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A Top Immigration Court Official Called For Impartiality In A Memo He Sent As He Resigned

The judge was replaced by the Trump administration with the former top Immigration and Customs Enforcement prosecutor.

Last updated on July 3, 2020, at 5:14 p.m. ET

Posted on July 3, 2020, at 1:52 p.m. ET

People seeking asylum in the US wait at the border crossing bridge in Tijuana, Mexico
Elliot Spagat / AP

A leading immigration court official stepped down Thursday after sending a pointed email to court employees emphasizing the importance of the appearance of impartiality and the benefits of providing protections for people fleeing to the US. The message came on the same day the Trump administration tapped the former top Immigration and Customs Enforcement prosecutor to take his position, a move that outraged immigrant advocates.

The Trump administration selected Tracy Short, previously the lead ICE prosecutor, for the chief immigration judge role. ICE prosecutors often take up roles as immigration judges, but the selection of Short, formerly ICE’s principal legal adviser, left some claiming the move would undercut the appearance of neutrality at the court.

Christopher Santoro, the acting chief immigration judge, appeared to signal that in his message to court employees announcing his resignation.

His resignation and Short’s hiring come as the Trump administration has undertaken a monumental overhaul of the way immigration judges work: placing quotas on the number of cases they should complete every year, restricting when asylum can be granted, and pouring thousands of previously closed cases back into court dockets. In the meantime, the case backlog has increased and wait times have continued to skyrocket to hundreds of days.

“There will always be those who disagree with a judge’s (or jury’s) decision and our court system is no different,” he wrote in the email on Thursday, which was obtained by BuzzFeed News. “But for the public to trust a court system, for the public to believe that a court is providing fair and equitable treatment under the law, that court system must not only dispense justice impartially but also appear to be impartial. Maintaining the appearance of impartiality and fairness can often be more difficult than being impartial and is a goal each of us – regardless of our role – must strive for every day.”

Santoro, who had himself served as a senior ICE adviser during the Obama administration, said he delivers this message in training to immigration judges and it applied to everyone involved with the court.

“Santoro’s emphasis on impartiality and protecting vulnerable populations is a sharp departure from this administration’s priorities, which have focused around speedy adjudications and reducing the backlog,” said Sarah Pierce, an analyst at the Migration Policy Institute. “Someone who recognizes the dire need for impartiality in this system has to watch a prosecutor lead the charge in his wake.”

Two Department of Justice employees said the decision to tap Short was misguided. The Office of the Chief Immigration Judge “provides overall program direction, articulates policies and procedures, and establishes priorities” for the court.

“His hiring is further confirmation that the Executive Office for Immigration Review leadership wishes EOIR to be a tool for enforcement agencies, focused on removal orders and nothing else,” said one employee, who could not speak publicly on the matter. The employee said that Santoro is “incredibly respected, and, in normal times, he would have been the chief immigration judge.”

Another DOJ employee said that Short’s appointment was “one step closer to the death knell for impartiality at the Immigration Court and more persuasive evidence that our code of American justice and fairness is not being followed at the Department of Justice.”

Ashley Tabaddor, who heads the union that represents immigration judges, said they were sad to hear of Santoro's departure, adding that he is "a well-respected judge and will be tremendously missed."

In his email, Santoro praised the immigration court for its work in recent years.

“Despite the many challenges thrown our way – ranging from changing priorities to lapses in appropriations to the temporary loss of our case management system to our million-plus pending caseload – you have risen to meet and exceed expectations each and every time. I have never worked with a finer group of professionals,” Santoro wrote.

He later said that the “nation benefits when we welcome those who bring different skills, perspectives, and experiences, and when we protect those who would be persecuted or tortured in their home country. We also benefit when we ensure that our laws are enforced fairly and consistently.”

Observers of the court — including current and former officials — said the email was eye-opening.

“I'm heartened, but not surprised, to see Judge Santoro join the dozens of judges who have resigned from this administration and expressed a deep concern for the due process rights of vulnerable asylum seekers in our immigration court system,” said Rebecca Jamil, a former immigration judge who stepped down due to the administration’s immigration policies. “For a court system to mean anything, the public has to trust that it is fair and unbiased, and the Immigration Court simply does not have that important contract with the current Attorney General. I'm grateful that Judge Santoro reached the same conclusion that I did.”

Santoro’s replacement had previously been a key figure in the Trump administration’s attempts to restrict immigration. In August 2017, Short wrote a memo to ICE attorneys outlining how they were restricted from granting reprieves for certain immigrants facing deportation, ordered to review and potentially reopen previously closed cases, and told that nearly all undocumented immigrants were priorities for deportation.

“Prosecutorial discretion is an act of administrative leniency, it is not an entitlement,” Short wrote in the memo.

Short’s memo told attorneys they were no longer required to check the email inbox used to receive requests for leniency from immigration attorneys. Short also wrote that ICE attorneys could consider prosecutorial discretion for immigrants in certain circumstances, such as a relative of a military member, has an obvious claim to status, has an “extraordinary humanitarian factor,” or is an asset to state or federal law enforcement. Even then, ICE attorneys must receive written approval from senior leadership in Washington for such a request.

Santoro ended his email by telling staffers that “as your new leadership has now arrived, I anticipate that my last day with EOIR will be Friday, July 17. I will be forever appreciative for your support and friendship and would be pleased to serve again with any or all of you should life’s twists and turns make that a possibility. I wish you and your families all the best, and please have a happy and safe Fourth of July.”

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