In an uncharacteristically public move, the union representing immigration judges on Wednesday strongly criticized the Attorney General Jeff Sessions-led Department of Justice for interfering with the courts’ independence.
The National Association of Immigration Judges alleges that Trump administration officials transferred the case of an undocumented immigrant away from a Philadelphia-based immigration judge because the judge didn’t give them the outcome they wanted: a swift order of deportation when the immigrant didn’t show up in court for a hastily scheduled hearing.
“The agency’s actions violated the independence of the judge’s decision-making authority and undermined the integrity of immigration courts,” Judge Ashley Tabaddor, speaking in her capacity as president of the National Association of Immigration Judges, told reporters on a press call after filing an official grievance. “We, as judges who are bound by an oath of office, cannot let these actions proceed unchallenged.”
The union that represents immigration judges believes that the agency’s move was just the latest in a string of attacks on the independence of the courtrooms that decide the fates of tens of thousands of immigrants each year. Sessions and his deputies, critics allege, are trying to achieve a specific result ― more deportation orders, quicker completion of cases or a message that immigration enforcement is a priority ― and using immigration judges to get it.
“I’m really concerned it’s a slippery slope of where the agency’s heading and what’s to come in the future,” said Laura Lynch, senior policy counsel at American Immigration Lawyers Association.
The case of Reynaldo Castro-Tum, the immigrant at the center of the matter, had always been an unusual one. At age 17, the Guatemalan entered the U.S. without authorization in 2014, traveling without his parents, and his removal case was put on the docket of immigration Judge Steven Morley, a former immigration attorney who was appointed as a judge in Philadelphia in 2010.
Castro-Tum never showed up in court, and, concerned that he wasn’t receiving the notices, Morley eventually administratively closed the case. But the Trump administration disagreed with that decision. The government appealed to the Board of Immigration Appeals, which in November ordered Morley to reopen the case.
Then Sessions got involved. As attorney general, he also oversees immigration courts ― a bureaucratic quirk that puts hundreds of judges under the purview of the nation’s top law enforcement official, a political appointee. Sessions has the ability to refer cases to himself and set his own precedents, and he picked Castro-Tum’s as one to consider. In May, he agreed with the Board of Immigration Appeals that Morley should reopen the case and went a step further, limiting judges’ authority to administratively close cases at all.
Sessions compelled the immigration court to issue another notice to Castro-Tum, and so it did two days later. The court set the hearing for the end of May ― 12 days after it issued the notice.
Once again, Castro-Tum didn’t show up. Morley believed not enough time had elapsed between the issuance of the notice and the hearing to be sure the court wouldn’t receive a return-to-sender message. He issued a continuance ― delaying the hearing in which he would decide whether Castro-Tum should be deported.
That’s when his superiors at the Executive Office for Immigration Review re-assigned the case, an “outrageous” step, Tabaddor says, that the agency usually only applies for administrative reasons, such as if a judge retires or goes on leave.
Another immigration judge later ordered that Castro-Tum be deported.
Morley later learned the Executive Office for Immigration Review had reassigned more than 80 other cases of his as well, all ones in which he had questioned whether the immigrants, all of whom came to the U.S. as minors, had received adequate notification of their hearings.
In its grievance, filed under its collective bargaining agreement, the union argued that the Executive Office for Immigration Review should issue a written acknowledgment of its error and return the cases to his courtroom. It also urged the agency to issue a written statement to all judges acknowledging that cases should not be assigned or reassigned in a manner that would interfere with their authority to make independent decisions. The Department of Justice now has 60 days to respond to the grievance.
Morley is still working as an immigration judge and is therefore not authorized to speak to the media. But Philadelphia-based immigration attorney Matthew Archambeault, who as a “friend of the court” in Castro-Tum’s case suggested Castro-Tum should be given more time and advised Morley to terminate the case or allow for the continuance, said he suspects that if the Castro-Tum case had remained before Morley, he eventually would have ordered him deported based on Sessions’ decision earlier this year once he felt confident the young man had received due process.
″[Morley]’s always fair, but no one should have the misconception that he’s this easy pushover attorney who just grants everything for our side, because it’s just not true,” Archambeault said.
The Executive Office for Immigration Review has pointed at Archambeault’s role in the proceedings when asked for comment on the case, without explaining how exactly that might have affected its decision.
“There is no attorney of record in this case, and the Executive Office for Immigration Review has no policy — as it does for minors — on ‘friends of the court’ appearing for adults in immigration court,” an EOIR spokesman said, declining to comment by name.