Houston’s Immigration Court Backlog Isn’t Helped by a Judge That Barely Works
There’s a sign outside the United States Department of Justice courtroom of Houston immigration judge Mimi Schooley Yam, warning people against wearing perfumed shampoo, fragrant hair product or scented deodorant.
Inside Yam’s court, there’s a good chance she’ll give everybody the boot. “She has cleared her courtroom if somebody’s outfit hadn’t been dry-cleaned in between hearings,” says a Houston-based immigration lawyer. Even though Houston’s understaffed immigration courts are buried under a crippling backlog, Yam often resets the hearings of asylum seekers because of her so-called debilitating allergies.
Before arriving in Houston in 2004, Yam presided at San Francisco Immigration Court for nearly a decade. “Nobody here wanted to do a hearing…if Mimi Schooley Yam was the judge,” says a San Francisco-based immigration lawyer. Like many law practitioners contacted by the Houston Press, the attorney asked not to be identified because the attorney still practices immigration law.“She doesn’t have the right temperament or the skill set.”
Three years ago, when Yam actually ruled on immigration cases in Houston, Maria Esparza Olvera’s life was in the hands of the controversial, erratic judge.
Born in central Mexico, Olvera, whose father belonged to a prominent political party, had become a doomed target of Los Zetas, which the U.S. government calls “the most technologically advanced, sophisticated, powerful, ruthlessly violent and dangerous cartel operating in Mexico.” Olvera’s lawyer and a friend say that Los Zetas chained Olvera naked to a pole, forced her to ingest drugs and ransomed money from her husband, a Houston business owner, in exchange for Olvera’s life.
Olvera managed to escape the clutches of the brutal criminal syndicate and procure a hearing with Houston immigration judge Jimmie Benton. But Benton retired in 2013, and Yam took over Olvera’s case.
Olvera spent a year in detention at the Houston Service Processing Center on Greens Road near George Bush Intercontinental Airport. “She deteriorated psychologically waiting for a hearing,” recalls Olvera’s attorney, Clarissa Guajardo. When Olvera was released in advance of her court appearance, she couldn’t stop shaking, says her friend Suzanne Coppola.
In the end, Olvera’s big day lasted minutes.
Yam swiftly ordered Olvera’s removal from the United States based on an “administrative error.” Guajardo, a former Department of Justice lawyer, asserts that Yam didn’t understand Olvera’s procedural history and made absolutely the wrong decision. Guajardo and Coppola say that Yam wouldn’t even allow
Olvera to tell her story.
U.S. officials deported Olvera to Mexico on November 7, 2013. On Sunday, January 31, in what friends and family call “suspicious circumstances,” Olvera was found dead at her home. She was 53 years old.
Critics say that cases like Olvera’s are the latest in a line of bungled rulings in the threadbare judicial history of Yam, who’s currently on an extended leave of absence but still collects a six-figure paycheck.
Yam, appointed by U.S. Attorney General Janet Reno in December 1995, once denied asylum to a Guatemalan national who had been gang-raped by soldiers and “survived atrocities that most of us experience only in our worst nightmares,” reads a U.S. Court of Appeals for the Ninth Circuit final judgment. After a four-year legal fight in federal court, Yam’s decision was overturned and the persecuted woman won asylum.
The 59-year-old judge should’ve been permanently removed from the bench years ago, says the San Francisco attorney who filed multiple complaints against Yam during her nine-year stint in California. Instead of disciplinary action or the loss of her job — because it’s nearly impossible for an immigration judge to get fired — the attorney says, Justice Department officials transferred her to Houston.
Overall, the country’s immigration court system is a mangled mess, says Judge Dana Leigh Marks. The San Francisco immigration judge and president of the National Association of Immigration Judges calls the current setup at the nation’s 58 immigration courts “death penalty cases in a traffic court setting.”
During the summer of 2014, when a record number of Central American nationals sought entry into the United States, the nation’s underfunded, understaffed and under-everything immigration court system nearly collapsed.
As a result, President Barack Obama directed the Executive Office for Immigration Review, which handles immigration court and asylum proceedings, to prioritize the adjudication of cases for unaccompanied minors and families in detention. Most other immigration matters, such as minor criminal offenses and permanent resident cases, have been reset to November 29, 2019.
