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Jeff Sessions exercises little-used power to assign immigration cases to himself—and overturns precedent.

Before his resignation, former U.S. Attorney General Jeff Sessions invoked a rarely used power of Attorneys General to refer immigration cases to themselves—even after the Board of Immigration Appeals (BIA) (the quasi-appellate body for the immigration court system) has decided the case—a move that allowed him to overturn years of immigration precedent.8 C.F.R. § 1003.1(h)(1)(i); and Raul Reyes, “In Turning Away Domestic Abuse Victims, Jeff Sessions Abandons Legal Precedent,” The Hill, June 14, 2018. Sessions’s actions in these self-referred cases earned the disapproval of many, including the National Association of Immigration Judges (NAIJ), whose president A. Ashley Tabaddor described one such case as a “step by step encroachment” into judicial authority by the Department of Justice (DOJ).Reyes, “In Turning Away Domestic Abuse Victims,” 2018.

  • Sessions bars asylum claims based on domestic violence or gang violence. In Matter of A-B-, Sessions intervened to overturn a 2016 BIA decision holding that “married women . . . who are unable to leave their relationship” and who are victims of domestic violence constitute a “social group” for asylum eligibility purposes.Matter of A-B-, 27 I&N Dec. 316 (A.G. 2018). In vacating the BIA decision, Sessions created new precedent that “generally, claims by aliens pertaining to domestic violence or gang violence . . . will not qualify for asylum.”Matter of A-B-, 27 I&N Dec. 316 (A.G. 2018). In a joint statement, 15 retired immigration judges and former members of the BIA called the move “an affront to the rule of law."Retired Immigration Judges and Former Members of the Board of Immigration Appeals Statement in Response to Attorney General’s Decision in Matter of A-B, June 11, 2018. In December, U.S. District Judge Emmet G. Sullivan invalidated Sessions’s guidance to immigration officials, holding in a 107-page opinion that his new rule was “arbitrary and capricious” and decreeing that some of those who had already been removed under its parameters be brought back to the United States and permitted to make their cases again.Grace v. Whitaker, No. 1:18-cv-01853-EGS (D.D.C. 2018).
  • Department of Justice removes and replaces immigration judge who made unfavorable ruling. DOJ worked to influence immigration cases in other ways as well. In August, the NAIJ filed a formal grievance over DOJ’s removal and replacement of Judge Steven Morley, the original judge in Matter of Castro-Tum, who had used administrative closure in a case where the government could not prove that it had provided adequate notice of the hearing to the respondent, an unaccompanied child who had not appeared in court.Matter of Castro-Tum, 2018. At the request of an attorney acting as a “friend of the court,” the judge had granted a continuance for purposes of trying to locate Castro-Tum and ensure he had received proper notice to appear.Gammage, “Immigration Judges File Grievance,” 2018. Morley was abruptly removed from the case and the Executive Office for Immigration Review sent a new judge to oversee a single hearing in which Castro-Tum, who was not present, was ordered to be deported without any additional investigation of the notice.Gammage, “Immigration Judges File Grievance,” 2018. The NAIJ grievance claims that the government’s action to replace Morley “subverted the judicial process, undermined his independence, and impugned his competence and integrity, all to obtain a particular outcome in the case.”Gammage, “Immigration Judges File Grievance,” 2018. DOJ also removed an additional 60 cases from Judge Morley’s docket.Gammage, “Immigration Judges File Grievance,” 2018.
  • Department of Justice establishes a new quota system for immigration judges—and ties it to their performance ratings. In early April, DOJ issued a new directive regarding case completion goals for immigration judges, a strategy purportedly aimed at aggressively clearing a backlog of what was at the time more than 700,000 cases.Joel Rose, “Justice Department Rolls Out Quotas For Immigration Judges,” NPR, April 3, 2018; and TRAC Immigration, “Backlog of Pending Cases in Immigration Courts as of September 2018,”. Judges will now be required to clear at least 700 cases a year—just under three per day—to receive a “satisfactory” performance rating.Rose, “Justice Department Rolls Out Quotas,” 2018; and U.S. Office of Personnel Management, “Pay & Leave,”. The new directive sets up additional benchmarks, including requirements to issue at least 85 percent of decisions on legal motions within 20 days and 85 percent of final decisions within 10 days of a hearing.Rose, “Justice Department Rolls Out Quotas,” 2018. Judges will also be subject to penalties if they refer more than 15 percent of certain cases to higher courts or schedule hearing dates too far apart on their calendars.Rose, “Justice Department Rolls Out Quotas,” 2018.

    The NAIJ asserts that the quotas and deadlines will interfere with judicial independence and impede justice and due process.Statement of Judge Ashley A. Tabaddor, President, National Association of Immigration Judges (NAIJ), before the Senate Judiciary Committee Oversight Hearing on the Department of Justice re: “NAIJ Has Grave Concerns Regarding Implementation of Quotas on Immigration Judge Performance Reviews,” October 18, 2017. Judge Tabaddor told the Senate Judiciary Committee that the quota system could invite legal challenges and create incentives for appeal, further slowing the system, by “call[ing] into question the integrity and impartiality of the court if a judge’s decision is influenced by factors outside the facts of the case, or . . . concern about keeping his or her job.”Statement of Judge A. Ashley Tabaddor, President, NAIJ, before the Senate Judiciary Committee, Border Security and Immigration Subcommittee Hearing on “Strengthening and Reforming America’s Immigration Court System,” April 18, 2018.