A way forward on immigration policy

Congressional gridlock on immigration reform led President Obama to pursue his preferred immigration policy through executive action with Deferred Action for Childhood Arrivals (DACA) in 2012 and Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) in 2014. These programs, although applauded by immigration reform advocates, were criticized by many others. These criticisms reached their apex when DAPA was enjoined before it took effect, a ruling that an equally divided Supreme Court affirmed in June 2016.

Immigration issues have also been a central focus of the Trump administration, as has resort to executive action to fulfill its policy agenda. But as with DAPA, the administration’s executive actions on immigration policy — from the so-called travel ban and sanctuary city funding to the rescission of DACA — have run into significant hurdles in the courts. With the passage of almost one and a half years, the Supreme Court is primed to rule on the administration’s travel and refugee restrictions, but litigation on other issues could drag on for years.

{mosads}As the judicial setbacks mounted through 2017, the Trump administration turned to a more established feature of immigration law and policymaking to advance its immigration agenda: the attorney general’s authority to review and adjudicate immigration cases as they arise in removal proceedings. The immigration statute speaks in terms of the attorney general’s authority to review “determinations in immigration proceedings,” but also gives him the authority to delegate this function.

Since the reorganization of government in 1940, this authority has been delegated to the Board of Immigration Appeals, which exercises appellate review over decisions made by immigration judges in removal proceedings. Nonetheless, the regulations specifically reserved to the attorney general the ability to review decisions of the board either on his own referral or through referral by the board or officials of the Department of Homeland Security.

As we recently argued in the Iowa Law Review, “Attorney general referral and review is a potent tool through which the executive branch can lawfully advance its immigration policy agenda. It provides for both definitive resolution of legal issues and the opportunity to promulgate binding policy pronouncements on all executive branch immigration officials.” But over the course of the Obama administration, this mechanism was used only four times, and in no case to issue a substantive interpretation of the law or advance a policy objective. No administration has used this authority less or to less effect.

Contrast that use with the George W. Bush administration’s invocation of the authority. The Bush administration attorneys general utilized the authority to issue 16 precedential decisions over the course of eight years in a wide variety of cases raising issues of national security, eligibility for discretionary relief from removal, and what criminal convictions might bar relief or expose an alien to removal. As precedential decisions entitled to deference before the courts of appeals, these opinions have an ongoing significance to the resolution of claims before the agency and courts that has outlived the Bush administration. In contrast, the executive actions underpinning DACA and DAPA were undone at the stroke of a pen.

For these reasons, we concluded that the referral “authority can be a vital aspect of immigration adjudication,” and urged future administrations take better advantage of its potential, as it “represents the attorney general’s exercise of the authority delegated to him by Congress, and a fulfillment of the legal and policy roles that he is meant to serve as head of the Justice Department. The authority can and should be revitalized in the coming years.”

One can see the fulfillment of the potential of this mechanism in its invocation by Attorney General Jeff Sessions. In remarks on the Trump administration’s immigration priorities in December, he specifically noted the increased caseload in the immigration court, delays in completing removal proceedings, and the Obama administration’s policy of closing cases with no resolution on removability or relief from removal.

The attorney general’s referrals have specifically targeted these priorities, questioning whether and under what circumstances the agency possesses the authority to administratively close a case without a decision on removability or relief, what circumstances could justify a continuance before the immigration judge, and whether an applicant for relief is entitled to a full evidentiary hearing on his claim even if the immigration judge concludes that the application will fail as a matter of law.

By focusing on these issues, the attorney general is targeting the Trump administration’s priority to close cases as expeditiously as fair consideration of the claims presented allows. Beyond process-based cases, the attorney general has also directed referral in a case presenting a substantive issue of asylum law, “whether, and under what circumstances, being a victim of private criminal activity constitutes a cognizable ‘particular social group’ for purposes of an application for” relief. This issue was also broached, in part, in the attorney general’s December remarks, as many such claims arise in connection with gang activity in Central America.

Not every issue of immigration law or policy is amenable to adjudication. The attorney general also took issue with so-called “chain migration,” but that issue cannot be addressed absent congressional action. Moreover, regardless of what issues may or may not be proper subjects for referral, there are compelling arguments that the long-term interests of the United States necessarily require a comprehensive review and reform of the existing immigration system.

In the meantime, however, the referral authority does provide an avenue for the executive branch to bring clarity and consistency to many corners of the current system. It should be embraced for what it is and utilized with its inherent limitations in mind, even while pursuing more lasting measures jointly with Congress.

Alberto Gonzales was the 80th attorney general of the United States and counsel to the president in the George W. Bush administration. He is now the Doyle Rogers distinguished professor of law and dean of the Belmont University College of Law. Patrick Glen is a senior attorney in the civil division of the U.S. Department of Justice. They are the authors of “Advancing Executive Branch Immigration Policy Through the Attorney General’s Review Authority,” published in the Iowa Law Review. The views expressed here are those of the authors and not of the Justice Department.