Immigration judges defy a higher court, trapping hundreds behind bars
They claim ‘no jurisdiction' for bond hearings
Nov 20, 2017
Waiting for a day in court
“The first time that he hit me, he hit me in the stomach with his fist. Not that hard, but he hit me. He yelled at me that he didn’t want the baby.”
It was Aug. 2, 2017, Monica Marroquin-Perez’ 459th day in Eloy Detention Center, a maximum security facility in the remote desert town of Eloy, Ariz. The 21-year-old’s voice began to crack as she testified through an interpreter about why she fled her home in Guatemala.
Wearing a green uniform signifying she is a low-risk detainee, Monica sat at the front of the courtroom trying to convince Immigration Judge John W. Davis that sending her back to Guatemala could put her life in danger.
This wasn’t the first time she had been apprehended after entering the United States. On Jan. 21, 2016, she was caught by U.S. Border Patrol agents in Texas. Monica, a Spanish speaker, said she signed papers that she believed would start her asylum process. Instead, she was deported five days later.
In April 2016, Monica was picked up a second time for entering the United States. But this time, when Citizenship and Immigration Services officers heard Monica’s story, including claims that her ex-boyfriend was abusive and had ties to gangs and corrupt officials in Guatemala and Mexico, they concluded her story was “credible” and that there was a “reasonable fear” of danger if she was sent home. That decision cleared the way for Monica to tell her story to an immigration judge and possibly get a ruling that would prevent her from being sent back to Guatemala.
Monica and other detainees who said they fear persecution or torture at home and have previously been deported generally have one form of relief, a grant of withholding of removal, which stops their deportation to a country where their life or freedom would be threatened. The standard of proof for withholding is tough. The undocumented immigrant must show that not only has there been past abuse, but there’s a clear probability of future danger.
Seventy percent of those who go through a “reasonable fear” interview with CIS officers fail, according to CIS statistics for fiscal year 2017.
Monica made it through step one and began months of waiting behind bars for her withholding hearing. Withholding cases can take years to finish from beginning to end, and waiting in detention can be trying, even for those fleeing the most serious dangers.
Yet, at least twice, Monica was denied the one thing she was supposed to be guaranteed, even as a non-citizen: a bond hearing — an opportunity to make her case to an immigration judge that she is neither a danger nor a flight risk and should be allowed to live with family while waiting for the government to decide her case.
The courtrooms of the Eloy Detention Center are buried deep inside the massive, concrete facility. Detainees flow in and out of them all day, few of them accompanied by lawyers. The judges who preside over these immigration courtrooms are hired, paid and supervised by the Department of Justice’s Executive Office of Immigration Review (EOIR). They work for the executive branch of government and not the judicial branch.
Judge Davis, clad in a black robe, sits behind an elevated bench in one of the courtrooms. He has been working as an immigration judge for 15 years.
Monica and her lawyers are here to argue that she deserves to have withholding of removal granted. Davis has a consistent record in these cases. In 58 rulings from December 2012 through September 2017, he did not grant a single withholding of removal, DOJ records show.
Judge Davis said at the end of the hearing that he would issue a ruling on Monica’s withholding request in a few weeks. Emily Wietzel, one of Monica’s attorneys, then raised another issue: Why had Monica not received a bond hearing after more than 15 months behind bars?
Davis’ response was simple and short: “It is my position that I do not have jurisdiction.” In other words, Davis was saying he does not believe it is his job to grant a bond hearing in a withholding case. The definition of “no jurisdiction,” according to DOJ, means that “EOIR has no authority to resolve complaint(s).”
Davis’ position, though, is in direct conflict with the law as it has been repeatedly interpreted by the U.S. Court of Appeals for the 9th Circuit. Monica’s case falls under the reach of that court.
Dating back to at least 2011, the 9th Circuit has issued a series of opinions protecting the due process rights of non-citizens — even those who have been deported before.
“Prolonged detention [...] without adequate procedural protections, would raise ‘serious constitutional concerns,’” according to the 2011 ruling, Diouf v. Napolitano.
To address this, the 9th Circuit has repeatedly ruled that a bond hearing must be held after 180 days, or six months, of detention and that it is an immigration judge’s responsibility to hold that hearing. According to the 9th Circuit, if the government cannot prove during this hearing that the individual is a flight risk or a danger to the community, then the detainee is entitled to be released from detention.
