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Filed 6:00 a.m.
11.23.2020

Biden Will Try to Unmake Trump’s Immigration Agenda. It Won’t Be Easy.

Restoring asylum claims and judges’ independence will be uphill work.

Migrant families from Central America are released at the border with orders to appear for future hearings in immigration court, on June 11, 2018 in McAllen, Texas.
Migrant families from Central America are released at the border with orders to appear for future hearings in immigration court, on June 11, 2018 in McAllen, Texas.

In one beating, the woman from El Salvador told the immigration judge, her boyfriend’s punches disfigured her jaw and knocked out two front teeth. After raping her, he forced her to have his name tattooed in jagged letters on her back, boasting that he was marking her with his brand.

The judge seemed moved by her testimony. In the hearing in September in the Baltimore immigration court, he found that the woman’s terror of going back to her country, where she said the boyfriend was lying in wait, was credible. But he swiftly denied her asylum claim, saying the danger she faced did not fit any definition of persecution under current interpretations of American law.

This story was published in collaboration with The Guardian.

The outcome for the woman, identified in her confidential asylum case as L.M., was the result of a decision in 2018 by President Trump’s first attorney general, Jeff Sessions. Setting aside two decades of precedent, Sessions ruled that domestic violence and most gang violence could not be the basis for asylum.

As President-elect Joe Biden moves deliberately to transition towards the White House, even while Trump refuses to accept defeat, he has laid out a fast-paced agenda to unwind Trump’s harsh immigration policies. But even if Biden quickly orders a final end to family separations and re-opens the border for asylum-seekers, his plans could stall without action at the Justice Department, which holds extensive power over the immigration system.

To carry out Biden’s proposals, his attorney general will have to reverse decisions by Sessions and Attorney General William Barr that sharply limited asylum, particularly for people like L.M. who are fleeing from Central America. Biden’s justice officials will have to contend with an immigration appeals court loaded by Barr with conservative judges known for denying asylum.

Shutting Down Asylum

DenialsDenialsDenialsDenialsDenialsDenialsDenialsDenialsDenialsDenialsDenialsDenialsDenialsGrantsGrantsGrantsGrantsGrantsGrantsGrantsGrantsGrantsGrantsGrantsGrantsGrantsAdministrative ClosureAdministrative ClosureAdministrative ClosureAdministrative ClosureAdministrative ClosureAdministrative ClosureAdministrative ClosureAdministrative ClosureAdministrative ClosureAdministrative ClosureAdministrative ClosureAdministrative ClosureAdministrative Closure2008201020122014201620182020010,00020,00030,00040,00050,00060,00070,000Under President Obama, asylum denialsdecreased, approvals stayed roughlythe same, and judges closed cases thatwere not priorities for deportation.After President Trump took officein 2017, judges stopped closingcases, and denials soared tothe highest point in a decade.

Incoming justice officials will also have to untangle a web of Trump administration policies that limited the independence of immigration judges. Those policies, intended to speed judges’ decisions, instead produced crippling inefficiencies and spiraling case backlogs in the courts, which are an agency within the Justice Department.

Justice officials will have to re-orient the work of federal prosecutors, who continued mass criminal prosecutions of unauthorized border crossers long after that approach was widely rebuked during the family separation crisis of 2018.

Some of Trump’s actions can be undone relatively easily, legal scholars and former judges and justice officials say. Others require laborious rule-making or slow-moving litigation. For Biden allies hoping to make a fast start, choosing priorities is daunting.

“It’s like a tornado passed through, just wreckage everywhere,” said T. Alexander Aleinikoff, director of the Zolberg Institute on Migration and Mobility at the New School in New York. “Policies that took years to put in place are in ruins. Where do you start?”

Under Trump, a small but expert group of officials set out to shut down the asylum system, which the president scorned as a magnet for huge flows of migrants. They largely succeeded. Over four years, grants of asylum in immigration courts declined to 25 percent of cases, while denials almost tripled to 73 percent, official figures show. In a busy court like Houston, one of the country’s largest, ten of the 13 judges have denied more than 90 percent of asylum cases, according to the Transactional Records Access Clearinghouse, or TRAC, at Syracuse University.

