By the time she retired from San Francisco’s Immigration Court on December 31, 2021, Judge Dana Leigh Marks* had built an inspiring reputation as a leader, mentor, and advocate. She is known for her fierce advocacy for the court. She is known for her compassion and fairmindedness. She is known for her intelligence and wit, having coined oft-repeated, appropriate zingers that help people better understand the challenges of immigration court, including “Immigration judges do death penalty cases in a traffic court setting” and “Immigration is more complicated than tax law. How do I know this? Because there is no TurboTax for immigration law.”
Talking with her former colleagues—many of whom are now also her friends—is an uplifting experience. They speak of a woman who broke through barriers, applied the law fairly and compassionately, fought hard fights, and inspired others to join her. “She’s the GOAT of immigration judges!” declares Francisco Ugarte, Manager of the Immigration Defense Unit of San Francisco’s Public Defender’s Office.
Who is Judge Marks, and how did she positively influence and impact so many lives?
Early Days
After graduating law school at age 23, Judge Marks went into private practice at Simmons & Ungar. “Oh, my goodness,” says Donald Ungar, now retired, as he thinks back to his first impressions. “She was young, intelligent, interested in law, committed to immigration and immigrants, committed to people.” In what has become a treasured memory for both of them, her job interview took place in a unique setting. “It occurred to me I had a meeting,” Ungar says, “So I asked, ‘Would you mind if we continued this?’” They walked to Market Street, where they hopped on the #5 bus to the Federal Courthouse. He jokes he decided to hire her the minute she insisted on paying her own fare.
The firm made a wise choice. “The clients loved her,” says Ungar. “They had confidence in her that she was doing everything she could for them.” She demonstrated this on a national level in October of 1986 when Judge Marks (along with Bill O. Hing, Susan Lydon, and Kip Steinberg) argued on behalf of Luz Marina Cardoza-Fonseca before the US Supreme Court (INS v. Cardoza-Fonesca). In March 1987, the court decided in favor of granting Cardoza-Fonseca asylum, and Judge Marks, just 32 years old, cemented her standing as a legend.
On the Bench
Litigating before the US Supreme Court—and winning—might be the pinnacle of many legal careers, but Judge Marks was not one to sit on her laurels. In January of 1987, she was appointed to the bench of the Immigration Court, US Department of Justice, Executive Office for Immigration—one of the first women and one of the first attorneys appointed from private practice. (Previously, appointments were considered promotions for prosecuting attorneys from INS.) “She was the first person I knew from ‘our side’,” says Bette Stockton, who later joined Judge Marks on the bench and retired after 21.5 years as an immigration judge.
At first, Judge Marks wasn’t sure she’d like the role of judge, in part because there was an assumption about the strong-arm persona she’d have to put on to manage her courtroom. She quickly discarded that notion. “I didn’t have to scare or browbeat people into my decisions,” says Judge Marks. “I vowed to be my authentic sense of self.” Retired Immigration Judge Polly Webber, saw an aspirational role model. “In the 1980s, AILA (American Immigration Lawyers Association) was very stodgy, a reactive organization,” Judge Webber says. “She made it more proactive, trying to affect the law. Dana embodied that proactive spirit.”
Highly technical and often confusing, immigration law can intersect with family, dependency, and criminal law. It has also been politically charged, as immigration courts fall under the jurisdiction of the US Department of Justice (DOJ), Executive Office for Immigration Review (EOIR). Judge Marks says she was never bored. “The rules of evidence are [only] a guide, there’s no pretrial discovery,” she says. “You really get those Perry Mason moments in immigration court. I love the Wild West aspect of it.”
Judge Marks also thrived in this arena because she saw beyond the expectation that her role was solely to facilitate deportations; she saw the humanity inherent in the proceedings. “Every story is individual,” she says, and every person deserves to be heard.
It’s an emotionally trying job. “You’re hearing stories of trauma and torture all day long,” says Carol King, also a retired immigration judge, and the judge must then make decisions about people’s futures. “These are people we’re dealing with,” says Judge Stockton, people who are nervous, if not terrified, and Judge Marks has a gift for helping them feel more at ease in the courtroom. “I can think of one case I had in front of her,” says Ilyce Shugall, a former immigration judge who is currently managing attorney with Immigrant Legal Defense. “My client was seriously mentally ill, there were a lot of complexities in his case. She was so good to him.” This was something Judge Marks had learned from her experience with her own clients. “We’re more productive if they’re comfortable,” she says. “I want everyone to feel validated, listened to.”
To manage an immigration courtroom, says Rebecca Bowen Jamil, who retired from the bench and is currently an attorney with Argumedo Garzon Law Group in San Francisco, “you have to be flexible and have the knowledge to be flexible.” Judge Marks succeeded, Jamil says, because “she has a big personality, and she has the goods to back it up. Attorneys–even conservatives–respected her.”
