“I don’t have an attorney general,” President Donald Trump said in an interview recently, venting his frustration with Jeff Sessions for recusing himself from overseeing the investigation by the special counsel, Robert Mueller.
But anyone who was following Sessions’ actions on immigration had no doubt that he was working hard. Before he was forced to resign on Wednesday, Sessions was exceptionally aggressive as attorney general, using his authority to steer the immigration courts, restrict access for migrants to the asylum system and deploy the federal courts for immigration enforcement purposes.
Under American law, the attorney general has broad powers over the immigration courts, which reside in the Justice Department not in the independent federal judiciary. Sessions, who made immigration a signature issue during his two decades as a Republican senator from Alabama, exercised those powers to rule from on high over the immigration system.
While Trump complained about Sessions, on immigration he was an unerringly loyal soldier, vigorously executing the president’s restrictionist policies.
Sessions made it his mission to reverse what he regarded as a failure to enforce order in the system by President Barack Obama and Democrats in Congress, despite plunging numbers of illegal border crossings and record deportations under the previous administration.
“No great and prosperous nation can have both a generous welfare system and open borders,” Sessions told a gathering of newly-appointed immigration judges in September. “Such a policy is both radical and dangerous. It must be rejected out of hand.”
A primary goal he declared was to speed the work of the immigration courts in order to reduce huge case backlogs. But according to a report this week by the Transactional Records Access Clearinghouse, or TRAC, the backlogs increased during his tenure by 49 percent, reaching an all-time record of more than 768,000 cases. That tally doesn’t include more than 330,000 suspended cases, which justice officials restored to the active caseload.
“I’ve never seen an attorney general who was so active in the immigration sphere and in a negative direction,” said Daniel Kowalski, the editor of Bender’s Immigration Bulletin, a widely-used reference for lawyers. Kowalski said he’s been practicing immigration law for 33 years.
Here are some of Sessions’ measures that shaped the crisis the next attorney general will inherit:
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He imposed case quotas on immigration judges, which went into effect Oct. 1, demanding they complete at least 700 cases a year. With compliance becoming part of a judge’s performance evaluation, the immigration judges’ association has said the quotas impinge on due process.
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He made frequent use of the attorney general’s authority to decide cases if he doesn’t like opinions coming from the immigration courts. Sessions used that authority to constrain judges’ decision-making. He made it more difficult for them to grant continuances to give lawyers time to prepare, and he limited judges’ options to close cases where they concluded deportation was not warranted, as a way to lighten overloaded court dockets.
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Sessions discouraged immigration judges from allowing prosecutors to exercise their discretion to set aside deportations for immigrants with families or other positive reasons to remain in the United States.
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He issued decisions that made it far more difficult for migrants, like those coming in recent years from Central America, to win asylum cases based on fears of criminal gang violence, sexual abuse or other persecution by “private actors,” rather than governments.
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In a policy known as zero tolerance, in April Sessions ordered federal prosecutors along the southwest border to bring charges in federal court against migrants caught crossing the border, for the crime of illegal entry. The policy resulted in parents being separated from their children, in episodes last summer that drew outrage until Trump ordered the separations to stop. But the prosecutions continue for illegal crossers who aren’t parents with children, swelling federal dockets and making it harder for prosecutors to pursue other border crimes, like narcotics and human trafficking, weapons offenses and money-laundering. In September, according to TRAC, 88 percent of the prosecutions in the Southern District of Texas were for an illegal entry misdemeanor; 65 percent of the cases in the Southern District of California were for the same minor crime.
Zero tolerance at the border
Under former Attorney General Jeff Sessions, federal prosecutors in five border districts significantly ramped up the number of misdemeanor cases they filed against migrants crossing illegally this year, particularly in south Texas.
6,000
5,000
4,921 Texas Southern
4,000
3,000
2,000
1,061 Texas Western
1,000
919 California Southern
695 Arizona
346 New Mexico
0
Jan
Feb
March
April
May
June
July
Aug
Sept
6,000
5,000
4,921 Texas Southern
4,000
3,000
2,000
1,061 Texas Western
1,000
919 California Southern
695 Arizona
346 New Mexico
0
Jan
Feb
March
April
May
June
July
Aug
Sept
6K
Texas Southern
4,921
5K
4K
3K
Texas Western
1,061
2K
919 CA Southern
1K
695 Arizona
346 New Mexico
0
Jan
Feb
March
April
May
June
July
Aug
Sept
- Sessions took the position that a program initiated by Obama, which gave protection from deportation to undocumented immigrants who came here as children, was an overreach of executive authority. He declined to defend the program, called Deferred Action for Childhood Arrivals, or DACA, and praised Trump’s decision last year to cancel it. After federal courts allowed the program to continue, the Justice Department fought to bypass the appeals courts and get a hearing before the Supreme Court for its efforts to terminate the program.
Even though his relations with Trump soured early in his tenure, Sessions maintained a line of communication to the White House through Stephen Miller, a senior adviser. Miller was a senior staff member for Sessions in the Senate, and the two share similar views and goals for clamping down on immigration.
Lawyers and advocates say Sessions’ actions have politicized immigration court proceedings. “He stripped the judges of the authority to ensure due process and demonstrated how susceptible the courts are to the whim of politics,” said Mary Meg McCarthy, executive director of the National Immigrant Justice Center, based in Chicago.
Advocates for immigration reform said a new attorney general should restore the flexibility of immigration judges to manage their own dockets to find efficient ways to reduce their caseloads. But they said Sessions’ tenure provided new arguments for Congress to move the immigration courts out of the Justice Department to the federal judiciary.
Gregory Chen, director of government relations for the American Immigration Lawyers Association, said, “The aggressive nature of his actions infringing on the independence of the courts has made the need for a new court system even more urgent.”
