September 24, 2022
Matthew O’Brien, an immigration judge appointed by the Trump administration, says he and a number of other Trump-era judges have been let go by the Biden administration.

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An immigration judge appointed by the Trump administration says he and a number of other Trump-appointed judges have been ousted by the Biden administration because they’re out of step with the administration’s views on immigration.

Matthew O’Brien, who was appointed in 2020 as an immigration judge, is a former research director at the Federation for American Immigration Reform (FAIR), a group that calls for lower levels of immigration overall and stricter border policies. 

Before that, O’Brien worked at the U.S. Citizenship and Immigration Services (USCIS).

Immigration judges work as DOJ employees in the Executive Office for Immigration Review (EOIR) and are subject to a two-year probationary period, after which the vast majority are moved to a non-probationary position.  

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But O’Brien and at least one other judge have recently been let go at the end of their probationary periods. O’Brien said he believes up to 10 others in similar positions have also been let go, although he couldn’t confirm the exact number.

Migrants caught crossing the U.S.-Mexico border are loaded into a transport van by U.S. Border Patrol agents in Sunland Park, N.M., July 22, 2021. 

Migrants caught crossing the U.S.-Mexico border are loaded into a transport van by U.S. Border Patrol agents in Sunland Park, N.M., July 22, 2021.  (Paul Ratje/AFP via Getty Images)

The DOJ did not confirm how many have recently been let go at the end of their probationary periods. A spokesperson for the DOJ’s Executive Office for Immigration Review said it does not comment on personnel matters. The Washington Times, which first reported on O’Brien’s case, said at least half a dozen judges had been removed.

There are 590 sitting immigration judges, and the DOJ says decisions related to career civil service employees, who include immigration judges, are based solely on performance, and the administration they were hired by plays no role in decision-making.

But O’Brien said he was under fire from unhappy immigration lawyers from the moment he took the bench in June 2020. 

“As soon as I sat down on the bench, my very first case that I heard there was a recusal motion filed, which was like 30 or 40 pages. It was completely legally inaccurate, it deliberately misquoted case law in order to misrepresent what I said. And it basically said, ‘We think Judge O’Brien should be recused because he is a White supremacist and a Nazi because he worked at FAIR.’ So that started the whole thing.”

Since then, he said, there have been about 50 or 60 motions filed against him and that it got worse once the Biden administration took office.

Migrants camping outside a U.S. Immigration and Customs Enforcement office in Orlando, Fla., April 29, 2022.

Migrants camping outside a U.S. Immigration and Customs Enforcement office in Orlando, Fla., April 29, 2022. (Fox 35 Orlando)

“As soon as the Biden administration took over, we became subject to a coordinated attack campaign of filing complaints against us for all kinds of utterly baseless things,” he said.

He blamed an “opaque” complaint process at EOIR that gives no due process to the judge and places judges in a “guilty until proven innocent” situation.

“Some aggrieved attorney who doesn’t like the decision that they got in the case that might not have had any merit to begin with can file a complaint complaining about the judge and then nothing happens except harassment of the judge,” he said. “So it requires the judges to write a response … and then it goes into a black hole, and nobody tells anyone anything except the complaining attorneys. So they don’t give the judges a written decision on it. They don’t talk to the judges and tell them what happened.”

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He says multiple assistant chief immigration judges told him there is a “deliberately orchestrated political campaign” against him. But he said nothing was done, something he believes is because he and his colleagues were Trump appointees. He also denied that he is an extremist on immigration.

“I’m a law-and-order guy. And I never said anything other than the immigration law should be enforced as written by Congress. We are a constitutional republic. It is the responsibility of the legislature to make the immigration laws, and it is the responsibility of the executive branch to enforce them as written, not to water them down in order to pander to political constituencies,” O’Brien said.

He also says his numbers of cases completed were higher than most judges who had been there for a much longer time – even during the pandemic, when he and his colleagues took on extra work.

“There are judges who worked for radical alien aid organizations that have been incompetent buffoons with problems with alcoholism, sexual harassment, nonperformance, whatever. And nobody has ever attempted to dismiss any of them,” he said.

“Meanwhile, we happened to be on a very unclearly defined probationary period, and they appeared to have dismissed us because we did the job correctly. And it’s just galling, but it’s also mind boggling.

He noted that his dismissal comes as the Biden administration is struggling with a massive backlog in cases amid a continuing crisis at the southern border.

“If you’ve got a backlog that you’re trying to reduce by dismissing cases and it’s so big that you have to open new immigration courts, then why are they dumping perfectly competent judges? The only conclusion is it’s because these people are Trump appointees and they have overt links to either conservative political causes or … [are] particularly good at reviewing the cases and then determining that no, this person does not meet the standard under the law and then denying them.”
 

Immigrants gather along the U.S. border wall after crossing through a gap from Mexico Dec. 10, 2021 in Yuma, Ariz. 

Immigrants gather along the U.S. border wall after crossing through a gap from Mexico Dec. 10, 2021 in Yuma, Ariz.  (John Moore/Getty Images)

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While some immigration lawyers celebrated O’Brien’s ouster online and appeared to confirm the existence of a recusal motion being circulated against him, The American Immigration Lawyers Association (AILA), who O’Brien believes aided the effort against him, denied there was any organized campaign by the organization itself.

Benjamin Johnson, executive director of the AILA, told Fox News Digital that lawyers will often complain either by themselves or in a group when they see what they believe is bad behavior but said it was “absurd” to suggest that they had the power to oust judges they don’t like.

“Our members, when they see what they think is inappropriate behavior by a judge in their local communities, they will often either write letters of complaint or organize an effort to make sure that the Justice Department EOIR is aware of what they perceive to be inappropriate behavior or misconduct,” Johnson said. “Sadly, there’s a lot of that going around.”

Johnson said that the immigration court can be a “kangaroo court,” where the deck is stacked against immigrants, and that there had been long-standing concerns about the courts picking from candidates with alleged anti-immigrant biases and coming predominantly from the prosecutorial side, concerns that increased during the Trump administration.

Former President Donald Trump

Former President Donald Trump (Reuters)

“The hiring of immigration judges skews heavily towards former ICE attorneys, prosecutors or folks with an anti-immigrant background, like this judge,” Johnson said. “So, again, this is not a new complaint. It has been an ongoing pattern of not having a very diverse judge corps, us arguing for many years that the hiring practices of the agency needed to be reformed.” 

When Trump got there, that old problem got a lot worse because they leaned in hard to making sure that they were only hiring people who fit their political profile,” he said.

He agreed with O’Brien that it was rare to see judges removed, although he noted a prior purge of progressive judges during the Bush administration and highlighted the performance quotas put in place during the Trump administration. He said the answer to long-standing concerns about politicization of the immigration courts is a fully independent immigration court.

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“I hope Judge O’Brien will join us in an effort to get an independent immigration court so that you can insulate these judges and this system from the political winds blowing left and right,” Johnson said. It’s a travesty of justice what happens every day in immigration court.”

O’Brien, meanwhile, suggested that more ousters could be on the way in the next year. Seventeen judges appointed during the Trump administration didn’t start their duty until 2021.

“And what do you think is going to happen when they come up on, you know, for the end of their probation over the course of the next year? They’re going to wind up getting terminated as well,” O’Brien predicted.