"The Voice of the New Due Process Army" ————– Musings on Events in U.S. Immigration Court, Immigration Law, Sports, and Other Random Topics by Retired United States Immigration Judge (Arlington, Virginia) and former Chairman of the Board of Immigration Appeals Paul Wickham Schmidt. To see my complete professional bio, just click on the link below.
Honorable Joan Churchill Retired U.S. Immigration Judge Member, Round Table of Former Immigration JudgesJudge (Ret.) Steven Morley Of Counsel,Landau, Hess, Simon, Choi & Doebley Philadelphia, PA Member, Round Table of Former Immigration Judges PHOTO: Linkedin
Ex-judges: Immigration courts should be independent
Two retired immigration judges urged Congress to create an independent immigration court system, removing the courts from under the U.S. Justice Department, where they currently reside.
Panelists on a recent ABA webinar argued that immigration judges are not truly independent as long as they answer to the U.S. attorney general.
The former judges made their call at a panel discussion March 17 — “Adjudicatory Independence: Are Immigration Judges a Warning or a Model?” — organized by the American Bar Association Judicial Division. They and other panelists argued that immigration judges are not truly independent as long as they answer to the U.S. attorney general, who can overturn their decisions, fire them and create new immigration policies that they must follow.
Steven Morley, a retired immigration judge in Philadelphia, talked about a case he handled in 2018, called the Matter of Castro-Tum, which he considered a red flag for judicial independence.
The case involved an unaccompanied minor who illegally entered the United States, was detained by authorities, then released to relatives in the United States pending a hearing to force him to leave the county. Hearing notices were sent to the relatives’ address, but the boy did not appear. Finally, after four postponements, Morley administratively closed — or indefinitely suspended — the case, ruling that the Department of Homeland Security could not show it had a reliable address to notify the boy of his hearing.
At that point, U.S. Attorney General Jeff Sessions referred the case to himself and overturned the judge’s decision. Sessions ruled that immigration judges do not have the authority to administratively close cases as Morley did. The new policy made it harder for immigration judges across the country to indefinitely suspend cases. This caused an uproar among immigration judges and advocates.
Three years later, in 2021, Merrick Garland — a new attorney general in a new administration — overturned Sessions’ action.
Such actions undermine the independence of immigration judges, Morley said. “The flaws in the system allow this to happen, and we should always be concerned for the integrity of the court system.”
Morley said attorneys general under President Donald Trump referred immigration cases to themselves to overturn judges’ decisions 17 times in four years, a large number compared to previous administrations. “This is no way to run immigration policy, to have ping-ponging back and forth of policy, from one attorney general to another attorney general.”
Joan Churchill, a retired immigration judge in Northern Virginia, outside Washington, D.C., also emphasized the importance of maintaining due process in immigration courts, particularly hearing notices to defendants. “Adequate notice of the hearing is on everybody’s list as a requirement of due process,” she said.
Churchill noted that the U.S. Supreme Court, in a decision a few years ago, written by Justice Neil Gorsuch, found that notices in immigration court often were not constitutionally adequate. “Justice Gorsuch said any notices that did not include the time and place of the hearing — which many of them did not; they just said time and place to be determined — those were not adequate notice of the hearing and therefore the cases were defective.”
In 2010, the ABA House of Delegates adopted a policy supporting the creation of an independent Article I system of immigration courts. More than 150 organizations support this position, including the National Association of Immigration Judges and the American Immigration Lawyers Association, Churchill said.
Thanks, Joan and Steve for forwarding this report and for doing such an outstanding job of highlighting the compelling, urgent need for this long-overdue reform.
