Joshua Briesblatt over at Immigration Impact gives us this interesting nugget from the Sessions Confirmation hearing:
“Lastly, Senator Grassley asked Senator Sessions if he would review all the decisions coming out of the Board of Immigration Appeals (BIA). The Attorney General has the authority to unilaterally revoke decisions of the BIA. Much of current asylum law is based on decisions by the BIA including those that determine what groups must receive protection from persecution in their home. As Attorney General, he would have the authority to make asylum vastly more difficult for those around the world who flee to the United States to avoid violence. Senator Sessions said that he “does appear” to have that authority and that he has “not thoroughly studied” the issue.”
Interesting. Was Chairman Grassley (R-IA) actually trying to suggest that this is something Senator Sessions should undertake as AG? Actually, I think that if and when he gets around to studying it, AG Sessions will find that he does, in fact, have authority to review any BIA decision. But, if he reviewed all of them — that would be about 35,000 per year — I don’t think he’d have much time left over for anything else, including sleeping and eating. Most AG’S review, at most, one or two BIA decisions per year.
Still, it indicates a fundamental due process problem with having the Immigration Courts and the BIA lodged in the Department of Justice. As the chief law enforcement officer and litigator for the U.S., the Attorney General has no business reviewing any BIA decision — it’s a colossal conflict of interest, even by today’s evolving ethics standards. That’s why the Immigration Court System must, at some point, become truly independent which means removing it from the DOJ and establishing it as some type of independent entity — an independent agency or and Article I or Article III Court. Until then, true due process in the Immigration Courts may be elusive.
Notably, notwithstanding lots of recent publicity about the exploding docket and the problems crippling the nation’s Immigration Courts, neither Chairman Grassley nor Senator Sessions seemed to be particularly “up” on the issue or to have much idea of the reality of life in the Immigration Courts. That’s not very encouraging.