“Three years out is too long,” says Samantha Del Bosque, staff attorney at the Houston-based Tahirih Justice Center, which provides pro bono services to immigrant women and children. “Evidence can go stale and experts who are academics tend to move around. For us, it creates a lot of hardships. It’s quite a mess.”
“I’ve had a client whose asylum case has been reset seven times,” says Raed Gonzalez of the Houston immigration law firm Gonzalez Olivieri. According to Syracuse University’s Transactional Records Access Clearinghouse, the nationwide immigration case pileup stands at 456,644. And counting.
Yam, who hasn’t heard a case since May 2015 because of a leave for reasons that haven’t been publicly disclosed, certainly isn’t helping with Houston’s dog-tired immigration court.
According to December 31, 2015, figures provided to the Press by the immigration review office, Houston’s immigration judges are drowning under a glut of 35,340 pending cases. TRAC data shows that Houston’s bottleneck is the third-highest in the country, two spots behind New York City and Los Angeles.
“Houston is the largest city closest to the Mexico border,” says Alexandre Afanassiev of the local immigration firm Quan Law Group. “There are only six judges, and that’s not enough.” Houston, like many immigration courts across the country, has been hampered by attrition and retiring judges, and critics say that DOJ is dragging its feet with hiring replacements.
Meanwhile, Yam, who in 2014 made the maximum salary for an immigration judge, $167,000, remains on the payroll. “The idea that she’s not hearing cases and is taking up resources is infuriating,” says Del Bosque about Yam, who decided a meager 15 cases from January to May 2015. In the same time frame, Houston immigration judge Richard Walton issued judgments on more than 700 cases.
Even when Yam shows up for work, attorneys cringe whenever a notice for hearing with her name on it arrives in their mailboxes. The San Francisco lawyer, whose bizarre run-ins with Yam played out like kangaroo court trials rather than federal proceedings, pities the asylum seeker who draws the unpredictable judge.
“There’s a 500 percent disparity between the good and bad judges in the way they adjudicate,” says the attorney. “There’s an overwhelming amount of professionalism in the court. Mimi Schooley Yam is the absolute exception to the rule for the type of people that are hired.”
Houston immigration judge Mimi Yam has been on an undisclosed paid leave of absence since May 2015.
It’s a February afternoon inside of downtown Houston’s Continental Center II, and the waiting rooms and hallways of the ninth-floor immigration court teem with last-minute-strategizing attorneys and their on-edge clients.
A visitor tugs at the handle of Yam’s courtroom, located inside the Jefferson Street office tower, and the latch gives only an inch. Yam’s name is also absent from the day’s dockets. Meanwhile, hearing after hearing crams the trial calendars of judges Nimmo Bhagat, Chris Brisack, Gary Endelman, Monique Harris and Clarease Rankin Yates.
The next week, Yam’s courtroom is still locked and there’s again nothing on her docket. The week after that, rinse and repeat. And the following week after, and so forth.
Yam hasn’t tried a case for nearly a year. Federal personnel refused to explain her vanishing act or grant the Press an interview with the judge, who’s still listed in the Houston immigration court phone directory. (A call placed through the main switchboard went to Yam’s voice mail. The Press wasn’t able to find a home or cell phone number for Yam.) According to Harris County Appraisal District data and a public records search, Yam lives in a luxury high-rise in downtown Houston and paid property taxes on her condo for the 2015 tax year. In fact, she is so reclusive that the only photograph we found of her was in a Houston restaurant on a wall dedicated to her and other celebrities.
“[The Executive Office of Immigration Review] does not comment on personnel matters or the leave status of agency personnel,” says LaFondra Lynch of the Falls Church, Virginia-based organization that’s responsible for adjudicating immigration cases. “EOIR policy prohibits immigration judges from participating in interviews with reporters.”
The response from the immigration review office, created by the Department of Justice in 1983, isn’t surprising. When the cascading volume of U.S.-seeking immigrants from the politically unstable countries of El Salvador, Guatemala and Honduras reached crisis proportions in 2014, the federal government also shut off reporters’ access to migrants’ court hearings and detention facilities.
Though the Press was able to slink into Endelman’s courtroom and witness a number of preliminary hearings, we were kicked over to EOIR media relations after attempting direct contact with a handful of Houston’s immigration judges, including Yam. Retired Houston immigration judge William Zimmer also failed to respond to the Press’s interview request.
