The Biden administration has been quietly packing the nation’s immigration courts, ousting Trump-hired judges and installing judges deemed to be friendlier to the immigrants whose cases they hear, in what one Justice Department official called an “unprecedented” injection of politics into the courts.
At least a half-dozen judges hired during the Trump years have been axed, including two this month in Arlington, Virginia.
They are part of a massive upheaval in the Executive Office of Immigration Review, which has seen four of its top officials pushed out of their jobs. The director was among the four and, for the first time in the agency’s history, was removed involuntarily.
“It’s an attempt to weaponize the courts along ideological lines,” said Matthew J. O’Brien, one of the two judges ousted from Arlington, Virginia. “It’s court packing on steroids. It’s court packing by deletion and then addition, because they’re getting rid of judges and they’re replacing them with people who meet their ideological framework.”
Mr. O’Brien was coming up on the end of his two-year probationary period, and the Justice Department, which runs EOIR, declined to convert his post to a permanent judgeship.
He said it’s exceptionally rare to use the probation period ouster, and it’s usually only done for cases of serious job misconduct such as sexual harassment. Trump administration officials said they couldn’t recall a single judge ousted after a probationary period because of politics.
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The Biden administration has done it in more than a half-dozen cases, in addition to firing four senior officials.
“This turnover is unprecedented in the history of EOIR, and it all appears to be politically motivated in an effort to install Biden allies and pro-Democrat advocacy group supporters in both leadership and adjudicatory positions,” said one Justice Department official, who requested not to be named out of fear of retaliation.
Immigration judges, or IJs, are administrative positions hired by the Justice Department and don’t go through Senate confirmation.
There are about 590 judges, and they handle civil immigration matters, deciding whether a migrant challenging a pending deportation wins their case and gets to stay.
That makes immigration judges a central part of the Biden administration’s push to clear the dockets and grant leniency to longtime immigrants without documentation who don’t rise to the level of priority cases for deportation. Critics deride it as a “shadow amnesty.”
Mr. O’Brien said he had heard just two or three substantive cases over the last couple of months. A normal workload would have been many dozens of cases each month.
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The reason for the lower workload is that the government’s lawyers are working with lawyers for illegal immigrants to dismiss the cases, he said.
“Over the last two months they’ve dismissed literally everything,” Mr. O’Brien said.
Mr. O’Brien was brought on by the Trump administration, having previously served in various immigration jobs at the Homeland Security Department and as research director at the Federation for American Immigration Reform (FAIR), which advocates for stricter immigration controls.
He is still on staff until near the end of this month, though he’s been put on leave and, he says, was unceremoniously cleared out of his office without being able to collect all his things.
The Justice Department said it wouldn’t comment on his specific case, but the agency insisted its personnel decisions are “based solely on performance, and the presidential administration an individual was hired in has no bearing on decisions related to performance or other evaluations.”
But immigration lawyers, who caught wind of Mr. O’Brien’s ouster late last week, took to Twitter to take credit for it.
Hassan Ahmad detailed his effort to get Mr. O’Brien kicked off cases with a series of posts calling the judge a racist. Mr. Ahmad said he wrote up a recusal motion and gave it to all local immigration attorneys to use when they had cases before the judge.
He also said he was part of an effort to “crowdsource complaints” about Mr. O’Brien, gathering “horror stories” about practicing in front of him — including what they saw as due process violations and gripes about how he handled COVID-19 precautions.
Mr. Ahmad tied those complaints to Mr. O’Brien’s ouster.
Mr. O’Brien said he can’t have been ousted because of his workload. He pointed to data from the Transactional Records Access Clearinghouse at Syracuse University, which shows him deciding more cases than many other colleagues.
And he said the complaints filed against him were all “dismissed as frivolous.”
The only explanation he’s left with is that it was political.
He says the American Immigration Lawyers Association was out to get him from the start, seeing him as a roadblock to winning status for their clients.
“AILA calls the tune,” he said. “This place has been a free candy store for decades and now that we’re not giving out the candy anymore, people are irritated.”
Greg Chen, senior director of government relations at AILA, rejected Mr. O’Brien’s assertion.
“AILA has always encouraged its members to report inappropriate or abusive practices committed by immigration judges. That doesn’t mean AILA is pulling strings — rather we are holding the courts accountable to ensure each judge is qualified to sit on the bench and ensure a fair hearing in every case,” Mr. Chen said. “Immigration court proceedings involve life and death decisions; AILA has always worked toward a fair and just immigration court system. The system and its stewards need to be held accountable.”
The Justice Department official who requested anonymity out of fear of retaliation said one of Mr. O’Brien’s supervisors, who was just brought over from Ayuda, an immigrant rights group, recommended he be terminated. Ayuda regularly battles against FAIR, Mr. O’Brien’s former employer.
“There was both a clear political motivation and a conflict of interest for her action, and the agency ignored it,” the official said.
The official also said EOIR has been deviating from its regular hiring practices to fill vacancies. It’s playing games with ads for the positions and rejiggering the interview process, which seems to be an attempt to shape the applicant pool to its liking, the official said.
“In internal meetings, the agency has been clear that it only wants to hire applicants for immigration judge positions who have experience with Democratic-affiliated advocacy organizations, and it has told its midlevel managers to specifically reach out to those organizations to identify applicants to become IJs,” the official said.
The official said raging politics inside EOIR stands in contrast to Attorney General Merrick Garland’s vow to respect career employees, and “it is a thousand times worse than it ever was under Trump.”
The official said complaints have been filed with the Justice Department inspector general’s office.
The ousters come even as the immigration courts face a record backlog of cases, fueled by border surges over the last six or seven years.
EOIR has been rapidly hiring, but it’s also been rapidly losing judges. From Jan. 1, 2021, to March 31, 2022, the agency hired 98 new judges but saw 33 go.
The Biden administration has moved to cut the courts’ workload by shifting some initial asylum decisions away from judges, sending them instead to officers at Homeland Security. The expectation, analysts said, is that the officers are going to be more sympathetic to cases than the judges would be.
EOIR operates under a federal law prohibiting personnel decisions based on political affiliation.
Four years ago it was Democrats complaining about politicization at EOIR during the Trump administration. They said the Trump administration had delayed or revoked hiring offers made during the Obama years, and they pushed the inspector general to investigate.
In a March advisory memo, the inspector general cleared the Trump team, saying that while investigators found some bureaucratic snafus, they didn’t find enough evidence to open a full investigation into the politicization allegations.