Attorney General Sessions has continued his unprecedented immigration power grab. Sessions has recently issued three opinions that take away from the immigration judges’ ability to terminate, dismiss, cases or to issue continuances in cases. In his latest decision, Matter of M-G-G, he has asked the Board of Immigration Appeals to refer a case to him, using an unsettled case from the Supreme Court. In this post, I will discuss the three cases.
Where Does Sessions’ Power Come from?
Sessions has broad discretion over our immigration system. Sessions oversees the Executive Office of Immigration Review, the body entrusted with immigration courts. Under the Immigration and Naturalization Act and the regulations, Sessions may refer his cases to himself. Under 1003.1(h)(1)(i) (2018), Sessions may request the Board to refer any decisions to himself. After he issues the decisions, they will have the effect of the precedent decision from the Board. This power is virtually unlimited.
Sessions has asked the Board in Matter of M-G-G to refer a case dealing with immigration bonds to himself. He used his power under 1003.1(h)(1)(i) (2018) and the Supreme Court’s decision in Jennings v. Sessions to redetermine the Board‘s decision in Matter of X-K. The 2005 decision by the Board allowed immigration bonds for immigrants in expedited removal cases. The only reason I see for him to ask for this is that he is going to overrule the Board.
The problem with the decision is the fact that Jennings is still unsettled. In Jennings, the Supreme Court did not reach the constitutional question regarding the expedited removal regulations and remanded the case to the Ninth Circuit for a new decision. So Sessions, in essence, is trying to overrule the Board‘s decision without any change in the law.
In this case, Sessions issued a decision essentially stripping immigration judges from the power to terminate a case in their discretion. I have used this power several times in immigration court, to move cases faster, especially because the courts are backlogged. The decision, in this case, took away that power specifically listed in 8 C.F.R. § 1239.2(c) and 8 C.F.R. § 1240.1(a)(1)(iv). These two regulations specifically allow the immigration judge to terminate proceedings for humanitarian factors or for the immigrant to proceed on a pending case before the Service.
One thing is very clear, these decisions do not abide by the regulations. I will discuss this further below.
In this case, Sessions circumvented the regulations again to seemingly prohibit immigration judges from allowing continuances. The regulations in 8 C.F.R. § 1003.29 allow the immigration judge to continue a case “for good cause shown”. Sessions, in this case, redefines the “good cause shown” standard. In his opinion, the immigration judge must weigh several additional standards, which honestly have been used by circuit courts all over the country previously. For example, the Eleventh Circuit in Ferreira v. US. Atty. Gen. used the same criteria to opine that the Board had abused its discretion in denying a continuance.
The Danger in Sessions’ Decisions
The regulations may allow the Attorney General to refer such decisions to himself. However, the decisions mentioned above may be unnecessary and honestly contrary to the regulations. The regulations allow the Attorney General seemingly unfettered power over immigration courts. However, these decisions seem to have one goal: to take away the immigration judge’s discretion authorized in the law.
For example, an immigration judge is his or her discretion may reopen a case if necessary. In fact, the regulations cited by the Attorney General seem to authorize the same conduct Sessions seems to be limiting.
Practitioners must challenge these decisions in immigration courts and appeal such decisions if the immigration judge follows them.
Call us today if you are in removal proceedings.