In recent posts, I have examined an NBC News article discussing two recent decisions issued by the attorney general (AG): Matter of Castillo-Perez, which addressed convictions for driving under the influence (DUI) on 42B cancellation, and Matter of Thomas and Matter of Thompson, which set standards on the effect of sentence modifications for criminal aliens facing removal. That article, however, treated as exceptional a procedure that the AG has at his disposal to change the law: review by certification. It is really not that exceptional, but it is effective, and through certification the AG can make additional points guiding adjudicators beyond the simple legal principles at issue in the case.
NBC News states:
As top judge, Barr can essentially pluck cases from the Board of Immigration Appeals, which is effectively the appellate arm of the immigration courts, for "certification." After reviewing those cases, he can issue binding rulings on how immigration courts should interpret the law.
While past administrations have used the power, often to narrowly clarify immigration law, the Trump administration has been using it to alter large parts of the immigration system without writing new laws or regulations. Since coming into office, Trump's attorneys general have used the certification process on a range of immigration issues, including limiting the discretion of immigration judges and narrowing asylum law by restricting the number of migrants who can stay in the U.S.
Barr's new decisions establish that he is following in the footsteps of his predecessor, Jeff Sessions, by using certification to overturn sometimes decades-old precedent and limit paths to legal residency. Sessions issued decisions on five cases during his tenure. Barr has now issued four. The Trump administration, not yet three years old, is on track to issue more of these decisions than any administration in recent history. In its eight-year span, the Bush administration issued 16 decisions. The Obama and Clinton administrations issued four and three respectively. [Emphasis added.]
Respectfully, the real question is not why the Department of Justice (DOJ) under the Trump administration has used this authority so often, but rather why previous AGs used it so sparingly.
Alberto Gonzales, who served as AG under the George W. Bush administration, and Patrick Glen, senior litigation counsel at the Office of Immigration Litigation in the Department of Justice (DOJ), discussed the underuse of certification by the Obama administration in a 2016 article in the Iowa Law Review. They noted:
"This certification power, though sparingly used, is a powerful tool in that it allows the Attorney General to pronounce new standards for the agency and overturn longstanding BIA precedent." This authority, which gives the Attorney General the ability "to assert control over the BIA and effect profound changes in legal doctrine," while providing "the Department of Justice final say in adjudicated matters of immigration policy," represents an additional avenue for the advancement of executive branch immigration policy that is already firmly embodied in practice and regulations. It thus may be a less controversial method by which to advance immigration policy than the executive-decree style thus far utilized by the Obama Administration.
Gonzales and Glen are correct in their assertions that the certification authority is "firmly embedded in practice and regulations". It is also rooted in the Immigration and Nationality Act (INA) itself.
Specifically, section 103(a)(1) of the INA states that "determination and ruling by the Attorney General with respect to all questions of law shall be controlling." Hence, NBC News accurately refers to the AG as the "top judge" as it relates to the immigration laws and removal cases before the immigration courts and the Board of Immigration Appeals (BIA).
Given the hundreds of thousands of removal cases that are currently pending, the AG would be overwhelmed if he had to decide each of these cases individually. For this reason, Congress has provided for the appointment of immigration judges (IJs) to handle all of those cases as a preliminary matter. Section 101(b)(4) of the INA states:
The term "immigration judge" means an attorney whom the Attorney General appoints as an administrative judge within the Executive Office for Immigration Review, qualified to conduct specified classes of proceedings, including a [removal] hearing under section [240 of the INA]. An immigration judge shall be subject to such supervision and shall perform such duties as the Attorney General shall prescribe, but shall not be employed by the Immigration and Naturalization Service. [Emphasis added.]
To review the decisions of the more than 400 IJs at the nation's 63 immigration courts, past AGs have delegated some of their review authority to the BIA by regulation, which is found at 8 C.F.R. § 1003.1(a):
There shall be in the Department of Justice a Board of Immigration Appeals, subject to the general supervision of the Director, Executive Office for Immigration Review (EOIR). The Board members shall be attorneys appointed by the Attorney General to act as the Attorney General's delegates in the cases that come before them. [Emphasis added.]