“Eyore In Distress” — Ethics have long been “on vacation” at EOIR. Sitting judges are muzzled from speaking publicly and can be disciplined for minor transgressions. But, some judges accused of serious misconduct get away scott free under an intentionally opaque process that operates without public input or oversight. Meanwhile DOJ politicos and EOIR Senior Execs operate in open violation of 5th Amendment Due Process and the most basic conflict of interest requirements. The end result is that individuals systematically are denied the “fair and impartial adjudicator” that our Constitution requires! Once A Symbol of Fairness, Due Process, & Best Practices, Now Gone “Belly Up”“Let’s hop on over to ICE and see what our “partner” Kent Frederick wants us to do today to help out our masters at DHS enforcement!” https://www.flickr.com/photos/rasputin243/ Creative Commons License
Hon. “Sir Jeffrey” Chase reports to the Round Table:
From: Frederick, Kent
Sent: Friday, June 01, 2018 12:59 PM
To: Weil, Jack (EOIR)
Subject: Matter of Castro-Tum/ IJMorley
Dear Judge Weil:
Just for reference, here is the portion of the decision that 1.1Morley violated:
Matter of Castro-Tum, 27 l&N Dec. 271 (AG 2018), which explicitly directed the matter be remanded “to the Board with instructions to remand to the Immigration Judge to issue a new Notice of Hearing within 14 days of the date of this order. If the respondent again fails to appear, the Immigration Judge should proceed according to 8 U.S.C. §
1229a(b)(5).”) Matter of Castro-Tum, 27 l&N Dec_ at 294. Moreover, the Attorney General explicitly rejected the option to terminate or continue this matter on remand if Castro-Tum again failed to appear. Castro-Tum,27l&N Dec.at291 n.12 (“DHS adequately alleged that it provided sufficient notice because the Notice to Appear informed the respondent of all statutorily required information about the proceedings…. DHS also adequately alleged that the form of the notice was sufficient. DHS personally served the Notice to Appear on the respondent and mailed the Notice of Hearing to the address the respondent repeatedly provided the government.”(internal citations omitted)).
Kent J. Frederick
Chief Counsel
Office of the Chief Counsel
U.S. Deportment of Homeland Security immigration and Customs Enforcement 900 Market Street, (b)(6).(b)(7)(C) Philadelphia, PA 19107
(267) 479 —___(2_622_479-3456 (fax)
(b)(6),(b)(7XC)
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Thanks to Judge Sue Roy for forwarding this:
[Above] please find a redacted email obtained through a FOIA request by private attorney Matthew Hoppock. It is a private email between Kent Frederick, the ICE District Counsel in Philadelphia, and Jack Weil, who at the time was the Philadelphia court’s ACIJ. Although the first part of the email is redacted, in the second part, the ICE District Counsel provides Jack with the basis that led to removing Castro-Tum from the case’s proper IJ, Steve Morley.
It should be noted that this is not a motion with service on opposing counsel; this is a private email between ICE and the ACIJ about the handling of a particular case.
While the Chief Immigration Judge should be taking steps to prohibit these types of communications, it bears noting that the present Chief Immigration Judge is the former Atlanta ICE District Counsel.
Best, Jeff
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Thanks to NDPA warrior Matthew Hoppock for once again having the perseverance to use the FOIA to document and “out” misconduct @ DOJ, EOIR, and DHS! What’s the purpose of an “appeals process” if DHS can just raise its dis-satisfaction with legal issues to their “partners” in EOIR “administration” and ask them to take action? For the record, Judge Morley eventually was removed from the case and replaced with an Assistant Chief Immigration Judge who carried out Sessions’s wishes.
I think this is EXACTLY the type of misconduct that “Gonzo” Sessions intended to promote when he unethically exhorted “his judges” to “partner with DHS” to deny due process, target refugee women for abuse, torture, and death, and speed up removals. (However, because Sessions’s undeniable maliciousness was accompanied by mind-boggling and resource squandering incompetence, the overall result was to exponentially increase backlogs while institutionalizing injustice, unethically endangering the lives of migrants, and falsely smearing the professional reputations of their attorneys.)
Sessions, unethically acting as a “quasi-judicial official,” in violation of every ethical rule of judicial disqualification for overt bias, prejudgement, lack of impartiality (every case in which “Gonzo” Sessions participated is a grotesque violation of this — a man whose overt racism once led HIS OWN PARTY to find him unqualified for a Federal Judgeship!), appearance of conflict, and actual conflict of interest, unleashed a torrent of gross unethical behavior at DOJ and DHS. But, there were plenty of lawyers already “on the payroll” who were perfectly happy to engage in unethical conduct in support of the Trump kakistocracy’s White Nationalist, racist, xenophobic, misogynist agenda.
