May 16, 2018
By Dale L. Wilcox
“If you don’t like that, then don’t smuggle children over our border.”
So said Attorney General Jeff Sessions to a law enforcement conference in Scottsdale, Ariz., recently announcing the Justice Department’s push to start prosecuting all adults caught with minors trying to cross illegally into the country. The news follows the announcement that DOJ was adding 35 new assistant U.S. attorneys to the border to increase prosecutions of human smuggling as well as other immigration offenses, including improper entry. The AG’s self-described “zero-tolerance” approach is very exciting for pro-enforcement advocates and is sure to have huge deterrence effects. It could also be the move that cements Sessions as the foremost immigration policy leader in President Trump’s cabinet, just as he was in the Senate. Or so it should.
To prosecute every adult accompanied with a minor for human smuggling could be the push that finally starts to cut-down the three-year-long surge of family units arriving at the border. The rush of family units making the dangerous journey across Mexico was kicked off following a decision from Judge Dolly Gee of the California’s Central District when she ruled that alien minors accompanied by their parents basically had to be treated as if they were unaccompanied, meaning they were entitled to a quick release from Immigration and Customs Enforcement (ICE) custody pending their removal hearing. The results were predictably disastrous. Immediately after the ruling, ICE and Border Patrol began noticing a newfound phenomenon of cartel-led smuggling groups matching up minors with illegal-alien parents in the U.S. with strangers in Mexico and Central America to pose as their parents. Sessions’ latest move should thankfully put a big crimp in this practice.
Elsewhere recently, Sessions announced a new streamlined hiring process for immigration judges (it currently takes an average of 742 days to secure a new hire) as well as a 33-judge increase at detention centers along the border. This is on top of the 100 added across the country between March and September in 2017 (bringing the level up to 330). This will increase the speed at which cases are adjudicated and reduce the number of aliens who get released into our communities pending their hearings. Median case-completion time is currently over 400 days with outstanding cases standing at just under 700,000. California’s case backlog alone is in excess of 130,000.
While the effects of more judges and prosecutions is easy to grasp, unfortunately for Sessions, he works in a very complicated part of the immigration system and its unsurprising other highly important reforms he’s put in place aren’t getting the amount of media coverage they deserve (and perhaps being lost on by critics in the White House).
Take Sessions’ gradual moves on case referrals. Under 8 C.F.R. § 1003.l(h)(l)(i), the attorney general is empowered to refer cases before the Board of Immigration Appeals to himself for review—other agency heads can also do this and do so frequently. So far, Sessions has done this for several long-standing, yet highly questionable, case precedent; cases which have been starting to seriously challenge the functioning of our immigration system.
Take his referral dealing with the highly complex and increasingly unhinged “particular social group” ground for refugee and asylee-qualification. That ground, originally intended to harmonize with the law’s other persecution grounds, each based on immutable, easily discernable characteristics like one’s race, nationality, or religion, was interpreted more broadly in 2014 to encompass certain forms of domestic abuse and gang victimization. These types of “persecution,” however, aren’t motivated by group-membership, making these types of claims both widely applicable and easily fabricated. They’re certainly a major reason why asylum applications have more than doubled over the past four years.
Equally unappealing to reporters is the attorney general’s referral of a case dealing with the immigration courts’ docket management tools, specifically so-called administrative closures and motions for continuance. Each tool can generally be used when an alien charged with removability has an immigration-benefit petition pending elsewhere which may eliminate the need for removal. The practice, however, incentivizes aliens’ attorneys to file frivolous petitions stretching out the removal decision sometimes for years. And similar to what’s become of the “social group” refugee ground, they’ve expanded so much they’ve become de facto amnesties for otherwise removable aliens. In fact, under Obama, DOJ and ICE created a mass administrative-closures program, removing cases from the courts’ dockets indefinitely by the tens of thousands.
How Sessions will decide these cases isn’t known yet; in each, he’s requested briefs from outside stakeholder groups to assist the decision-making process. My organization, the Immigration Reform Law Institute, has submitted briefs in both). Given the attorney general’s deep understanding of the problems in our immigration enforcement today, I’m very confident the result will be an improved system that further puts the American people first.
It’s certainly hoped the White House and many in the conservative media will soon begin to fully appreciate Sessions’ stellar leadership as the nation’s chief immigration enforcement officer and let him do his job and protect the homeland.
Dale L. Wilcox is executive director and general counsel at the Immigration Reform Law Institute, a public interest law firm working to defend the rights and interests of the American people from the negative effects of mass migration.
Also published at: Dale L. Wilcox, Let the Attorney General Do His Job and Protect the Homeland, The Hill, May 16, 2018
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