Executive Overreaching in Immigration Adjudication

Abstract

While Presidents have broad powers over immigration, they have traditionally shown restraint when it comes to influencing the adjudication of individual cases. The Trump Administration, however, has pushed past such conventional constraints. This Article examines executive overreaching in immigration adjudication by analyzing three types of interference. First, the Article discusses political interference with immigration adjudicators, including politicized appointments of judges, politicized performance metrics, and politicized training materials. Second, the Article addresses executive interference with the process of adjudication, examining how recent immigration decisions by former Attorney General Jeff Sessions curtail noncitizens’ procedural rights instead of making policy choices and promote prosecution rather than fair adjudication. Third, the Article examines executive policies that prevent adjudication from taking place, such as turning asylum seekers away at ports of entry, criminally prosecuting them if they enter illegally, and separating them from their children. After discussing how these forms of executive interference threaten constitutional and statutory rights, the Article explores how the judiciary, Congress, and agencies can help protect against presidential influence in immigration adjudication.