Since 2013, the Federal Bar Association (FBA) has advocated moving the immigration court from the Department of Justice (DOJ), where it lives under the Executive Office for Immigration Review, and to an Article I court, which would make it independent. The actions of Attorney General Jeff Sessions illustrate why the FBA thinks the move is a good idea. President Donald Trump told HillTV.com this week, "I don't have an attorney general. It's very sad. I'm not happy at the border. I'm not happy with numerous things,” but it’s hard to imagine what Sessions could do to make him happier on the immigration front. Taken as a whole, Sessions has worked consistently to get immigration courts to produce results in line with his and President Trump’s anti-immigration rhetoric instead of actual justice.
This spring, Sessions referred a number of immigration appeals to himself to decide—an unusual but legal move since he is the head of the DOJ, and his decisions have all worked to narrow the options for immigration court judges. In one ruling, he restricted the conditions under which asylum seekers would have their applications granted. Earlier this week, Sessions ruled that immigration court judges can not use discretion to terminate or dismiss cases, a move consistent with an earlier decision that judges cannot close cases either.
Judges, he said, “have no inherent authority to terminate removal proceedings even though a particular case may pose sympathetic circumstances.”
Terminated and closed cases don’t grant the applicant any status, but they do give the applicant time to pursue ways of staying in the country legally.
Immigration judges have felt that Sessions was undermining their authority since he imposed quotas that required them to bring cases to speedy resolutions in 2017. According to Kate Voigt, associate director of government relations at the American Immigration Lawyers’ Association, “The decision is the next step in a concerted effort by the A.G. to undermine judicial independence and to minimize the role of judges in immigration court.”
Ashley Tabaddor, president of the National Association of Immigration Judges, echoed Voigt’s thoughts. “It's just another way of putting more pressure and increasing the backlog and the pressure on judges to just to do more cases and faster with limited resources and limited tools," Tabaddor said. "It's another representation of the improper use of the court as an extension of the law enforcement policies of the executive branch."
Sessions’ decisions and rulings reflect a skepticism toward the immigration court as an institution. On September 10, he expressed his cynicism toward immigration attorneys when he told a group of immigration judges that they were “using all their talents and skills work every day ... like water seeping through an earthen dam to get around the plain words of (immigration law) to advance their clients' interests.” When he argued, “The law is never serviced when deceit is rewarded so that the fundamental principles of the law are defeated,” he threw shade on immigration attorneys and presented them not as the opposition to the prosecutor—an employee of the DOJ—but to the judges as well, as if the prosecutor and immigration court judge were on the same side with the express purpose of defending America and the law against them.
If immigration court were an Article I court, it would be free from the ideological preferences of parties and better able render justice. "Time and time again the Attorney General's actions have shown us that an immigration court system housed under the Department of Justice cannot be one that guarantees due process," wrote Benjamin Johnson, Executive Director of the American Immigration Lawyers Association.
Those who believe the immigration court should become an Article I court need to get involved in the mid-term elections because Congress has the power to make that move. If power in the House of Representatives flips to Democrats, the move would be possible.
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