This week, Attorney General Jeff Sessions told immigration judges they could no longer grant asylum to most migrants who come here trying to escape domestic abuse or gang violence.
How can that be? How can the attorney general, an appointed Republican cabinet member at war with cities like Philadelphia over immigration policy, simply declare that judges must follow his decisions?
Simple. It’s immigration court. And immigration court is not like other courts.
In immigration court, young children can be forced to serve as their own lawyers. Defendants generally don’t have the right to court-appointed attorneys. Judges have little discretion, and in some situations cannot terminate proceedings in a case without approval from ranking government attorneys, immigration attorneys say.
One judge famously described immigration hearings as death penalty cases heard in traffic court settings.
“There’s no mercy in immigration proceedings,” said John Vandenberg of Hogan & Vandenberg LLC, former head of the Philadelphia chapter of the American Immigration Lawyers Association. “You’re either a citizen or you qualify for some sort of relief — that’s it.”
Immigration court is a civil system, not a criminal one. In the vast flow chart of the federal government, these courts come under the Justice Department, not under the judiciary. At the top of the department stands the attorney general, who has the power to issue binding decisions on how immigration judges operate.
That causes the courts to be “vulnerable to the political whims of the executive,” wrote the National Immigrant Justice Center, a Chicago-based advocate.
On Monday, Sessions reversed the ruling of an immigration appeals court that had granted asylum to a Salvadoran woman who said she was physically and emotionally abused by her ex-husband. Sessions wrote that an alien could suffer violence in a foreign country for any number of reasons, but “the asylum statute does not provide redress for all misfortune.”
Sessions said that the mere fact that a foreign nation may struggle to police certain crimes, such as domestic violence or gang violence, or that certain populations are more likely to be victims, cannot by itself establish an asylum claim. There are other proper, legal ways to seek admission to the United States, he wrote, rather than entering illegally and applying for asylum.
Some groups that want tighter controls, like the Washington-based Federation for American Immigration Reform, or FAIR, insist that the asylum system is being gamed by migrants who see a way to avoid deportation. FAIR wants a faster, tougher approach toward people who claim they’re being persecuted in their homelands
Asylum is a legal means of entering the U.S., a protection granted to people who can demonstrate persecution or a well-founded founded fear of persecution in their homeland. Migrants granted asylum can apply to stay in the United States permanently.
In fiscal year 2015, 84,182 people applied for asylum, 40,062 cases were completed, and 15,999 were granted, according to the Department of Homeland Security.
Sessions’ decision makes it much harder for victims of domestic abuse and gang violence to find refuge here. And it does so at a time when rampant domestic violence, poverty and murder are forcing thousands of women and children to flee El Salvador, Honduras and Guatemala, the “Northern Triangle” of Central America that is one of the world’s most dangerous regions, according to the United Nations.
“It’s a civil proceeding, even though the consequences for the people subject to those proceedings can be dire,” said Elizabeth Yaeger, supervising attorney for the Immigrant Youth Advocacy Project of HIAS Pennsylvania. “It [can be] a death sentence, if a person gets sent back.”
Yet in court, she said, a person seeking asylum, who might not have a firm grasp of English, can be pitted against a government attorney. Another issue, she said, is the sheer volume of cases imposed on judges.
The Justice Department told judges in April that they must clear at least 700 cases a year and have less than 15 percent of their decisions overturned to receive a satisfactory rating on their job reviews.
“It really puts a burden on judges, who should be thinking about making the right decision, rather than, ‘Am I going to reach my quota?’” said Jon Landau, an immigration attorney at Landau, Hess, Simon & Choi.
Vandenberg has seen proceedings where small children tried to represent themselves in hearings before a judge.
“It’s corrosive to the soul,” he said. “They’re here because they need help, they need safety, they need refuge. … At this point, it’s an open battle for the soul of America.