Here’s the official DOJ press release:
Monday, July 3, 2017

Executive Office for Immigration Review Announces New Acting Deputy Director

FALLS CHURCH, VA – The Executive Office for Immigration Review (EOIR) today announced the appointment of Katherine H. Reilly as the agency’s Acting Deputy Director. Ms. Reilly has served as Chief Counsel of the Employee and Labor Relations Unit within EOIR’s Office of General Counsel since December 2013.

“Katherine’s varied and impressive legal experience makes her well-suited for assuming the position of Acting Deputy Director at EOIR, especially during this important time when we are mobilizing all of our resources to combat a growing caseload,” said Acting Director James McHenry. “The skills she has acquired as a manager and through her work in employee and labor relations are critical for the agency, both to meet its current challenges and to establish effective policies and procedures for the future.”

In her new capacity as Acting Deputy Director, Ms. Reilly will supervise EOIR’s components and will be responsible for assisting in leading the agency in formulating and administering policies and strategies which enhance EOIR’s effectiveness in fulfilling its core mission of adjudicating cases fairly, expeditiously, and uniformly

Katherine H. Reilly joined EOIR in December 2013 as Chief Counsel of the Employee and Labor Relations Unit within the Office of General Counsel. Prior to her tenure with EOIR, she was the Director of Legal Services for the U.S. Postal Service Office of Inspector General, managing that agency’s employee relations team, civil litigation section, and contracting division. Ms. Reilly also served as a Special Assistant U.S. Attorney for criminal prosecutions in the Northern District of Texas. She began her career with the Federal Trade Commission as an antitrust attorney and also worked for a law firm, advising corporate clients on antitrust and commercial litigation. Ms. Reilly received her Bachelor of Arts and Juris Doctor degrees from the University of Texas at Austin and earned a Master of Laws degree from the University of Melbourne, Australia. Ms. Reilly is a member of the District of Columbia and Virginia bars.


Congratulations, good luck and best wishes to Acting Deputy Director Reilly.

And, here’s my “Mini-History of EOIR Directors:”


by Paul Wickham Schmidt

U.S. Immigration Judge (Retired) & Adjunct Professor of Law, Georgetown Law


When EOIR was created within the DOJ in 1983, it merged the previously “stand-alone” Board of Immigration Appeals (“BIA”) with the Immigration Judges, who were previously part of the “Legacy” Immigration and Naturalization Service “INS”). David Milhollan, who was then the Chairman of the BIA also (somewhat reluctantly) became EOIR’s first Director, while retaining his position as Chair, thereby effectively merging the positions of Director and Chair.


Upon Milhollan’s retirement, in 1995 the positions were separated to increase the decisional independence of the BIA. For awhile, Jack Perkins, then Chief Administrative Hearing Officer, served as Acting Director. Attorney General Janet Reno named long-time DOJ Senior Executive Anthony C “Tony” Moscato, who had most recently served as the Director of the Executive Office for U.S. Attorneys, the second Director. I was appointed to the now separate position of BIA Chair. Moscato and I had significant roles in the 1983 creation of EOIR.


Moscato, noting the growth of EOIR’s functions, recommended the creation of the position of EOIR Deputy Director. Attorney General Janet Reno appointed Kevin D. Rooney as the first Deputy Director. Rooney had served as the Assistant Attorney General for Administration during several Administrations and was in private practice at the time of his appointment.


Eventually, Moscato sought and received appointment as a BIA Member. (Thereby going from my “immediate supervisor” to my “direct subordinate,” although these terms make little sense in the EOIR context because neither the Director nor the Chairman has authority to direct the decision-making of Board Members). Rooney succeeded Moscato as the third Director. Then EOIR General Counsel Peg Philbin became the Deputy Director.


Philbin served as Acting Director while Rooney was the Acting Commissioner of the INS for a few months during the Bush Administration (uh, talk about conflicts and perceptions, but that really wasn’t a strong point for the Bush II Administration either), but she eventually left EOIR to become a Senior Executive at the State Department. Then Board Member Kevin Ohlson replaced her as Deputy Director. Upon Rooney’s retirement, Deputy Director Ohlson succeeded him as the fourth Director. Ohlson had also held a number of Senior Executive positions within the DOJ prior to his brief stint as a Board Member.


