Five Chilling Ways Senator Jeff Sessions Could Attack Immigrants as Attorney General

David Leopold
8 min readJan 5, 2017


En español

The nomination of Senator Jeff Sessions (R-AL) to be U.S. Attorney General is a clear and ominous sign that President-elect Donald Trump fully intends to make good on his call for mass deportation, registration of Muslims and radical restrictions on legal immigration.

Since he entered the U.S. Senate twenty years ago, Jeff Sessions has made his mark as one of the most vehemently nativist, anti-immigrant legislators in American history. Rather than join colleagues who’ve reached across the aisle to try to update America’s antiquated immigration system, Sessions has spent decades working hand in hand with anti-immigrant extremists to block their efforts.

As the nation’s top lawyer, head of the immigration court, and civil rights officer, Jeff Sessions would have access to multiple tools to harm immigrants and undermine due process. Given his rhetoric and record as a United States Senator, as well as his association with anti-immigrant extremists, there is every reason to believe he would use all of them.

Here are five ways Sessions could attempt to undermine immigrants and immigration policy if confirmed as Attorney General:

  • Impose his radical, anti-immigrant ideology on decisions by the federal immigration courts;
  • Expand the number of immigrants who are deported even though they qualify for a green card or asylum;
  • Reduce access to legal counsel and information about immigrants’ legal rights;
  • Criminalize immigrants by bringing trumped up charges against ordinary workers; and
  • Strong arm state and local police to become Trump deportation agents

Of course, any attempt Sessions would make to undermine civil and due process rights will be met by strong litigation from the outside. But the U.S. Senate should block his confirmation from the start, as Senator Sessions is highly unqualified for this position and has showed a profound disregard for civil and human rights.

First, Sessions will have complete control over the immigration courts, including the power to impose his radical, anti-immigrant ideology. In 2002, when Congress created the Department of Homeland Security, it left the entire immigration court system — known as the Executive Office for Immigration Review (EOIR) — within the Department of Justice and under the direction and control of the Attorney General. The EOIR includes all of the immigration courts in the U.S. and the Board of Immigration Appeals, which reviews immigration judges’ deportation decisions. The Attorney General hires and trains the immigration judges. They act as his statutory agents, sometimes even more as prosecutors than as judges.

Sessions’ sweeping power over the immigration courts includes the power to unilaterally overrule precedent decisions of the Board of Immigration Appeals. As Attorney General, Sessions would have the final word over decisions impacting the lives of immigrants, including victims of domestic violence, trafficking, and torture as well as others who qualify for protection under the immigration law. As outlined in a recent post by the American Immigration Council:

[T]he Attorney General has the authority to unilaterally revoke decisions of the Board of Immigration Appeals (BIA). Much of current asylum law is based on decisions by the BIA including those that determine what groups must receive protection from persecution in their home. As a Senator, Jeff Sessions has staunchly opposed the granting of any legal status to women and children who are currently fleeing persecution in Central America. As Attorney General, he would have the authority to make asylum vastly more difficult for those around the world who flee to the United States to avoid violence.

In short, as Attorney General, Jeff Sessions would have the broad unilateral power to drastically alter the interpretation and administration of the immigration law to comport with his nativist, anti-immigrant vision. As Laura S. Trice explained in a 2010 New York University Law Review article:

It is difficult to overstate the sweeping impact of Attorney General decisions. Although the Attorney General rarely exercises his authority to review BIA decisions, averaging only about 1.7 certified decisions annually between 1999 and 2009, the majority of his decisions produce significant changes in the law that directly affect whole classes of immigrants in removal proceedings. The certification process is quite different from the routine, case-by-case review conducted by the BIA; it is a selective policy making device that allows the Attorney General to assert control over the BIA and effect profound changes in legal doctrine.

Second, Sessions’ control over the immigration courts would empower him to pick and choose who is targeted for deportation. As Attorney General, Sessions would be able to set guidelines for how deportation cases are decided, eliminate the rules for closing out low priority cases and severely limit the ability of an immigration judge to send a case to the immigration agency for issuance of a green card based on close family ties or extreme hardship in the event of deportation. This, of course, would have major consequences for families across the country.

For example, in a case where a wife and mother may be eligible for a green card based on her long-standing marriage to a U.S. citizen, many immigration judges might, as a matter of judicial economy, send the case to the US Citizenship and Immigration Services for a decision rather than expend limited court resources trying to deport her. Sessions could insist that such cases be decided by an immigration judge in removal proceedings, increasing the risk of the woman’s deportation despite her strong family ties and eligibility for a green card.

