On November 7, 2018, President Donald Trump fired Jeff Sessions, the then-attorney general of the United States, as reported in USA Today. This was an unusual move, given the president's focus on immigration, and the positive impact that Sessions made in the area in the short period of time he served as the eighty-fourth attorney general of the United States.
The last, and most lasting impact that Sessions made in the area was in providing more resources to the immigration courts. As I stated in an October 2018 post:
In a July 2017 Backgrounder captioned "The Massive Increase in the Immigration Court Backlog, Its Causes and Solutions", I analyzed the reasons why the immigration court backlog, which had been identified by the Government Accountability Office (GAO) in a June 2017 report, had grown so large, more than doubling between FY 2006 and FY 2015. The first factor that I identified was a lack of resources, and in particular too few immigration judges (IJs). Attorney General Jeff Sessions has begun to deliver on his promise to fix this problem.
Sessions had promised in April 2017 that the Department of Justice (DOJ) would hire 125 new IJs in two years; it overachieved on that mark by three, hiring 128 new judges between January 2017 and September 28, 2018. More importantly, as a September 2018 Department of Justice (DOJ) press release stated:
In 2017, Attorney General Sessions announced a "streamlined hiring plan" promoting the use of clear deadlines and efficient hiring processes, resulting in a reduction of 74 percent in the time it takes to onboard immigration judges since then.
The effect of this hiring cannot be overstated. The biggest driver of the immigration court backlog, which is exploited by aliens seeking to remain in the United States, is a lack of resources, and in particular, IJs. By streamlining hiring and bringing on new immigration judges, Sessions helped to chip away at one of the biggest pull factors encouraging aliens to come to the United States: A belief that once they are here, they can remain indefinitely, even if they are caught by U.S. Immigration and Customs Enforcement (ICE) or by U.S. Customs and Border Protection (CBP).
The second most significant impact that Sessions made on immigration was in providing guidelines for IJs to follow in issuing continuances and adjudicating asylum applications, as well as ending the practice of "administrative closure", using his so-called "certification" authority.
In my March 6, 2018, post "An Unusual Amicus Argument", I quoted former Attorney General Alberto Gonzales and Patrick Glen, who described that authority in the Iowa Law Review:
An additional tool, used only twice by the Obama Administration, is the authority of the Attorney General to adjudicate immigration cases under the Immigration and Nationality Act [INA]. This authority can be exercised on the Attorney General's own motion, or through the referral of cases to him by the Board of Immigration Appeals [BIA] or the Secretary of the Department of Homeland Security. As has been recognized: "This certification power, though sparingly used, is a powerful tool in that it allows the Attorney General to pronounce new standards for the agency and overturn longstanding BIA precedent." This authority, which gives the Attorney General the ability "to assert control over the BIA and effect profound changes in legal doctrine," while providing "the Department of Justice final say in adjudicated matters of immigration policy," represents an additional avenue for the advancement of executive branch immigration policy that is already firmly embodied in practice and regulations.
Why is such review possible? As Gonzales and Glen explain, the BIA is simply the attorney general's "delegate", lacking "any independent statutory existence":
It is the Attorney General who was statutorily charged, and remains charged together with the Secretary of the Department of Homeland Security, with the administration and enforcement of the immigration laws. The Board has authority to act only to the extent that the Attorney General, by regulation, so provides.
One of the most crucial certification decisions involved continuances. As I stated in an August 2018 post:
In another move intended to reduce the backlog facing the immigration courts, Attorney General Jeff Sessions issued a decision on August 16, 2018, in Matter of L-A-B-R-, in which he established bright-line rules for immigration judges to follow in considering continuances under 8 C.F.R. § 1003.29. That regulation states: "The Immigration Judge may grant a motion for continuance for good cause shown."
In his August 2018 decision, the attorney general logically explained that:
When a respondent requests a continuance to accommodate a collateral proceeding, the good-cause inquiry thus must focus on whether the collateral matter will make a difference in the removal proceedings — that is, "whether a continuance is likely to do any good." ... This will turn out to be true only if the respondent receives the collateral relief and that relief materially affects the outcome of respondent's removal proceedings.
Therefore, the attorney general held, continuances should not be granted where the respondent's "collateral pursuits are merely speculative."
In addition, he held, "immigration judges must also consider any other relevant factors," although the attorney general admitted that not every good-cause factor could be identified. He stated, however, that "germane secondary factors may include ... the respondent's diligence in seeking collateral relief, [the Department of Homeland Security's (DHS's)] position on the motion for continuance, and concerns of administrative efficiency."
Such guidance is again crucial to reducing the immigration-court backlog, because of the effect that the continuances have on case completions. As I stated in a March 2018 post:
In a June 2017 report, the Government Accountability Office (GAO) found that between FY 2006 and FY 2015, the immigration court caseload increased 44 percent "due to an increase in the case backlog, while case receipts remained steady." Significantly, it found:
The increase in the immigration court case backlog occurred as immigration courts completed fewer cases annually. Specifically, the number of immigration court cases completed annually declined by 31 percent from fiscal year 2006 to fiscal year 2015 — from about 287,000 cases completed in fiscal year 2006 to about 199,000 completed in 2015.
