Biden announces Garland as nominee to lead Justice Department, sprawling immigration courts—01-08-21
Immigration news, in context
This is the sixty-second edition of BORDER/LINES, a weekly newsletter by Felipe De La Hoz and Gaby Del Valle designed to get you up to speed on the big developments in immigration policy. Reach out with feedback, suggestions, tips, and ideas at BorderLines.News@protonmail.ch.
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This week’s edition:
In The Big Picture, we examine the selection of Merrick Garland as President-elect Biden’s nominee to run the Justice Department, and the immigration implications.
In Under the Radar, we look at a last-minute memo attempting to make asylum more difficult for children.
In Next Destination, we discuss a puzzling new memo on restricting entry to supposed members of antifa.
The Big Picture
The news: Biden transition officials have confirmed that D.C. Circuit Court Judge Merrick Garland—Barack Obama’s pick to fill the Supreme Court seat left vacant by the death of Antonin Scalia, whose nomination was blocked by the GOP-controlled Senate—will be nominated to be Attorney General. The position would give him purview over the nation’s system of immigration courts as well as multiple fronts of ongoing immigration litigation.
Attorneys General and immigration policy
The Attorney General has a substantial amount of power with regards to immigration, particularly when it comes to the courts. Trump’s four attorneys general—Jeff Sessions, Matthew Whitaker, Bill Barr, and Jeffrey Rosen—oversaw numerous policies intended to reduce immigration judges’ power, expedite immigrants’ cases and deny their due process rights, and limit immigrants’ ability to obtain asylum or other protections.
Of course, these weren’t the stated goals. In 2017, for example, Sessions issued a memo ostensibly intended to make the Executive Office for Immigration Review—the DOJ agency that runs the immigration courts—more efficient. EOIR’s subsequent “Strategic Caseload Reduction Plan” was similarly described as an attempt to cut down on the immigration courts’ massive backlog. Under these policies, new immigration judges (many with prosecutorial or other adversarial backgrounds) were hired, the hiring process was reduced from two years to six to eight months, immigration judges were given case quotas, EOIR implemented a “no dark courtrooms” policy requiring all courtrooms to be used every workday, and the agency ramped up its use of video hearings for detained immigrants.
At the same time, however, Sessions acted in ways that increased the backlog of open cases. In 2018, Sessions issued a precedential decision, Matter of Castro-Tum, ending the use of administrative closure, under which immigration judges could temporarily close immigrants’ cases rather than issuing a decision.
Sessions also oversaw part of the 2018 “zero-tolerance” policy that led to mass family separations at the U.S.-Mexico border. He instructed DOJ to prosecute any adult who crossed the border without authorization. The parents were taken into criminal custody, and their children, being minors, couldn’t go with them, triggering the separations. Without these prosecutions, family separation could not have happened at the scale that it did. While there were some reported instances of families being separated after crossing into the U.S. at ports of entry, DOJ’s decision to prosecute is what facilitated most of the separations. Separating families was the entire point—the prosecutions were just pretext.
As mentioned above, the attorney general has the ability to issue precedential decisions on immigration cases. Another decision issued by Sessions, Matter of A-B, made it harder for victims of interpersonal violence like gang violence and domestic abuse to qualify for asylum, even in cases where the government in their country was unwilling or able to protect them. Matter of L-E-A, A subsequent decision issued by Barr in 2019, made it more difficult for asylum seekers to claim persecution based on family membership. For example, if someone was being persecuted by a gang because their relative refused to join said gang, that would no longer qualify as persecution that would qualify them for asylum. Only members of prominent or recognizable families, Barr ruled, could credibly claim their family status as grounds for persecution.
The AG is also responsible for nominating judges to the Board of Immigration Appeals, the immigration courts’ appellate body. Under Trump, the BIA was stacked with partisan officials with a clear anti-immigrant bent; one judge promoted to the BIA once threatened to sic an attack dog on a migrant child in court.