Third, Sessions would also be able to severely limit an immigrant’s ability to obtain any sort of representation in immigration court, or even understand their legal rights. He would have the power to roll back access to government funded or pro bono counsel, and curtail the Legal Orientation Program presentation given to detained immigrants — often their only source of information about the deportation proceedings. Sessions would also be able to change rules that allow accredited representatives — trained non-lawyers — to appear before court on behalf of indigent immigrants and children — sometimes the only type of representation that an individual can afford.

Fourth, as Attorney General, Sessions would be able to use the federal statutes to turn undocumented immigrants with civil violations into “criminals” on paper, a chilling misuse of prosecution authority that would certainly appeal to someone like him. In addition to aggressively prosecuting undocumented immigrants for immigration-related offenses like illegal entry or reentry, Sessions could nefariously use the federal criminal law to criminalize immigrants for simply working. This is exactly what happened during the Bush-era Postville, Iowa prosecutions in 2008, where nearly 400 undocumented workers were detained by ICE during a raid of the Agriprocessors meatpacking facility and then prosecuted criminally in an aggressive abuse of power.

In Postville, the Department of Justice used the federal identity theft statute — which carried a mandatory 2 year prison term — as a hammer to coerce the undocumented workers into pleading guilty to felony social security fraud, despite questionable evidence. The men and women were literally herded into a livestock showing facility and subjected to group hearings in an effort to speedily dispatch with their cases. The Postville proceedings sparked international outcry, and the Supreme Court later rejected such an egregious use of the identity theft statute.

However, as Attorney General, Jeff Sessions would be positioned to once again abuse criminal laws to target ordinary workers in ways reminiscent of the Postville experience. For example, he could order the Department of Justice to aggressively prosecute inadvertent and harmless mistakes or misstatements on visa forms, entry documents or during citizenship interviews as “immigration fraud.”

Finally, Sessions could also misuse and abuse his authority to coerce state and local officials into immigration enforcement. As Attorney General, he would be charged with ensuring that states and localities comply with Supreme Court decisions that rein in anti-immigrant state laws like the infamous Arizona S.B. 1070. It’s difficult to imagine he would do so, given his support for the similarly-modeled HB 56 in Alabama. He’d also have the authority — through the DOJ Office of Legal Counsel — to give his blessing to a variety of anti-immigrant enforcement measures, including the authority of state/local law enforcement to arrest people for civil immigration violations, the legal contours of a Muslim registry or ban and state or local authority to veto refugee resettlement.

He could also pressure state and local authorities who refuse to engage in deportations with threats of prosecution, denial of access to grant programs, or other punishments. In fact, this very scenario has been publicly espoused by anti-immigrant restrictionists:

Under Sessions, Justice Department lawyers could try to get federal court orders for local officials to cooperate with federal immigration agents.

“First thing you do is you file suit, then you get a judge to issue an injunction” to force cities to stop their policies, said Krikorian, who has submitted policy proposals to Trump’s advisors.

“The nuclear option is you criminally prosecute city council members and supervisors for illegally harboring illegal aliens, which they are,” Krikorian said.

Not surprisingly, the specter of Jeff Sessions at the helm of the Department of Justice has alarmed Americans who cherish human and civil rights. In a letter imploring the Senate Judiciary Committee to reject Sessions’ nomination, The Leadership Conference on Civil and Human Rights, joined by 144 human and civil rights organizations, summarized the Alabama Senator’s shameful record on immigration and his alliance with designated hate groups:

Sessions has been a fierce opponent of comprehensive immigration reform, referring to a bipartisan 2007 bill as “terrorist assistance.” He has closely associated himself with NumbersUSA, the Federation for American Immigration Reform, and the Center for Immigration Studies, all three of which were founded by John Tanton, who held white nationalist beliefs and called for the preservation of a “European-American majority.” Senator Sessions has also received awards from the David Horowitz Freedom Center and Frank Gaffney’s Center for Security Policy, two organizations designated as anti-Muslim hate groups by the Southern Poverty Law Center.

As Attorney General, Jeff Sessions would be in a position to do massive, irreparable harm to individuals, families and business throughout the United States. While the Department of Homeland Security is generally responsible for immigration enforcement, the Attorney General has wide ranging authority over the interpretation, administration and enforcement of immigration law.

A vote to confirm Jeff Sessions is a vote to give sweeping authority over the interpretation, administration and enforcement of immigration law to an unabashed anti-immigrant nativist. It’s a vote to place individuals and families at risk of being torn apart by deportation and prosecution.

Jeff Sessions presents a clear and present danger to American justice in general and immigrants’ rights in particular. The Senate should reject his nomination as Attorney General.



David Leopold

Chair, #Immigration Law, Ulmer & Berne LLP, litigator, bylines @USAToday, @CNNOpinion, @msnbc @thehill @tpm @huffpost @HoustonChron, fmr pres @AILANational