As ICE Agents Hide Their Faces, ICE Attorneys Are Hiding Their Names in Immigration Courts

One immigration judge referred to an ICE attorney as merely “Department” during a hearing.

Immigration and Customs Enforcement (ICE) has faced criticisms recently for agents wearing masks to conceal their identities while making immigration-related arrests. Now, immigration judges are withholding the names of lawyers representing ICE from public record, The Intercept revealed this week. 

"We're not really doing names publicly," said Judge ShaSha Xu, an immigration judge in New York City, during an immigration hearing in late June, reports The Intercept. But only the names of the attorneys representing ICE were omitted, shocking the two lawyers representing immigrants in the courtroom. One immigrant's attorney pushed back, stating the record would be incomplete without the ICE lawyer's name. But Xu refused to provide a name, citing privacy concerns. Both immigrant attorneys were directed to send a private and confidential message to the ICE attorney via the Webex platform used for the proceeding. In another case in July, Judge James McCarthy, also a New York immigration judge, referred to the ICE attorney as merely "Department" with no objections.  

Immigration courts are part of the executive branch and differ from courts run by the judiciary in important ways. Immigration judges and attorneys representing the government are employed by the Justice Department and the Department of Homeland Security (DHS), respectively—raising concerns over their susceptibility to political pressure. While immigrants have a right to due process under the Fifth Amendment, their rights are limited in comparison to those in criminal court. Immigrants have no right to a court-appointed attorney, except in rare cases, and must represent themselves unless they hire an attorney. Immigration courts are also less transparent than county, state, or federal courts; procedural rules block the public—and immigrants—from accessing legal filings and valuable case law of previous immigration hearings.

But even with a reputation for lacking transparency, the New York immigration judges' actions are unprecedented. "I've never heard of someone in open court not being identified," Elissa Steglich, a law professor and co-director of the Immigration Clinic at the University of Texas at Austin, told The Intercept. "Not identifying an attorney for the government means if there are unethical or professional concerns regarding [DHS], the individual cannot be held accountable. And it makes the judge appear partial to the government." 

"It's up to the judges whether or not they want to [withhold an ICE attorney's name]," Judge Shirley Lazare-Raphael, a New York immigration judge, told The Intercept. She's heard that some ICE attorneys believe it is "dangerous to state their names publicly." 

Since President Donald Trump took office, pressure to deport immigrants has escalated, bringing many due process concerns to the forefront. While much of the focus has remained on masked ICE agents indiscriminately arresting noncitizens to meet the Trump administration's quota of 3,000 immigration-related arrests per day, pressure has also been mounting within the immigration court system to process more deportations, quicker. New immigration protocols have resulted in a record-high 11,000 asylum cases closed in April, with a denial rate of 80 percent—up from 62 percent over the last six months. Once asylum is denied, those without another legal means to stay in the United States are deported.

Although no formal rule or directive has been put in place to hide ICE attorneys' names from the public, favoring state actors' privacy concerns over the rights of the American people to hold their government accountable will only degrade the public's trust.