The Best Way to Protect Immigrants From the Whims of Politics

Truly independent immigration courts could help undo the harm that’s been inflicted by the Trump administration.

Unlike criminal or civil courts, our nation’s immigration courts are housed under the Department of Justice. And so the decisions and operations of these courts are subject to the whims of politics. Any time an immigration judge decides an immigrant’s fate in the United States, that decision is subject to change, based on the caprice of the attorney general.

If the nation’s top attorney objects to a decision, they have the latitude to reverse it and issue a binding precedent for all immigration courts.

During the Trump administration, the dangers this power structure poses have become viscerally apparent. The administration has referred at least 15 immigration cases to the attorney general for precedent-setting rewrites. Trump’s first attorney general, Jeff Sessions, reversed decades of asylum precedence by denying victims of domestic or gang violence the right to qualify for asylum. He limited continuances, which allowed foreign nationals to postpone their court cases while they waited for the U.S. Citizenship and Immigration Services to adjudicate their applications. Sessions also limited judges’ ability to terminate cases and ended administrative closure—an option judges previously used to temporarily remove cases from their docket—allowing the backlog to balloon to nearly 1.5 million cases.

Attorney General William Barr’s term brought even more change. He ended judges’ ability to hold bond hearings for arriving asylum-seekers, forcing Immigrations and Customs Enforcement to hold people in custody while their cases are pending—sometimes for years. Barr made it more difficult for an asylum-seeker’s family members to seek protection unless they could show that they had personally been persecuted. He also expanded his own power, growing the number of cases in which he is able to set new, binding precedents.

“The level of direct interference exercised by this administration has far surpassed any other administration before,” said A. Ashley Tabaddor, president of the National Association of Immigration Judges. The administration influences the courts not only on a macro level—for instance, by setting up tent courts at the border—but also on a minute level, through micromanagement of judges’ dockets and setting case quotas and deadlines.Nevertheless, in many ways the Trump administration has merely followed its predecessors: The Obama administration exerted influence of its own over immigration courts, changing their enforcement priorities; reshuffling their dockets; and, in some cases, causing years-long delays. According to the Migration Policy Institute, under the Obama administration, the attorney general self-referred four decisions for rewrite.

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