Under Trump’s numerous attorneys general, the DOJ also fought to decertify the immigration judges’ union—a years-long fight it ultimately won in November 2020. The union has largely resisted the administration’s policies, with judges claiming that the DOJ has worked to strip them of all discretion, has restricted immigrants’ due process rights, and has put them in danger throughout the ongoing pandemic.
Where Garland fits in
Democrats’ Senate victories in the Georgia runoff elections this week essentially guarantee that Biden’s cabinet nominees, including Garland, are confirmed to their posts. Garland doesn’t have a particularly deep immigration record to draw from, having apparently not been involved in any significant immigration-related published decisions. (It’s possible he’s ruled on individual Habeas cases for immigrants in custody, but those aren’t readily accessible.) While the D.C. Circuit Court of Appeals has heard some interesting cases in recent times—notably, it allowed the administration to enact its expanded expedited removal program and is currently hearing a case on whether migrants who crossed the border illegally can be blocked from accessing asylum—Judge Garland has not been on the panels hearing them.
Nonetheless, his record certainly contains hints about how he would approach his new role as overseer of the immigration court system. Of particular note are decisions that shed light on his approach to executive discretion and agency decision-making and deference to prosecutorial action. During his nomination to the Supreme Court, he drew scrutiny for his approach to cases brought by Guantanamo Bay detainees seeking their release and challenging government evidence alleging they were enemy combatants or otherwise guilty. By and large, Garland tended to side with the government, ruling that as long as clear and egregious errors hadn’t been committed, it was its prerogative to decide who fulfilled military definitions for combatant and posed a threat.
Guantanamo detainees and civil immigrant respondents are obviously not in equivalent situations, but they share the characteristics of being noncitizens in specialized proceedings in which traditionally the government has been given some deference. In his decisions on domestic criminal cases, Garland has also typically been receptive to law enforcement arguments, including by registering dissents in which he disagreed with fellow judges’ rulings in favor of defendants. His opinions have broadly considered that prosecutors know best in interpreting evidence and applying their expertise.
While it is true that both the prosecutors and the judges in the immigration court system are part of the executive branch, they do reside in separate departments, with the prosecutors being part of ICE, in Homeland Security, and the judges falling under DOJ. The Attorney General would still be tasked with figuring out the right extent to which judges should generally be deferential to the government’s arguments, and the evidence suggests that Garland will fall more on the deferential side of things.
Given his more moderate tendencies, and having been a judge himself, it’s also likely that Garland will take a somewhat hands-off approach to the immigration judges he oversees, as opposed to the much more activist approach of his Trump-era predecessors. As we’ve noted before, unlike their federal judiciary counterparts, immigration judges are not independent and can be hired and fired by the Attorney General. To take a hands-off approach in this case, though, means to leave in place a structure that has already been reshaped to the current administration’s restrictionist agenda. Among other things, the immigration court’s appellate division has been twisted into a Stephen Miller enforcement arm, with new appointments putting out a steady stream of restrictionist policy.
To even return the court’s operations to a semblance of independence and due process would require sustained and deliberate intervention by the attorney general, but it’s not clear that Garland would take this on. It would be a complex undertaking invariably labeled as partisan meddling by the bad-faith partisan actors who themselves reconstructed the system in the first place. Several Biden transition advisers and incoming officials have already warned that the new administration ultimately does not intend to immediately turn back all of the Trump-era border immigration agenda, citing a fear of a border ‘surge’ and processing capacity issues. The same argument could be deployed with regards to the immigration courts, with the potential claim that enacting greater protections for respondents could incentivize increases in unlawful immigration.
