Advocates: Complaint against immigration judge points to flawed accountability system
In the fall of 2020, “Juan” had trouble falling asleep whenever he thought about his upcoming court appearance in Cleveland, where the only immigration court in Ohio is located.
The 43-year-old father of three from Mexico, who asked to remain anonymous for fear of retaliation, had already gone through three hours-long hearings for his application to obtain permanent residency. He said he was nervous and exhausted when he stepped into the court on Oct. 16, 2020, for his fourth hearing.
Juan expected from experience that he would once again face a series of aggressive questions from Judge Teresa Riley, whose intimidating style almost made him give up on his case altogether, he said.
But it still astounded him when Riley called Mexican immigrants “illegals” while cross-examining his wife about the subcontractors that Juan employed at his construction business.
“Do you know the people? Are they also Mexicans?” Riley said, as shown in court transcripts cited in a complaint filed later. “I’m not judging whether you employed illegals. I’m trying to figure out if you’re telling the truth.”
“I felt really bad when I heard the judge call us 'illegals,'” Juan, a resident on Columbus' Southwest Side, said in Spanish through an interpreter. “No one is an ‘illegal’ in this country. We’re all humans. It feels like the judge has no compassion for us and doesn’t like Latinos.”
Juan is not alone in his grievances. In May 2021, the Ohio chapter of the American Immigration Lawyers Association submitted a group complaint against Riley to the Executive Office for Immigration Review (EOIR), an agency within the Department of Justice that oversees immigration courts.
Citing the experience of six anonymous immigrants, including Juan, the complaint accuses Riley of biases against Latino immigrants, bullying and hostile questioning, a lack of professional competence and other alleged misconducts.
But complainants like Juan and their attorneys said they have been disappointed that their efforts did not lead to any lasting changes and that there was little transparency in the investigation process.
Riley stopped hearing cases for a few weeks in July and August, but returned shortly after, according to hearing schedules shared with the Dispatch. It is unclear why the judge was absent.
Scott Bratton, president of AILA-Ohio, did not wish to comment on the complaint. But multiple attorneys familiar with the matter said no one received clear information from EOIR on the investigation outcome, as is often the case with these complaints.
“There’s a lack of transparency and we don’t know if there’s any outcome from this complaint,” said Julie Nemecek, a Columbus-based attorney who represents Juan. “And when there isn’t an independent investigator and you have people on the same team investigating each other, that isn’t a fair way to undo the wrong that has been done.”
James Roder, the court administrator at the Cleveland Immigration Court, declined to offer a response.
Gail Montenegro, EOIR’s Midwest regional public information officer, declined to comment on the allegations against Riley but said the agency has a well-established process for handling complaints against immigration judges.
"EOIR takes all complaints seriously, investigates all colorable complaints, and takes corrective action when appropriate,” Montenegro said in an email statement.
Complaint process is flawed, advocates say
Nationally, EOIR receives about 100 complaints against immigration judges every year, but most of them do not carry serious consequences, EOIR statistics show.
Sixty-one percent of all complaints closed in the fiscal year 2020 ended up being dismissed. Another 35% ended with additional counseling or training of the judge involved. Three percent concluded with retirement, resignation or termination, and none gave rise to other disciplinary actions like reprimand or suspension.
In Cleveland, there have been seven complaints filed against the judges in the past five years, according to records obtained from the Department of Justice through a public records request.
Their nature ranged from alleged due process violations to concerns over in-court conducts, records show. Two of them were dismissed. One was closed because the judge in question had since retired. Three led to oral counseling.
With the seventh and latest complaint — the one led by AILA-Ohio against Riley — information regarding the investigation outcome was redacted by the Department of Justice. Montenegro declined to provide additional details about the case.
Because these complaints rarely generate substantial disciplinary actions and there is a fear of retaliation from the judges, immigration attorneys and their clients often hesitate to report misconducts, said Austin Kocher, a research associate professor at the Transactional Records Access Clearinghouse (TRAC), a research institute at Syracuse University.
“Immigration attorneys don’t file these complaints often enough because they still have to practice in front of these judges,” said Kocher, whose research focuses on immigration policies. “You can't file a complaint one day against a judge and the next day come in with your client and expect the judge to treat them well. There’s just a real lack of systematic accountability.”
Emmanuel Olawale, a Westerville-based immigration attorney, said he has faced this dilemma firsthand. In October 2020, when he received a notice from the Cleveland Immigration Court that the asylum case of one of his clients was denied, he was disturbed by the language that Judge Jonathan Owens used in the decision.
In the asylum application, Olawale’s client, a 22-year-old asylum seeker from Cameroon, said armed officers from that country sexually assaulted her when she was a minor while they were searching for English-speaking dissidents like her family.
