Tal Kopan
Washington Correspondent | San Francisco Chronicle
Trump’s new attorney general launches fresh changes to immigration courts
By Tal Kopan
WASHINGTON — Attorney General William Barr is making his first major moves on immigration policy since his confirmation, setting up big changes for the courts that decide whether immigrants will stay in the U.S. or be deported.
The Justice Department is on the verge of issuing rule changes that would make it easier for a handful of appellate immigration judges to declare their rulings binding on the entire immigration system, The Chronicle has learned. The changes could also expand the use of single-judge, cursory decisions at the appellate level — all at the same time as a hiring spree that could reshape the court.
The Trump administration bills the moves as efficiency measures to help fix a delay-plagued immigration court system, at a time it is being inundated by asylum seekers at the southern border. Asylum cases can take years to complete, even those that are relatively straightforward.
But advocates for immigrants and attorneys who work in the system fear the efficiency tools could be used to dramatically reshape immigration law to fit President Trump’s political goals.
Trump has repeatedly railed against the immigration court system and suggested doing away with it entirely.
“Congress has to … get rid of the whole asylum system because it doesn’t work,” Trump said this month. “And frankly, we should get rid of judges. You can’t have a court case every time somebody steps their foot on our ground.”
Former Attorney General Jeff Sessions frequently cited the immigration-case backlog as dire and made reducing it a central focus of his tenure, though it grew by more than 100,000 cases in that time to its current total of more than 800,000. Recently ousted Homeland Security Secretary Kirstjen Nielsen complained that migrants with weak asylum cases were clogging the system, slowing immigration judges from handling legitimate claims.
Last week, the Justice Department revived a proposed regulation originally initiated during the George W. Bush administration to allow the 21-judge appeals court system that hears immigration cases more latitude to issue cursory opinions without explanation. It would also allow the court to set precedents with only a small minority of appeals judges participating, which could sharply accelerate the administration’s ability to make changes to immigration law that wouldn’t require congressional action.
The proposed regulation has been sent to the White House for review before being made final, according to a government database. The Justice Department declined to comment other than to confirm that it hopes to finalize the rule this year.
The administration’s moves are raising concerns among groups representing immigration judges, attorneys and advocates, following a series of earlier moves that Sessions undertook to overhaul the courts.
“All of these pieces add up to taking away due process and speeding people through to their deportation in some sort of assembly line substitute for justice,” said Jeffrey Chase, a former immigration judge and former senior legal adviser to the immigration appeals court.
The immigration courts operate under the Justice Department and are separate from the U.S. federal court system. The attorney general hires the judges who hear immigrants’ cases and their appeals, and he serves as a one-man Supreme Court with the authority to overturn any decision.
The proposed Justice Department regulation change has two main parts. First, it would allow the immigration courts’ appellate arm, the Board of Immigration Appeals, to more easily issue “affirmances without opinion.” Those affirmances are when a single appeals judge, rather than a three-judge panel, upholds a lower court’s deportation decision without issuing an explanation.
The appeals board would be allowed to consider limited resources — such as a shortage of staff or a crush of cases — to issue such cursory affirmances, something it cannot do now.
Second, the regulation would change the way the appeals board can make its decisions public — the step that gives those decisions the force of binding precedent for all 400 immigration judges and the appeals court itself. In the past, those decisions have dictated what types of gang violence or domestic violence cases qualify for asylum, for example, or what constitutes a vulnerable population in need of protection.
Currently, the appeals board can declare a binding precedent only if a majority of all permanent sitting judges vote to do so. The regulation would do away with that requirement and allow a two-judge majority of any three-judge panel that decides a case to declare it a precedent. It would also give the attorney general that power — allowing him to set as precedent any three-judge panel’s decision he chooses.
At the moment, the appeals court has 15 permanent judges and six temporary fill-ins to decide those cases. The Justice Department has posted job listings to fill those six seats permanently, but would make two key changes from the current system: Appeals judges could serve simultaneously as lower-court immigration judges, and they would not have to relocate to the Board of Immigration Appeals in Falls Church, Va., a suburb of Washington, D.C.
The administration has not explained why previous job postings for these appellate openings have not resulted in hires or why they decided to make the changes to the job description.
The new listings would allow the department to recruit appeals judges without forcing them to move to the Washington area. Critics familiar with the inner workings of the Justice Department fear that officials will handpick appeals appellate judges from the ranks of lower-court judges with the highest deportation rates.
Officials are barred by federal law from considering politics or ideology in picking immigration judges, but the administration has been accused of such motivations. Civil servant Dorothea Lay went public with her allegations when her offer of an appeals board judgeship by the Obama administration was rescinded after Trump took office, on the grounds of lack of commitment. She has filed a complaint with federal watchdogs.
Taken together, the hiring of new appeals immigration judges and greater ability to pump out decisions could accelerate the Trump administration’s reshaping of immigration law in the U.S., all without needing Congress to act.
