The Judge Dugan Case: Examining the Legal and Procedural Questions in the FBI’s Obstruction Charges

Posted on April 25, 2025 by Mike Baker
The Judge Dugan Case: Examining the Legal and Procedural Questions in the FBI’s Obstruction Charges

The recent arrest of Milwaukee County Circuit Court Judge Hannah Dugan by the FBI has raised significant questions about judicial authority, immigration enforcement in courthouses, and the distinction between administrative and judicial warrants. Before forming any conclusions, a thorough examination of the criminal complaint and the relevant legal framework is essential.
The Criminal Complaint: Key Elements and Allegations

The criminal complaint against Judge Dugan, filed by FBI Special Agent Lindsay Schloemer in the Eastern District of Wisconsin, charges her with two federal offenses: obstructing a proceeding before a federal agency (18 U.S.C. § 1505) and concealing a person from arrest (18 U.S.C. § 1071)

. These charges stem from events on April 18, 2025, when Immigration and Customs Enforcement (ICE) agents attempted to arrest Eduardo Flores-Ruiz, an undocumented immigrant with a pending domestic violence case, in Judge Dugan’s courtroom.

According to the complaint, ICE agents arrived at the Milwaukee County Courthouse with an administrative warrant for Flores-Ruiz’s arrest. The complaint alleges that when Judge Dugan learned of ICE’s presence, she became “visibly angry,” confronted the agents, questioned their authority without a judicial warrant, directed them to speak with the Chief Judge, and then escorted Flores-Ruiz through a “jury door” to a non-public area of the courthouse
. Flores-Ruiz was ultimately arrested outside the courthouse after a brief foot chase, approximately 22 minutes after being first spotted in the building

.
Witness Statements and Characterizations

The complaint relies heavily on characterizations of Judge Dugan’s demeanor as “visibly angry” and “confrontational,” drawing on statements from courthouse staff and other witnesses
. It portrays her actions as deliberately obstructive rather than procedurally motivated. Her attorney, Craig Mastantuono, has stated that “Judge Dugan wholeheartedly regrets and protests her arrest. It was not made in the interest of public safety”

.
Administrative vs. Judicial Warrants: A Critical Distinction

Central to understanding this case is the distinction between administrative and judicial warrants, which the FBI complaint acknowledges was at issue during Judge Dugan’s confrontation with ICE agents.

Administrative warrants are issued by federal agencies such as DHS or ICE and signed by immigration officers or immigration judges – not by federal or state court judges
. Crucially, administrative warrants do not authorize searches of non-public areas and do not grant ICE agents the authority to enter private spaces without consent

.

In contrast, judicial warrants are issued by courts, signed by judges or magistrates, and provide full legal authority for searches, arrests, or seizures

. The difference is not merely technical – it reflects fundamental constitutional protections against unreasonable searches and seizures.

When Judge Dugan asked ICE agents if they had a judicial warrant and was told they only had an administrative warrant, her subsequent questioning of their authority aligns with this legal distinction

. Her direction that they speak with the Chief Judge could be viewed as following proper channels for resolving jurisdictional questions rather than obstruction.
Courthouses as Contested Enforcement Spaces

The enforcement of immigration laws in courthouses has been a contentious issue with changing policies. Until January 2025, the Biden administration had maintained policies limiting immigration enforcement in “protected areas” including courthouses
. The Trump administration rescinded these policies earlier this year

.

