The Purge at The Executive Office for Immigration Review

The Biden administration removes several immigration judges for purely political reasons. We sit down with one of these jurists, Matt O'Brien who previously worked at USCIS and FAIR and now holds the position of director of investigation at the Immigration Reform Law Institute.

Show Notes

★ Support this podcast ★

What is FAIR Immigration | Understanding Immigration?

The Federation for American Immigration Reform's podcast bringing you the most important updates about U.S. immigration. Featuring special guests including members of Congress, journalists, and experts in the field.

Spencer:
so back when I was a relative newbie here at fair I had the opportunity to work under a great guy named Matt O'brien Matt came to FAIR from USCIS where he was the chief of the national security division within the fraud detection and national security directorate in short his job was to create procedures that helped prevent terrorists and other national security threats from gaming our immigration system he also has just a wealth of experience as a private attorney and until about a month ago Matt was doing a great job as an immigration judge over at EOIR but in a rather shocking and unprecedented move he along with a number of his peers were let go by the Biden administration because they had the absolute audacity to rule in a manner that's consistent with our current immigration laws because you know how dare a judge do his job correctly now he's actually the director of investigation at FAIR’s legal arm the Immigration Reform Law Institute I'm Spencer Rayleigh FAIR’s director of research and joining me for this episode is the legend himself Matt O'brien thanks for joining us today

Matt:
thank you Spencer

Spencer: So Matt tell us about your experience as an immigration judge and compare your performance to what the Biden administration was basically requesting or demanding from immigration judges

Matt:
sure well first off thank you for the warm welcome and the EOIR stands for the Executive Office for Immigration Review which is the name of the immigration court it's an administrative court which is part of the executive branch so it's a little bit different the course that most people are used to seeing on television like law and order it's not part of the judicial branch and what its function is to review immigration decisions so that people have a fair shot at applying for benefits that they might have under the immigration laws which means that in the case of illegal aliens or in the case of people have violated their immigration status the same things that are at stake in a judicial branch court like a criminal court or a civil court are just not present what this is a simple question did you violate the law and if you violated it is there some provision in the law that allows you to stay so it should be pretty straightforward but the immigration courts have become increasingly more politicized and particularly with the Biden administration even more so than the Obama administration there's been a lot of pressure put on people working all across DHS and the Department of Justice to approve basically any application that any alien puts forward so I started off under the Trump administration as a very fascinating job there was a lot of interesting enforcement initiatives going on as soon as the Biden administration took over it became a slog and there was just consistent pressure being put by the administration but also by the trade association for the immigration attorneys on the judges who were willing to apply the law correctly because people would come in to make these absurd claims that because they were the victim of a crime in a foreign country they were entitled to asylum

Spencer:
which of course asylum covers certain protected classes and experiencing crime in your home country does not qualify for asylum in the United States

Matt:
correct so asylum is applicable to people who are fleeing persecution which persecution just doesn't mean that you're experiencing bad conditions it means that the government or parties the government is unable or unwilling to control in your country have targeted you on the basis of race religion national origin political opinion and essentially if you don't fall within one of those five protected grounds you don't meet the requirements for asylum but there was a lot of creative lawyering under the Obama administration to try and bring into the asylum statute people who were experiencing things like gang violence or domestic violence and that was brought in under particular social group and what a particular social group is no one really knows because it's not defined in either the UN convention on the treatment of refugees and it's not defined in any of the U.S legislation that implements the UN obligations and so what you have is this sort of generic thing that could be virtually anything and people try and bootstrap these asylum arguments by saying my ex-husband persecuted me because I'm a woman and a person in half a marriage which is a particular social group which if you think about it it's absurd because you can shoehorn virtually anybody into that category

Spencer:
Right, you can essentially say if anyone ever looked at you wrong that's a form of persecution so of course since there wasn't a real clear definition of it it was just rife and ready for abuse and to be manipulated now i've seen your metrics your rulings and everything they're very consistent with the law as it's written yet as we mentioned the Biden administration let you go and a number of other judges go as well so what was their reason like the official on paper reason for letting you go and were any of the other judges fired as well were any of them appointed by anyone other than a Republican President i'll put it that way

Matt:
so if one was a suspicious type one might address some negative conclusions from what happened but another judge in Arlington Judge David White a colleague of mine very bright guy very knowledgeable about immigration and very enforcement-minded was let go with me there was a total of somewhere between a half dozen and a dozen we haven't been able to get any straight answers from the administration

