Law Talk 19: Changes in the Immigration Courts

In today’s episode of Law Talk, Ben and Andrew discuss the recent changes in U.S. immigration courts caused by Jeff Sessions’ policy changes.


Andrew: All right cool, and we are live. It is Wednesday, it’s 11 o’clock. I’m here with Ben, the head of our immigration part of our firm and today we’ll be talking about the recent changes that have been happening over the last couple of months in immigration courts, which is a really interesting topic, just because of all the opinions that specifically, Jeff Sessions has been putting out. And I know there’s been a lot of traction in the news about immigration courts in general because there’s been so many changes over the last couple of months. Things have really gotten shaken up.

Ben: Yeah so quite the spotlight put on immigration courts and judges and stuff you don’t usually hear a lot about, so it’s been interesting.

Andrew: Yeah I mean, it’s one of those things people don’t normally think about, but specifically, the backlog in immigration courts is kind of a big problem right and that’s sort of where a lot of these changes in policy and opinions and stuff have been geared towards. So you wanna maybe talk for a second about who Jeff Sessions is and why he has these powers over immigration courts in the first place. What gives him the jurisdiction to make these opinions, I guess, is a decent place to start.

Ben: Okay so immigration courts are sort of, well they’re definitely different than criminal courts. They’re sort of administrative law sort of like an administration more than constitutional law courts or anything. So Jeff Sessions is head of the justice department and basically he is the overseer of immigration courts. By statute, he has a lot of power and a lot of discretion to change things and recently, he’s definitely been using that power to make some changes and as you mentioned, the overlying theme seems to be to speed up the process.

Ben: There’s some debate about how fair that might be to the actual clients, to the people in court proceedings, but the idea is to speed things up because, as you mentioned, there is a crazy high backlog for immigration cases. The court we go to up near D.C. is one of the worst in the country and basically for just to pick an asylum case, the process overall can take three years is typical.

Andrew: Just for a single asylum case of getting it through that court

Ben: Yep, from the time you actually apply for asylum until your final hearing, three years is about, I would say the average time and we’ve had some that have been five, six years in the court system just waiting for a decision so that’s the goal or seems to be the goal of these recent changes to the courts is to speed things up.

Andrew: Yeah and its seems like there’s two main branches of this change that’s been happening. First is the policy and opinion changes. That’s what we’re primarily gonna be talking about today and then also it’s like a side story that we’re really not going to get much into. There’s been a huge increase in hiring new immigration judges, mostly due to this move to, well if you have more judges, we can get through more of these cases that are impacted by our policy things. So we’re mostly gonna focus on the policy things today and there’s three big opinions that we’re gonna cover.

Andrew: The biggest of course is the A-B one which I know you definitely wanna get into. You’ve been looking over it for the last what, several months almost.

Ben: Yeah as soon as it came out a month or two ago.

Andrew: Yeah, so well I think a lot of this really starts though in Jeff Sessions’ strategic caseload reduction plan which is what I’m talking about with the two branches of doing opinions and also hiring more judges and really the first opinion that we’re going to get into is the matter of is it Castro-Tum? I can’t remember-

Ben: Castro-Tum, Castro-Tum.

Andrew: Castro-Tum okay, and sort of like suspended cases. And I know we were talking about this a little bit earlier, but do you wanna sort of give a brief overview of what this does and how it sort of prefaces what we’re gonna be talking about later.

Ben: Yeah so the goal of this again, is to kinda move these cases along, but previously, there were a lot of cases where people had applied for certain visas, certain forms of relief in immigration court, and because also the immigration, USCIS is backed up, it can take several years to get a decision on your applications for certain visas and stuff and so what immigration judges had the authority to do previously was to do what’s called administrative closure, close these cases while they waited for their decision on their visas and stuff.

Andrew: So they’re not giving a decision. They’re just sort of like putting it on the back burner until they have more evidence.

Ben: Right basically they take the case off their docket so they don’t have a next hearing date but they always have the option to reopen the case. So once their visa is decided, if it gets denied, if they’re no longer eligible, these cases are reopened and then they go back into court proceedings which judges were using it as a way to sort of clear their docket and lighten their caseload so the cases that they had could move forward more quickly.

