Judicial Independence in Immigration Courts are Besieged by Jeff Sessions and DOJ.

Tearing families apart isn’t the only way in which Attorney General Jeff Sessions attacks the American immigration system.  Since taking office, Sessions and the Justice Department have been interfering with judicial independence in immigration courts.  In unprecedented ways, Sessions has exercised his authority to further his anti-immigration agenda and reshape how the United State determines whom it will shelter.

The Latest:

Reynaldo Castro-Tum, a Guatemalan man, was scheduled to appear in a Philadelphia immigration court but had repeatedly failed to turn up.  The presiding judge, Steven Morley, wanted to determine whether Castro-Tum had received adequate notice, and rescheduled a hearing for late July.  But instead of waiting for that appointment, the Justice Department sent a new judge to take over the case.  Judge Deepali Nadkarni subsequently ordered Castro-Tum deported.  The move sparked immediate outcry: The National Association of Immigration Judges filed a formal grievance, and 15 retired immigration judges released a public statement condemning the action as ‘unacceptable.’

Some Background:

Unlike most courts, immigration courts judges are DOJ employees.  The Attorney General, Jeff Sessions, is in charge of hiring judges, evaluating their performance, and even firing them.  He can also refer cases to himself and overrule previous judges’ decisions.  In a little more than six months, Sessions has issued four consequential decisions on immigration cases he referred to himself, in some instances overturning decades of legal precedent.  Attorneys-General under the Obama administration used that power only four times over eight years.

How is Sessions attacking immigration courts?

1) Asylum application is much more difficult.

In June, Sessions overturned a decision granting asylum to a Salvadoran woman who had escaped an abusive husband.  Sessions used the case as an opportunity to declare that migrants can’t generally be given asylum based on claims of domestic abuse or gang violence.  In a statement, a group of former immigration judges described this decision as “an affront to the rule of law,” pointing out that it challenges longstanding protections for survivors of gender-based violence.”

2) Judges are seeing their authority to manage cases dramatically curbed.

Sessions has restricted judges’ use of administrative closures, a common step to set aside thousands of cases where immigrants had no criminal background or had been in the country for many years with strong family ties.  This restriction will likely result in an enormous increase in court backlog and create further uncertainty for defendants.

Moreover, the Justice Department announced new performance metrics for judges based on case quotas.  From October 1st, judges would need to complete at least 700 cases a year and close them within a certain time period, in order to receive a satisfactory performance review.  The new policy would place substantial pressure on judges to quickly complete cases and likely lead to more deportation.

In addition, Sessions has limited the ability for judges to issue continuances to postpone or reschedule removal cases.  The continuances – traditionally giving defendants much-needed time to resolve pending applications of immigration benefits – can only be issued under a ‘good cause’ standards.  Not only is this a serious blow to judicial independence, it could also result in immigrants being deported while awaiting an immigration benefits that would grant them legal status.

3) Sessions is replacing existing judges with like-minded allies.

In this political climate, there has been a ‘tsunami’ of retirements of immigration judges since the administration took over.  Given the exits, the Attorney General has enjoyed ample opportunity to reshape the courts through new personnel.  Since January 2017, the DOJ has faced allegations of politicized hiring.  Appointment practices under Sessions have largely favored judges with prior law enforcement experience over those with more diverse backgrounds.