(Reuters) - When history has forgotten President Donald Trump’s unilateral Twitter war with former Attorney General Jeff Sessions, migrants seeking asylum in the United States will still be feeling the aftershocks of Sessions’ extraordinary impact on this country’s immigration system.
You know about the Justice Department’s high-profile, federal-court litigation over the since-rescinded policy of separating parents and children at border crossings, the travel ban, the rescission of protection for undocumented young people brought to this country by their parents, and the attempt to withhold DOJ grant money from cities, counties and states that bucked Justice Department directives on prosecuting migrants.
But that’s not the only way Jeff Sessions effected huge changes in national immigration policy. Without the fanfare of the big DACA, sanctuary city and family separation controversies, the former AG quietly used DOJ’s control over immigration judges overseeing asylum and deportation proceedings to advance policy goals.
Los Angeles immigration judge Ashley Tabaddor, speaking in her role as president of the National Association of Immigration Judges, said Sessions’ DOJ exercised “unprecedented” control over the immigration court system.
Jeff Sessions and his DOJ colleagues didn’t just change the way immigration judges are supposed to do their jobs. The former AG single-handedly overrode precedent in ways that will make it harder for migrants to win legal residency in this country. (I emailed Justice Department spokespeople to ask about Sessions’ remaking of immigration policy and about criticism from the immigration judges’ union. I didn’t immediately hear back.)
To understand the Justice Department’s power over immigration proceedings, you have to understand that immigration judges actually work under DOJ’s auspices. They’re called judges and are supposed to have discretion to render independent decisions in individual cases. But as Tabaddor explained at a press conference in September, the Justice Department, through the Executive Office for Immigration Review, has ultimate authority over immigration proceedings.
Tabaddor frequently says that if there were an analogous set-up for criminal cases, prosecutors would have the final say over defendants’ fate. (Technically, lawyers from the Department of Homeland Security represent the government at immigration proceedings.) She argues that DOJ oversight creates a structural conflict of interest that affects the entire immigration court docket.
Of course, DOJ oversight of immigration court proceedings long predates the Trump administration. Immigration judges chafed at the structure under the Obama administration as well. But Tabaddor and others argue that under Sessions, the Justice Department used its oversight power more aggressively than previous administrations. “They didn’t give birth to the conflict but they put it on steroids,” Tabaddor said in an interview Thursday. “They put their fingers on the scale. They took it up to the next level.”
The immigration judges’ union has made an issue of DOJ’s imposition of quotas and deadlines to whittle down a backlog of tens of thousands of cases in the system, arguing that judges can’t decide cases fairly when they have to meet quotas that don’t account for cases’ complexities. But I think the more interesting way to look at Sessions’ influence over the immigration court process is to look at the cases DOJ took away from the court in order to write its own immigration policy.
The attorney general has authority to direct the Board of Immigration Appeal to refer cases to the AG for review. According to former immigration judge Jeffrey Chase, these “self-certifications” have been used sparingly in the past: three times in the Clinton administration, four in the eight years of the Obama administration and 15 in the eight-year George W. Bush administration.
By contrast, former AG Sessions took over at least seven cases from immigration courts in the 21 months he held office. The ACLU’s Immigrants’ Rights Project has been tracking the cases the AG referred to himself. In the aggregate, the cases represent a significant narrowing of the pathway to legal residence for aliens in immigration court. In the Matter of A-B-, for instance, the Justice Department overruled precedent granting asylum to victims of domestic violence.
The AG similarly referred to himself, but had not yet decided at the time of his resignation, the case of Daniel Negusie, who claimed he was forced into membership in the Eritrea militia and would be persecuted if he returned to his country. The Board of Immigration Appeal, after the U.S. Supreme Court heard Negusie’s case, ruled that duress can create an exception to the U.S. bar on asylum for persecutors but Negusie didn’t meet the standard for duress. Sessions certified the case to himself to decide whether asylum seekers who were themselves persecutors can overcome the bar by showing they acted under duress.
The former AG also certified a case, the Matter of M-G-G-, presenting the question of whether detained migrants awaiting asylum hearings are entitled to pre-hearing release on bond. Precedent holds that asylum seekers have a right to make a case for their release to immigration judges. If DOJ were to decide otherwise, the ACLU said, the decision could affect tens of thousands of detainees.
In the Matter of Castro-Tum, the Matter of L-A-B-R- and the Matter of S-O-G- and F-D-B, the AG issued decisions restricting the discretion of immigration judges to put off final deportation hearings by continuing, closing or dismissing proceedings. The immigration judges’ union has complained that the AG’s rulings in these cases undermine the integrity of immigration court because they interfere with judges’ discretion. The union filed a formal grievance in the wake of the Castro-Tum decision, when DOJ transferred more than two dozen similar cases off the docket of the Philadelphia immigration judge who had put off Castro-Tum’s final deportation order.
So, to recap, by using his authority over immigration court in unusually aggressive fashion, former AG Sessions managed in less than two years to undo precedent for asylum seekers claiming to have been victims of violence or coercion; to cast doubt on pre-hearing release for asylum seekers in detention; and to restrict immigration judges’ ability to postpone a final reckoning for migrants facing deportation. That’s a notable legacy.