“Pay No Attention to that Man behind the Curtain”: Jeff Sessions’ Quiet but Sinister Attack on Immigration

With Congress stalled on immigration reform of any kind and Trump bellowing over the airwaves with his hateful, manic rhetoric as we head into the midterm elections, U.S. Attorney General and former U.S. Senator Jeff Sessions has found a quieter way to rewrite immigration laws to fit this administration’s nationalist, anti-immigrant agenda.

Sessions’ attack on people of color did not begin with his appointment on February 9, 2017. In fact, in 1986, former President Ronald Reagan nominated Sessions to be a United States District Judge, but his nomination failed after testimony surfaced from colleagues about several racially-charged comments that Sessions allegedly made while serving in the Office of the U.S. Attorney for the Southern District of Alabama. Additionally, Sessions has long been an opponent of both legal and illegal immigration, opposing several immigration reform measures during his time as a U.S. Senator and even claiming a “clear nexus between immigration and terrorism” on his Senate website post-9/11.

Phase One: Enforcement

In his first year as Attorney General, Sessions lashed out at sanctuary cities and made it clear that this administration was coming for anyone who entered or remained in the United States without lawful status.

The Timeline

• 4/11/2017: Sessions announces the administration’s “renewed commitment to criminal immigration enforcement,” doing away with the Obama-era enforcement priorities that focused the government’s limited enforcement resources on dangerous criminals and instead making all persons entering the United States unlawfully, and anyone helping them to enter or “harboring” them, priorities for criminal immigration enforcement.
• 5/22/2017: Sessions issues a memo backing up Trump’s executive order that would cut off federal grants administered by the DOJ and DHS for “sanctuary cities,” or cities that refuse to share information with federal officials about immigrants’ citizenship or legal status. (These efforts were blocked by the federal courts.)
• 6/20/2017 and 8/3/2017: Sessions announces the creation of the National Public Safety Partnership to combat violent crime (6/20/2017) and then threatens to take away access to programming and funding for sanctuary cities (8/3/2017).
• 4/6/2018: Sessions announces a “zero-tolerance policy” for criminally prosecuting attempted entry and entry into the United States without documentation, regardless of circumstance. This applies even where someone has no criminal history; and it has been widely used with persons asking the United States for asylum protections at the border, often with children in tow, resulting in months-long mass family separation at the Southern border between the United States and Mexico.

In 2017, Sessions also delivered the administration’s decision and legal basis for ending the Deferred Action for Childhood Arrivals (DACA) program (9/5/2017). (This has also been blocked by the federal courts, for now.)

Phase Two: The Immigration Courts

In year two, because increased arrests and detentions do not do the job on their own, this year, Sessions has turned his focus to the immigration court system, using his power as Attorney General and head of the Department of Justice (DOJ), under which the immigration courts and judges fall, to increase the likelihood that a case ends in removal from the United States.

The attorney general of the United States has the authority to refer any Board of Immigration Appeals (BIA) decision to him- or herself for review. Historically, this power has been used sparingly, particularly by Democrat-appointed attorneys general, in part because the office understands that the judges who sit on the Board of Immigration Appeals have experience in immigration law and are placed on the Board to be “unbiased adjudicators.” However, Sessions has made his personal bias – and his cunning understanding of how to play the system to suit the administration’s agenda – very clear: by referring a case to himself, he knows that he can single-handedly overturn a Board precedent and change the way immigration cases play out in the courts; and this is precisely what he has spent this year doing.

