By Sheeva Azma
Federal immigration judge Ashley Tabaddor sued the U.S. Department of Justice to be able to continue presiding over cases involving Iranian nationals.Tweet
Is it a conflict of interest for an immigration judge to deliberate on cases in which the people seeking asylum share an ethnic background? Typically, in federal immigration court, simply being the same ethnicity as the person of interest does not lead to the judge recusing themselves. However, Judge Afsaneh Ashley Tabaddor was forced to do just that.
The Iranian-American judge, who is active in various Muslim, Iranian, Middle Eastern, and women’s communities, has worked at the U.S. Department of Justice (DOJ)’s Executive Office of Immigration Review since 2005.
According to National Public Radio, the problem began when the White House invited Tabaddor to meet with leaders from the Iranian-American community in 2012. She asked her supervisors if she could attend. They said yes, but recommended that she recuse herself from all immigration cases that included Iranians. After returning from Washington, DC, Tabaddor learned that this suggestion was codified as a formal order. She, and her fellow immigration judges, were incensed, viewing this a violation of Tabaddor’s First Amendment rights.
This was discrimination, Tabaddor said, which held her to a different standard than other immigration judges. The order prevented the Judge from using her own judgement to decide whether or not to recuse herself, and served as a barrier to working on cases.
In November 2012, she filed a formal discrimination complaint against the DOJ. Her case argued that she was singled out and held to a different standard than other judges. She compared her situation to hypothetical situations in which a judge shared ethnic and religious background with asylum-seekers and others appearing in immigration court. For example, by this logic, a Christian immigration judge would be required to recuse themselves from cases involving Christian asylum seekers, or an African American would be banned from hearing cases involving people from Africa. Currently, judges do not have to recuse themselves in these situations.
She sued the DOJ in 2014, claiming the mandatory recusals violated her First Amendment rights. In April 2015, a federal judge ruled that the DOJ order did not violate Judge Tabaddor’s rights, and urged both parties to settle out of court. In 2015, the DOJ settled Tabaddor’s case, awarding her $200,000 and lifting the restrictions on her caseload.
Tabaddor served as the President of the National Association of Immigration Judges (NIAJ) from 2017 to 2020. She is an experienced immigration lawyer and judge who has served on the faculty at the law schools of University of Southern California and George Washington University. She earned her Bachelor of Arts degree from University of California, Los Angeles, in 1994. She obtained her Juris Doctorate in 1997 from University of California’s Hastings College of Law. Between 2000 and 2002, Tabaddor worked as a trial attorney in the Office of Immigration Litigation’s Civil Division at the Department of Justice in Washington, DC. From 2002 to 2005, she was an assistant U.S. attorney for the Central District of California in Los Angeles.
During the Trump administration, Tabaddor condemned what she saw as the politicization of the immigration courts. Testifying in front of a subcommittee of the Senate Judiciary Committee in 2018, she said, “Immigration courts have faced structural deficiencies, crushing caseloads and unacceptable backlogs for many years. Many of the “solutions” that have been set forth to address these challenges have in fact exacerbated the problems and undermined the integrity of the Courts, encroached on the independent decision-making authority of the Immigration Judges, and further enlarged the backlogs.”
She raised issues with a lack of transparency in the Migrant Protection Protocols, which are used by the Department of Homeland Security to manage illegal immigration through the southern border. As NIAJ president, Judge Tabaddor fiercely criticized what she called the undermining of immigration judges’ independence during the Trump administration. As she is quoted as saying in the ABA Journal, “When you tell a judge how the process … should be handled, by definition, that is going to have an impact, and a significant impact, on the outcome.”
Tabaddor took issue with the Trump administration DOJ’s quota of at least 700 completed cases per year to reduce the mounting backlog. In 2020, as President of the NIAJ, she led a lawsuit that sought to silence judges from publicly discussing their views on immigration or the courts. The directive for immigration judges to stay mum originated from the Executive Office for Immigration Review, part of the DOJ dealing with immigration courts. Tabaddor called the restrictions on judges’ ability to speak out on the issues “frankly un-American and unconstitutional” in an interview with the Associated Press.
On January 25, 2021, President Joe Biden appointed Tabaddor to United States Citizenship and Immigration Services (USCIS) chief counsel. Tabaddor is the recipient of awards from the Mexican-American Bar Association (2019), Armenian-American Bar Association (2014), the Arab American Lawyers’ Association of Southern California (2014), and the Iranian American Bar Association (2013).