Trump has pointed to the immigration case backlog as a major contributor to illegal immigration to the U.S. Immigrants often have to wait years for their cases to be heard, sometimes disappear before that date, and in the meantime may receive work permits and put down roots in the U.S.
Sessions took several steps to accelerate the process and make it harder for immigrants to qualify for asylum, though the backlog has still grown. Sessions used his authority as the quasi-Supreme Court of the immigration system to rule that most victims of domestic and gang violence don’t qualify for asylum. A federal judge has blocked the application of that decision to asylum screenings at the border.
Sessions also set case-completion quotas for immigration judges, over the objection of the judges’ union and immigration lawyer associations, and limited their discretion to close or postpone cases.
Art Arthur, a former immigration judge and fellow at the immigration reduction advocacy group Center for Immigration Studies, who has written in favor of most of the Justice Department’s immigration court moves, downplayed the significance of the latest proposed changes.
He argued it made sense for appeals judges to have experience in the lower immigration courts— which is not a job requirement — and that it was important for the system to have “flexibility” to manage its caseload.
“Will there be complaints? There were complaints in the past,” about Bush-era streamlining efforts, including from federal courts, Arthur said. “But I hope that (the Justice Department) has learned from the issues that it had in the past, when it was doing affirmances without opinion, how to do it correctly. With respect to having flexibility as it relates to board members, I don’t have any problem with that at all, so long as it’s clear that an appellate immigration judge is not able to review a decision that that appellate immigration judge issued.”
The union that represents lower-court immigration judges said it was concerned that the Justice Department has not consulted it about the proposed changes. The group, the National Association of Immigration Judges, has been critical of Sessions’ unilateral efforts to expedite the immigration legal process as jeopardizing immigrants’ rights to fair proceedings.
“It’s yet another example where the professionals in the field are not consulted,” said union President Emerita Dana Leigh Marks, an immigration judge in San Francisco. “And that’s just where the immigration judges get frustrated, because we don’t know exactly what it means. It may be terrific, but one would still like to be brought into the decision-making process and have the pros and cons discussed.”
The union, the American Bar Association and the American Association of Immigration Lawyers have all called for removing the immigration court system from the Justice Department and making it an independent legal institution, like the Bankruptcy Courts.
“The policy change really is a reflection of showing how DOJ management can rewrite immigration laws and policies on a whim,” said Laura Lynch, the immigration lawyers association’s senior policy counsel. “Efforts to improve efficiency, they’re important. But they can’t be implemented at the expense of fundamental principles of due process and fairness in the court system.”
One former Justice Department official who worked on the immigration courts noted that any changes in immigration law that result from the court changes are likely to stay in place for years.
“Precedent decisions live on forever, and so once they have that, they’re going to work on issuing precedent decisions, as many as they possibly can,” said Rena Cutlip-Mason, who now works at Tahirih Justice Center, an organization that defends immigrant women and children fleeing gender-based violence. “There’s going to be a lot more precedents, and it’s hard to say what those precedents will be.”
Tal Kopan is The San Francisco Chronicle’s Washington correspondent. Email: tal.kopan@sfchronicle.comTwitter: @talkopan
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With due respect to my friend Rena Cutlip-Mason, I don’t think we’ll have to guess at “what those precedents will be.” They will all be anti-asylum, restrictionist, and likely misogynistic to boot.
This Administration is virulently anti-due-process and anti immigrant and seeks to “turn back the clock” to an era where only a few, mostly White, mostly male individuals were, often grudgingly, granted asylum. It will be up to the NDPA, the courts, and ultimately the voters and Congress to halt and reverse this latest White Nationalist scofflaw initiative.
Yes, the overt White Nationalism, racism, xenophobia, and disdain for the private bar that leapt from every Sessions pronouncement on immigration is gone. But, buried beneath lots of distracting gibberish and legal gobbledegook is the same White Nationalist restrictionist agenda.
Here’s my take on what is happening here.
- Trying to promote more use of Affirmance Without Opinion to create assembly line justice;
- By giving panels authority to set precedent, basically destroys the power of the en banc Board and eliminates it as a deliberative court;
- Essentially, it allows two “hard line” Board Members on a single panel to rewrite the law in favor of DHS without participation from their colleagues;
- By expanding the BIA and spreading out its membership it destroys its already weakened quality as a unitary appellate court and turns it into a rubber stamp operation where “hand-picked hard-liner judges” throughout the country will be able to railroad folks out expeditiously without due process and without any dialogue with any colleagues who might actually have any desire to apply the law fairly;
- They are obviously hoping that more hard-line precedents will be given more deference by the Courts of Appeals under Chevron and Brand X.
- Looks like a way of speeding up the “deportation railroad” and making due process simply a fraud — a misleading “judicial veneer” on a fundamentally unjust and politically biased system;
- I doubt that the Courts of Appeals will buy this nonsense across the board; they didn’t following the bogus “Ashcroft reforms;” but you never know with more Trump appointees on board.