When Eric Holder became Attorney General, Ohlson left EOIR to become his Chief of Staff. After some time, during which Judge Thomas Snow served as Acting Director, Juan P. Osuna, then a Deputy Assistant Attorney General in the Civil Division, became the fifth Director. Osuna had also been BIA Chair, BIA Vice Chair, and a Board Member. Ana M. Kocur, then a BIA staff supervisor, was selected to be Osuna’s Deputy.


Upon the departure of Osuna and Kocur in May 2017, both the top executive positions in EOIR became vacant. Interestingly, while two former BIA Chairs, Milhollan and Osuna, became Directors, EOIR has never had a Director who had served as a U.S. Immigration Judge at the trial level of the system, although the Immigration Judge program is by far the largest “adjudicating component” of EOIR.


Also, no former Immigration Judge has ever held the Deputy Director position. However, as noted above, one current Immigration Judge, Judge Thomas Snow, held the position of Acting Director during the interim between Ohlson’s departure and Osuna’s appointment. Snow, a former top executive in the DOJ’s Criminal Division before his appointment to the bench, was well regarded and well liked by the sitting Immigration Judges. Reportedly, he was offered the position on a permanent basis, but turned it down to return to the Arlington Immigration Court bench where he remains (thus having “outlasted” Osuna).


The Director is an unusual position in that as a non-judicial official, he or she is specifically excluded from having any substantive role in EOIR’s sole function: quasi-judicial adjudication. In a future, better-functioning, independent U.S. Immigration Court system, the Chief Appellate Judge (now BIA Chair) would resume the formal role as administrative head of the judicial system, along the lines of the relationship between the Chief Justice and the rest of the Article III Judiciary. The “Director” position would become the “Executive Director of the Administrative Office” subordinate to the Chief Appellate Judge.


With the elimination of the inherently political role of the DOJ in the U.S. Immigration Court system, there no longer would be a need to for the largely fictional perception that the “Director” serves as a “buffer” between the “adjudicating components” and the political and litigation officials at the DOJ. The current problems of the U.S. Immigration Court well illustrate the insurmountable difficulties of attempting to run one of the nation’s largest and most important court systems as an “agency” of a political department. Even if the DOJ had the will to allow the Immigration Courts to function independently, it lacks the competence and expertise in court administration to successfully support such a system.


The only real question is when will Congress finally face reality and create a truly independent and properly functioning U.S. Immigration court system?







Personalized Immigration History, Anyone? Four Of Us “Old Timers” — Hon. Gus Villageliu, Hon. M. Christopher Grant, Hon. Jeffrey Chase, & I — Have Put Together Some Of Our Recollections Of The Earlier Days Of The Immigration Court Under The “Comments” To My Recent “York Speech!”

Click this link, and go to the “Comments” tab at the bottom. http://wp.me/p8eeJm-WJ

Additional thoughts and comments welcome!



Rappaport — Trump Will Inherit A Mess In the U.S. Immigration Courts — Former GOP Hill Staffer Peter Levinson Tells Us In One Sentence Why The Current System Is “Built To Fail” — Can Anyone Fix this Mess Before It’s Too Late For Our Country And The Millions Whose Lives And Futures Depend Our Immigration Court’s Ability To Guarantee Fairness And Deliver Due Process? Read My Commentary — “We Need An Article I United States Immigration Court — NOW — Could The Impetus Come From An Unlikely Source?” — Below!


We Need An Article I United States Immigration Court — NOW — Could The Impetus Come From An Unlikely Source?

By Paul Wickham Schmidt

Writing in The Hill, my friend Nolan Rappaport says:

“President-elect Donald Trump will have to deal with this situation before he can begin his promised enforcement program.
Realistically, he is going to have to consider asking Congress for a legalization program to reduce the undocumented population but it does not have to be the kind of legalization program that the Democrats have been proposing.”

That makes lots of sense to me.  It will certainly help the Immigration Courts to quickly remove many “non priority” cases from the docket without compromising due process. But, it’s not a complete solution to the problems facing our Immigration Courts.

And, well-respected scholar, gentleman, and former GOP Hill Immigration Staffer Peter Levinsion succinctly tells us why just fiddling around with the administrative process within the DOJ won’t get the job done:

“”The Attorney General’s ability to review Board decisions inappropriately injects a law enforcement official into a quasi-judicial appellate process, creates an unnecessary layer of review, compromises the appearance of independent Board decision-making, and undermines the Board’s stature generally.””

