A lawsuit filed in June by a former Immigration Judge, Quynh Vu Bain, and exhibits the government has since filed raises a series of concerns about the way the government is managing the immigration courts and its FOIA obligations. [Note: although the aim of her suit is to remedy alleged mistreatment as a judge, most of the exhibits are filed under seal, so I don’t intend to comment on the merits]
Although the suit was filed in June, the complaint has already been amended, so I’ll be referencing that. In summary, former IJ Quynh Bain says there are basically three legal issues at stake. First, she says she made FOIA requests in 2015 and 2018 and that EOIR illegally withheld records. Second, she says she was subjected to discrimination, retaliation for engaging in protected activity, and a hostile work environment. Third, she says the DOJ retaliated against her for whistleblowing.
In summarizing the facts, Quynh Bain starts by noting she was assigned to the “Headquarters” immigration court where all hearings are done by video. Due to health concerns, she asked for reassignment to a non-video court. When that was denied, she filed an Equal Employment Opportunity complaint and then says “severe harassment” that followed prompted her to dismiss it. Bain says that when she complained about the video conferencing equipment “persistently malfunctioning” she was admonished for being “rude.”
York Immigration Court Problems – ACIJ Refuses to Allow Bond Hearings
Bain’s concerns about her work at the York Immigration Court are the first place that this case raises due process and constitutional concerns for immigrants. Bain says that after complaining, she was made to hear video cases in the York, Pennsylvania detention center where she says the EOIR would take old cases from “white male judges” dockets, dump them on Bain’s docket and make her “complete those hearings expeditiously.” Then she says her supervisor, Chris Santoro, made it impossible to complete the cases in time by refusing to send her the case files in advance so she could review them.
Bain also says that Santoro “disallowed bond hearings even in cases that did not involve mandatory detention,” and refused to allow her any time “off-the-bench” so she could review files or write decisions.
If this is true, it’s highly problematic. Under the immigration statute, people in ICE custody are eligible to ask for a bond. And Assistant Chief Immigration Judges aren’t allowed to dictate to Immigration Judges how to decide their cases. Santoro telling Bain not to hold bond hearings is deeply concerning (York is now closed and Santoro has left the EOIR, so it’s unlikely this will prompt any actual review).
She says later in the Complaint that after threatening to “go public with her concern,” Santoro did allow her to hold bond hearings. She says a later reprimand for being “intemperate” was retaliation for threatening to blow the whistle on this issue.
Not Reviewing or Signing Bond Memos
Bain’s lawsuit also takes issue with a supervisor criticizing one of her emails for being “rude.” But that email, like the issue with Santoro, raises serious due process concerns for detained immigrants. It gives the impression that Judge Bain was asking a different immigration judge to review a draft decision memorandum written by a legal assistant and to sign it for Bain, without Bain reviewing it.
Like the issue with EOIR recently ordering signature stamps to have headquarters staff sign orders as if they had come from the Immigration Judge, if this practice of issuing orders without reviewing them and having other judges “sign” them for each other is widespread, it’s concerning.
A “bond memorandum” is a memo prepared by a judge that explains why the judge denied (or granted) a person bond. In these cases, the judge has already decided the case and the memorandum is the judge’s explanation for that decision (so that the Board of Immigration Appeals can review it on appeal). According to the emails which are here, Bain had asked a legal assistant to write drafts of the memos. Then, when they were returned to her, she asked him to have a different judge review them and sign them “for her.”
In the end, the emails show that Bain’s supervisor rejected this request to have a different judge review and sign her bond memos. But it is unclear whether this was an ongoing practice or whether it is happening in other courts.
Arlington Immigration Court – ACIJ Dictating How to Decide Cases
Bain says that after the conflict with Santoro she filed an EEOC complaint. Then “within a month” she was “suddenly” granted the reassignment she had requested to the Arlington, Virginia Immigration Court. There, she says she was again overburdened with more cases than she could complete, and when she complained she was disciplined.
Bain says her direct supervisor at Arlington told her what decisions to make on specific cases. She says she complained that this conduct violated the regulations saying judges are supposed to be independent. She says this continued, so she complained to senior management. And she says those complaints were used to “justify her removal.” Then, when Bain challenged her firing before the EEOC, she says the EOIR relied on those emails to prove “insubordination.”