Ben: Sessions and the government say now that people were sort of abusing this administrative closure, judges were using it too much and cases were sort of being just forgotten. They were administratively closed and never reopened and so they basically took away judge’s authority to admin close these cases except for in very limited circumstances. So I think the overall result, and I’d read about the government trying this years ago and it kind of backfired because instead of setting aside these cases, they now have to stay on the docket and it-

Andrew: It increases the caseload.

Ben: Increases the caseload. So we’ll see, it’s been around for a few months, so we’ll see if it speeds anything up or what kind of effect it has.

Andrew: When have you seen anything really related to it over the last couple months, in your experience? I don’t really know anything about immigration courts, so.

Ben: Yeah so it’s hard to explain. The overall effect is that people have just more hearings instead of in the past, we could admin close and wait a year or two for your decision before you had to go back to court. Now you have to go back to court every six months, every year. Keep checking in, make sure there’s progress.

Andrew: They’re basically like check up hearings which with how many cases there are, can really fill up the docket fast.

Ben: Yeah absolutely because when they come back for these hearings, they’re what’s called master hearings, and there’s probably 50 people in the average master hearing.

Andrew: It’s like a machine gun hearing where it’s like what do you got, what do you got, what do you got.

Ben: Yeah, so you wait an hour for two minutes in front of a judge just to say I’m still waiting on this case and they say, okay we’ll see you in six months, see you in a year. So that’s been the effect is just more people have to go to court more often, but the goal is to make sure that lawyers and the clients are actually following through on the relief they say they’re eligible for.

Andrew: To make sure their case isn’t forgotten in between.

Ben: Yep.

Andrew: All right, so I guess this is a good time to transition into the big decision that we’ve sort of talked about. It’s been in the news constantly for the last couple of weeks and months which is the matter of, what’s it specifically called, the Matter of A-B?

Ben: The Matter of A-B.

Andrew: Okay that’s such a weird name.

Ben: Yeah so it’s the board of immigration appeals and they just don’t use the person’s last name for privacy so their two last names start with A-B, it’s just A-B.

Andrew: Okay, I also thought it was weird where it’s like matter of random letters, but the Matter of A-B. So this matter is specifically it seems focused on domestic violence, gang violence, all of these sort of reasons that someone could apply for asylum. So do you maybe wanna give a brief overview of how asylum worked before this and then sort of what it changed because this is like a bomb going off in the immigration lawyers sphere. This changed a lot of things.

Ben: It potentially could.

Andrew: It potentially could.

Ben: There’s arguments that it might not, but definitely the goal is to make some sweeping changes to the way asylum’s decided. So yeah, people that have heard of it have probably heard it in the news as just Sessions and domestic violence asylum or gang based asylum and them getting rid of those cases. So basically, Sessions with his, as I mentioned, broad authority as the overseer of immigration courts and judges, decided that a previous case, the Matter of A-R-C-G was the case everyone relied on for domestic violence based asylum cases.

Ben: And basically Sessions overturned that case and the uproar, the main problem that a lot of even some previous immigration judges signed off on and immigration attorneys are struggling with is that in overturning that one decision, there was 10 to 15 years of previous case law that had been decided by highly qualified immigration judges, federal circuit court judges, board of appeals, board of immigration appeals, that built up this case law that we were basing these domestic violence asylum cases on.

Ben: And so it’s yet to be seen sort of what happens with all those years of precedent, if we can still build a case based on those or if the whole domestic based asylum framework just kinda went out the window.

Andrew: Yeah it seems sort of like a domino, snowball effect where this case has been used so much that by taking it out, we really don’t know what’s gonna happen with everything that’s based on it.

Ben: Yeah and as you said, I’ve been looking into this a lot the last month or so, so I don’t wanna get too much into the details but there’s a lot to work out for how it’s gonna affect immigration cases.

Andrew: I feel bad but I loved the language he used in his actual brief specifically about the matter, It’s that decision was wrongly decided and should not have been issued as a precedent decision. He specifically like, no, this is bad. Don’t do this.

