By Attorneys Eric R. Welsh & Nancy E. Miller
These days, a noncitizen can be forgiven for thinking that the system is against them. Almost as soon as he took office, President Trump issued a series of Executive Orders that effectively ended the modest protections that President Obama had implemented for out-of-status persons with family ties and no significant criminal histories. Last fall, Trump ordered the termination of the popular DACA program (an effort that for now has been held in check by federal courts). In February, the U.S. Citizenship & Immigration Services (USCIS) edited its mission statement to remove any reference to America as a “nation of immigrants.” In April, the Department of Justice announced a decision to base an immigration judge’s performance evaluation on how many cases they complete.
Many low-risk noncitizens who had for years appeared for supervision without incident (i.e., regular reporting before an Immigration and Customs Enforcement (ICE) officer) have been detained and deported. ICE has tripled the number of workplace raids relative to a year prior, and has started executing removal warrants that were previously considered low priority. By virtually all metrics, enforcement is on the rise, and benefits are more difficult to obtain.
More and more noncitizens are finding themselves facing removal (deportation) and applying for relief in immigration court. Removal proceedings can be daunting and scary under the best of circumstances, and these days, the circumstances are rarely very good. The immigration courts (and the appellate court, the Board of Immigration Appeals) are part of the Department of Justice. As the head of the department, the Attorney General has the power to refer a case from the Board to himself for review and issuance of a new decision. This extraordinary power was very rarely utilized, until recently.
Attorney General Jeff Sessions has already rewritten several important decisions, and has taken several others under review, indicating an intention to broadly reform the immigration courts. In March, he reversed a Board decision that had required immigration judges to give asylum-seekers a full court hearing, allowing judges instead to reject asylum claims without setting a hearing. He took another case under review to consider whether a domestic violence survivor from Latin America is eligible for asylum, a decision that could also impact victims of gang violence. In that referral, he framed the question as whether a victim of “private violence” should be eligible for asylum.
AG Sessions has also taken aim at how judges prioritize cases and decide when cases should proceed to trial. In May, AG Sessions issued a decision (Matter of Castro-Tum) that eliminated a judge’s authority to “administratively close” a case. Administrative closure is an exercise of prosecutorial discretion that, until this decision, allowed a judge to take a case off the active calendar and close the file, sometimes while awaiting ancillary relief, and sometimes simply because the alien is not a removal priority (the vast majority of cases that were administratively closed were done so with the consent and approval of ICE). In Matter of Castro-Tum, AG Sessions found that judges no longer have this ability, and indicated that cases previously closed should be placed back on the active calendar. AG Sessions has taken other cases under review that indicate an intention to severely restrict a judge’s authority to even continue a case, including continuances to allow a person to hire a lawyer.
The good news is that there is one legal document that AG Sessions cannot rewrite: the U.S. Constitution. Due process and equal protection apply in immigration court, and they require that judges treat respondents in removal proceedings fairly, and consider any applications for relief or defense to removal put forth by the respondent. In this new high-pressure, enforcement-focused environment, judges will be less forgiving and more demanding, but they cannot deny an alien her right to a full and fair hearing.
AG Jeff Sessions is trying to make immigration courts meaner, faster, and harder. Now more than ever, any person facing removal must appear in court fully aware of their rights, their eligibility for relief from removal, and the ability to properly file and win that relief. In other words, a person in removal proceedings needs a good lawyer.
There are many forms of relief available under the Immigration & Nationality Act, from adjustment of status, to cancellation of removal, to asylum, and beyond. A person in removal needs to be extremely well prepared and thorough in any relief, and an experienced immigration attorney can make all the difference in the world. Tough times call for tough lawyers, and there is no doubt that these are tough times.