Yup, folks, the U.S. Immigration Courts, including the all-important Appellate Division (the Board of Immigration Appeals, or the “BIA”), where hundreds of thousands of individuals are awaiting the fair, independent due process hearings guaranteed to them by the U.S. Constitution, are actually a wholly owned subsidiary of the chief prosecutor and law enforcement officer of the U.S. — the Attorney General.

Who wouldn’t like to own a court system where your only client — the U.S. Government — is an interested party in every single case?  Who wouldn’t, indeed, unless that court system is in the sad circumstances of the current U.S. Immigration Court system — overworked, understaffed, over-prioritized, under-appreciated, laboring under outdated systems and technology abandoned by most other courts decades ago, and generally out of control.  Other than that, what’s the problem?

The answer, as proposed by Nolan and Peter, and many others including the Federal Bar Association, the American Bar Association, the National Association of Immigration Judges, and many other nonpartisan judicial experts is an independent Article I (or even Article III) Immigration Court, including the Appellate Division.

“Impossible,” you say,  “Congress and President Trump will never go for it.  Nobody in the Washington ‘power curve’ could sell this idea.”  But, I beg to disagree.

There is one person in Washington who could sell this long overdue idea to President Trump and legislators from both sides of the aisle.  His name is Jeff Sessions.  And, he’s about to become the next Attorney General of the United Sates.

Why would Attorney General Jeff Sessions suddenly become an advocate for due process and “good government?”  Well, I can think of at least three obvious reasons.

First, being the “father” of an Article I Immigration Court would be a lasting positive contribution to our system of justice — not a bad legacy for a man who has been “on the wrong side of history” for much of his four decades of public service.  Second, it would silence many of the critics who have doubted Sessions’s claims that he can overcome his “out of the mainstream” views of the past and protect and vindicate the rights of everyone in America, particularly in the sensitive areas of immigration and civil rights.  Third, and perhaps most important, by creating an independent, credible, modern, due process oriented Immigration Court outside the Department of Justice, Sessions would pave the way for a more effective immigration enforcement strategy by the Administration while dramatically increasing the likelihood that removal orders will pass muster in the Article III Courts.

Sure sounds like a “win-win-win” to me.  I’ve observed that the majority of the time, people act in accordance with their own best interests which frequently line up with the best interests of our country as a whole.  Yes, there will always be a substantial minority of instances where people act against their best interests.  Usually, that’s when they are blinded by an uncompromising philosophy or personal animus.

I can’t find much of the latter in Senator Sessions.  He seems like a genuinely genial personality who makes it a point to get along with folks and treat them politely even when they disagree with his views.  The former could be a problem for Sessions, however.  Can he get beyond his highly restrictive outlook on immigration and adopt big-picture reforms?  Only time will tell.  But there is a precedent.

EOIR was actually created during the Presidency of Ronald Reagan.  It was two “strong enforcement types,” then INS Commissioner Al Nelson and General Counsel “Iron  Mike” Inman, Jr., part of the so-called “California Mafia,” who persuaded then Attorney General William French Smith to remove the Immigration Judges from the “Legacy INS,” and combine them with the Board of Immigration Appeals to form EOIR, with then-BIA Chairman David Milhollan as the first EOIR Director. Smith selected as the first Chief Immigration Judge a well-respected (even if not universally beloved) apolitical Senior Executive, William R. Robie, who had run the Department’s Office of Attorney Personnel Management and had a well-deserved reputation in the Washington legal community for “getting the trains running on time.”

It was one of the few times in my more that three decades in Government that I witnessed Senior Political Executives actually arguing for a needed transfer of functions and personnel out of their own agency.  Traditionally, agency heads battled furiously to hang on to any piece of “turf,” no matter how problematic its performance or how tangental it was to the agency’s mission.  But, Nelson and Inman, who were litigators and certainly no “softies” on immigration enforcement, appreciated that for victories in Immigration Court to be meaningful and to stand up on further judicial review, the Immigration Court needed to be a level playing field that would be credible to those outside the Department of Justice.

Unfortunately, the immediate improvements in due process and court management achieved by making the Immigration Courts independent from the “Legacy INS” have long since “played out.”  The system within the DOJ not only reached a point of diminishing returns, but has actually been spiraling downward over the past two Administrations.  Sadly, Nelson, Inman, Milhollan, and Robie have all died in the interim. But, it would be a great way to honor their memories, in the spirit of bipartisan reform and “smart government,” if an Article I Immigration Court were high on Attorney General Sessions’s agenda.