At the same time, Trump’s measures to push judges to move faster largely failed. Under Trump 214 new judges were hired, expanding the corps to 520 judges. Yet the case backlog, which was about 520,000 when Trump took office, has risen to a staggering 1.2 million.

A security officer, center, meets with people outside the immigration court in a federal building in Baltimore to give them a form to come back at a later date because of the coronavirus pandemic, on Monday, July 13, 2020, in Baltimore, Md.

A security officer, center, meets with people outside the immigration court in a federal building in Baltimore to give them a form to come back at a later date because of the coronavirus pandemic, on Monday, July 13, 2020, in Baltimore, Md.

Biden’s plans will run squarely into these obstacles. The president-elect said he would immediately end a program, known as the Migrant Protection Protocols, which forced more than 65,000 asylum-seekers to wait in Mexico—in squalid improvised refugee camps—while their cases are heard in U.S. immigration courts. During the coronavirus pandemic, that program has stalled. But once those cases start moving in the courts, under the current asylum standards many are doomed to fail and end in deportation orders.

To change the standards, the new attorney general could use the same broad powers wielded by his predecessors, which allowed them to take over cases from judges and issue their own precedent-setting opinions. Sessions and Barr set a record for use of that authority, taking over at least 16 cases; Sessions issued five major decisions in 2018 alone.

Biden’s attorney general could reverse decisions by Sessions that prevented victims of domestic and gang violence from winning asylum, and made it difficult to claim asylum based on threats to a close family member.

The new attorney general could also roll back decisions that constrained the authority of immigration judges.

“They carried out a very systematic plan to do away with judicial independence, clearly stacking the deck to get as many deportations as they can,” said Denise Slavin, who served as an immigration judge for 24 years before retiring in 2019.

One of Sessions' decisions blocked judges from exercising discretion to close deportation cases and remove them from the active caseload. Chaos ensued. Judges were forced to press forward with deportations of immigrants, including children, who were well on their way to winning asylum or another legal visa from a different agency in the system.

Judges have chafed under an annual quota of 700 cases imposed by court administrators. And in a final round in the face-off with the judges, who are Justice Department employees, the Trump administration asked the Federal Labor Relations Authority to decertify their union. In a ruling on Nov. 2, the authority sided with the administration, silencing judges who had loudly resisted Trump’s restrictions.

The new administration could eliminate the judges’ case quotas with a policy memo. Supporting a challenge to the labor authority to help reinstate the union, should Biden officials choose to do it, would be an extended legal fight. In the final months of Trump’s presidency, officials are working overtime trying to lock many of his changes into rules and regulations that would take much longer to undo.

Since March, unauthorized border crossers have been summarily expelled under public health orders. As Biden re-opens the border, senior justice officials could move promptly to set new priorities for federal prosecutors, discouraging criminal prosecutions. This would return enforcement to longstanding practices by which most border crossers are charged with immigration violations, which are civil, not criminal, offenses.

Support for that change is emerging even among some Republican conservatives. They argue that thousands of immigration cases have clogged federal courts along the border, diverting prosecutors from focusing on more serious narcotics, money-laundering and smuggling crimes, with little evidence of an impact on migrant flows.

“They waste a lot of money and resources, and more important, they abuse human dignity and constitutional protections, when you round people up like cattle and they don’t understand what’s happening,” said Jonathan Haggerty, a research fellow at R Street, a group promoting free-market, conservative policies. “I don’t think you can make a strong case there is a deterrent effect,” he said.

Some legal scholars worry that Biden, in reversing Trump’s policies, will be no less intrusive, in effect extending what they see as the president’s unabashed political use of the justice system.

“I’m really concerned about the politicization of the courts,” said Jaya Ramji-Nogales, a professor at Temple University Beasley School of Law. She would like to see more authority given to judges so their decisions, and not shifting White House imperatives, would shape the law.

For L.M., Biden’s arrival brings hope that she could still win asylum in the United States. Her lawyer, Christina Wilkes, filed an appeal that will wind slowly through the courts. “By the time we get to our hearing,” Wilkes said, “hopefully we’ll be able to rely on new law.”