Spencer:
that sounds maybe like a small number but it's really unprecedented isn't it

Matt:
so typically speaking immigration judges start and depending upon what statute is in effect at the time they undergo either a year or two years of probation when I was hired it was two years and the probationary period is to make sure that you have appropriate demeanor in the courtroom that you're familiar with the law that you don't have emotional outbursts and yell at people things of that nature and so typically people are only kept from being converted to and the way the probation works I should go back and say you're appointed for a temporary appointment that matches the probation period and then once you've completed probation you're converted to a permanent position and in the past there's been virtually nobody who wasn't taken off of probation there was a judge a famous case who was falling asleep on the bench in the middle of cases and waking up and then insisting on going on with the cases he was not taken off of probation there are other people who had tardiness and alcoholism issues it's all identifiable things and what happened to the people who were Trump appointees who worked into the Biden administration on their probationary period is they were given a notice that said you're not being converted to permanent and this is based on a review of performance and or conduct now to a lot of people listening who aren't familiar with how the federal government works they might go well clearly there was a performance or a conduct issue but in the federal government in order to dismiss somebody you really have to specify some kind of specific shortcoming that they had and performance and or conduct does not cut it under the federal rules and regulations and then on top of that if you think about that’s a monument to bad grammar because was it performance was it conduct was it both was it neither

Spencer:
and it's conveniently in specific as well

Matt:
correct and nothing was ever pointed out to us the only thing that was brought to our attention is that there apparently was a deputy attorney general who thought that nobody should ever have a complaint filed against them and you know pretty much every sitting immigration judge because EOIR’s complaint process is so all-encompassing and wide-ranging has complaints filed against them I denied a continuance from someone who didn't provide any evidence which is clearly required under the regulation the government's continuances and she filed a complaint so I had a sum total in two years of four complaints filed against me all of which were dismissed as baseless and frivolous and this is pretty typical most of the judges that were dismissed either right before or along with me had the same sort of thing happen then of course after I was dismissed there were a number of private bar attorneys who came out on twitter and said that they were specifically engaged in a campaign to crowdsource complaints against constitutional conservative immigration judges

Spencer:
I saw some of these tweets from lawyers and groups like AYLA who straight up basically admitted that their complaints were politically motivated they had nothing to do with your performance they were just mad that they weren't getting the rulings that they liked and so they again openly admitted we're going to just flood the process with complaints you know hopefully some of them stick or we can kind of send the message to the people under our sway in the administration and they do what they want and get what they wanted which was to get judges who are ruling in a consistent manner with the law removed from the bench so that kind of brings up another question I have here and that is why do groups like AYLA have so much sway with this administration and how is this tactic of flooding the process with complaints legal or is it legal

Matt:
well so first of all I should say I'm not sure if we've mentioned this AYLA is the American Immigration Lawyers Association that is the trade association for private bar immigration attorneys who represent aliens in immigration proceedings and that's another funny thing we got a memo saying we shouldn't call them aliens anymore despite the fact that that's the term used in the Constitution and in the relevant statutes

Spencer:
well I find the interesting thing with AYLA's you they used to kind of the idea was to represent attorneys on both sides of the spectrum make sure that all of these cases are being you know adjudicated in a fair manner it doesn't seem to be that way anymore it seems to largely be a heavily one-sided organization just from what I can see

Matt:
well it's always been one-sided in that it was the trade organization for the private immigration bar so they never really did anything on behalf of any of the INS and then later ICE attorneys who are responsible for prosecuting the cases but once upon a time they were kind of evenly divided among the immigration attorneys that do business immigration and the immigration attorneys to family based and the people that represent people in proceedings before the immigration court it seems to have shifted radically left and to be primarily driven now by people who think that there should be an open borders world right with no immigration rules and going back to your earlier question what's the end game here well I think it's that the Biden administration wants to flood the United States with as many Immigrants as possible because they think that anyone who is ultimately here and gains a path to citizenship as a result of the Democratic party's efforts are going to wind up voting Democrat and if they can do this correctly then they will be able to shift the demographics of the company and ensure Democrat rule if not in perpetuity but at least for decades and I personally think and I've discussed this with a number of other people that I know that still work at ICE and USCIS and on the court and one of the arguments that convinced the Reagan administration to make the kind of silly decision to support an amnesty was there's a critical mass of people and it would not be humane nor would be practical from a resource point to deport them all and I think what the Biden administration is attempting to do is ensure that there are so many people here the next time that they get enough political mass to be able to propose an amnesty that they can pass it and convince the Republicans and anyone else who might oppose it that this is a good idea because there are just far too many people here trying to deport

