Sessions seeks to expand power on immigration cases

Sessions seeks to expand power on immigration cases
© Anna Moneymaker

Attorney General Jeff SessionsJefferson (Jeff) Beauregard SessionsCongress is going to make marijuana moves Trump throws support behind criminal justice bill Bill to protect Mueller blocked in Senate MORE appears to be exploring a rule that would expand his judicial power, and that some say would allow him to drastically reshape federal immigration policy.

In a notice posted this fall, the Department of Justice (DOJ) announced it is planning to propose a change to the circumstances in which the attorney general can take and rule on immigration cases.

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Under past practice, immigration experts say attorneys general have only stepped in to affirm or overturn cases once the Board of Immigration Appeals (BIA) has given a ruling. Such interventions by attorneys general have also been rare.

Under the new proposal, the attorney general could make rulings on immigration cases before they get to the BIA.

“It’s very disturbing,” said Thomas Saenz, president and general counsel at MALDEF, the Mexican American Legal Defense and Educational Fund.

He argued the proposed change, which was included in the fall semiannual regulatory agenda released by the White House, would give the attorney general too much power.

“This is an attorney general that has already demonstrated when he has done this under existing rules that he is biased, inhumane and, frankly, probably influenced by some racist views,” Saenz said.

DOJ spokeswoman Sarah Sutton called Saenz's characterization "absurd and woefully ignorant."

"It is widely acknowledged that our immigration system is broken and the attorney general has been steadfast in his pursuit of a lawful and functional immigration system where all Americans can thrive," she said.

"The Department of Justice’s record demonstrates a commitment to the safety and security of all Americans while treating all persons with fairness and dignity. To suggest otherwise is to ignore facts.”

The notice in the regulatory agenda, which maps out agency actions for the coming year, said the cases where the attorney general could intervene would include “those pending before the Board of Immigration Appeals but not yet decided and certain immigration judge decisions regardless of whether those decisions have been appealed to the BIA.”

Plans for the proposed rule were first listed on the spring regulatory agenda released in May. At that time, the expected release date was September 2018. The action has now been delayed until March.

Sessions has already been aggressive in getting involved with BIA cases even without the proposed rule change.

Since taking office in February 2017, Sessions has stepped in seven times after the BIA has made a decision, and offered five rulings — each adverse to the immigrant.

By comparison, the two attorneys general who served during former President Obama’s eight years in office took over just four cases, said Katrina Eiland, a staff attorney with the American Civil Liberties Union’s Immigrants’ Rights Project. 

Rulings from the attorney general are enormously consequential because they set precedent for immigration judges to follow.

In June, Sessions essentially made it impossible for victims of domestic or gang violence to qualify for asylum by overturning a BIA decision to grant asylum to a Salvadoran woman who said she was a victim of domestic abuse.

“The mere fact that a country may have problems effectively policing certain crimes—such as domestic violence or gang violence—or that certain populations are more likely to be victims of crime, cannot itself establish an asylum claim,” he wrote in his opinion.

Some have argued this authority to adjudicate immigration cases is a way for attorneys general to advance immigration policy.

Alberto Gonzales, who served as attorney general under former President George W. Bush, suggested in a 2016 Iowa Law Review article he co-wrote that it could have been a less controversial way for Obama to roll out his Deferred Action for Childhood Arrivals program.

“This authority, which gives the Attorney General the ability ‘to assert control over the BIA and effect profound changes in legal doctrine,’ while providing ‘the Department of Justice final say in adjudicated matters of immigration policy,’ represents an additional avenue for the advancement of executive branch immigration policy that is already firmly embodied in practice and regulations,” the article said, quoting a Fordham Law Review article written by Joseph Landau.

Jeffrey Chase, who served as an immigration judge and a senior legal immigration adviser at the BIA under former President Clinton, said the DOJ’s rule would give Sessions free range to change the law in whatever way he feels, whenever he wants.

He said it would bring the system into an era of uncertainty over what is settled law.

Unlike federal district and circuit courts that are part of the federal judiciary branch, immigration courts fall under DOJ control. Immigration judges are DOJ employees and do not serve lifetime appointments like federal district and circuit court judges.

Immigration advocates say Sessions has already taken steps to cut away at their judicial independence.

DOJ announced in an April memo obtained by The Wall Street Journal that it was setting quotas to expedite immigration cases and NPR News reported in May that Sessions had ordered judges to stop putting deportations on hold by closing out cases while immigrants apply for visas and green cards.

Immigration advocates say the plan in the regulatory agenda appears to be another step to further cut back their power.

“It appears to be another move to further control the immigration courts and that’s problematic for due process and fairness in giving immigrants a fair shake in their immigration proceedings,” Eiland said.

Chase said the good news, from his perspective, is the policies set through rulings from the attorney general can be easily undone by a new administration. 

Still, experts are alarmed by what they see as a broader effort by Sessions to rewrite immigration law.

“It seems transparent the intent to allow the attorney general to manipulate and distort the process by short-circuiting the normal procedures in order to impose the outcome he seeks,” said Lucas Guttentag, who served as senior counsel to Secretary of Homeland Security under the Obama administration.

But there is a question as to whether DOJ can legally do what it’s planning.

“I don’t know if they’ll get away with it,” Saenz said. “I think there are limits to his discretion and this would probably be very troubling to a court because it circumvents the due process provided in the immigration system.” 

Decisions from the BIA and final rulings from the attorney general can be appealed to a federal circuit court, but Chase said Sessions’s rulings have not been final. He has instead sent cases back to immigration judges for further action, which delays the opportunity to appeal.

“He’s been very clever about not leaving any case in a position where it could be [directly] appealed,” Chase said.