[Congressional Record Volume 172, Number 101 (Tuesday, June 16, 2026)]
[Senate]
[Pages S2805-S2806]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
IMMIGRATION
Mr. KAINE. Mr. President, I thank you and my colleagues for being on
the verge of a vote on a matter I placed before the Senate to give
Senator Durbin S.J. Res. 190. I think Senator Durbin has already
spoken, and I believe Senator Padilla will follow me and then we will
move to the vote.
But I just want to explain why I think this is such an important
matter. The resolution would repeal a regulation that the Trump
administration has put in place concerning the appeal of immigration
cases.
So immigration cases, as we all know, that are heard in immigration
courts by administrative law judges often involve very, very momentous
matters for the applicant. And, traditionally, immigration cases are
able to be appealed to an appellate administrative process in case a
judge gets something wrong.
And the appellate process is designed in all court systems to enable
the correction of error. No judge is infallible. Judges make mistakes.
Sometimes judges make mistakes because the quality of the lawyering
before the judge is not that good.
But whether it is a civil matter or a criminal matter or an
administrative matter, a real hallmark of the American legal system--
and I think it is something we can be proud of--is there is an appeal
process to correct mistakes.
The regulation that President Trump's administration has put in place
that I challenge in the resolution that will come up is a regulation
that dramatically limits immigration appeals. So, for example, prior to
the Trump regulation, somebody who got an immigration decision from an
immigration court would have 30 days to appeal. The Trump
administration regulation that I challenge has shrunk that amount of
time to 10 days.
What is the problem with that? Oftentimes, the immigration judge
signals a ruling but hasn't even done a written opinion within 10 days
that an individual or lawyer could know whether there is a basis for
appeal or not.
And so the reduction of the time to appeal to 10 days is certainly
going to have the consequence--and I think it is an intentional thing--
to dramatically limit people's ability even to appeal. The absence of a
record, the absence of a written decision would severely challenge
somebody's ability to appeal.
In some ways, the more serious concern I have about the regulation is
it also gives the immigration judges a massive ability to summarily
dismiss appeals without any hearing whatsoever. So even if you file
your appeal within the 10 days, the new regulation allows the
immigration court to summarily dismiss those appeals 10 days later
unless a majority of the appellate body wants to hear the case. And so
there is almost a default that the appeals will be summarily dismissed.
And, again, if you look at the time deadline: 10 days to file the
appeal and then you can summarily dismiss within 10 days. A total of 20
days. Again, you may not even have a transcribed court record from the
immigration hearing or a written opinion from the immigration judge by
the end of that 20-day period.
And so this is an effort to essentially make the appeals process
meaningless by imposing such tight time deadlines on the filing of
appeal and encouraging the dismissal of appeals on a summary basis as
to render the appeals process completely unworkable.
All right. What does that mean? Let's talk about what this means to
immigrants in immigration courts. And I want to use two kinds of cases
that are really common in the everyday work of our immigration courts.
The first is asylum cases. The United States has had a practice--and
other nations have it as well. And, again, it is a practice that I
think we should feel proud of--that we will offer asylum to individuals
who are able to prove that they have a well-justified fear of
persecution if they return to their country of origin.
And this has been used to protect people from torture, protect people
from imprisonment, protect people from death, protect people from all
kinds of grievous harms in their countries of origin because they are a
political opponent, because they are a member of a religious minority
or an ethnic minority, because they have been subjected to domestic
violence, because they have been pressed into service in the military
as a child soldier in countries that force people into the military at
a young age.
And the United States, along with nations around the world, has
always allowed someone to come in and make this case: I will be subject
to persecution--even to torture and death--if you send me home. And the
United States has allowed people to make that case. And my belief is
that is a good thing, not a bad thing.
Maybe the standard should be a tough standard; but if you meet that
standard, you should be allowed to remain here rather than be sent back
to suffer horrible consequences in the country where you come from.
Let me give you a couple of examples of this that are sort of topical
and recent examples. President Trump authorized military action in
Nigeria on Christmas Day to bomb certain areas and target certain
groups that were persecuting Christians.
Christians being persecuted in this part of Nigeria led the President
to say: This justifies use of the United States military to try to
eliminate the threat whereby people practicing their Christian faith
will be targeted for torture and even death.
So the President has acknowledged that this is a serious concern. And
so what if somebody from Nigeria seeks asylum status in the United
States and says: I am a Christian; I am being targeted because of my
religion; President Trump believes this is such a serious thing that he
authorized United States military action to target terrorist groups in
Nigeria to protect Christians; I would like asylum status in the United
States based on President Trump's recognition that I am subject to
religious persecution?
If you force essentially the evisceration of an appeals process, you
run the risk that individuals who are subject to persecution of this
kind would be returned home and thereby face the very persecution that
President Trump has spoken out against.
Here is another one: Iran. Iran's regime is one of the grossest
violators of human rights on the planet to political opponents, to
religious minorities.
