American Oversight’s Investigations of the Executive Office of Immigration Review

Last month, Chief Immigration Judge Tracy Short announced his resignation from the Executive Office for Immigration Review (EOIR), which oversees the nation’s system of immigration courts. 

Short was appointed by then-attorney general William Barr in 2020, having previously served as a principal legal adviser at Immigration and Customs Enforcement, where in 2017 he wrote a memo instructing ICE prosecutors to be stricter in deportation cases. 

The appointment of judges with backgrounds in immigration enforcement or prosecution was a pattern in the Trump administration; records obtained by American Oversight showed that roughly 40 percent of the judges hired in 2017 and 2018 had previously worked for ICE, with many more from other enforcement backgrounds. In May 2021, the Biden administration was criticized by immigration advocates for announcing a round of hiring that heavily leaned toward judges with similar enforcement backgrounds. Another round of EOIR hires in late October included a higher percentage of judges from more diverse experiences. 

Unlike federal judges with lifetime appointments, immigration judges are technically part of the U.S. Justice Department and can be removed by the administration. But in recent years, the EOIR has been dealing with a massive backlog of cases along with significantly understaffed courts.

In the fall of 2021, the San Francisco Chronicle reported that the immigration court in that city had created a special docket for immigrants whose mail was being returned undelivered, resulting in a significant increase in “in absentia” deportation orders, including for those who may not have known they had court appointments. Earlier this year, the Chronicle reported on documents American Oversight obtained showing that officials exchanged emails celebrating that system. The documents also revealed that Short had been involved in discussions that fall about how to respond to an inquiry from the ACLU of Northern California about the returned notice hearings.

In addition to its investigation of the EOIR, American Oversight has also assembled a detailed timeline of public records relating to the Trump administration’s family separation policy. Our investigation of the origins and execution of the policy uncovered several emails involving Short as well as David Wetmore, who is currently the chief appellate immigration judge for EOIR’s Board of Immigration Appeals. 

Wetmore was appointed in May 2020 after spending more than a decade at the Justice Department, including serving as associate deputy attorney general from 2019 to 2020 and senior counsel to the deputy attorney general the two years prior. In 2017 and 2018, he was an immigration adviser for the White House Domestic Policy Council, where he worked closely with Senior Adviser Stephen Miller and pushed for changes to aggravated felony language that would allow for the easier expulsion of migrants. He also appears to have been involved in Miller’s Title 42 effort to use the coronavirus pandemic as a pretext to expel migrants at the border. 

Documents uncovered in American Oversight’s family separation investigation include an email sent by Short while he was at ICE to ICE Director Thomas Homan on Oct. 31, 2017: “Attached is an email chain to familiarize you with the prior discussion on separating families.” The email was in response to Homan asking Short and a colleague for “the paper you did on FAMU [family unit] separation.” 

Short also received a Dec. 16 email about “Policy Edits to UAC [unaccompanied minors] Options.” That same day, Chad Wolf, then the Department of Homeland Security chief of staff, circulated a policy memo about addressing immigration that included family separation as an option.  

An email sent in March 2018 indicated that Short wanted to get in touch with Wolf in advance of a meeting “to discuss the issue of family separation as well as DNA and fingerprinting issues.” And Short was listed as an attendee for a meeting on April 5 — the day before then-Attorney Jeff Sessions announced the administration’s “zero tolerance” policy — that included on its agenda “Eliminate Policy of Releasing Adults and Children Together.” 

For more information on American Oversight’s investigations into immigration, visit our immigration archives.