15 Retired IJs Write Letter Criticizing EOIR Decision to Remove IJ from Castro-Tum Case

On July 31, 2018, Buzzfeed News reported that fifteen former immigration judges signed a letter criticizing the decision of the Executive Office for Immigration Review (EOIR) to remove and replace sitting immigration judge from the case of Castro-Tum [link].¹ The letter was published on the website of the American Immigration Lawyers Association (AILA) [link].²

The issue stems from a decision by Attorney General Jeff Sessions in Matter of Castro-Tum, 27 I&N Dec. 271 (A.G. 2018) [PDF version] [see index]. In this decision, issued on May 17, 2018, the Attorney General ruled that immigration judges do not have the authority to administratively close cases.

Easily lost in the Matter of Castro-Tum was the fact that the questions arose from a specific case. An immigration judge had granted administrative closure in a case where the respondent failed to appear on several occasions [see section]. In the decision, the Attorney General directed that on remand the immigration judge presiding over the case must proceed in accord with section 240(b)(5) of the Immigration and Nationality Act (INA) and order removal if the respondent failed to appear again.

According to AILA, the respondent again failed to appear for his hearing. However, instead of ordering the respondent removed, Immigration Judge Steven Morley scheduled an additional hearing over concerns whether the respondent had been provided with proper notice by the Department of Homeland Security (DHS) [link].³ After granting that continuance, it appears that IJ Morley was removed from the case by the EOIR and replaced by the Assistant Chief Immigration Judge from EOIR Headquarters. In the next hearing, at which the respondent again failed to appear, the new presiding Immigration Judge ordered Castro-Tum removed in absentia.

This decision led the following 15 retired immigration judges writing a blistering letter in response to the EOIR's decision to remove IJ Morley from the case:

Steven Abrams
Sarah M. Burr
Jeffrey S. Chase
George T. Chew
Cecelia M. Espenoza
Noel Ferris
John F. Gossart Jr.
William P. Joyce
Carol King
Margaret McManus
Charles Pazar
Susan Roy
Lory D. Rosenberg
Paul W. Schmidt
Polly A. Webber

After criticizing the central holding of Matter of Castro-Tum, the retired immigration judges denounced the specific decision by the EOIR in the case. They asserted that “there was no indication of any legitimate basis” for the decision and that IJ Morley had been removed for “exercis[ing] independent judgment by asking for briefs on the issue of whether the respondent had in fact received notice of the hearing.”

The former immigration judges noted that it has always been a struggle for immigration judges to maintain independence because t they are employed by the Department of Justice (DOJ), a law enforcement agency. However, despite this, they explained that immigration judges work to maintain their independence because the concept of an independent judiciary “is imperative to democracy.” They framed the EOIR's intervention in the case as being politically motivated and “unacceptable.” They asserted that the remedy must be leadership at EOIR “with the courage to protect its judges from political pressures and to defend their independence.”

The decision discussed here in the Castro-Tum case represents another in a series of moves that appear to curtail the discretion and independence of immigration judges. I agree with the former immigration judges that it is imperative that immigration judges be allowed to complete their work without pressure from above, especially when that pressure may be motivated by reasons other than ensuring that an individual case is adjudicated fairly and with respect to the specific facts involved. It will be important to watch going forward whether the EOIR takes further steps to intervene in specific cases, especially in light of the impending quotas for immigration judges that will take effect in October.

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1. Aleaziz, Hamed, “Retired Immigration Judges Are Protesting How A Deportation Case Was Handled.” Buzzfeed. Jul. 31, 2018. https://www.buzzfeednews.com/article/hamedaleaziz/retired-immigration-judges-protest-deportation-case
2. AILA Doc. No. 18073072 (Jul. 30, 2018)
3. AILA Doc. No. 18073071 (Jul. 27, 2018)