In an attempt to establish that the abuse did not happen due to the client's identity, Owen stated that it is likely that officers raped the teenage girl not because she was a member of the English-speaking minority but because “they wanted to do so and thought that the respondent was a pretty virgin,” according to court documents shared with The Dispatch.
“If someone’s a ‘pretty virgin,’ is that a good reason for them to rape her in any context?” Olawale said. “That statement is misogynistic and very shocking to me.”
Instead of submitting a complaint against Owen, however, the immigration attorney opted to voice his concerns in an appeal, which is currently pending.
“Filing a complaint against the judge is something on the table,” Olawale said. “But it won’t really change anything in my client’s case. There’s also an imbalance of power in the courtroom and the fear of retaliation. I’ll have to weigh my options and consider how bad it is before I stick my neck out there.”
Judges concerned about discipline procedures, too
Immigration attorneys and their clients are not the only ones who said they are distrustful of the judicial complaint process. Those on the other side of the complaints — the immigration judges — also take issues with the EOIR discipline process.
Judges are not always made aware of the existence of a complaint in a timely fashion, and there is no transparency or consistency when it comes to sanctions imposed in a particular case, according to Dana Marks, president emerita at the National Association of Immigration Judges who spent 35 years on the bench in San Francisco, California, before retiring in December.
“It’s not consistent because a complaint usually starts out with the person’s immediate supervisor being told,” Marks said. “Some of the supervisors discuss the complaint with the judge immediately and others don’t. There’s a wide spectrum of when judges are notified, how much information they are provided, and whether they are allowed to give their side of the story before decisions are made."
There is a fine line between judges’ taking a harsh stance on immigration and their exhibiting unprofessional behaviors, said Paul Schmidt, a former immigration judge based in Arlington, Virginia, who retired in 2016. While judges should not be punished for making a good-faith legal decision, using terms like “illegals” seems to be a clear violation of professionalism, he said.
“There are complaints that were made because someone is not happy that they lost a case, and those claims need to be taken with a grain of salt,” Schmidt said. “But at the point where judges are using racially charged terms or demeaning people, then that seems to me that it goes beyond what they should be allowed to do.”
Personnel changes at Ohio's immigration court
Juan grew up in Guadalajara, Mexico, where his family had few resources and he often had to go to school on an empty stomach, he said. When he turned 16, he left his hometown and crossed the border by himself in search for a better life, settling in Columbus.
In 2012, ICE agents arrested Juan at his home and put him in deportation proceedings. Shortly after, he applied for an immigration benefit called cancellation of removal to adjust his status, arguing that his removal would cause hardship to his three U.S. citizen children, aged 12, 15 and 16.
Juan’s case was initially assigned to Judge Thomas Janas, an immigration judge in Cleveland who has since retired. A few years ago, when his case was reassigned to Riley, Juan heard from friends that the new judge was unusually harsh.
“The first judge I had, he was strict, but he seemed like a very capable judge and I felt really comfortable,” Juan said. “With Riley, it felt like she just wanted me out. Sometimes after a court date, I would be so down that I would just say, ‘Forget it, I should just leave.’"
The Cleveland Immigration Court, much like the rest of the country, saw dramatic personnel changes during Donald Trump’s presidency.
The court used to have only three judges, all of whom have since left their posts. The Trump administration filled the openings and expanded the size of the bench, appointing 10 judges who currently make up the court. Most of them are former government attorneys, and five used to prosecute immigration cases on behalf of the Department of Homeland Security.
The lack of a transparent complaint process is especially concerning given this influx of new judges, who tend to come from enforcement backgrounds and lack experience on the bench, Nemecek said.
Right now, Ohio has one of the highest asylum denial rates in the country — 88% in the fiscal year 2021, compared with the national average of 63%, according to TRAC data. Riley and Owens have denied 89% and 96% asylum cases they were in charge of, respectively, since their appointment a few years ago.
“I think about the hundreds of thousands of immigrants across the country who have been wronged by the misconducts of Trump-appointed judges,” she said. “There are still good judges out there. But we have to address these bad judges.”
Juan’s application for cancellation of removal was denied in November 2020. The case is currently in the appeal process.
As the sole breadwinner in his family, he said his wife and kids would suffer emotionally and financially if he were deported.
“I want to stay because of my kids,” said Juan, who recently bought a new house for his family. “I came here when I was very young. I have nothing in Mexico. I saw the denial coming after seeing everything that Judge Riley was doing. But I hope someone can help us.”
Yilun Cheng is a Report for America corps member and covers immigration issues for the Dispatch. Your donation to match our RFA grant helps keep her writing stories like this one. Please consider making a tax-deductible donation at https://bit.ly/3fNsGaZ.
ycheng@dispatch.com
@ChengYilun
This article originally appeared on The Columbus Dispatch: Discipline system for immigration judges lacks transparency
