The public's ignorance of the idiocies endemic to the EOIR's business as usual and the calamities these entail is no accident. The agency deliberately withholds basic information from the media and researchers, and its top officials routinely decline requests for interviews, as acting director Thomas Snow and others did twice for this article. (Snow is "acting," so he won't lose his civil-service job in the EOIR.)
According to David Burnham, a former New York Times reporter and co-director of the Transactional Records Access Clearinghouse, the staff in the EOIR public affairs office have a "bizarre conception of their role. We ask simple administrative questions and they say, Oh, you have to submit a FOIA request." Lauren Alder Reid, the agency's public affairs legal counsel, sent numerous e-mails along these lines to me but, along with top agency officials, is not responding to document requests from the agency's FOIA office as required by law.
The EOIR obscures its operations as well by admonishing immigration judges not to speak with the media, in contrast with other adjudicative agencies and the judiciary. When alerted to this, Charles Geyh, a law professor at the University of Indiana and a reporter for the American Bar Association's Model Code of Judicial Conduct, sounded taken aback. With the exception of prohibiting judges from commenting on pending cases, "it's not just that the rules say that you can do it, but they actively encourage it. Banning it makes the process seem less transparent and doesn't promote the confidence in the courts we're trying to encourage. Not conveying to the public the work they do and why they do it and how they do it is nonsense."
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Even the court hearings are hidden from public scrutiny, especially those in detention centers, despite a regulation requiring otherwise. In August Dan Kowalski, an immigration attorney in Austin, Texas, and editor of Bender's Immigration Bulletin, sent the EOIR an e-mail asking whether the public would be allowed to attend hearings at a new court in the Pearsall, Texas, detention center. Kowalski explained his concern to me: "Sunlight is the best disinfectant. If there's nobody watching, it's easier for the prosecutors and immigration judges to take shortcuts or be dismissive or even abusive with the respondents." The EOIR's public affairs officer, Elaine Komis, replied to Kowalski's query by telling him to "contact GEO," a private security firm under contract to the DHS.
GEO's track record is bleak, according to Sandy Restrepo, an ACLU policy intern in Washington State. "Community members and law students...are getting hassled or turned away by security when they come in to watch the immigration hearings" at the Tacoma Detention Center run by GEO, Restrepo wrote in her July message to an immigration advocate listserv. Restrepo told me that since a 2008 Seattle University report documenting GEO's mistreatment of people in its custody, there have been "constant problems" with court access. She blames the EOIR as well as GEO. "The court administrator doesn't want a similar type of report to come out" about the Tacoma immigration courts, Restrepo believes.
Irina Kalinka, a Bard College student, decided that for her spring research project she would attend hearings at a nearby immigration court housed in the Downstate Prison in Fishkill, New York. The Fishkill EOIR office said she should call the prison for "security clearance." After being transferred to different prison personnel and calling several times, she was told by a prison official to fax a letter to the "Central Office." She asked where that was. "After a long silence," Kalinka wrote in an e-mail, "he just hung up." She left messages, but no one called her back. "The process of trying to find access is not just confusing," she wrote, "but I would go so far as to say actively discouraging." Kowalski suggests relocating the courts to a "different part of the building that doesn't need so much security, or give up on the notion of having them in the detention center altogether."
An employee of the immigration court in the agency's headquarters in Falls Church, Virginia, concerned I might be with the media, would not allow me to attend a hearing even after I had passed security; she was overruled by a superior, who said this was a "mistake." Despite a regulation stipulating that hearings are open to the public, another official disclosed a policy requiring court personnel to ascertain if an observer is with the media before entrance is allowed.
On my entering the hearing, immigration judge Roxanne Hladylowycz announced to the respondent, her attorney and the DHS attorney that an observer had entered her courtroom and indicated that she was not asking their permission for the observer to remain. Immigration courts are open to the public, she explained to a group in Memphis, who appeared on a huge, gorgeous flat-screen worthy of the Super Bowl. "She has a right to be here."
