The national union for immigration judges filed a grievance against Attorney General Jeff Sessions’ Department of Justice Wednesday, challenging the removal of a Philadelphia immigration judge from a high-profile case, a move the complaint said was unwarranted and violated judicial independence.
The judges say that the removal of a judge in the middle of a case highlights the inherent tension between immigration judges, who advocate for independent authority, and the agency that presides over them, the Department of Justice.
Advocates believe the case is the latest in a line of steps by the Trump administration, like setting quotas for the number of cases a judge considers, intended to undercut the independence of immigration judges and accelerate deportations.
“The decisional independence of immigration judges is under siege,” said Ashley Tabaddor, an immigration judge who heads the union, the National Association of Immigration Judges, which represents around 350 judges. “If allowed to stand, the agency can simply forum-shop its cases for the outcome it wishes to achieve.”
The grievance alleges that dozens of other cases were also improperly removed from Judge Steven Morley’s docket. The judges are asking for the cases to be returned, a public acknowledgment that the decision to remove him was wrong and violated their collective bargaining agreement, and that the department pledge to make no similar moves in the future.
The Department of Justice’s Executive Office for Immigration Review, which oversees the immigration court, has 60 days to respond. A spokesperson for the EOIR said that Morley may have committed a procedural error in the case.
“There is reason to believe that the immigration judge in question committed potential violations of processes and practices governed by federal law and EOIR policy," the spokesperson said. "In any situation where a concern is raised about an immigration judge’s conduct, regardless of whether that concern is raised by a representative, third-party group, or following an internal review, EOIR’s OCIJ [Office of the Chief Immigration Judge] investigates the issue thoroughly and will address it appropriately as the facts warrant. We look forward to fully vindicating the issues surrounding this matter.”
The union said the comments made by the spokesperson confirmed their concerns about the department interfering with the independence of the judge. "If a party believes that the judge erred in his ruling, the proper procedure is to appeal the case. The DOJ does not have the authority to intervene in a case simply because management wanted the judge to make a different decision," said Tabaddor.
The issues began when Morley was presiding over a case involving Reynaldo Castro-Tum — a man who’d failed to show up at his immigration court hearings. Morley suspended the case using a procedure known as "administrative closure," citing the fact that the notice sent to Castro-Tum may have been sent to the wrong address.
“Administrative closure” has been used in hundreds of thousands of cases across the country.
In his position overseeing the immigration court, Sessions referred the case to himself and wrote an opinion in May restricting the use of “administrative closures,” a decision that could dramatically alter the way deportation cases are handled and potentially add hundreds of thousands of cases to an already backlogged court system.
Sessions said that “administrative closures” lacked legal foundation and undermined the court’s ability to quickly hear cases.
In the meantime, Sessions sent the case back to Morley’s court, writing that if Castro-Tum did not appear for his hearing, he should be ordered deported. He didn’t show up but an attorney advocating on his behalf, Matthew Archambeault, argued that Castro-Tum didn’t have enough notice and that he wanted to file a brief in the case.
Morley then scheduled a hearing for late July to go over those issues.
But before that hearing, Morley was notified by a supervising judge that the case was being reassigned. The supervising judge, according to the grievance, told Morley that Sessions had ordered Castro-Tum deported if he did not show up. Morley was then replaced with a supervising judge by the Executive Office of Immigration Review.
The new judge, whom Archambeault identified as Deepali Nadkarni, an assistant chief immigration judge, ordered Castro-Tum deported.
Tabaddor said it was an unprecedented decision.
“I’m not aware of a situation in which cases have been taken midstream from judges as a means of directing a different outcome,” she said. “This decision with Judge Morley’s handling of the case is a further example of what we have seen as a step-by-step encroachment into judges’ authority and ability to handle cases independent of influence of the Department of Justice and the Department of Homeland Security.”
Former immigration judge Jeffrey Chase, who was among a group of more than a dozen retired judges who signed a letter protesting the handling of the case last week, said that Morley is an experienced and well-respected judge who served as a private attorney before being appointed to the immigration bench in 2010.
Morley, Chase said last week, was taken off the case “because he had the courage to exercise his independent judgment in the pursuit of a fair result.”