Secret Identities of Immigration Judges Revealed
The Department of Justice (“DOJ”) has aggressively concealed the identities of Immigration Judges in connection with complaints of misconduct made against them for several years.
In response to a FOIA from the American Immigration Lawyers Association (AILA), the DOJ released over 14,000 pages of documents in connection to 770 complaints made against immigration judges between 2008 and 2013. The lawsuit is still pending, and DOJ has yet to reveal any of the identities of the Immigration Judges.
This past weekend, I discovered that a significant portion of the documents released by the DOJ were not, in fact, redacted.
Using the information gleaned from the un-redacted documents, I identified 60 immigration judges with 474 complaints. In other words, over half of the complaints are now matched with the immigration judge whom the complaint was made against.
Here is a modified key, which you can use to identify complaints in AILA’s database linked to above with the corresponding Immigration Judge.
Here are additional documents I have already combined for the general public’s use:
This update is to clarify my intent in identifying immigration judges with complaints of misconduct against them. In addition, I am including the National Association of Immigration Judge’s (NAIJ) official position on identifying individual Immigration Judges with respect to complaints made against them.
Here is NAIJ’s most recent statement on this issue, copied in full:
The recent decision of the DC Circuit reversing the district court’s ruling protecting the names of Immigration Judges (IJs) from disclosure on an across the board basis, while an understandable effort to provide transparency for the public we serve, will instead reveal a distorted system, incapable of providing true clarity. Without correcting the discipline system under which we are reviewed, and assuring due process for these judges, the information released will be as misleading and flawed as the system which produced it.
AILA had made a request under the Freedom of Information Act seeking disclosure of disciplinary records of Immigration Judges. The government response redacted names of judges and other identifying information, asserting the judges’ privacy interest outweighed the public’s interest in learning the judges’ names. AILA then filed suit in district court arguing that disclosure was required. The DC Circuit Court of Appeals late last week found that the judges’ names could not be categorically withheld, and remanded to the lower court for it make specific findings as to the reasons striking the transparency-privacy balance in each instance.
Most people, lawyers included, fail to understand that the position of Immigration Judges is a legal anomaly. The law under which we serve describes us as attorneys appointed to serve as judges. We are called judges and held to standards of conduct that apply to judges, yet IJs are considered attorneys by the U.S. Department of Justice. This classification means we are subjected to the orders of supervisors, and like any employee, are at risk of discipline for failure to follow the instructions of our supervisors. Immigration Judges are viewed by DOJ as low level employees. Rather than treating misconduct from a judicial perspective where discipline generally is limited to serious misbehavior, Immigration Judges can be disciplined for mere insubordination or failing to follow a supervisor’s instructions outside the courtroom, even if their courtroom performance is flawless.
What is even worse is the star chamber manner in which Immigration Judge discipline is meted out. Not infrequently, Immigration Judges have been investigated and discipline proposed without even advising the Judge that a complaint has been filed, let alone asking the Judge to provide his or her side of the story. Even when the Judge filed a response, it frequently was not released by the Agency in these materials. So the public is seeing only the Agency’s side of these matters.
For example, in AILA FOIA Complaint Number 82, the supervisory Assistant Chief Immigration Judge (ACIJ) issued a letter of written counselling to an Immigration Judge based on descriptions of the Judge’s behavior from other parties, without giving the Judge the chance to say whether these descriptions were accurate. The ACIJ refused a request from the Judge and the union to discuss the matter, even to talk about what steps could be taken to avoid potentially problematic behavior in the future.
In AILA FOIA Complaint Number 589, while reference is made to the Immigration Judge’s response to the complaint in the decision to suspend, the response itself was not released. In addition, the emails released in Complaint Number 589 show that the ACIJ was affirmatively seeking out in order to discipline the Judge. The December 13 email from a DHS attorney to the ACIJ starts, “If you’re looking for a case which demonstrates [redacted] incompetence and inefficiency [redacted] may be it.” Clearly this ACIJ and this DHS Attorney had been in discussion for quite some time on how to bring charges against this Judge, as other statements in the email chain also show.
Frequently, the Office of the Chief Immigration Judge fails to advise the Immigration Judge of a complaint when it is not considered meritorious, although its inclusion in the data leads to a skewed view of the number of complaints lodged against that Judge. Even more frequently, the Chief Judge’s office records that a Judge has been “counselled” about his/her behavior, when all that happened was a short, seemingly informal, conversation between the ACIJ and the Judge. Occasionally, Judges who have been “counselled” were unaware that they were being counselled.
