PART 3 — SECRET COURTS
Frightened, confused, and often held far from home, thousands of immigrants find themselves at the mercy of a legal system that, for many, amounts to an assembly line toward deportation
Jonathan Wiggs/Globe Staff
LUMPKIN, Ga. — Wait beneath a canopy of razor wire for a security guard to buzz open the first towering gate. Then, the second. Walk through the chain-link fence onto a concrete path, toward the
tiny sign that says “courtroom.” To the left is a door marked “public access.”
The door is locked.
A guard punches in a code and the door swings open, but it can take almost an hour to get inside the immigration court with the highest deportation rate in America — not counting the time it takes to drive there from Atlanta, almost 140 miles away.
Inside the jail at the Stewart Detention Center, judges in long black robes preside from their benches in courtrooms with cinderblock walls. Inmates in blue, orange, and red uniforms sit on wooden benches waiting to learn whether a judge will let them stay in the United States or send them away.
The court has all the trappings of the American judicial system, except for one of its most cherished principles: accountability. In immigration courts nationwide, files and evidence are kept from public view. Hearings are open, but not publicized, and are often held inside detention centers; the few outsiders who attend quickly discover that judges have broad powers to eject the public. Most judges’ full decisions are never even written down.
The secrecy conceals the inner workings of a controversial court system that renders life-altering decisions with little opportunity for public review once the hearing is over. Each year, immigration judges order some 160,000 people to leave the country, including more than 10,500 who asked for asylum because they said their home country was dangerous.
The 58 US immigration courts are overburdened and understaffed, carrying caseloads several times larger than regular courts and run by about 250 judges who have burnout rates that rival prison wardens, one study showed, partly because they make so much less money and have far less job security than other federal judges.
Half of the immigrants before the court have no lawyer to help them navigate the maze of immigration law, and the justice they receive depends heavily on who hears their case: for instance, some judges grant nearly all requests for asylum, while others deny each one, according to data collected by Syracuse University. Yet the judges’ words are usually final: Immigrants appeal fewer than one deportation decision in 10.
“They had a reason for putting it there,” said Wanda Tejeda, who lives down the street from the detention center in Lumpkin, where the population of the 1,700-bed facility outnumbers the whole town. “What better place to put it than a little town in the middle of the South in the middle of nowhere that nobody’s ever heard of?”
The officials who run the immigration courts acknowledge that they make public far fewer documents than regular courts, and that their courtrooms increasingly are located inside locked detention centers that are difficult for the public to get to. But they insist they are not trying to hide anything, and have also opened courts outside of jails.
Immigration courts are allowed to withhold many documents to better protect immigrants’ privacy because they are under the executive, not the judicial branch, explain the leaders of the Justice Department’s Executive Office for Immigration Review, which runs the courts. Officials say the three new courts they have placed inside detention centers over the last decade are simply a way to reduce costs, not to discourage public participation.
And the immigration officials say they are aware that so many immigrants don’t have lawyers, noting that they try to connect detainees with nonprofit groups that can help them understand the process and minimize their time locked up.
Juan Osuna, the office’s director, said in a written statement that his staff “is keenly aware of the many issues that respondents face.”
Maybe so, but the immigration judges at Stewart issued a deportation order to almost every immigrant who came before them last year, with many of the detainees giving up before they got a chance to fully make their case to stay. They are on an assembly line that often ends when immigrants, exhausted by incarceration, beg to be deported.
One day this year at Stewart, dozens of immigrants in prison garb sat on scarred wooden benches waiting their turns before the judge. Many had little hope, facing certain deportation because of their criminal records, and a few were eager to go home. But others were tense. In one courtroom, a man bent over a Spanish-language Bible. In another, a Mexican national teared up when prison guards blocked his daughter from hugging him goodbye before she returned to South Carolina.
A weary-looking immigrant from Mexico whose full name could not be heard over the roar of the air conditioner, stood dejectedly before Judge Barry S. Chait, who was appointed last year after many years as a lawyer for Immigration and Customs Enforcement, or ICE, the agency that runs the detention system.
The Mexican man had told Chait that he would look for a lawyer. But he showed up for the hearing alone in blue prison scrubs, his hair mussed. Because his file is secret, there is no way to tell how long he had been held.
