Transparency?

The Intercept reported on the use of masks by ICE agents and the withholding of the identity of ICE agents and their attorneys in Court. Last month, a judge took an “exceedingly unusual step”. The judge declined to state the name of the Immigration and Customs Enforcement attorney who was pushing to deport asylum seekers.

“We’re not doing names publicly,” said Judge ShaSha Xu.

There have been two separate instances that The Intercept identified in which judges chose to withhold the identities of the attorneys representing the Trump administration’s deportation scheme.

ICE agents already cover their faces to shield their identities; therefore, this has raised concern from legal experts that attorneys also want to hide their identities. Legal experts told The Intercept that concealing the lawyers’ identities was both “novel and concerning”.

Elissa Steglich, a law professor and co-director of the Immigration Clinic at the University of Texas at Austin, said that she’s “never heard of someone in open court not being identified. Part of the court’s ethical obligation is transparency, which includes identifying the parties. Not identifying an attorney for the government means that if there are concerns regarding unethical or professional conduct within the Department of Homeland Security, the individual cannot be held accountable. And it makes the judge appear partial to the government.”

This concealment shocked the two opposing lawyers who were representing immigrants in Xu’s courtroom. Attorney Jeffery Okun, who was representing a client via video call, characterized the move as “bizarre,” and Attorney Hugo Gonzalez Vengas called Xu’s behavior “a terrible lack of transparency on the part of the officer of the court.”

Immigration courts, overseen by the Executive Office for Immigration Review within the executive branch, are far less transparent than traditional courts. In immigration court, immigrants are not guaranteed a defense lawyer, and the judges are appointed and can be removed by the President. Prosecutors in these courts work for ICE and DHS, which raises concerns for many about fairness within the courtroom.

Judge Xu was conducting several brief preliminary hearings known as “master calendar” hearings. These routine immigration proceedings typically begin the same way across the country. An immigrant will appear with their attorney, if they can retain one, before a judge. Representing half of the government is an ICE lawyer whose role is to argue in favor of the immigrants’ deportation. As each case begins, the judge recites their name, followed by the name of the immigrant, then the name of the immigrant’s attorney (if applicable), and finally the name of the ICE lawyer. This is an on-the-record census that enables due process.

After Xu omitted to reveal the ICE lawyer’s name, Okun asked her to identify who was arguing to deport his client. The judge refused. Xu attributed this to “privacy” and said that this is because “things lately have changed.” It was then that Xu directed Okun to use Webex’s direct messaging function to send the ICE lawyer his email, and they would most likely reply with their name and address. Once the following case began, Xu again refused to state the ICE lawyer’s name, and Gonzalez Venegas argued that the legal record would be incomplete without it. According to Gonzalez Venegas, the quiet, vocal fry attorney who was prosecuting both Okun’s and Gonzalez-Venegas’s clients was Colette Shachnow.

This is not the only instance where The Intercept has witnessed immigration judges failing to reveal ICE lawyers’ names. On July 10, Judge James McCarthy in lower Manhattan was unable to identify the government’s attorney in multiple cases, referring to the lawyer instead as “Department.” “Department, are we done with pleadings?” McCarthy asked. This is referring to ICE’s parent agency, the Department of Homeland Security. Many of the immigration defense attorneys did not object to the actions put forth by the judge.

One New York City immigration judge told The Intercept that this new phenomenon has not been formalized through a directive or rule, and that it is ultimately up to the judges.

“This is a very new and alarming turn of events,” said Daniel Kowalski, a former longtime immigration attorney who now edits the legal journal Bender’s Immigration Bulletin for LexisNexis. “Where does it stop?” asked Kowalski. “Are the immigration judges going to be unnamed? Behind a screen?”

Veronica Cardenas, who previously served as an ICE prosecutor for six years before resigning in 2023, believes that the real threat lawyers face is shame. Cardenas’ mother came to the United States from Colombia without papers and was arrested at the southern border. She realized that many of the people she was seeking to deport were a lot like her family. Cardenas now works as an immigration defense attorney, counseling other ICE lawyers who want to leave their jobs, many of whom have similar backgrounds to hers.

Adam Boyd, a former ICE attorney who recently resigned, said that many ICE lawyers feel frustrated by having to ask judges to dismiss cases so that enforcement officers would not have the opportunity to detain immigrants outside courtrooms and boost deportation statistics under the Trump administration. Boyd said that his resignation was the result of what he described as a “moral decision.”

Trump flew dozens of people from America to a prison in El Salvador that is notorious for torture and human rights abuses.

The asylum system has suffered severely under President Donald Trump’s second term. In the past six months, the denial rate of asylum claims by judges has skyrocketed from 62% to 80%. Immigration experts believe the figure could soon reach 95%. As the Trump Administration continues its horrific and dangerous order to ramp up ICE removal operations, hundreds of immigrants are being arrested and beaten by people whose identities are hidden. These people are being neglected and unfairly treated by people who have no idea who they are. Now, they may not know the names of the attorneys making the case to deport them.