During an NPR interview last Friday, White House chief of staff John Kelly defended the Trump administration practice, enacted by Attorney General Jeff Sessions, of separating immigrant children from their parents at the U.S.-Mexico border. When reporter John Burnett commented that critics have called the policy “cruel and heartless,” Kelly answered: “I wouldn’t put it quite that way. The children will be taken care of—put into foster care or whatever.”

While Kelly’s comments briefly dominated headlines, they only scratch the surface of Sessions’ increasing involvement in immigration policy. As Vox’s Dara Lind reported Monday:

Sessions has stepped into the immigration system in an unprecedented manner: giving himself and his office the ability to review, and rewrite, cases that could set precedents for a large share of the hundreds of thousands of immigrants with pending immigration court cases, not to mention all those who are arrested and put into the deportation process in future.

He does so by taking cases that are usually decided by the Justice Department’s Board of Immigration Appeals and refers them to himself to make the final decision.

Lind notes that it’s not certain exactly how Sessions will use this power (he hasn’t given lawyers much information), but it has the potential to “to make it radically harder for immigration judges to push cases off their docket to be resolved elsewhere or paused indefinitely.” As for immigrants themselves, it could “close the best opportunity that tens of thousands of asylum seekers, including most Central Americans, have to stay in the United States.”

The attorney general has always had the power to self-refer cases, but most attorneys general allow the Board of Immigration Appeals at least some level of independence. Sessions has used self-referral three times in 2018.

Part of the problem for immigrants, their advocates and lawyers is that they may have no way of knowing, at least until the last minute, exactly which cases Sessions is taking over. Sessions’ office is supposed to make decisions based on briefs from all parties, but if lawyers don’t know which cases are involved, they are unable to file the best possible brief.

Asylum seekers at risk of domestic violence are particularly worried. During one of the cases that Sessions self-referred, he asked if judges should be allowed to grant asylum to immigrants who were fleeing intimate partner violence as opposed to state violence. In theory the law applies to state violence, “but some judges have found that women in some countries who experience domestic violence are being persecuted for membership in the ‘social group’ of being women,” Lind writes.

If Sessions is in control, domestic violence and immigration advocates believe, this path will be closed. Immigrants from Central America fleeing gang violence have also received asylum based on the “social group” rule and will be at the mercy of their tormentors.

Sessions, who isn’t talking about his decision much at all, has at least claimed that he’s self-referring cases in the name of efficiency. Unfortunately, as Lind concludes, “Sessions’ meddling might not make courts more efficient, but it will make them more brutal.”


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