The decision to replace a local immigration judge with a supervising judge from Washington, D.C., was an unusual move, but, according to immigration lawyers in Philadelphia, it fit a pattern that is becoming very clear to both the bench and bar—immigration judges have far less autonomy than they did under previous administrations.
“It’s really disturbing,” Philadelphia immigration attorney Matthew Archambeault said. “It sends a chilling message to the immigration judges—don’t step out of line, and you don’t have judicial independence.”
Late last month, an assistant chief immigration judge from the Executive Office for Immigration Review replaced a local immigration judge who had been handling the case of Reynaldo Castro-Tum, a Guatemalan man who had come to the country as an unaccompanied minor.
Castro-Tum’s case had previously made headlines when U.S. Attorney General Jeff Sessions used it to curb immigration judges’ ability to use a widely used docketing tool, known as administrative closure. But the decision to replace the local immigration judge who’d been handling the case was a demoralizing blow, according to several immigration attorneys, and one that prompted more than a dozen retired judges to issue a letter in protest.
“[The Executive Office for Immigration Review]‘s management exists to fulfill an administrative function, not to impede on the decision-making process of its judges,” the letter, issued July 30, said. “EOIR more than ever needs leadership with the courage to protect its judges from political pressures and to defend their independence. 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.”
Immigration attorneys said in interviews Thursday that Sessions’ policy has lowered morale, caused some on the bench to worry about their job security, and raised a host of concerns about due process.
“It makes clear to us that all this protection that we have enjoyed for so long is no longer something we should consider a right,” Ayodele Gansallo, an attorney at HIAS Pennsylvania and a lecturer at University of Pennsylvania Law School, said.
“This absolutely affects the morale of anybody working inside the court system,” Landau, Hess, Simon & Choi attorney Joseph Hohenstein said.
A spokesman for the U.S. Department of Justice declined to comment for the story.
Immigration court is very different from civil or criminal court. Rather than being under the judicial branch, the Executive Office for Immigration Review is a separate agency within the U.S. Department of Justice. The rules for immigration proceedings are very different from what is seen in criminal or civil court, and the principles of strict judicial independence do not apply.
According to immigration attorneys, the executive branch under President Donald Trump has taken steps to increasingly make clear to bench and bar that judicial independence for immigration judges is limited. Last month’s development in the Castro-Tum case marked the second time the Trump administration has used the case to signal a departure from the previous administration’s thinking when it comes to judicial independence.
Castro-Tum’s case began after he entered the United States from Guatemala in June 2014. He was 17 at the time, and was quickly apprehended by U.S. Border Patrol, according the court papers. However, he was released to the care of a sponsor—his brother-in-law—and gave border officials his sponsor’s address.
According to court papers, the U.S. Department of Homeland Security started removal proceedings against Castro-Tum soon after, sending notifications about the proceedings to the address Castro-Tum provided. Castro-Tum, however, failed to appear at four hearings, and the immigration judge repeatedly declined to proceed without him present, granting continuances instead.
At a hearing in April 2016—the fifth hearing that Castro-Tum failed to attend—the judge ordered that Castro-Tum’s case, and 10 other cases where the defendants repeatedly did not appear, be administratively closed.
Administrative closure is a practice that allows judges to indefinitely remove cases from their dockets, effectively placing the cases on indefinite hold while other proceedings, including visa, or green card applications, unfold. The practice was widely used under President Barack Obama’s administration.
In Castro-Tum’s case, the judge said he wanted to administratively close the case because DHS needed to show more evidence to verify his address. (According to Archambeault, who had entered an appearance as a friend of the court in the Castro-Tum case, Castro-Tum had given an address in a trailer park in western Pennsylvania, which Archambeault described as a transient living place for migrants.)
That decision was appealed to the Board of Immigration Appeals, which reversed and said the judge needed to recalendar the case and proceed without Castro-Tum present.
In what many said was a highly unusual move, Sessions certified Castro-Tum for his review. In May, Sessions issued a precedential ruling saying neither immigration judges, nor the appeal board, had “the general authority to suspend indefinitely immigration proceedings by administrative closure.”
The move garnered significant media attention. Although some media outlets said the move closed a loophole in an effort to address a mounting backlog of cases, others said it indicated that the new administration wanted to speed cases through the system and increase deportations. However, one thing is clear, since the practice of administrative closures had been widely used during President Barack Obama’s administration, Sessions’ pronouncement indicated a shift in how the DOJ would be handling cases.
After Sessions’ ruling, the Castro-Tum case was remanded back to the initial immigration judge, with a preliminary hearing set to take place 14 days later.
Archambeault, whose law office is in Center City Philadelphia, said he began looking into Castro-Tum’s case after Sessions’ decision was announced. After learning that the case was being handled in Philadelphia, he entered his appearance as a friend of the court, and argued that 14 days could not constitute adequate notice. The judge agreed and continued the case until late July.
However, before the subsequent hearing was held, the local judge was removed from the case, and the assistant chief judge from Washington was assigned.
When the preliminary hearing was finally held July 26, Castro-Tum was again a no-show. However, Archambeault and about 20 other immigration lawyers attended. Acting as a friend of the court, Archambeault was allowed to again argue before the court that notice was deficient, but the new judge on the case declined to continue the case, and instead ordered that Castro-Tum be deported.
Archambeault said he doubted the case would have been continued even if the local judge had handled the case.
“I think Jeff Sessions wanted to make doubly sure there was a removal,” Archambeault said. “The message was to the judges—you follow what we want to have happen.”
The Castro-Tum case is not the only instance where the DOJ has departed from prior practices.
In April, the DOJ announced it would evaluate immigration judges based on the number of cases they close, and, in June, Sessions narrowed the qualification for those seeking asylum. The ruling in Matter of A.B. was widely interpreted to mean that victims of gang or domestic violence, rather than government-sponsored violence, would likely no long qualify for asylum.
Hohenstein said that, along with causing morale problems within the system, the rulings have also created uncertainty, which, he said, is likely to only fuel the backlog.
“This is only going to make the entire system move slowly, and that’s not going to be good for anyone,” he said.
Regarding Castro-Tum’s case, there is little attorneys can do to fight any of the decisions, mostly because Castro-Tum does not have any direct representation before the court.
“I’ve never met the kid,” Archambeault said, noting that he has relied on court records and documents in his amicus appearances before the court. “There’s a belief he’s probably back in Guatemala.”
Attorneys said there are some efforts underway to continue to try to locate Castro-Tum, but even if he could be located, it is unlikely the decision to switch out the local judge for the judge from Washington would yield any appellate issue.
“I’m not aware of a way you could legally challenge that decision. But I don’t know because I’ve never come across this before,” Gansallo said. “This is completely new territory.”
In the meantime, attorneys said they are keeping a close eye on any efforts they perceive as curbing judicial independence further, and, more so than ever, building cases with an eye for the appellate courts.
“One thing we do now is try to get as creative as possible, and argue everything that we can,” Archambeault said. “We know that there’s some arguments we’re probably going to lose based on the decisions from Sessions, but we really have to be even more aware of the record you build.”