Union Representing Immigration Judges Files Grievance Against EOIR and DOJ

On August 8, 2018, the National Association of Immigration Judges (NAIJ) filed a grievance against the Executive Office for Immigration Review (EOIR) and the U.S. Department of Justice (DOJ), alleging that the EOIR violated an immigration judge’s authority to make decisions based on independent judgment and discretion. The NAIJ is the union that represents U.S. immigration judges. In short, the NAIJ is accusing the EOIR of replacing an immigration judge (IJ), part way through a case, with a judge who would give the EOIR its desired outcome – having the defendant ordered to be removed (i.e. deported) from the United States.

IJ Replaced in Matter of Castro-Tum

Normally, a case that is before immigration court is decided by an IJ. Earlier this year, however, Attorney General Jeff Sessions exercised a rarely used power to have several cases reassigned to him. In one of these cases, Matter of Castro-Tum, Sessions used this opportunity to issue a broad rule that eliminates the ability of IJs to administratively close cases.

An administrative closure is when a case is temporarily closed without being decided. This practice had been commonly used by immigration judges in order to prioritize cases, which seemed to be a practical necessity given the tremendous backlogs in immigration courts.

Based on this decision by Attorney General Sessions, the IJ who had been presiding over Matter of Castro-Tum was required to order a new hearing for the foreign national in that case. The judge did so, but when the foreign national failed to appear, rather than ordering that he be removed, the judge granted a continuance in order to verify whether the foreign national was properly notified of the hearing. Sessions responded by replacing the judge with a different judge who immediately issued the order of removal.

Grievance Filed by NAIJ

The NAIJ grievance argues that the reassignment of the Castro-Tum case is an assault on judicial independence. The record in the case, according to the NAIJ, reflected the continuance was based on reasons prescribed by law and granted as a proper exercise of the court’s authority. The grievance further describes the reassignment as “punitive” and “a deliberate encroachment on a judge’s decisional independence to secure a particular result in violation of all applicable rules, regulations, and law.”

Conclusion

While the U.S. immigration court system falls under the purview of the DOJ, which is part of the Executive Branch of the federal government (i.e. the President of the United States), these courts are still intended to operate with a degree of judicial independence. The actions being taken by the Trump Administration to obtain a desired result are troubling and could have far-reaching effects.

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