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11th Circuit Rules Immigration Judges are United States Judges for Purposes of 18 U.S.C. § 115(a)(1)(B)

by David Reutter

In an issue of first impression nationally, the U.S. Court of Appeals for the Eleventh Circuit held that an immigration judge is a “United States judge” within the meaning of 18 U.S.C. § 115 (a)(1)(B), which makes it a crime to, among other things, assault, kidnap, or murder or attempt or threaten to do so with respect to certain federal officials, including United States judges.

That conclusion came in an appeal brought by Delroy McLean, who was sentenced to 41 months in prison after a jury found him guilty of “threatening to assault” an immigration judge “with the intent to impede, intimidate, or interfere” with that judge “while engaged in the performance of official duties” during a bond hearing in violation of § 115 (a)(1)(B).

At trial and on appeal, McLean argued immigration judges are not “United States judges” for purposes of the statute because they are employees of the Department of Justice who are appointed by and subject to the supervision of the Attorney General.

The Eleventh Circuit rejected McLean’s argument. It started with the definition in § 115 (C)(3), which provides that “‘United States judge’ means any judicial officer of the United States, and includes a justice of the Supreme Court and a United States magistrate judge.” As the definition includes examples of both Articles I and III federal judges, “we know that the terms ‘United States judge’ and ‘judicial officer of the United States’ are not limited to federal judges with life tenure [i.e., Article III judges].”

Having rejected McLean’s argument that a United States judge must be appointed under Article III, the Court turned to his argument that an immigration judge is not a “United States judge” due to her appointment and supervision by the Attorney General. The Court concluded that an immigration judge is a “judicial officer of the United States” and thus a “United States judge” within the meaning of the § 115(a)(1)(B).

The Eleventh Circuit offered two reasons in support of its conclusion. First, it noted that Black’s Law Dictionary defines “judicial officer” is a “magistrate; referee; special master; commissioner; hearing officer.” The Court then explained that an “immigration judge is, at the very least, a hearing officer who is appointed by and supervised by the Attorney General, the official who appointed her.” Second, the Court stated that “from a functional perspective an immigration judge is judicial officer who exercises the authority of the Attorney General (and therefore of the United States).”

Accordingly, the Court ruled that since an immigration judge is a “judicial officer of the United States” and thus a “United States judge” under § 115(c)(3), it affirmed McLean’s conviction for violating § 115(a)(1)(B). See: United States v. McLean, 891 F.3d 1308 (11th Cir. 2018). 


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United States v. McLean



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