Utilizing a rarely used federal statute, Attorney General Jeff Sessions took the highly unusual step of recently referring an immigration case to himself. The unusual procedure is being closely scrutinized by immigration lawyers, judges and immigrant rights groups.
A Rarely Used Statute Allows Sessions to Override Immigration Court Decisions
The federal statute in question allows the attorney general to reconsider cases decided by the Board of Immigration Appeals (BIA), the nation's highest authority for interpreting and applying U.S. immigration laws.
The case that Sessions referred to himself (Castro-Tum) was administratively closed by an immigration judge. BIA has described administrative closure as an important option for immigration judges to “avoid the repeated rescheduling of a case that is clearly not ready to be concluded.”
Sessions is seeking to unilaterally eliminate administrative closure
Sessions' public statements and reports indicate he is seeking to unilaterally eliminate administrative closures. His decision would be binding on all immigration courts nationwide. If Sessions were to restrict or eliminate administrative closure, thousands of cases would return to the dockets of immigration courts, adding to the massive backlog of 650,000 cases already pending in courts nationwide.
Without administrative closure, immigrants can be prematurely and unlawfully deported. There are currently approximately 350,000 cases administratively closed according to some estimates. Prestigious former BIA board members and judges have filed a brief forcefully arguing that Sessions does not have a legal basis to eliminate administrative closure.
Brief Argues Sessions Lacks the Impartiality Needed to Decide Immigration Cases
In an amicus brief filed by the American Immigration Council and 5 other immigrant rights organizations, they argue that Sessions is unfit to weigh in on these important decisions. The organizations that submitted the amicus brief first noted that Sessions chose to bring the full force of the attorney general’s office to bear against a particularly vulnerable individual. Castro-Tum, the young man in the case, was placed in removal proceedings when he was a minor and has never been represented by an attorney in his immigration case.
Sessions' troubling public statements show he is unfit to be a neutral decisionmaker
The brief outlines a variety of reasons why Sessions’ involvement is not tolerable under the U.S. Constitution. The organizations argue that due process “requires a neutral decisionmaker in immigration proceedings,” and that the following categories of statements by Sessions disqualify him from deciding the case:
- Sessions' public remarks indicating he already decided to end administration closure before referring this case to himself.
- Derogatory public statements about non-US citizens who do not meet Sessions’ standards for education, income, professional skills, or English fluency, or whose family relatives may provide the basis for immigration status.
- Many public statements indicating a bias toward unaccompanied children, such as Castro-Tum.
Sessions should be held to the same standard as judges
If an immigration judge or member of BIA were to express biases like Sessions, the brief argues that federal courts would vacate any ensuing removal order, finding that the judge lacked impartiality and violated basic due process. The brief continues pointing out that an Attorney General is not above the law and must be held to the same standards as the Department of Justice employees he oversees.
With the lives involved in 350,000 immigrant cases and the entire immigration court system operation at stake, the brief's conclusion is that due process requires that Sessions either vacate the order referring the case to himself or recuse himself from the case.