There are Iranians in the United States right now who have active
asylum cases and are attempting to demonstrate: Please don't send me
back there. The work that I have done in Iran against the regime will
immediately get me imprisoned or worse, should I be sent home.
And so if you are going to have a protection for asylees, if you are
going to say: We don't want to send people back to a place where they
are going to be tortured or killed for an illegitimate reason--you
shouldn't turn the immigration appeals process into essentially a
worthless process that does not provide protection for people who have
a high risk of suffering if we make a mistake in an immigration case.
So that is one kind of case, and it is an asylum case. It is a
standard, everyday case in our immigration courts. And I think there is
a pretty strong motive that we not make mistakes in these cases but we
get them right. And an appeals process that is substantive and
significant increases the chance that we will make the right decision,
and eliminating the appeals process or
[[Page S2806]]
dramatically reducing it increases the chance that we will make a
mistake.
The second kind of case that is also just the everyday case: whether
somebody, because of their immigration status, will be deported. Those
cases are happening as we are speaking right now in immigration courts
all over the country. Now, the cases tend to turn on a legal question
about somebody's immigration status and whether they are subject to
deportation because of their status.
At the base of this case there is a legal issue, but in most of these
cases the real issue is family separation: Will we separate children
who were born in the United States from parents who came here in an
undocumented status?
Almost all of these cases about deportation involve families, and
almost all of them involve families that have mixed status. Some might
be U.S. citizens. Some might be green card holders who are seeking to
be citizens. Some might have humanitarian parole. Some might be special
immigrant visa status. And some are undocumented.
And so while a case at an immigration court might seem like it is
about a code provision, the human issue in the case is whether we
maintain a family together or whether we force a family to separate,
and there is not a more significant issue ever litigated in any court
in this country than that.
My wife Anne--and I talk about her probably too much on the Senate
floor because I am so proud of her, but one of the chapters of her
professional life was she was a juvenile court judge in the Richmond
Juvenile and Domestic Relations Court for 9 years, and for the last 3
years she was the chief judge of the court.
Now, the work--I know the Presiding Officer knows this--of a juvenile
court judge is really tough because you are dealing with the worst
things that people do to each other. You are dealing with child abuse
cases. You are dealing with kids who are the victims of horrible crimes
and, sadly, kids who commit horrible crimes. The number of times my
wife had to preside over murder cases--again, somebody murdered or a
young person who commits a murder--grim, grim stories, and she would
come home in a bad mood because of that case.
But the worst cases my wife ever had to preside over were not the
murder cases. They were not the child abuse cases. My wife said the
hardest cases for a juvenile and domestic relations court are cases
involving the termination of parental rights. A parent has had a child.
That parent might have been sentenced to prison. The parent might have
an addiction issue. The parent might have had neglect issues or might
have had serial abuse. Maybe the parent did a whole lot of bad things
to this child. And now there is a legal proceeding before the juvenile
and domestic relations court: Will the parent's right be terminated
forever? I mean, it is a forever decision. It is a decision about
family separation.
And my wife would come home from those cases and say: These cases are
tougher than the murder cases. They are tougher than the child abuse
cases. When you are sitting as a judge and you are looking across the
dais at somebody and the question that you have to decide is, Will I
terminate this mother, terminate this father's right to be the parent
of this child forever, those were the toughest cases--the toughest
cases.
That is what these immigration cases are. They are cases about a
provision of the Immigration Code, but the consequence is family
separation. In the instance of a deportation, it might be family
separation forever.
My wife would say, though: I hate these cases, but thank God there is
an appeal.
In the Virginia system, a decision about a termination of parental
rights could be appealed up to the circuit court.
And she used to say: I am a smart judge. I listen real carefully. I
try to decide right. But I am not an infallible one. I might make a
mistake. And the fact that there is an appeal that is essentially an
appeal of right--that the individual can immediately file an appeal--
and that appeal has to be heard in the circuit court, that gave her a
little bit of comfort that, if I make a mistake, there can be somebody
who can correct the mistake and not terminate somebody's rights to be a
parent for the rest of their life over their own child.
That is what these immigration cases are. In fact, I think even a
higher percentage than dealing with asylum status are cases about
deportation of people over their legal status. And in almost every one
of those cases, it is really a case, at root, about family separation.
And it just strikes me that when the stakes are that high--and if we
acknowledge our own fallibility as legislators and as judges--having an
appeals process that is meaningful isn't a bad thing. It is not
something we should try to eliminate; it is something we should
actually celebrate and say it is a hallmark of our system.
And so, for that reason, following my colleague Senator Padilla, who
I know is going to come and speak on this matter, I will call up, at
the appropriate time, this resolution and ask my colleagues to stand
for the broader proposition that our justice system in this country is
not perfect, and it is never going to be, but because it is not perfect
and because we are not perfect, we have an appellate process that
provides some kind of a check against mistakes, and that is something
to celebrate, not to eliminate. And that is the purpose for the bill
that I will bring before the body following Senator Padilla's comments.
With that, I yield the floor.
The PRESIDING OFFICER. The Senator from Illinois.
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