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Does Jeff Sessions Understand Immigration Proceedings?

JURIST Guest Columnist Karla McKanders of the Vanderbilt University Law School discusses a recent decision issued by the Attorney General and its implications on the judicial immigration process...

Yesterday, in Matter of Castro-Tum, the Attorney General issued a decision unilaterally overturning two precedential immigration decisions; Matter of Avetisyan, 25 I&N Dec. 688 (BIA 2012), Matter of W-Y-U-, 27 I&N Dec. 17 (BIA 2017) and "any other Board precedent, to the extent those decisions are inconsistent with this opinion." These precedent decisions grant immigration judges the authority to administratively close cases that are on their docket.

The Attorney General relied on 8 C.F.R § 1003.1(h)(1)(i) to refer this case to himself. This rule grants him the authority to overrule or completely rewrite the decisions of both independent tribunals, the Board of Immigration Appeals and immigration courts, which are comprised of judges possessing greater subject matter expertise. His decision brings into question fundamental rule of law principles that underlie the American judicial system - judicial independence and adherence to precedent.

In Castro-Tum, Sessions invoked this regulation in the case of a 19-year-old who was not represented by a lawyer at the time where the immigration judge administratively closed his deportation case. Surprisingly, the immigration bar's attempts to locate the 19-year-old to help provide representation have been unsuccessful as the administration has acted under a veil of secrecy regarding persons directly impacted by its decision. Administrative closure is a standard procedure used by immigration judges to manage their dockets and temporarily stop removal proceedings.

Judicial independence to manage their own courtroom and dockets is essential to any court system. This rule should not exclude individual immigration judges who are already overloaded with an average caseload of 700 cases per year and on average waiting periods of up to 670 days for hearings with a wait time of up to five years for more active immigration court jurisdictions, according to Syracuse University TRAC system which monitors immigration statistics. The Castro - Tum decision strips immigration judges of an essential tool, judicial independence, which is a fundamental principle rule of law.

In the opinion, the Attorney General also states that even though the federal regulations provide immigration judges and the BIA with the authority to issue operational instructions and policy, this regulation does extend to an immigration judge's ability to administratively close cases to manage their dockets. Under this decision, the immigration judge is no longer a neutral adjudicator. In Avetisyan the Board of Immigration Appeals, the court most familiar with immigration law procedures and immigration judges' dockets, held that "a judge can listen to arguments for and against administrative closure and make a decision based on the merits of the argument." In the Castro decision, the Attorney General referred to himself a case where an immigration judge ordered administrative closure and refused to re-calendar the administratively closed case over the DHS trial attorney's objection. The judge and Board's decision is at the heart of judicial independence; judges are to hear arguments on both sides and make a decision whether an individual case warrants a form of relief or procedural remedy.

In April of this year, the National Association of Immigration Judges pushed back against Sessions' informal policy changes when he issued a memo providing that in immigration judges' performance evaluations, judges will be required to clear at least 700 cases a year and to have fewer than 15 percent of their decisions overturned on appeal. The judges warned that the Attorney General's quotas threatened "the professional integrity of the IJs and the political independence of the immigration courts, without actually producing the desired efficiency." Immigration judges have asserted that the Attorney General expects them to process serious cases with a limited budget and staff infamously echoed Immigration Judge Dana Marks 2010 remarks that "immigration judges often feel asylum hearings are 'like holding death penalty cases in traffic court.'" Even more troubling is the Attorney General's failure to defer to the Board of Immigration Appeals which has expertise in immigration matters.

The reality of the Attorney General's decision is that it will probably send an already backlogged and overworked system of judges into chaos. While the Attorney General proudly asserts that this decision weighs heavily in "strong public interest in bringing litigation to a close as promptly as is consistent with the interest in giving the adversaries a fair opportunity to develop and present their respective cases," stripping immigration judges of their discretion will not make the backlog go away in immigration court; it will exacerbate an already stressed system. In the jurisdiction where I practice, immigration judges have begun setting place holder dates on their calendars instead of administratively closing cases, contributing to the backlog and wasting court time and resources. Another adverse impact is that overworked immigration judges with large dockets often become exhausted and end up not fully evaluating each case before them in violation of an immigrant's procedural due process rights.

In this decision, the Attorney General, the highest office of attorney in the country, fails to acknowledge these basic principles upon which our system is based and he eviscerates Board of Immigration Appeals precedent. His actions demonstrate a failure to adhere to basic rule of law principles. His style signals fundamental shortcomings in our legal system, and one can only hope that his unprecedented actions may be moderated by our government's system of checks and balances through judicial review and/or legislative action.

Karla McKanders is a clinical professor of law at Vanderbilt University Law School. This academic year she started Vanderbilt's first Immigration Practice Clinic, in which students will represent indigent immigrants in humanitarian cases and her scholarship focuses on immigration federalism and international systems for processing refugees. Professor McKanders also teaches Refugee and Immigration Law.

Suggested citation: Karla McKanders, Does Jeff Sessions Understand Immigration Proceedings?, JURIST - Academic Commentary, May 21, 2018, http://jurist.org/forum/2018/03/Karla-McKanders-Sessions-Immigration-Proceedings.php

This article was prepared for publication by Ben Cohen, a Section Editor for JURIST Commentary. Please direct any questions or comments to him at commentary@jurist.org

Opinions expressed in JURIST Commentary are the sole responsibility of the author and do not necessarily reflect the views of JURIST's editors, staff, donors or the University of Pittsburgh.

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Academic Commentary is JURIST's platform for legal academics, offering perspectives by law professors on national and international legal developments. JURIST Forum welcomes submissions (about 1000 words in length - no footnotes, please), inquiries and comments at academiccommentary@jurist.org

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