An Immigration Lawyer Walked into a Barr: The Impact of Trump’s Justice Department on the Defense of Criminal Immigrants

Document Type


Publication Title

Barry Law Review


Some may think the legitimate prospect of a Trump political era started in earnest subsequent to the future president being ribbed by President Barrack Obama and roasted by Seth Meyers at the White House Correspondents' Dinner, in jokes primarily fueled by Trump's public questioning of Obama's legitimacy as president and domestic birth. For others, the seminal event-beginning the era-was Trump's slow, unwalking, gliding descent down his gilded escalator at Trump Tower to officially announce his candidacy in an isolationist and xenophobic diatribe. However, I would argue that those moments didn't reflect the real reality of the era, as there was prevailing mystery over not just whether Trump could actually win election on such a paranoid platform, but also over whether he really meant the rhetoric he was feeding to his prospective base voters like so much red meat. The highlights of that rhetoric have been repeated ad nauseum to the point of losing their power to shock: categorically deriding immigrants as rapists and murderers; labeling Federal District Court Judge Gonzalo Curiel, a United States-born child of immigrants, as disloyal and inherently conflicted to sit as a judge; and later wondering why the United States tolerated immigrants from "shithole" countries (all either African or, like Haiti, populated by African descendants), rather than places like Norway.' But again, it was realistic for observers to believe that this early show was perhaps just a mirage for votes, in the same way that they might believe that a man whose domestic real estate empire sat in the immediate crosshairs of human-caused sea level rise and whose personal history was so objectively salacious couldn't possibly be stridently both anti-climate science and anti-Roe v. Wade? Perhaps the nationalist tone-especially its nostalgia for a day gone by-wasa political game? Soon after the election, the country got the confirmation of Trump's actual views on immigration when long-time immigration hawk Kris Kobach appeared on camera on his way into Trump Tower to consult with the President-elect. In Kobach's hands was a list of talking points, an early blueprint for the nascent administration's immigration playbook, one in which it amplified existing law, published interpretations, and sometimes made even obviously dubious legal cases, all with the unambiguous public purpose of vilifying immigrants and sowing distrust of outsiders, while capitalizing on the available legal room for heightening enforcement and curtailing immigration processing. Thus, inarguably the Trump Era had begun in earnest. Installing immigration firebrand Jefferson B. Sessions, M, as Attorney General, and Sessions's former policy advisor and communications director (and "hypocritical" immigration extremist) Steven Miller as policy advisor, cemented the branding. Existing hierarchical enforcement priorities were abandoned, so all cases became priorities. Immigration backlogs swelled; racist and paranoid exclusion policies were implemented barring (mostly) the international Muslim community from visiting or immigrating to the United States; family units seeking asylum from Central America were separated and children were detained apart from their parents. Immigration practice became headline material in the popular press. The administration's positions on niche immigration policy issues, formerly the bailiwick of immigration nerds and advocates, such as the Flores settlement agreement (governing the length and conditions of family detainees) were suddenly the material of late-night talk show comedic takedowns." Of course, the administration was undeterred by any negative press. Instead, the administration doubled down, in such measures as: proposing new rules, to be applied retroactively, that would govern how and when foreign students and other non-immigrants triggered "unlawful presence" that would bar or hinder their immediate immigration options;' announcing a denaturalization task force that would ferret out supposedly high volumes of ill-gotten citizenship; and proposing leaps in application fees and massive increases in the filing fees for appeals.- The scope has been simply breathtaking: the Trump Era has been marked by more than one substantive change to immigration policy every workday that Trump has been in office. Within the Department of Justice is the Executive Office of Immigration Review (EOIR), primarily comprised of a network of 69 immigration courts (and approximately 465 immigration judges), and the EOIR's appellate body, the Board of Immigration Appeals (BIA). These forums, of course, are appointed by and answer to the Attorney General. Attorney General Sessions implemented docket reforms, pairing strict case processing metrics-such as case completion goals/quotas and standards for reviewing performance based on a reversal rate by the BIA-with a restaffing of the BIA by some of the most conservative immigration judges in the country." Simultaneously, the BIA issued decisions limiting the

circumstances in which a judge may grant continuances in pending cases and eliminated a judge's authority to administratively close proceedings. 9 Further, the Trump administration slashed refugee admissions, so those fleeing persecution would not be processed abroad and assigned to be received by the United States2;0 meanwhile, the Attorney General and EOIR issued decisions curtailing the eligibility of asylum seekers from the Western Hemisphere, and those who transit through the Western Hemisphere to be eligible for asylum once here, within the physical United States, issuing separate decisions addressing asylum seekers passing through a third country in transit. EOIR further limited or eliminated eligibility for asylum for victims of domestic violence, violence by private actors, and those persecuted based on their membership within a family unit. Not only did the administration create a new vision for asylum in which asylees must be processed while they reside in a third country (Mexico), but it devised a scheme in which immigrants who missed their United States court hearings while residing in a third country pursuant to this policy, could still be ordered removed in absentia. Thus, the entire philosophical self-identification of the United States as a "nation of immigrants" was, and remains, under question. Actually, in the eyes of the administration, that is not an open question, as even the United States Citizenship and Immigration Services, the services component of the Department of Homeland Security (DHS), has gone so far as to remove that very language from its mission statement. With this metamorphosis of self-image as a backdrop, the remainder of this article will address technical questions and trends in decision-making at the Board of Immigration Appeals. Remember, the initial thesis to draw national attention to immigration was the flawed premise that immigrants are criminals. In reality, of course, there is no objective correlation between immigration and criminality, but that is irrelevant in stoking nationalist fears. Based on cheers of "build the wall," the stoking has resonated in some quarters. I would agree that the real motivator of ethnic insecurity is the rapid ethnographic changes via immigration following the Immigration and Nationality Act of 1965, or Hart-Celler Act, which for the first time restricted allocation of western hemisphere immigration, but over time reshaped the ethnic makeup of the United States to a degree unanticipated at its passage. Ironically, national numbers only now approach early twentieth-century highs in terms of the percentage of national population that is foreign born (i.e. there is ample precedent for this level of immigration), but that population is decidedly now largely non-European. The United States Department of Justice (USDOJ) has two primary immigration-related roles: the EOIR administrative court system (the immigration courts and the BIA) and, via the United States Attorneys' Offices, prosecuting immigration-related offenses, including unlawful entry and reentry into the United States. The USDOJ also defends the government's decisions in immigrants' circuit court appeals ("petitions for review") of removal proceedings. Thus, the optics and reality of the USDOJ are crucial to assuring the public that it is properly entrusted with both its enforcement role and its distinct role as an impartial adjudicative body. Jefferson Sessions certainly clouded this role in a speech vilifying the defense bar and characterizing the EOIR as having an executive role enforcing immigration law, escalating calls for an independent immigration court system. This, finally, brings us to the thesis of the article: beyond the rhetoric, how has this administration actually affected the legal removability of actual criminal immigrants? In other words, just how conservative is the EOIR in the time of President Trump and his DOJ, under the respective leaderships of Jefferson B. Sessions I (February 2017 - November 2018), Acting Attorney General Matthew Whitaker (November 2018 - February 2019), and William P. Barr (February 2019 to present)? More specifically, what trends, if any, can be discerned from canvassing lines of cases regarding the deportability of immigrants who have criminal histories? Finally, being as this article is the end-product of a symposium of Barry University and the Orange County (Florida) Bar Association, I will give special consideration to the Florida implications of those trends. To make the article of more utility to non-experts in the immigration field, some context will establish the essentials of the practice and the legal issues discussed.

First Page


Last Page


Publication Date

Spring 2020