If “rule of law” meant anything other than “people with power should have a free hand to do what they like to people without power”, the rule-of-law people would be screaming themselves blue over this. As if we needed any further proof they’re acting in bad faith…
… 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.
Sessions isn’t giving lawyers much information about what he’s planning. But he’s set himself up, if he wants, to make it radically harder for immigration judges to push cases off their docket to be resolved elsewhere or paused indefinitely — and to close the best opportunity that tens of thousands of asylum seekers, including most Central Americans, have to stay in the United States. And he might be gearing up to extend his involvement even further, by giving himself the authority to review a much bigger swath of rulings issued in the immigration court system…
Immigration courts aren’t part of the judicial branch; they’re under the authority of the Department of Justice. Their judges are supposed to have some degree of independence, and some judges are certainly harsher on immigrants and asylum seekers than others. But their decisions are guided by precedent from the Board of Immigration Appeals, which is basically the appellate court of the immigration system and which also answers to the DOJ and the attorney general.
If the attorney general doesn’t like that precedent, he has the power to change it — by referring a case to himself after the Board of Immigration Appeals has reviewed it, issuing a new ruling, and telling the immigration courts to abide by the precedent that ruling sets in future…
In theory, Sessions’s office is supposed to make its decision based on amicus briefs from outside parties, as well as the immigrant’s lawyer and the Immigration and Customs Enforcement (ICE) prosecutor. But advocates and lawyers’ groups say they can’t file a good brief if they don’t know what, exactly, the cases Sessions is getting involved in actually are — and Sessions is withholding that information.
In one of the cases Sessions has referred to himself, the DOJ refused to provide a copy of the decision that Sessions is reviewing or any information about where the case came from and who the immigrant’s lawyer was. In another case, congressional staff happened to find the decision under review on a DOJ website days before the deadline for amicus briefs.
That opacity makes it basically impossible to know whether Sessions is planning to issue relatively narrow rulings or very broad ones. In the case in which the decision under review was discovered by congressional staffers, both the immigrant’s lawyer and the Department of Homeland Security (serving as the prosecution) asked Sessions’s office to clarify the specific legal question at hand in the review — in other words, to give them a hint of the scope of the potential precedent being set. They were denied…
Sessions and the Trump administration claim they’re trying to restore efficiency to a backlogged court system that poses the biggest obstacle to the large-scale swift deportation of border-crossing families and to unauthorized immigrants living in the US. But lawyers are convinced that Sessions’s diktats, if they’re as broad as feared, would just gum up the works further.
“If the attorney general were seriously concerned about the backlog, as opposed to a desire for quick deportations, he would be focused on transferring as many cases away from” immigration judges as possible, attorney Jeremy McKinney told Vox — not forcing them to keep cases on their docket that they would rather close, or that could be rendered moot by other decisions. It’s “not smart docket control.”
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 the Attorney General believes this is an improvement over the current system, why is he so determined to keep the mechanisms secret?
I personally suspect Mr. Sessions’ ambitions have something to do with last weekend’s flurry of reports about “President” Trump screaming at Homeland Security Secretary Nielsen. If the blond chick can’t throw enough brown people out of “our country” fast enough, Judge Jeff assures Lord Smallgloves, then by Christianist Jeebus he’ll roll up his sleeves and git ‘er done. It’s not as if Trump calling him nasty names has deterred his zeal for enforcing the “Just Us” of Justice in the past…