The Timeline

• 3/5/2018: Sessions vacates a 2014 Board decision in Matter of E-F-H-L-, finding that an asylum or withholding of removal applicant is entitled to a full hearing on his or her application, including a chance to testify and present evidence to the Immigration Judge.
• 3/30/2018: The DOJ issues a memo notifying immigration judges that it will begin evaluating their job performance based, in part, on whether they meet an annual quota of at least 700 case completions per year.
• 4/10/2018: The DOJ announces that it will halt the nonprofit Legal Orientation Program that offers legal assistance to detained immigrants in deportation proceedings. This program helps to promote judicial efficiency and promote fundamental fairness by helping detained persons to understand their rights, how the court process works, and their possible defenses to deportation and by providing referrals to free or low-cost immigration lawyers to represent them in their deportation proceedings. (The DOJ reversed on its decision only 2 weeks later, citing pushback from Congressional leaders.)
• 4/17/2018: Allegations surface that the DOJ is politicizing the hiring of immigration judges to fit the administration’s anti-immigrant agenda. To date, the DOJ denies any such practice.
• 5/17/2018: Sessions decides Matter of Castro-Tum, taking away IJ authority to administratively close (to pause or suspend) cases and subjecting hundreds of thousands of already administratively closed cases to possible reopening, for example where the respondent is eligible for and seeks to pursue an I-601A waiver of unlawful presence from inside the United States, where the respondent is waiting for a visa application to be approved, or where they are waiting for a decision on an appeal of a criminal conviction.
• 6/11/2018: Sessions decides Matter of A-B-, significantly undermining protections for domestic violence survivors, women fleeing gender-based persecution, and victims of “private criminal activity,” such as gang violence, who seek asylum in the United States.
• 8/16/2018: Sessions decides Matter of L-A-B-R-, further limiting IJ discretion, this time, to grant continuances, for example where the respondent has a pending prima-facie approval U visa caught up in the backlog of U.S. Citizenship and Immigration Services (USCIS) cases outside the respondent’s control.
• 9/18/2018: Sessions decides Matters of S-O-G- and F-D-B-, even further limiting IJ discretion, here, to terminate or dismiss removal proceedings.
• 9/18/2018, 9/23/2018, and 10/12/2018: Sessions refers Matters of M-G-G– and M-S- to himself to decide whether immigration judges may hold a bond hearing for certain aliens screened from expedited removal proceedings.
• 10/17/2018: The White House releases its fall regulatory agenda, which includes a DOJ proposal to “change the circumstances in which the Attorney General may refer cases to himself for review. Such cases will include those pending before the Board of Immigration Appeals (BIA) but not yet decided and certain immigration judge decisions regardless of whether those decisions have been appealed to the BIA.” Such a change would essentially allow the Attorney General unprecedented range to change the application of immigration law in the courts as he pleases.
• 10/18/2018: Sessions refers Matter of Negusie to himself to decide whether coercion and duress are relevant defenses to the persecutor bar for asylum seekers.

So, What Now, and What Can I Do?

A number of current and former immigration judges, including the National Association of Immigration Judges (NAIJ), as well as some BIA members, have spoken out against these measures. Additionally, “dirty immigration lawyers” across the country are fighting back daily against the inhumane policies and practices of this administration; and a number of these policies have lost in the federal courts, thanks to the work of many dedicated lawyers and advocates and the decisions of federal judges who stand to uphold the standard of law in this country.

Archbishop and Nobel Peace Prize winner Desmond Tutu once said, “If you are neutral in situations of injustice, you have chosen the side of the oppressor. If an elephant has its foot on the tail of a mouse and you say that you are neutral, the mouse will not appreciate your neutrality.” As long as Sessions sits behind the curtain, manufacturing and micro-managing the Trump administration’s deportation assembly line and working to create a complacent judiciary to man the machinery, his very position endangers due process, justice, and the independence of immigration judges nationwide. Thus, we must continue to push back against his agenda— through the courts, through fact-based media attention on these issues, and through voter education and legislative action.

If you are legally able to vote in the midterms, vote (you can verify your registration status and find your polling place here: https://www.headcount.org/verify-voter-registration/). Drive someone to the polls. Volunteer to canvass this next week. Contact your local, state, and congressional representatives (https://whoismyrepresentative.com/) and let them know where you stand. Talk to your neighbors, family, and friends. Do what it takes to be educated and informed on the issues. Speak out. Resist.