By Andrew Soboeiro
From administrative backlogs to ICE violence to executive abuses of power, the modern immigration system is marked by serious structural problems. And while many of these problems predate the current president, the Trump Administration has tended to exacerbate them. A recent decision by Attorney General Jeff Sessions is a powerful case in point. Facing massive immigration backlogs, Sessions has decided to reopen hundreds of thousands of immigration cases. In this way, not only will he worsen the backlogs, but he risks making immigration courts less effective and undermining judicial independence, with severe consequences for the entire country.
Closure in Immigration Cases
To understand Sessions’ recent move, it’s important to be familiar with closure in immigration proceedings. Immigration courts currently face a backlog of more than 700,000 cases, and cannot possibly hear all of them while also dealing with new cases. To ease this burden, the Obama Administration directed prosecutors and judges to focus only on immigrants who had serious criminal records. One of the ways President Obama did this was by asking to have deportation cases closed if the immigrant in question had a strong case for asylum or some other form of legal status.
Under the Obama Administration, immigrants who faced deportation but had serious chances of obtaining legal status were offered the opportunity to close their cases. If they accepted, they would be safe from deportation. More than 350,000 immigration cases were closed in this way. Immigration judges and Obama Administration prosecutors thus substantially reduced the courts’ backlogs while offering a reprieve to countless immigrant families.
A Shift Under Sessions
Sessions has considered scaling back closure for some time. Last January, he expressed concerns that immigration judges did not have the authority to close cases indefinitely and that this practice was making immigration courts less efficient. But it was not clear that the Attorney General was actually going to reopen closed cases, in part because doing so would put more strain on an already overloaded immigration system.
It seems Sessions is willing to strain the system. On Thursday, May 17th, he ruled that the current closure practice was illegal and directed immigration judges to stop using it. He issued this ruling as part of the Matter of Castro-Tum, a case he referred to himself as part of an effort to influence immigration law precedents. This is in spite of the fact that it was not typical of immigration cases. In this matter, an immigrant named Reynaldo Castro-Tum was mailed four Notices of Hearing but failed to appear for them, so the judge decided to close his case. While the judge’s decision is questionable, it is at worst a minor administrative error, and not evidence of a fundamental problem with closure. But in spite of this, Sessions is using it to rule on the practice in general.
While his directive will not immediately reopen all 350,000 cases, it does imply that the court must eventually consider each of them. This throws into doubt the futures of hundreds of thousands of immigrants and their families.
In the short term, Sessions’ decision will likely put 350,000 immigrants at risk of deportation. After having been told that they could stay in the United States, these individuals will have to defend themselves in court. Most of them have a fighting chance to stay, since they wouldn’t have been offered closure unless they had a strong case for legal status. But since Sessions is dumping 350,000 more cases on the courts while simultaneously pressuring judges to rule more quickly, there’s a risk that many judges will rush through these cases and end up deporting people who should rightfully be allowed to stay.
Not only does this directive harm immigrants, but it’s likely to make Federal authorities less effective. The people who chose to have their cases closed were trusting the Federal government not to deport them. Sessions has now betrayed their trust. He is thus sending a message to all immigrants that it is unwise to cooperate with immigration enforcement authorities or any other government officials. This will make those officials less effective, limiting their ability to address real threats and keep the public safe.
Finally, Sessions’ decision risks undermining due process. Many legal experts worry that by denying judges the right to close cases as they see fit, Sessions is making them less independent. These experts include not just immigration lawyers, but even retired immigration judges and former Board of Immigration Appeals members. They worry that Sessions is detracting from the “inherent authority granted to immigration judges,” thereby making those judges subservient to the political aims of the Executive Branch. The results should be concerning to all who value freedom and democracy.
For more immigration news or legal insight, contact Vigoda Law Firm today at 919-307-7817.