Hurry-Up Justice for Immigrants

Over the past several months Attorney General Jeff Sessions has announced several changes in the enforcement of immigration law.  All three of these changes are unconstitutional and will significantly restrict the legal rights of immigrants to due process as guaranteed under the Fifth and the Fourteenth Amendments. 

• In March, Sessions announced the elimination of a requirement that asylum seekers get a full hearing before an immigration judge if, upon initial review, the asylum seeker’s claims appear to be fraudulent or unlikely to succeed.  While immigrant law expressly gives no right to appointed counsel, now immigrants will, in addition, have no opportunity to present their full case to anyone.  This will especially impact not only poor, marginally educated applicants who are unfamiliar with the system and cannot easily present their case but also juvenile cases, which can be quite complicated and time-consuming. 

• In a little-noticed decision, the Department of Justice will in October begin effectively imposing quotas on the 350 US immigration judges, requiring each judge to process and clear 700 cases per year.  With a backlog of well over 650,000 cases which average over 700 days to wend their way to decision, clearly something needs to be done, but the National Association of Immigration objects that

[P]roduction quotas put due process at risk and threaten judicial independence. … Due process cannot be meted out on a schedule, but requires judges to use their expertise on a case-by-case basis to move cases as fairly and efficiently as possible.

A far more appropriate solution to the backlog would be the appointment of many more immigration judges.  President Trump has said he is against more judges.  And his call to deny due process and send immigrants back without appearing before justices (which I will deal with in more detail in the next post) makes his position clearer.

• And just this week, US Attorney General Jeff Sessions announced that

claims by aliens pertaining to domestic violence or gang violence perpetrated by non-governmental actors will not qualify for asylum. …  The mere fact that a country may have problems effectively policing certain crimes — such as domestic violence or gang violence — or that certain populations are more likely to be victims of crime, cannot itself establish an asylum claim.

In other words, victims of domestic violence or gang violence—no matter the risk of injury or death on return to their home country—will have no right to claim asylum.**  

The Attorney General does have the legal right to make determinations about immigration.  But before the government can deprive a person of “life, liberty, or the pursuit of justice,” due process requires, at a legal minimum,

• the person be given notice of the procedure,
• they be given an opportunity to be heard, and 
• the decision is made by made by a neutral decision maker.  

In actual practice, however, due process also includes

• the right to present arguments against the decision, 
• opportunity to be represented by counsel, 
• the right to present evidence, and other procedures.

As opposed to popular understanding (and the opinions of some talk-show hosts), the Supreme Court has several times ruled that—except for voting, some government jobs and gun ownership—even undocumented immigrants are entitled to the full constitutional rights of a citizen.

Unlike regulars judges, immigration judges—who decide the potentially life-alternating fates of undocumented refugees—are employees of the Justice Department and, therefore, the Executive Branch of government.  They do not enjoy the same constitutional protections as judges who work in the in the Judicial Branch of government, which means that although immigration judges still have to follow the Constitution in their decisions, they do not have the same protection from political pressure.

Immigration lawyers are hired by the Attorney General and, unlike most judges, do not have tenure-for-life but can be fired or relocated by the Department of Justice. This makes them exceptionally prone to political pressure.

Although the independence of immigration judges is protected in law—Federal regulations state that judges “exercise independent judgment and discretion”—these actions by the Attorney General place enormous pressure on the judges and will, in practice, compromise their independent judgment.

While there has been a great deal of media and public attention to Trump’s wall, Obama’s leniency, DACA recipients and so on, there has been little such attention to these administrative changes that will have profound impact on whether undocumented immigrants will get a fair chance to claim their lawful and rightful place in the country.

Once again, democracy takes powerful but almost unnoticed hits.
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** There is an exception if the applicant can show that “their home government is unable or unwilling to protect them, and that they cannot safely relocate to another part of their country,” a requirement that all but the richest applicants with access to experienced lawyers and investigators could meet.  Certainly few poor, undocumented immigrants could possibly qualify.