BOOK "UNDER RED NOTICE"

BOOK UNDER RED NOTICE, CHAPTER XLIV

THE FIRST HEARING – OCTOBER 3, 2018

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After 18 days of confinement, October 3, 2018, became my first step into something resembling due process – my Master Hearing before an Immigration Judge in Los Angeles.

A Master hearing in immigration proceedings is something like an indictment hearing in criminal proceedings. The Immigration Judge must sustain or terminate the charge written in the official charging document – Notice to Appear. The charge is brought by U.S. Immigration officials against the immigrant. The representative from the government must prove that the charge they put in the document matches what the immigrant did wrong.

For some people, that charge was that they crossed the border without a visa and because of that they must be deported. Others might have some criminal charge or conviction which might raise their deportability. My charge was that, despite being admitted to the United States as a tourist and authorized to remain as a non-immigrant only for six months, I remained beyond this period without permission from immigration authorities.

My expectation was positive despite the five-hour ice-cold ordeal - from the holding pen in Theo Lacy Jail, through the freezing bus ride, to the Los Angeles Immigration Court. I arrived with an optimism I hadn't felt in months. I was fully prepared for the upcoming hearing. My mind was clear, almost light. I had the document. One piece of paper that destroyed the only charge they had filed against me.

In my envelope I carried the copy of the original asylum application and the Acknowledgement of Receipt mailed to me from the U.S. Immigration authorities and dated several months before the expiration date of my initial tourist authorization. This document explicitly stated that I was permitted to remain in the United States, until my asylum application would be decided. Given that my asylum application had not been decided yet, by clear logic, my permission was still valid. Therefore, the charge was false. Checkmate, I thought.

After arriving, they finally unhooked the chains and led all the immigrants into a holding room. It was the same room I had been in that day – right after my arrest. A dozen other detainees sat on the benches in orange, red, or blue jumpsuits, waiting for their fifteen minutes in front of the black-robed oracle.

From time to time, several officers came to the holding room, called several people by name, handcuffed them, chained their legs, and escorted them to the Court chamber.

When my name was called, I was full of hope and excitement. I had spent every waking hour in detention preparing for this moment. After passing all the procedures with chains, I was escorted to the courtroom.

The courtroom looked exactly like the ones I saw in American movies: a raised wooden bench in the center where the judge sat, two regular tables in front of him – one for the government attorney, one for the immigrant and his lawyer. Then a low wooden fence separating the well of the court from several rows of hard benches where the rest of us in orange jumpsuits waited our turn, ankle chains clinking every time someone shifted.

I sat on the bench and looked at the judge to get some impression of him. His name was Kevin W. Riley. He had slightly Asian facial features – calm, intelligent eyes – and bore a composed, thoughtful expression. His hair was dark and neatly kept, and his face carried quiet confidence. He appeared somewhat shorter than average height, fit, with a posture that was steady and self-assured. His overall demeanor was polite, collected, and gave an impression of quiet intelligence and authority. The kind of face I had imagined for a judge for whom the law means something.

After dealing with several other cases, the judge called my name. I stood up. The officer took off my handcuffs, but my legs remained chained. The officer opened the gate in the low wooden fence to let me go to my table.

The Russian interpreter sat to my right, a tired-looking man with a heavy accent. The attorney for the government, representing the Department of Homeland Security—Thomas Parker—was a heavyset man who sat with his tie already loosened at nine in the morning, his eyes half-closed as if his job and the whole proceeding bored him. His expression was one I recognized from Soviet ministries: bureaucratic indifference married to petty authority, the face of someone who could decide your fate with a signature but couldn't be bothered to care.

The hearing began. The formalities proceeded with a kind of ritualistic efficiency. The judge politely explained to me the proceedings, placed me under oath, and then we turned to the heart of the matter – the Notice to Appear, the charging document that served as the legal basis for my arrest.

