Office’s director gets new powers in asylum cases

Change aims to cut backlog; attorneys say appeals at risk

President Donald Trump’s administration on Friday issued a new rule to help tackle the backlog of asylum cases in the nation’s immigration courts, but attorneys say the rule also will make it easier to reject migrants’ appeals of court decisions.

The change, part of a reorganization of the Executive Office for Immigration Review, is the latest in a series of minute policy changes that immigration advocates say are chipping away at routes through which foreigners can seek refuge in the United States.

The Executive Office for Immigration Review oversees the country’s immigration court system, which is burdened by an 850,000-case backlog. The administration’s new rule expands the office director’s power to accept or deny appeals to asylum cases, decisions that can set legal precedents that redefine asylum law.

James McHenry, the office’s director and a Trump administration appointee who spent much of his career as an attorney for the Immigration and Customs Enforcement agency, will have the authority — previously limited to the U.S. attorney general — to reverse decisions made by the Board of Immigration Appeals.

Last month, Attorney General William Barr reversed a decision that effectively set a new precedent preventing asylum seekers from gaining protection on the grounds that their relatives are being persecuted by criminals such as drug cartels in their countries.

Former Attorney General Jeff Sessions last year used the same authority to block the victims of gang violence and domestic violence from qualifying for asylum, though that move was later blocked by a federal judge.

But the attorney general is limited in how frequently he can make calls on such cases, in part because of the breadth of his other responsibilities. By delegating that authority to the immigration review office, the new rule means the head of the office has been “granted a whole new power,” said Astrid Lockwood, a Washington, D.C., immigration attorney at the Federal Practice Group who represents a number of Central American asylum seekers.

“In this administration, we’ve seen [the attorney general] use this authority a handful of times,” Lockwood said. “The director can now use the simple excuse of a backlog, and decide any cases to clear that backlog. … He can decide cases in ways more in line with the administration.”

The rule is set to go into effect Monday when it is published in the Federal Register.

Trump has made changing the U.S. immigration system — particularly by reducing the flow of migrants across the U.S.-Mexico border — one of his top policy priorities. In addition to constructing a border wall, Trump has sought to deter migrant families by removing certain legal protections for children, separating families at the border, and requiring a growing number of asylum seekers to wait in Mexico while their claims are adjudicated in U.S. courts. Earlier this summer, the president also struck a deal with Guatemala that would allow U.S. immigration authorities to deport some Central Americans to Guatemala to pursue asylum there instead.

Nearly all of the efforts have been challenged by lawsuits.

Earlier this week, the Department of Homeland Security temporarily diverted most of its asylum officers in Boston and Newark to the border, virtually halting the processing of new asylum claims.

In a letter to immigration attorneys, the U.S. Citizenship and Immigration Services wrote, “We intend to continue to interview a small number of cases in the Newark [Lyndhurst] office. In Boston, staff will continue to complete the process of interviewed cases, but no new interviews will be scheduled for the time being.”

The Center for Immigration Studies, which advocates strict limits on legal immigration, last year described McHenry, who was appointed by Sessions, as “the point man for the effort to restore timely and efficient adjudication of immigration cases in the face of a tremendous case backlog.”

“We’re doing a top-tobottom review inside the agency,” McHenry said at the time, as the first in the group’s “Immigration Newsmaker” speaker series. “We’re looking for ways to be more efficient.”