Jeff Sessions exercises little-used power to assign immigration cases to himself—and overturns precedent.
Before his resignation, former U.S. Attorney General Jeff Sessions invoked a rarely used power of Attorneys General to refer immigration cases to themselves—even after the Board of Immigration Appeals (BIA) (the quasi-appellate body for the immigration court system) has decided the case—a move that allowed him to overturn years of immigration precedent. Sessions’s actions in these self-referred cases earned the disapproval of many, including the National Association of Immigration Judges (NAIJ), whose president A. Ashley Tabaddor described one such case as a “step by step encroachment” into judicial authority by the Department of Justice (DOJ).
- Sessions bars asylum claims based on domestic violence or gang violence. In Matter of A-B-, Sessions intervened to overturn a 2016 BIA decision holding that “married women . . . who are unable to leave their relationship” and who are victims of domestic violence constitute a “social group” for asylum eligibility purposes. In vacating the BIA decision, Sessions created new precedent that “generally, claims by aliens pertaining to domestic violence or gang violence . . . will not qualify for asylum.” In a joint statement, 15 retired immigration judges and former members of the BIA called the move “an affront to the rule of law." In December, U.S. District Judge Emmet G. Sullivan invalidated Sessions’s guidance to immigration officials, holding in a 107-page opinion that his new rule was “arbitrary and capricious” and decreeing that some of those who had already been removed under its parameters be brought back to the United States and permitted to make their cases again.
- Department of Justice restricts independence of immigration judges to administratively close cases, exacerbating a ballooning case backlog. In Matter of Castro-Tum, Sessions revoked immigration judges’ and the BIA’s general authority to administratively close cases without specific authorization from DOJ. (Administratively closed cases are put on indefinite hold and removed from the active court docket, often while the respondent is waiting for the resolution of a visa application.) By December, the backlog of cases in immigration court had grown to more than 800,000. To avoid overwhelming immigration courts, DOJ initially allowed most cases already administratively closed to remain closed unless there was a specific request to recalendar the case. However, in future cases, the new precedent will directly curb the independence of immigration judges to manage their dockets, and ICE has begun issuing blanket requests to recalendar administratively closed cases. If the more than 300,000 administratively closed cases are added back to the docket, the backlog of pending cases would exceed one million.
- Department of Justice removes and replaces immigration judge who made unfavorable ruling. DOJ worked to influence immigration cases in other ways as well. In August, the NAIJ filed a formal grievance over DOJ’s removal and replacement of Judge Steven Morley, the original judge in Matter of Castro-Tum, who had used administrative closure in a case where the government could not prove that it had provided adequate notice of the hearing to the respondent, an unaccompanied child who had not appeared in court. At the request of an attorney acting as a “friend of the court,” the judge had granted a continuance for purposes of trying to locate Castro-Tum and ensure he had received proper notice to appear. Morley was abruptly removed from the case and the Executive Office for Immigration Review sent a new judge to oversee a single hearing in which Castro-Tum, who was not present, was ordered to be deported without any additional investigation of the notice. The NAIJ grievance claims that the government’s action to replace Morley “subverted the judicial process, undermined his independence, and impugned his competence and integrity, all to obtain a particular outcome in the case.” DOJ also removed an additional 60 cases from Judge Morley’s docket.
- Department of Justice establishes a new quota system for immigration judges—and ties it to their performance ratings. In early April, DOJ issued a new directive regarding case completion goals for immigration judges, a strategy purportedly aimed at aggressively clearing a backlog of what was at the time more than 700,000 cases. Judges will now be required to clear at least 700 cases a year—just under three per day—to receive a “satisfactory” performance rating. The new directive sets up additional benchmarks, including requirements to issue at least 85 percent of decisions on legal motions within 20 days and 85 percent of final decisions within 10 days of a hearing. Judges will also be subject to penalties if they refer more than 15 percent of certain cases to higher courts or schedule hearing dates too far apart on their calendars.
The NAIJ asserts that the quotas and deadlines will interfere with judicial independence and impede justice and due process. Judge Tabaddor told the Senate Judiciary Committee that the quota system could invite legal challenges and create incentives for appeal, further slowing the system, by “call[ing] into question the integrity and impartiality of the court if a judge’s decision is influenced by factors outside the facts of the case, or . . . concern about keeping his or her job.”