Prior to this policy change, the Department of Homeland Security had recognized that immigration enforcement in courthouses could have a “chilling effect on individuals’ willingness to come to court or work cooperatively with law enforcement”

. This concern reflects the tension between immigration enforcement and the judicial system’s need to ensure access to justice for all individuals regardless of immigration status.
Milwaukee’s Local Context

The complaint acknowledges that there had been “public attention” to two previous courthouse arrests in Milwaukee

. This suggests an existing tension around the practice in the local community. The Milwaukee ICE ERO Task Force was reportedly focusing its resources on apprehending charged defendants in criminal cases, but the decision to execute the arrest inside the courthouse rather than outside raises questions about necessity and proportionality.
Legal Elements of the Charges

To prove obstruction under 18 U.S.C. § 1505, prosecutors must establish that Judge Dugan acted “corruptly” to influence, obstruct, or impede a proceeding before a federal department or agency
. The term “corruptly” is defined as “acting with an improper purpose, personally or by influencing another, including making a false or misleading statement, or withholding, concealing, altering, or destroying a document or other information”

.

For the concealment charge under 18 U.S.C. § 1071, prosecutors must prove:

A federal warrant had been issued

The defendant knowingly harbored or concealed the person

The defendant knew about the warrant

The defendant intended to prevent discovery or arrest

A viable defense could argue that Judge Dugan lacked corrupt intent if she believed she was asserting legitimate judicial authority over her courtroom and properly questioning the basis for ICE’s enforcement action without a judicial warrant. Similarly, her actions in directing Flores-Ruiz through a non-public door might be characterized as routine courtroom management rather than intentional concealment.
Precedent and Similar Cases

This case bears some resemblance to that of Massachusetts Judge Shelley Joseph, who was indicted in April 2019 on obstruction of justice charges for allegedly preventing an ICE officer from taking custody of an immigrant defendant
. Notably, those charges were eventually dropped in 2022, with Judge Joseph admitting to certain facts in the case

. The resolution of that case could have implications for how Judge Dugan’s case might proceed.
The Political Context

The arrest of Judge Dugan comes amid significant changes at the FBI. In February 2025, Senate Judiciary Committee Ranking Member Dick Durbin revealed allegations that FBI Director Kash Patel had been “personally directing the ongoing purge of senior law enforcement officials at the FBI”
. Patel, who was appointed by President Trump, publicly announced Judge Dugan’s arrest on social media

This political backdrop raises questions about whether the decision to pursue federal charges against a sitting state judge reflects neutral law enforcement priorities or signals a broader effort to enforce compliance with federal immigration policies at the local level.
Potential Defenses and Alternative Interpretations

Several arguments could be made in Judge Dugan’s defense:

Judicial authority: Judges have inherent authority to manage their courtrooms. Judge Dugan may have been acting within her authority to question the basis for ICE’s presence without a judicial warrant.

Lack of corrupt intent: If Judge Dugan believed she was following proper procedure by requiring a judicial warrant and referring the agents to the Chief Judge, this would undermine the claim that she acted “corruptly.”

Minimal impact: Flores-Ruiz was arrested just 22 minutes after being spotted in the courthouse. This minimal delay resulted in no significant harm to the enforcement action.

Proportionality concerns: The pursuit of federal felony charges against a sitting judge for actions that resulted in a brief delay raises questions about prosecutorial discretion and proportionality.

The criminal complaint against Judge Hannah Dugan presents serious allegations but leaves room for substantial legal and procedural questions. The distinction between administrative and judicial warrants, the evolving policies on courthouse enforcement, and the complex interplay between federal immigration authority and state judicial independence all merit careful consideration.

While the FBI characterizes Judge Dugan’s actions as deliberate obstruction, an alternative view could see them as a good-faith assertion of judicial authority in a contested enforcement space. As this case proceeds, it will likely raise important questions about the boundaries between federal immigration enforcement and the independence of state courts-questions that extend far beyond the specific circumstances of this case.

The resolution of these charges will have significant implications not only for Judge Dugan but for judges nationwide who must navigate the complex intersection of immigration enforcement and judicial proceedings. Regardless of the outcome, this case highlights the tension between federal enforcement priorities and local judicial autonomy that continues to shape our legal system.
CRIMINAL COMPLAINT 25-M-397(SCD)
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USCIS Registration Requirement for Non-U.S. Citizens: What You Need to Know

Posted on March 31, 2025 by Mike Baker
USCIS Registration Requirement

On March 12, 2025, the U.S. Department of Homeland Security (DHS) published an Interim Final Rule requiring certain non-U.S. citizens to register with U.S. Citizenship and Immigration Services (USCIS). This rule is set to take effect on April 11, 2025. Individuals who are not registered and lack proof of inspection from their last entry should consult legal counsel for specific advice.
Who is Subject to the Registration Requirement?

