Using a uniquely broad authority – certification – to unilaterally reconsider cases already reviewed by non-politically appointed judges and the Board of Immigration Appeals (BIA), Attorney General Sessions issued a decision yesterday that once again limits the independence of immigration judges by narrowing the circumstances under which they may terminate certain cases before them. He also certified another case to himself that has allowed asylum seekers to seek release from indefinite detention for over a decade – signaling his intent to overrule this decision.
This is the latest in a series of actions by Sessions to not only limit the independence of immigration judges, but also to narrow the circumstances under which immigrants and asylum seekers may seek relief from detention and deportation.
Matter of S-O-G and F-D-B: Limiting Termination to Facilitate More Deportations
Sessions used a strict and narrow interpretation of the law to tighten the circumstances under which an immigration judge may terminate an immigration case. In doing so, he overruled a previous decision made by a non-politically appointed immigration judge, and affirmed by the BIA, that terminated deportation proceedings to allow a family member of a U.S. citizen or lawful permanent resident to legally go through the process to obtain an immigrant visa. Instead, Sessions said her deportation proceeding must continue despite her lawful claim to a family-based visa.
Simultaneously, Sessions affirmed another case that allowed for the termination of deportation proceedings where DHS found another avenue for deportation – a 15-year-old order of removal issued in absentia.
In both of these cases, Sessions limited immigration judge independence in handling their own docket and did so in a way that implements a narrow and hard-line view of immigration regulations that favors increased deportation.
Matter of M-G-G: Signaling Intent to Increase Detention of Asylum Seekers
Again using his certification authority, Sessions is considering whether to overrule a 2005 decision which held that immigration judges may allow asylum seekers to be released from detention if they pass the credible fear determination, the first step in applying for asylum. Currently, immigration judges may hold bond hearings to determine whether asylum seekers may be released from detention while they go through the asylum process which can take several months and sometimes years. If Sessions overrules the 2005 decision, the number of detained asylum seekers will drastically increase by tens of thousands.
This is the Latest in a Series of Assaults on the Independence of the Immigration Court
- Ominous warning to new judges: On September 10, Attorney General Sessions welcomed 44 new immigration judges with an ominous warning that immigration judges must carry out their duties according to his orders and his supervision.
- Removing judges in specific cases and selecting replacement judges to pre-determine outcomes: In August, Tal Kopan of CNN reported that an immigration judge assigned to a case for many years was replaced with another judge from Washington who quickly and with little process ordered the deportation of an immigrant. The National Association of Immigration Judges (NAIJ) filed a grievance with the Department of Justice on this case, asking it “to acknowledge in writing that it will not interfere with the ‘decisional authority’ of judges in the assignment or reassignment of cases.” The president of the NAIJ said of this case, “The decisional independence of immigration judges is under siege.” In addition, a group of retired immigration judges raised alarm bells in a letter saying, the court “removed the case from the docket of a capable judge in order to ensure an outcome that would please its higher-ups….[S]uch interference with judicial independence is unacceptable. As a democracy, we expect our judges to reach results based on what is just, even where such results are not aligned with the desired outcomes of politicians.”
- Using certification authority to make significant changes to immigration law: The politically-appointed AG recently exercised his extraordinary certification authority to proclaim that most asylum claims based upon domestic and gang violence should not be granted by judges and DHS employees, contrary to years of precedent developed by non-politically appointed judges. DHS recently implemented this poorly-reasoned opinion that may result in significant decreases in asylum protection for people escaping serious violence in their home countries.
- Other examples of limiting tools for judges to efficiently manage dockets: Using his certification authority, Sessions ended a long-used authority of immigration judges – administrative closure – to temporarily put on hold low priority cases that could often be resolved through other more rational, cost-effective, and humane means. Also making use of his power to certify cases, Sessions has narrowed the circumstances under which a judge may grant a continuance, instituting a multi-factor test that, as the American Immigration Lawyers Associations states, “places a heavy premium on ‘efficiency’ and ignores due process concerns.” As the president of the ABA stated, “The ability of judges to use their discretion to manage their dockets and caseloads in a manner that accomplishes this goal without fear of reprisal is essential to due process.”
- Attempts to end asylum claims without a hearing: In another certified case, Sessions vacated a decision by the non-politically appointed BIA that states that asylum applicants are “ordinarily entitled to a full evidentiary hearing” and may not have their cases dismissed based solely upon a written record.
- Immigration judge quotas: Sessions imposed case completion quotas for immigration judges earlier this year. As the president of the NAIJ stated, “We don’t know of any other court whose judges are subject to individual quotas and deadlines as part of performance reviews and evaluations….It could call into question the integrity and impartiality of the court if a judge’s decision is influenced by factors outside the facts of the case, or if motions are denied out of a judge’s concern about keeping his or her job.”
Ur Jaddou, Director of DHS Watch and former USCIS Chief Counsel, said: “The Attorney General is at it again. He is quietly and methodically abusing his authority to undermine what should be independent immigration judges and, in the process, changing long-held interpretations of immigration law to suit his political agenda on immigration. Congress must take note and take action to save the immigration court system and protect the rule of law.”