Judge Davis’ courtroom sits in the 9th Circuit.
The U.S. Courts of Appeals, which consist of 13 geographically-arranged circuits, are only one rung below the Supreme Court of the United States. A published decision issued by one of the circuit courts becomes mandatory precedent for all the lower courts in that circuit. The 9th Circuit is comprised of Arizona, California, Oregon, Nevada, Washington, Hawaii, Montana, Idaho and Alaska.
Still, there is no record of Davis ever holding a bond hearing that resulted in a decision for dozens of withholding proceedings in the past five years, according to DOJ data. At least 20 of them had detention stretching past six months.
The Scripps investigation found one applicant before Judge Davis quit last December after waiting 631 days with no bond hearing decision, according to the DOJ data.
Judge Davis declined to comment and referred questions to DOJ.
Judge Davis is part of a growing group of immigration judges operating in open defiance of rulings by the 9th Circuit.
DOJ data obtained by Scripps show that in 2015 only one judge in the 9th claimed to have "no jurisdiction" to hold a bond hearing in a withholding case. Twenty-one judges made the claim in 2016, and 36 judges already have declared “no jurisdiction” through September of this year.
Also, according to the DOJ data:
- In the 9th Circuit, there is no record for at least 400 detainees in withholding only proceedings of ever receiving a bond hearing decision, even after 180 days in detention, from 2012 to August 2017.
- In the 9th Circuit alone, thousands of other cases show no record of any bond hearing decision, but there also is no record of a start date for detention. The DOJ says that information was not required until recently.
- One third of all withholding of removal cases in the country go through the 9th Circuit.
Retired Immigration Judge Ignacio Fernandez, who presided in DOJ’s Los Angeles court, said he first started hearing judges talk about claiming “no jurisdiction” at the end of 2014
“At the time I was a judge, that was an issue starting to surface,” Fernandez said.
For some judges, this was a way to respond to rulings from the 9th Circuit that required them to offer a bond hearing after prolonged detention, according to Fernandez, who said he never claimed “no jurisdiction.”
Joseph LaCome, one of Monica’s attorneys, said the trend has become more widespread recently, and he links it to San Francisco Immigration Judge Anthony S. Murry. In December 2016, Murry wrote a detailed legal memo in response to a request for a bond hearing in which he laid out his rationale for how and why he defies the 9th Circuit’s requirements.
Murry argued that the 9th Circuit Court of Appeals’ requirement to have the hearing "before an immigration judge" is “a judicial creation, untethered from the text of the Constitution.” He concludes he cannot follow the 9th Circuit's holdings, and is left with no authority to hold a bond hearing.
“It may fairly be asked, why not just have Immigration Judges conduct these hearings?” Murry wrote at the end of his memo. “After all, they are conducting other similar hearings, they are familiar with the cases and the law, and they have the infrastructure to conduct the hearings. There is a simple and clear answer to this question: the law forbids it.”
Yale law professor Cristina Rodriguez said it “seems like a significant overreach” for an immigration judge to critique a circuit court while interpreting the Constitution.
“He is an administrative actor in a legal hierarchy,” said Rodriguez, who teaches both immigration and administrative law. She said that whether the 9th Circuit got its rulings right or wrong, “it is the law of the 9th Circuit.”
Judge Murry initially said he wanted to explain his position, but he eventually declined through a Department of Justice spokesperson.
Scripps made numerous requests for comment to the Department of Justice and EOIR officials about this story, but the requests were all declined.
The DOJ also has not responded to a request for comment from any one of the current 36 judges in the 9th Circuit who have taken a “no jurisdiction” position on offering bond hearings in withholding cases this year.
Immigration and Customs Enforcement attorneys, who argue in court against people like Monica, have continued to make the case that DOJ’s immigration judges should deny the bond hearings on jurisdictional grounds.
ICE spokesperson Sarah Rodriguez also declined an interview, but said in an email that “there is no binding precedent rendering aliens in ... withholding only proceedings eligible for a bond hearing before an immigration judge.”
When asked to clarify the legal basis for this position, Rodriguez declined to comment and referred further questions to DOJ.
