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Statutes of Liberty: By Popular Demand, The Attorney General Can Change Immigration Law in an Instant

This sponsored column is by James Montana, Esq. and Doran Shemin, Esq., practicing attorneys at Steelyard LLC, an immigration-focused law firm located in Arlington, Virginia. The legal information given here is general in nature. If you want legal advice, contact James for an appointment.

Ask, and it shall be given you; seek, and ye shall find.

In order to understand how extraordinarily weird the world of immigration law is, consider the base case: an ordinary federal court. When a federal judge issues a decision, the losing party can appeal to the relevant Circuit Court of Appeals. The losing party at the Circuit Court of Appeals can petition for review at the Supreme Court.

Notice who isn’t mentioned in the layers of review. The Attorney General of the United States is the top law enforcement official in this country, but he doesn’t decide federal cases, nor does anyone think that he ought to. The powers of prosecution and adjudication are not, and ought not to be, united in a single office.

Now, consider a typical immigration case. When an immigration judge issues a decision, the losing party can appeal to the Board of Immigration Appeals. The losing party at the Board of Immigration Appeals can appeal to the relevant Circuit Court of Appeals, and thence to the Supreme Court.

Sounds similar, right? But there’s one key difference. The Attorney General of the United States has the power to reverse the decisions of immigration judges and to overturn decisions of the Board of Immigration Appeals, all by himself.

In theory, immigration judges (and the judges of the Board of Immigration Appeals) are merely legates of the Attorney General, exercising judgment and discretion on his behalf, and so the AG has the undoubted right to correct his own subordinate officers. He can even pluck a case out of the docket without either of the parties asking him to do so. (Not even the Supreme Court can do that!)

In practice, the Attorney General has used the power to self-certify sparingly. For example, the Washington Post reports that the Clinton Administration only used the certification power three times during his administration, and it was used four times during the Obama Administration.

By our count, sixteen cases were certified to the Attorneys General during George W. Bush’s administration, with nine of those stemming from the Attorney General’s power to self-certify. Since 2017, the Trump Administration’s Attorneys General have already certified thirteen cases, all of which were done at the request of the Attorneys General themselves.

Retired immigration judge J. Traci Hong, who previously presided over cases the Arlington Immigration Court, told the Washington Post that, “The power goes back decades, but in other administrations, it was used very rarely — kind of a nuclear option… Certifying a case is a way for the attorney general to stamp his or her own views on immigration law — and it’s the quickest way to do it.”

Thus far, the Trump Administration’s Attorneys General have used this power more often than other Attorneys General in recent memory. These decisions swiftly, and many times drastically, change the law that applies to all the immigration courts and Department of Homeland Security offices in the country, leading immigration attorneys and their clients to sometimes change course in an instant.

These changes are frequently significant. Here are three from the Trump Administration which have rocked the world of immigration practice:

  1. In Matter of M-S-, the Attorney General held that an entire class of non-citizens were not eligible for bond, and therefore must be detained while their immigration cases are pending.
  2. In Matter of A-B-, the Attorney General held that requests for asylum by victims of domestic violence should, generally, be denied.
  3. In Matter of L-E-A-, the Attorney General held that “the family” is not a particular social group for purposes of asylum analysis, and so threats to an asylum-seeker’s family generally are not cognizable for asylum purposes.

We want to thank Amirite for his thoughtful question, and we want to say, as always, that we welcome any comments and will do our best to respond.

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