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.Continued...