“I will speak for myself,” he told Chait in Spanish, through the court interpreter, explaining that he had no money for an attorney.
Speaking in legal jargon, Chait told the man in English that he could avoid deportation if he could make a legal case to stay. After all, the man had several factors that would make him a good candidate for legal residency: He had little to no criminal record and was related to many people who are here legally. In fact, his young children are US citizens and his parents are legal residents. He had lived in the United States for more than 10 years.
But it was unclear whether the man fully grasped what the judge told him through the interpreter.
Chait reminded the man he could apply for a bail hearing.
“Have you done that, sir?” the judge prodded.
“No,” the man said in Spanish. “I don’t know how.”
“You can ask the law librarian to help you,” the judge said.
But jail officials later said that the guard in the law library is not supposed to provide legal assistance. The guard on duty that day only spoke English.
The Mexican man kept asking how long he would be in jail. When the judge said the case could take weeks to decide, the man asked to be deported.
“OK, sir,” Chait said finally. “Good luck to you in Mexico.”
Secrets of Ellis Island
Many years before Ellis Island became the nation’s busiest immigrant inspection station, it was a place of public spectacle: federal officials used the patch of sand in New York Harbor to carry out the public execution of pirates.
But, in a sign of the secrecy that would shroud immigration for generations to come, federal officials locked Ellis Island down tight — requiring permission before anyone could step ashore — when they opened the immigration center in 1892.
The Supreme Court even ruled that the island wasn’t on US soil, so that babies born there did not automatically become citizens.
Immigrants denied entry into the United States because they were sick, poor, or for other reasons were subject to closed deportation hearings on Ellis Island. Officials gave advocacy groups office space to help immigrants, but officials kept the public out, dictating in regulations that the hearings were “separate and apart from the public.”
Historians say the secrecy wasn’t necessarily nefarious: US officials were trying to protect millions of new immigrants from swindlers and others seeking to take advantage of them. But the use of islands as the place where immigrants’ fates were decided contributed to a culture of secrecy pervading the entire immigration process.
“That’s why they picked Ellis Island. If you have it on the island, you have fewer people looking at it,” said Vincent Cannato, a history professor at the University of Massachusetts Boston and the author of “American Passage: The History of Ellis Island.”
“They kind of walled off the immigration system from prying eyes.”
The Constitution said nothing about the immigration system, but the authors clearly despised secret courts: The Sixth Amendment decreed that criminal trials should be public because they feared that secret courts would breed atrocities such as the English Star Chamber of the 17th century. Today, that principle of openness is applied to civil courts, too, including divorce and bankruptcy proceedings that many people might prefer to keep private.
From the beginning, there were troubling reports from behind the gates on Ellis Island — including the sexual assault of female detainees and concerns about patronage and corruption. Others feared immigration officials were too lax, granting entry to immigrants with low skills or deadly diseases such as typhus — “the worst riff-raff of Europe,” as one official put it, according to Cannato’s book.
A few US officials in the early 20th century worried that excessive secrecy was fostering abuses, but they were “a voice in the wilderness,” Cannato said, and the public paid little attention to immigration policy except when national security threats periodically thrust foreigners into the spotlight.
After World War I, the rise of communism in Russia stoked fears of leftist radicals in the United States, prompting authorities to arrest hundreds of Russian and Eastern European immigrants, whisking them to Ellis, Deer Island in Boston Harbor, and other places for deportation hearings that historians say were probably closed to the public. Certainly, the conditions detainees endured were out of public view: Immigrants on Deer Island stayed in cold, fetid cells that drove some to the brink of madness. One man jumped from the fifth floor of a building to his death.
During World War II, immigration officials detained Japanese, Italian, and German immigrants and US citizens after Japan bombed Pearl Harbor in 1941. The military held some 100,000 Japanese-Americans in camps in the West, while others were jailed or forced to relocate to other US cities and towns.
The US government eventually apologized to Japanese-Americans for the World War II internments, and in the years to come made some reforms to make immigration more open and fair, such as opening many immigration hearings to the public.
