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It’s just after 2 p.m. and Immigration Judge Garry Malphrus is looking at a long afternoon of deporting illegal immigrants. He punches a button on a tape recorder and intones: “Respondent was scheduled for a master calendar hearing at 9 a.m. It is now 2:20 p.m.” Malphrus notes the immigrant’s failure to appear, asks a lone Immigration and Customs Enforcement lawyer if an attempt has been made to contact the government (the inevitable response: “no”), and then formally orders the immigrant’s removal from the United States. Stop tape. The routine continues for the better part of an hour. Next file. Repeat script. Stop tape. Watching this tedious exercise, it’s hard to imagine that being appointed a federal immigration judge would be considered a political plum. But that’s how these career civil service jobs are increasingly treated, say immigration lawyers who practice before the courts. Malphrus, a former White House aide and Republican campaign veteran, had never practiced immigration law when he joined the bench last year. “The Bush administration has realized these are great jobs and maybe [it] shouldn’t be left up to the civil service to determine who gets a job,” says Charles Kuck, a vice president of the American Immigration Lawyers Association. “I believe that these folks without prior immigration experience tend not to be good judges.” Whether they’re great jobs is a matter of opinion. But with the immigration courts under scrutiny by Congress and the attorney general after a series of federal appellate decisions blasting the courts as sloppy and inept, the issue of just who serves in an office with enormous influence over the lives of immigrants has received scant attention. And the practice of appointing judges with no immigration law experience is condemned by lawyers in the field, who say the complexity of immigration laws means judges such as Malphrus do their training on the job. Hired in March 2005, Malphrus, 38, is on the front line of America’s swamped immigration system. The 200-odd judges in the Justice Department’s Executive Office of Immigration Review handle more than 300,000 immigration cases every year, considering matters that range from approving the status of asylum seekers to deporting illegal migrants seeking jobs to signing off on the legal status of those who have married U.S. citizens. But the process by which the judges are hired is a murky one, often little understood by either immigration lawyers or the judges themselves. Unlike federal district and circuit court judges, who are appointed for life and work for the Administrative Office of the U.S. Courts, immigration judges are part of the Justice Department’s career civil service. As such, the EOIR has a formal application process for immigration judges. Applicants are vetted by the office’s chief immigration judge, who conducts interviews and makes formal hiring recommendations. But according to an immigration-judge hiring policy released by the Justice Department, the attorney general also has the option to pre-empt the formal vetting process and directly hire a judge of his choosing. This two-track hiring method helps explain why the nation’s immigration bench is stocked not only with lawyers who have spent years as trial attorneys for ICE or the military’s JAG Corps (who enjoy preference in federal hiring) but with a sprinkling of Republican Party activists and campaign veterans such as Malphrus. Among the 19 immigration judges hired since 2004: Francis Cramer, the former campaign treasurer for New Hampshire Sen. Judd Gregg; James Nugent, the former vice chairman of the Louisiana Republican Party; and Chris Brisack, a former Republican Party county chairman from Texas who had served on the state library commission under then-Gov. George W. Bush. Malphrus’ move was cited last month in a report to Congress by the Government Accountability Office on the subject of the movement of political appointees into the government civil service. That phenomenon, known as “burrowing in” to the government bureaucracy, has been an issue for Democratic and Republican administrations alike. Ultimately, the GAO reported that “it could not be determined whether appropriate authorities and proper procedures were followed” in Malphrus’ hiring. And while a courtroom on the 13th floor of a nondescript office building in Arlington, Va. � where Malphrus presides � may seem to be a million miles from the corridors of power across the Potomac River, the job isn’t without its perks. When Malphrus was hired, his salary nearly doubled to $113,904. And unlike his former colleagues at the White House, as a career civil service employee, Malphrus won’t be out of work should Republicans lose the White House in 2008. “It’s not a glamorous job,” says Joseph Vail, himself a former immigration judge who now works at a legal aid clinic in Houston. “You don’t have a whole lot of power . . . but the salary and benefits are good, plus you get to call yourself a judge.” Addressed by a reporter in court, Malphrus said he would be happy to be interviewed for this article with the approval of his Justice Department superiors. But that interview request was denied by Justice’s press office in Washington. The Justice Department did not return calls for comment for this article. Political activism Malphrus’ most public political episode came during the 2000 Florida presidential election recount. He was then a Republican aide to the Senate Judiciary Committee and turned up at the Miami-Dade Elections Department with a group of well-dressed Republican protesters. In what news reports later dubbed the “Brooks Brothers riot,” the protesters, chanting “Stop the fraud,” pounded on the windows and doors of the municipal building and demanded that the election board in the heavily Democratic county end its manual recount of thousands