Brief Argues Attorney General Lacks Impartiality Necessary to Decide Immigration Cases

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In a rare move, Attorney General Jeff Sessions recently referred an immigration case to himself, utilizing a regulation that gives attorney generals the power to reconsider cases previously decided by the Board of Immigration Appeals. But Sessions’ hostile anti-immigrant public statements, made over the course of his entire career, make him unfit to rule in an immigration case.

The case that Sessions referred to himself, Matter of Castro-Tum, was administratively closed by an immigration judge. Administrative closure is an important mechanism that helps overburdened immigration judges control their caseloads by allowing them to temporarily remove a case from an immigration court docket. Judges are then able to prioritize hearings and stop removal of people who are awaiting the resolution of other matters relevant to their immigration cases.

In referring the case to himself, Sessions plans to decide important questions relating to the longstanding practice of administrative closure in immigration court and may decide to terminate the practice. Limiting or ending the use of administrative closure would have far-reaching consequences for those in removal proceedings, including adding tens of thousands of cases to an already over-burdened immigration court system.

In an amicus (friend of the court) brief filed in the case, immigrants’ rights organizations are arguing that Sessions is unfit to weigh in on these important questions.

The organizations that submitted the amicus brief first noted that Sessions chose to bring the full force of the attorney general’s office to bear against a particularly vulnerable individual. Castro-Tum, the young man in the case, was placed in removal proceedings when he was a minor and has never been represented by an attorney in his immigration case.

The brief outlines the reasons why Sessions’ involvement is not tolerable under our Constitution. Due process, the organizations argue, “requires a neutral decisionmaker in immigration proceedings,” and three main categories of statements disqualify Sessions from deciding this case:

  • Public remarks indicating he decided to end administration closure before referring this case to himself;
  • Statements indicating a bias toward unaccompanied children, such as Castro-Tum; and
  • Hostile public commentary toward noncitizens who do not meet Sessions’ standards for income, education, professional skills, and language ability, or whose family ties might provide a basis for immigration status.

Sessions recently, publicly proclaimed that the Trump administration would be focused on resolving cases with a “removal order or a grant of relief” and criticized the use of administrative closure during the Obama administration. As the brief points out, these recent statements are consistent with many former statements where Sessions expresses opposition to any practice that may prolong removal proceedings.

In public remarks, Sessions has also directly linked unaccompanied minors—a designation given to Castro-Tum—to the gang MS-13. Sessions has stated on multiple occasions that the gang is “replenishing its ranks” by exploiting the unaccompanied minors program and has likened unaccompanied minors to “sheep in wolves clothing.”

Finally, Sessions has long advocated that the United States should give priority to those who speak English or are highly skilled. He has also publicly opposed family-based migration—administrative closure often provides time for a noncitizen in removal proceedings to pursue an immigration benefit through a family relationship.

The brief argues these remarks make his participation untenable, noting:

Were an immigration judge or member of the Board to express similar views, the federal courts would vacate the ensuing removal order, holding that the adjudicator’s lack of impartiality violated basic principles of due process. At a minimum, an Attorney General who holds such views must be held to the same standards as the Department of Justice employees he oversees; the Attorney General is not above the law.

Crucial decisions regarding the future of Castro-Tum and administrative closure must be made by an impartial adjudicator. Due process requires that Sessions either vacate the order referring the case to himself or recuse himself from the case.

 

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