Perhaps the most problematic aspect of the data as currently complied is the extremely high number of referrals from the Board of Immigration Appeals (BIA) which are misleadingly characterized as complaints. Such referrals are not disciplinary matters, although EOIR has chosen to treat them as indistinguishable from discipline in the context of these records. BIA referrals include matters that can implicate administrative policies or mere errors that would warrant an ACIJ deciding if additional training would be helpful. These are internal matters that do not involve actual misconduct, but rather simply involve supervisory oversight. Unfortunately, the manner in which these records are kept conflates low level discipline with serious, problematic issues and therefore leads to highly misleading information if relied upon to show actual misconduct
The ultimate outcome and true impact of the ruling remains to be seen because the Circuit Court remanded the case to the district court. Now the Executive Office for Immigration Review (EOIR) must decide if they are going to continue to withhold the identity of any Immigration Judges, and if so, must state a particular reason specific to that situation for doing so. Nevertheless, even if some Judges’ names are released, the result will not be truly transparent and helpful to the public because of fatal flaws in the EOIR discipline system. We need EOIR to reform the existing complaint process to make it conform to a judicial model, commensurate with the actual judicial duties of Immigration Judges. In the meantime, revealing the identities of Immigration Judges is unwarranted and likely damaging to their reputation, while serving no real benefit to the public because of the highly unreliable nature of this data.
August 3, 2016 For further information, contact: Hon. Dana Leigh Marks, President NAIJ www.naij-usa.org / firstname.lastname@example.org / 415-705-0140
I agree with many of NAIJ’s points, especially in light of reviewing, in detail, many of the complaints.
For example, EOIR often issues harsh disciplinary measures for not behavior that has nothing to do with their duties as an immigration judge. In complaint number 467, ACIJ Larry Dean proposed a 7 day suspension for an IJ for not obtaining his approval prior to entering the workplace.
Even worse, EOIR’s meting out of discipline for offenses that do rise to the level of serious misconduct in relation to their duties as an immigration judge are effectively ignored.
In complaint number 468, ICE chief counsel advised ACIJ Larry Dean that an IJ was systematically depriving detained immigrants of procedural due process rights–specifically, the IJ was observed to have been ordering immigrants removed and then subsequently using that removal order to deny immigrants’ right to a bond determination.
In this case, ACIJ Dean only disciplined the Immigration Judge with “oral counseling”
As you can see from the example above, the EOIR disciplinary process is often arbitrary and capricious. This is unsurprising given that adjudication of an immigrant’s claim in immigration court often hinges upon a the lottery of which immigration judge is assigned.
Many immigration judges discharge their duties superlatively, particularly in the court where I try the majority of our cases: New York.
However, there is still value to be gained from identifying misconduct complaints against immigration judges, with the strong caveat that no complaint be looked at in isolation.
In order to be fair and accurate in determining whether an identified immigration judge has a pattern and practice of engaging in serious misconduct, one must take additional evidence into account, such as the particular judge’s track record on appeal, credible fear grant rate, asylum grant rate, and by speaking with immigration attorneys who regularly appear before the judge.
For example, the allegations of serious misconduct I made against several immigration judges at the Atlanta and Charlotte Immigration Courts would not have been possible without an additional step of obtaining several hundred BIA remand decisions through a FOIA request.
Yes, the Board of Immigration Appeals, which accounts for more than 25% of complaints of immigration judge misconduct, has a policy of keeping the bast majority of its own decisions secret from the public.
My intent in identifying judges is to secure additional evidence against the immigration judges who continue to systematically deprive immigrants of due process, and to hold them and their supervisors accountable for the harm they have and continue to inflict upon immigrants who appear before them.
Accuracy in Immigration Judge Key
One last point: the accuracy of each identified judge with the corresponding complaints is only as good as its source: EOIR’s original key and the un-redacted documents with which I determined each Judge’s identity.
Given the systematic incompetence with which EOIR investigated, processed, and disposed of misconduct complaints, one should read each complaint with caution.
UPDATE Number Three, 01/24/2017:
In light of EOIR’s false claims that I “manipulated text” to “guess” the identities of Immigration Judges with complaints of misconduct made against them, I have begun to compile authoritative evidence (“double verification”) on how precisely I identified each Immigration Judge with their corresponding three letter code. Here are the first 31 judges I have completed thus far:
*Out of the total 60 Judges I initially identified, IJ Bain is the sole one where I cannot ascertain with 100% certainty given that there are two Immigration Judges with the last name of Bain: Quynh Vu Bain and Terry A. Bain. On page 33 of EOIR’s 03-25-14 release of documents, the un-redacted version simply states: “#524 Bain will be done as soon as I talk to her this week (she’s off to York on detail but I’m going to give her a call.) Cheers, Ed.”
The first name of Bain, as one can see, is not identified. However, circumstantial evidence within page 33, which is a 2011 email exchange between ACIJ Edward Kelly and EOIR staffer Deborah Moutinho, and from other documentary evidence strongly supports a conclusion
At the time, ACIJ Kelly was in charge of supervising Immigration Judges at 4 immigration courts: Arlington Headquarters, Baltimore, Charlotte, and Cleveland. IJ Q. Bain’s base city is Arlington Headquarters. Immigration Judge Terry Bain, however, has been an immigration judge based in the New York Immigration Court for well over a decade.
The ACIJ for the New York Court in 2011 was not Edward Kelly.