Jurisprudence

The Kris Kobach Playbook

Jeff Sessions is doing everything in his power to make asylum-seekers suffer.

Attorney General Jeff Sessions delivers remarks on immigration and law enforcement actions at Lackawanna College on June 15 in Scranton, Pennsylvania.
Attorney General Jeff Sessions delivers remarks on immigration and law enforcement actions at Lackawanna College on June 15 in Scranton, Pennsylvania.
Jessica Kourkounis/Getty Images

Last week, Attorney General Jeff Sessions rescinded 24 Department of Justice guidance documents covering everything from affirmative action to disproportionate police contact with minority communities. Among the rescinded guidances were policies clarifying asylum-seekers’ right to apply for a work permit while their asylum case is pending and one encouraging businesses not to mandate U.S. citizenship as a job requirement.

These rescinded policies are just the latest in a pile of quiet changes to our immigration system under Sessions. One of Sessions’ first acts in office was to rescind an Obama-era policy phasing out the use of private prisons, which has helped facilitate a boom in the use of these facilities for immigration detentions following a sweeping increase in enforcement. Since then, Sessions has overseen a steady stream of similar internal policy changes. Not able to alter the Immigration and Nationality Act itself, Sessions has focused on dismantling and remodeling the wealth of policies, procedures, and memos that delineate the specifics about how the government carries out immigration enforcement. Jeff Sessions is using his power as attorney general to dig into the bowels of immigration law and dismantle the provisions that have the most power to make the lives of most asylum-seekers as miserable as possible. This is part of a concerted plan—one with a recent precedent in the “attrition through enforcement” strategies of Kansas Secretary of State Kris Kobach—meant to quietly and fundamentally transform immigration law, very much for the worse.

While Congress battles over immigration legislation, Sessions is using Kobach’s playbook to make the lives of asylum-seekers so miserable that they choose to leave the country voluntarily. Relying on tactics Kobach used in Arizona and Alabama, Sessions is trying to convince asylum-seekers to “self-deport” rather than stay and fight their asylum claims. Most of Kobach’s immigration policies, which he previously tried to implement through local and state-level legislation, have been ultimately rejected by courts. Sessions, however, is bypassing the need for legislation by using his power as attorney general to enact attrition through enforcement.

Without fanfare, Sessions managed to implement harsher guidelines for children appearing in immigration court, limit the ability of immigration attorneys to seek continuances, curtail immigrants’ ability to transfer their case to a court closer to where they are living, and pack the immigration court benches with former ICE attorneys. Even though it actually caused more backlog, Sessions pulled immigration judges off their regular dockets and sent them to the southern border to decide the asylum claims of detained immigrants. Wishing to speed things up even more, Sessions decided that immigration judges will now be evaluated on how many cases they can close per year, creating the incentive for judges to summarily order deportation without adequately developing the record.

Not content to leave asylum law in the hands of actual judges, Sessions is also liberally utilizing a provision in our immigration laws that allows him to refer immigration cases to himself for personal adjudication. So far, his decisions in those cases have gutted asylum protections for victims of domestic abuse and gang violence, and restricted judges’ ability to pause deportation proceedings through a process known as administrative closure.

Sessions’ most visible policy change was his now-infamous “zero tolerance” policy, which required assistant U.S. attorneys to attempt to prosecute every single case of unauthorized entry into the United States. Zero tolerance pushed thousands of asylum-seekers into the federal criminal justice system where they were left with little option but to plead to federal misdemeanor or felony charges. The fact that thousands of children were separated from their parents during this process was a feature of Sessions’ plan, not a flaw. When Trump issued an executive order purporting to end family separation, Sessions almost immediately implemented his backup plan: an ex parte request that a federal court modify the Flores settlement to allow for the indefinite detention of children held together with their parents in “family detention centers.” On Tuesday, a federal judge denied that request, but it’s unclear what Sessions’ next move will be.

