Two new judges were supposed to help clear a backlog of Denver Immigration Court cases, some languishing for as long as a year.
But the docket may not clear as quickly as hoped because one of the judges is married to a top prosecutor in the Denver U.S. Immigration and Customs Enforcement office.
Eileen R. Trujillo, who was sworn in Nov. 5, must recuse herself from any case directed by her husband, Donald O’Hare, one of two deputy chief counsels in the Denver office.
O’Hare oversees lawyers who present the government’s case against suspected undocumented immigrants in court.
Though they are called “courts,” immigration proceedings are not part of the judicial branch. All are conducted though the Justice Department, part of the executive branch, and Attorney General Eric Holder appoints the judges. Appeals can eventually reach the judiciary through U.S. district court, but most are disposed of without being heard by the judicial branch.
But while the noncitizens who appear before the courts are not entitled to all the same constitutional protections as citizens, judges are still expected to act independently of the prosecution before ruling.
ICE spokesman Carl Rusnok said Denver Chief Counsel Corina Almeida has developed processes to assure O’Hare does not review the cases assigned to Trujillo.
O’Hare will have no involvement with matters that are or were pending before Trujillo, who began hearing cases in December. O’Hare also will not supervise or handle motions or responses to motions presented to the judge or any appellate briefs arising from cases decided by her.
Lawyers who are concerned that their cases have passed through O’Hare’s desk may file motions seeking Trujillo’s recusal.
Still, lawyers with cases that can take years to resolve are concerned that they have no way to verify that O’Hare has not advised prosecutors on those cases.
“It’s great that they are implementing policies to avoid conflict of interest, but how am I going to know who is reviewing my documents and my briefs and who is going to be supervising the cases that I am handling?” said Mariela Sagastume, who was told last month that three of her cases that were assigned to Trujillo had been transferred to another judge.
“They should give us attorneys notice so we can adequately protect ourselves and our clients. If you don’t have anything to hide, just put the information out there,” Sagastume said.
From 2001 to 2006, Trujillo worked in the Denver ICE office as an assistant chief counsel. She has worked in private practice since, but also was a trial attorney for what was then the Immigration and Naturalization Service in San Francisco from 1996 to 2001.
The Denver court hears all the immigration cases in Colorado, Wyoming, North Dakota and South Dakota. Nearly 13,000 cases were filed in 2009, up 44 percent from the year before.
Until Trujillo was appointed and Mimi E. Tsankov was transferred from Los Angeles Immigration Court, there were just four judges hearing cases.
Their hiring was part of a national effort by the Justice Department to deal with an increase in immigration cases.
This story has been corrected in this online archive. Originally, due to an editing error, the first name of Donald O’Hare was wrong. Also the city from which Mimi E. Tsankov was transferred was wrong.
