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AG Sessions pulls immigration judges' authority to suspend cases

Our nation's immigration courts are not truly independent members of the judicial branch. Immigration judges are administrative agency personnel largely answerable to the Attorney General of the United States, currently Jeff Sessions. While previous attorneys general have largely left the immigration courts to their own devices, Sessions has taken his authority over them very seriously, including changing rulings he doesn't agree with and taking active steps to manage the courts.

Those courts are currently facing a massive backlog in cases. According to the American Bar Association, 667,000 immigration cases were pending as of December 2017.

One way to keep cases moving forward has been for judges to use what is called "administrative closure," where a case is closed without a ruling being issued. This could be used, for example, in a deportation case where there is a simultaneous application for legal status that is likely to be approved. The judge in the deportation case might close it administratively in order to allow the application to progress.

In another recent example, an immigrant repeatedly failed to appear for scheduled immigration hearings. The court concluded that the reason was that the government had not made adequate efforts to send hearing notices to the correct address. When the judge closed the case administratively, however, Attorney General Sessions took the unusual step of having the case referred to himself to decide.

Critics of administrative closure argue that it allows unauthorized immigrants to remain in the U.S. longer than they ought to. Sessions, administrative closure's most prominent critic, argues that the practice lacks a legal foundation. Immigration court regulations explicitly authorize continuances, he says, but not administrative closure and, he contends, no attorney general has ever conferred the authority on the courts.

Supporters say that the practice is a crucial tool allowing courts to bypass cases that aren't ready for decisions and focus on active cases. The president of the American Bar Association, which supports the practice, also says that Sessions' decision to end the practice intrudes on what independence the immigration courts have.

She goes on to point out that the U.S. Supreme Court has specifically ruled that immigration judges do have the "power to defer adjudication of a case as inherent in the authority to decide cases."

The American Bar Association has taken the position that the immigration courts should not be administrative employees subject to the authority of the attorney general, but should instead be made separate and independent.

Most observers agree that suspending administrative closure will result in more people being deported in marginal cases.

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