I’ll let the various comments I have received speak for themselves:
When I was an IJ . . . I complained about this practice to Chief IJ Creppy at an open forum at the IJ conference involving an ex parte complaint Frederick had lodged against . . . . Creppy just brushed it off as interagency cooperation.
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At the least, these two should be referred to their state bars for disciplinary proceedings for engaging in impermissible ex parte communication.
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WOW! This is crazy.
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Wow! Just WOW! We always knew it was happening, but this is pretty blatant evidence!
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Utterly unacceptable! It may seem ludicrous or petty, but it is far more than an objectionable practice. It optimizes a fundamental violation of due process that is routinely accepted and even expected.
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Shameful, what happened to the appeal process Mr. Fredrick!
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Is anyone really surprised?
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Disappointed, but not surprised.
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And has been happening ever since I started practicing in the mid-eighties. I agree it is totally unacceptable.
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Jack has been nothing but a profound disappointment. I’m sure you all remember his arrogant and almost insane boast that he. could teach constitutional law to a child respondent. This email is both unethical and stupid: what kind of intellect allows for this response to him to put in writing? I never expect much from an ICE official, but I am always go smacked when a judge acts like a Watergate miscreant.
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Completely shameful, but not surprising. We frequently suspected this kind of thing went on.
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The conduct of “Gonzo” Sessions, then-Director McHenry (still on the EOIR payroll, although thankfully removed from participation in the Immigration Courts), and the EOIR and DOJ officials involved in this sorry incident is reprehensible.
BUT, HERE’S THE REAL PROBLEM:AG Merrick Garland, a respected Article III Judge and one-time Supreme Court nominee, was appointed by President Biden supposedly to clean up the ungodly mess at Justice left by the Trump kakistocracy. He isn’t getting the job done! Not even close!
EOIR requires immediate due process reforms, competent administration, a complete “housecleaning,” and, most of all, progressive leadership by “practical scholars.”
Yet, after three months in office Garland has nary lifted a finger to institute even rudimentary progressive reforms to restore due process at EOIR. Things are just as bad in our disgracefully dysfunctional Immigration Courts as they were on Jan. 20, 2021, in some cases even worse!
Beyond this indolence, Garland outrageously affirmatively appointed 17 non-expert, non-diverse, non-progressive “judges” who were recruited and hand-picked by Billy Barr. Along with Gonzo Sessions, Barr is one of the most unethical, unqualified, un-indicted (yet) AGs in American history. Garland’s lack of awareness, absence of immigration expertise, disrespect for progressive “practical scholars,” and trashing of humane values is super-damaging to our nation!
Of course, nobody can be an “expert” in every legal subject. But, the job of an effective leader is to pick folks who are experts to manage and staff these areas. I don’t see that type of expertise at today’s DOJ or EOIR Headquarters (although there are some well-qualified progressive Immigration Judges on local courts who could have been immediately detailed to EOIR HQ to stabilize the out of control situation).
Garland presides over a massive, deadly, systemic failure and chaotic “Clown Show” 🤡 @ EOIR that threatens the entire U.S. Justice system. I’ve actually known excellent Immigration Judges who have been suspended, docked pay, or threatened with removal for ex parte communications far, far, far less serious than that described above.
How do we teach ethics to an upcoming generation of lawyers when AG Garland and his senior managers are unwilling to hold accountable those who participated in the Trump White Nationalist kakistocracy @ Justice?
Team Garland daily mocks justice by not instituting standards that require demonstrated subject matter expertise, unswerving commitment to due process, fundamental fairness, and a record of ethical behavior from those appointed to, and continuing to serve in, Immigration Judgeships.
Under Garland, EOIR is a life threatening, democracy destroying “disaster zone.” “Team Garland’s” inexcusable failure to appoint qualified progressive experts and to undertake the “no brainer” immediate reforms essential to get the EOIR system back on track has, sadly, become a major problem for the Biden Administration and our nation.
It’s all so unnecessary, so aggravating, so damaging to humanity and American democracy. It’s even worse because the “complicit culprits” are folks (Biden appointees) who were “supposed to know better” and had the incredible, unprecedented advantages of potentially drawing on years of exceptionally high quality research, overwhelming documentation, smart, creative, practical recommendations, and extraordinarily qualified progressive “practical scholars and advocates” ready to solve problems from “inside Government.”