In creating the BIA, however, AGs have retained review authority for themselves, as 8 C.F.R. § 1003.1(d)(7) makes clear: "The decision of the [BIA] shall be final except in those cases reviewed by the Attorney General in accordance with" 8 C.F.R. § 1003.1(h). That latter regulation states:
Referral of cases to the Attorney General.
(1) The Board shall refer to the Attorney General for review of its decision all cases that:
(i) The Attorney General directs the Board to refer to him.
(ii) The Chairman or a majority of the Board believes should be referred to the Attorney General for review.
(iii) The Secretary of Homeland Security, or specific officials of the Department of Homeland Security designated by the Secretary with the concurrence of the Attorney General, refers to the Attorney General for review.
(2) In any case the Attorney General decides, the Attorney General's decision shall be stated in writing and shall be transmitted to the Board or Secretary, as appropriate, for transmittal and service as provided in paragraph (f) of this section.
Thus, there are three categories of cases that the AG may review on certification: (1) cases that the AG directs be referred to him; (2) cases that the BIA refers to the AG for consideration; and (3) cases that the Department of Homeland Security (DHS) refers to the AG for review.
When I was an associate general counsel at the former INS, I requested (with the blessing of the general counsel) the then-AG (Janet Reno) to review decisions of the BIA that the INS believed had been incorrectly decided. This was an important avenue for review, because there was no statutory authority for the then-INS, or current DHS, to seek review of a BIA decision by the Article III federal courts. If this authority did not exist, and the BIA screwed up a decision (which happens), the government would have to live with the results, regardless of the consequences for the law, the community, or the national security.
The BIA may request AG review for major questions of law, or as a safeguard to ensure that a decision of importance was decided correctly. Inherent in such requests is the fact that the BIA is itself breaking new ground with respect to the immigration laws, or is interpreting a new statutory provision, or is dealing with a high-profile matter.
Finally, the AG may direct that a specific case be referred to him where he believes that the individual decision was in error, or to adopt a policy or legal change that would apply generally (as the AG did in the two most recent cases he took on certification), and sometimes the AG does so to both correct an error in the underlying case and to change policy.
An example of the latter is Matter of Jean. The BIA there granted a waiver of inadmissibility and adjustment of status to a Haitian national who had been admitted as a refugee. The respondent in that case had been convicted of second-degree manslaughter in connection with death of a 19-month-old child.
In reversing that decision and ordering the respondent removed, AG John Ashcroft make clear his disapproval of the BIA's laxity in granting immigration relief to criminals in the exercise of discretion:
According to the respondent's signed confession, R-J- [the victim] had been left in her care that day by the boy's mother. ... Early in the afternoon, the young child fell off a couch in the apartment and began to cry. The respondent reacted by striking the toddler's buttocks two or three times with her open hand in an attempt to quiet him. When this effort proved unsuccessful, she picked the boy up by the armpits and shook him. She then hit him two or three times on the top of his head with her fist. Finally, she picked him up again and shook him until he lost consciousness. Upon observing that the child was no longer breathing and that his eyes, although open, had stopped blinking, the respondent placed him on a bed just off the living room.
The medical examiner's report described bruises to R-J-'s head, chest, and back; internal hemorrhages of the lungs, pancreas, and diaphragm; and acute subdural and spinal epidural hemorrhages. The report determined that R-J- died from bleeding and swelling inside his skull caused by blunt trauma, and that the death was a homicide.
The [BIA] ... held that, under its own view of the evidence, the respondent had established her eligibility for a waiver of inadmissibility and an adjustment of status from refugee to lawful permanent resident. Finally, the [BIA] concluded in a single sentence that "the equities," when weighed against the respondent's criminal conviction, warranted the grant of such discretionary relief.
The [BIA] here cited testimony and "lengthy letters" provided by members of the respondent's family, as well as the fact that the respondent's husband and children are permanent legal residents, as evidence that her removal would cause the family "severe emotional hardship." ... On the strength of this scant summary, the [BIA] found that she "met the standard for granting" a waiver of inadmissibility and an adjustment of status.
