The Trump administration’s immigration crackdown, as broad and thorough as it’s been, has run time and again into one big obstacle: laws that guarantee due process to many immigrants apprehended without papers, whether they’re asylum seekers caught at the US border or immigrants living in the US caught by Immigration and Customs Enforcement (ICE).
But Attorney General Jeff Sessions and the Department of Justice have the immigration court system surrounded. And now, like an anaconda, they’re beginning to squeeze.
As part of a broader attack on what it calls the “abuse” of asylum by children and families arriving from Central America, the administration is considering — according to a September memo obtained by CNN’s Tal Kopan — allowing judges to strip people who come to the US as “unaccompanied children” of the legal protections that status provides if they turn 18 while they’re still in immigration proceedings, or if they’re reunited with a parent in the US.
Meanwhile, a report from the Washington Post’s Maria Sacchetti indicates that the Department of Justice wants to start rating immigration judges based on how many cases they resolve — which would put pressure on them to resolve cases more quickly and show less leniency toward immigrants.
These moves aren’t about making more people eligible for deportation. They’re about making fewer people eligible for a full legal process before getting deported. The Trump administration, and the Department of Justice in particular, is renewing its efforts to deter people from coming to the US without papers — even to seek humanitarian protection, as US and international law allows them to do — by making that protection as difficult as possible to get.
The Trump administration is trying to close what it sees as a back door into the US — and its critics see as simple due process
Here’s the problem the Trump administration is trying to address: A large portion of the people who are currently coming to the US without papers are coming as children, or parents with children, from Central America (specifically Guatemala, Honduras, and El Salvador). They’re seeking humanitarian protection from gang violence in their home countries. And Border Patrol agents, under both US and international law, are obligated to allow them to seek it rather than simply turning them away.
To the Trump administration, though, this isn’t an example of border security working — it’s a loophole being exploited by people who just want to sneak into the US. Attorney General Sessions (who gave a speech to immigration judges on Thursday about the “crisis” of asylum abuse) and other administration officials say that too many people are being allowed to stay in the US on the basis of “credible fear” of persecution, and that once they’re released from custody, they are caught up in a years-long, backlogged immigration court process — or simply disappear into American communities rather than showing up for their court dates.
They’re partly right. A majority of people pass their “credible fear” screenings, though that number is dropping as the Trump administration has started to raise alarms with employees about asylum abuse: The approval rate for “credible fear” was 81 percent in October and only 68 percent in June. (Sessions and other Trump officials, unsurprisingly, routinely claim that 89 percent of credible fear applications are being approved — which was true in 2014 but isn’t anymore — to make the problem seem dire.)
The immigration court backlog is, in fact, the biggest obstacle to large-scale deportations — both of asylum seekers and of unauthorized immigrants living in the US arrested by ICE agents. Many immigrants don’t ultimately prevail in immigration court, but the time it takes for them to build their cases (and the fact that immigration courts are understaffed) means that it usually takes months or years for a judge to reach that conclusion.
And many people do miss their court hearings once they’ve settled in the US, though it’s not clear how many of them were lying about their asylum claims; how many simply didn’t know when their court date was; and how many figured out that the judge was unlikely to approve their asylum claims, regardless of whether they were telling the truth.
But the Trump administration can’t simply start turning people away or detaining them en masse. There are laws governing how they have to treat asylum seekers — and how they have to treat families. And people who come to the US as unaccompanied children are given certain legal protections under a 2008 anti-trafficking law — which, among other things, prevents the government from deporting them without a court hearing or deporting them to a third country.
That gives the Trump administration two options: to try to limit the reach of those laws so that fewer people are guaranteed a full judicial process; or to try to make sure that as often as possible, that process ends with immigrants being denied protection.
It’s working on both.
Sessions’s DOJ wants to make it easier for immigrants who come as children to lose protections months or years after they arrive
The new memo, written by the general counsel of the Executive Office of Immigration Review (which oversees immigration judges), is trying to do everything possible under the executive branch’s power to change the anti-trafficking law.