The registration requirement applies to:

Foreign Nationals Aged 14 and Older: Non-U.S. citizens who were not fingerprinted or registered when applying for a U.S. visa and plan to stay in the U.S. for 30 days or longer must register before the expiration of the 30 days.

Foreign National Children Under 14: Parents or legal guardians must register children who were not registered upon visa application and who will remain in the U.S. for 30 days or longer. Registration must occur within 30 days of reaching the age of 14.

Previously Registered Foreign National Children Turning 14: Children turning 14 must re-register and provide fingerprints within 30 days after their 14th birthday.

Who is Already Registered?

Individuals considered to be registered already include:

Lawful Permanent Residents (“green card” holders);

Foreign Nationals with Immigrant or Nonimmigrant Visas before their last date of arrival;

Nonimmigrants with Form I-94 or I-94W (paper or electronic), even if the period of admission has expired;

Foreign Nationals Paroled into the U.S., even if the period of parole has expired;

Foreign Nationals in Removal Proceedings;

Foreign Nationals with an Employment Authorization Document (EAD);

Foreign Nationals Who Have Applied for Lawful Permanent Residence using specific forms and provided fingerprints (unless waived);

Foreign Nationals Issued Border Crossing Cards.

Who is Not Considered Registered?

The following groups are not considered to be registered:

Undocumented Individuals who entered without inspection and admission, or admission and parole, and have not registered.

Canadians who entered at a land port or ferry crossing and were not issued evidence of registration (Form I-94).

Applicants for Immigration Relief like asylum, DACA, TPS, U visas, T visas, S visas, and VAWA self-petitions, who have not been issued evidence of that status.

Exemptions from the Registration Requirement

Exempt individuals include:

Officials of Foreign Governments and International Organizations with A or G visas;

Native Americans Born in Canada who possess at least 50% blood of the American Indian race and are present in the U.S. under the authority of 8 USC 1359;

Foreign Nationals Staying Less Than 30 Days.

How to Register

To register, individuals must:

Create a USCIS Online Account. Parents or guardians must set up an account for children under 14.

Complete Form G-325R after creating the account.

Penalties for Noncompliance

Failure to comply with registration and fingerprinting requirements can result in:

A fine of up to $5,000, imprisonment for up to six months, or both.

For those 18 years or older, failure to carry proof of registration can lead to a misdemeanor punishable by a fine of up to $5,000, imprisonment of not more than 30 days, or both.

This reorganization provides a clear structure for understanding the new USCIS registration requirement, including who is affected, how to register, and the penalties for noncompliance.


USCIS Registration, Immigration Updates, Non-U.S. Citizens, DHS Interim Final Rule

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Immigration backlogs

Posted on August 2, 2023 by Mike Baker

Immigration backlogs refer to delays and many pending cases in the immigration system[1]. These backlogs can affect various categories of immigrants, including asylum seekers, DACA recipients, spouses of U.S. citizens, and high-skilled immigrants in the tech industry[1]. Backlogs can occur at different stages of the immigration process. At the end of the process, when an immigrant visa is available, there may be administrative backlogs due to insufficient resources to handle the workload[2]. Family-based immigration avenues have also experienced significant backlogs, leading to delays in family reunification and creating barriers for individuals trying to immigrate through authorized immigration pathways[3].

One factor contributing to backlogs is the COVID-19 pandemic, which has impacted the immigration system and caused delays as processes slowed down[4]. In addition, U.S. Citizenship and Immigration Services (USCIS) has been facing challenges in keeping up with its growing responsibilities, and some of its backlogs have increased[5]. These backlogs not only affect the immigration process but also have implications for families, job opportunities, and overall efficiency in the system[6].