Yet, following the Sept. 11, 2001, attacks on the United States, federal officials began secretly rounding up foreigners based on perceived threats to national security. This time, officials arrested hundreds of people, particularly Muslim men, refused to identify those held for immigration violations, and closed their deportation hearings to the public.
Civil liberties groups and the news media fought the secrecy surrounding the Muslim detainees in court, but the issue never reached the nation’s highest court. To this day, the Supreme Court has never ruled on whether deportation hearings should be open to the public.
But the debate over Muslim detainees missed the larger group of immigrants who face secret arrests and deportations every day — many without ever appearing before an immigration judge because their offenses, such as overstaying their tourist visas, call for automatic deportation.
Last year, federal immigration agents deported 396,906 people, their identities still kept secret.
Justice beyond razor wire
To get to Lumpkin, take the highway southwest from Atlanta almost all the way to Alabama, a two-hour drive to one of the poorest corners of the United States. Pass the sand-colored tanks, soldier statues, and the sign for “Sniper School” that mark the Army’s Fort Benning, and keep driving until the road dwindles to one long ribbon dotted with tract houses and double wide trailers, water towers and tiny white churches, long stretches of hayfields, and Georgia red clay.
Take a left at CCA Road, named for the private corporation that runs the Stewart Detention Center, and you have arrived at an increasingly common sight in the US immigration system: an immigration court inside a jail.
Thirty years ago, courts in jails were less common, but now, they are booming. Eighteen of the 58 immigration courts nationwide are in detention centers, and the judges decide deportation cases of criminals and noncriminals alike — all stemming from civil immigration violations, not crimes. About 42 percent of the cases decided last year involved immigrants detained in places such as Lumpkin or the Arizona desert.
No sign outside the razor wire at the Stewart Detention Center informed the public there was an immigration court here when a reporter visited this year. And the reporter was the only independent observer in the courtroom, even though Lumpkin’s court is one of the fastest growing in America, with more than 11,000 new cases in 2011, a 40 percent increase from the year before, according to the immigration courts.
Since the files are secret, no one can fully analyze what happens in immigration court.
But it is clear from statistics that Lumpkin’s immigration court dispenses justice with lightning speed. Lumpkin judges typically resolved cases in less than two months compared with almost two years in Boston immigration court, according to the Transactional Records Access Clearinghouse, a record collection program at Syracuse University.
Federal officials say such comparisons are not useful, because each case is different and the rapid pace at Lumpkin reflects federal efforts to move cases along in order to minimize how long detainees are jailed. Cases in Lumpkin may also move faster because so many of the detainees are criminals who are ineligible to remain in the United States.
However, Lumpkin’s efficiency may also reflect the fact that so few detainees have lawyers, which immigrants must pay for themselves, unlike low-income Americans charged with a crime. Only 22 percent of immigrants in detention had lawyers in court last year, according to the courts, compared with about half of all immigrants facing deportation.
Lumpkin, in fact, has just one immigration lawyer.
“I’m the only immigration lawyer anywhere near here,” said Bobby Olds, who lives in Columbus but opened an office this year a few doors down from Jason’s Taxidermy on the main square in Lumpkin, a fading timber town of 1,400.
And yet, he said, he barely makes a living. Last year, he said, he earned $2,400 from immigration cases.
“The Hispanics,” he said, “they just can’t afford it.”
In the end, the outcome of immigration cases in the Stewart Detention Center seems almost preordained: Stewart judges ordered 98 percent of the detainees deported last fiscal year, the highest rate in the United States, compared with 71 percent nationwide and 57 percent in Boston.
‘Please do not let me die in jail’
When immigration cases do make it to the public court system — usually because of criminal charges or when the immigrant files a lawsuit demanding release — the culture clash can be jarring.
Judge Richard A. Posner of the Seventh Circuit Court of Appeals in Chicago said his court overturned immigration appeals court decisions “a staggering 40 percent” of the time in 2005, including one decision to deport a Moroccan man based on a paperwork mix-up that Posner called “completely arbitrary.”
“The adjudication of these [immigration] cases at the administrative level has fallen below the minimum standards of legal justice,” lamented Posner, a conservative judge.
