As part of the Trump Administration’s focus upon our Nation’s Immigration system we have seen workplace raids conducted by Immigration and Customs Enforcement, the Presidential Travel Ban and proposed rules affecting Permanent Residency for those that have sought or are likely to seek public benefits; just to name a few. However, while not as publicized as those actions, the current Administration, by and through Attorney General Jeff Sessions, have also conducted a renewed focus on the U.S. Immigration Courts through various means.
With a current nationwide backlog of an estimated 730,000 pending cases, AG Sessions has taken it upon himself to change the Immigration Court system. On March 7, 2018, under the authority vested to him pursuant to 8 CFR §1003.1(h)(1)(i), he directed the Board of Immigration Appeals (BIA) to refer for his review a case arising from the Charlotte Immigration Court. The case involved a victim of Domestic Violence from El Salvador who sought Asylum due to her “particular social group.” Case precedent, specifically Matter of AR- C-G- et al 26 I&N Dec. 388 (BIA 2014), provided protection for those seeking refuge based on Domestic Violence in their home countries. Here, the Immigration Judge denied her request for Asylum and Respondent appealed. The BIA, citing to Matter of A-R-C-G-, sustained the appeal, granted her request for Asylum and remanded the case back to the Immigration Judge to comply with required background checks as required under 8 CFR §1003.1(d)(6).
However, upon remand, and after security checks were cleared, the Immigration Judge … did not render a decision. Instead, he certified the case back to the BIA for, what he perceived, was intervening case law arising from the Fourth Circuit. Once jurisdiction returned to the BIA, Attorney General Sessions began his review.
On June 11, 2018, Attorney General Sessions issued his decision in Matter of A-B-, 27 I&N Dec. 316 (A.G. 2018). In Matter of A-B-, the Attorney General, not only streamlined what “membership in a particular social group” should now be, he specifically targeted the holding in Matter of AR- C-G-. Explicitly, he stated that A-RC- G- “was wrongly decided,” “should not have been issued” and that the decision was issued “contrary to the appropriate way that the Board has in the past, and must in the future, approach such asylum claims.” As a result, in the opening section of his decision, stated “I overrule that case and any other Board precedent to the extent those other decisions are inconsistent with the legal conclusions set forth in this opinion.” Effectively, Attorney General Sessions stripped away precedent case law without any check to his authority.
Matter of A-B- was not his only fundamental change. Before Matter of A-B-, he issued Matter of Castro-Tum 27 I&N Dec. 271, 294 (A.G. 2018) stripping Immigration Judges’ authority to administratively close proceedings for various reasons; a tool often used by Immigration Judges to remove active cases from their dockets or temporarily pause proceedings often times to allow the Respondent to seek collateral relief or for purposes of judicial economy. Then, he implemented a quota program for Immigration Judges where to get a “satisfactory” rating on their 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. This move has created a fear that judges will speed through cases and undermine Respondent’s constitutionally guaranteed right to due process. Then, as recently as September 12th of this year, Attorney General Sessions, speaking before 44 new Immigration Judges, blamed Immigration Attorneys for part of the Nation’s Immigration backlog. According to AG Sessions “good lawyers using all their talents and skills work every day … like water seeping through an earthen dam to get around the plain words of (immigration law) to advance their clients’ interests.”
So, where does the problem lie? Unlike Judges in the Judicial Branch, who are given authority and independence under Article III of the Constitution, Immigration Judges, whom are Administrative Law Judges under the Administrative Procedures Act of 1946, work within the Department of Justice which is led by Attorney General Sessions. Put in other words, they work under, and for, AG Sessions. In response these changes, the Immigration Judge’s Union has begun to fight back by filing grievances and calling for independence again. According to the president of the National Association of Immigration Judges the Honorable Ashley Tabaddor “the only durable solution is to get the court away from the Justice Department. Let it be a real court. Let it be real judges, so that we can do what we’re supposed to do.” The question remains, will such a change actually happen or instead will change continue to happen around our Nation’s Immigration Judges? Aleksander Cuic