Hundreds of thousands more undocumented people in the United States could soon find themselves trapped in the indefinite hell of a for-profit Immigration and Customs Enforcement (ICE) detention center after Attorney General Jeff Sessions sharply curtailed immigration judges’ authority to manage cases on Thursday.
Sessions ordered an end to the practice of “administrative closure,” a tool judges and prosecutors alike have used for decades to manage immigration caseloads. The tool lets judges indefinitely suspend a proceeding so that parallel systems for resolving an immigrant’s fate can play out legally, or simply drop a low-priority case so that more urgent ones can jump the line.
Sessions’ decision prompted immediate backlash from lawyers and judges alike, who warned that the already overwhelmed immigration court system could lock up completely under the massive new burden. And it’s not just the courts that’ll get overstuffed — ICE’s detention efforts are likely to accelerate dramatically as well thanks to the move.
The escalation in ICE detention activity that’s drawn headlines since last winter was just one phase in a multi-stage campaign to purge the country of undocumented immigrants, immigration lawyer David Leopold said in an interview. Sessions’ ruling initiates phase two. Now, without a key tool for navigating cases where someone’s marriage is being verified or their completely clean record persuaded a prosecutor to lay off, a huge number of people will get fast-tracked to the legal status that puts a person on ICE’s round-up radar.
“The first prong of this was going after people with final deportation orders all over the country, the moms and kids being rounded up. But then they’ve also got people in the immigration courts waiting for some sort of relief,” Leopold said. “You’re going to have a whole new slew of people with final deportation orders that are ripe for the picking by ICE.”
More than 215,000 immigration cases were administratively closed from 2011 to 2017. Sessions’ order acknowledges that instantly reincorporating all 200,000 into the already overloaded dockets of immigration courts would be unwieldy, but also says that any case in that pool will be immediately reopened if the Department of Homeland Security requests it.
The decision comes over stern objections from the judges who oversee these proceedings. The National Association of Immigration Judges had pleaded with Sessions to affirm a judge’s authority to take cases off the docket. Sessions’ rejection of that plea Thursday “will result in an enormous increase in our already massive backlog of cases, which will overwhelm the system,” the group warned in a January letter.
Most of the 200,000-plus closures of recent years were done on ICE’s initiative rather than a judge’s, as the agency used the tool as a form of prosecutorial discretion to drop low-priority cases so that people believed to be dangerous could move more quickly through a backlogged system. Sessions seems to ignore that detail in his ruling, portraying the surge in administrative closures as rooted in the same kind of devil-may-care refusal to uphold immigration law that he’s asserted in suing states over “sanctuary” policies.
The lawyers who practice before immigration judges share their objections, and note also that the Attorney General is incorrect on the merits. Sessions’ decision “grossly misinterprets the law and disregards existing federal regulation and decades of immigration court practice,” American Immigration Lawyers Association president Annaluisa Padilla said in a statement Thursday. Sessions “cherry-picked” an outlier case so that he could undermine the key judicial tool, she said.
Sessions’ directive targets a particular population that doesn’t fit with the Trump administration’s proclaimed focus on criminals. Administrative closures are used to pause proceedings for “people who generally have legal options to normalize their status, to give them an opportunity to say, hey I got married to a citizen, they’ll close the case and the person gets a chance to normalize their status,” DHS Watch’s Ur Jaddou said.
Sessions is therefore ordering immigration courts to cut people’s legal appeals short and fast-track them into ICE’s grip.
“Whether it increases actual removals is a different question, because the system is so busy,” Jaddou said. “But it will lead to more people quickly receiving removal orders, and then the process that follows is detention and removal.”
The move is likely only the first in a series Sessions will issue to reshape immigration court proceedings to better suit the Trumpian mood. The Attorney General, who was denied a chance to become a federal judge back in the 1980s after prominent civil rights activists including Coretta Scott King warned the Senate he had a clear track record of racist decisionmaking and speech during his time as a prosecutor in Alabama, has finally found a way to don the decider’s robe. He is inserting himself into the immigration judiciary in an unprecedented way using authority past attorneys general haven’t invoked, as Vox’s Dara Lind detailed recently.
The shape of immigration court proceedings have changed in other dramatic ways under Trump. From 2014 to 2016, the majority of people with cases before an immigration judge were not kept in indefinite detention while waiting for the backlogged system to decide their fate. As you’d expect based on his rhetoric and tone, Trump reversed that pragmatic approach. The share of immigration court defendants who were never detained during their cases dropped from about 70 percent to about 40 percent with the change in administration, according to analysis from the judicial data clearinghouse TRAC.
These numbers suggest the Trump team is committed to keeping as many allegedly undocumented people as possible in detention facilities for as long as possible while they wait for a judge’s ruling.
Apply that philosophy to the move Sessions just made and you get a dramatic jump in the already-high number of humans packed into ICE cages for protracted periods as the courts churn through a redoubled glut of casework. If we must detain as many suspected undocumented immigrants as possible while they await rulings, immigration judges will be judged by a quota, and judges can’t bump cases off their docket to let a green card investigation or other alternative process play out, the natural outcome will be a large jump in the number of people detained and the length of their stays in detention centers.
Horrifying stories of abuse and inhumane conditions pour out of immigration detention centers routinely as it is. The detention jails system is dominated by private contractors motivated by profit not process. People routinely die in ICE custody. Those who live get used as disposable labor to goose prison company profits, or get raped by guards, or simply get left to go mad in crowded squalor and neglect.
Sessions’ plan to jam hundreds of thousands more people back into the administration’s punitive incarceration scheme could yield a catastrophic human rights situation — or scale an existing one up dramatically.
“I see it as a natural progression of the mass deportation going on,” Leopold, the immigration lawyer, said. “This is one more step they’re taking to emptying out the country of people of color.”