Judge Bumped By Another to Issue Removal Order

In May, we wrote about Attorney General Jeff Sessions’ decision to make the final determination in three cases before immigration courts. It was a rare move, but one inside the scope of his authority since the immigration courts are overseen by the Department of Justice and not the judicial branch. At the time it was seen as an effort to move immigration law closer to his political interests, and one of the cases involved “administrative closure,” a tool used by judges to manage their dockets. Late last month, Sessions signaled clearly where he stands on administrative closure when an assistant chief immigration judge from the Executive Office for Immigration Review replaced a local immigration judge in the case of Reynaldo Castro-Tum and ordered him removed.

The Guatemalan Castro-Tum entered the United States without authorization in 2014 at age 17, but he was apprehended by Customs and Border Protection authorities. He was released to a sponsor and gave his sponsor’s address, but when Department of Homeland Security started removal proceedings against him, letters sent to that address didn’t get responses, nor did Castro-Tum show up for four court dates. Judge Steven Morley placed the case in administrative closure while he asked for briefs to be filed on whether or not Castro-Tum ever lived at that address and received any of the notices to appear. The Justice Department’s Executive Office for Immigration Review responded by sending Assistant Chief Immigration Judge Deepali Nadkarni to Philadelphia to replace Morley and order Castro-Tum removed without any inquiry into the matter.

Morley’s record is not one of undue leniency, denying asylum in 46 percent of his cases—just below the national average of 53 percent. Morley is an experienced judge, and a lawyer following Castro-Tum’s case expected that Morley would have eventually deported him. The matter has become controversial because the act of replacing a judge strikes a blow against judicial independence and threatens due process. Fifteen retired immigration court judges who had served on the Board of Immigration Appeals wrote to protest the move, saying, “As their decisions often have life-or-death consequences, Immigration Judges must be afforded the independence to conduct fair, impartial hearings. For this reason, some important due process safeguards are required in deportation proceedings, and errors should be corrected through the appeals process, not through interference by managers.”

Morley’s court is in Philadelphia, and the decision outraged Philadelphia City Councilwoman Helen Gym. “The DOJ has targeted a judge simply for doing his job and attempting to uphold the law,” she said. “I am deeply disturbed to see the U.S. Department of Justice go to such lengths to interfere in Philadelphia’s immigration courts in ways that threaten basic judicial fairness.”

In their letter, the retired judges wrote, “EOIR more than ever needs leadership with the courage to protect its judges from political pressures and to defend their independence. As a democracy, we expect our judges to reach results based on what is just, even where such results are not aligned with the desired outcomes of politicians.” This decision, as well as Sessions imposing quotas on immigration court judges and ruling that fear of gang violence and domestic violence are not grounds for an asylum hearing, illustrate the necessity of moving immigration courts to the judicial branch and away from the Department of Justice. The integrity of the courts is sullied when political goals give onlookers reason to doubt the justice delivered.  

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