The U.S. Department of Justice’s decision last month to replace a sitting Philadelphia immigration judge with an assistant chief judge from Washington, D.C., in a closely watched removal case “subverted the judicial process,” the National Association of Immigration Judges said in a formal grievance against the DOJ.
The National Association of Immigration Judges, which is the union representing federal immigration judges, filed a grievance Wednesday with the Executive Office for Immigration Review, the DOJ agency that hears immigration cases.
The grievance was filed on behalf of immigration Judge Steven A. Morley, who, in late July, had several of his cases reassigned to other immigration judges. His removal received national attention after more than a dozen retired immigration judges issued a letter in protest.
The grievance, which was filed by NAIJ president A. Ashley Tabaddor, a federal immigration judge in California, seeks to have the cases returned to Morley and asks for written acknowledgement that the Executive Office for Immigration Review cannot assign or reassign cases in ways that interfere with an immigration judge’s “independent decisional authority.”
“The decisional independence of immigration judges is under siege,” Tabaddor said in a press statement. “If allowed to stand, the agency can simply forum-shop its cases for the outcome it wishes to achieve.”
A spokesman with the DOJ did not immediately return a request for comment.
The removal of Morley from certain immigration cases has caught the attention of several Philadelphia immigration lawyers. In particular, the lawyers were following the case of Reynaldo Castro-Tum, a Guatemalan man who came to the United States as an unaccompanied minor.
The removal of Morley from Castro-Tum’s case led to an outcry in the Philadelphia legal community, with several attorneys saying the decision sent a chilling message.
“Immigration judges should make decisions based on the facts and the law and not be subject to political pressure from the DOJ,” Philadelphia Bar Association chancellor Mary Platt said in a statement released Tuesday. “No immigration judge should feel pressured by DOJ to make a decision in a particular case, and the DOJ should not take action against an immigration judge when it disagrees with a judge’s decision. In doing so, the DOJ interferes with judicial independence and undermines the rule of law.”
Castro-Tum’s case initially made headlines after U.S. Attorney General Jeff Sessions assigned the case to himself to make a ruling that curbed immigration judges’ ability to use a widely used docketing tool, known as administrative closure. After making that ruling, Sessions remanded the case to Morley for a hearing in late May.
Morley, however, had questions about whether Castro-Tum, who had missed several prior hearings, had received adequate notice of the hearing, and continued the case.
According to the grievance, after continuing the case, Morley was reassigned from not only Castro-Tum’s case, but roughly 25 others that he’d put on hold for similar reasons regarding notice. About 60 other cases Morley had administratively closed due to notice reasons were also reassigned, the grievance said.
Late last month, an assistant chief immigration judge from Virginia presided over the preliminary hearing in Castro-Tum’s case that Morley had initially been set to handle. Although that judge allowed attorney Matthew Archambeault to appear as a friend of the court and argue that there was insufficient notice, the judge ordered Castro-Tum, who was not at the hearing, to be deported.
According to the grievance, in mid-July, Assistant Chief Immigration Judge Jack Weil notified Morley about the reassignments and said, in an email, that the court had expected Morley to either terminate the proceedings against Castro-Tum, or order his removal. The two also spoke by phone the same day, the grievance said, and Weil further said he believed that Morley’s criticism of the AG’s decision and the Board of Immigration Appeals was “unprofessional.”
The grievance says that the reassignment of Castro-Tum’s case violated Morley’s decisional independence to grant continuances for good cause, and “flies in the face” of Section 8 of the Code of Federal Regulations, which, in part, bars the agency from directing the result of a pending case.
“It was a deliberate encroachment on a judge’s decisional independence to secure a particular result in violation of all applicable rules, regulations and laws,” the grievance said.
Read the document: