Column: How the Trump administration is turning judges into ‘prosecutors in a judge’s robe’

In the immigration courts that Americans saw in news stories this summer, children were appearing alone at bewildering legal proceedings. But the nation’s immigration courts — about 350 judges with monumental caseloads — handle all manner of immigration matters, including asylum cases and deportations. Their union has filed a labor grievance against its boss, the Justice Department, over a judge removed from his cases after he questioned whether the government’s “come to court” notices were actually correct and reaching the people facing deportation.

Judge A. Ashley Tabaddor, speaking as president of the National Assn. of Immigration Judges, explains the group’s rare step in making a labor grievance public. The unusual role and status of the nation’s immigration courts just got a lot more unusual.

You are judges, but you are not part of the judiciary branch of the U.S. government. You work for the Department of Justice, in the executive branch.

That's probably one of the most misunderstood parts of our court system. Our immigration court system is situated within the Department of Justice, and we are all ultimately accountable to the U.S. attorney general, who appointed us to this position as an immigration judge.

And this is frankly where the fundamental flaw of the whole system is born out of: The fact that on a daily basis, our duties and responsibilities are to be a judge. When I go to court, I'm wearing a robe. I'm sitting behind the bench. I have two parties before me. One is always the government and the other one is the individual that the government is seeking to remove from the United States. I hear both sides of the case. I am bound by my oath of office and by law to be an impartial decision maker, and to limit my decision based on the facts and the law of the case.

But because I'm an immigration judge who has been appointed to the position by the attorney general, I'm treated as a regular federal government attorney within the prosecutorial branch of the government. And as such, we run into all the issues that we've had to deal with from the birth of this court, but which have become much more pronounced in the recent past, with the approach of the [Justice] Department to the court as an essentially prosecutorial tool rather than an immigration court independent from the immigration law enforcement policies of the executive branch.

And that's the genesis of your grievance. Because you are a labor organization of employees within the Department of Justice, you filed a formal grievance against your employer, the Department of Justice. What is that grievance?

I think it's definitely a head-scratcher that I can relate to, for most people to imagine that: Why would judges need a labor union? It just seems incongruent and I can completely understand that.

But that's where the problem comes from, which is that we are expected to wear two basically mutually exclusive hats. We're expected to be judges, but to also then be treated as regular attorneys by the Department of Justice.

Our grievance is born out of the department’s crossing the line in terms of interfering with the decisional independence and oath of office of an immigration judge.

In the case of the particular grievance is Judge Stephen Morley, a very well-known and respected judge in Philadelphia. He was assigned the case of [Reynaldo] Castro-Tum, which the attorney general at some point had certified himself to use as a mechanism to pronounce new law and to restrict the judge's authority.

Reynaldo Castro-Tum was 17 years old when he crossed the border illegally in 2014. He's from Guatemala. He was caught by the Border Patrol, handed over to Health and Human Services as an unaccompanied minor, released to the care of his brother-in-law. And then, when the letters started coming from the government, they couldn’t find him at that address.

Correct. But by the time the immigration court proceedings were initiated and the hearings were scheduled, the court had some concerns about whether this sort of chain of evidence showing that that person had received proper notice had been met.

So the judge had raised concerns about that, which is a fundamental due process right of the parties — to be given proper notice.

Then the case was taken away from Morley and given to a supervising judge who is not a member of your union organization. And this judge was brought from Washington to Philadelphia for this one case to find in favor of the government, for deportation?

That’s where the problem arises, because the case was taken away from Judge Morley in the middle of him exercising his judgment and discretion over that case, which is part of his decisional independence.

This is what the oath of office is. This is what his authority is. And the [Justice Department] just took the case away from him and gave it to a supervisory judge, who doesn't have the same protections of being a member of the association.

Certainly it appears that the supervisor was assigned on purpose, came in for that single case, and ordered the person deported.

Are you concerned that what happened to Morley is supposed to be a message from the Justice Department on how these deportation cases should be handled?

We're very concerned, because the very essence of what it means to be a judge is to have that decisional independence — that the judge cannot be influenced, that the proceedings cannot be intervened with by the agency in order to secure a specific type of result.

In this case, what was very clear was that they were not happy with the fact that he had raised some questions regarding due process, that they were not happy with the exercise of his judgment over that case, and just wanted it to be done another way.

And he had raised similar issues in about several dozen other cases. All shared the same pattern of problems that he saw, and they took all of those cases away from him and had reassigned them, presumably to other judges. And, to us, that just crosses the line. It's an absolute indefensible action on the part of the agency.

It's one thing for the agency to administer and support the judges from an administrative perspective. But it's another to use that opportunity to reassign a case in a middle of a pending matter before a judge, just because they're not happy with the decisions that he's making on that case.

The grievance says that the reassignment of this case violated Morley’s decisional independence, that it “flies in the face of the prohibition on the agency of directing the result of a pending assigned matter before an immigration judge.” Is it happening elsewhere?

We’re concerned that if this is allowed to proceed without being challenged, it is going to set a precedent for the agency to take such actions, which are in direct violation of the decision on independence of the judges.

This is the first example we're seeing and it's a pretty egregious example, and we want to make sure that this is stopped dead in its tracks.

The shorthand phrase for this would be judge shopping, that a case would be taken away and given to a judge that the government thinks would have a better outcome for what the Justice Department would like to see, i.e., deportation.

That is exactly what we're concerned about. The authority to assign cases is for the pure purpose of administration of the court, not for the purpose of reaching a certain result or doing judge-shopping, and that cannot be tolerated.

What's the response of the Justice Department to your grievance?

They haven't responded formally to us yet. We do have, under our grievance procedurem, which is under the collective bargaining agreement, an opportunity to have a discussion with the agency, after which they have a period of time to respond to our grievance from the date of the filing. There's a 60-day period for them to resolve the grievance, or else we have the opportunity to take it to arbitration.

Since the Trump administration began, has your caseload changed? Has the nature of the work changed?

A lot of our problems all stem from the fundamental flaw of having an immigration court system in the Justice Department, which is a prosecutorial agency.

Many of the issues we've seen with this inherent conflict predate this administration, but this administration has taken all of the weak points, all of those weak links, and has essentially put it on steroids. So we are seeing the use of the courts just for political reasons, to send a political message by redirecting or reshuffling our docket. We had about a third of our judges all of a sudden sent to the border, to try to send the message of law enforcement.

Then we have the [Justice Department] announcing that they're going to subject judges to quotas and deadlines as a part of keeping their job.

Even the prior administrations had agreed that individual judge performance evaluations should never be connected to numbers. Because the minute you connect it to numbers, you're introducing a personal financial interest of the judge into each case. And whether or not the judge is actually thinking about it, the parties then have a reasonable basis to question every one of the judge's decisions.

It's in violation of all the judicial canons for traditional courts.

This sounds a little bit like sweatshop work, that you only get paid by the number of pieces you produce.

My colleague calls it assembly-line justice. And that's exactly the problem that we're facing, that the administration basically views the judges as tools in just pushing numbers through the system, rather than recognizing that a judge is not a factory worker, that you cannot impose these type of quotas and deadlines onto courts.

Once you use that as a stick, then you basically destroy the inherent integrity of a court system.

You and your fellow judges, you're neither fish nor fowl, in a way. You’re judges, but you're not part of the judiciary. Would a solution be moving immigration judges into the judiciary, in which case they would have to be approved by the Senate, presumably, and appointed by the president to lifetime positions?

You've definitely hit the nail on its head there. The long-term solution is to ensure that the immigration court is an independent court from the prosecutorial policies of the department or the influence of the private sector on the court, which means you have to move it out of the Department of Justice.

There's precedent in other types of courts, for example the tax court or the bankruptcy court, where the same types of issues of conflict of interest and the appearance of impropriety, and the agency’s influence over the judges where Congress created a separate court, put it in a separate sort of independent status.

So this way, you are able to protect the independence of the court without then introducing some of the challenges of having to go through the Senate confirmation process.

What is your sense of the risk that you're fighting over here, with your grievance?

This is the heart and soul of what it means to be a judge, because if the judges do not have true decisional independence, we are essentially then prosecutors in a judge's robe, and that is not a reflection of our American principles of democracy.

Patt Morrison’s latest book is “Don’t Stop the Presses! Truth, Justice and the American Newspaper.”

Subscribe to “Patt Morrison Asks” and never miss a podcast.