Fewer cases were likely adjudicated, at least in part, because case completion times ballooned during this period. GAO determined that the median initial case completion time — that is, the period between the filing of the charging document (known as a Notice to Appear, or "NTA") and the point at which the immigration judge makes a final decision — increased more than 500 percent, "from 43 days in fiscal year 2006 to 286 days in fiscal year 2015."
The number of continuances granted between FY 2006 and FY 2015 also increased significantly, as did the number of cases with multiple continuances. GAO concluded that "the use of all types of continuances increased by 23 percent" during this period, and that "9 percent of cases completed in fiscal year 2006 experienced four or more continuances compared to 20 percent of cases completed in fiscal year 2015." Logically, GAO noted, "cases with multiple continuances took longer to complete than cases with no or fewer continuances."
Curbing the number of continuances, therefore, is critical to reducing the backlog before the immigration courts.
By putting meat on the bones of the regulatory phrase "good cause shown", Sessions gave IJs crucial tools that they needed to gain control of their dockets. As the Supreme Court recognized in INS v. Doherty, "in a deportation proceeding ... as a general matter, every delay works to the advantage of the deportable alien who wishes merely to remain in the United States."
In the absence of such guidance, it was very difficult for IJs to deny continuances, and very easy to grant them, as I explained my Backgrounder "The Massive Increase in the Immigration Court Backlog":
If an alien is unrepresented, the court will generally grant at least one continuance to find counsel. If the court subsequently goes ahead thereafter, notwithstanding the request of the alien for an additional continuance to find counsel, the case will likely be remanded, and the IJ runs the risk of being accused of denying due process. Similarly, an IJ who refuses to grant multiple continuances to an alien to file an application for relief, or to submit evidence in a case, may be accused by a reviewing court of violating due process. In such an instance, the IJ's reputation would be besmirched, and the BIA or circuit court would simply remand the case, in essence granting the continuance requested.
If an IJ grants a continuance, on the other hand, there is little downside for the court. Attorneys for the government (who work for U.S. Immigration and Customs Enforcement (ICE)) have in the past been limited by policy in the number of appeals that they are allowed to take. Moreover, an appeal from a continuance would be "interlocutory" in any case, that is, it would ask "the [BIA] to review a ruling by the Immigration Judge before the Immigration Judge issues a final decision." As the BIA has often held, however: "To avoid piecemeal review of the myriad questions that may arise in the course of proceedings ... [it does] not ordinarily entertain interlocutory appeals." For these reasons, and to conserve resources, ICE attorneys rarely appeal continuance grants, even if they don't like them: As GAO noted, government attorneys to whom it spoke told it "that granting multiple continuances in cases resulted in inefficiencies and wasted resources such as [those] attorneys having to continually prepare for hearings that continued multiple times."
Similarly, Sessions also provided IJs and asylum officers with clear guidance on adjudicating asylum claims related to harm arising from purely personal criminal conduct in Matter of A-B-. As I explained in a June 2018 post:
In Matter of A-B-, the attorney general returned to fundamental issues of asylum law, including what "persecution" is, how a "particular social group" is defined, and the requirement that there be a "nexus" between the social group identified and the persecution that was purportedly inflicted or is feared.
Or, as I put in the caption of that post: "AG Provides Guidance for Crime-Based Asylum Claims ... by Applying Current Law." In Matter of A-B-, Sessions did not really create new standards for asylum relief; on the contrary, he reached the conclusions that he did by applying the prevailing law that was applied to identifying "particular social groups" for asylum purposes generally.
Given the massive numbers of aliens claiming credible fear from the so-called Northern Triangle of Central America (NTCA) countries of El Salvador, Honduras, Guatemala (which I discussed in a November 2018 post), and the fact that many if not most of those claims related to harm inflicted by private criminal actors, such guidance is crucial to bringing the rate at which asylum officers find credible fear (89 percent of all cases in which decision is issued on the merits) in line with the rate at which IJs actually grant asylum to aliens who have passed credible fear from NTCA countries (23 percent of cases where those aliens' claims were adjudicated on the merits).
Sessions also used his certification authority to end the use of a court tool that hid the actual number of cases in the backlog, administrative closure. I explained "administrative closure" in a January 2018 post:
The [BIA] has described it as "a procedural tool created for the convenience of the Immigration Courts and the Board." As the BIA explained:
Administrative closure, which is available to an Immigration Judge and the Board, is used to temporarily remove a case from an Immigration Judge's active calendar or from the Board's docket. In general, administrative closure may be appropriate to await an action or event that is relevant to immigration proceedings but is outside the control of the parties or the court and may not occur for a significant or undetermined period of time.
This procedure is purely a matter of administrative convenience, and does not result in a final order in the matter.
