Jeff Sessions may be Trump's punching bag, but he's in lock step with the president o
Nov. 2, 2018
By SCOTT MARTELLE
Jeff Sessions may be Trump's punching bag, but he's in lock step with the president on immigration
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Even as President Trump has vilified him on other grounds, Atty. Gen. Jeff Sessions has worked to transform immigration courts. (Evan Vucci / Associated Press)
One of the more overlooked aspects of President Trump’s attacks on the government he was elected to run is the slow and steady reshaping of immigration courts by Atty.Gen. Jeff Sessions. That also points up one of many anomalies of this administration: Sessions has found himself in the odd position of being Trump’s punching bag for recusing himself from the Mueller probe, while simultaneously doing exactly what Trump wants in making it harder for people to fight deportation or seek asylum.
Trying to force more people out of the country plays directly into Trump’s anti-illegal-immigration campaign, including his fake caravan crisis at the southern border. But it also reflects Sessions’ long-held opposition to immigration of all stripes. As a member of the Senate, he was one of the sturdiest roadblocks to enacting comprehensive immigration reform while seeking to reduce legal immigration.
And he’s in a position to do more than he could as a single senator because the immigration courts now work for him; they are not part of the judicial branch, like federal district courts or the courts of appeal. Rather, they exist within the Justice Department as an administrative system, and all the judges — both hearing judges and those on the Board of Immigration Appeals — work for the attorney general, who has the authority to overrule decisions by the appeals panel. Sessions has done so more often than other recent attorneys general, and generally has ruled against the immigrants involved in the cases.
Sessions’ decisions have focused on overturning precedents he doesn’t like, and tend to constrain judicial flexibility and autonomy.
In one case he reversed an Obama-era decision that women facing domestic abuse in cultures in which law enforcement won’t protect them can receive asylum.
He also has stopped the practice of administrative closures, which judges were using often to suspend a deportation while the person involved sought a visa or other remedy. As a consequence, now people could be deported before they finish that process. And that will just add to the backlog of pending cases.
The one good thing Sessions has done: He has hired more immigration judges, increasing the number from 289 as of the end of September 2016 to 397, with even more planned. That is the best way to address the massive backlog that has built up over the years — increase the capacity of the system to handle cases — as long as those judges pay the proper respect to due process and the migrants’ rights.
How big is the backlog? Two years ago, it stood at 516,000 cases that had been pending an average of 672 days; now it stands at 765,000 cases that have been pending an average of 717 days.
Part of the growth stems from the administration’s stepped-up pace of arrests and detentions. So in an effort to speed up the handling of cases, Sessions established a quota and performance system for immigration judges, increasing the likelihood that rights will get trampled as judges struggle to keep up with the demands of a legal assembly line. He also has criticized immigration attorneys for doing their jobs — helping protect the legal rights and interests of people facing deportation.
The American Bar Assn. warned that the new approach will likely backfire. The attorney general is the top decision-maker within the immigration court framework, but even his decisions can be appealed in federal court, especially if there is a claim that rights have been violated. And a hurried-up immigration court process is likely to run afoul of due process protections.
Last month, Sessions took the first steps in further consolidating his power by proposing a rule that would allow the attorney general to intervene in a case before it reached the immigration appeals court, essentially circumventing decades of practice and undercutting what little independence the immigration courts have. Of course, it’s a betting proposition whether Sessions will survive long enough in his current job to exercise that power.
From a policy and good-governance standpoint, Sessions has been awful for the immigration courts. If the administration dislikes immigration law and how it is supposed to be enforced, then it should work with Congress to adjust the laws, not resort to this behind-curtains consolidation of authority.
The best solution here would be to make the immigration courts independent. Justice is not served when immigration judges work for an executive branch that seeks to deport people who may have a legal right to remain. That makes the process too easily politicized, as we’ve seen over the past few months.
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