Attorney General Jeff Sessions told a new group of immigration judges Monday that it is their job to “restore the rule of law” to the immigration system over the contrary efforts of the lawyers who represent immigrants.
The remarks at the training of the largest-ever class of new immigration judges implied that the judges were on the same team as the Trump administration, and that immigrants and their attorneys were trying to undermine their efforts.
“Good lawyers using all their talents and skills work every day … like water seeping through an earthen dam to get around the plain words of (immigration law) to advance their clients’ interests,” Sessions said, adding the same happens in criminal courts. “And we understand that. Their duty, however, is not to uphold the integrity of the act. That’s our duty.”
Sessions noted that “of course” the system “must always respect the rights of aliens” in the courts. But he also warned the judges of “fake claims.”
“Just as we defend immigrant legal rights, we reject unjustified and sometimes fake claims,” Sessions said. “The law is never serviced when deceit is rewarded so that the fundamental principles of the law are defeated.”
The comments came in the context of Sessions’ repeated moves to exert his unique authority over the immigration courts, a separate legal system for immigrants that is entirely run by the Justice Department.
Sessions approves every judge hired and can instruct them on how to interpret law, and thus decide cases, as well as how to manage cases. He has used that authority multiple times in the past year, including issuing a sweeping ruling that will substantially narrow the types of cases that qualify for asylum protections in the US. Those decisions overrode the evolution of years of immigration judges’ and the immigration appellate board’s decisions.
Sessions reminded the new judges of that authority and those decisions in his remarks, saying he believes they are “correct” and “prudent” interpretations of the law that “restores” them to the original intent.
The president of the union for immigration judges called Sessions’ comments “really troubling and problematic,” noting that the judges’ union has disagreed with many of Sessions’ moves as exerting too much influence over the courts and jeopardizing their fundamental responsibility of fairness.
“We just find it really troubling and problematic that the AG just does not seem to appreciate the distinction that we have as immigration judges from the rest of the department, both the US attorney’s office and the Department of Homeland Security,” said Ashley Tabaddor, of the National Association of Immigration Judges. “We are not one and the same as them.”
In the immigration court system, the judges are employed by the Justice Department, and the attorneys serving as prosecutors work for the Department of Homeland Security. Immigrants are allowed to have lawyers if they can find them, but none are provided to them.
Sessions said it was a joint duty for the courts to follow his interpretation of the law. He noted an increase in asylum claims made by immigrants crossing the southern border, which has created a years-long backlog in the resource-strained immigration courts.
“The asylum system has been abused for years, we all know that, to the detriment of the rule of law, sound public policy, public safety and to the detriment of people with legitimate claims,” Sessions said. “Asylum was never meant to provide escape from all the problems, even serious problems, that people face every day around the world. Indeed, Americans face serious problems every day.”
Sessions added that when “we depart from the law and create nebulous standards,” that does “violence to the rule of law.”
The Trump administration argues the backlog is because of fake claims gumming up the system, although it has presented no evidence that intentionally fraudulent cases are more than a minuscule fraction of the total.
Tabaddor and the judges’ union have long been pushing for the courts to be taken out of the Department of Justice and set up as an independent system, similar to the bankruptcy courts. Tabaddor has served as an immigration judge since 2005. While other administrations have sought to influence the courts in some ways, like how to prioritize cases, she said judges have not witnessed anything like this administration under Sessions.
“We have never really seen the level of explicit and deep sort of scrutiny and use of the court consistent with the executive branch’s political policies,” Tabaddor said.
According to Justice statistics, roughly 22% of asylum cases were granted this year through June. But not all the rest were denials – roughly 42% were denied in the same time frame and others were simply closed. Research has shown that immigrants with access to lawyers to guide them through the complex system were much more likely to win their asylum claims.
Sessions also referenced the “zero-tolerance” policy implemented this spring that resulted in thousands of family separations at the border. The Justice Department prosecutes the cases that are referred to it, a policy still in effect. Sessions said 90% of cases being referred to Justice are being prosecuted. But he did not acknowledge the family separations that occurred or the fact that the Department of Homeland Security has stopped referring the cases of parents caught crossing illegally with their children in order to no longer separate families.
“I think it has some deterrent effect. We have history to show us that that is so,” Sessions said.
There has been no marked drop in the number of families crossing the border since the policy went into effect, and crossings in general have largely fluctuated with seasonal trends.
Sessions was speaking to 44 judges being trained and brought on board. That is the largest class of immigration judges ever, and it means the system now has the most active immigration judges in history. He said more are scheduled to be added by the end of the year, putting them close to their goal of a 50% increase in the number of immigration judges since the beginning of the administration.