Spencer:
right and honestly I mean it's also just part of a broader attempt to fundamentally change the fabric of this nation we see in every amnesty deal that you know what three four five failed attempts since Biden took office there's always this concern about well can we make sure they have some form of citizenship that includes voting rights within eight years and always kind of an attempt to make sure these individuals get brought into kind of a full citizenship fold as quickly as possible so that they can be impactful it's a political play I mean I think everybody knows that and some even admit it at this point but I think what's really concerning in this particular instance is the willingness to really weaponize and honestly delegitimize the courts in a way to basically say you are no longer considered independent enforcing the rule of law and forcing laws as they're written making sure that we're staying in compliance with congressionally passed laws or even regulation passed via the executive branch but instead saying we want you to follow a political agenda that we have I feel like at least from what I could find from what I could research that's largely unprecedented you didn't see President Trump come in here and just fire a bunch of previous judges appointed by Obama and bringing his own guys you didn't see Obama really do that too much anyway with the Bush administration judges but it seems to be a new thing to where this is just another political tool and political ploy by the Biden administration to achieve their open borders utopia that they're trying to create

Matt:
Yeah, it definitely is and I think you hit the nail right on the head in the Bush administration there were accusations there were attempts to politicize the judge hiring process I don't think that was accurate I think that the Bush administration like many Republican administrations had attempted to kind of tighten up and ensure that there were more people with an immigration background and quite possibly with a prosecutorial background on the court which there's nothing wrong with a large number of the people sitting on the federal bench in the judicial branch courts are people who were former prosecutors that's a typical path to the bench Obama attempted to interfere with the courts but not with the judge appointment process to the current extent it was more with attempting to tell the judges what to do and this whole notion that gang violence and crime and domestic violence could serve as bases for asylum was really born under the Obama administration the Trump administration is interesting that the class of judges that I came in with that I trained with I would say was divided about evenly in thirds about a third of the people were people that came from the military and had been JAG attorneys or military judges about another third were people who like me had a background in immigration enforcement or experiences private bar attorneys and about a third were people who were people with a lot of immigration experience but on the alien side and that's even under the Trump administration and I think it's because Immigration is kind of an unusual area of law it's a specialized area of practice it's complicated and I think that like a lot of Republican administrations that are committed to the rule of law the Trump administration went all right we got to staff the court and we're going to staff it with people that know what they're doing right the Biden administration hasn't had any interest in that the people who came in afterwards the assistant chief immigration judge that I was working with at the time that I was terminated was from Ayuda three or four of the people that they hired at the same time who I met that trained the Arlington court were with extremely leftist organizations almost all of them had a connection with some kind of not that there are too many conservative law schools left in the United States but these were people that had you know connections with really knee-jerk liberal immigration clinics at law schools and things of that nature so for the longest time the United States did not have an immigration court the way that immigration cases were reviewed is that there was an attorney who worked for INS who had to have more than five years experience but then would go on a rotating basis as what was called a special inquiry officer and they would essentially sit as an administrative hearings officer and conduct administrative hearings about immigration matters and they would go back up the rotation now there was a lawsuit about that and I believe it was settled and that led to the creation of the immigration court as we know it now the Board of Immigration Appeals goes back further I think that goes back to like the 1950s and that would review the decisions from the special inquiry officers the Board of Immigration Appeals now reviews the decisions that are made by the immigration courts so if you want to give people a genuine hearing on things particularly with something like immigration where people do not have a lot of rights the way that they would in a criminal proceeding or even a standard civil proceeding it's really straightforward and you've heard me say this many times because we worked together for years an immigration hearing is like a driver's license revocation hearing driver's license is not a right it's a privilege and you hold that privilege under the conditions the government sets and if you violate those conditions then you can lose that right we license people to come into the United States a visa and an admissions stamp are a license to be in the United States you hold that license pursuant to the conditions the US government sets if you violate those then it's a simple question one is there enough evidence the government can produce that you have violated it and number two does the law say that you need to be removed or is there some discretion that the court can grant you to enable you to stay and then when it comes down to the exercise of discretion typically there's a set of standards so for certain things like cancellation of removal you know you've got to show good moral character you've got to show connections to the United States things of that nature so there has been this attempt by the Immigration Bar to turn these things into something akin to a death penalty hearing in a judicial branch court when the fact is there really isn't that much at stake a lot of people are fond of saying well you know this is terrible because you know these people have a life in the United States and they might be forced to give it up but what's happening from a legal standpoint and even from a practical standpoint is that people who either never had or who by their own conduct forfeited the right to be in the United States are simply being sent back to the place where they have full citizenship rights there's nothing punitive about it