Efforts are being made to address immigration backlogs and streamline the system. There are calls for increased congressional funding to address the issue and improve the processing of immigration cases[1]. Furthermore, there have been proposals for reforming the immigration system to reduce backlogs, improve efficiency, and provide more accessible pathways for legal immigration[6].

It’s essential to stay informed about the latest developments in immigration reforms and changes in policies to understand the current situation regarding immigration backlogs better.

Sources:

Bipartisan Policy Center
https://bipartisanpolicy.org/explainer/immigration-backlogs/

U.S. Department of StateL https://travel.state.gov/content/travel/en/us-visas/visa-information-resources/visas-backlog.html

National Immigration Forum: https://immigrationforum.org/article/immigration-backlogs-separating-american-families/

Los Angeles Times: https://www.latimes.com/politics/story/2022-08-04/la-na-pol-backlogs-immigration-system

Government Executive: https://www.govexec.com/management/2023/07/biden-boosts-legal-immigration-pathways-implementing-agency-pushed-brink/388856/

Cato Institute: https://www.cato.org/policy-analysis/streamlining-end-immigration-backlogs

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Expunging, sealing criminal records, Illinois

Posted on January 5, 2023 by Mike Baker

EXPUNGEMENT: When a record is expunged, it is physically destroyed by each law enforcement agency, as if it never existed.

SEALED: When an Illinois State Police record is sealed, it is no longer available to your employer or other members of the public, but can still be seen by law enforcement agencies. When a clerk’s office record is sealed it is no longer available to employers or other members of the public, but can be viewed by members of the public if a judge specifically orders that they can see it.

CASES THAT CAN BE EXPUNGED:

1. Cases in which you were acquitted, released without conviction (including cases in which you were not charged), there was a not guilty finding or no probable cause finding, or nolle prosequi –Petitions to expunge may be filed immediately. If, however, your case was stricken off the call with leave to reinstate (“SOL”) or a non-suit, Petitions to expunge can only be granted 120 days (if demand for trial) or 160 days (if no demand for trial) after the case was SOL, and only if the prosecutor did not reinstate your case during this time period.

2. Cases, other than those listed in section 3, below, in which an Order of supervision was entered and two (2) years have passed since discharge and dismissal of supervision.

3. Cases in which an Order of supervision was entered and five (5) years have passed since termination of supervision for the following charges:

Retail Theft – 720 ILCS 5/16 A-3
Reckless Driving – 625 ILCS 5/11-503
Display of False Insurance – 625 ILCS 5/3-710
Suspended Registration for Non-Insurance – 625 ILCS 5/3-708
Uninsured Motor Vehicle – 625 ILCS 5/3-707

4. Cases in which an Order was entered terminating probation and at least five (5) years have passed since the order of termination was entered, under the following statutes:

Controlled Substance Act (410 Probation) – 720 ILCS 570/410
Cannabis Control Act (First Offender Only) – 720 ILCS 550/10

CASES THAT CANNOT BE EXPUNGED

Convictions, including:

1. A guilty plea, guilty finding, or guilty verdict resulting in a sentence other than probation under the Cannabis or Controlled Substances Acts.

2. Probation (except if you received 410 probation under the Controlled Substance Act or under the Cannabis Act)

3. Cases where the defendant was granted supervision for or was convicted of a sexual offense committed against a minor under 18 years of age (20 ILCS 2630/5(g))

4. Conditional Discharge

5. Time Considered Served

6. DUI/DWI Supervision

Once your record has been expunged, it “may not be considered by any private or public entity in employment matters, certification, licensing, revocation or certification or licensure, or registration,” (20 ILCS 2630/12) Employers are not allowed to ask you if you have had records expunged, and you are not required to disclose this information on employment applications. (20 ILCS 2630/12)

CASES THAT CAN BE SEALED

1. You are an adult or minor prosecuted as an adult for a misdemeanor, or municipal ordinance violation in which you were acquitted; released without being convicted (including cases where you were not charged), your conviction was reversed; or you received a sentence of supervision for a misdemeanor AND you have not been convicted of a felony or misdemeanor or placed on supervision for a misdemeanor for three (3) years after being acquitted, or released, or your conviction being reversed, or having completed the terms and conditions of your supervision.

