In his latest move to strong-arm the immigration courts, U.S. Attorney General Jeff Sessions has restricted judges’ ability to terminate deportation cases when noncitizens are eligible for naturalization or other immigration statuses.
The ability of judges to use reasonable discretion to dismiss cases is essential for reducing the current backlog of 740,000 cases and for permitting due process.
For example, one case mentioned in Sessions’ decision involves a judge who terminated the case of a Brazilian woman who was in the process of obtaining a visa. She needed only to complete an interview with the Brazilian consulate. Since she was obviously motivated to continue the legitimate process of obtaining a visa, the judge determined that there “appears [to be] no apparent reason why this case should remain on the court[’s] busy docket when she is simply waiting for an interview abroad.”
But this kind of reasonable discretion apparently has no place in Sessions’ administration. Sessions disagreed with the judge’s decision, suggesting that the judge should have ordered the woman to leave the country, even though that might have risked her application being rejected.
As part of the new ruling, immigration judges may only terminate cases if the immigrant achieves or proves a legal right to stay in the U.S. during the proceedings, or if the Department of Homeland Security no longer wants to pursue the case.
“The Attorney General shows a fundamental disregard for immigration courts and judges, and their vital role in the administration of justice.” –AILA executive director Benjamin Johnson
Jeremy McKinney, treasurer of the American Immigration Lawyers Association (AILA), announced, “This decision demonstrates that the Attorney General wants every case to move as fast as possible toward deportation regardless of the specific circumstances. Our nation needs immigration judges to be fair and neutral when making life and death decisions.”
Sessions’ ruling is part of a systematic effort this year to control the immigration courts and limit their independence and decision-making abilities. So much for the GOP’s claims of “small government.”
Since May, Sessions ruled that judges do not have the right to “administratively close” cases – a misleading term that simply means the judge takes the case off the active docket if the defendant is waiting for the government to grant a green card or visa petition, for example. Sessions also limited judges’ ability to issue continuances, which is a way “to move an upcoming hearing from one scheduled date to another or to pause an ongoing hearing and move it to a future date.” And most notoriously, Sessions restricted judges’ ability to protect asylum seekers fleeing gang or domestic violence.
“By placing his thumb firmly on the scales of justice, the Attorney General shows a fundamental disregard for immigration courts and judges, and their vital role in the administration of justice,” said AILA executive director Benjamin Johnson in a statement. “Time and time again the Attorney General’s actions have shown us that an immigration court system housed under the Department of Justice cannot be one that guarantees due process.”
That’s why the AILA is calling on Congress “to create an independent Article I immigration court.” And the National Association of Immigration Judges is requesting congressional support for “the Immigration Court to be removed from the Department of Justice (a prosecutorial agency) into an independent court.”