy Detention Center.

For background on the FOIA litigation behind obtaining this, please go here.  Thanks again to Andrew Free of the Ozment Law Firm and Sam Niiro, Northwestern Class of 2016 and Deportation Research Clinic FOIA specialist.

Federal Judge Orders Top Immigration Court Officials Stand Trial for Civil Rights Violations, Orders Discovery

On June 4, 2013, Judge Orinda Evans, Northern District Court, Georgia, issued two orders in the cause of government transparency, in particular recognizing the rights of the public and the media to attend immigration hearings.  Judge Evans is granting my attorneys' motion to enter an amended complaint, one holding accountable in their individual capacities for monetary damages top officials at the Executive Office for Immigration Review.  And she opened discovery.

This order is relevant for anyone who has filed a misconduct complaint with the federal government and has preliminary evidence to suggest that supervisors assigned to investigate are trying to coverup and not reprimand misconduct by agency employees.

In the context of the EOIR, Judge Evans decisively swatted away the claims of judicial immunity:

For example, not only does Plaintiff allege her rights were violated by the decision, on the relevant days, to exclude her from the courtroom, but she also alleges due process violations and a civil conspiracy to cover up her removal and exclusion. Included in these counts are claims based on incomplete responses to her FOIA requests, and a claim that Keller and Smith, assistant chief immigration judges based at EOIR headquarters in Virginia, failed to properly investigate her administrative complaint. Surely. the government is not asking this Court to grant all executive officials who handle administrative complaints or FOIA requests absolute judicial immunity.

The government has fallen woefully short of its "burden of establishing the justification for such immunity." Roland, 19 F.3d at 555

  (This means that if a jury finds they violated my civil rights, these individuals pay the damages, not the taxpayers.)  Second, she granted our request to open discovery for four months.  On the first order Judge Evans granted the government's request to deny the Bivens claim against Cassidy based on his so-called "absolute judicial immunity." We will be appealing this after this part of the case has concluded on the grounds that immigration courts are not judicial.

(Most of the folks reading this blog will know this, but the background is that on April 19, 2010 I was unlawfully removed by force from the Atlanta immigration courts on order of a immigration judge, aka DOJ attorney.  William Cassidy, who has one of the highest rates of asylum denials in the country and draws complaints from numerous attorneys, deported U.S. citizen Mark Lyttle to Mexico and then was retaliating against me, in concert with his cronies in the Falls Church headquarters, for reporting on this.  His cronies then covered this up.)

Thanks so much to my attorneys Ray Lerer and Beth Taylor at Federal Hasson in Atlanta for their persistence and great work on these briefs.

Also, if anyone reading this has suggestions for discovery, either for specific documents or questions for depositions, please let me know, either by posting a comment here anonymously or by sending me an email, jacqueline-stevens AT northwestern.edu.

I have positive updates to report on the FOIA litigation as well, undertaken with Andrew Free of the Ozment Law Firm in Nashville, and will post on that next week, as well as on US citizens who have been recently detained and deported from Texas.