To save asylum seekers we must save our immigration courts

On all fronts, the Trump administration is closing our nation to asylum seekers, blocking them from humanitarian protection and endangering their lives. On the one hand, Homeland Security Secretary Nielsen insists that those in flight come to ports of entry, but her agency is forcing people to wait in Mexico for weeks in such dangerous conditions that people must resort to crossing between ports to seek protection.

Attorney General Sessions’ “zero-tolerance” policy to prosecute asylum seekers has put thousands of parents into detention after separating them from their children — literally ripping infants from mothers’ arms.

{mosads}More recently, ICE began threatening parents that they will never see their children again if they don’t sign forms giving up their legal rights. These policies and coercive tactics violate both U.S. and international law which guarantee due process and access to asylum.

Often overlooked is the key role the immigration courts play in ensuring asylum cases are given fair review. But even the courts are under attack. Attorney General Jeff Sessions is leading the charge by using his “certification” power to pluck several cases from the courts and replacing their decisions with his own.

In Matter of Castro-Tum, he curtailed the power of judges to administratively close cases, and most recently in Matter of L-A-B-R-, he restricted their power to grant continuances  both functions are essential tools for judges to manage their dockets, and more importantly, to ensure cases are not rushed through the process at the expense of fairness and justice.

The Attorney General has weighed in forcefully on asylum law stating in the Matter of A-B- that claims for asylum based on domestic violence or gang-based persecution should not qualify for protection.

Under Matter of A-B-, Maria who was granted asylum last year, would be far less likely to receive protection. Maria was severely abused by her husband who threatened to kill her and hurt her two children; she fled Honduras after years of abuse, rape, and beatings. She had repeatedly gone to the police and reported the violence to no avail.

For years courts have been hearing cases like Maria’s and though the law was still evolving, courts had developed criteria for when it would be appropriate to grant asylum based on domestic violence. Now Matter of A-B- has cast decades of court precedent to the wind.

The attorney general is literally re-writing immigration law and constraining the independence of the courts through the aggressive use of the power to certify cases to himself and render his own precedent decisions — a manifestation of the immigration courts being completely controlled by the Department of Justice.

Through the power of the purse, Congress can hold the administration accountable and stop its attacks on the courts, due process, and asylum. Just before taking recess the House Appropriations Committee sent a powerful signal to the Attorney General that he has gone too far by passing an amendment blocking the implementation of his decision Matter of A-B-. “I have great compassion for those victims of domestic violence anywhere,” said Rep. Kevin Yoder (R-Kan.) in explaining why he joined the amendment championed by Congressman David Price (D-N.C.). The bipartisan measure is exactly the way Congress must check executive branch overreach and abuse of power.

But blocking a single or even a few of the Attorney General’s decisions won’t bring the deep, systemic reform needed to save our immigration courts. The administration is now pressuring immigration judges to dispense with their cases more quickly rather than emphasize the fair adjudication of cases. In an address to the judges, the Attorney General said,“Volume is critical. It just is.”

The Justice Department even imposed case completion quotas on immigration judges as part of their individual performance reviews. The move drew outcry from the National Association of Immigration Judges, the judge’s union, as a gross interference with their ability to make reasoned decisions. Even more brazen is the administration’s recent removal of a judge from dozens of cases because it disagreed with the outcome. The move prompted the judge’s union to file a grievance asserting that the administration has violated the union contract, federal statute, and the Constitution.

To guarantee fundamental fairness and due process in every case, the immigration courts cannot operate under the control of the agency that is responsible for the prosecution and enforcement of immigration cases. For years, this structural flaw of housing the courts within the Department of Justice has been recognized as eroding judicial independence. That’s why AILA has launched a nationwide campaign calling upon Congress to pass legislation that creates an independent Article I immigration court.”

Without such reform, the integrity of our immigration court system will remain severely compromised and incapable of ensuring a fair hearing for asylum seekers like Maria and her children — and all persons appearing before the court who deserve a meaningful and fair review of their cases.

Gregory Chen is the director of government relations at the American Immigration Lawyers Association (AILA).