Here is what the Trump administration is doing: erecting the apparatus of mass incarceration, enacting policies and practices that stigmatize immigrants, and effectively eliminating courts and lawyers. And here’s why: It seems clear their objective is to expel immigrant communities from the United States.
President Trump and the attorney general are already aiming to eliminate immigration court review. At a time when they push to slash federal spending generally, they’ve quickly found the funding to incarcerate immigrants, to the financial gain of private prison companies. They've converted anti-immigrant rhetoric into policy, stigmatizing immigrants on a vast scale. And now they are challenging the lawyers that serve this community.
There are two basic rule of law principles. First, our legal system should operate fairly, even when it is under stress. Second, our legal system requires that all the law should be fairly applied, not just the law chosen by the powerful or the few.
For example, when then-candidate Trump defended his tax write-off for millions of dollars as a feature of the tax code, he was articulating a rule of law principle. However, when his administration derides the asylum process as a loophole, he is using a rule by power principle — what monarchs and autocrats do.
Sessions’ attack on lawyers is another example of the rule by power principle. Sessions is ready to dispense with the laws he dislikes — the law of asylum and the Fifth Amendment of the U.S. Constitution — in order to achieve an end that he desires — detaining and deporting immigrants.
We have been part of creating some of the collaborative projects that are bringing attorneys into the deportation system. These programs include the Dilley Pro Bono Project at the family detention center in Texas and the Southeast Immigrant Freedom Initiative and several more are in the works.
Each of these is a collaboration of legal organizations such as the Catholic Legal Immigration Network, Inc., Innovation Law Lab, the American Immigration Lawyers Association, the American Immigration Council, the Southern Poverty Law Center, the American Immigration Representation Project. These projects are winning cases.
Perhaps that is Sessions’ complaint: He is losing. By and large, lawyers are requiring the government to follow the law. These lawyers are winning cases for their clients: men, women, and children from Central America and elsewhere who are fleeing for their lives.
Despite the attorney general’s multiple claims that the asylum system is a victim itself of fraud, he doesn't cite evidence that would show systematic abuse. Instead, he argued last week that effectively too many people are winning their cases. But that is, again, a rule by power theory. He does not want immigrants to win and so he pursues a system without lawyers, a system without checks.
Imagine that our asylum system existed before World War II and a large percentage of Jews passed the “credible fear” interview. Should we have drawn the conclusion that they were trying to defraud the American people? Americans know that courts and lawyers are sometimes all that stands between persecution on the one hand and the deliberate indifference of those with a duty to act.
The attorney general’s flailing efforts to clean up the backlog of cases in the immigration courts have thus far utterly failed. Previously scheduled immigration court hearings have been postponed because Sessions chose to send judges to border detention centers as a media opportunity, resulting in extending the backlog of cases at their home by more than 20,000. Meanwhile, the judges sent to the border reported having such light caseloads, one said she filled her time by helping replenish a supply closet.
If anyone’s hands are dirty here, it isn’t the lawyers who are doing their best to allow their clients what is due them under our laws: a fair hearing. The unwillingness of the attorney general of the United States, and his boss, to see this is an affront to the rule of law that should concern us all.
Stephen W. Manning is the legal director of the Innovation Law Lab. Michelle Mendez is managing attorney of the Catholic Legal Immigration Networks’ Defending Vulnerable Populations Project. Mr. Manning and Ms. Mendez collaborated in the design of the volunteer lawyer projects mentioned in Attorney General Jeff SessionsJefferson (Jeff) Beauregard SessionsPress: For Trump endorsement: The more sordid, the better Those predicting Facebook's demise are blowing smoke If bitcoin is 'digital gold,' it should be taxed like gold MORE’ speech.