But, they can’t solve the problems solely “from the outside.” It takes an unrelenting combination of progressive experts pushing from the outside and receptive progressive judges and officials on the inside to make the radical changes necessary to save our nation!
Garland’s disrespectful, indolent, and tone deaf treatment of migrants, progressives, and simple human dignity, as well as his gross misunderstanding and diminution of what continues to drive racial and social injustice in America, will certainly come back to haunt the Biden Administration!
Let me reiterate: There will be neither racial justice nor social justice in America as long as our Immigration Courts operate as White Nationalist enforcers of “Dred Scottification of the other.” Immigration/human rights are where “the rubber meets the road” for racial and social justice in America! Immigrants’ rights are human rights, are civil rights, are constitutional rights! As MLK, Jr., said “Injustice anywhere is a threat to justice everywhere!”
The union for the nation’s immigration judges is fighting a government decision to strip a Philadelphia judge of his authority over 87 cases, arguing that the move sidelines judicial independence as President Trump seeks to ramp up deportations.
Immigration judges work under the Justice Department’s Executive Office for Immigration Review, though they have independent authority to determine whether the thousands of undocumented immigrants who come before them every year can remain in the United States through asylum or some other form of relief.
In a labor grievance filed this week, the National Association of Immigration Judges says the office undercut that authority when it removed Judge Steven A. Morley from overseeing juvenile cases that he had either continued or placed on temporary hold amid questions over whether federal prosecutors had adequately notified the subjects to appear in court.
The Justice Department said in a statement Thursday that “there is reason to believe” Morley violated federal law and department policy in those cases, but it did not offer any specifics. The statement said an investigation is ongoing.
Trump alarmed immigration judges in June by tweeting that anyone caught at the border, presumably including those seeking asylum, should be deported without a trial.
“When somebody comes in, we must immediately, with no Judges or Court Cases, bring them back from where they came,” the president wrote.
In its grievance, the judges’ union focused on a case involving Reynaldo Castro-Tum, a Guatemalan national who arrived in 2014 as a 17-year-old unaccompanied minor.
Castro-Tum’s current whereabouts are unknown, and he had not responded to recent court summonses. Morley temporarily closed his case in 2016, ordering the Justice Department to ensure that Castro-Tum was receiving the notices. He did the same with other similar cases.
Prosecutors appealed Morley’s decision, and the case eventually came to the attention of Attorney General Jeff Sessions, who chose to review it in January.
Sessions concluded that Morley was wrong to close Castro-Tum’s case and ordered it resolved within two weeks.
Amiena Khan, a New York-based immigration judge who is the union’s vice president, said the intervention further raised suspicions that the administration is looking to circumvent the judicial process and move to deport people faster amid a backlog of some 600,000 cases.
“This is another transparent way, surprisingly transparent in this instance, for the agency to come in and re-create the ideology of this whole process more towards a law enforcement ideology,” Khan said.
The system “is based on our ability to look at the facts and adjudicate the claim before us to our best ability and then render a decision,” Khan said. “Not being told by someone else how to rule.”
The union, which represents 350 judges, argues that Morely should get his caseload back. It is asking the Justice Department to assure all immigration judges that their independent authority won’t be undermined.
Immigrant advocates say the dispute highlights a fundamental flaw in immigration courts, where the judges work under the same department that is tasked with prosecuting cases. Several legal groups have renewed a push for federal legislation to overhaul the system so judges can operate more independently, either through a different branch of the Justice Department or as a separate tribunal court.
“We’re very concerned the immigration judges are simply being turned into law enforcement officers,” said Laura Lynch, senior policy counsel for the American Immigration Lawyers Association, which launched a national campaign this month to lobby members of Congress to support such legislation.
