Lawless Courts | The Nation


Lawless Courts

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One day in April, J. Dan Pelletier, a government adjudicator, faces a video camera in an Atlanta immigration court. At the same moment, in a Stewart Detention Center mini-court in the Georgia hinterland, two dozen men in orange and blue jumpsuits seated behind a low rail are watching Pelletier on a monitor wheeled in front of a vacant dais. Pelletier addresses the men brusquely: "I have been told each of you has admitted the allegations and conceded removability back to your home country. Is there anybody in this group that does not want an order of removal to their home country?"

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Jacqueline Stevens
Jacqueline Stevens is a professor in the political science department at Northwestern University. Her most recent book...

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Giving the men no time for comprehension or to summon the courage to reply, Pelletier pushes on, ignoring the rule requiring him to ascertain whether each individual is abandoning a claim to remain in the United States. The interpreter, also in Atlanta, repeats in Spanish, "Nobody said anything. Does each one accept this? Please respond in the affirmative." The men sit there, mute, befuddled, watching the cranky old man like they might watch any other bad TV. The Department of Homeland Security (DHS) prosecutor sits quietly in front of the rail.

Pelletier says, "I'm asking each of you to please respond orally." A few say yes or in a tone bespeaking a desire to end their confinement and stop the badgering. Many say nothing. No one has a lawyer.

Pelletier, who has the job title "immigration judge" but is employed by the Justice Department and not the judiciary, says, "If you object, say something. If you remain silent I will issue the order in each case."

Immigration court rules state, "It would offend due process if the immigration judge obtains from the group a 'mass silent waiver of the right of appeal.'" Nonetheless, Pelletier says, "I will take their silence as a waiver of their right to appeal, and I will issue an order," deporting the men en masse. Guards usher them to the hall, but four men are agitated and lag behind. "Hey," says one, "I thought we were going to talk to the judge!" Too late, a guard says, and orders them into the hall. One obeys. The DHS prosecutor notices the commotion, and at my prompting, she requests that Pelletier reopen the cases of the three still there.

Victor, 24, has been in the United States lawfully since arriving from Guatemala when he was 3. (Immigration and Customs Enforcement, or ICE, targeted him because of a seven-month misdemeanor marijuana conviction.) The DHS attorney looks through his file and tells Pelletier that Victor's mother probably included him as a dependent on her asylum application. Pelletier says he is "not comfortable" issuing an order against him, adding, "You may have an unadjusted status," meaning that Victor can apply for legal residency and be free pending a final decision.

This is Victor's big break, his reward for fighting for a hearing. Victor, however, confused by Pelletier's expression of discomfort and irritated demeanor, to say nothing of the legal gobbledegook, says, "I'll take the removal because my daughter [a 2-year-old US citizen] needs my help, and I cannot do it behind bars." Suddenly Victor is heading to Guatemala, a country he hasn't seen since infancy.

Pelletier and his colleagues are able to run roughshod over the rights of US residents because the agency that runs immigration hearings, the pompous and obscurely titled Executive Office of Immigration Review (EOIR), headquartered in Falls Church, Virginia, is a paranoid bureaucratic backwater that shields immigration judges from accountability. As long as adjudicators process a high volume of cases, the agency will ignore and even cover up serious misconduct, including deportations of US citizens or people who have other avenues of relief. One immigration judge told me, "I'm afraid there's a premium on quotas and productivity, and not the truth."

* * *

The vast number of cases handled by Pelletier and William Cassidy, another Atlanta adjudicator, has made them into agency superstars. In 2008, 83 percent of the respondents held in Georgia's Stewart Detention Center were ordered deported, virtually all by Cassidy and Pelletier, compared with 72 percent nationwide. Glenn Fogle, an Atlanta immigration attorney, says of the ICE and EOIR operation at Stewart, "They're basically a deportation machine, trying to use the discretion of the judge, who's not following the law but making his own law."

Fogle expresses frustration that Pelletier, Cassidy and a third Atlanta adjudicator, Grace Sease, are all former DHS attorneys. "They're your archenemies for fifteen years and now they're the judge," he says. A new hire at the Stewart court also comes from ICE.

The disregard for due process in Georgia, which has the country's third-largest docket and respondents from across the country, is a national catastrophe—although the effects are personal to Logan Guzman, a 3-year-old who for more than a year has missed the affection of his father, Pedro, because Cassidy is resisting a recommendation from the Board of Immigration Appeals to grant Pedro bond based on his close ties to US citizens. (Cassidy turned this around, ruling that these close ties would make Pedro a flight risk and held him even though Guzman had a slam-dunk case on the merits.) Fogle, Guzman's attorney, says, "That's the logic of someone who wants to keep somebody in jail no matter what, to make them give up on their case and leave. That's this whole system, not just [Cassidy]. It's a strategy used by the DHS. You don't give someone a bond or give them a high bond, and they'll give up on their case and just leave."