Spencer:
exactly and honestly when you get into that and of course we can feel sorry for those who may have put down roots here may have been here for years but are now being sent back but part of that is a fundamental misunderstanding of how this whole process works how a visa works or they committed a crime or violated the terms of their visa without giving thought to the consequences of that and so some of this might just be a need for you know better educating those who are coming into the country you know what does this mean what does this visa mean you know what are the criteria you're expected here because again it seems like whether it's this administration or others in the you know mass immigration lobby their goal is to kind of give this idea to embed this concept that if you get into the United States you have every right to stay here and that's just not the case that's why these review processes these immigration courts exist so what kind of looking forward from here knowing that the Biden administration has gone this far what are they going to weaponize next and what do we need to do what does Congress need to do you know if republicans take back over in November or otherwise what can be done what are they going to weaponize next and what needs to be done to stop that from happening

Matt:
well to answer the first question what are they going to weaponize next it's what happened to me should concern everyone because while there are protections available for federal court judges sitting in judicial branch courts the fact is there still is an impeachment process for those judges and while that has traditionally been extremely difficult to accomplish we've now had a situation where congress attempted to impeach a president who was no longer sitting right how do you impeach somebody from an office that they're no longer holding yeah it's absurd

Spencer:
and we're seeing so much chatter so much talk the idea of being entertained of either impeaching justices on the Supreme Court who have not done anything impeachable other than the side that wants to impeach them didn't like how they were put on the bench or don't like that they're on the bench as well as this conversation of packing the court right so do you see that happening you know what the immigration with these immigration courts or even going beyond whether it's expanding these courts just so you get more favorable judges on the bench or again abusing this process to get anyone who dissents with the party line out of any position of authority

Matt:
yeah not to be dramatic but I think what happened to me should cause people who care about the Constitution and who take a conservative approach the application of the law because as we have seen things can change there was a set view of presidential impeachment which changed during the last administration so who's to say they're kicking out immigration judges today is it going to be federal magistrates and then federal district court judges tomorrow I mean people say oh I don't believe it couldn't happen

Spencer:
you could kind of sat the same thing about this at least those in the know who are familiar with the process said the same thing about this just a year or two again yes and so it happens

Matt:
it does and I think there was something you said before which I think is a really important point where you talked about having sympathy and believe it or not and I'm not sure there's so many AYLA attorneys that listen to our podcast but if there are any they're probably gonna fall over when I say this but I do have sympathy for the people that came in front of me but the thing is when you're in a black robe on an elevated bench in front of a courtroom you don't have the luxury of engaging in emotional analysis of everything that happens you are honor bound your obligation is to apply the law as written and there is a place for emotion and sympathy it comes in when discretion can be exercised but even there you're constrained by the rules for applying the discretion and one of the things that I think the open borders contingent and the left the political left in the United States in general tend to do well is they conflate facts and feelings

Spencer:
right absolutely

Matt:
the law is a factual endeavor what they teach you in law school is how to apply the law to the facts now you can have feelings about what the law says and what it requires but as a judge your obligation is to apply it whether you like it or not and I think a lot of this has come down to we are looking at these people as individuals and we are saying this person is telling me a sad story but first of all the sad story is not all the time true as I know from lengthy experience second of all sometimes even when people do have a sad story that is not a reason that they should be permitted to remain in the United States