The judge began by reading all four allegations and then the official charge, explaining all the reasons on which the Department of Homeland Security based its case for my removal from the United States. Then Judge Kevin W. Riley asked me if I understood the charge against me. I answered that I understood but disagreed with some part of those allegations and the charge.

The judge nodded approvingly and with, as it seemed to me, respect for my position, said, "Okay, I am going over all the allegations and the charge one by one, and you can tell me which one you disagree with."

"Yes, Your Honor," I confirmed.

"Are you a citizen of the United States?" the judge read the first allegation.

“No,” I answered.

“Are you a native of Russia and a citizen of Russia?”

“Yes,” I confirmed

"Were you admitted to the United States at or near Chicago, Illinois, on or about November 15, 2015, as a non-immigrant visitor with authorization to remain in the United States for a temporary period not to exceed May 14, 2016?"

I admitted this allegation also.

The judge seemed to be slightly surprised by my responses because ahead was only the last allegation and the official charge.

"Do you remain in the United States beyond May 14, 2016, without authorization from the Department of Homeland Security?"

"I deny that," I answered, waiting for this moment eagerly with inner pride, thinking that everything I had prepared for was happening exactly as I expected after reading court manuals and non-profit pamphlets.

The judge was genuinely confused – that was understandable because I answered that I did not remain in the United States beyond the period which had expired approximately 2 years ago. However, somehow, I was seated in front of the judge in a United States court. The problem with this allegation was that the allegation 4 accused me not only of remaining beyond the specific date but of remaining beyond the specific date without permission, which I had, and I waited for when I would be asked to present it.

The judge, slightly confused or surprised, jumped to questions that were not in the charging document.

“Okay, are either of your parents U.S. citizens?”

"No," I answered, making him even more confused.

He glanced at me as if he wanted to make sure that I was in a clear mind and continued, "So, you are denying allegation 4…"

“…and the charge,” I interrupted inappropriately.

Judge Kevin W. Riley said, "Right, so I am assuming, right, so you're denying the charge as well." The judge looked confused, as if the hearing had gone off the rails. This was understandable because usually Master hearings in immigration last for 10-15 minutes since the cases are simple – if someone crossed the border without a visa, they just admitted it and that was it – the judge ordered the immigrant to be removed and asked if the immigrant had any form of relief from deportation like asylum, a marriage application, or family unification. And if the alien had such a form of relief from deportation, the judge would set up a hearing on the merits of that form of relief which the immigrant claimed in order to avoid being deported.

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The very Master hearing over my case definitely went off the rails and the judge seemed to be perplexed. Nonetheless, he pulled himself together in a second and remarked, looking at me, then the government representative and making a small nod of his head as if he were suggesting something to the sleeping DHS representative, "So you have admitted allegations 1 and 2 about citizenship, so alienage is established. Mr. Parker, any documents to support allegation 4?"

The DHS representative perked up and caught the judge's hint, repeating like a parrot judge's words: "No, Your Honor. After allegations 1 and 2 are established, I believe it's the respondent's burden to prove that he is in lawful status."

"What?! Status…?!" I shouted in my mind. "What the hell ‘status’ are you talking about?!" My thoughts were spinning in my mind. I was accused of remaining in the United States without permission – there was not a single word about status in the official written charging document! I had prepared and was ready to defend myself against the official charge – not one substituted on the fly right during the hearing. I started to feel nervous. However, notwithstanding my inner emotions, I kept my composure and decided to stand on the matter for which I had prepared my defense.

No sooner had I calmed my emotions than Judge Kevin W. Riley turned to me and, following the DHS attorney's words, addressed a question to me: "So, do you have any documentation to show what status you have or believe you have?"

I was stunned. Now the judge, who had seemed to me a decent man just a few minutes ago, was trying to deceive me by asking me to defend myself regarding my legal status, despite the fact that the only thing I was accused of was remaining without permission. I couldn't believe this was a United States court; it felt as if I'd stumbled into a medieval bazaar square, where the immigration judge and the DHS representative were no better than two shell-game tricksters, trying to dupe me by swapping out charges with sleight of hand the way thimbleriggers move and hide the pea to con people around.