Ben: Which is interesting because the main problem he seems to have with that decision was that the government attorney actually conceded a lot of the facts and the evidence versus making an immigration attorney sort of prove it on the record and show all the evidence. The main problem seemed to be that that particular case was being used as precedent even though the evidence wasn’t that strong. So there’s arguments that if you have the right evidence, domestic based asylum still is a possibility.

Andrew: So I guess a good thing to go into now is what does this order actually change? We’ve mentioned domestic violence based asylum in the last couple of minutes but really how did that process work before and why does it not work anymore? Because it seems like the language is basically like domestic violence or gang activity is the problem of the country that you’re coming from, not like our problem.

Ben: Yeah that’s kinda what he said, and again, this was a domestic violence asylum case and then all the stuff he mentioned about gang violence was just what’s called dicta, it’s just sort of his opinion. It has no real legal bearing or shouldn’t have legal bearing but yeah, so basically just the typical domestic based asylum case is someone in, it’s mostly been Central America, but let’s say someone in Guatemala is stuck in an abusive relationship. The police or the government there don’t really do much about domestic violence.

Ben: It’s sort of a machismo culture where women can be viewed as property and all that by a lot of the cases so they don’t have a lot recourse and so they run. They take their kids and they come to the U.S. and apply for asylum and there are certain elements of asylum they had to prove basically that they were persecuted which is the abuse and then the domestic violence and just that the government in their country was unwilling or unable to help them and there’s other asylum claim parts to the definition that we don’t need to cover.

Ben: But basically, they were stuck in an abusive relationship and couldn’t get help in their country so they came here and that’s been the typical domestic violence case. You have to prove all the elements in court and over a decade or so, we sort of need what evidence you needed to prove those elements, what made a good case, what made a weaker case and we could work off previous cases to build our own asylum.

Andrew: Yeah because it’s highly precedent based. There’s not a list in the U.S. code that’s like these are the reasons for asylum.

Ben: Yeah it is, but the funny part is, there’s also statutes and cases that explicitly remind everyone that it’s a case-by-case basis, so for asylum, you have to create these sorta social groups, which the one Sessions overturned was basically Guatemalan woman stuck in an abusive relationship and unable to leave when sorta their social group-

Andrew: And I think the important point with that is sorta of the fact that the government or the administrative body above them isn’t doing anything to help their situation because I’m looking at the actual order itself and there’s two parts that’s like, where is it?

Andrew: Yeah, the mere fact that a country may have problems effectively policing certain crimes or that certain populations are more likely to be victims of crime cannot itself establish an asylum claim as well as the fact that you need to show the government’s difficulty controlling private behavior, which is sort of what you’re talking about where it’s sort of a societal thing and this decision seems to be like this is still not a valid reason for asylum. Like you can’t just say this person’s being abused and give them asylum. It needs to be abuse based on a protected class kind of.

Ben: And the thing is that back before domestic based asylum existed, as this case law was being built, this is what judges all over the country worked through and heard cases and kind of built this framework for domestic based asylum that actually fit the asylum definition and what now seems to have been overturned.

Ben: But yeah, the way Sessions threw in gang based violence as oh that might also not work, I just get the feeling where it’s like we can’t everyone, so we’re just not gonna help anyone, which is frankly disappointing and that’s the reason a lot of human rights groups and ACLU and everyone is up in arms about this because it turns back the clock on the views of gender based violence, on domestic violence and it could be a real problem for people in this case.

Andrew: Yeah so you’ve been looking over it for the last couple of weeks. Was there anything specific that you thought was kind of interesting that you’ve sort of come up on? Because I haven’t read the order or the thing in-depth.

Ben: Yeah I mean, there’s a lot.

Andrew: There’s a lot of very nitty-gritty stuff and I feel bad for getting like, what are the overarching themes of this, but-

Ben: Yeah so, I mean for anyone that read the opinion, a lot of the things you’ll notice is that Sessions referred to a lot of his own cases in his opinions. So he basically cited himself for reasons for changing the law now. That was just kind of a funny aside but I mean, basically he just didn’t like the ARCG case and part of again, the overall theme of just speeding up cases and lightening the caseload for immigration courts, they’re looking for weak spots, for loopholes that people have been, in their minds, sort of abusing to get their asylum cases through.

