According to new reports, US Attorney General William Barr is set to implement major overhauls on existing immigration policy, which will have a massive impact on courts’ ability to determine deportation for certain individuals.
The move comes following President Trump’s recent assertion that his administration will be moving in a “tougher direction” regarding immigration policy, as the growing crisis at the US-Mexico border continues to worsen.
Opponents of the Trump administration’s policies on immigration have denounced Barr’s plan, citing fears of “taking away due process” for those facing deportation.
President Trump and several officials within his administration have frequently lamented the lengthy process required in deportation and asylum hearings, pointing out that the current system is often abused, and in dire need of an overhaul.
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.