It recommends that the label of “unaccompanied child” — and the protections that come with it — should be stripped by an immigration judge if the immigrant is no longer a minor, or if he’s no longer unaccompanied. (Right now, the label of “unaccompanied child” is basically assigned when an immigrant arrives in the US and is not reviewed by the judge assigned to process the case.)
The first category could hurt people who arrived in the US in their late or even mid-teens — given the lengthy immigration court backlog, it’s possible that it would take a few years for an immigrant to get final approval for humanitarian protections, and that a 15-year-old could simply be stalled in court until turning 18 and becoming imminently deportable.
The second category would hurt children who came to meet parents living in the US (whether those parents are legal immigrants or not). The Trump administration has already started targeting unauthorized immigrants whose children arrive unaccompanied; ICE has targeted them in nationwide raids. Now, it’s sending the message to parents that they are putting not only themselves at risk if they send for their children, but the children as well.
The administration may try to pressure immigration judges to resolve cases quickly
Sessions’s DOJ appears to be moving to pressure immigration judges to move through cases more quickly with this new rating system, as reported by the Post. That would incentivize judges to do things, like stripping “unaccompanied child” protections, that would allow them to close a case more quickly. And it would more generally be a problem for immigrants trying to pull together evidence to make the strongest possible asylum case.
According to the Post, the DOJ has written in internal memos that it “intends to implement numeric performance standards to evaluate [immigration] Judge performance.” It’s not totally clear what those standards are. But given Sessions’s complaints about the length of the court backlog — and guidance sent from DOJ headquarters to judges in July, discouraging them from being too lenient in allowing immigrants to reschedule their hearings for a later date while evidence is being gathered — immigration judges themselves are worried that they’re going to be stuck with “production quotas” for the number of cases they resolve.
Doing this would require the government to change its current contract with the immigration judges union, which prohibits judges from being rated based on how many cases they resolve or how quickly they resolve them. But the judges union told the Post the government is trying to do just that.
Sessions doesn’t appear to be trying to control how judges resolve cases. But the more pressure judges are placed under to resolve cases quickly, the less likely they are to agree to give immigrants time to make the strongest case — and the more likely they are to take any opportunity to deny that an immigrant is entitled to a full hearing at all.
The Trump administration has flipped quickly from celebrating a border “victory” to declaring a “crisis”
Ultimately, the administration’s goal is to stop as many people as possible — including children and families — from even trying to settle in the United States to begin with.
Less than nine months since Trump’s inauguration, his government is already the victim of its own success on border security. Trump came to office claiming that the US-Mexico border was so insecure that it was barely a border at all (despite all evidence to the contrary). But when the number of people (especially Central American children and families) coming to the US plummeted in the first few months of 2017, Trump bragged that he’d fixed the problem simply by coming into office and talking tough, and now the border was secure.
He probably wasn’t wrong — evidence suggests that people really were deterred from coming to the US because they were worried about what Trump would do. But that didn’t last forever, because for children and families, there wasn’t much the Trump administration could do within the bounds of the law as it had been interpreted.
And now the number of Border Patrol apprehensions has started creeping back up. The Trump administration, in response, has flipped from celebrating its victory on border security to treating it as a “crisis” that requires immediate congressional help, and that justifies including all sorts of enforcement measures in Congress’s deal to address the fate of immigrants with DACA.
The problem with the Trump administration judging its success on how few people even come to the US, though, is that it’s not really in the US’s control.
The only thing they can do is punish as many of the people who do arrive as possible, and hope that they spread the word that coming to the US doesn’t work.
It’s going to be hard to execute that kind of crackdown without outright violating the laws that guarantee due process in the name of humanitarian protection. So, apparently, the Trump administration is trying to chip away at due process from the inside, and hoping that might be enough.