2. You are an adult or minor prosecuted as and adult for a qualifying Class 4 Felony or misdemeanor which resulted in a conviction AND you have not been convicted of a felony or misdemeanor or placed on supervision for a misdemeanor for four (4) years after completing your sentence.

Once your record has been sealed, it “may not be considered by any private or public entity in employment matters, certification, licensing, revocation or certification or licensure, or registration,” (20 ILCS 2630/12) Employers are not allowed to ask you if you have had records expunged, and you are not required to disclose this information on employment applications. (20 ILCS 2630/12).

______________________________________________________________

Expunging and Sealing Criminal Records in Illinois

Cases that CAN be expunged:

a. Cases in which you are acquitted or released without being convicted
(including cases in which you have not been charged). Petitions to
Expunge may be filed immediately upon acquittal or release without
conviction.

b. Cases, other than those listed in section c. below, in which an Order of
supervision was entered and two (2) years have passed since discharge
and dismissal of supervision.

c. Cases in which an Order of supervision was entered and five (5) years
have passed since termination of supervision for the following charges:

• 625 ILCS 5/3-707 – Uninsured Motor Vehicle
• 625 ILCS 5/3-708 – Suspended Registration for Non-Insurance
• 625 ILCS 5/3-710 – Display of False Insurance
• 625 ILCS 5/5-401.3 – Scrap Processor to Keep Records
• 625 ILCS 5/11-503 – Reckless Driving
• 720 ILCS 5/12-3.2 – Domestic Battery
• 720 ILCS 5/12-15 – Criminal Sexual Abuse
• 720 ILCS 5/12-4.3 – Aggravated battery of a Child
• 720 ILCS 5/16 A-3 – Offense Retail Theft

d. Cases in which an Order was entered terminating probation and at
least five (5) years have passed since the order of termination was
entered, under the following statutes

• 720 ILCS 550/10 – Cannabis Control Act (First Time Offender
Only)
• 720 ILCS 570/410 – Control Substance Act (First Time Offender
Only)
• 720 ILCS 570/312(j) – Steroid Control Act
• 20 ILCS 305/10-102 or 301/40-10 – Alcohol and Drug Dependency
Act

e. Cases in which the Governor has issued a pardon that specifically
states that your records should be expunged.

Cases that CANNOT be expunged:
Convictions, including:

a. A guilty plea, guilty finding, or guilty verdict which results in a sentence
other than probation under the Cannabis, Controlled Substances, Steroid
Control, and Alcohol and Drug Dependency Acts (720 ILCS 550/10, 720
ILCS 570/410, 720 ILCS 570/312(j), and 20 ILCS 305/10-102 or 301/40-
10),

b. Probation (except under the Cannabis, Controlled Substances, Steroid
Control, and Alcohol and Drug Dependency Acts);

c. Cases where the defendant was granted supervision for or was
convicted of a sexual offense committed against a minor under 18 years
of age (20 ILCS 2630/5(g));

d. Conditional Discharge; and

e. D.U.I. Supervision (20 ILCS 2630/5).

Cases that CAN be Sealed:

Adult or minor prosecuted as an adult for misdemeanors or municipal
ordinance violations which result in an acquittal, release without
conviction, conviction reversed, or a sentence of supervision for
misdemeanor AND Defendant/Petitioner was not convicted of a felony or
misdemeanor or placed on supervision for a misdemeanor for 3 years
after the acquittal; or release or reversal of conviction, or completion of
the terms and conditions of the supervision.
Adult or minor prosecuted as an adult which results in a conviction for a
misdemeanor AND Defendant/Petitioner was not convicted of a felony or
misdemeanor or placed on supervision for a misdemeanor for 4 years
after the completion of the sentence.

