A Glimpse of Immigration Judges at Work

By David North on July 31, 2014

Several of us from the Center spent a recent morning watching our immigration judges at work: we do not envy them.

We traipsed a couple of miles across the Potomac to the new set of IJ courtrooms in Arlington, Va., to see how the five judges there were coping with a new part of their case load — Central Americans who had just crossed another river, the Rio Grande, some 1,500 miles away.

We quickly got the impressions of massive backlogs in a badly funded system (which was to be expected), a series of procedural complexities that came as news, and also found ourselves (albeit briefly) complicating court business.

To set the scene: Forget any thoughts of a free-standing courthouse; the tiny courtrooms of the immigration judges are on the second floor of a high-rise in Arlington's Crystal City neighborhood. There may have been some windows, but we did not see any of them.

The five of us (our three summer interns, a new project assistant, and this writer) went through a security screening (that did not separate us from our cell phones, as happens in some other courts) and found ourselves in a crowded waiting room. We checked the posted schedules for the judges and headed to a courtroom in which there was to be a "merits hearing".

These are sessions in which an alien, often with a lawyer on his side, tries to persuade the judge that he should not be deported. There are several different kinds of these hearings, and what we saw was a young man from Honduras making an asylum claim.

As soon as we entered the courtroom, we (unwittingly) stopped the proceedings. Unlike most courts there is no expectation in asylum cases that the public will be there, and has a right to be there.

When we entered the judge told the alien — who was in the Farmville, Va., detention center and who could be seen on a closed circuit TV screen — that some members of the public had just come into the courtroom, and did he object? The judge then called for a five-minute recess so that the alien could confer with his lawyers about our presence, all through the court's interpreter.

We left the room and a few minutes later were told that the alien did not object to us, so the hearing resumed. We had assured his lawyer that we had no idea who was involved and that we were not the press.

The alien then resumed making his dramatic plea; he did not want to go back to Honduras for fear that his own family would try to kill him, again. He told the court how his uncle had caused his cousin to loosen the wheel bolts of a family vehicle, which the alien would be using, in the hopes that it would lead to a wreck on a mountain road. The motive? The alien was gay.

It did not work. The wheel came off, the car skidded, but stayed on the road; no one was hurt.

Under questioning from his pro bono and apparently inexperienced lawyer, the Honduran told of gay friends of his who had been murdered for their sexual orientation and how there were organized gangs who specialized in this sort of thing. The cops? They would not interfere, he said.

There were indications in the testimony that this alleged harsh discrimination was not going on in the depths of the Honduran slums. When the car ran off the road because of the sabotage it was being driven by the family's driver; the parents had hired a psychologist to try to talk the young man out of his homosexual tendencies; and one of the gay friends who had been killed was identified as the foster son of the nation's president.

All this was being spelled out slowly because the young man — after eight years in this country — was being interviewed through an interpreter. We only heard his side of the story because at 10 am the allocated two hours was up, and the rest of the hearing had to be postponed until the following week because the judge had an iron-clad obligation to start hearing fresh Central American cases, people newly caught at the border who had been detained in Artesia, N.M.

A thought about the interpretation process: Having an interpreter is, presumably, necessary in many cases, but it doubles the amount of time needed to hear the case, as virtually everything has to be said twice, first in one language and then in the other. But what do the Anglos do in the room when the Spanish that they do not understand is being spoken? The judge respectfully watched the alien on the TV screen as did the client's lawyer, while the interpreter wrote some notes. I think I saw the DHS attorney read something on his laptop during at least one of the longer statements by the alien.

Back to our story; while the Artesia people were being brought to the video camera there, the five of us moved to another courtroom, where our arrival did not cause any stir at all.

This was a calendar hearing. The room, which probably seated 25-30 people, was full at all times, with many people standing at the back of the room or in the aisle. People came in two categories — the males in suits and ties were the lawyers, and then there was everyone else, the aliens and sometimes family members. There was a lot of traffic in and out of the room, as arrangements were made and people left.

This judge was patiently working out his own calendar, making sure that the lawyers knew what issues would be discussed, and what forms and fees would be needed prior to the hearings. And he set the date for the merits hearings — mostly in June 2017!

These were all hearings for non-detained aliens — unlike the man in Farmville — and they were being set nearly three years into the future. In the meantime every one of them — virtually all in illegal status — would be, for the moment anyway, free.

This judge also had an interpreter and, in this case, a clerk. Despite this help he seemed to spend a great deal of time completing forms, filing things, and wrapping up files with rubber bands. In other courts someone else is usually doing that sort of thing, but this is a deeply under-funded part of our government.

The process in this courtroom was getting repetitious, so we decided to go back to the first courtroom to see the Artesia cases.

The room was now empty except for the judge and the interpreter and the TV screen. Under these circumstances there appeared to be no need to tell the aliens that there were people in the courtroom.

The procedural problems appeared right away. The judge apparently had been scheduled to handle four Artesia cases that day, and already one of them had simply disappeared because the DHS enforcement people had made a decision that mooted the case, without giving the judge any advance notice. Another case — and we will get back to that shortly — had been decided while we were in the other courtroom.

So there were two cases left when we re-entered the first courtroom.

There were the now customary delays as the DHS officer in Artesia gathered the women for the next case; a Central American mother, and her daughter, and their lawyer. Working through the interpreter in Arlington, the judge identified himself, his location, and his role and caused the three women to identify themselves.

Then the lawyer on the TV screen announced that there really was no need for a hearing, as the women (apparently sensing they had a weak case) simply wanted to be deported. It soon turned out that the DHS staff had charged the women with an immigration violation that could not be appealed to the judge anyway, so he could do nothing with the case except to advise the attorney that she should go back to the local DHS officials and ask for deportation.

There was just one case remaining, and that was not scheduled for a couple of hours. The judge asked the officer in Artesia if he could bring those aliens to the TV camera, and was told that it might take a while. The judge — facing some downtime — wanted that to happen as soon as possible, and the distant officer agreed to try to set that in motion. The Artesia detention facility must be a big place.

At this point the judge turned to us, and said, "You missed a good one."

He said that the first Artesia case involved a couple of Central Americans who had had a "credible fear" interview with a USCIS officer, who decided that the aliens did not have a plausible reason for seeking asylum. The judge heard what they had to say, and without deciding whether or not they deserved asylum, decided that they did have credible fear and should have a merits hearings, like the one we saw earlier in the day.

The judge did not go into the specifics of the case, but did explain some of the complications of the interaction between the DHS officers in the field and his work.

"It all depends on what charge they use; in some I have jurisdiction, and in some I do not."

He went on — he had been silent most of the morning and maybe our presence gave him a chance to express himself — about the different appeals rights of two sets of illegal aliens that I must say I had not differentiated in the past.

There are the "entering aliens" who simply come up to a port of entry and say they want to enter the United States, but have no right to do so, and then there are EWIs, those who have Entered Without Inspection. Apparently the first group does not have any right to seek bail bonds, while the second group does.

What I understood from all this, although it was not said specifically, was that sometimes mistakes by DHS wasted the time of the judges — a significant variable that was new to me.

After a while we left, all figuring (silently) that none of us wanted to wear those robes.