Some adjudicators, relying on "stipulated removal orders," are deporting people without even seeing them. According to Rachel Rosenbloom, a professor at Northeastern Law School, an immigration judge who insists on "thoroughly questioning" people who sign these orders "regularly encounters US citizens." Rosenbloom adds, "There are many judges who don't question people, and it's very likely there's going to be US citizens among those people as well, and they're not being [identified]." (The EOIR statistics on the citizenship of respondents in immigration courts come from DHS filings, not the adjudicator decisions. As a result, even though thousands of citizens have been in deportation proceedings, the official EOIR number is zero.)

The country's 238 adjudicators in fifty-nine immigration courts rule on everything from asylum applications to whether a marijuana conviction warrants deportation. Many, especially the good ones, are burned out from their share of the massive annual caseload: 390,000 cases were initiated across the country in 2009. The laws, regulations and infrastructure are inadequate to the high stakes of prolonged incarceration or banishment. Dana Marks, leader of the immigration judge union—which has been pushing Congress for more personnel and logistical support, and independence from the Justice Department—says, "We're doing death penalty cases in traffic court settings." Marks's union presidency exempts her from the agency's ban on its employees' speaking to the media.

The rot at the core of many immigration proceedings, especially in detention centers, where 50 percent of all hearings were held in 2009, up from 30 percent in 2005, deprives the public of confidence that the hundreds of thousands of people being kicked out are genuinely deportable. The Boston College Post-Deportation and Human Rights Project receives inquiries from people worldwide and has identified dozens of US residents unlawfully shipped back to their countries of origin. The group is joining other advocates in pressing for legal changes to allow former US residents to reopen their cases from abroad.

The Post-Deportation Project, formerly known as Ruby Slippers, has an office in Zacualpa, Guatemala, and is establishing points of contact in the Azores and Ecuador for research and legal assistance. Referring to the thousands of unlawful deportations, co-director Daniel Kanstroom, a Boston College law professor, says, "We're only limited by the number of lawyers we can hire."

The underlying problems go back to the Clinton administration's support of the bad 1996 immigration law and bad adjudicators. In 1999 John Zastrow, employed as an adjudicator since 1983, deported Johann Francis, a US citizen, from the Eloy Detention Center in Arizona to Jamaica. It took Francis ten years to return. (Following a 1998 teenage brawl, Francis, then 19, completed a six-month sentence at an Oregon boot camp. The day of his release, without warning, he was picked up by immigration agents and shipped to Eloy.)

According to Francis's file, an agent at Eloy filled out a "Request for a Prompt Removal," but Francis never saw or signed it. Nonetheless, on April 7, 1999, without a hearing, Zastrow ordered Francis deported. Two months later, still in Eloy and unaware of Zastrow's ruling, Francis followed the instructions of a deportation officer and hand-wrote a request to be deported so he could leave confinement. "I guess it was just a CYA [cover your ass] thing," he now says of this document. "How can this happen in America?"

In late June 1999 Francis, "the guy who runs for school president," as he puts it, was sleeping on the streets in Kingston; he later moved to a rural area, where he survived on coconuts. "You drink two and you'll be full," he explains, adding that he became very sick from malnourishment.

He was stuck there even after he found his mother two years later. "I was able to prove who my mother was," he says, but since Jamaica filed birth certificates by number, not name, "I couldn't prove who I was." After Jamaica digitized its birth certificate registry, Francis was able to apply for a passport and return home in late 2009. He is now advising two other men in Jamaica, one deported last year, struggling to document their own US citizenship. Zastrow's last year on the job was 2000, but the federal courts are still overturning his orders for the few lucky enough to return for a hearing. And the decades-old pattern of wrongful deportations is continuing under the Obama administration.

Among those stuck in immigration jails today are people with no criminal history and, crucially, no lawyers to demand bond hearings. People who should be free may languish for months. When I met Clifford Bryan in Stewart, he was crying and contemplating suicide, largely because the adjudicators refused to grant a bond hearing and he feared being stuck there forever. "I filled out the paper [requesting a bond hearing] and sent it two times. They didn't send it back to me," he said. He was held for almost four months in Georgia before Cassidy finally set a $1,500 bond, the lowest amount possible, and Bryan was free to return to his wife in Michigan. Meanwhile, taxpayers had paid about $8,000 to the Corrections Corporation of America for his incarceration. In October the DHS issued welcome new rules resulting in ICE freeing hundreds nationwide, but many more who meet the criteria for release remain locked up, including Pedro Guzman.

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