When Justice Isn’t Allowed to be Blind
When I saw the name “Tabaddor” in this article, it grabbed my attention. As soon as I read it, my jaw dropped. Judge Tabaddor, one of the most impartial and brilliant judges that I have encountered in my 18-year career as an immigration attorney, was actually ordered by the Department of Justice (DOJ) to recuse herself from all Iranian cases due to her ethnicity!
As a disclaimer, I must say that I am also a proud Iranian-American and active in many social causes – mostly having to do with my LGBT community. The first thought that ran through my mind was what if a gay judge was told not to decide any gay cases….or a Latino judge was told the same regarding south of the border cases. I was infuriated.
I then remembered an immigration case many years ago – when I was still a law student – involving Jordanian/Palestinian Respondents – informally called the “LA 8” in the court room of another highly respected – now retired – immigration judge, Bruce Einhorn, a proud Jewish-American – also socially active in his Jewish community.
I contacted Judge Einhorn wanting to gauge his reaction to the DOJ recusal order. Not surprisingly – the good judge gave me a piece of his mind! Below I recount part of my exchange with him about this incredibly important issue:
Bolour: Judge – have you heard about this DOJ order re Judge Tabaddor?
Einhorn: Yes. It’s very disturbing.
Bolour: How well do you know IJ Tabaddor?
Einhorn: I have known her for more years than either of us cares to admit. As a law student, she served as my summer intern. She then served as my judicial law clerk and thereafter my attorney-advisor before being justifiably appropriated to the legal staff of then Chief Immigration Judge Michael Creppy. Judge Tabaddor then served with distinction as an attorney with the U.S. Justice Department’s Office of Immigration Litigation in Washington, D.C., and later as an Assistant United States Attorney back in L.A. We even served together as immigration judges in Los Angeles. She was the first of my former law clerks to become my colleague. She is also my friend.
Bolour: Do you think there is any basis for the DOJ order?
Einhorn: I know Judge Tabaddor well enough to know how fundamentally unfair it is for the Executive Office for Immigration Review to disqualify her from hearing any removal/relief cases involving Iranian nationals. Ashley Tabaddor is a proud Iranian-American, and justifiably so: her ethnic community, composed of several faiths, is one of the most successful and contributive in recent U.S. history. Judge Tabaddor is an active leader in the Iranian-American bar, a status encouraged by Justice Department regulations that support the community service work of DOJ employees, including IJs. Also, Ashley Tabaddor was afforded the honor of attending an August 2012, White House meeting to discuss federal government initiatives involving the Iranian-American community. EOIR had advance notice of Judge Tabaddor’s attendance at that meeting.
Bolour: I remember that you were also once involved in somewhat of a similar situation, Palestinian Respondents. Can you please share your own experience?
Einhorn: When I was an immigration judge, I handled, and ultimately dismissed with prejudice, the deportation cases against two Palestinian-Jordanians who were accused of assisting in terrorist activities. Defense counsel moved me to recuse myself from the proceedings because of my role as an American Jewish community leader. With EOIR’s support, I denied the motion because there was no convincing evidence of actual or apparent partiality on my part in the adjudication of respondents’ cases. In my dismissal of the motion, I noted that if I were to recuse myself from the actions at bar, then by the same reasoning, actively and traditionally Catholic judges and women judges should not be allowed to hear abortion rights cases, Arab-American judges should not be allowed to hear the asylum cases of Jewish respondents, African-American judges should not be allowed to hear civil rights cases, and so forth. We would be left only with white Anglo-Saxon male judges from Nebraska – unless, of course, they were active in inter-faith, inter-racial, or inter-ethnic fraternity groups.
Bolour: Judges are expected to be impartial. How did you balance your own social activism with your time on the bench?
Einhorn: Judges are not monks, nor should they be. They are in and part of the American community. As long as they scrupulously avoid actions that cast doubt on their fairness as jurists, they should be allowed without retribution to show their love of country by serving it off the bench as they do on it. Judges and their legal advisors should park their politics at the courthouse door – and that is exactly what Ashley Tabaddor has always done. I should know. Ask her colleagues on the bench and the attorneys for both the government and respondents who have appeared before her. They will agree with me.
Bolour: Any final thoughts on Tabaddor v. Holder?
Einhorn: We cannot afford to lose a judge of Ashley Tabaddor’s experience, intelligence, and integrity in the adjudication of all removal cases. The correctness or not of her decisions should be left for appellate review. EOIR should afford her the same fairness and presumption of innocence that respondents receive. She is one gallant woman.
Once again, Judge Einhorn, as he did many years ago when he let me visit his chambers as a law student, reaffirmed my belief in our justice system. I am confident that IJ Tabaddor will prevail in her quest to reaffirm her rights both under the First Amendment and Title VII of the Civil Rights Act of 1964.
Written by Ally Bolour, Member, AILA Media-Advocacy Committee