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.