In response, I presented my permission to remain in the United States until my asylum case would be decided, issued by the Immigration and Customs Service – a subdivision of the Department of Homeland Security.

The judge admitted it without objection and asked me politely if I had any decision on my asylum application. I politely explained to the judge that I believed there was no decision yet, but I was invited to the immigration office to take the asylum interview. However, I was arrested and detained before any interview even started, and this arrest, as it was written in the official charging document, was precisely for remaining in the United States beyond some date without permission. Thus, this permission undermined the charge and made my arrest and detention for an administrative violation I had never committed unfounded. Saying that, I relied solely on normal common logic that any prudent and reasonable person could easily grasp.

The judge paused for a second, thinking, and then he said, "Okay. So, your argument is that you did have authorization since the acknowledgement of receipt indicates you may remain in the U.S. until your asylum application is decided?"

I let out a breath. It was a huge relief at that moment! It seemed that the judge had finally realized what was going on there! So, I confirmed that the judge's understanding of my logic about my document was correct.

The judge turned to the government representative and asked him, "Mr. Parker, any argument?"

Mr. Parker answered, "Your Honor, I don't believe the respondent was in lawful status just by virtue of filing an application with the immigration service. Given that he was taken into custody and served with an NTA, I believe jurisdiction to adjudicate the I-589 would now be with this Court."

"What are you talking about?!" I thought. "We are here exactly to understand if the charge in the NTA is valid – you cannot say that it is valid because you served it, because that is the most stupid argument that could be brought! It works as self-evidence. And again, why are you repeating like a parrot about this 'status' if I was accused of remaining without permission in the first place? How could you have passed a California bar exam with such diseased logic?!" I slightly mocked him in my mind.

However, out loud I decided to intervene with my explanations regarding his statements. When Mr. Parker stopped bringing up his nonsense, I asked the judge, "Your Honor, if I may?" The judge agreed. Every time that the judge gave me the floor, I was simultaneously surprised and grateful because I felt that the judge wanted to hear me and it was definitely a sign of his genuine desire to understand the situation. So, I emphasized that the government permit explicitly allowed me to do what I was accused of in the charge. Moreover, I mentioned that I had never received any notice about revocation of this permit.

The judge looked as if he had heard me very carefully. I was satisfied with the work that I had done for myself and felt as if I had been able to say everything that I wanted to say. When I finished, the judge approvingly nodded and rendered his decision:

“You do have the right to stay in the U.S. while your application is pending, including if it's adjudicated here in court. But you are present in the United States in violation of law, as your authorized period of stay on your tourist visa has, well, you've overstayed it. So, I am going to find allegation 4 to be true or proven, and I am going to sustain the charge. Now, again, you'll have the chance to present your application here in Immigration Court since you haven't been heard on it.”

The words hung in the air and turned my blood to ice. I stood frozen. My mind reeled. I could not believe what I had just heard – I had the right to stay, but I was simultaneously deportable for staying? The permission to remain was legally valid, yet my presence under this permission was a violation? What sort of insanity was this? Just nonsense, sophistry, I thought, while the officer prepared to handcuff my hands again. My hand, still resting on the now-useless copy of the DHS receipt, felt numb. The contradiction was dizzying. It was a betrayal of everything I thought the United States stood for.

In that moment, the line between Russia and the United States blurred. Indeed, the uniforms changed. The language changed. But the essence? The illusion I had carried across the ocean about the United States court system just shattered. I had fled a country where judges decided the outcome before the hearing began, where the accusation changed whenever the first one fell apart, where the law was only a mask for power. And here, in a federal courtroom in Los Angeles, wearing a black robe and speaking perfect, polite English, sat a man doing exactly the same thing.

Without pause, the judge set Russia as the country of deportation despite my opposition, and he set up an individual hearing for my asylum case. Now, since the judge had found me removable from the United States, my asylum case became a kind of a form of relief from removal – meaning that if I won my case, the U.S. would give me asylum status, and my deportation order would be canceled. However, should I lose my asylum case, I would be deported for the administrative violation the judge had just sustained.

