By Nicole Narea
Law360 (January 28, 2019) — As William Barr’s nomination to serve as U.S. attorney general continues to move through the Senate, immigration attorneys anticipate a Justice Department head in the mold of predecessor Jeff Sessions that would maintain a hard line on immigration enforcement and actively work to set precedents at the Board of Immigration Appeals.
Attorneys said that both Barr’s record as the U.S. attorney general under former President George H.W. Bush from 1991 to 1993 and his more recent statements indicate that he will carry on the legacy of Sessions, who he has publicly praised as an “outstanding attorney general.” The Kirkland & Ellis LLP counsel has voiced support for a number of President Donald Trump’s immigration policies rolled out during Sessions’ tenure, including his “zero-tolerance policy” of prosecuting all unauthorized border-crossers and even the earliest versions of his travel ban targeting nations the administration deems to be security threats.
With a Senate Judiciary Committee vote on his confirmation scheduled this week, Barr may soon take the helm of the U.S. Department of Justice and become a partner to Trump on his immigration agenda, attorneys said.
“Barr has been open in his praise of former Attorney General Sessions, particularly fixated on stripping immigrants of their rights in ways that range from seemingly benign bureaucratic changes that, in fact, have radically transformed our immigration system, or in brazenly inhumane and publicized ways,” Avideh Moussavian, legislative director of the National Immigration Law Center, said in a press call.
During Barr’s prior service as attorney general, he oversaw the former Immigration and Naturalization Service, an agency that served as a precursor to U.S. Citizenship and Immigration Services and U.S. Customs and Border Protection. To cope with increased unauthorized border crossings in 1992, he hired an additional 300 border patrol officers, 200 criminal investigators and 700 INS workers.
That year, he also created the National Criminal Alien Tracking Center, which allowed law enforcement officials to contact the INS at any time of day to “identify, locate and track criminal aliens,” according to the agency’s announcement at the time. Additionally, he expanded detention space and created an initiative cracking down on green card document fraud.
“This initiative intensifies our current efforts to enforce and implement U.S. immigration laws,” Barr said of the enforcement efforts in a February 1992 statement. “This will be accomplished by strengthening enforcement against illegal immigration and violent crime by illegal aliens, and by enhancing our service in the area of lawful immigration.”
Moussavian said that Barr’s enforcement strategy “deeply ignores the root causes of why people come to the U.S. in the first place,” which may be to reunite with family or seek economic opportunities or humanitarian aid. His National Criminal Alien Tracking Center also served as a precursor for the coercion of local law enforcement to do the work of federal immigration enforcement, she said.
Barr also presided over a program that intercepted Haitians fleeing the violent 1991 coup d’etat against President Jean-Bertrand Aristide and housed them in the U.S. naval base at Guantanamo Bay, Cuba. As many as 12,000 asylum seekers, several hundred of which were HIV-positive, were housed there until the program was shut down by a judge in 1993.
Moussavian said that, as part of that program, Haitians were subject to an “unjustifiably higher standard on their asylum cases.”
Andrew Arthur, a Center for Immigration Studies fellow and former immigration judge, told Law360 that, based on Barr’s record, he will likely crack down on illegal narcotics and increase border enforcement. He predicts more prosecutions of drug smugglers and human smugglers, as well as a continuing prosecution of illegal entry to the U.S.
Arthur said that Barr was not comparatively active on immigration issues during his previous service as attorney general. But he will likely take cues from Sessions, Arthur said, especially in his expanded use of so-called certification authority under the Administrative Procedure Act, which allows the attorney general to review BIA decisions.
“If you’re an active attorney general in immigration, certification becomes paramount,” Arthur said. “Given the role he’s filling, [Barr] will be very similar to Sessions as it relates to certification.”
In recent decades, attorneys general have been expected to use certification sparingly so as to preserve the BIA’s decision-making authority. Sessions, however, certified eight decisions in less than two years.
Most significantly, Sessions issued a decision in the case known as “Matter of A-B-,” which narrowed the circumstances under which members of “particular social groups” facing hardships — including domestic violence victims, gang violence victims and LGBTQ individuals — could petition for asylum.
Aaron Hall, a partner at the Joseph Law Firm PC, noted that, even under acting U.S. Attorney General Matthew Whitaker, the Department of Justice has continued to use certification power, suggesting that staffers have still maintained the same focuses. In December, Whitaker referred to himself two BIA cases relating to when an asylum seeker may establish persecution as a member of a family and what types of criminal convictions disqualify an immigrant from other forms of deportation relief.
“The momentum that started under Sessions may take some time to stop,” he said. “The DOJ seems intent on putting out precedents from the attorney general’s office rather than having the BIA decide.”
–Editing by Katherine Rautenberg and Aaron Pelc.
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