Attorney General Jeff Sessions’ efforts to reshape America’s immigration courts in his own ideological image is one of the Trump Administration’s greatest—and quietest—successes. Sessions has historically taken anti-immigrant positions, and recent moves he has made in the Department of Justice collectively make it harder for immigrants—legal and otherwise—to get justice. Vox.com’s Dara Lind reported that Sessions has referred three cases from the Board of Immigration Appeals (BIA) to himself for a ruling. The move is unusual but within the scope of his authorities because the immigration courts exist not as part of the judicial branch but under the auspices of the DOJ. The cases he has chosen could establish precedent that will stack the deck against immigrants before the courts.
Sessions has already set quotas for immigration court judges to clear cases, which puts a premium on speedy resolutions. He now plans to rule on a case that addresses the question of whether immigration judges can use “administrative closure” to remove cases from their dockets. One way judges dealt with the backlog of cases in the last decade was to, as Lind puts it, “hit the pause button … indefinitely” on low level cases and move on to more consequential cases. Sessions’ ruling could make that a harder if not impossible option to exercise.
Sessions will also rule on a case to decide if judges can wait for applications to be approved. In some cases, defendants may have another ongoing legal proceeding such as application for a status adjustment with United States Citizenship and Immigration Services. If that adjustment could affect proceedings, immigration judges frequently grant continuances until that matter is resolved. Sessions’ decision could limit judges’ ability to do that. If Sessions’ rulings are in keeping with the direction of other decisions he has made as Attorney General, an immigrant’s day in court may literally be a day or less if the immigration judge adheres to the 700 case a year quota.
Last October, Sessions announced his plans to tighten the rules for those seeking asylum. “Over the years, smart attorneys have exploited loopholes in the law, court rulings and lack of resources to substantially undermine the intent of Congress,” he said in 2017. “We also have dirty immigration lawyers who are encouraging their otherwise unlawfully present clients to make false claims of asylum, providing them with the magic words needed to trigger the credible-fear process.”
The third case he referred to himself addresses asylum. In the case, the woman is a survivor of domestic violence, and Sessions will decide if the threat of violence that prompts an asylum claim has to come from the state to be valid. Can you be persecuted if the government isn’t persecuting you? Many judges have granted asylum for those trying to escape culturally tolerated domestic violence and gang violence, but if Sessions narrows the qualifications for asylum, those fleeing the threat of gangs in Honduras and El Salvador and institutionalized sexism in other countries will find the doors of the United States closed to them.
Taken as a whole, Sessions’ decisions represent a drastic change in America’s relationship to immigrants. He is working to make it harder for them to enter the country, easier to get them out, and less hospitable for them while they’re here. In a recent speech that announced his “Zero-Tolerance” approach to unauthorized crossings of the Mexico/U.S. border, he referred to parents with children seeking asylum as “smugglers” and vowed to separate families from their children when they’re taken into detention.
“If you don’t like that, then don’t smuggle children over our border,” he said.
Sessions also called for more prosecutions of those harboring undocumented immigrants in a memo to all federal prosecutors in April 2017. There have been few so far, but like the cases he referred to himself, the totality of his actions so far make this a legitimate fear. To his credit, he did reverse his decision to suspend the non-profit Legal Orientation Program that offers legal advice to detained immigrants, but the cases he referred himself could drastically change the nature of immigration courts for years to come.
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