According to biographical information compiled from EOIR and TRAC resources, Yam, who received a Bachelor of Science degree in 1977 from Middle Tennessee State University and a Doctor of Law degree in 1987 from Tulane University, worked in private practice in New Orleans until her 1995 appointment to the San Francisco Immigration Court.
Along with her alleged tantrums — according to a Houston immigration attorney (who also didn’t want his name used in this article), Yam once told a client in open court, “You’re going to lose the case with the lawyer you have” — TRAC data shows that when Yam actually decides cases, she rarely grants asylum. From fiscal years 2007 to 2012, the most recent figures available for Yam, the judge denied asylum 80.9 percent of the time, which easily ranks among the top rejection rates in the country.
Additionally, Yam issued only 115 decisions from 2007 to 2012. Houston immigration judges Philip Law and Brisack each ruled on more than 400 asylum cases during the same time frame. Yam, between January 2010 and May 2015, went a total of 24 months without deciding a single case.
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When the Press asked for recent figures on Yam, a TRAC representative wrote, “We haven’t done an asylum report on Judge Yam since 2012. No report is compiled unless a minimum number of asylum cases are decided in the period in question.”
With Yam out, the average delay at Houston’s immigration court (which includes detention cases at the Houston Service Processing Center, near Bush Intercontinental Airport) has ballooned to 673 days, according to TRAC data.
In April 2015, the Houston Chronicle reported that Yam had been suspended in retaliation for violating the federal Whistleblower Protection Act. Washington D.C.-based whistleblowing attorney Jason Zuckerman, who publicly said that EOIR should immediately reinstate Yam, tells the Press, “I have not spoken to Judge Yam since August . I have no comment.” John Judge, Yam’s Austin-based employment litigation attorney, didn’t respond to the Press’s questions.
One Houston immigration attorney says he sees Yam out and about in the city, where her allergies don’t seem to bother her.“It’s a big boondoggle. I see her around town at restaurants and there’s stuff all around,” says the attorney. “There doesn’t seem to be a problem… She acts like she doesn’t see me.”
The circumstances regarding Yam’s transfer from California to Texas appear to be just as wacky.
Following Yam’s continuous antics, the San Francisco immigration lawyer filed multiple complaints with EOIR. “She was the same way here,” says the attorney. “She made people stand in the hallway if they wore cologne and perfume.”
Once, says the attorney, Yam and the lawyer became ensnared in an argument during a hearing. The situation promptly deteriorated, and Yam stormed out of the courtroom. “She just left us sitting there,” the attorney says.
“She later filed a complaint against me, and it was bizarre. It said that I had attempted to assault her, physically harm her, and that I was screaming at her,” remembers the attorney. “It said that my eyes were red with anger, kind of like The Exorcist. The only thing missing was my head twirling. It also said that the only reason I didn’t attack her was because I couldn’t figure out how to open the courtroom gate.”
Later, says the attorney, two representatives from the Justice Department’s Office of Professional Responsibility flew out to investigate. “Shortly thereafter,” says the lawyer, “she was moved to Houston.”
Rawnak Chowdhury of Sugar Land is one of the thousands of immigrants whose cases have been re-set to the end of 2019.
Local attorneys say that Houston’s swelling mass of pending cases will get worse as long as Yam remains on leave. Folks like Rawnak Chowdhury, whose legal situation isn’t all that complicated, are paying the price.
The Sugar Land woman has been eligible for permanent residency since 2005, the year the Bangladeshi national married her husband, a U.S. citizen. A year and a half after Chowdhury’s master calendar hearing (which is an individual’s first appearance in front of an immigration judge), she was supposed to appear before Judge Clarease Rankin Yates for a merits/evidentiary hearing, in July 2012.
The 2012 hearing was rescheduled to February 2013, according to Chowdhury’s attorney, Amanda Waterhouse, of the Houston and Dallas immigration and nationality law firm Reina and Bates. When February 2013 rolled around, time ran out during the hearing and Yates reset Chowdhury’s case to March 2015.
Not only was the March 2015 hearing canceled, but Yates also relegated Chowdhury’s case to a master calendar hearing because of the federal government mandate on Central American surge cases. Chowdhury’s next date in court, like thousands nationally, is now set for November 29, 2019.