Most of the attorney general’s power here comes from setting general policy and picking the judges and executive staff that constitute the court system, but they also have the power to overrule the Board of Immigration Appeals and directly set precedent. This was a relatively little-used power under prior administrations, but Trump’s attorneys general have deployed it with relish, as we have noted above. The extent to which Garland might want to deploy this ability remains to be seen. On the one hand, as a former appellate-level federal judge, he might be inclined to issue his own rulings. On the other, a desire to turn away from the activist stance of the Trump years could lead him to shy away from using his authority in this expansive manner.
This calculus might also extend all of the immigration litigation currently in progress. The Trump administration is engaged in a broad array of lawsuits over access to asylum, procedural immigration restrictions, Visa processing, internal immigration enforcement, and other aspects of the immigration system. If the new administration ultimately intends to reverse many of the prior administration’s policies, an immediate first step would be to drop its defense of these policies in federal court.
The reticence already on display doesn’t exactly bode well for this eventuality, and so Garland could end up in the odd position of having his attorneys defend policies that the administration may ideologically oppose but views as necessary to prevent some kind of border emergency. (As many others have pointed out, the connection between complicated federal policy and humanitarian migration is tenuous at best. Generally, people fleeing violence and persecution will do so no matter the domestic political situation in their intended place of asylum.)
Under the Radar
ICE pushes through last-minute policy targeting unaccompanied immigrant children
Under a new ICE policy directive issued in late December, immigration officers are now required to review whether immigrant children who arrived at the border without their parents are still “unaccompanied” every time they encounter the child, BuzzFeed News reports. The memo was issued on Dec. 29 by former acting ICE head Tony Pham, who left the position just two days later.
Migrant children who arrive at the border without their parents or legal guardians are considered “unaccompanied” and are subject to a different immigration adjudication process than those who arrive with their families. Under the 2008 Trafficking Victims Protection Reauthorization Act, unaccompanied children’s asylum claims are processed by asylum officers with U.S. Citizenship and Immigration Services (USCIS) rather than by an immigration judge, which means they aren’t cross-examined by government attorneys.
The memo would essentially end this process for any immigrant child an ICE officer determines is no longer “unaccompanied.” Per the BuzzFeed report, officers now have to “evaluate all available information” to make that decision, including whether the child has an “available” guardian in the U.S. It’s unclear whether the guardian has to be related to the child, or whether the guardian has to be the child’s actual parent.
Migrant children encountered at the border are typically taken to government shelters operated by the Office of Refugee Resettlement, an agency within the Department of Health and Human Services. Case workers at the shelter work to find a suitable guardian for the child, usually a relative who already lives in the U.S. Under the new system, migrant children no longer considered unaccompanied would lose the protections required under the TVPRA, and could also lead to migrant children being arrested along with their families.
Next Destination
Trump issues antifa-related immigration order
In what we can only hope is among his final immigration policy decisions, Trump issued a memorandum this week intended to render “those affiliated with Antifa” inadmissible. The order doesn’t actually do that—instead, it instructs the Secretary of State, the Attorney General, and the DHS secretary to review government information and “assess whether to classify Antifa as a terrorist organization under 1182(a)(3)(B)(vi) of title 8, United States Code.” The same group of cabinet members are also instructed to “consider listing Antifa in 9 FAM 302.5-4(B)(2)(U) Aliens Who Are Members of an Identified Criminal Organization.”
A different subsection of that statute renders inadmissible any non-citizen who “has engaged in terrorist activity,” who the government “has reasonable ground to believe is engaged in or is to engage likely after entry [into the United States] in any terrorist activity,” is a representative of a terrorist organization, and so forth. There’s almost no way that this will happen in the less than two weeks Trump has left in office, especially given this week’s events. If it were to happen, it’d be the kind of thing that the Biden administration could reverse pretty quickly—assuming, of course, that it wanted to. Trump and Stephen Miller may be counting on liberals’ own belief in the antifa boogeyman, or on the bad press Biden would receive from conservative media if he did change course. For now, though, this just seems like aggressive posturing on behalf of the Trump administration, which is clearly hell-bent on setting as many fires as possible on its way out.