In Boston, Chief District Court Judge Mark L. Wolf heavily criticized the immigration court’s handling of a 19-year-old immigrant from Panama who had spent 21 months in jail fighting deportation, acting as his own attorney. Erick Flores-Powell, who came to the United States at age 5, was a suspected gang member and authorities wanted him deported, but Wolf couldn’t understand why the process was taking so long.
“By my calculation, at least seven of the 21 months he’s been locked up is because the immigration judge couldn’t conduct the proceedings correctly,” Wolf said during a 2009 review of a lawsuit that Flores-Powell filed asking for his release, faulting immigration judge Paul M. Gagnon for technical mistakes.
Wolf also couldn’t understand why officials had transferred Flores-Powell to his courtroom in handcuffs; a shackled immigrant is a common sight in immigration court, but not in federal court.
“Why do you think it’s necessary for him to be in handcuffs?” Wolf asked the Suffolk County deputies. “Because I’ve been conducting court proceedings for 24 years. I had Gary Sampson, who murdered three people, [mobsters] Frank Salemme and Stevie Flemmi, and none of them had to be handcuffed . . . Can we take the cuffs off of him?”
Though prosecutors argued that Wolf had no authority to hear the case because it was an immigration matter, Wolf said Flores-Powell’s immigration case was riddled with so many errors that he decided to hold a bond hearing himself. He ordered Flores-Powell released in December 2009.
Flores-Powell ultimately won his deportation case and now works in construction. “They throw you with the wolves” in immigration court, Flores-Powell said last week. “I kept praying and got to Judge Wolf. And he just followed the law.”
Earlier this year in Boston, US District Court Judge William G. Young chided an immigration judge for his part in keeping an elderly refugee from Poland locked up for five years awaiting deportation.
“Please, do not let me die in jail,” Walter Miszczuk, now 75, had written to a federal judge at one point during his long fight against deportation, during which he had been transferred to a detention center in Alabama, more than 1,000 miles from his Rhode Island home, and criminally charged for failing to apply for a Polish passport.
To be sure, Miszczuk, a retired auto mechanic, contributed greatly to his own problems. Though he came here as a legal refugee with a young daughter in 1982, he pleaded no contest to sexual assault on a teenager in 1994. Then, in 2006, he served brief sentences for twice violating a restraining order taken out by his former girlfriend, which were violations of probation for a domestic vandalism conviction.
But Miszczuk spoke poor English, did not have an immigration lawyer, and said he did not understand that pleading no contest to the charges would trigger his deportation. He insists that most of the charges are false, and a criminal lawyer who was appointed in Rhode Island, Gerard Donley, recently persuaded a judge to throw out the 1994 sex assault altogether.
Meanwhile, Miszczuk remained locked up in legal limbo for years because he refused to apply for a new Polish passport, which US officials needed to deport him.
Finally, Judge Young reviewed the convoluted case in March and quickly concluded that Miszczuk should go free. He tossed out the charge that Miszczuk had criminally failed to apply for a passport and criticized his immigration judge for failing to document why he wanted to deport Miszczuk in the first place.
“This court cannot invent reasons by which the defendant might be lawfully convicted,” Young said, calling the immigration judge by the disdainful title “hearing officer.”
Young ordered Miszczuk released in March, but immigration officials immediately took custody of him to resume deportation proceedings. They finally released Miszczuk seven months later when the Globe began making inquiries. He said they gave him a bus ticket to Rhode Island and $20 for food on the journey from Alabama.
Immigration judges say they have been unfairly targeted for criticism by other judges who don’t understand their difficult working conditions.
Immigration judges earn roughly $50,000 less a year than their federal court counterparts, even though they carry more than triple the caseload, about 1,500 cases each, according to Dana Leigh Marks, president of the National Association of Immigration Judges.
Unlike federal judges, immigration judges do not have life tenure to protect them when they make unpopular decisions. As employees of the Justice Department, immigration judges can be demoted or disciplined by the attorney general.
“They’re assuming we’re working under the same conditions,” Marks, a San Francisco immigration judge, said of the federal judges. “Immigration judges are rendering decisions in death penalty cases under traffic court conditions.”
In fact, immigration judges have to act as their own clerks, taking notes and running the recording machine during hearings that can last for hours. Then, when the testimony is over, they extemporaneously dictate a decision into the recorder, often without a break.