Ben: And so he picked this precedent because again, the government attorney had conceded a lot of evidence so it wasn’t a strong case on the record and it had been cited a lot as precedent but yeah, I mean, as I said, the way I read it and the way a lot of people on, I guess our side, on immigration attorneys and human rights activists are reading it is that domestic based asylum is still an opportunity. It’s still a potential case. This just kinda changes-

Andrew: How you prove it [crosstalk 00:17:57].

Ben: How you have to prove it, yeah. And again, judges have a ton of discretion on this. If a case, after this Matter of A-B gets appealed up to say like here in Virginia, the Fourth Circuit and they decide that domestic based asylum is still an option, then that kind of supersedes Sessions’ opinions, so in the Fourth Circuit here, so we just kinda have to wait and see. For now, we just build the best case we can in front of the judge and if they don’t approve it, we can always appeal.

Andrew: It seems interesting, especially with immigration law, that whoever the government official overseeing it is, has such discretion over the case. I know I’ve been doing a lot of visa stuff for our website recently and even immigration court stuff. Whoever the judge or official is basically has the final say. They have a lot of discretion in deciding who gets to stay, who gets to come in, that kind of stuff.

Ben: Yeah, yeah pretty much and that’s why immigration law has undergone so many changes. It’s dependent on kinda who’s in charge because it’s not based on, it’s not in the Constitution. These are sort of administrative laws, executive orders that come from the President, from the head of the justice department, so yeah, basically he can decide, he can make changes and if the courts decide he was wrong or decide to overturn it, then that would kinda be set in stone more than just the current policy is.

Andrew: All right, so the last thing kinda wanted to ask you a couple questions about today was the most recent Jeff Sessions opinion that, I know I emailed you, it came out on the 19th, I believe? It was sometime in the last week or so and it was the Matter of L-A-B-R, which seems to sorta focus on the good cause standard for continuing cases and I glanced over it but did you get a chance to read through it and I’m just sort of interested in what you thought of it because I’m not sure if it’s super important or not. I know a lot of news sites have been picking up on it.

Ben: Yeah so I was actually on vacation when that came out so I didn’t hear about it as it came out. So I’ve read a little bit about it. It seems like one of those again where we’re just gonna have to kinda wait and see, but these opinions and decisions from Sessions are more of sort of directives for immigration judges to follow and so it sounded like he’s basically telling them to take it easy with issuing continuances for cases [crosstalk 00:20:44] good cause to continue a case which he didn’t clearly define so it’ll be interesting to see.

Andrew: Yeah I thought that was weird. There was one moment where he was like, you can’t continue a case for any or no cause. It has to be a good cause and then he never really talks about what a good cause is.

Ben: Yeah and so again, I think this comes from, I mean, I’d like to think a good place of just trying to speed things up because previously, or still if you need a continuance in a case, like if a person goes and they’re still looking for an attorney or if an attorney just got hired and hasn’t had time to file for anything, you ask for a continuance, it usually does get granted at least the one time and it gets continued for like six months because there’s so many cases and judge’s dockets are that full.

Ben: So I think this is a way to sort of, I don’t know, weed out people who are solely trying to delay their process because it does happen and so yeah, it remains to be seen what good cause means, how judges interpret this or use this in courts but yeah, just another way to, I guess, try and speed things up in immigration courts and maybe cut the wait time down from five years to two years or who knows, we’ll see.

Andrew: Yeah, that seems to be a big thing about a lot of the things that have come out. Just cutting down the time it takes to both appoint judges like we mentioned earlier, as well as get people through the process because I know continuance, I mostly know it from the criminal and civil side, but it’s kind of important, especially because for immigration people, you might’ve just gotten this case and they’re going to court in a couple of weeks and you have no way to actually look over the entire case or build a case without continuing it.