Cases that CANNOT be Sealed:

Pursuant to 20 ILCS 2630/5, the following case types and dispositions are
not eligible for sealing of records:

DUI, 625 ILCS 5/11-501
Article 11, Criminal Code
Criminal Sexual Abuse, 720 ILCS 5/12-15
Violation of Order of Protection, 720 US 5/12-30
Dog Fighting, 720 US 5/26-5
Misdemeanor Crime of Violence under Section 2, Criminal Victims
Compensation Act
Class A Misdemeanor, Humane Care of Animals Act
Sex Offender Registration Act Offenses
_______________________________________________________________________

20 ILCS 2630/5
(g) Except as otherwise provided in subsection (c-5) of this Section, the court shall not order the sealing or expungement of the arrest records and records of the circuit court clerk of any person granted supervision for or convicted of any sexual offense committed against a minor under 18 years of age. For the purposes of this Section, “sexual offense committed against a minor ” includes but is not limited to the offenses of indecent solicitation of a child or criminal sexual abuse when the victim of such offense is under 18 years of age.

(h)(1) Applicability. Notwithstanding any other provision of this Act to the contrary and cumulative with any rights to expungement of criminal records, this subsection authorizes the sealing of criminal records of adults and of minors prosecuted as adults.

(2) Sealable offenses. The following offenses may be sealed:

(A) All municipal ordinance violations and misdemeanors, with the exception of the following:

(i) violations of Section 11-501 of the Illinois Vehicle Code or a similar provision of a local ordinance;

(ii) violations of Article 11 of the Criminal Code of 1961 or a similar provision of a local ordinance, except Section 11-14 of the Criminal Code of 1961 as provided in clause B(i) of this subsection (h);

(iii) violations of Section 12-15, 12-30, or 26-5 of the Criminal Code of 1961 or a similar provision of a local ordinance;

(iv) violations that are a crime of violence as defined in Section 2 of the Crime Victims Compensation Act or a similar provision of a local ordinance;

(v) Class A misdemeanor violations of the Humane Care for Animals Act; and

(vi) any offense or attempted offense that would subject a person to registration under the Sex Offender Registration Act.

(B) Misdemeanor and Class 4 felony violations of:

(i) Section 11-14 of the Criminal Code of 1961;

(ii) Section 4 of the Cannabis Control Act;

(iii) Section 402 of the Illinois Controlled Substances Act; and

(iv) Section 60 of the Methamphetamine Control and Community Protection Act [720 ILCS 646/60]

However, for purposes of this subsection (h), a sentence of first offender probation under Section 10 of the Cannabis Control Act, Section 410 of the Illinois Controlled Substances Act, or Section 70 of the Methamphetamine Control and Community Protection Act [720 ILCS 646/70] shall be treated as a Class 4 felony conviction.

(3) Requirements for sealing. Records identified as sealable under clause (h) (2) may be sealed when the individual was:

(A) Acquitted of the offense or offenses or released without being convicted.

(B) Convicted of the offense or offenses and the conviction or convictions were reversed.

(C) Placed on misdemeanor supervision for an offense or offenses; and

(i) at least 3 years have elapsed since the completion of the term of supervision, or terms of supervision, if more than one term has been ordered; and

(ii) the individual has not been convicted of a felony or misdemeanor or placed on supervision for a misdemeanor or felony during the period specified in clause (i).

(D) Convicted of an offense or offenses; and

(i) at least 4 years have elapsed since the last such conviction or term of any sentence, probation, parole, or supervision, if any, whichever is last in time; and

(ii) the individual has not been convicted of a felony or misdemeanor or placed on supervision for a misdemeanor or felony during the period specified in clause (i).

