Attorney General Jeff Sessions is eliminating a requirement that asylum seekers get a full hearing before an immigration judge, part of his effort to cut through a huge backlog of cases in a court system he says is subject to “rampant abuse and fraud.”
The decision this week vacates a 2014 ruling by the Justice Department’s Board of Immigration Appeals. Now, immigration judges can reject asylum petitions without a full hearing if, upon initial review, they appear to be fraudulent or unlikely to succeed.
Justice Department spokesman Devin O’Malley said the 2014 ruling cluttered immigration-court dockets with frivolous claims that were filed as a way to stall deportation proceedings, keeping judges from granting asylum to more worthy candidates.
But advocates said thousands of people seeking asylum are now at risk of being sent back to life-threatening situations in their homelands without an adequate opportunity to prove they would be in danger if deported.
The Trump administration is seeking to expand immigration courts and clear a backlog of roughly 600,000 cases, part of an immigration crackdown that includes the attempted cancellation of the Deferred Action for Early Childhood Arrivals program, the elimination of temporary protected status for immigrants from El Salvador and other nations, and a federal lawsuit filed this week that alleges that “sanctuary city” policies in California violate the Constitution.
Twenty percent of asylum applicants initially file their petitions without the help of an attorney, according to Syracuse University’s Transactional Records Access Clearinghouse. Jeremy McKinney, secretary of the American Immigration Lawyers Association, said Sessions’s ruling means that those applicants and others turned away without a full hearing will not have a chance to adequately make their case.
With a follow-up hearing, “We have months and, sometimes, over a year to prepare a good asylum claim,” McKinney said. “I take that time to corroborate every line in my client’s statement that I possibly can.”
Last year, nearly 62 percent of the 30,179 cases reviewed by immigration judges were rejected, up from 44.5 percent in 2012, according to the Syracuse clearinghouse.
The case at the center of Sessions’s decision began in 2012, when a Honduran national claimed that a family behind the murder of his uncle in a land dispute was also out to kill him.
An immigration judge in Texas denied the teenager’s asylum application after a procedural hearing, ruling that the young man could not prove that, if sent back, he would be targeted or persecuted on the basis of “race, religion, nationality, membership in a particular social group, or political opinion” — the federal criteria for asylum.
In 2014, the Board of Immigration Appeals found that the judge erred in not first allowing the Honduran national a full hearing. That decision upheld a 1989 ruling that found hearings are “an essential aspect of the asylum adjudication process for reasons related to fairness . . . and to the integrity of the asylum process itself.”
In 2016, however, the Honduran national, now 24, married a U.S. citizen and withdrew his asylum application in favor of seeking legal permanent residency through his wife. That effort is still underway, said his attorney, Frances M. Cruz.
Sessions — who last fall complained during a speech to immigration court personnel that “the system is being gamed” — decided that, because the Honduran man’s asylum application was withdrawn, the entire Board of Immigration Appeals decision is no longer relevant.
“Because the application for relief which served as the predicate for the evidentiary hearing required by the Board has been withdrawn with prejudice, the Board’s decision is effectively mooted,” Sessions wrote in his decision.
Andrew R. Arthur, a senior fellow at the Center for Immigration Studies, said the attorney general’s decision will allow immigration judges to more quickly reject asylum petitions that are obviously without merit.
Having to sit through hearings in those cases “prevents the judges from hearing the valid claims, from granting relief to individuals who do need relief,” said Arthur, a former immigration judge in Pennsylvania.
But McKinney said the move will probably lead to an even larger backlog of immigration cases that go to federal court, a last resort for appeals in cases where an application is denied.
“You don’t make the system more efficient by taking away people’s due process rights,” he said. “All that’s going to do is create more litigation.”
Maria Sacchetti contributed to this report.