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Immigration Judges Take On the Trump Administration

August 16, 2018

By Marielena Castellanos

Immigration judges are pushing back against the Trump administration to keep independence in the courtroom as the Trump administration continues to crack down on illegal immigration.

An unusual step was taken last week when a formal grievance was filed against Attorney General Jeff Sessions and the Justice Department by the union that represents immigration judges.

The move came after Sessions removed Philadelphia judge Steven Morley from an immigration case, and the Justice Department later removed more than 80 cases from Morley as well.

It started back in May of this year when Morley closed the case of Reynaldo Castro-Tum, an immigrant from Guatemala who came to the United States as an unaccompanied minor back in 2014 when he was 17-years-old, over concerns Castro-Tum had an unreliable mailing address after he didn’t show up for several immigration court appearances.

Sessions later reviewed the case and said Morley was wrong, and the judge was instructed to deport Castro-Tum if he didn’t to appear in court again. Afterwards Castro-Tum’s attorney argued there wasn’t enough notice for Castro-Tum to appear, and Morley agreed to reschedule the hearing, but another hearing date was never set because Morley was removed from the case.

The Justice Department said in a statement that “there is reason to believe” Morley violated federal law. The statement said an investigation is ongoing.

USA Today reported Sessions used the case as a basis to order that immigration judges no longer had the power to close most cases, as they had done in more than 350,000 cases over the past decade. The case was also used by the Obama administration in allowing immigration judges to focus more time on cases of undocumented immigrants with criminal records.

The grievance against Sessions was filed by the National Association of Immigration Judges which represents about 350 immigration judges across the country. They work under the Justice Department and carry significant weight inside immigration courtrooms deciding whether undocumented immigrants can remain in the United States through asylum or some other form of relief, or face deportation. But they are also employees of the Justice Department, and the attorney general has the authority to hire and manage their performance.

Immigration judges have long argued against this employment structure which puts them under the same department that prosecutes cases, and in this instance the judges believe the Trump administration is interfering with their ability to conduct fair and impartial court proceedings.
Laura Lynch, a senior policy counsel for the American Immigration Lawyers Association (AILA), told the Washington Post, “we’re very concerned the immigration judges are simply being turned into law enforcement officers.”

The Washington Post also reports this month the AILA launched a national campaign to lobby members of Congress to support legislation to overhaul the system.

Ashley Tabaddor, a Los Angeles based immigration judge and president of the National Association of Immigration Judges told CNN, “This is a direct interference with a judge’s decisional independence. The foundation of due process is notice and an opportunity to be heard. If someone is not properly notified, then the court cannot proceed to order them deported.”

A letter was also written by a group of retired immigration judges and former members of the Board of Immigration Appeals calling Sessions tactics an “attack on judicial independence.” The letter ends by saying, “as a democracy, we expect our judges to reach results based on what is just, even where such results are not aligned with the desired outcomes of politicians.”

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