Attorney General Jeff Sessions issued a directive to immigration judges Thursday telling them they can no longer shunt deportation cases off onto permanent wait lists and leave illegal immigrants free to roam the U.S.
Known as administrative closure, the wait list had become a favorite tactic of the Obama administration, serving to protect low-priority illegal immigrants from deportation.
Rather than pursue those cases, government attorneys would propose — and judges would grant — administrative closure by shipping more than 200,000 cases to the suspension list in what analysts said became a de facto amnesty.
Mr. Sessions, flexing his attorney general powers, ruled Thursday that the policy rested on shaky legal ground. He issued a precedent telling judges to decide the cases in front of them rather than rely on administrative closure.
“No attorney general has delegated such broad authority, and legal or policy arguments do not justify it. I therefore hold that immigration judges and the Board [of Immigration Appeals] lack this authority except where a previous regulation or settlement agreement has expressly conferred it,” Mr. Sessions said in his decision.
The ruling could, in the short term, speed up deportation decisions on the children and families that have surged into the U.S. over the past five years.
Indeed, it was one of those unaccompanied alien children cases that spurred Mr. Sessions to act.
A 17-year-old named Reynaldo Castro-Tum was nabbed crossing the border illegally in 2014. He was sent to live with his brother-in-law while he awaited deportation.
Mr. Castro-Tum was supposed to come back for his hearing but ignored all five summonses sent from the court to his brother-in-law’s address. Rather than order him deported in absentia, the immigration judge granted an administrative closure, essentially giving the now-adult illegal immigrant a tentative pass.
It was one of more than 215,000 cases shunted onto the administrative closure list from fiscal year 2012 through fiscal year 2017, sending the total off-calendar backlog to more than 350,000 cases. When combined with some 690,000 other pending cases, the immigration court has more than 1 million cases awaiting rulings.
Mr. Sessions’ decision does not immediately reopen the 350,000 cases on the closure list. He said he feared overwhelming the already stressed immigration courts.
Even before his ruling, the government was making headway in cutting the backlog, suggesting an interest in getting those cases off the wait list and onto deportation dockets.
“Attorney General Sessions is doing what should have been done long ago, which is trying to ensure that illegal aliens are actually found deportable, then removed from the United States, rather than leaving them here in limbo, still illegal but living under color of law,” said Rosemary Jenks, government relations manager for NumbersUSA, which pushes for stricter immigration limits.
Administrative closure was part of the Obama administration’s response to Congress’ failure to legalize illegal immigrants. Left without a permanent solution, Mr. Obama ordered his aides to find other ways to protect illegal immigrants from deportation through “prosecutorial discretion.”
One answer was the 2012 DACA policy, which not only protected “Dreamers” from deportation but also granted them work permits, Social Security numbers and some taxpayer benefits, giving them a more firm footing.
For migrants who didn’t qualify for Deferred Action for Childhood Arrivals but still had low levels of criminal behavior, the Obama administration ordered Homeland Security not to lodge deportation cases against them and ordered immigration judges to close out their cases without deporting them when circumstances warranted.
Immigrant rights groups were still digesting Mr. Sessions’ ruling Thursday evening, but their early reading was grim. They said the attorney general was stripping immigration judges of long-held discretion.
“The decision is bad law, bad policy, and harmful to immigrants and their communities,” said Trina Realmuto, an attorney with the American Immigration Council who accused Mr. Sessions of showing “anti-immigrant animus.”
The immigration council said Mr. Sessions was not an impartial arbiter and should not have used his attorney general powers to refer Mr. Castro-Tatum’s case to himself for a final ruling.
Even as Mr. Sessions moved to speed up deportations, U.S. Immigration and Customs Enforcement said it was already arresting and deporting more people in the interior of the country.
Through the first half of fiscal year 2018, ICE arrests were up more than 26 percent, nearly reaching the 80,000 mark. ICE deportations, meanwhile, were up 17 percent.
That is still well under the rates achieved during the height of the Obama administration, when Mr. Obama earned the label “deporter in chief” from angry immigrant rights groups.
But it does suggest changes at Homeland Security to make more migrants eligible for deportation.
Corey Price, assistant director for enforcement and removal at ICE, said they were told during the Obama era not to bother with illegal immigrants who didn’t have major criminal records. That has changed.
“Under this administration, we have been asked and told under the executive orders to open that aperture back up,” he said.
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