of ballots that a scanning machine had determined contained no vote for president. Shortly afterward, in a decision pivotal to the outcome of the election, the board voted unanimously to stop the recount. Months later, Malphrus received a White House appointment to the Domestic Policy Council, where he served for three years. Last week, Malphrus crossed paths with a former political activist of a different stripe. Seated before him on June 15 was Andrei Brezineu, a soft-spoken young Belarussian dressed in jeans and white high-tops who, according to his lawyer, fled the Eastern European country in 2003 after suffering a series of threats, beatings, and arrests for distributing pamphlets for a political party opposed to President Alexander Lukashenko. Lukashenko’s regime has been dubbed the “last dictatorship in Europe” by Secretary of State Condoleezza Rice, and this winter, Lukashenko was re-elected with 86 percent of the vote in an election observers said was marred by fraud and intimidation. “Belarus is known to be a country where political dissent and human rights are not tolerated,” Brezineu’s lawyer told Malphrus. The government trial attorney in the case opposed Brezineu’s application for political asylum, questioning whether he would face persecution if he was returned to Belarus and pointing out that Brezineu appeared to have limited knowledge of recent political events in his home country and no documentation of his arrests. Malphrus questioned Brezineu’s defense attorney as well, asking whether a series of harassing incidents could rise to the level of political persecution needed to grant Brezineu asylum. When neither Malphrus nor Brezineu’s attorney could recall a precedent for this from immigration case law, the judge ordered that the hearing be continued for a month. The decision reflected a cautious approach to deciding asylum cases that has won Malphrus praise from immigration attorneys. That approach, say a number of lawyers who’ve practiced before him, is fortunate given the judge’s limited knowledge of the country’s specialized and oft-changing immigration laws. “I like Garry Malphrus,” says one immigration lawyer in Cleveland who practices before the judge and therefore requested anonymity. “But he has no immigration experience whatsoever, and that comes across.” A native of Jasper County, in a historically Democratic pocket of South Carolina’s Low Country, Malphrus became active in Republican politics more than two decades ago. After graduating from the University of South Carolina Law School in 1993, Malphrus spent the next four years clerking for a series of state and federal judges. In 1997 he was hired as an aide to then-Sen. Strom Thurmond (R) and joined the staff of the Senate Judiciary Committee, where he worked on a range of policy issues, including crime, immigration, bankruptcy, and tort reform � issues he would confront later as a White House aide, according to former Senate colleagues. Studious and soft-spoken, Malphrus was known as a strong conservative. David Brog, a former Judiciary Committee staffer for moderate Republican Sen. Arlen Specter of Pennsylvania, recalls being teased by Malphrus at party staff meetings. “This is a Republican meeting,” Brog recalls Malphrus as saying. “What are you doing here?” Those who’ve worked with Malphrus say his experience as a law clerk and policy aide makes him well qualified to sit on the immigration court. “The idea that it was politics and not competence is ludicrous,” Brog says of Malphrus’ appointment. Malphrus’ departure from the White House for the relative backwater of the Arlington Immigration Court may seem like a step down for an ambitious, young, conservative lawyer. After all, a lawyer with Malphrus’ connections could almost certainly have been richly rewarded on K Street. But William O’Neil, a South Carolina trial lawyer and law school classmate of Malphrus’, says it’s just one more career step for a friend he’s always thought was bound for a judgeship in state or federal court. “He’s well connected,” he says of Malphrus. “I think he’s just working his way up the totem pole. I don’t think he’s going to be an immigration judge for the rest of his life.” Judicial jobs ahead Malphrus’ entrance to the bench comes at a time of flux for the immigration courts. In an opinion highly critical of the immigration courts and the Board of Immigration Appeals late last year, Judge Richard Posner of the U.S. Circuit Court of Appeals for the 7th Circuit wrote that “the adjudication of these cases at the administrative level has fallen below the minimum standards of legal justice.” Posner’s opinion cited a dozen other recent appellate opinions from four circuits that all offered harsh words for the conduct and reasoning of the immigration judiciary. Additionally, the immigration reform bill that has passed the Senate contains a number of measures aimed at improving the quality of the immigration courts. One provision would increase the number of members on the Board of Immigration Appeals, allowing for closer review of immigration judicial decisions before they make it to the federal appeals courts. The Senate bill would also add at least 20 new immigration judges. Should the House pass those provisions, Malphrus may well be joined by additional political hires who prefer an immigration judge’s black robes to a political job in an administration approaching lame-duck status. “It’s usually a pretty secure job,” says David Martin, a law professor at the University of Virginia. “If you’re not quite in the category to merit an appointment to the federal bench, an immigration-judge job might satisfy some of those instincts. Immigration judges work hard, but they don’t have to bill 2,100 hours [a year] or have clients calling them up on the weekend.” Jason McLure can be contacted at [email protected]

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