Jeff Sessions warned Justice Department officials not to recoil from congressional demands for information about alleged wrongdoing. | Steve Helber/AP Photo
It is a little difficult to take Vox.com all that seriously. This, after all, is the outlet that wondered why we bother with time zones and claimed that there was a bridge going over Israel connecting Gaza and the West Bank…that the rascally Jews arbitrarily blocked just to inconvenience the hardworking Palestinians.
Hence our famous warning sign:
But when they get to the point of besh**ting themselves–and the madness spreads across the left-o-sphere–over some pending action by the administration, it is worth taking the time to read.
The fate of tens of thousands of immigrants’ court cases could rest in the hands of Attorney General Jeff Sessions.
That’s not a metaphor. Sessions has stepped into the immigration system in an unprecedented manner: giving himself and his office the ability to review, and rewrite, cases that could set precedents for a large share of the hundreds of thousands of immigrants with pending immigration court cases, not to mention all those who are arrested and put into the deportation process in future.
He’s doing this by taking cases from the Board of Immigration Appeals — the Justice Department agency that serves as a quasi-appellate body for immigration court cases — and referring them to himself to issue a decision instead.
To a lot of us on the right, this is a shock. This has become my image of Sessions:
The background is that immigration judges are Article II officials. That is, they are appointed by and respond to the executive branch. In the case of immigration judges, they are civil service hires in the Justice Department. Immigration judges have their performance standards set by DOJ (their quota is 700 cases/year with a max overturn rate of 15%). The final authority on immigration cases, acting as a one-man Supreme Court, is the Attorney General. He has the authority to rule on individual cases that he selects. The claim is that Sessions has picked a very small number of cases which, if reversed or overturned, will fundamentally change the immigration court system.
Can judges remove cases from the docket? In the case Sessions referred to himself in January, Matter of Castro-Tum, he asked the question of whether judges are allowed to use something called “administrative closure” — to remove a case from the docket, essentially hitting the pause button on it indefinitely.
If Sessions changes this, immigration judges will no longer have the authority to simply ignore a case in perpetuity.
Are victims of “private violence” eligible for asylum? In a March self-referral, Sessions asked whether a judge should be allowed to grant asylum to a domestic violence survivor because she was a victim of “private violence” — violence that wasn’t state-based. Theoretically, asylum is supposed to be available only for victims of certain types of persecution, but some judges have found that women in some countries who experience domestic violence are being persecuted for membership in the “social group” of being women.
His decision here will decide whether claiming domestic violence is sufficient grounds for asylum.
Can an immigration judge wait for an application to be approved? In his other March self-referral, Sessions appears to be taking aim at “continuances” — a practice of judges kicking the can down the road in a case by scheduling it for the next available court date sometime in the future (often several months) in order for something else to be prepared or resolved.
Another means used by some judges and lawyers to avoid ever having a decision in a case.
And there is more:
And Sessions isn’t simply planning to issue these rulings and walk away. His office is planning to give itself even wider power over the immigration court system. A notice published as part of the department’s spring 2018 regulatory agenda says, “The Department of Justice (DOJ) proposes to change the circumstances in which the Attorney General may refer cases to himself for review. Such case types will include those pending before the Board of Immigration Appeals (BIA) but not yet decided and certain immigration judge decisions regardless of whether those decisions have been appealed to the BIA.”
In other words, even when a DOJ judge makes a ruling in an immigrant’s favor and ICE prosecutors don’t try to appeal the ruling, the attorney general’s office could sweep in and overrule the judge.
If all this is true, the immigration adjudication process is about to become a lot more stringent and expeditious. Does it go too far? I don’t know. The proof of the pudding, as they say, is in the eating. But right now the susceptibility of the immigration system to being gamed is not serving us well.