Can the U.S. attorney general unilaterally overturn a court case?
That means normal assumptions about judicial independence and freedom from political influence do not apply in immigration proceedings.
How immigration trials work
People end up in immigration court for various reasons.
Who does what?
Immigrants are not entitled to a court-appointed defense attorney, for example. They may hire a lawyer or, if they’re lucky, find pro bono counsel.
Immigrants who’ve been convicted of certain crimes, including low-level offenses, are subject to mandatory detention during their immigration hearings. They are often brought into the courtroom wearing a jumpsuit and shackles. Eighty-six percent of immigrants who’ve been detained will appear without a lawyer.
Immigration trials also lack other constitutional safeguards required in criminal trials.
The judge is from the Department of Justice, which has law enforcement duties determined by the attorney general. Since the government’s prosecutor comes from Immigration and Customs Enforcement – a Department of Homeland Security agency tasked with immigration enforcement – their political priorities may overlap.
In a normal federal trial, the judge would be an independent member of the U.S. judiciary, a different branch of government.
The administrative appeals process
To expedite the process, the Board of Immigration Appeals frequently issues decisions that “affirm without opinion,” meaning it can confirm a deportation order without providing any reasoning or explanation.
The attorney general can take over a case at the request of the Board of Immigration Appeals or direct it to refer a case to him. Historically, most have done so just once or twice a year. Sessions has reviewed four immigration cases in 2018 alone.
Federal appeals court
Immigrants may further appeal decisions made by the Board of Immigration Appeals to the U.S. Courts of Appeals, the court one level below the Supreme Court.
Very few can afford to do so. Of the roughly 300,000 immigration cases heard each year, only 2 percent are appealed to a federal judge. In 2016, 5,240 immigration appeals were filed with the federal appellate courts.
For some, the victory may come too late. Though immigrants cannot be deported while their case makes its way through immigration court, that protection ends once their appeal reaches the federal level.