Despite my shock and devastation from everything that had just happened, I tried to stay focused, and I remembered that I had read in the Catholic pamphlets that I had the right to ask for a bond hearing. So, I asked the judge for it, and he set it up within one week. I hoped that maybe I could be released from detention under bond, at least. I needed to return to my cryptocurrency mining farm, which had been without management for almost a month.

In the holding pen after the hearing, I tried to keep myself from falling into the abyss of depression. I was overwhelmed by the swing of emotions I had experienced that day. Several hours later, as we embarked on the bus and pulled away, heading back to the jail, I pressed my forehead against the perforated metal covering the bus window and closed my eyes. For the first time, I wondered if America had ever been the refuge I imagined – since it seemed that the words written in a federal document meant nothing in this country, even in a court. I understood that I remained in detention for an administrative violation which I had not ever committed – even more, for a violation that hadn't even been placed in the official charging document. The violation that two corrupt officials just made up during the hearing because they understood that I had undoubtedly refuted the official charge. And all of this was in the United States. It felt surreal to me. With these thoughts, I fell asleep.

The Russian system had been brutal and open about it – bribes in envelopes, threats in the hallway, no pretense of justice, nothing about the law. The American version I had just seen, as it turned out, was the same in result – nothing about the law. The only difference was that here they willingly disrespected the law even without bribes, just for nothing – by negligence, or through a lack of professional dignity and integrity, based on personal antagonism or arrogance, yet always under the mask of impartiality and in the name of ostensible justice. At least in Russia, they didn't bother to wear the mask of decent people.

Later, I discovered that, as it turned out, the immigration court is not a part of the United States real judicial system. It is an administrative judicial theatre where the role of an immigration judge is played by an officer who is hired for a specific political agenda and who has nothing to do with independent judgement, even though it is prescribed by the federal regulations for his conduct. He is a soldier to whom the system allowed to bear the title of "Judge" – nothing more.

And as I noticed later, only rare immigration judges have integrity and professional responsibility to decide cases impartially, abiding by the law – the others play along with the DHS attorneys. So, many immigrants appear in the immigration court only to find themselves legally battling two officers – one of them shielded behind the judge's robe, the other playing their true role of a governmental attorney. And God forbid you should appear before those two as an unrepresented litigant – their arrogance will never allow you to win; you have zero chance to win because neither evidence nor law works in this court for the unrepresented immigrants – you just become easy prey for two officers to tear you down and to fill the statistics of denied cases.

All this theatre resembled the behavior of communist functionaries, who curried favor with their superiors by executing whatever political agenda was handed down, trading integrity for career security, notwithstanding the law or regulations.

Later in the jail library, I also found out that what Judge Kevin W. Riley had done wasn't just absurd. It was illegal.

In this particular hearing, under federal statutes and regulations, the government had the burden of proving that the charge was true, not me to refute it. Nor should the burden of proof have switched to me merely after my alienage was established, like the judge hinted at the government attorney and he bravely claimed it back to the judge. Also, the judge had the obligation before the law to find me removable only by considering the existing evidence – which was lacking from the government. But what was the most illegal thing was that the judge could not substitute the charge without prior written notice. In fact, while during the hearing I only assumed it, however, in fact, it indeed was clearly prohibited under U.S. law. Judge Kevin W. Riley violated just every legal statute which U.S. Congress enacted for this hearing and which he was actually hired to uphold. As it turned out, Immigration Judge Kevin W. Riley, along with the DHS attorney, disrespected not only me but U.S. law itself – and the people who trusted them to enforce it properly, as the people of the United States enacted it through their representatives in Congress.

But all of this I figured out later, buried in legal research in the detention library. Back then, on that bus ride, sitting on the way back to Musick, I knew none of this legal stuff, but I felt that it was wrong and just fell asleep, leaning my head against the perforated metal screen on the bus window.

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To be continued...