The [BIA]'s analysis, which makes no attempt to balance claims of hardship to the respondent's family against the gravity of her criminal offense, is grossly deficient. The opinion marginalizes the depravity of her crime, stating simply that the panel had "weighed the equities in this case against the respondent's criminal conviction" and concluded that discretionary relief was warranted. ... Little or no significance appears to have been attached to the fact that the respondent confessed to beating and shaking a nineteen-month old child to death, or that her confession was corroborated by a coroner's report documenting a wide-ranging collection of extraordinarily severe injuries. [Emphasis added.]
The AG set forth a new general policy to be followed in granting asylum and adjustment of status in the exercise of discretion to violent criminal aliens:
Aliens who have committed violent or dangerous crimes will not be granted asylum, even if they are technically eligible for such relief, except in extraordinary circumstances, such as those involving national security or foreign policy considerations, or cases in which an alien clearly demonstrates that the denial of status adjustment would result in exceptional and extremely unusual hardship. Depending on the gravity of the alien's underlying criminal offense, such a showing of exceptional and extremely unusual hardship might still be insufficient.
Reading between the lines of this May 2002 decision, the AG used his certification authority not only to reverse an erroneous decision, but also to clarify the correct standard for the BIA to follow going forward in exercising his discretion and to signal that the then (fairly) new administration viewed such cases differently (and more harshly) than its predecessor. (NB: Coincidentally, just over 10 months later, AG Ashcroft "asked [five of the then 16-BIA Members] to find other jobs ... as part of a previously announced streamlining plan.").
AG Barr's decision in Matter of Castillo-Perez is similar to Matter of Jean, in that it involved an extreme set of circumstances in a case changing immigration policy.
The AG held in Matter of Castillo-Perez that multiple convictions for driving under the influence (DUI) are "strong evidence" that an alien lacked the good moral character required for 42B cancellation of removal, as I explained in an October 28 post.
Notably, in that case the IJ had granted what the AG described as "a coveted and scarce form of relief" in the exercise of discretion to an alien who had been arrested twice (in 2001 and 2006, respectively) for assault and battery on his spouse, charged with public drunkenness in 2004, convicted of negligent driving in 2005, and convicted of driving under the influence (DUI) in 2010 and 2012. The respondent admitted he had "been involved in several incidents that resulted in criminal charges being filed against" him, and that "[i]n each case, the excessive consumption of alcohol was a major factor."
That decision had been reversed by the BIA before then-Acting AG Matthew Whitaker directed the case be referred to him for review. While AG Barr's subsequent decision involved the interpretation of "good moral character" as a matter of law, that decision also reflected the AG's assessment of the exercise of his discretion by the IJ in that case. Notably, the AG held: "Even setting good moral character aside, an alien with multiple DUI convictions would likely be denied cancellation of removal as a purely discretionary matter."
Directing the IJs and BIA in the proper use of discretion is a complicated task, because the AG does not want to be accused of so-called "infringement on the independence of the Immigration Court", despite the fact that the IJs are actually exercising the AG's discretion. Moreover, as noted above, the AG has only limited time and resources to correct erroneous exercises of that discretion. Again, with due respect to immigration judges and the BIA, the granting of discretionary relief in cases like Matter of Jean and Matter of Castillo-Perez is strong evidence that the creation of Article I immigration courts, separate from their current structure within DOJ, are a bad idea.
Finally, I would note that the AG in Matter of Thomas and Matter of Thompson underscored his power to establish immigration policy through certification. Specifically, he expressly rejected the argument that DOJ should proceed through "rulemaking" (that is, by promulgating a regulation in compliance with the Administrative Procedure Act or "APA") instead of through "adjudication", finding: "Supreme Court precedent confirms my authority as agency head to proceed by adjudication, and my authority here derives from the text of the relevant provisions in the INA."
In short, certification is a powerful tool that allows the AG to set immigration law and policy. It is also an effective way for the AG to use his suasion to correct improper exercises by his delegates of the discretion that he has been given under the INA. I would expect to see it used more in the future, to ensure that the often-arcane immigration laws are applied in a commonsense manner.