Officials and judges were informed of the change on Wednesday morning in a memo by acting deputy attorney general John Carlin. The change will take effect on Sunday.
“Jean will continue to lead the EOIR until a new director is selected,” wrote Carlin, according to one person who received the memo.
The personnel change comes after complaints from immigration advocates who were concerned to see McHenry’s name on the list of the entire agency that the Justice Department released last Thursday to those who hold important positions on an interim or ongoing basis. first weeks of Biden’s presidency.
McHenry’s presence on the list of officials who will remain in the new government has angered immigration reformers seeking an immediate change of direction for an operation with enormous power over immigrants accused of being in the United States illegally.
“I saw that list … and I was shocked,” said Jeremy McKinney, an immigration lawyer in Greensboro, NC, before Wednesday’s announcement. “The policies he was publicizing in terms of his attempts to control what the judges do within the court, these efforts have been monumental over the past three years. It is very surprising to see that he is one of the parasites. “
“Having someone like that leading the EOIR, who doesn’t embrace the vision of restoring due process and justice … that would undermine that goal and that hope,” said Marielena Hincapie of the National Immigration Law Center last week.
McHenry was appointed acting head of EOIR in May 2017 and was given the title of permanent director the following January. As the chief executive officer overseeing immigration courts, McHenry led a series of political initiatives that angered immigration advocates, including efforts to tighten asylum standards and pressure immigration judges to close cases more quickly.
An immigration advocate said that Biden’s transition personnel in the Department of Homeland Security seemed more urgently focused on immigration issues, while those issues seemed to be put in the background by those planning the Department of Justice.
That perception was reinforced by a report last week in which the career officer chosen by the Biden team to serve as interim attorney general, Monty Wilkinson, played a role in an internal dispute over the Trump-era policy of several years. separation of immigrant children from their parents on the Mexican border.
As an employee who runs the office that oversees US prosecutors, Wilkinson approved the transfer of a line prosecutor who was seen as resisting a first pilot of the controversial family-division effort, which Trump officials abandoned in 2018 after protests. bipartisan pressure from Congress.
Given the attention to Wilkinson’s secondary role in this widely denounced policy, it was notable that when the Justice Department formally dismissed part of that policy this week, the announcement came in a Wilkinson memo. The new guideline said the department was abandoning the so-called zero-tolerance rule, which required that almost all adults crossing the border illegally be prosecuted.
“A policy that requires a prosecutor to charge all cases forwarded to the prosecution … regardless of individual circumstances is inconsistent with our principles,” wrote Wilkinson.
Greg Chen, director of government affairs for the American Immigration Lawyers Association, called McHenry’s departure a necessary precursor for Biden to fulfill his immigration agenda.
“AILA has deep concerns about the current director and other nominees who currently lead the EOIR, who have deprived judges of key authorities that make it impossible for them to make fair and consistent decisions,” said Chen. “If he is allowed to remain in office, the many measures he has taken to take cases to court for removal orders will continue quickly. Its removal is essential for the new government to be able to implement its vision of making the courts more just and efficient ”
Some lawyers said civil service laws may have complicated the Biden government’s ability to reallocate McHenry quickly. A legal provision creates a 120-day moratorium on the transfer of certain senior career executives after a change in the agency’s leadership. But with Attorney General Designated Merrick Garland still awaiting confirmation, it is unclear whether the transition from the Justice Department from an interim Attorney General to President Donald Trump to one appointed by Biden triggered the 120-day clock.
However, several supporters said they were confident that the department had the power to remove McHenry from his post at least temporarily. A Justice Department spokesman declined to comment on the personnel change.
Regardless of the precise legal requirements, the Biden administration may be reluctant to reassign senior executive service members unintentionally due to concerns about disregarding public service protections. The Trump administration often appeared to be at war with civil servants and federal employee unions, the subject of much criticism during the previous president’s four-year term.
Last October, Trump issued an executive order that could have led tens of thousands of government jobs to be converted from public service jobs to others where employees can be fired without cause. Trump officials were unable to complete this process until the day of the inauguration.
Last Friday, Biden signed an executive order undoing many of the actions related to Trump’s public service, which the new president said has “undermined the foundations of public service and his principles of merit system”.
In 2018, more than a dozen liberal lawyers sent a letter complaining that Trump’s nominees were mistreating members of the senior executive service, reassigning them in retaliation and potentially in violation of civil service protections. This story may have left the new government sensitive to any perception that it is causing a short circuit in laws and rules.
While immigration advocates were highly critical of McHenry’s mandate, the Trump administration boasted of the success and efficiency of the immigration courts under its supervision.
McHenry made great strides to replace the courts’ archaic paper-based filing system with a computerized computer, hired a record number of new immigration judges and dramatically increased the number of cases closed each year – at least before Covid-19 arrived.
Immigration judges completed a record 276,000 cases in fiscal year 2019 and were on track to close 400,000 cases in fiscal year 2020 before the pandemic almost paralyzed the immigration justice system.
McKinney, the North Carolina immigration attorney, said McHenry deserves credit for being outspoken about EOIR policies and policy changes, although they have proved controversial in many sectors. “He was always consistent in meeting with us to answer our questions. Although we didn’t always like his answers, he always provided them, ”said McKinney.
Carlin’s new memo indicated that McHenry will move to a lower profile within the EOIR next week, heading the Office of the Director of Administrative Hearing – a unit that primarily hears cases involving companies accused of intentionally hiring undocumented immigrants or discriminating against foreigners who have the right to work in the USA
Unlike other federal courts, immigration courts operate within the executive branch under authority delegated by the attorney general. The prosecutors in these cases come from the Department of Homeland Security and the immigration court’s decisions can be appealed to the Immigration Appeals Board, which is also part of the Department of Justice, and then to a federal appeals court.
Many immigration judges and immigration lawyers have asked that immigration courts be transferred outside the Department of Justice to give them greater independence.