And then I observed a fascinating and scrupulously well-run hearing in which Hladylowycz figured out that the government's claim of fraud was based on confusion arising from the fact that the respondent, Alina, and her sister, despite both taking on their husbands' last names, had married men with the same last name. Alina's hearing took about an hour, sixty minutes longer than those for people in mass removal hearings.
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Complaints about immigration judges fall under the jurisdiction of the Office of Professional Responsibility (OPR), and people may file there directly, but the EOIR instructs immigration court stakeholders to lodge complaints with the EOIR itself. Instead of passing complaints on to the OPR, as the website promises, the EOIR top brass, to protect their cronies and avoid outside scrutiny, sweeps complaints under the rug. From September 2009 to August 2010, none of the OPR investigations originated with misconduct complaints filed with the EOIR. All but one occurred when federal courts overruled immigration judge decisions, per OPR policy. Since more than 84 percent of people in immigration jails lack attorneys and may submit complaints to the EOIR but will not file appeals in federal court, the OPR will never learn of most misconduct.
The EOIR batted away my recent complaint documenting extensive misconduct over the past eighteen months by Cassidy, who has worked in EOIR headquarters, and the Atlanta court administrator, Cynthia Long, including criminal and civil lawbreaking. The information should have been passed on to the OPR and the Office of the Inspector General, but according to EOIR attorney MaryBeth Keller, it stayed in-house at the EOIR.
Protecting misconduct is old news at the EOIR, which has been receiving complaints about Cassidy for years, including in the late 1990s from David Farshy, an attorney who attracted Cassidy's ire for protesting his due process violations. In one case, Cassidy left a message on Farshy's answering machine revealing an unlawful private conversation with the government's attorney and stating that he had decided Farshy's client's case before the hearing. Rather than fire Cassidy for these flagrant violations, the agency hired the government attorney with whom he'd had the conversation—Sease, now an Atlanta adjudicator who attracts her own misconduct complaints.
The experience of Adolfo Equite-Sequen, who lived in Los Angeles for twenty years and is eligible to apply for a green card, is another chilling example of the effects of moving DHS prosecutors from behind the table to behind the judge's bench. In September 2009, Equite was arrested for public drunkenness and, because of ethnic profiling, sent to ICE custody. A few days later he was shipped to Eloy based on an unauthenticated fingerprint match with the record of someone whose first name is Martin and who was ordered deported in 2004. ICE claimed no records existed for Equite.
Linda Spencer-Walters was a DHS attorney in 2008. In February 2010, she was Equite's adjudicator. Relying solely on the evidence from her old office, she discredited all of Equite's statements, denied bond and would not reopen his case even after a nonprofit attorney proved the DHS possessed Equite's bona fide immigration file.
Equite's pending appeal points out that Spencer-Walters ignored blatant inconsistencies in the ICE arrest report and admitted into evidence an unauthenticated fingerprint associated with a signature that did not match that of Equite, now in Guatemala.
Sarah Owings, EOIR liaison for the Atlanta chapter of the American Immigration Lawyers Association last year, said of similar events she has observed in immigration hearings, "Things are happening so quickly. They're trusting ICE has done their job and done the paperwork. They're not acting as adjudicators when they only get one side of the story and it may not be correct." Dana Marks sums up the problem: "As long as we are housed in the culture of a law enforcement agency, it's going to be difficult to achieve judicial neutrality." But severing the EOIR from the Justice Department, and the union's other worthwhile objectives, could take years.
Starting today, Attorney General Eric Holder can appoint a new director for the EOIR, ideally someone who will run this law enforcement agency according to the rule of law. The Justice Department could also issue new regulations for the EOIR to achieve immigration reforms that may not be possible through Congress or the DHS, including one mandating the release of anyone who is not given a bond hearing within forty-eight hours of a request. President Obama, whose own citizenship has been called into question, might want to take advantage of it.