(4) Requirements for sealing of records when more than one charge and disposition have been filed. When multiple offenses are petitioned to be sealed under this subsection (h), the requirements of the relevant provisions of clauses (h)(3)(A) through (D) each apply. In instances in which more than one waiting period is applicable under clauses (h)(C)(i) and (ii) and (h)(D)(i) and (ii), the longer applicable period applies, and the requirements of clause (h) (3) shall be considered met when the petition is filed after the passage of the longer applicable waiting period. That period commences on the date of the completion of the last sentence or the end of supervision, probation, or parole, whichever is last in time.

(5) Subsequent convictions. A person may not have subsequent felony conviction records sealed as provided in this subsection (h) if he or she is convicted of any felony offense after the date of the sealing of prior felony records as provided in this subsection (h).

(6) Notice of eligibility for sealing. Upon acquittal, release without conviction, or being placed on supervision for a sealable offense, or upon conviction of a sealable offense, the person shall be informed by the court of the right to have the records sealed and the procedures for the sealing of the records.

(7) Procedure. Upon becoming eligible for the sealing of records under this subsection (h), the person who seeks the sealing of his or her records shall file a petition requesting the sealing of records with the clerk of the court where the charge or charges were brought. The records may be sealed by the Chief Judge of the circuit wherein the charge was brought, any judge of that circuit designated by the Chief Judge, or in counties of less than 3,000,000 inhabitants, the presiding trial judge at the defendant’s trial, if any. If charges were brought in multiple jurisdictions, a petition must be filed in each such jurisdiction. The petitioner shall pay the applicable fee, if not waived.

(A) Contents of petition. The petition shall contain the petitioner’s name, date of birth, current address, each charge, each case number, the date of each charge, the identity of the arresting authority, and such other information as the court may require. During the pendency of the proceeding, the petitioner shall promptly notify the clerk of the court of any change of address.

(B) Drug test. A person filing a petition to have his or her records sealed for a Class 4 felony violation of Section 4 of the Cannabis Control Act or for a Class 4 felony violation of Section 402 of the Illinois Controlled Substances Act must attach to the petition proof that the petitioner has passed a test taken within the previous 30 days before the filing of the petition showing the absence within his or her body of all illegal substances in violation of either the Illinois Controlled Substances Act or the Cannabis Control Act.

(C) Service of petition. The clerk shall promptly serve a copy of the petition on the State’s Attorney or prosecutor charged with the duty of prosecuting the offense, the Department of State Police, the arresting agency and the chief legal officer of the unit of local government effecting the arrest.

(D) Entry of order. Unless the State’s Attorney or prosecutor, the Department of State Police, the arresting agency or such chief legal officer objects to sealing of the records within 90 days of notice the court shall enter an order sealing the defendant’s records.

(E) Hearing upon objection. If an objection is filed, the court shall set a date for a hearing and notify the petitioner and the parties on whom the petition had been served, and shall hear evidence on whether the sealing of the records should or should not be granted, and shall make a determination on whether to issue an order to seal the records based on the evidence presented at the hearing.

(F) Service of order. After entering the order to seal records, the court must provide copies of the order to the Department, in a form and manner prescribed by the Department, to the petitioner, to the State’s Attorney or prosecutor charged with the duty of prosecuting the offense, to the arresting agency, to the chief legal officer of the unit of local government effecting the arrest, and to such other criminal justice agencies as may be ordered by the court.

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Relief Application Waived if Not Filed by IJ’s Deadline, BIA Rules

Posted on September 11, 2020 by Mike Baker

Matter of R-C-R-, 28 I&N Dec. 74 (BIA 2020) (pdf)

(1) After an Immigration Judge has set a firm deadline for filing an application for relief, the respondent’s opportunity to file the application may be deemed waived, prior to a scheduled hearing, if the deadline passes without submission of the application and no good cause for noncompliance has been shown.

