The Vanishing Attorneys: How Secret Immigration Courts Threaten Due Process and Signal a Darker Future
A chilling trend is taking hold in U.S. immigration courts: judges are increasingly refusing to state the names of the government attorneys arguing for deportation. This isn’t about protecting identities from threats – it’s about eroding transparency and accountability in a system already criticized for its lack of due process. The practice, first identified by The Intercept, raises profound questions about the future of immigration law and the rights of those facing removal from the country.
The Erosion of Transparency in Immigration Courts
Unlike most courts, immigration courts operate with a significant lack of transparency. Run by the Executive Office for Immigration Review (EOIR), part of the executive branch, these courts feature prosecutors from ICE and DHS who aren’t obligated to provide defense lawyers. Judges are appointed – and can be fired – by the President, creating a system ripe for political influence. Now, the simple act of identifying who is arguing a case is being cast aside.
The recent cases in New York City, where Judge ShaSha Xu declined to name the ICE attorneys, are particularly concerning. As attorney Jeffrey Okun noted, the move was “bizarre.” This isn’t a procedural formality; it’s a fundamental aspect of due process, allowing for scrutiny and accountability. Without knowing who is presenting the government’s case, it becomes impossible to address potential ethical or professional concerns. As Elissa Steglich, a law professor at the University of Texas at Austin, points out, concealing the attorney’s identity shields them from accountability and can create the appearance of bias.
The “Privacy” Rationale and the Rise of Anonymous Enforcement
Judge Xu attributed the change to “privacy,” claiming “things lately have changed.” This justification echoes a broader trend within the Department of Homeland Security (DHS) of prioritizing secrecy over transparency. DHS has claimed a 700% increase in assaults against ICE agents, using this as justification for agents wearing masks during raids. However, the actual number of reported assaults remains relatively low, and the agency’s definition of “assault” is often questionable. This raises suspicions that the “privacy” concerns are a pretext for shielding attorneys from scrutiny, potentially due to the controversial nature of their work.
This trend aligns with a disturbing pattern of anonymous enforcement. Immigrants are increasingly being arrested by individuals with covered faces, making it impossible to identify their captors. Now, they may not even know the names of the attorneys seeking their deportation. This creates a climate of fear and distrust, undermining the principles of a fair legal system. The implications extend beyond individual cases; it signals a systemic effort to distance the government from its actions.
The Moral Crisis Within ICE and the Collapsing Asylum System
The reluctance of ICE attorneys to be identified may stem from a growing internal moral crisis. Former ICE prosecutors, like Veronica Cardenas, have spoken out about the emotional toll of deporting individuals who often have strong ties to the U.S. Cardenas, whose own mother was once detained by ICE, realized the people she was prosecuting were often similar to her own family. This internal conflict is driving some attorneys to resign, as evidenced by the case of Adam Boyd, who left ICE after making a “moral decision.”
This internal turmoil coincides with a dramatic collapse of the asylum system. Asylum denial rates have skyrocketed under the Trump administration, jumping from 62% to 80% in the past six months, with predictions of reaching 95%. This isn’t simply a matter of stricter enforcement; it’s a systematic dismantling of protections for those fleeing persecution. The combination of increased enforcement and diminished due process creates a perfect storm for injustice.
What’s Next: The Future of Immigration Courts
The practice of concealing ICE attorneys’ names is likely to spread. Judge Shirley Lazare-Raphael has confirmed that it’s up to individual judges whether or not to disclose these identities. Without a formal directive prohibiting the practice, it could become commonplace, further eroding transparency and accountability. The question, as Daniel Kowalski of Bender’s Immigration Bulletin aptly asks, is “Where does it stop?” Will immigration judges themselves become anonymous, operating behind a screen?
The long-term consequences are significant. A system where the government operates in the shadows, shielded from scrutiny, is a system ripe for abuse. It undermines the rule of law and erodes public trust. The current trend isn’t just about concealing names; it’s about dismantling the foundations of a fair and just immigration system. The future of immigration law hinges on restoring transparency and ensuring that all parties are held accountable.
What are your predictions for the future of transparency in immigration courts? Share your thoughts in the comments below!
