Docs Show ICE Atty Cheered Judge’s Arrest: ‘First Of Many?’
Law360 (January 12, 2022, 2:09 PM EST) — A top U.S. Immigration and Customs Enforcement attorney appeared elated when a sitting Massachusetts judge was indicted in 2018 for helping an immigrant in the country illegally evade custody, asking in an email if it would be “the first of many” such arrests, according to records made public in court Tuesday.
The email by then-ICE Principal Legal Adviser Tracy Short was part of a series of documents filed by a civil liberties group and government watchdog suing the agency to obtain even more records relating to the obstruction of justice charges against Newton District Court Judge Shelley Joseph.
Short posed the rhetorical question as a Fox News article circulated in emails among agency staff on the day Judge Joseph was indicted. In a later email to agency executives, Short said, “This is a great day.”
“Indeed,” responded Matthew Albence, ICE director of enforcement removal operations, according to the court filings. ICE chief of staff Thomas Blank allegedly chimed in, “Blessed.”
Short is now chief immigration judge for the U.S. Department of Justice‘s Executive Office for Immigration Review, while Albence and Blank have since moved into the private sector.
Judge Joseph is accused of helping the immigrant evade federal custody by allowing him to leave out the back door of her courtroom while agents from ICE were waiting out front to arrest him.
The case has been criticized by retired judges, academics and Massachusetts defense lawyers as an overreach by the federal government. Judge Joseph has argued that she acted within the scope of her judicial authority and therefore cannot be criminally charged. The issue is on appeal at the First Circuit.
The American Civil Liberties Union of Massachusetts and American Oversight, a government watchdog, attached the emails ICE produced to a motion for a pretrial win in the lawsuit they filed against the agency for records relating to the charges against Judge Joseph and her court officer Wesley MacGregor.
The civil liberties groups told U.S. District Judge Angel Kelley that the 83 pages of communications handed over by ICE in response to its records request “calls into serious question the adequacy of its search” for documents.
Among the groups’ concerns are that no records were produced for the 11 months that followed the incident, no text messages were searched, the search terms used were too narrow, and the agency never searched its Homeland Security Investigations Division even though the unit wrote a memo about the incident.
The groups asked the court to grant them summary judgment, order ICE to conduct a reasonable search — including emails and text messages — and release pages ICE is withholding under claimed exemptions from the public records law.
In December, ICE asked for a win in the case, saying it handed over what it needed to and withheld other sought-after documents that would harm pending criminal proceedings if released.
Judge Joseph and MacGregor have appealed a federal judge’s decision to not toss the charges on judicial immunity grounds. The First Circuit, in early December, heard the appeal and wrestled with how to define the judge’s immunity claim.
The ACLU’s records request was spurred by a November 2019 New York Times article that reported then-acting ICE Director Thomas Homan had been communicating with the Massachusetts U.S. Attorney’s Office in seeking legal recourse against Judge Joseph.
The ACLU requested records from March 15, 2018, through April 25, 2019, including emailed messages and letters between the U.S. attorney’s office and ICE about Judge Joseph, as well as records concerning an ICE investigation into the judge.
ICE told the ACLU in 2019 that it couldn’t do the search because the ACLU was a third party in the criminal case against Judge Joseph and needed her approval to access the records.
The ACLU protested and asked the agency to reconsider, saying that its request didn’t need Judge Joseph’s approval. In February 2020, the ICE Office of the Principal Legal Advisor ruled that a records search could be made, but ICE has failed to respond to the ACLU’s request since then, the complaint says.
Daniel McFadden, an ACLU staff attorney on the case, said in a statement to Law360 that ICE’s decision to charge Judge Joseph was “unprecedented.”
“The public has a right to know how this prosecution arose, and whether it was part of a pressure campaign to force Massachusetts court officials to assist in federal immigration enforcement,” McFadden said.
ICE and the Department of Justice declined to comment on the filing when reached Wednesday.
The ACLU of Massachusetts is represented in-house by Krista Oehlke, Daniel L. McFadden and Matthew R. Segal.
American Oversight is represented in-house by Katherine M. Anthony.
ICE is represented by Michael Sady of the U.S. Attorney’s Office for the District of Massachusetts.
The case is ACLU of Massachusetts et al. v. ICE, case number 1:21-cv-10761, in the U.S. District Court for the District of Massachusetts.
–Editing by Orlando Lorenzo.
Update: This article has been updated to include comments from the ACLU.
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Look, whether Short can be fired or not, he has no business being the Chief Immigration Judge at EOIR. Short never held a judicial position before his inappropriate appointment under Trump.
His career as a hard line, widely disrespected ICE Prosecutor took him through probably the worst Federal Court in America — the Atlanta immigration Court, a self-styled “Asylum Free Zone” where “due process and fundamental fairness go to die and be buried.”
No Senior Executive like Short has “life tenure” in a particular senior position. For example, former Chief Immigration Judge, current BIA Appellate Judge Michael J, Creppy, woke up one morning in 2006 to find himself “out at OCIJ” and on his way to OCAHO, widely considered the “Siberia of EOIR.” His “offense:” “losing the confidence” of the then powers that were at DOJ and EOIR during the Bush II Administration!
I had a similar experience when I was “pushed out” as BIA Chair and then Appellate Judge because Ashcroft and his team of hard liners (including the notorious neo-fascist nativist Kris Kobach) didn’t like my decisions standing up for the legal rights of migrants!
Once in power, the GOP makes good on its threats against asylum seekers and other migrants, without necessarily passing any legislation. By contrast, with weak-kneed, tone-deaf “leaders” like Mayorkas and Garland, Dems fail to keep their campaign promises and won’t even move the worst of the GOP holdovers out of key positions where they undermine justice and ruin human lives.
🇺🇸Due Process Forever!
PWS
01-134-22