Spencer:
right and that's something we've touched on so many times at FAIR with myself in the research department you used to run the research department here we've looked so often it what is the maximum scope we can take on to kind of be a welfare system for the rest of the world we can't help every sad story that wants to come to the United States there have been polls that have shown more than a billion people would come to this country today if we would let them because things are more difficult where they're at they went through difficult situations the political landscape where they are is changing but if we're just willy-nilly and kind of let our emotions take over and help that you know just if you have a bad situation or sad story come here we're eventually going to be no better than the places they came from and we've looked at just mountains of data we released a lot of studies that kind of back that up so that's why it is so critical that we have an immigration system in place with checks and balances that looks into what are the constraints we need to put on ourselves right now where can we bend those a little bit for special cases etc the good Christian in me would just love to help every single refugee in the world every single person that needs help in the world but we don't have that ability to do that which is why it's so critical that we have an immigration system that is constantly looking and reevaluating itself who can we help what's the best way we do that and most importantly how are we doing that with the best interests of our country citizens first those that came here legally second everyone else after that you know how are we keeping those the interest of those individuals in mind in that order

Matt:
well that is a really important point because if we don't maintain ourselves as the country that attracted these people the country whose image spoke to all of these people in the first place then we're not going to be able to help them

Spencer:
right and we're seeing that in so many European countries right now in Scandinavian countries where they tried to do this just bring everyone here don't vet them don't look at what they have to offer just bring them here and now they're seeing just so many aspects of their society start to fall apart and it's no longer necessarily the country that's so attracted those individuals anymore you're starting to see them go to other places because they've started damaging those countries so we have to be realistic and careful about how we approach the best of our intentions

Matt:
well I think this goes back you talk about being a Christian you know I am as well the bible whether you're Christian or not has a lot of interesting historical wisdom and one of the things that rabbi Hillel always talked about when reviewing biblical sources is in order to be a source of charity you have to keep yourself from becoming a recipient of charity exactly and so what we're not looking at from the standpoint of immigration policy is if we really want to do the most good in the world are we placing ourselves in a position where we're going to be so overwhelmed trying to take care of our own and the recent additions to the family that were unable to take care of anyone and you know I genuinely believe that people who are truly fleeing persecution should be able to come to the United States and if they meet the required statutory requirements then they should be able to stay here well from looking at my statistics I had a 96 denial rate for asylum claims but I had a four percent grant rate and the four percent grant rate was because I wasn't opposed to granting asylum if people qualified for it and when I encountered people who qualified for it I granted it but the fact is because you're in Ecuador or Venezuela or Central America or wherever and your husband beats you up and you didn't want to call the police you just decided to go to the United States that does not qualify you for asylum and if we take everyone who has been the victim of a crime in a foreign country into the United States we're going to have a massive wave of humanity that's going to come here and we are not going to have the water the food resources the infrastructure to be able to house feed and keep those people in stable communities it's just not possible and that's not because we dislike people from foreign countries that is just a practicality I live in a house with four bedrooms that means there's only so many family members who can come and stay at Christmas time the other ones have to stay in a hotel because there just isn't enough room for that many people to be in the house

Spencer:
we're seeing that across America now we release studies just looking at the impacts of urban sprawl on sensitive ecosystems I go out to places like phoenix regularly and there's this mountain that you can overlook the whole area and I like to go and every year look at what section of desert has been eaten up by houses now and you're seeing places like Lake Mead the Colorado river areas like that they're pulling so much water that they have a very difficult time keeping the lake levels at acceptable levels whenever there's a drought and this is all being fueled by immigration so I mean it's a really difficult topic and I definitely commend you for the service you did as an immigration judge because you had to address and make some of these very hard decisions with a bunch of individuals a bunch of groups out there that are mischaracterizing you know why you're doing it trying to you know paint you as a terrible person in reality you're keeping this bigger picture in mind just trying to you know enforce our laws as they're written so that we can actually help as many people as possible so I think that's great and I really think this is a good spot to wrap up this episode I really appreciate you taking the time to come on today Matt it's great to have you back in the FAIR family

Matt:
Thank you, it's good to be back

Spencer:
You do work over it IRLI and you'll continue to do that so for everyone out there listening we hope you've enjoyed today's episode and learned something new about this really important issue and one that's only gonna become more important over time I wanna encourage everyone to listen to our previous episodes if you have the time we've got something like 60 half hour episodes online now so lots of great informative content for your listening pleasure also be sure to subscribe to this podcast on whatever streaming service you use and share it with your colleagues friends family you can also find out more about FAIR and our mission at www.fairus.org and we're also on Twitter and Facebook so until next time this has been the Understanding Immigration Podcast presented by FAIR