WaPo Botches Reporting on AG's Torture Decision

One-sided story fails to note that Barr simply corrected an erroneous BIA decision using prevailing case law and precedent

By Andrew R. Arthur on March 11, 2020
  • On February 26, the AG issued a decision on certification in Matter of R-A-F-, which dealt with adjudications of claims under the UN Convention Against Torture (CAT).
  • That decision corrected an erroneous unpublished decision from the Board of Immigration Appeals, using existing case law and current regulations governing CAT protection.
  • The AG is clearly given the authority by statute and regulation to issue such decisions.
  • Reporting in the Washington Post on that decision only included comments from those who oppose the AG's decision and his ability to issue decisions through certification — with the exception of one paragraph linking to a post that I wrote in November.
  • DOJ appropriately did not respond to loaded and erroneous questions related to that pending matter, or answer hypotheticals about asylum generally.
  • The Post should have solicited differing views from other "experts", not just the ones it relied upon.

On February 26, 2020, Attorney General (AG) William Barr issued a decision in Matter of R-A-F-, reversing a decision issued by the Board of Immigration Appeals (BIA). The BIA had found that a criminal Mexican national (who claimed that if returned, he would be placed in a mental health institution in Mexico) would be subject to "torture" as that term is defined in regulation if removed, and therefore sustained a decision granting him deferral of removal. The Washington Post reported on that decision, and the AG's certification authority, on March 5, 2020. The AG was correct in his decision, but the Post's reporting missed the mark in many significant ways — not least by linking to my work, but not asking me to respond to points made therein.

By way of background, the United States is a signatory to the UN Convention Against Torture (CAT), which this country ratified on October 21, 1994, "subject to certain declarations, reservations, and understandings, including a declaration that" articles in the CAT "were not self-executing, and therefore required domestic implementing legislation."


The Foreign Affairs Reform and Restructuring Act of 1998 (FARRA) announced the policy of the United States not to expel, extradite, or otherwise effect the involuntary removal of any person to a country where there are substantial grounds for believing that the person would be in danger of being subjected to torture.

FARRA also required relevant agencies to promulgate and enforce regulations to implement CAT, subject to the understandings, declarations, and reservations made by the Senate resolution of ratification.

The regulations implementing CAT are found in 8 C.F.R. §§ 1208.16, 1208.17, and 1208.18. The last provision states, in pertinent part:

Torture is defined as any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or her or a third person information or a confession, punishing him or her for an act he or she or a third person has committed or is suspected of having committed, or intimidating or coercing him or her or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. [Emphasis added.]

As I have previously explained, pursuant to regulation, the Department of Homeland Security (DHS), with only a very limited exception, has no jurisdiction over CAT determinations. Those are left to the Department of Justice (DOJ) — specifically immigration judges, the BIA, and the AG (on certification). Notably, I explained the bases of the AG's certification authority in a November 5, 2019, post, at some length.

Briefly, however, section 103(a)(1) of the Immigration and Nationality Act (INA) gives the secretary of DHS responsibility for administering and enforcing the immigration laws of the United States, with the caveat that "determination and ruling by the Attorney General with respect to all questions of law shall be controlling." The AG has delegated this authority to the immigration judges and the BIA, but retained, by regulation, the ability to review their decisions by certification. Specifically, 8 C.F.R. § 1003.1(d)(7) states: "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).

The AG can exercise this certification authority directly (by having the BIA refer specific decisions to him for review), or at the request of the BIA or DHS (DHS cannot appeal erroneous BIA decisions to the courts of appeals as aliens can, as I will explain in a future post). The AG directed the BIA to refer Matter of R-A-F- to him for his review, and found the BIA had erred in its determination that the respondent was eligible for deferral under CAT pursuant to regulation and prevailing case law — all of which is referenced at length in the AG's decision.

There are two forms of CAT relief that DOJ can grant: withholding of removal and deferral of removal. The latter is a more restrictive protection that is available to applicants for protection who are not eligible for withholding because they fall within one or more of a series of categories barring a grant of that protection in section 241(b)(3)(B) of the INA (including the fact that the alien is a persecutor, has been convicted of a particularly serious crime, or poses a danger to the national security of the United States).

In Matter of R-A-F-, the respondent had been convicted of "attempted sexual abuse of a child" under an unspecified criminal provision, and therefore has been convicted of a "particularly serious crime" (a fact that does not appear to be in dispute), barring him from withholding of removal under CAT. That left only eligibility for deferral under CAT as potential protection for that respondent.

By regulation, the respondent bears the burden of establishing that he is eligible for CAT, and the immigration judge found that he had done so, a determination that was sustained by the BIA. Specifically, the respondent had contended "that upon his return, he would be sent to a Mexican mental health care facility whose poor conditions rise to the level of 'torture.'"

The AG concluded that the BIA's "decision was contrary to law" (again, all of which the AG cited) and remanded the case back to the BIA for a new review in accordance with his decision. As noted, by regulation: "In order to constitute torture, an act must be specifically intended to inflict severe physical or mental pain or suffering." (Emphasis added.) In particular, the AG noted the BIA itself had previously concluded that "'torture' does not cover 'negligent acts' or harm stemming from a lack of resources."

In other words, with respect to this particular scenario, the mere fact that an alien would be returned to a facility in which pain or suffering could occur simply because of negligence, or because the country in question is unable to provide conditions of care that would prevent or ameliorate such harm, does not mean that the potential harm constitutes "torture". Rather, the harm alleged must be intentionally inflicted.

