Attorney General William Barr quietly intervened in an immigration asylum case last week when he issued a decision that narrowed the definition of torture for asylum seekers who invoke it as a grounds for staying in the United States.
Barr used a process known as “certification,” a historically little-used power of the attorney general that allows him to overrule decisions made by the Board of Immigration Appeals and set binding precedent. Immigration lawyers and judges say the Trump administration is using the power with greater frequency — to the point of abuse — as it seeks to severely limit the number of immigrants who can remain in the United States. The administration is also using it as a check on immigration judges whose decisions don’t align with the administration’s immigration agenda, experts say.
The decision to intervene in a Mexican national’s otherwise unremarkable asylum case is a warning to immigration board members that even their unpublished decisions are being scrutinized, former immigration judge Jeffrey Chase told The Washington Post via email.
“In the past, such decisions flew under the radar,” Chase wrote.
Other critics said Barr’s move should concern everyone — not just those in immigration. Half a dozen immigration experts who spoke to The Post said Barr’s use of his certification power in this case erodes the neutrality and due process that should exist in immigration court. They also cited recent moves by Justice Department, such as creating an office to denaturalize immigrants or using an immigrant’s confidential therapy notes in a deportation case against them, as evidence of the Trump administration’s willingness to break norms to achieve its goals.
“In American history, what happens to immigrants is a pretty good indication of what’s going to happen to the rest of us,” retired immigration judge J. Traci Hong told The Post.
The Justice Department did not respond when asked to address concerns from immigration judges and lawyers about the recent decision to narrow the torture definition for asylum seekers. Nor did it respond to questions on whether it views the current remedies available to asylum seekers as overly broad.
Hong, who retired as an immigration judge late last year amid what she described as pressure to speed up cases and deport more people, said the sheer number of times that attorneys general under President Donald Trump have used the power to certify cases to themselves is cause for concern.
“The power goes back decades, but in other administrations, it was used very rarely — kind of a nuclear option,” Hong told The Post. “Certifying a case is a way for the attorney general to stamp his or her own views on immigration law — and it’s the quickest way to do it.”
The certification power was used just three times during President Bill Clinton’s two terms, and four times during President Barack Obama’s. President George W. Bush’s attorneys general certified 16 cases over eight years, the highest of any administration since the 1950s, according to NBC News.
By contrast, the Trump administration has used the power at least a dozen times in three years; in 2018, then-Attorney General Jeff Sessions certified eight cases to himself in an eight-month span.
Proponents of the certification power argue that it’s a necessary tool to correct erroneous immigration court decisions and quickly enact needed changes. Even immigration advocates who oppose the Trump administration’s rate of certifying cases criticized the Obama administration for not invoking the power often enough over his two terms.
Hong cited concern that certification could be used to circumvent the lengthy and detailed regulatory process, which can take years or even decades. Had Barr wanted to propose new standards for defining torture in asylum cases, she said, they would be subject to public notice, debate, revision and public comment.
Holly Cooper, co-director of the Immigration Law Clinic at the University of California, Davis, points to other efforts by the Justice Department to change and speed up the immigration process to the point that, in her view, immigrants fighting their cases are not getting a fair shake.
“The Trump administration’s rhetoric has been ‘the rule of law.’ But one principle that has been recognized is whether you’re a citizen or a noncitizen, you deserve due process,” Cooper told The Post. “You’re seeing a lot of really sloppy decision-making done expeditiously with no regard to the individual’s rights. The Fifth Amendment — the due process clause — applies to immigration courts.”
Circuit courts under the judicial branch can check decisions made by immigration courts and the attorney general under the executive branch. Cooper said that while circuit courts like to give deference to executive branch departments, they will overturn decisions found to be made with flimsy justification.
Dana Leigh Marks, president emeritus at the National Association of Immigration Judges who currently presides over immigration cases, said that can result in judges not knowing what guidance to follow.
“The problem for those of us in the field right now is that we’re being whipsawed between these radical departures in past precedent that aren’t necessarily sustained long term,” Marks said, speaking in her role as a NAIJ member.
Hong described the resulting environment in even starker terms: “It was like trying to perform surgery on a dodgeball court.”
What’s happening with immigration courts could produce ripple effects in the wider justice system, particularly if immigration court decisions put forth by the attorney general clash with the circuit courts, Marks warned.
“What’s happening now is that all the norms are breaking,” she said. “All the wheels are coming off the car.”