Sunday, Sept. 23, 2018 | 2 a.m.
Quietly, the Trump administration recently launched its latest attack on the nation’s independent judiciary system.
It came via an order by theJustice Department to revive immigration cases that were shelved indefinitely under a practice known as administrative closure. Attorney General Jeff Sessions ruled that federal immigration judges did not have the authority to close cases through that method, the latest in a number of steps by the administration to curtail judges’ ability to stand in the way of its disgraceful deportation practices.
By eliminating administrative closure, the administration has taken away a tool that for years has helped courts deal with a crushing backlog of cases and has given judges discretion to resolve cases in a fair, due process-based manner.
It’s used in situations in which there’s a good chance an immigrant can obtain documented status, but federal officials need more time to investigate the legitimacy of an asylum claim, a proposed marriage to a U.S. citizen, etc. Judges can simply park cases temporarily, delaying deportation proceedings while vetting is carried out.
Administrative closures are effective in many cases, so much so that prosecutors often request them. They work for both the courts and the defendants, helping keep the caseload moving and providing a way for immigrants to remain in the U.S. while obtaining their documentation.
Or, rather, they used to.
Then came Sessions’ order, which could put some 355,000 cases back on court dockets. That not only puts immigrants at risk of being deported before their immigration status is cemented, but it threatens to add to the glut of unresolved cases — about 730,000 — and dials up the pressure on judges to clear out the backlog via deportation orders.
“Sessions is using his authority as attorney general to turn the immigration courts into a deportation assembly line, with (Immigration and Customs Enforcement) officers waiting at the exits with open handcuffs in hand,” said David Leopold, who oversees the immigration law group at Ulmer & Berne, to The New York Times.
For the record, the Justice Department has proposed addressing the backlog through such means as increased use of teleconferencing to allow judges to handle cases remotely, creating a new electronic filing system and streamlining the hiring process for judges.
But much of that plan will take time to implement, and meanwhile Sessions’ order could swamp the courts with reopened cases.
With less discretion and more cases to move, judges will have little choice but to issue more deportation orders. What’s worse, Sessions’ order comes less than six months after the administration established a quota for judges to resolve immigration cases. Under the quota, judges are evaluated based on how many cases they close and how fast they move cases through the system, meaning justices are incentivized to issue deportation orders as opposed to finding a pragmatic, fair and compassionate way to resolve them.
“Make no mistake, the outcome this administration truly desires from mandating quotas on an understaffed adjudicatory agency with a needlessly overstuffed docket is to transform it into a deportation machine,” Jeremy McKinney, a North Carolina immigration attorney and secretary of the American Immigration Lawyers Association, said in a media conference after the quota order.
All the while, the Trump administration has been inundating the court by ending a previous practice of only targeting the most dangerous cases for prosecution.
To her credit, Sen. Catherine Cortez Masto, D-Nev., has been watching the situation closely, and last week joined several Senate Democrats in raising a red flag about Sessions’ order on administrative closure. The group sent a letter to Sessions and Department of Homeland Security Secretary Kirstjen Nielsen requesting details about how the order would be carried out and saying the order would “undeniably overwhelm” the system. The senators went on to urge the administration to adopt recommendations that were made by an independent evaluator for the Justice Department to handle the backlog, none of which included eliminating administrative closure.
Beyond the implications for immigrants, judges and the courts, though, the order has broader implications. It’s an assault on the independence of the American judiciary, a fundamental need for any legal system and for our democracy.
Constraining judges’ discretion and taking away their authority is the stuff of dictators, not American presidents. Surely, even immigration hawks can understand the dangers that are inherent in moves like this.
The courts don’t belong to President Donald Trump. And as Cortez Masto showed, Nevada isn’t going to stand by and watch him hijack them.