- The Washington Times - Monday, June 27, 2022

The union for immigration judges has asked the Justice Department to revisit its ouster of several judges hired during the Trump administration, questioning whether the firings were illegal — and calling them unseemly at the very least.

Three judges had each received satisfactory performance evaluations during their two-year probationary periods. That made the decision by the Executive Office for Immigration Review to kick them out of their jobs at the end of probation rather than convert them to permanent positions all the more striking, the National Association of Immigration Judges said in its letter.

Ordering the judges out of their offices without a chance to collect their belongings was “unprofessional and unbefitting,” the union said.



“They deserved better,” Mimi Tsankov and Samuel B. Cole, the union’s president and executive vice president, wrote to David Neal, director of EOIR, in a letter obtained by The Washington Times.

The letter is dated June 23, days after The Times reported on the firings as the latest in a series of politically charged upheavals under the Biden team at EOIR, which runs the immigration courts.

Four of the top officials at the agency have been ushered out of their posts, in addition to what one source said has been more than a half dozen immigration judges.

One ousted judge, Matthew O’Brien, told The Times that his termination letter didn’t give any real justification and only vaguely referred to “performance and/or conduct” as the reason he was being let go.

A Justice Department source said Mr. O’Brien’s supervisor, who worked for an immigrant rights group until he was hired less than a year ago at EOIR, recommended Mr. O’Brien’s termination. Mr. O’Brien served for years at the Homeland Security Department and used to work at the Federation for American Immigration Reform, which advocates for stricter immigration controls.

“There was both a clear political motivation and a conflict of interest for her action, and the agency ignored it,” the department official said.

Activist immigration lawyers also took credit for getting Mr. O’Brien ousted. After news of his departure leaked, some took to Twitter to boast. They said they had orchestrated a campaign to “crowdsource” complaints about Mr. O’Brien to feed to his supervisors.

One lawyer said his firm drafted a recusal motion against Mr. O’Brien and circulated it to immigration lawyers who practiced in the immigration court based in Arlington, Virginia, where Mr. O’Brien was stationed.

EOIR declined to comment for this article.

In their letter, the union leaders asked Mr. Neal to review the firings to determine whether they were “in full compliance with the law.”

They said the way the judges were axed is having “a substantial and negative effect on judge morale” across the country.

In a statement to The Times, Ms. Tsankov said: “Politics have no place in the immigration courts. Reports that judges were removed for political reasons should concern all of us.”

She said the Federal Labor Relations Authority decertified the union during the Trump administration, so it doesn’t even have a legal right to step in and defend the ousted judges.

Mr. O’Brien told The Times in an earlier interview that his ouster was part of “court-packing on steroids” as the Biden administration tossed aside judges it didn’t like and sought to replace them with more ideologically aligned picks with the help of the American Immigration Lawyers Association.

He said AILA targeted judges who were stricter in applying immigration law.

“Not only is AILA deliberately attempting to shape the immigration bar in its image, it’s succeeded in doing it,” Mr. O’Brien said in the interview this month. “If the court becomes a handmaiden to AILA, all of a sudden the court’s interests become not the interests of the American people; it becomes protecting the interests of foreign nationals in the United States.”

Mr. O’Brien told The Times that he faced four complaints during his time as a judge, and all of them were “dismissed as frivolous.”

He pointed to his caseload, which was higher than those of most of his colleagues in Arlington, according to records compiled by the Transactional Records Access Clearinghouse at Syracuse University.

He said his departure was as abrupt as the firing and he was given a “bum-rush … out of the office.” He contrasted that with the treatment of illegal immigrants who appeared in his courtroom, who he said were given substantially more due process than he was afforded.

“I’m a United States citizen, I’ve got family going back to the Revolutionary War, and I get kicked out of office without being able to take my personal stuff,” he said.

The immigration courts are part of the executive branch, which means judges are hired rather than nominated by a president and confirmed by the Senate. They are still supposed to be neutral arbiters of the law.

They don’t handle criminal issues but rather hear cases involving migrants challenging pending deportations. Their rulings determine whether a migrant gets status or is ordered deported.

Some critics of the system say politics are too prevalent with the courts being part of the executive branch.

Legislation on Capitol Hill would reconstitute the judges as what is known as an Article I court, a type of tribunal independent from either the administration or the regular federal courts. That bill, sponsored by Rep. Zoe Lofgren, a California Democrat who once practiced immigration law, cleared the Judiciary Committee and is awaiting action in the House.

The National Association of Immigration Judges is backing that bill, as is the American Bar Association, the Federal Bar Association and AILA.

• Stephen Dinan can be reached at sdinan@washingtontimes.com.

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