The Repercussions of How the Administration Has Handled Matter of Castro-Tum

8/14/18 Asylum

This is the story of how the fallout from a single case can have major repercussions, far beyond any impact on one client. This is also the story of someone who is not my client. This is the story of the Matter of Castro-Tum, and it’s not over yet.

Castro-Tum was an unaccompanied minor who came to the U.S. at the age of 17. He was transferred to the care of the Office of Refugee Resettlement (ORR) and sent to a sponsor in rural Pennsylvania. He was supposed to appear before the immigration court, Judge Morley in Philadelphia, but he did not appear at several hearings. Instead of ordering Castro-Tum removed “in absentia,” Judge Morley had administratively closed the case, essentially putting the removal proceedings on hold indefinitely.

Judge Morley did not do this for humanitarian reasons, he was concerned about due process under the law. He administratively closed the case only after repeated attempts to get the Department of Homeland Security (DHS) to confirm that they’d sent notices to appear to the correct address and thus that Castro-Tum had had proper notice of his obligations to appear. He asked DHS to confirm the address they had from ORR, but they never did.

The government appealed Judge Morley’s ruling to the Board of Immigration Appeals (BIA) and the BIA instructed Judge Morley to order Castro-Tum removed if he did not appear. That alone wasn’t apparently enough for the Attorney General because he then certified the case to himself and used his decision as a way to make broad sweeping pronouncements against the longstanding authority of immigration judges to administratively close cases. The AG announced these changes on May 17 and now Castro-Tum was due back in court on May 31.

I, like many immigration attorneys, was interested and following the case. When I realized it was coming back to Philadelphia, I decided to show up. I entered as Friend of the Court with the backing of my chapter and many local attorneys. Judge Morley allowed me to speak briefly and I advised the court about our concerns on the continuing notice issues. I offered that the best way forward was termination of the case as DHS still had not shown it had met its burden to prove they had given notice. Judge Morley agreed that scheduling a hearing within 14 days since the AG’s decision did not allow adequate time for proper notice (due process again) so he continued the case for about 2 months to give time to try and locate Castro-Tum; time we could also use to file an amicus brief. DHS objected to the continuance.

During the hearing on May 31, the court administrator was seated behind Judge Morley’s left shoulder, out of his view. Toward the end of the hearing, Judge Morley joked, “am I in trouble?” Though he said it in jest, it turned out he was in trouble. Later we learned that Judge Morley was pulled off the case and replaced by an Assistant Chief Immigration Judge (ACIJ). At the next hearing, the ACIJ ordered Castro-Tum removed, reading from a prepared statement. I was allowed to make a statement as Friend of the Court again, and the amicus brief was acknowledged, but the final order was issued “in absentia.”

If that sounds wrong — to replace a judge based on the ruling he is expected to give — it is. The National Association of Immigration Judges just filed a grievance that shows that Judge Morley was not only taken off Castro-Tum, he was taken off dozens of other cases. Clearly the way he was deciding cases or was expected to decide cases didn’t match up with what the administration wanted. Matthew Hoppock, from Kansas, has filed several FOIAs on this matter in order to determine what really happened and who made what decisions, when they made them and most importantly, why they made them.

We need immigration courts that are free from the dictates of political appointees. This administration is undermining due process every time they weaken the immigration court system. In fact, this is not simply about the immigration courts themselves at all. This is a matter of justice and ensuring the administration of due process within the U.S. court system.

If we need independent immigration courts, how do we get them? We need Congress to act. But to get Congress to act, we need to show up and advocate, not just for our clients to the best of our ability, but also for fair and just immigration law and policy even when our clients aren’t involved. We need to make our voices heard, and unite together as a communal voice. Everyone can take action, sign on to letters and petitions, email and call Congress, and get engaged in the fight. It’s too important not to.

“Well, one day they gave us some beans that was sour. One fella started yelling’, an’ nothing happened. He yelled his head off. Trusty come along an’ looked in an’ went on. Then another fella yelled. Well, sir, then we all got yelling’. And we all got on the same tone, an’ I tell ya, it jus’ seemed like that tank bulged an’ give and swelled up. By God! Then somepin happened! They come a-running’, and they give us some other stuff to eat-give it to us. Ya see.” – John Steinbeck, Grapes of Wrath

by Matthew Archambeault