Latest Attorney General Decision Underscores Need for Judicial Independence
By: Maleeha Haq
Attorney General’s latest decision further highlights the need for immigration court to be independent of the Department of Justice.
Because the country’s immigration court and their appellate body, the Board of Immigration Appeal, all fall under the purview of the Department of Justice, they are bound by any decisions made by the head of that agency – the Attorney General of the United States. The current Attorney General, Jefferson Sessions, has a long history of anti-immigrant attitudes. Under the guise of “efficiency,” he has recently restricted the ability of Immigration Judges to grant continuances in certain cases before them in Matter of LABR, 27 I&N Dec. 405 (A.G. 2018).
An immigration judge is allowed to continue any case before them for “good cause” under current law. In Matter of LABR, the Attorney General severely restricted the definition of “good cause” to continue a case, where the person in court has another kind of immigration application pending which is not before the Immigration Judge. Previously, in such cases, Immigration Judges would often continue the case before them to allow the intending immigrant a chance to get immigration status through other agencies. Now, Immigration Judges will be expected to move forward in many cases, despite the person before them having the possibility of securing status through other means, which could result in removal orders and eventual deportation for many people. For example, someone might have a U-visa pending before USCIS, or even an immigrant petition from their spouse pending (I-130), and now this person could face removal.
As a practical matter, this is a waste of judicial resources since the individual who may have other relief would likely have to pursue appellate remedies to pursue their potential relief through a family member or other visa.
The Attorney General’s decision to control the decision-making process of the nation’s Immigration Judges further highlights the need for the Immigration Courts to be independent of the Department of Justice. Congress must act to make the nation’s immigration courts a part of the federal judiciary, rather than administrative courts under the Department of Justice.