Ben: Yeah, I mean it takes time to prepare and with the new changes to asylum law, I mean, it’s kinda more important than ever to make sure you have a strong case to start and to make sure that kinda all your ducks are in a row before you apply. So yeah, I mean, continuances are important and they’re helpful and I guess we just wanna make sure everyone’s using ’em the right way and not sort of abusing the system to buy more time but yeah, I would think good cause, falling under that would be making sure this person has a chance to apply for asylum because again, and this is sort of the counter the speeding things up.

Ben: The overall theme that people that have problems with Sessions and the governments recent changes is that the consequences of denying someone that right to apply for asylum that has a case, basically to win, going back to your country, your life is in danger. So we might weed out some people who are trying to just buy time, who might not have the strongest case, but I mean, how many people do we wanna send back that actually had asylum claims whose lives are in danger just in the name of efficiency. I think we should be careful with that in how we decide which cases need time and which don’t.

Andrew: Yeah, it’s definitely one of those things where it changes how the judges use their discretion. I know, for example, the biggest thing that a lot of new sites picked up on this case and the Matter of A-B, was some case where a woman was basically deported while her immigration attorney was in court arguing for her or something like that and the judge was basically like wait, what happened? And had them turn the plane around and bring her back.

Ben: Yeah that was definitely quite the story.

Andrew: There’s just a lot of miscommunication between all the different arms going on in this and it just seems to be-

Ben: Yeah it’s sort of funny now that the spotlight’s on it because stuff like that happened kinda all the time before I mean, families would have say a father or a husband detained and he would get bounced from immigration detention centers around the country and no one would know where they were and then next thing you know, they’re deported. So I mean, this kind of stuff has been going on for a long time. I mean, if one good thing that comes out of this is that the spotlight’s on it now so we set up and make sure things are being done the right way, I mean, that could be a good thing.

Andrew: Yeah, I know you guys have always mentioned immigration is one of those areas that definitely needs reform of some kind both just in general and also, due to the huge backlog of deportation as well as visa stuff. I can’t remember, I think it was the H1-B Visa, people from China and Mexico are still waiting like ten years. Like they applied 10 years ago and still don’t have any progress on the case.

Ben: Yeah there’s all kinds of crazy timelines for immigration law depending on the situation, but I mean, especially in immigration court because the main relief people have is asylum. I think that’s just much more important to make sure that any reform that comes down that we get it right and still give people a chance to apply for this because I mean, it’s human rights laws, it’s international law, I mean, it’s important to make sure if someone’s actually running for their life, that the U.S. is a place they can actually run to and maybe be safe versus a place we send them running from where we’re just not gonna help anyone. So it’s a balance and we’ll see how it goes.

Andrew: Yeah, it’s definitely very much a, we’ll see kind of thing right now just because again, things are changing so fast that we just need to sit and watch how things specifically land in immigration court and all this other kind of stuff.

Ben: Yeah and that’s also gonna take time. I mean, case appeals takes several months and to appeal the appeal takes several months, so it’ll be a while before we know definitively where asylum law’s going from here but for now, for domestic asylum and possibly gang based asylum, which is pretty much everyone from Central America, it looks like it’s gonna be a tougher road going forward.

Andrew: But it’s not an impossible road. There are definitely still some cases that, or reasons to argue-

Ben: Yeah absolutely.

Andrew: Either for political for other protected classes that asylum still covers.

Ben: Mm-hmm (affirmative) yeah and there’s a ton of resources from certain groups, the immigrant rights groups, and humans rights groups that can help people still looking for asylum, ways to still fit these cases into the asylum definition and we’re doin’ several of them here at the office, so still definitely a reason to try and just see what happens.

Andrew: All right, sounds good. Is there anything else you wanna say in our final moments or?

Ben: No, I mean, I think we covered it all. This is more of a, stay tuned and some day we’ll have better answers for what this all means but for now, anyone paying attention to the news, I mean, this is kinda the background behind all that to what’s actually goin’ on in immigration courts.

Andrew: Yep.

Ben: Yeah, that was good.

Andrew: I’ll provide links to the particular opinions we’ve talked about on our blog and on Facebook and stuff. As for everybody else, have a happy Wednesday. We’ll see you all next week, same time, same place. And keep your eyes on the news just in case anything else happens because things have been changing really fast.

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