April 12, 2019
Attorney General William Barr proposes reform of immigration courts
Citing a growing backlog of active immigration cases, Trump’s new attorney general has proposed sweeping changes to the power of the appellate courts within the immigration court system. The changes are aimed at making it easier for appellate judges to rule and to establish binding precedents.
Immigration courts operate under the Department of Justice and are thus independent of the Federal Court system. The attorney general has significant authority to issue new rules and overturn decisions. For example, when Jeff Sessions was attorney general he used this authority to limit the basis under which one could file for asylum if fleeing sexual violence or gang related violence, arguing that such acts were criminal offenses to be dealt with in the home country, not acts of political violence. Sessions’ decision led to a mandated review of tens of thousands of cases. Decisions like this one have contributed greatly to the cited backlog of 800,000 cases straining the court system.
So, what are they up to now? From the San Francisco Chronicle:
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.
The effort to further streamline court processes and expand the precedent-setting authority of immigration appellate judges (judges hired by the Justice Department) demonstrates a serious flaw in the oversight of immigration policy: The executive branch has significant power to shape immigration policy independent of congress through rulings in the immigration courts and through determinations made by the Attorney General. Appeals in some cases can be made to the federal court system, if rulings run counter to legislative intent. But these are hard cases to win. As is, the enforcement of immigration policy is done through a court system that can be shaped through partisan intent (though technically this is banned). Many immigration judges are doing great work – certainly in cases Quixote Center staff have accompanied people to – the judges have made every effort within their power to be fair. If Trump’s administration is allowed to reshape the appellate process, however, their hands may be tied even further.
“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."