Under the Obama administration, administrative closure became a back-door amnesty by which cases that did not meet the administration's so-called "priorities" could be removed from the active docket and placed in a suspended status, effectively sweeping them under the carpet and hiding the true size of the backlog. More than half of the 350,000 administratively closed cases were closed in just four years of that administration, according to the ABA Journal. And, as the American Immigration Council stated:
Administrative closure was used extensively as a form of prosecutorial discretion during the later years of the Obama Administration; in particular, [DHS] often joined in motions to administratively close cases that did not fall within its enforcement priorities.
Sessions effectively ended the practice on an ongoing basis in Matter of Castro-Tum. As he stated:
I hold that immigration judges and the Board do not have the general authority to suspend indefinitely immigration proceedings by administrative closure. Accordingly, immigration judges and the Board may only administratively close a case where a previous regulation or a previous judicially approved settlement expressly authorizes such an action.
In order for DOJ to accurately identify the resources that it needs to carry out its mission, it is crucial that the courts' dockets accurately reflect the number of cases that are pending. Moreover, once charges are filed, it is incumbent on IJs to complete those cases as quickly as possible, consistent with due process; justice requires no less, and allowing an IJ to administratively close a case involving a removable alien with no relief over the objection of the government essentially gives the court "prosecutorial discretion" over the matter, reversing the role of prosecutor and adjudicator.
Finally, Sessions cast light on the fact of fraud in the asylum process. In an October 2017 speech at the Executive Office for Immigration Review (EOIR), the DOJ component with jurisdiction over immigration courts and the BIA, Sessions explained:
We have a generous asylum policy that is meant to protect those who, through no fault of their own, cannot co-exist in their home country no matter where they go because of persecution based on fundamental things like their religion or nationality. Unfortunately, this system is currently subject to rampant abuse and fraud. And as this system becomes overloaded with fake claims, it cannot deal effectively with just claims. The surge in trials, hearings, appeals, bond proceedings has been overwhelming.
This is how it works. The Department of Homeland Security is tasked in the first instance with evaluating whether an apprehended alien's claim of fear is credible. If DHS finds that it may be, the applicant is placed in removal proceedings and allowed to present an asylum claim to an immigration judge.
If, however, DHS finds that the alien does not have a credible fear, the alien can still get an immigration judge to review that determination. In effect, those who would otherwise be subject to expedited removal get two chances to establish that their fear is credible.
But in 2009, the previous Administration began to allow most aliens who passed an initial credible fear review to be released from custody into the United States pending a full hearing. These changes — and case law that has expanded the concept of asylum well beyond Congressional intent — created even more incentives for illegal aliens to come here and claim a fear of return.
The consequences are just what you'd expect. Claims of fear to return have skyrocketed, and the percentage of claims that are genuinely meritorious are down.
The system is being abused to the detriment of the rule of law, sound public policy, public safety, and of just claims. This, of course, undermines the system and frustrates officers who work to make dangerous arrests in remote areas. Saying a few simple words is now transforming a straightforward arrest and immediate return into a probable release and a hearing — if the alien shows for the hearing.
The system is being gamed. The credible fear process was intended to be a lifeline for persons facing serious persecution. But it has become an easy ticket to illegal entry into the United States.
We also have dirty immigration lawyers who are encouraging their otherwise unlawfully present clients to make false claims of asylum providing them with the magic words needed to trigger the credible fear process.
In a December 2015 GAO report, it was noted that: "As of March 2014, a joint fraud investigation led by the U.S. Attorney's Office for the Southern District of New York, resulted in charges against 30 defendants, including 8 attorneys, for their alleged participation in immigration fraud schemes." Nearly 4,000 individuals who were connected to these attorneys and preparers have been granted asylum.
Our asylum laws are meant to protect those who because of characteristics like their race, religion, nationality, or political opinions cannot find protection in their home countries. They were never intended to provide asylum to all those who fear generalized violence, crime, personal vendettas, or a lack of job prospects. Yet, vague, insubstantial, and subjective claims have swamped our system.
Under current practice, there is no cost or risk for those who make a baseless asylum claim. There is no fee associated with an asylum application, and the applicant routinely is provided work authorization once an application has been pending at least six months, regardless of the merit of the application.
Current case law requires a court hearing on every asylum application, even if it is obviously without merit. Denying an asylum application is difficult to prove — and so it seldom happens. There is no way to reasonably investigate the claims of an asylum claimant in their own country. And flawed confidentiality provisions inhibit investigations into possible fraud schemes.
That's why there's a common, fatalistic refrain you'll hear from immigration judges and immigration enforcement that "the case isn't over until the alien wins." There are almost no costs, but potentially many rewards, for filing a meritless asylum application.
This is a compassionate country —and lawfully admits more immigrants than any country in the world. But we must recognize that our generous system is being terribly abused.
Much of the current debate over credible fear arose from the points that Sessions made in that speech.
The president made the immigration system, and in particular fixing the immigration system, a key point in his election campaign. Attorney General Jeff Sessions helped President Trump to carry out many of the promises he made to fix that system.