Statement of Former Immigration Judges and BIA Members

On May 17, Attorney General Jeff Sessions issued his decision in Matter of Castro-Tum, stripping Immigration Judges of their ability to administratively close removal proceedings.  The case involved an unaccompanied minor who did not appear for a scheduled immigration court hearing.  The immigration judge was concerned that the address on the notice of hearing was incorrect, and that the respondent did not receive proper notice.  On remand, Sessions instructed the judge to send a new notice of hearing within 14 days, and if the respondent again fails to appear, to to "proceed accordingly" as per the statute.

The respondent again did not appear, but the immigration judge, still concerned about the issue of proper notice, continued the hearing to allow an attorney to file a brief on the issue.  Soon thereafter, the case was mysteriously removed from the judge's docket without explanation.  An order of removal was entered last Thursday by a management-level judge sent to the Philadelphia court to deal with this single matter.  Below is a statement issued by former Immigration Judges and BIA Members in response to these actions.

 

On Thursday, July 26, EOIR, in a costly and inefficient use of the agency’s resources, sent an Assistant Chief Immigration Judge to the Philadelphia Immigration Court to conduct a single preliminary hearing.  Although there was no indication of any legitimate basis for doing so, the case had been taken off of the calendar of an experienced Immigration Judge in Philadelphia, apparently for the sole reason that the judge had exercised independent judgment by asking for briefs on the issue of whether the respondent had in fact received notice of the hearing.  The Assistant Chief Judge (a part of EOIR’s management) ordered the respondent removed in absentia without further inquiry into such question, fulfilling the purpose for which she was sent to Philadelphia.

An independent judiciary is imperative to democracy.  Immigration Judges have always struggled to maintain independence while remaining in the employ of an enforcement agency, the Department of Justice, and serving at the pleasure of a political appointee, the Attorney General.  Although not entitled to the same due process safeguards as criminal proceedings, the consequences of deportation can be as harsh as any criminal penalty.  As their decisions often have life-or-death consequences, Immigration Judges must be afforded the independence to conduct fair, impartial hearings.  For this reason, some important due process safeguards are required in deportation proceedings, and errors should be corrected through the appeals process, not through interference by managers.

Last Thursday’s case had been remanded by Attorney General Jeff Sessions.  In the absence of another explanation, it would seem that EOIR’s management did not believe Sessions’ purpose in remanding the case was for an Immigration Judge to then exercise independent judgment to ensure due process. The agency therefore removed the case from the docket of a capable judge in order to ensure an outcome that would please its higher-ups.  While as former Immigration Judges and BIA Members with many decades of combined experience, we appreciate the pressures on EOIR’s leadership, such interference with judicial independence is unacceptable.  EOIR’s management exists to fulfill an administrative function, not to impede on the decision-making process of its judges. 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.

Hon. Steven Abrams
Hon. Sarah M. Burr
Hon. Jeffrey S. Chase
Hon. George T. Chew
Hon. Cecelia M. Espenoza
Hon. Noel Ferris
Hon. John F. Gossart, Jr.
Hon. William P. Joyce
Hon. Carol King
Hon. Margaret McManus
Hon. Charles Pazar

Hon. Lory D. Rosenberg
Hon. Susan Roy
Hon. Paul W. Schmidt
Hon. Polly A. Webber

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