What would Attorney General Jeff Sessions mean for immigration law?

What impact can the attorney general–who heads an entirely separate agency outside the Department of Homeland Security–have on immigration law in Nashville and across the country?

John Sandweg, who was acting director of Immigration and Customs Enforcement in 2014, said, “He can have a tremendous impact.” That’s an understatement. Here is a snapshot of the power of the office of attorney general only as it relates to immigration:

  1. The attorney general has the power to remake the Board of Immigration Appeals – in fact, he has done it before. Many of us remember what havoc Attorney General John Ashcroft wreaked in 2002 when he decided to “streamline” BIA review of immigration decisions. He could do it without any enabling legislation because the BIA is entirely a creature of regulations promulgated by the Attorney General. Before 2002, most immigration appeals were reviewed by three-judge panels, which almost always issued written opinions. But Ashcroft changes required single-member review of most cases at the BIA. Even worse, Ashcroft cut the number of BIA members from twenty-three to eleven; the more pro-immigrant board members were summarily dismissed. Since that time, the authorized number of board members has been increased to seventeen, but there is nothing to prevent Sessions from changing that number to whatever he wants or remaking the entire Board in whatever form he wishes.
  1. The attorney general has the power to review and reverse all BIA decisions. After the Attorney General has remade the BIA, he still has the power to modify any decision it reaches that does not meet his approval. This power has been rarely used in the past, but we are likely to see this authority invoked often by Sessions – mainly because it will likely be his aim to change as much BIA precedent as possible.
  2. The attorney general has the power to hire immigration judges who agree with his policies and fire those who don’t. Immigration judges do not have lifetime tenure, and they are not members of the Article III Judiciary. They are hired by the Executive Office of Immigration Review (EOIR), a division of the Department of Justice. We are generally blessed with hardworking Immigration Judges, but they work in an atmosphere where “decisional independence” can be penalized if it comes to the attention of certain personnel inside the Department of Justice. Dana Leigh Marks, president of the National Association of Immigration Judges, has said, “In terms of our technical employment status, we are attorney employees of the Department of Justice, which we believe does make us much more vulnerable to political influence than we would be in an independent court structure.” When immigration judges are hired, they can be fired for any reason during a two-year probationary period. That includes the two judges recently hired in our Memphis immigration court. After two years, they are protected from dismissal by the same rules that shield other civil servants. Many immigration courts (including Louisville, Los Angeles, San Francisco, Houston, and New York) have been understaffed for a long time (in some cases for more than a decade) and have a huge backlog of cases. 522,000 deportation cases are pending in immigration courts. The Obama administration recently hired 61 immigration judges (all subject to the two-year probationary rule), bringing the total to 294 immigration judges – still inexplicably far below the 374 immigration judges Congress has authorized. Many of these judges are expected to retire in the next few years because they are, simply put, tired. Any guess out there as to the types of lawyers Sessions will appoint in their place?
  3. The attorney general has the power to interpret broad provisions of the immigration law. For example, existing immigration law states that a person who claims asylum must prove persecution is for one of five different reasons. One of those reasons is membership in a “particular social group”. What does that mean and what can it include? In 1994, Janet Reno announced that a “particular social group” could include sexual orientation. Under pressure from extreme right-wing groups, including intolerant evangelicals ( e.g., Vice President-elect Mike Pence and Sen. Ted Cruz), Jeff Sessions as Attorney General might attempt a re-write of that entire policy, and could direct his U.S. attorneys across the country to argue that the policy was protected from review under the “Chevron”doctrine. I realize that arguments exist to counter that position, but who knows what a conservative panel of a Circuit Court may decide? And who knows what a majority of a reconstituted Supreme Court may do?
  4. The attorney general has the power to rewrite large swaths of asylum law. Here’s what Sessions tweeted on September 13, 2016: “Obama Admin Endangers Americans With Reckless Plans to Admit 110,000 Refugees in FY 2017”.
  5. The attorney general has the power to challenge the legality of state or local immigration policies through his appointed 93 U.S. Attorneys.
  6. The attorney general has the power to order his 93 U.S. attorneys to prosecute more low-level immigration-law violations. For example, he could order the criminal prosecution of all persons guilty of illegally entering or attempting to enter the United States, a misdemeanor but a crime nonetheless (8 USC § 1325). Illegal entry after removal is a felony.
  7. The attorney general has the power to cut off some law enforcement funds to cities that don’t adhere to a harsher immigration policy which might be established by Sessions. He oversees the Bureau of Justice Assistance, which reimburses local jails for holding federal prisoners. For example, he can cut off funds to any locality that refuses to honor 48-hour detainer requests to local jails by ICE. It can get even worse: in Senate speeches Sessions has repeatedly called for cutting federal funds to the law enforcement authority of any city, town, or county that refuses to identify immigrants in the country illegally and hand them over to federal agents.
  8. The attorney general plays a major role in administering immigration law, including how quickly immigrants can be deported. He can multiply detention capacity easily and quickly by contracting with entities such as Corrections Corporation of America (CCA), who can in turn contract with local rural jails as holding tanks for immigrants awaiting transport to detention facilities with remote video links to immigration courts. As is the case presently with detention centers in Oakdale and Jena, Louisiana, these rural jails will be extremely difficult to access by immigration attorneys, who may have to travel hours (with translators in tow as needed) to interview and represent their clients.
  9. The attorney general has the power to play immigration hardball with local officials. For years Mark Kirkorian, executive director of the “Center for Immigration Studies” (an anti-immigration “think tank”) has been advocating for Justice Department lawyers to file suit against non-compliant cities and even criminally prosecute city council members and supervisors for “illegally harboring illegal aliens”.

Since every attorney general has had this power and authority, you may be asking why should we suddenly be concerned about Jeff Sessions. Here are some of the reasons:

So, what can we do? THREE things:

  1. Email your senators. Please don’t waste your efforts on senators outside your state unless you know them personally or you have contributed to them. And please don’t send letters via snail mail – they will be delayed weeks by examiners in the mail room checking for virus-laden powder sprinkled in the envelopes.
  2. Call your senators. You will recall recently that Republican Caucus efforts to defang the House Congressional Ethics Committee had to be abandoned because of all the calls that flooded house member offices. THERE COULD BE NO GREATER COMPLIMENT TO OUR GRASS-ROOTS EFFORTS THAN TO FLOOD THE SENATORIAL PHONE SWITCHBOARD TO THE BREAKING POINT. This should start today – but should continue after that every day until Sessions’ confirmation floor vote approximately a week later.
  3. Ask for help from the companies you may represent on the business side of immigration. As shown above, Sessions is a radical who is a threat to the mainstream Republican business community. Contact your business clients, make them aware of the threat Sessions poses to them, and ask them to email and call their senators.