By Seung Min Kim
For two decades in the Senate, Jeff Sessions led an anti-immigration crusade that made him an outlier in GOP politics — raging against illegal immigration and an excess of foreign workers well before Donald Trump tore onto the political scene.
But next year, Sessions likely will be the one engineering the immigration crackdown.
If confirmed as Trump’s attorney general, the Alabama senator would instantly become one of the most powerful people overseeing the nation’s immigration policy, with wide latitude over the kinds of immigration violations to prosecute and who would be deported.
As the nation’s top cop, Sessions would be able to direct limited department resources to pursuing immigration cases. He could launch federal investigations into what he perceives as discrimination against U.S. citizens caused by immigration. He would be in charge of drafting legal rationales for immigration policies under the Trump administration.
And Sessions, as attorney general, could find ways to choke off funding for “sanctuary cities,” where local officials decline to help federal officials identify undocumented immigrants so they can be deported.
Some immigrant advocates are alarmed by the idea of a Justice Department led by someone they see as far outside the mainstream.
“Sen. Sessions’ public statements and history on immigration give [us] real reason to be concerned that his positions, if confirmed as attorney general, would not uphold the values embodied in the Constitution to protect due process and fairness,” said Greg Chen, director of advocacy for the American Immigration Lawyers Association. But admirers of the Alabama senator say he’d bring about a much-needed break from the immigration policies of the past
One of Sessions’ major powers as attorney general would be his oversight of the immigration courts, formally known as the Executive Office of Immigration Review. That’s the venue where immigrants make their case before a judge on why they should not be deported. The system is notoriously backlogged, with nearly 522,000 cases currently pending, according to the Transactional Records Access Clearinghouse at Syracuse University, which monitors cases. Sessions could try to speed up the process by installing more judges, particularly ones who align with his tough-on-immigration views. Immigration judges are usually career DOJ attorneys who are hired under guidelines that Sessions could influence should he become attorney general.
Sessions could also exert control through the Board of Immigration Appeals. An immigrant who disagrees with a judge’s decision can appeal to this board, whose 17 members are appointed by the attorney general and write decisions that can set a broad precedent. But Sessions, as attorney general, would have authority to single-handedly take on a case in the immigration courts himself if he disagrees with a judge’s ruling. Then Sessions’ decision would become binding, unless a federal court intervenes. Experts say that doesn’t happen often, but it is possible.
“He’ll have a lot of influence over what decisions are made or how they are made,” said Jacinta Ma, director of policy and advocacy for the National Immigration Forum, which has raised concerns about Sessions’ nomination as attorney general.
As attorney general during the Clinton administration, Janet Reno issued key orders on who can qualify for asylum in the United States, including a 2001 decision that paved the way for asylum in severe cases of domestic abuse and a 1994 ruling that did the same for immigrants fearing persecution due to their sexual orientation. “They can literally write opinions that have the force of law and interpret federal immigration law,” said Karen Tumlin, legal director at the National Immigration Law Center. “Would a Sessions-led Justice Department lead to humanizing changes in immigration law? Unfortunately, evidence is to the contrary.”
Sessions would have similarly expansive powers when it comes to enforcing immigration law. The attorney general sets guidelines for the types of violations federal prosecutors should pursue.
Von Spakovksy said a Sessions-led Justice Department could, for example, ramp up enforcement of a current ban on employers hiring those who are here illegally.
“If the employer provision is enforced and the news gets out that the Justice Department is finally enforcing that provision … that will lead to large numbers of individuals self-deporting,” said von Spakovsky, now a senior legal fellow at the conservative Heritage Foundation.