Christine Flowers: This Sessions is hardly just
Objectivity has its place, and it is central and crucial to the integrity of so many processes that define us as a civilized society.
But objectivity is not always necessary to having an educated opinion on things that matter to us. I am not objective when it comes to immigration law, because it has been my avocation for almost a quarter century. To me, this most controversial of topics transcends political slogans and rhetoric about imaginary walls and real separations.
I think the Trump administration is wrong on so many of its initiatives and priorities, and I have not been shy about expressing this view in this paper, and elsewhere.
So those who read what follows will likely challenge my “take” on what has happened, recently, in our local immigration court. They might chalk it up to my “bias” in favor of immigrants, and they will likely dismiss what I have to say as a public relations effort in favor of the “illegals,” which is the label Attorney General Jeff Sessions has now ordered his employees at the Justice Department to use. No more squishy terms like “undocumented,” no more ambiguity.
And as a disclaimer, I have to admit that I both know the subject of this commentary, admire him, respect him, and have worked with him as a colleague in the past, and have been before him in court. Judge Steven Morley is not a stranger to me. He is an eminently fair and highly qualified jurist who has both granted and denied cases I’ve litigated before him.
But even though I am obviously biased, I share something with all lawyers, an understanding of the crucial importance of an independent judiciary. That is not subject to dispute, and does not change across the political spectrum, professional specialties or personal preferences. The legal system works only if we as a people can be assured of its independence and integrity. What has happened in Philadelphia, then, is a violation of that foundational principle and a slap in the face of every lawyer and every litigant – legal citizen or “illegal” immigrant – who appears in one of our courtrooms.
Judge Morley was presiding over a technically complicated, but important challenge raised by immigrants who had lost the right to have their cases “administratively closed” under new rules promulgated by the attorney general earlier this year. Administrative closure does not give you the right to asylum or to a green card or to any other substantive benefit, but it does open an avenue for you to seek those benefits in specific cases. Jeff Sessions essentially put up a virtually impenetrable road block on that avenue (he built his own “wall,” so to speak) and immigration lawyers were challenging that move.
The case was before Morley, who ordered briefs on the issue. That means he was willing to look at legal arguments and determine the threshold legality of the move to eliminate what we in the business call “admin close.”
And then, with no notice and with a speed that is foreign to an immigration system that makes glaciers look as if they are piloted by Chuck Yeager, the case was reassigned to another judge who promptly did what the government wanted it to do, namely, deport an immigrant under the new rules “in absentia.”
It’s not really necessary to go into any more details about this specific case known to immigration practitioners as Matter of Castro-Tum, because the principle is bigger than any single individual or even the entire Immigration and Nationality Act. The principle that is being shattered is the understanding that judges should be allowed to do their jobs without any outside pressures and in accordance with the law. It should not matter who appointed them, who elected them or who is tweeting about them. Judges, if they are to have any value in this society, must answer only to the law.
Fortunately, they are the first to understand this. The national association that represents 350 immigration judges nationally has lodged a formal grievance over Morley’s removal, recognizing the very dangerous precedent it is setting, a sort of Sword of Damocles (or Sword of Jeff) over their heads. The message is: do what I want, or else.
It is important to note that the immigration courts are a part of the Department of Justice, and the immediate head of that department is the attorney general. Therefore, some have argued that he has the final word on immigration cases that wend their way through the court system.
But that begs the question as to whether the A.G. has the right to interfere with the independence of his employees, who are not supposed to be mere rubber stamps but who are required to make informed, independent decisions.
I, and any lawyer who honors and respects her or his profession, would answer that question – emphatically – in the negative.