How Sessions Reshaped the U.S. Immigration Court System

The United States will likely soon have a new Attorney General. But what will be former Attorney General Jeff Sessions’ legacy as the nation’s top law enforcement official? Of all the ways Sessions may have left his mark on the office, his most enduring legacy as a policymaker may be found in the changes he made to the nation’s immigration court system.

The immigration courts of the United States are part of the U.S. Department of Justice. As Attorney General, Sessions had the power to set policy for the immigration courts.

By referring several cases from the immigration court’s appellate body—the Board of Immigration Appeals (BIA)—to himself, Sessions made several dramatic changes to how cases move through the system, and which immigrants can access that system.

First, in a case called Matter of Castro-Tum, Sessions took away most of the power of immigration judges to use a process called “administrative closure” to remove cases from their docket. Immigration judges regularly used this power to allow immigrants to resolve other issues—like pending applications for visas—that could impact the outcome of their case.

Second, in a change similar to the Castro-Tum decision, Sessions limited the power of immigration judges to postpone hearings, making it significantly more difficult for non-citizens to delay their cases while they prepare themselves for court.

Third, Sessions took away most of the power of immigration judges to terminate cases. When judges use administrative closure, those cases can be reopened. “Terminated” cases, however, are gone for good—often because the government has failed to make its case or because the case suffers from some kind of procedural defect.

Finally, Sessions overturned a 2014 decision by the BIA that allowed victims of domestic violence to apply for asylum. In 2014, the BIA determined that women who live in countries that fail to protect them from their violent husbands constitute a “particular social group” eligible for asylum.

“I understand that many victims of domestic violence may seek to flee from their home countries,” Sessions wrote in the opinion. “But the ‘asylum statute is not a general-hardship statute.’” A federal court has since struck down this policy change.

Sessions’ decisions tie the hands of immigration judges who might otherwise allow someone to stay in the country. But instead of a sudden rush of deportations, these changes appear to have made the gears of the immigration court system grind even slower than before.

Before Sessions took office, immigration courts had a serious backlog of pending cases—more than 700,000 as of last June. Now, over one million cases have to be heard, but only 395 judges currently serve nationwide to hear them. According to the Transactional Records Access Clearinghouse (TRAC) at Syracuse University, it would take the court system more than five years to work through the current caseload if it did not hear new cases and focused exclusively on the pending ones. Before Sessions’ actions, it would have taken three years, TRAC said in a recent report.

Sessions tried to address the backlog by hiring more immigration judges and streamlining the hiring process, cutting the time it takes to bring on a new judge in half. More controversially, however, he also instituted a quota for judges.

Until a future Attorney General says otherwise, any judge that does not complete at least 700 cases per year could face professional consequences. The National Association of Immigration Judges (NAIJ) released a statement opposing the imposition of quotas, and pointed to a U.S. Government Accountability Office study indicating that 90 percent of delays in immigration cases are caused by factors outside of the control of the court.

Immigrants rights advocates like the National Immigration Law Center believe that President Donald J. Trump’s new Attorney General nominee, William Barr, would stay the course laid out for him by Sessions on immigration policy.

It may be too early to tell what Sessions’ long-term impact on the immigration system will be. But his actions have prompted calls to make lasting changes to the court system—including taking it out of the Justice Department.

The American Immigration Lawyers Association (AILA) believes that the immigration court should be removed from the Justice Department and turned into an independent system like the U.S. Tax Court so that its judges can be free of what they view as unfair influence.

“One very deep flaw in our immigration court system is that the Attorney General, who oversees immigration prosecutions in federal courts, also has the power to decide the…rules judges must follow and has the power to fire those who don’t comply,” said AILA Executive Director Benjamin Johnson, in a statement.

“That’s why Congress can delay no longer in conducting rigorous oversight of the courts and establishing an independent immigration court system,” he said.

Other trade groups support creating an immigration court system outside the Justice Department, including the Federal Bar Association and the NAIJ.

“Public faith in the Immigration Courts has been undermined by the placement of these tribunals in a law enforcement agency,” the NAIJ said in a position paper supporting an independent court system.

Sessions’ changes have given new momentum to the movement to create an independent immigration court system. If Congress ever creates an independent court system, Sessions’ actions may be remembered as the reason a new system was necessary.