Judge Marks explains it another way. “Immigration court doesn’t have contempt, so I had to use charm,” she says. (She also refers to herself as a “sit-down comedian.”)
Attorneys who appeared before Judge Marks were impressed by her complete command of her courtroom. “It was a magic zone,” says Ugarte, in part because when she made a decision, she bridged the gap in a politically charged environment. “She deeply cared about due process,” says Ugarte. “She was always kind and patient with people who came before her. You felt you had a fair shot,” says Milli Atkinson, Director of the Immigrant Legal Defense Program at JDC and Legal Director of the SFIL Defense Collaborative, who appeared before her as an attorney. Ugarte says he felt “elated” when he learned he would appear before her, “not because all cases were granted, but because you felt heard.”
Judge Marks’s generosity extended to her colleagues on the bench. “Her door was always open,” says Judge King. “We discussed cases together.” In addition to helping her colleagues with the analysis of cases, Judge Marks was available for emotional support. “I was the first to do the Families with Children Docket, which became known as ‘rocket docket’,” Judge King recalls. “I opened the first file, and there was a picture of the first respondent, probably less than a year old. I got in that moment what that was going to be. I burst into tears and ran into Dana’s office for support. She was always there for me, emotionally and intellectually.”
The Voice of NAIJ
Becoming involved with and leading the National Association of Immigration Judges (NAIJ) was a natural extension of her skills and influence. Judge Marks led the union for a total of 18 years, serving seven two-year terms as president (not sequential) and four as executive vice president. She remains active today as president emerita. “She was very vocal as head of NAIJ,” says Atkinson, “especially [on issues] related to fairness and due process.” Judge Webber appreciated Judge Marks’s talents as a spokesperson for the union, remarking on her great voice and quick thinking. “She explains things well. She’s funny and insightful,” she says. “She was our fearless leader in the union,” says Judge King, who was Union site representative in San Francisco while Judge Marks was president.
Judge Marks faced daunting challenges during her tenure. The Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) and Antiterrorism and Effective Death Penalty Act (AEDPA) of 1996, as well as the REAL ID Act of 2005, had serious impacts on asylum cases and the parameters of the courts. The courts faced—and continue to grapple with—a crisis of backlogged cases. In 2018, after then-attorney general Jeff Sessions announced new restrictions on asylum cases, there was a mass exodus of immigration judges. Throughout, Jamil says, Judge Marks articulated to the press and to the public the stress of doing the job of immigration judge.
Judge Marks, in keeping with her upbeat character, reflects on the pluses of her role. “The union kept me intellectually stimulated,” she says. “I really enjoyed working with journalists and legislators.” She also describes her stint as NAIJ’s president as “an incredible blessing” because it allowed her to become friendly with immigration judges across the country.
Her Legacy
Judge Marks says her biggest success was seeing H.R. 6577, Real Courts, Rule of Law Act of 2022 introduced in Congress by Representative Zoe Lofgren and passed by the House Judiciary Committee in May of this year. The bill, if approved by the Senate, “will transition the nation’s immigration court system into an independent judiciary consistent with Article I of the U.S. Constitution.” Says Judge Marks, “This quickly became my long-term goal outside of judging.”
When that does happen, it certainly will be part of her legacy, but just one part of a stellar career. “She can look back with satisfaction at the mass of people whose lives she helped,” says Ungar. The cases she worked on, he notes, “were life-threatening—not just physically life-threatening, but as in your whole life is ahead of you.” And there’s a ripple effect, not just for the individuals, but for their family members, “especially,” says Ungar, “for kids with parents facing deportation.”
“She showed us all how to be fierce advocates for justice—for what is true and right and just—without crossing over lines,” says Judge King. Jamil adds Judge Marks’s “tireless” work for the union and “giving a professional, female voice to immigration judges” to her list of accomplishments. “When she started, she was one of few women. After her, all these really amazing women came to the bench,” says Shugall, women Judge Marks mentored and encouraged to apply for the bench. That roster includes Judges Jamil, King, Miriam Hayward, Stockton, Webber, and Laura Ramirez. “She helped start that trajectory,” says Shugall.
“She helped create an inspiring model for how courts can be,” says Ugarte, and Judge Webber states, simply, “She inspires people all the time.”
“While she has had some limelight in her career, the vast majority of her work has been thankless,” says Judge King. “She perseveres solely because she believes it is important to make a difference wherever you can.”
*Today Judge Marks is known as “NanaDana,” a title that celebrates her role as caretaker for her granddaughter and helps people correctly pronounce her name (“dan-uh,” not “day-nuh”).
Kathleen Guthrie Woods is a long-time contributor to San Francisco Attorney magazine. She first interviewed Judge Marks, then-president of NAIJ, for “Understanding the Crisis in Our Immigration Courts” (Spring 2015).