Retired Immigration Judge Andrew R. Arthur, who was sworn in during President George W. Bush’s administration, did agree to an interview. Arthur sat on the bench in York, Pa., in the 3rd Circuit, which did not establish a time limit for a bond hearing for withholding only cases. Still, he believes judges in the 9th Circuit who make the “no jurisdiction” claim are trying to send a message.
“They understand the consequences of allowing individuals to be under the impression that they can enter the United States without consequence,” he said.
Arthur now works for the Center for Immigration Studies, which brands itself as being “Low-immigration, Pro-immigrant.” He said that if Congress or the Supreme Court hasn’t specifically vested DOJ’s immigration judges with the power to grant the bond hearings, it could be “ethically and legally defensible” for them to disregard circuit rulings.
However, Arthur also said that this would not be the position he would take. “Until (the 9th Circuit’s rulings are) reversed, and I were the judge,” he said “I would have the jurisdiction and the obligation to hear the bond hearing.”
Justice outside the Department of Justice
Tucked away in the back of his law firm, Matthew Green sits in his office day after day among stacks of manila folders filled with details of his clients’ cases. Green is a Tucson-based attorney who began taking on cases pro bono when the “no jurisdiction” trend hit Arizona.
Nationally, only 14 percent of immigration detainees have lawyers, according to a September 2016 report from the American Immigration Council.
“The problem is that people who are detained are much more limited in their financial ability and their ability to retain counsel,” he said. “The longer they stay detained, the more dire their economic circumstances become.”
Green said many detained clients become despondent and quit their cases as the holidays approach, realizing they will spend them away from family and locked up. He believes the denial of bond hearings is a part of a larger strategy by DOJ that could force more people to give up before their case has been decided.
“I have no doubt they are familiar with the statistics and the nuances of how all this works, and what the likely results are,” Green said.
“(DOJ’s) interpretations I believe are completely at odds with the clear statement of the law as it has existed in the 9th Circuit since at least 2011,” he said. “They should be following the law.”
Green began taking the fight for bond hearings back to the judicial branch where he could ask judges in the Arizona Federal District Court to order DOJ to comply.
In the 14 cases he has brought so far, seven federal judges ordered immigration judges to reverse course on “no jurisdiction” rulings and grant bond hearings immediately.
“Every single federal court judge in Arizona that has reviewed these denials of bond hearings — they have flatly disagreed, categorically, 100 percent of the time to my knowledge,” Green said.
The seven judges who have ordered compliance come from politically diverse backgrounds, with three having been appointed under a Republican president and four under a Democrat. Upon receiving the orders, DOJ judges have complied each time, Green said.
Green cautions that suing DOJ in federal district court is always a last-ditch option, and he said many immigration attorneys with private practices don’t take the cases outside of the immigration court system. This, Green said, leaves many of those who are fortunate enough to have an attorney still out of luck and inside a cell.
Monica goes free — for now
One of Monica’s lawyers, Joseph LaCome, used Green’s strategy and it worked. On Aug. 4, Federal District Judge John J. Tuchi ordered Judge Davis to hold a bond hearing for Monica.
That hearing lasted just over 10 minutes and ended with Judge Davis ruling that the federal government had failed to prove Monica was a danger to the community or a flight risk, and he granted her bond.
A few hours later, Monica traded in her detention center uniform for a plaid shirt and black pants. Standing just outside the last buzzer door, she looked back at the mammoth facility that had held her for so many months and smiled. This is the first time in more than a year she had seen the walls of the facility from this side of the electric fence.
“I don’t have words to express this feeling,” Monica said. “It’s very beautiful. I feel really happy to be here, free, instead of being locked up in that place. I cannot believe it.”
But just a few weeks later, Judge Davis denied her grant for withholding removal and Monica has filed an appeal. Meanwhile, the DOJ is fighting Judge Tuchi’s ruling that ordered the bond hearing and led to her release. But for now, while all this plays out, Monica will remain living with family in the U.S., waiting for a decision about her future.
This Scripps News investigation was led by Mark Greenblatt, senior national investigative correspondent. You can follow Greenblatt on Twitter at @greenblattmark. Maren Machles, national investigative associate producer, co-reported the story, and can be followed at @marenmachles. Vik Narayan, national investigative video editor, edited the video, and Mark Fahey, national investigative data producer, researched and analyzed the data.