Anti-immigration Jeff Sessions will have near total control of immigration courts

So far, most of the attention around Jeff Sessions’ nomination as attorney general has focused on the senator’s track record on civil rights and race. And rightfully so — these issues are at the core of the Justice Department’s mandate.

But there is another realm in which Sessions is poised to wield tremendous influence as attorney general, and it happens to be his No. 1 issue as a senator: immigration.

Over his two decades in the senate, Sessions has consistently distinguished himself as an immigration hard-liner beyond any other in Congress. He has many ties to the organized, nativist right, something for which he has received extensive criticism from advocates. “Jeff Sessions may be the most dangerous ally that extremist anti-immigrant groups have in Congress,” said Lindsay Schubiner of the Center for New Community, a group that tracks racist and xenophobic organizations.

In January 2015, only a few months before Trump announced his candidacy, Sessions wrote a memo to congressional Republicans that prefigured the strategy that would win Trump the presidency: appealing to the white working class by blaming their problems on immigration. “Democrats fight with more passion in defense of illegal immigrants than Republicans fight in defense of American workers,” Sessions wrote.

Much of the federal government’s immigration enforcement mechanism lies under the Department of Homeland Security, but there are several ways the Department of Justice can decide the fate of millions of immigrants. Chief among them is the system of immigration courts. These tribunals function in many ways like normal courts, with judges hearing arguments from two sides of opposing counsel. But they are not a part of the judicial system — they are part of the Executive Office of Immigration Review, which lies within the Department of Justice.

During the confirmation hearings on Monday, Sessions was asked a series of questions by Sen. Dick Durbin, Democrat of Illinois, that included references to the immigration court system. However, Sessions did not address the courts directly, instead saying that the State Department is responsible for vetting and admitting refugees.

The immigration courts do not determine who is allowed into the country, only who is kicked out. The Executive Office of Immigration Review includes a network of 58 immigration courts, where judges hear the cases of immigrants the government is trying to deport and make a determination about whether they should be allowed to stay. These decisions can then be contested before the Board of Immigration Appeals, which is also under the purview of the Department of Justice.

The attorney general has near-total control over the functioning of the immigration courts, and can repurpose them toward the goal of deporting more people more easily and quickly. The attorney general can also unilaterally change decisions made by the Board of Immigration Appeals, and these decisions establish precedent for how immigration law is applied by the U.S. government.

For instance, attorneys general can use personnel decisions to achieve changes in the culture of the courts. In 2003, then-Attorney General John Ashcroft, in an ostensible streamlining effort, eliminated several positions on the Board of Immigration Appeals. Some observers protested that the judges removed from the board as a result tended to be liberal judges who often took favorable positions toward immigrants.

“If you have people like Sessions who have the propensity to deport people in the first place, it’s going to be very difficult to get impartial judges sitting [in the immigration courts and on the board of appeals],” said Lory Rosenberg, one of the board members pushed out by Ashcroft. “That’ll be a huge problem. There’s a lot of unscrutinized power that the attorney general has in making these decisions.”

A source inside the immigration court system, who asked to remain anonymous, said there is anxiety among judges about the possibility that Sessions will put pressure on judges to deport more people, thus straining their ability to provide due process to immigrants facing removal who might have a legitimate legal recourse to stay.

“People are terrified, and people are demoralized,” the source said. “Because you want someone who you feel at least honors the institution.”

Paul Schmidt, another member of the Board of Immigration Appeals forced out by Ashcroft in 2003, said that although the immigration court system is relatively obscure, its scale and influence are large.

“Sessions is about to run one of the largest court systems in the United States, with no congressional oversight,” Schmidt said. “There are half a million backed-up cases, and everybody in each one of those cases probably has relatives, friends, employers, fellow students, whatever. Millions of lives are tied up in what’s happening in immigration court.”