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New Limits for Immigration Judges to Dismiss Cases

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By Lisa M. Schaffer, Esq. on September 21, 2018 11:00 AM

Attorney General (AG) Jeff Sessions has used his power as head of the Department of Justice (DOJ) in unprecedented ways this year. In a departure from the traditional laissez faire, small central government tenets of his Republican party, Sessions has been incredibly hands-on in his role as overseer of one of the DOJ's groups, the immigration courts. Specifically, Sessions has taken under review numerous cases from the Board of Immigration Appeals.

It remains to be seen what precedent Sessions plans to make with these cases. But one thing became clear this week: immigration judges will now be much more restricted in their ability to dismiss deportation cases.

Overview of the Immigration Court System

The Immigration Court System is actually not part of the traditional judicial system, but rather, the Department of Justice. There are almost 60 lower immigration courts, presided over by about 330 immigration judges. Note that these are not elected judges, like in the Judicial Branch. Rather, they are appointed attorneys. Also unlike the Judicial Branch, judicial independence and freedom from political influence do not necessarily apply in immigration proceedings. These courts are incredibly impacted. There are almost 350,000 active cases pending in these courts at any given time. At 1,000 cases per judge, its understandable that some cases get stuck in the system for years.

Decisions from these courts can be appealed to the Board of Immigration Appeals, which is a quasi-appellate body for immigration court cases. The Attorney General has the power to certify cases, which means either take cases from the Board while under review, or overrule Board decisions. In years past, this has been done around once a year. In the first six months of 2018, Sessions has done it at least three times. According to the Katy Voigt of the American Immigration Lawyers Association, "I can't remember this many decisions being certified in the past five to 10 years."

New Limits Marginalizing Immigration Judge's Power

Based on a pair of linked cases, Session announced a new policy for immigration judges this week. The AG specified that immigration judges can only dismiss cases in "specific and circumscribed" circumstances, stating that judges "have no inherent authority to terminate removal proceedings even though a particular case may pose sympathetic circumstances." Judges are no longer allowed to use their discretion. Rather, only if the Department of Homeland Security decides it wants to drop the case because it will not be able to prove it, or the immigrant has achieved, or is close to achieving, legal right to stay under a different manner, can the judge dismiss the case. These courts are going to become increasingly more impacted with less dismissals.

If you are facing deportation or other immigration or naturalization issues, contact a local immigration attorney. A well-trained legal advisor can listen to your facts, and apply them to current laws and trends, to help you get the relief that you are seeking.

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