Originally published by The NY Times
Attorney General Jeff Sessions issued a directive on Thursday that places limits on a tool commonly used by immigration judges and could put hundreds of thousands of deportation cases that are essentially closed back on federal court dockets.
The move, issued in an interim decision, is unlikely to reopen all the cases. But Mr. Sessions said that immigration courts could not put such cases on indefinite hold by using a practice known as administrative closure, which temporarily removes a case from a judge’s calendar and delays a proceeding that could remove an immigrant from the country.
Immigration judges “do not have the general authority to suspend indefinitely immigration proceedings by administrative closure,” he wrote in the decision, and the practice “effectively resulted in illegal aliens remaining indefinitely in the United States without any formal legal status.”
The move injects fresh uncertainty into the lives of undocumented immigrants living in the United States, and some critics say the decision could lead to their deportation before they could gain legal status.
“Sessions is using his authority as attorney general to turn the immigration courts into a deportation assembly line, with ICE officers waiting at the exits with open handcuffs in hand,” said David W. Leopold, who oversees the immigration law group at Ulmer & Berne, referring to United States Immigration and Customs Enforcement.
Mr. Sessions, an immigration hard-liner, said that the directive paved the way for such court cases that had been “put ‘out of sight, out of mind’” to return to dockets in courts across the country. From October 2011 to last September, 215,285 cases were administratively closed.
But doing so could inundate the court system. “Requiring recalendaring of all of these cases immediately, however, would likely overwhelm the immigration courts and undercut the efficient administration of immigration law,” Mr. Sessions wrote.
Given the logistical problems that could follow, the cases could remain closed “unless D.H.S. or the respondent requests recalendaring,” he said, referring to the Department of Homeland Security.
Critics also expressed concern over the number of cases that could be reopened, saying that the decision eliminated a critical tool that helped ensure the court system would not be bogged down with a huge backlog of cases.
Mr. Sessions dismissed the inherent authority of judges to manage immigration court proceedings “with the stroke of a pen,” said Annaluisa Padilla, the president of the American Immigration Lawyers Association.
To address such a backlog, the Justice Department has enacted a plan that includes streamlining its hiring process for judges, increasingly using video teleconferencing to let judges adjudicate cases from around the country and a new electronic filing system.
The Justice Department said Mr. Sessions’s opinion eliminated the “unfettered use” of administrative closures and better aligned the immigration system with the rule of law.
But Benjamin Johnson, the executive director of the immigration lawyers association, said the directive chipped away at due process.
“Due process demands that we maintain an immigration court system with independent judges who have the authority and flexibility to make decisions,” Mr. Johnson said.
Immigration advocates also said the practice of administrative closure often offered flexibility. The process is frequently used when an immigrant facing deportation could obtain legal status through another agency, including, for example, whether a person could become eligible for a green card by marrying a United States citizen. The judge may use administrative closure to shelve the case while the Citizenship and Immigration Services evaluates whether the marriage is legitimate.
“Administrative closure gives immigration judges critical flexibility and discretion to make fair, due process-based decisions in deportation cases,” said Mr. Leopold.
Mr. Sessions has described the country’s current immigration policies as a “lawless disgrace.”
In March, the Justice Department sued California; Gov. Jerry Brown; and the state’s attorney general, Xavier Becerra, over so-called sanctuary laws in the state that the department said were unconstitutional and made it impossible for federal immigration officials to deport criminals who were born outside the United States.
The suit, which asked that the laws be blocked, served as a warning to officials nationwide who have enacted sanctuary policies that offer protections for undocumented immigrants.