“We’re bailiff, court reporter, and court clerk, and then we’re the judge,” Marks added. “And supposedly focusing on the legal aspects of the argument and trying to think.”
Members of the public can watch these judges at work, but it can be almost impossible to follow individual cases. Although the immigrants’ names are posted on the courthouse wall when they’re scheduled for a hearing, their nine-digit “alien numbers,” which are required to get information about the cases, are blocked out. Unless the judge asks, it is impossible to verify how long the immigrant’s case has been pending or how long the person has been detained.
Understanding the decisions is also a challenge. Except for the fleeting moments when judges dictate them in open court, the public usually can obtain only an edited version of the final decision — sometimes so censored they are unreadable.
That lack of public accountability also makes it impossible to know why immigration decisions vary so widely in cases that, from the outside, seem similar.
For example, Houston immigration Judge Howard Rose, a former federal prosecutor, rejected 100 percent of the asylum cases he heard from January 2008 to June 2010, according to the court. All of the asylum seekers were ordered deported even though they said they would face danger in their home country.
At the other extreme, Judge Terry Bain of New York, a former immigration lawyer, rejected just 7 percent of requests for asylum cases over the same period.
Perhaps New York asylum seekers had stronger cases than those in Houston, where the immigrants were locked up, suggesting that many had criminal records and were not eligible for asylum. Or maybe the New York judge is simply more sympathetic to immigrants.
But court officials aren’t explaining, saying that Rose and Bain could not comment because immigration judges are barred from speaking to the news media.
For years, the judges’ union has been pushing for Congress to transform the immigration courts into a more independent court that would take them outside of the control of the Justice Department. Under the so-called Article 1 court, referring to the section of the Constitution that authorizes it, the president would appoint judges to a fixed term, the Senate would confirm them, and Marks said their files and decisions would be open to the public.
She said she would welcome the increased public scrutiny. “If what you’re doing is right,” she said, “then it withstands the light of day.”
One day too late
Jairo Machado’s desperate family hired Boston immigration lawyer Jeffrey Rubin last year because the veteran immigration lawyer was willing to take on tough cases. And Rubin, a skilled navigator of the shadows and vagaries of the immigration courts, thought he could save Machado from deportation to El Salvador — based on an 11-year-old deportation order he said he hadn’t known about. After all, Machado had deep ties to the United States, including two biological children who are US citizens.
Rubin was wrong.
Machado, now a 30-year-old carpet layer, had waded across the Rio Grande as a teenager to reunite with his mother, who left for Massachusetts to work when he was a boy. He was arrested several times in his early 20s but was never convicted of a crime. Then he fell in love and moved in with his girlfriend. Everything seemed to be going well until immigration officials arrested him in 2011 and told him that he faced deportation.
To ask an immigration judge to reconsider the 2000 deportation order, Rubin knew he faced considerable red tape. In the regular federal court system, he could have downloaded Machado’s file online or walked into a courthouse to request it. But immigration lawyers generally have to file a formal Freedom of Information Act request for a copy of their clients’ immigration files, which can take weeks or months to process.
In November 2011, Rubin sent the request for Machado’s file, stored in Virginia, believing he had time to read the documents before filing the motion to reopen Machado’s case.
“I thought I had more time, so I was going to do it one time and do it right,” Rubin said.
Then, ICE shipped Machado to Louisiana.
Tipped off by a relative about Machado’s relocation, Rubin said, he talked to an immigration officer who reassured him that Machado would be in the United States for two more weeks.
Two days later, Machado was in El Salvador. He had been dumped penniless at the airport with no one to pick him up.
The next day, Rubin said, Machado’s immigration court file arrived in the mail.
In El Salvador, Machado stayed with his wife’s relatives while Rubin tried to reopen his case. But Machado grew anxious and, like many deported immigrants, he sneaked back over the border this year. Officials caught him and sent him to Stewart.
“I did it for my family,” he said in a jailhouse interview, speaking through a telephone on the other side of a glass window.
Now, a full year after ICE deported Machado while his lawyer was preparing his appeal, Rubin will finally get his chance to argue that Machado should be allowed to stay here. Machado has a hearing in Boston immigration court on Tuesday.
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