When President Trump was running for office, he promised bold changes in immigration law. Love it or hate it, no one has done more to advance President Trump’s immigration agenda than Attorney General Jeff Sessions. Sessions is exploiting the fact that, unlike other judges, Immigration Judges and the members of the Board of Immigration Appeals are actually the Attorney General’s employees. They are part of a sub-agency within the Department of Justice, rather than the judicial branch. And the Attorney General may—until now, in rare cases—overrule immigration court and Board of Immigration Appeals decisions on his own initiative. In the past, Attorneys General have used this “self-certification” authority sparingly: under the Obama Administration, for example, this power was only used four times throughout both terms. By contrast, Sessions has already self-certified cases more cases than that and has issued decisions that have rocked the immigration law world. What follows is an overview of the boldest immigration decisions AG Sessions has issued and what they mean.
In Matter of Castro-Tum, Sessions upended decades of immigration court practice by holding that immigration judges lack the power to end a case with so-called “administrative closure.” Administrative closure allowed immigration judges to take cases off crowded dockets when there was no reason for a case to move forward. For example, when ICE tried to deport someone who could get lawful status through a family member, and who was waiting for that application to be approved, an immigration judge could close the case rather than senselessly ordering that person—who would soon have the right to remain in the United States—deported. There are currently hundreds of thousands of cases that have been administratively closed. Sessions’ decision senselessly creates a nightmare in the immigration courts, where dockets—already far beyond their capacity—could be overwhelmed by the recalendaring of those pending cases.
In Matter of A-B-, Sessions unilaterally undermined longstanding asylum protections for victims of domestic violence and gang violence by overruling Matter of A-R-C-G-. In A-R-C-G- the Board had held that, depending on the facts and evidence in an individual case, “married women in Guatemala who are unable to leave their relationship” could constitute a cognizable social group. Through Matter of A-B- the Attorney General has made clear his desire to close the door on domestic violence and gang-based asylum claims by those fleeing persecution from “private actors.” He claimed the authority to overrule decisions not only of the Board of Immigration Appeals, but also of federal courts of appeals.
In Matter of L-A-B-R-, Sessions attacked another important way that immigration judges control their dockets and allow noncitizens to seek relief. In that opinion, in an echo of his decision in Matter of Castro-Tum, Sessions specifically made it harder for immigration judges to grant continuances in cases when noncitizens might obtain permission to remain in the United States through a pending application.
In Matter of S-O-G- and F-D-B-, Sessions continued his efforts to require immigration judges to issue unnecessary deportation orders to noncitizens by limiting immigration judges’ use of termination—another means of closing a case—to extremely narrow circumstances. He wrote that an immigration judge’s general authority to “take any other action consistent with applicable law and regulations as may be appropriate” does not provide any additional authority to terminate or dismiss removal proceedings beyond those authorities expressly set out in the relevant regulations. In other words, judicial independence has been eroded.
More recently, Sessions has referred to himself Matter of M-G-G-. It is about issues relating to the authority to hold bond hearings for certain immigrants screened for expedited removal proceedings, ordering that the case be stayed during the pendency of his review. Everyone is still eagerly awaiting what will happen with this decision given the challenges it will bring to those in detention.