In July 2014, EOIR prioritized the adjudication of cases — called the “rocket docket” — of recent border crossers into four groups: unaccompanied children, families in detention, families released on “alternatives to detention” and detained cases of recent border crossers. Nearly everyone else has been reset to the tail end of 2019.
“While some rescheduled cases may have hearings on that date, the vast majority will be rescheduled for another date, earlier or later, depending on docket availability,” says Lynch. “EOIR’s response to the evolving situation on the southern border will continue to adapt appropriately, and to concentrate on fair and expeditious hearings, with due process to all respondents who come before the court.”
While an asylum hearing can last all day, Del Bosque of Tahirih Justice Center says a master calendar hearing might take five minutes, and a merits hearing can be as quick as ten minutes. By November 2019, Chowdhury would’ve spent 14 years in the immigration court system before making what amounts to a five-minute, introductory court appearance.
“It’s so upsetting and frustrating to me. I just need a decision, yes or no, so I can be mentally stress-free,” says Chowdhury, who adds that she’s barred from overseas travel under U.S. Citizenship and Immigration Services policy. “I wasn’t able to see my father before he died, and now my mom is on her deathbed [in Bangladesh].”
According to multiple media outlets, many Central American women and children fleeing poverty and violence — and armed with the belief that they’re entitled to protection under U.S. immigration and refugee laws — crossed the Rio Grande and quickly gave themselves up to U.S. Border Patrol. When 68,631 children from Central America (nearly twice the number of the previous year) were stopped at the border in 2014, the systemic problems with the immigration court system got really ugly really fast.
“For years, the [National Association of Immigration Judges] has called attention to the fact that the courts are horrifically under-resourced. The surge would not have been as devastating, but instead we were anemic. It was the final straw,” association president Marks tells the Press.
Instead of addressing the court system’s desperate needs, the Obama administration has emphasized border enforcement, detention and deportations. According to a 2014 Migration Policy Institute study, the budgets for Immigrations and Customs Enforcement as well as Customs and Border Protection, the two agencies responsible for the detention of immigrants, shot up by 300 percent since 2002.
Meanwhile, EOIR’s budget has seen only modest increases over the years. As a result, the current 456,644 pending backlog of administrative immigration removal cases, which more than doubled between 2010 and 2015, means that each of the country’s immigration judges is handling around 1,400 cases.
According to a September 21, 2015, TRAC report, the average wait time for an individual in the immigration court’s pending-case list hit an all-time high of 635 calendar days.
“But this average wait time only measures how long these individuals have already been waiting, not how much longer they will have to wait before their cases are resolved,” states the report, which projects an additional wait time of 436 calendar days.
The thing is, says Gonzalez, the backlog has become such a problem that even unaccompanied minors have been forced to wait it out. “Nobody is talking about how the surge hasn’t stopped,” says Gonzalez. “Even some unaccompanied minors are being reset to 2019.”
Local immigration attorney Raed Gonzalez says that Houston’s record backlog of 35,340 removal cases will continue to pile up as long as there are only five sitting judges.
In 1981, when she was a nine-year-old girl living in San Andrés Villa Seca, Guatemala’s civil war spilled into the rural village inhabited by Reina Izabel Garcia-Martinez and her family. Insurgent guerrillas kidnapped Garcia-Martinez’s brother, and he has not been seen or heard from since.
According to court documents, the Guatemalan military, instead of pushing out guerrilla tormentors, doubled down on the beating and raping of the villagers. One night, Guatemalan soldiers, believing Garcia-Martinez’s family supported the antigovernment movement, tied up her father, forced her mother to cook them dinner and gang-raped Garcia-Martinez, then a 19-year old.
A traumatized Garcia-Martinez fled to the United States in 1993 and eventually requested asylum, withholding of removal, and relief under the Convention Against Torture. In 2001, Garcia-Martinez testified in front of Yam, then into her sixth year as an immigration judge in San Francisco.
Court documents show that Yam believed in Garcia-Martinez’s credibility as a witness and called her testimony sincere and genuine. But in a shocking decision, the judge ruled that the “evidence in the record simply does not substantiate a finding that [Garcia] had been a victim of past persecution.”
Instead, Yam chalked up Garcia-Martinez’s gang rape as a random criminal act. “Particularly, [Garcia] has failed to show that her attack had anything to do with her political opinion, her race, religion, her political affiliation or membership in a particular social group,” ruled Yam.