Again, without commenting on the merits, if that is true it seriously undermines the Immigration Courts’ credibility. “Insubordination” might be a justified reason to fire a federal employee. But the EOIR claims its Immigration Judges are independent. Just as with Santoro telling Bain not to hold bond hearings at York, the law requires Immigration Judges to make independent determinations, and supervisors aren’t allowed to tell them how to decide cases.
Attorney Complaints, Recusal, and Bain’s Motion to Reconsider
At Arlington, Bain also says attorneys filed complaints against her accusing her of bias. She says they accused her of turning off the hearing recording and then screaming at them, then turning the recording device back on. Then, when one of those attorneys asked Bain to recuse herself, Bain says she called her own witness, the court administrator, to testify at court about it. That prompted another complaint from an attorney. And these complaints eventually led to an Office of Professional Responsibility referral.
The OPR referral led to this 2019 report which said Bain had engaged in intentional misconduct by making false statements and had made “false and derogatory statements” about the “complainant attorneys in a written order” refusing to recuse herself. The lawsuit sheds a little more light on that last part. Bain writes that in her order refusing to recuse herself, she expressed that she thought one of the complaining attorneys worked for the government of Iran. And she writes that she used information from one of the attorney’s own bankruptcy cases, although she says she didn’t intend to accuse the attorney of fraud.
When Bain denied the request to recuse herself in one particular case, she says the BIA reversed her decision, said that she had “berated and screamed” at an attorney and sent the case to a different judge. Bain says that she, the judge, then filed her own “motion for reconsideration” with the BIA, but that the BIA denied it because she lacked standing.
Through FOIA we obtained a highly redacted version of her motion. There Bain says she was planning to refer the attorneys who complained about her to the Office of General Counsel’s “Fraud Unit” but her supervisor took those cases away before she could.
Bain’s lawsuit says that the BIA’s decision was then “swiftly dispatched to the news media.” But she says her 2020 firing was based in part on the EOIR’s belief that Bain herself had leaked that decision to the media, which she denies.
Generally, judges aren’t allowed to file motions as if they were one of the parties. Nor can judges normally call their own witnesses.
In her lawsuit, Bain makes a deeply concerning request about this particular case. She says that the “BIA’s decision” that assigned the case to a different judge “should be rescinded and remanded for a new decision.” That is, she’s asking that an immigrant’s removal proceedings be reopened. If the person has already been granted immigration status, that action would mean they would lose their status. Not only does the federal district court lack authority to do that – it’s a shocking request from a former Immigration Judge that, if granted, would jeopardize the person’s immigration status.
Concerns Over EOIR’s FOIA Management
Bain’s lawsuit also says the EOIR mishandled a FOIA request and left the documents she had asked for (which they refused to give her) on their server where anyone could access them. She says EOIR only gave her a handful of documents. But then, while she was “taking an ethics training course,” she “came upon” a folder, saved to the EOIR’s server, called “BAIN FOIA 2015” which contained all the documents the EOIR had withheld from her FOIA request. She says the folder contained roughly 1,000 pages of her records that had not been turned over.
This allegation is a bizarre own-goal for EOIR. It appears that when the EOIR’s FOIA office processed Bain’s 2015 FOIA request, it withheld records as “exempt” (meaning they weren’t supposed to be released) but then left them on the open server where EOIR employees (including Bain) could see them and save them.
It is unclear what will happen to the lawsuit, and many of Bain’s allegations about the way she was treated as an IJ are deeply troubling if they prove to be true. Whether there was discrimination or not, there is no serious dispute that the back-breaking caseloads for immigration judges and ongoing issues of mismanagement have led to terrible working conditions for Immigration Judges. In the email messages the EOIR called “rude,” it is clear that all involved were frustrated with ongoing, unaddressed, endemic technology problems. The thread begins with an all-caps angry email from the court administrator.
Ultimately, the immigration courts are not designed to handle the number of cases pending. They’re not set up for judges to make neutral decisions without fear of an “insubordination” finding, and the EOIR is not good at managing its own records. All of these are good reasons to abolish the immigration courts altogether (or at least separate them from the Department of Justice) and start over.