Staffers and judges were informed of the shift Wednesday morning in a memo from Acting Deputy Attorney General John Carlin. The move will be effective Sunday.
“Jean will provide continuity in EOIR’s leadership until a new director is selected,” Carlin wrote, according to a person who received the memo.
The personnel change follows grumbling from immigration advocates who were troubled to see McHenry’s name on the agency-wide list the Justice Department released last Thursday of those holding top posts on an acting or continuing basis for the first weeks of the Biden presidency.
McHenry’s presence on the roster of officials staying on into the new administration rankled immigration reformers seeking an immediate change in direction for an operation with huge power over immigrants accused of being in the U.S. illegally.
“I saw that list….and I was just shocked,” said Jeremy McKinney, an immigration lawyer in Greensboro, N.C., prior to Wednesday’s announcement. “The policies he was putting out in terms of his attempts to control what judges do inside the courtroom, those efforts have been monumental over the last three years. To see he’s one of the hangers-on is very surprising.”
“To have someone like that leading EOIR, who doesn’t embrace the vision of restoring due process & fairness….this would undermine that goal and that hope,” Marielena Hincapie of the National Immigration Law Center said last week.
McHenry was named as acting chief of EOIR in May 2017 and was given the permanent director title the following January. As the top executive branch official overseeing the immigration courts, McHenry spearheaded a series of policy initiatives that rankled immigration advocates, including efforts to narrow asylum standards and to press immigration judges to close cases more quickly.
One immigration advocate said that Biden transition personnel at the Department of Homeland Security seemed more urgently focused on immigration issues, while those issues appeared to be put on the back burner by those planning for the Justice Department.
That perception was reinforced by a report last week that the career official the Biden team tapped to act as acting attorney general, Monty Wilkinson, played a role in an internal dust-up several years ago related to the Trump-era policy of separating immigrant children from their parents at the Mexican border.
As an official running the office that oversees U.S. attorneys, Wilkinson approved the reassignment of a line prosecutor who was seen as resisting an early pilot of the controversial family-splitting effort, which Trump officials abandoned in 2018 following public outcry and bipartisan pressure from Congress.
Given the attention to Wilkinson’s minor role in that widely-denounced policy, it was notable that when the Justice Department formally jettisoned part of that policy this week, the announcement came in a memo from Wilkinson. The new directive said the department was abandoning a so-called zero-tolerance rule that called for nearly all adults who cross the border illegally to be criminally prosecuted.
“A policy requiring a prosecutor to charge every case referred for prosecution….without regard for individual circumstances is inconsistent with our principles,” Wilkinson wrote.
Greg Chen, director of government affairs for the American Immigration Lawyers Association, called McHenry’s exit a necessary precursor for Biden to carry out his immigration agenda.
“AILA has deep concerns about the current director and other appointees currently leading EOIR, who have stripped judges of fundamental authorities that make it impossible for them to render fair and consistent decisions,” Chen said. “If he is allowed to stay in office, the many steps he has taken to steamroll cases through the courts for removal orders will continue apace. His removal is imperative to the new administration being able to implement its vision of make courts fairer and more efficient.”
Some lawyers said civil service laws may have complicated the Biden administration’s ability to swiftly reassign McHenry. One legal provision creates a 120-day moratorium on reassigning certain senior career executives following a change in agency leadership. But with Attorney General-designate Merrick Garland still awaiting confirmation, it is unclear whether the Justice Department transitioning from an acting attorney general under President Donald Trump to another appointed by Biden triggers that 120-day clock.
However, several advocates said they were confident that the department had the power to move McHenry out of his post at least temporarily. A Justice Department spokesperson declined to comment on the personnel shift.
Regardless of the precise legal requirements, the Biden administration may be reluctant to involuntarily reassign members of the senior executive service over concerns about disregarding civil service protections. The Trump administration often seemed to be at war with the civil service and with federal employee unions, the subject of much criticism over the previous president’s four years in office.
Last October, Trump issued an executive order that could have led to tens of thousands of government positions being converted from civil service positions to ones where employees can be fired without cause. Trump officials failed to complete that process by Inauguration Day.
Last Friday, Biden signed an executive order unwinding many of Trump’s civil service-related actions, which the new president said had “undermined the foundations of the civil service and its merit system principles.”
In 2018, more than a dozen liberal lawyers sent a letter complaining that Trump appointees were mistreating members of the senior executive service by reassigning them as retaliation and potentially in violation of civil service protections. That history may have left the new administration sensitive about any perception that it is short-circuiting the laws and rules.
While immigration advocates have been highly critical of McHenry’s tenure, the Trump administration boasted of the immigration courts’ successes and efficiency under his oversight.
McHenry made major strides towards replacing the courts’ archaic paper-based filing system with a computerized one, hired a record number of new immigration judges and sharply increased the number of cases closed out every year — at least before Covid-19 hit.
Immigration judges concluded a record 276,000 cases in fiscal 2019 and were on pace to close 400,000 cases in fiscal 2020 before the pandemic ground the immigration court system to a near halt.
McKinney, the North Carolina immigration lawyer, said McHenry deserves credit for being forthright about EOIR policies and policy changes, even though they proved controversial in many quarters. “He has always been consistent when meeting with us to answer our questions. While we may not always have liked his answers, he always provided those answers,” McKinney said.
Unlike other federal courts, the immigration courts operate within the Executive Branch under authority delegated by the attorney general. Prosecutors in those proceedings come from the Department of Homeland Security and immigration court rulings can be appealed to the Board of Immigration Appeals, which is also part of the Justice Department, and then to a federal appeals court.
Many immigration judges and immigration lawyers have urged that the immigration courts be moved outside of the Justice Department to give them greater independence.