The Sessions trap on immigration

Over the past month, Attorney General Jeff Sessions has laid the perfect trap to speed up the deportation of immigrants in detention. In the sea of terrible things that the Trump administration has done lately on immigration, this trap has gone largely under the radar.

The Sessions Trap eliminates the most basic elements of fairness, and involves three main parts: First, deny unrepresented immigrants in detention access to the most basic legal information they might need to passably represent themselves; second, pressure immigration judges to decide cases as quickly as possible by tying the judges’ performance evaluations to speed rather than quality; and third, encourage immigration judges to deny applications for relief without even holding an evidentiary hearing.

Sessions exploited a number of weaknesses in the current immigration court system that allowed him to set his trap. First, with very few exceptions, courts have held that immigrants facing the threat of deportation have no right to an attorney if they cannot afford one. This is true even for minor children appearing alone in court, recent arrivals fleeing persecution and torture, and green card holders who have lived in the country for decades.

What’s more, having an attorney can make an enormous difference. Overall, from 2001 to 2018, 54 percent of people in deportation proceedings appeared without counsel, but that number increases to 83 percent when you look at people who are held in detention—typically in remote locations—by U.S. Immigration and Customs Enforcement. Being represented can increase the chances of a positive outcome for people in detention by as much as 1,100 percent. Making it harder for people to understand the law will only make it harder for people to receive a fair shot at avoiding deportation and obtaining relief. In some cases, this is literally the difference between life and death.
Lastly, although immigration courts have some of the trappings of a real court—there is what appears to be a judge, a prosecutor, and a person on trial—that’s where the similarities end. Unlike federal judges who receive lifetime appointments and enjoy a level of ideological independence, immigration judges are effectively subordinate to the Attorney General. Not only does this subject immigration judges to possible discipline by the Attorney General, but it also means that the Attorney General has the authority to unilaterally set precedent for immigration judges.

In early March, Sessions did just that when he referred to himself a 2014 decision by the Board of Immigration Appeals and issued a new, one-page opinion vacating the earlier ruling. In that earlier ruling, the Board held that an immigration judge erred when he denied an application for asylum without holding an evidentiary hearing—including receiving the sworn testimony of the applicant himself—based on the conclusion that the written submission failed as a matter of law to demonstrate the applicant could be eligible for asylum.

By vacating the decision, Sessions signaled to immigration judges that they are no longer bound by the precedent that limited their ability to summarily deny applications for relief.

On March 30, a Department of Justice official issued a memorandum to immigration judges informing them that their performance evaluations will be based largely upon how many cases they are able to complete each year—an average of around three per day. By prioritizing speed—on top of the early March opinion that allows judges to dismiss out of hand claims for relief—this policy encourages judges to order more people deported rather than taking the time to hear their cases.

And finally, Sessions on Tuesday announced that he is suspending the Legal Orientation Program (LOP) that has, for the last 15 years, allowed legal providers around the country to meet with unrepresented people in immigration detention to provide a basic overview of immigration law and removal proceedings.

A 2008 study by the Vera Institute of Justice, the government’s main contractor for the program, found that LOPs increase efficiency and in some circumstances make it far more likely that an individual will win his or her case. DOJ’s own studies have found that the program saves the government millions of dollars. And even today, the website of DOJ’s Executive Office for Immigration Review says that “Experience has shown that the LOP has had positive effects on the immigration court process … and, cases are more likely to be completed faster, resulting in fewer court hearings and less time spent in detention.”
Over the last fifteen months of this administration we have come to expect an extraordinary degree of chaos and mismanagement. But it would be a grave mistake to view the administration’s approach toward immigrants and refugees as anything less than a calculated and intentional effort to increase deportations and decrease future immigration by any means necessary.

The Sessions Trap is a coordinated effort to make it easier to deport people without due process. What might otherwise look like small, separate changes to the immigration system are all part of a larger plan to build a mass deportation machine, which is only gathering steam.

Tom Jawetz is the Vice President for Immigration Policy at the Center for American Progress