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A TALE OF TWO JUDGES
After U.S. Sen. Orrin Hatch, R-Utah, pushed to open a local immigration court, Salt Lake City’s immigration court opened in 2005 in a strip mall, next to a taekwondo studio, with Judge Nixon first appointed, unopposed, to the bench. Both Nixon, a former U.S. attorney, and Pead, a former head of Utah’s immigration prosecution unit for the U.S. attorney’s office, Leonor Perretta says, are friends of Hatch. That history rendered the judges, in the minds of some immigration attorneys, as being pro-government. That’s not a view she shares. “For the most part, both judges are very fair-minded and willing to consider arguments,” Perretta says.
While immigration court judges are “fact-finders,” Perretta says, the two courts, attorneys argue, vary dramatically. Pead is always “very well-versed, he studies the cases,” Perretta says. “I am amazed how well he understands issues, reads everything I write, often quotes it.” That depth of preparation leads to a perception among some lawyers that “he comes up with his own evidence, his own case law,” Perretta says. Tarin, for one, questions whether Pead is always able to remain impartial, describing him as “sometimes a more formidable advocate for ICE’s positions than the government’s attorneys themselves.”
Attorneys view 78-year-old Nixon with a mixture of fondness and despair, characterizing him as unpredictable in both mood and decision-making. When Nixon started the Salt Lake City court, the rate of his denial of asylum cases, according to TRAC Immigration statistics, was at 49 percent, below the national average of 53 percent. But Nixon’s denials in 2009 and 2010 hit 70 percent, while Pead has dropped consistently below the national average for asylum denials at around 50 percent.
Attorneys question whether, as Tarin puts it, the aging Nixon “should hang up his gloves,” a conclusion he supports by pointing to a 2010 10th Circuit decision on an asylum case that found a Nixon asylum ruling included “rather baffling findings ... accompanied by an impenetrable one.”
Perretta acknowledges, “There is a perception among local AILA members that Judge Nixon has been a good judge in the past, but maybe he should consider retiring.”
But if the judges’ approaches to their courts and workload vary, so does that of immigration attorneys. “Some attorneys do a terrible job, which adds to the court’s frustration,” Perretta says. Several have been repeatedly reprimanded for unethical behavior by the Utah State Bar and yet continue to practice before the court. Such attorneys, “just don’t take it very seriously,” she continues. “They do very poor work,” leaving judges to fume over late submissions, inadequately briefed cases and inept presentation.
Shuffling into this fraught world of sharp and not-so-sharp intellects several mornings a week are manacled, undocumented, foreign-born nationals and legal permanent residents with criminal pasts, picked up by ERO agents from Utah’s jails or at their homes.
For 45 minutes prior to their first immigration court appearance, each detainee is interviewed by a pro bono attorney to see if they have any chance of fighting their removal. Unlike a criminal court with its presumption of innocence, detainees facing removal proceedings are effectively guilty in the eyes of the court and do not have the right to counsel. Rather, they have to prove to the court that they are entitled to relief.
From removal statistics received through an open-records request, out of 7,383 people the Salt Lake City court ordered deported between 2009 and 2011, 6,020 did not have counsel. Neal points out that within 10 days of aliens with criminal records getting into the system, typically 80 percent are deported.
After the hurried consultation, they listen to a judge recite their rights while a Spanish interpreter leans over the banister to translate.
Look across the detainees’ blank faces and you sense, as Neal says, “They are at a grave disadvantage. You can tell them all the rights in the world, but they often have no real understanding of what you are saying.”
TENSION IN THE COURT
When the court moved from its cramped quarters by the Salt Lake City International Airport, it was perhaps inevitable that tensions would arise over its collocation in summer 2011 with ICE, its detention agents and ground-floor holding cells. “There is a perception they all work together, especially now they are in the same building,” Perretta says.
According to the Office of Legislative and Public Affairs, which speaks for the Executive Office of Immigration Review and for the immigration judges, it is "not uncommon for government agencies to collocate in commercial buildings, and such tenancy has no effect on the impartiality of our immigration judges."
At an October 2011 extrajudicial meeting of immigration attorneys, ICE attorneys and the two judges, tensions flared when Tarin stated that he and his peers used one type of legal challenge to removal proceedings as “a tool for delay”—at least that was how the judges interpreted it, attorneys say.
The judges, Perretta argues, “had to react” to a comment they saw as meaning attorneys were in the business of selling stalling tactics to clients. “I think they probably overreacted,” she says. That overreaction was for the court to ask for evidence up front in cases that often can take years to develop. In a motion, Ishola labeled the new filing requirement as “a naked attempt to intimidate lawyers, as well as an unnecessary restraint on the right to effective assistance of counsel.”
Judge Nixon also went on the offensive by threatening disciplinary proceedings against Tarin for filing a deportation-cancellation application for a client “that does not meet [Nixon’s] standard of hardship,” his partner Ishola wrote in a motion. That meant, Tarin says, he had to either “save my own skin” and sacrifice his client by withdrawing the claim, or face a complaint proceeding. He chose to do the latter.
While the court characterized the new evidence requirements as a way of evaluating how much time each case needed, a furious Ishola filed three long, pointed motions that assailed the court’s impartiality. The court backed down on its requirement and Ishola withdrew his motions.
“I think it’s good what [Ishola] did,” Perretta says. “You never know how far the court is going to go. It may reach the point it does affect people’s rights.”
The Office of Legislative and Public Affairs cannot comment on specific cases, but told City Weekly in a statement that immigration judges "adjudicate cases on a case-by-case basis, according to U.S. immigration law, regulations and precedent decisions."
Tensions were further exacerbated when, on Nov. 1, 2011, an ERO agent arrested an undocumented man attending court to support his brother, who was in deportation proceedings. ICE spokesperson Virginia Kice in an e-mail states the man was arrested “briefly after evidence surfaced of a possible immigration violation.” The man was released the same day and, as a consequence of the arrest, attorneys say, his brother’s deportation case was also dismissed. Neal was surprised by the incident. “It has a chilling effect on the ability of the defense to put forward a case if they can’t call on anybody who has an illegal status. It was kind of an unwritten rule that you didn’t take action against immigrants who came in to testify,” he recalls.
Attorneys worry that the arrest means that witnesses without papers can no longer rely on unwritten rules to protect them from ICE’s handcuffs. ICE’s Kice will only say, “The determination about when, where and how to affect an arrest depends on a variety of factors, including safety and security considerations.”
A COIN TOSS
Immigration attorneys argue the government’s greatest deportation weapon is detention. “You lock them up, they are ready to throw it away,” says Tarin.
Ramiro Oseguera knew that feeling of despair all too well. He spent his first days in Utah County Jail, “looking at the clock, placing the events as they happen in your life.”
Unlike state detainees, who know when they will be released, the hardest thing for Ramiro to endure was “not knowing when it’s going to end. People tell you that you will be out in a month or two and it just stretches on and on.”
Deportation detainees complain they are treated like animals. Maximum-security prisoners—typically the most violent or troublesome—are incarcerated for 23 hours of the day. Immigration detainees say they are incarcerated for at least 21 hours a day.
Lane Goold is one of thousands of deportation detainees who accept expulsion without a fight each year. He did a year in Draper State Prison for drug possession, before being transferred by ERO to Utah County Jail prior to a deportation hearing. He complains that while Draper was “terrible,” Utah County, with its endless waiting, is worse. Exercise is restricted, weather permitting, to one or two half-hour sessions walking around a safety-glass-walled and cinder-blocked room with a grate over the top.