Taken together, Sessions’ changes are creating an almost unbearable burden on undocumented immigrants in general and asylum-seekers in particular. The thousands of children still held by the government serve to remind asylum-seekers that despite a congressional stalemate on immigration legislation, things have changed. Asylum-seekers now face being torn from their children, held for months in squalid detention centers, potentially refused the right to work while their years-long cases are pending, and frequently denied asylum even when they have a valid claim. The weight of these changes is by design.

Sessions tactics are directly in line with Kobach’s legacy. When not making up numbers about illegal voting, Kobach moonlights as the architect of some of the strictest anti-immigrant state and local policies in the country. His preferred tactic, one Sessions seems to have adopted wholesale, rests on the idea that we should make everyday life so miserable for immigrants that they feel that they have no choice but to leave the United States without going through the legal deportation process. Kobach has refined this idea through an extensive series of legislative wins and subsequent legal battles.

After developing local anti-immigrant ordinances and defending them in court, Kobach first took his idea of attrition through enforcement to the big leagues with Arizona’s infamous SB 1070. SB 1070 allowed for immigration enforcement at the state level, permitting cops to ask virtually anyone to prove their immigration status on the spot, making it a crime to be in Arizona without proof of immigration status, and allowing local cops to arrest anyone they thought may be deportable. The bill led to widespread racial discrimination and was eventually mostly gutted by federal courts.

While SB 1070 was mired in lawsuits, Kobach took his ideas to Alabama, where he crafted House Bill 56. HB 56 incorporated some aspects of SB 1070 while also adding a litany of cruel, seemingly purposeless provisions, including requiring that primary schools determine the immigration status of students and submit annual reports detailing the number of undocumented students to state officials. The law also made it illegal to harbor or transport undocumented immigrants and required landlords to determine the immigration status of potential tenants. Additionally, the law made contracts signed with someone known to be undocumented null and void. Unsurprisingly, the law plunged Alabama into chaos before being severely curtailed by subsequent legislation, alterations, and partial repeals.

Kobach’s problem, of course, is that almost all of his attempts at legislating widespread abuse of immigrant communities end up in court, and are often subjected to temporary restraining orders. Kobach’s plans have thus far been hobbled by federal judges, leaving the localities that tried to enact the ideas with nothing to show for the experiments but exorbitant legal bills. Sessions seems to have solved this problem by bypassing the legislative stage entirely and focusing instead on areas over which the attorney general maintains control.

Instead of attempting to push through big, bloated anti-immigrant legislation, Sessions is resolutely focused on enacting quick to implement changes in the complicated web of policy and procedure that make up the bulk of our immigration system. While civil rights groups have appeared to bring down family separation on due process grounds, for example, the underlying policy of cracking down on border-crossers is a discretionary decision within the attorney general’s power, and is thus immune to judicial challenge. Like changing prosecution policies at the border, rescinding old guidance, issuing new memos, and developing new immigration court procedures all fall within the power of the attorney general.

Many of Sessions’ changes are announced with little more than a press release on the Department of Justice website and go mostly unnoticed by the general public. While immigration and civil rights attorneys scramble to figure out how these policies will impact their clients and brainstorm potential legal strategies to fight back, Sessions is continually hoisting the American dream out of reach for asylum-seekers. Instead of wading through this brutal morass, many asylum-seekers are withdrawing their applications, seeking voluntary departure, or otherwise abandoning their attempt to stay in the United States.

While Sessions and Kobach might see the flight of asylum-seekers from the United States as a success, the rest of us should see attrition through enforcement for what it is: an attempt to terrorize immigrant communities. For now, the right for an asylum-seeker to seek employment authorization remains enshrined in the Code of Federal Regulations, and it remains to be seen if Session’s latest policy rescission will mean that asylum-seekers are actually denied the right to work. What we can expect, however, is for Sessions to continue to use his position as attorney general to target asylum-seekers for state-sanctioned abuse.