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When he isn’t busy praising hate groups, covering for police violence against the African-American community, disenfranchising minority voters, promoting the establishment of religion, using bogus stats to fabricate a connection between immigrants and violent crime, abusing brown-skinned children, forcing transgender kids to pee in their pants, thumbing his nose at Federal Judges and their orders, briefing his attorneys on how to mislead courts, mounting unconstitutional attacks on cities, ignoring environmental laws, dissing Dreamers, shilling for racist legislation, deconstructing our refugee, asylum, and legal immigration systems, filling court dockets with minor misdemeanants to the exclusion of felons, imposing deportation quotas, shafting brown-skinned refugee victims of domestic violence, huddling with fellow neo-Nazi Stephen Miller, blocking migrants from getting abortions, or hiding under his desk from Trump, one of Jeff “Gonzo Apocalypto” Sessions’s favorite pastimes is interfering with the independence of U.S. Immigration Judges while purposely jacking up the backlog in the U.S. Immigration Courts.
It remains to be seen whether our country can survive this one-man Constitutional wrecking crew and his reign of indecency and intellectual dishonesty.
Immigration judge removed from cases after perceived criticism of Sessions
By Tal Kopan
The Justice Department plans to take dozens of cases away from an immigration judge who has delayed deportation orders, in part for perceived criticism of Attorney General Jeff Sessions, the union representing immigration judges said Wednesday.
CNN reported Tuesday that the Justice Department replaced Philadelphia Immigration Judge Steven Morley with an assistant chief immigration judge last month to hear a single case on his docket, which resulted in a young undocumented immigrant, Reynaldo Castro-Tum, being ordered deported.
Assistant Chief Immigration Judge Jack Weil told Morley that comments in the Castro-Tum case were perceived as “criticism” of the Board of Immigration Appeals and attorney general’s decisions and that they were “unprofessional,” according to the grievance filed by the National Association of Immigration Judges. The cases all involve young undocumented immigrants and whether they got adequate notice from the government about hearings at which they failed to appear. Weil also told Morley that he himself should have either ordered Castro-Tum deported or terminated the case altogether.
It’s the most public fight yet between the union that represents the nation’s roughly 350 immigration judges and Sessions, who has intently focused on the immigration courts under his purview. The immigration judges have long bemoaned their structure under the Justice Department, but have taken particular issue with many of the moves pursued by the Trump administration that they say interfere with their ability to conduct fair and impartial court proceedings.
Unlike federal judges, immigration judges are employees of the Justice Department and the attorney general has the authority to hire them, manage their performance measures and even rule on cases with binding authority over how the judges must decide similar issues.
The judge’s union says DOJ broke the collective bargaining agreement by violating Morley’s independent decision-making authority.
Morley denied those comments were unprofessional and reiterated he made the proper decisions in the case based on the facts and due process, the grievance said.
“He’s being targeted for what is perceived to be criticism of the attorney general when it is in fact just a judge doing his job, raising concerns about due process,” Judge Ashley Tabaddor said Wednesday on behalf of the National Association of Immigration Judges.
Obviously, telling a judge how he “should” have decided a case is a job for the BIA, not the Assistant Chief Immigration Judge. That’s what appeals are for — to correct errors in a trial judge’s handling of a case. Can you imagine a Chief U.S. District Judge telling a colleague how he “should” have decided a case and removing cases because the judge didn’t handle the case as he wanted it done?
And certainly, judges are free to criticize or disagree in their decisions with decisions by superior judges and public officials as long as they ultimately follow the law and precedent. During my tenure as Chair of the BIA, we took a few “zingers” from Immigration Judges who didn’t agree with our decisions or what we ordered them to do. I always told staff to just concentrate on the merits and getting the result right without getting sidetracked by the sideshow. Also, as a trial judge, I applied a number of precedents where I had dissented as a BIA Member without necessarily agreeing that my former colleagues were correct — just acknowledging that they “had the votes” and I was obliged to apply the precedent.
If Congress won’t do its job and remove the Immigration Courts from the Executive Branch, it’s time for the Article IIIs to step in and put an end to this pathetic parody of justice. To steal a line from yesterday’s Washington Post, Session’s outlandish antics could easily be taken from a description of Stalin’s Gulag or a court system in a failing Third World dictatorship. Thank goodness that there are some courageous judges in this system, like Judge Steven Morley, willing to take seriously their oaths of office and to uphold the Constitution, even when it becomes “career threatening” (which, of course, in a functional judicial system — unlike EOIR — it shouldn’t).
Thanks again to Tal for “giving us the scoop” on this one.
