The metal detector and burly security guards at the entrance are real enough. As are, of course, the migrant families, many of whom are there seeking asylum in the United States from their home countries where they may face political instability, violence, or torture. But there is something about San Francisco’s immigration court, on the corner of Montgomery and Sutter streets, that feels like a facade. For such a consequential place for so many people, that comes as a surprise.
On a visit Tuesday, I saw a small girl in the lobby who might’ve been seven years old. She talked excitedly with a teenage relative, possibly her brother, about how her father was going to reward her for good grades in school next year. The teen, holding an even smaller child, listened sullenly, because, I surmised, unlike that exuberant little girl, he was all too aware of why his family was in court that day.
San Francisco’s immigration court has been in the spotlight recently due to reporting that Immigration and Customs Enforcement (ICE) agents have been targeting courthouses across the country to arrest and deport migrants. The tactic of arresting people at the site of their court appearances has been criticized as a trap, a way of penalizing migrants for showing up for hearings as required by law. At the same time, critics say, it scares people away from appearing for their immigration hearings, putting them at risk of immediate deportation — a serious violation of due process rights.
The San Francisco Immigration court is not the wood-paneled and marbled citadel of American jurisprudence that viewers of Law & Order and countless courtroom dramas may expect. It’s small. It’s sad. The labyrinthine hallways, white and sterile, are evocative of a dental or medical office. These hallways lead to ten courtrooms featuring a judge, tables for lawyers, and benches for people waiting for cases to be called. The rooms are tiny. They’re cheap, dollhouse-sized facsimiles of the city’s state and federal courthouses. They are not dignified places for officials to make life-or-death decisions.
It was here that I met Ross Militello, a lawyer who was in one of those courtrooms to represent a migrant who entered the US alone as a child. In an interview after his hearing, Militello told me how the immigration court’s function is as superficial as its form.
“They like to make it look like it’s a real court, with a real judge and impartiality, but they’re not real judges,” Militello told me. “You call them immigration judges, and you say, ‘Your Honor,’ and they wear their robes, you know, as part of the theater of it.”
Indeed, the immigration courts are not part of the judicial branch of government, which has served as the only check against President Donald Trump’s efforts to deport immigrants. Instead, these courts operate under the Justice Department, an arm of the executive branch. That is to say, under President Trump.
The rules of the court are stacked against migrants, according to Militello, because the judges are hired by the Justice Department, and follow directives from US Attorney General Pam Bondi.
I tell my clients, all the decisions are baked in. You do the best you can, but the government’s going to get what the government wants.”
Ross Militello, immigration lawyer
“They don't have independence,” Militello said. “For whatever reason, we wanted to create an image of a real trial system, an adversarial system, as if we gave them a real chance, but it’s not. I tell my clients, all the decisions are baked in. You do the best you can, but the government’s going to get what the government wants.”
Before going into private practice, Militello, 36, worked as an ICE attorney under President Barack Obama and during the first Trump administration. In that role, he represented the Department of Homeland Security in “removal proceedings,” aimed at deporting migrants — or testing their claims for asylum by requiring them to prove their plight.
Now on the other side, Militello represents mostly clients who are women, children, indigenous, and LGBTQ in approximately 130 asylum cases he says he currently has pending before the San Francisco immigration court. With his clients, Ross prepares sworn and witness statements about the perilous conditions they face in their home countries. He sometimes does as many as five practice rounds of cross examinations with clients, drawing heavily on his experience on the other side of these types of hearings.
Militello’s description of the court’s processes, especially the prescribed, predictable outcomes, were borne out in hearings before San Francisco Immigration Court Judge Charles S. Greene III that I witnessed. “You have to come to that hearing, or I have no choice but to remove you from the United States,” Greene told one person before him. The admonition sounded harsh to me until I sat through repeated hearings and heard similar things said.
For migrants seeking asylum from Mexico, El Salvador, and Azerbaijan, Judge Greene issued the same warnings, setting their next hearing dates sometimes as long as three years down the road — not a surprise in the logjammed migrant legal system. Some of the people openly, under oath, acknowledged arriving and living in the US illegally, and would likely remain here under that status until their cases are resolved.
The rules of the court, established during the administration of Democratic president Bill Clinton, Militello said, have been left untouched in the following decades by a once Democratic-majority Congress or when Barack Obama was president. It’s only now, he said, that people are protesting Trump pushing the boundaries of the longstanding rules.
“The law has been stacked against immigrants for decades, since I was a child,” Militello said.
He described how a client of his was recently detained by ICE coming out of an immigration hearing. The person and their child were relocated to a detention facility 1,700 miles away from San Francisco, and remain in a state of legal limbo that Militello is attempting to resolve.
During my visit to the court, there were no ICE agents anywhere, including outside the building, but Militello said he detected a suspicious detail: the courthouse’s front doors had cones in front of them, and were locked, requiring a security guard’s approval to get through. “Me and another lawyer downstairs commented that something must be up, because the building seemed more locked down,” he said.
The day after I went, June 4th, ICE agents detained at least 15 people, including children, at the immigration court, District 9 Supervisor Jackie Fielder said. She said the detentions under Trump are “unconscionable, unlawful, and deny people their constitutional right to due process.”
While the detentions have grave consequences for those taken into custody, Militello is certain that the media attention they’re attracting is an intentional part of the theater of the Trump administration’s immigration crackdown. When Militello worked for ICE, the agency attempted to maintain a low profile with agents dressed in plainclothes, he said.
No more. “They want them to look like stormtroopers now,” Militello said. “The people that can play the stormtrooper are the ones getting promoted now, and the ones finding themselves in positions of authority within the ICE structure.”
Migrants can face two different types of removal proceedings. Under the first, if DHS seeks an “expedited removal,” they must demonstrate a “credible fear” of persecution or torture in their home country. If that hurdle is cleared, they are moved to a second type of proceeding under which lawyers like Militello can seek a review by a federal appeals court — or real judges.
The most important change since Trump’s election, Militello said, is that DHS is shunting more expedited removals under the first type of proceeding, making it more difficult for migrants to get to, and clear, the second type, thereby bypassing real judicial review of detentions and removals.
“No real judge ever touches the case, or ensures the law was followed,” Militello said. That, he said, is the Trump administration’s “real objective.”
DHS, responding to questions from Gazetteer, said that people who have a valid claim of credible fear will continue in immigration proceedings. “But if no valid claim is found, aliens [sic] will be subject to a swift deportation.”
Despite the obstacles, and broken immigration laws, Militello says his clients maintain a deep faith in the American judicial system. “They aren’t afraid of being detained, but of not having their cases heard. Our clients really believe that if someone just listens to their case, then they’ll be OK.”