(2) The respondent failed to meet his burden of establishing that he was deprived of a full and fair hearing where he has not shown that conducting the hearing by video conference interfered with his communication with the Immigration Judge or otherwise prejudiced him as a result of technical problems with the video equipment.

An application for relief from removal may be deemed waived if the applicant fails to file by an immigration judge’s (IJ’s) firm deadline, even if the applicant also has a subsequent hearing scheduled, the Board of Immigration Appeals (BIA or Board) ruled in Matter of R-C-R-, 28 I. & N. Dec. 74 (B.I.A. 2020). The Board also found that the respondent was not deprived of a full and fair hearing by technical problems in conducting his hearing by interactive video.

Respondent R-C-R-, a citizen of Guatemala, entered the U.S. in March 2019 and was charged with removability as an alien present without admission or parole and for lacking valid entry documents. In November 2019, R-C-R- appeared at a hearing without counsel, conceded removability, and expressed a desire to apply for asylum, withholding of removal, and protection under the Convention Against Torture.1 The BIA deemed the hearing held, for jurisdictional purposes, in Richwood, Louisiana, where the respondent was in detention. The IJ communicated through video conference from the Batavia Immigration Court in New York.

R-C-R- was given a Form I-589 relief application. Although the respondent’s next hearing was scheduled for January 14, 2020, the IJ instructed him to submit his relief application no later than December 6, 2019, or it would be deemed waived.
A week past the deadline, after receiving no application from the respondent, the IJ found that R-C-R- had waived his opportunity to apply and ordered him removed.
The respondent argued to the BIA that the IJ violated his due process rights both by setting an application deadline in advance of his next hearing and by not allowing him to explain why he missed the deadline. R-C-R- also argued that he was denied a full and fair hearing because he was unrepresented, detained, and forced to communicate through a Spanish interpreter after saying he understood “more Spanish than Mam”

The BIA held, first, that the IJ did not abuse her discretion in ordering R-C-R- to file his relief application before his next hearing date. The Board noted that 8 CFR § 1003.31(c) provides:

The Immigration Judge may set and extend time limits for the filing of applications and related documents and responses thereto, if any. If an application or document is not filed within the time set by the Immigration Judge, the opportunity to file that application or document shall be deemed waived.

The BIA found the waiver authority upheld by its own precedents and an unpublished decision of the circuit within which the hearing was held.2 R-C-R- had not moved to extend the deadline and obtain more time to complete his application, the Board further noted, nor did he use a motion to reconsider or reopen as an opportunity to explain his failure to file on time. “Had the respondent filed either type of motion and provided good cause for missing the deadline, reconsideration or reopening by the Immigration Judge would likely have been appropriate,” the BIA said.

Even on appeal, appearing with counsel, R-C-R- still offered no explanation and did not submit a completed relief application as part of a motion to remand, the Board added. He also did not allege facts that would show a prima facie case of eligibility for any form of relief from removal.

The BIA next found that the respondent had not explained why his case was prejudiced by the conditions of his hearing. The hearing was conducted in Spanish because the respondent stated that it was the language he understood best, the BIA noted. He did not object during the hearing that he could not understand his interpreter, and the BIA found no signs of confusion in the hearing transcript.

The use of interactive video for hearings is authorized by the INA and regulations, as several courts of appeals have recognized, and thus is not a per se due process violation, the BIA said, noting that these authorities include two unpublished Fifth Circuit decisions.3 In this case, the BIA found that R-C-R- failed to explain how his hearing was deficient, given that he was advised of his procedural rights and right to be represented, declined the IJ’s offer to ask questions, and indicated that he understood the charges and could hear the IJ’s questions. The respondent also did not allege any dropout of the audio or video or any other technical problems.
The BIA dismissed the respondent’s appeal.

David J. Rozas, Baton Rouge, Louisiana, appeared for the respondent. Dawn M. Carter appeared for the Department of Homeland Security.

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