Yam ordered Garcia-Martinez’s deportation, even though the asylum-denied woman faced a repeat threat of rape and torture in Guatemala. When Garcia-Martinez appealed Yam’s verdict, EOIR’s Board of Immigration Appeals affirmed Yam’s deportation order without an opinion.
Finally, in June 2004, the U.S. Court of Appeals for the Ninth Circuit found that Garcia was entitled to protection under asylum laws. The appellate court, in a tersely written decision, said Yam failed to recognize tangible evidence of political persecution that was “stamped on every page” of Garcia-Martinez’s record.
“[Yam’s] determination that Garcia’s rape was a random criminal act, unconnected to the government, is not supported by substantial evidence,” wrote federal appellate judge Johnnie B. Rawlinson. In July 2005, EOIR’s Board of Immigration Appeals granted asylum to Garcia-Martinez, and the outcome of Reina Izabel Garcia-Martinez vs. John Ashcroft, Attorney General, has been seen as a victory for women affected by wartime sexual assault.
It’s decisions like these, along with Yam’s idiosyncrasies, that leave Houston attorneys wondering why she still has a job.
The San Francisco immigration attorney who had multiple run-ins with Yam isn’t surprised she remains on the bench. “I’ve been doing this for over three decades, and I’ve never seen EOIR remove a judge for poor performance,” says the lawyer.
When asked what it takes to bring about the permanent elimination of a judge, EOIR spokesperson Lynch responded:
“EOIR complies with all laws, rules, regulations and Agency policy regarding removal of employees. Immigration judges, as with any EOIR employee, may be removed for performance issues or misconduct. EOIR closely monitors immigration judges’ performance and conduct through its performance management program and daily supervision of the courts. In addition, EOIR has an established procedure for reviewing complaints made against immigration judges.”
In addition to her current year-plus absence, Yam, since arriving in Houston, has also variously gone three, five, six and seven months without issuing a decision. Despite those long gaps, the questionable rulings, the courtroom fits and the allergies that are apparently so unbearable that she can’t even make the simplest decisions, a local publication called d-mars.com Business Journal honored Yam as one of the Top 30 Influential Women of Houston in 2013.
“Tenacity, discipline and diligence are just a few of the criteria for making the list,” the organization wrote about the prizewinners. “This year’s awardees have broken barriers in their respective fields and left an indelible mark on the face of Houston.”
Even though Maria Esparza Olvera had become a target of a Mexican drug cartel, Judge Yam ordered the Mexican national deported in 2013.
Though EOIR swore in nine immigration judges on January 29 (which brought the total to 254) and plans to add more in 2016, those moves aren’t good enough, says Marks, who warns, “If you go back to 2006, [U.S. Attorney General] Alberto Gonzales hired 40 new immigration judges, but it took three years to implement.”
The slow-on-the-go nature of comprehensive reform is the reason Marks is looking to take a more radical step: She’s telling Congress that the immigration courts want to break free from the clutches of the Justice Department. She says the dramatic move will allow judges to control their budgets and issue timely decisions.
“One of my colleagues described it best: If you have a leaky gas tank, you don’t keep pouring gas into a tank with a hole in it,” says Marks.
In spite of Houston’s disastrous situation, Yam’s courtroom remains locked and the backlog keeps stacking up. “It’s really kind of a nightmare, even with simple cases,” says Waterhouse.
Sometimes, Del Bosque says, attorneys represent immigration cases pro bono. “But for a case that started in 2012 and now the next hearing is scheduled for 2019, how are we supposed to retain pro bono attorneys for seven years? In the meantime, clients are changing addresses and they won’t get a notice of hearing. If the order is moved in absentia and we try to change the address with the courts, they reject it.”
Meanwhile, details remain foggy about the death of Olvera, whom Yam ordered back to what turned out to be a short-lived existence in Mexico. “She was getting ready for mass,” says close friend Coppola of Houston. “All the family has been able to tell me is she had a head contusion.”
Three weeks before her death, Coppola and her family flew to Mexico to visit Olvera, who was like a second mother to one of Coppola’s sons.
“We had a family hug on the beach, all of us together with our arms wrapped around her. She had a margarita in her hands, with her toes in the ocean. It was a joy to have our family together again,” says Coppola. “She will always be known as ‘Nana Mary’ to us, and I don’t know if I have it in me to share with the boys what happened.”
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