Matter of R-A-F- is a pretty straightforward case (I considered many such claims, particularly in the context of potential criminal confinement in Haiti), and I am surprised that the immigration judge and BIA ruled the way they did to begin with. The AG cited to cases involving the exact same scenario in which CAT was denied (including from the notoriously liberal Ninth Circuit).

A contrary conclusion would mean that many aliens being returned to confinement or detention in a country whose standards of care did not meet up to those in the United States would be eligible for CAT rellief — a result not envisioned in CAT, FARRA, or the regulations. To underscore again: The AG was not breaking new ground here, but simply restating prevailing law.

Which brings me back to the Washington Post story. Its problems begin with the headline: "On immigration, Attorney General Barr is his own Supreme Court. Judges and lawyers say that's a problem" (complete with a grumpy-looking picture of the AG in front of a DOJ sign).

Respectfully, the AG is not "his own Supreme Court", on immigration or anything else. The respondent in this case and all cases, following the ultimate BIA decision, can seek review of that decision before the relevant court of appeals under section 242 of the INA (as the petitioner in the Ninth Circuit case referenced above did), and file a petition for review of that decision by seeking a writ of certiorari from the actual "Supreme Court".

Rather, the AG was simply exercising his authority under section 103 of the INA. And, I was a "judge", and I don't see anything wrong with the AG utilizing power that was granted to him by Congress to correct an otherwise erroneous decision, particularly one involving an alien who has been convicted of a crime involving the attempted sexual abuse of a child.

What is the alternative? Allow the BIA to err in a way that would allow that alien to be released into the United States? To ask the question is to answer it.

The Post story only gets worse from there. It begins: "Attorney General William P. Barr quietly intervened in an immigration asylum case last week when he issued a decision that narrowed the definition of torture for asylum seekers who invoke it as a grounds [sic] for staying in the United States."

"Quietly"? It is published right on the website of the Executive Office for Immigration Review (EOIR), the DOJ component with jurisdiction over the immigration court and BIA. The legal error in the decision below is so straightforward that the AG's correction hardly merits a press conference, and his decision did not actually "narrow" the definition of torture — it simply restated it, as that decision shows (and as I have explained, above).

The Post continues:

Barr used a process known as "certification," a historically little-used power of the attorney general that allows him to overrule decisions made by the Board of Immigration Appeals and set binding precedent. Immigration lawyers and judges say the Trump administration is using the power with greater frequency — to the point of abuse — as it seeks to severely limit the number of immigrants who can remain in the United States. The administration is also using it as a check on immigration judges whose decisions don't align with the administration's immigration agenda, experts say.

The current administration has used certification more than its predecessors (a point I have previously made), but so what? Former AG Alberto Gonzales, who served under George W. Bush, argued in 2016 that the Obama administration should have used it more than it did. It is more the fault of those prior administrations to exercise other options (like "executive policy pronouncements, such as DACA", as Gonzales argued), than a blemish on the current administration to use that authority to correct decisions that are potentially subject to Article III court review.

And in what way is it an "abuse" to use that authority in a case like this — where a potentially dangerous alien had been wrongly granted a protection that would have allowed him to remain in the United States indefinitely? On the contrary, it is an abuse of his power for the AG to allow the BIA to issue erroneous decisions that he does not correct.

Almost in support of my point, the Post reports:

The decision to intervene in a Mexican national's otherwise unremarkable asylum case is a warning to immigration board members that even their unpublished decisions are being scrutinized, former immigration judge Jeffrey Chase told The Washington Post via email.

"In the past, such decisions flew under the radar," Chase wrote.

"Flying under the radar" is a great strategy if you attempting to avoid scrutiny (literally, the definition of the term), but why would anyone want the BIA (or any government agent) to escape scrutiny from those who are designated by Congress to exercise it? That would be an abuse of power. As Justice Brandeis famously stated: "Sunlight is said to be the best of disinfectants."

As for the experts who are cited asserting that "the administration" is using certification "as a check on immigration judges whose decisions don't align with the administration's immigration agenda", there are no examples cited in the article, nor is that likely in any event because it would be counterproductive and foolhardy for the AG to do so.

Again, alien respondents can petition the courts of appeal for review of administrative decisions (including those made by the AG) under section 242 of the INA. That review makes it highly unlikely that the AG, or "the administration" (whatever that means in this context), would use certification as a tool to handle personnel issues, as the unidentified "experts" cited by the Post contend. This is simple law.

Do you really think that three federal circuit court judges (with lifetime tenure) sitting as a panel (as they do) are going to allow the AG to ham-handedly issue legally dubious decisions simply to make a point to "immigration judges whose decisions don't align with the administration's immigration agenda" without smacking him down, and hard? The only question is whether administrative decisions (by the immigration judges, BIA, or AG) align with the law. If they do (ideally), they are upheld; otherwise, they are overturned.

The Post story continues:

Half a dozen immigration experts who spoke to The Post said Barr's use of his certification power in this case erodes the neutrality and due process that should exist in immigration court. They also cited recent moves by Justice Department [sic], such as creating an office to denaturalize immigrants or using an immigrant's confidential therapy notes in a deportation case against them, as evidence of the Trump administration's willingness to break norms to achieve its goals.

There are a couple of points to be made here — both personal and legal.

First, I am an "immigration expert" and the Post never asked me my opinion, despite the fact that I have been a witness before both the House and Senate Judiciary Committees on EOIR's judicial independence, have written (and spoken) extensively on the AG's certification authority, and I work right down the street from the paper (and have commented to its reporters in the past — they have my number). In fact, if you Google "Attorney General certification authority", my November 2019 post is the first result.

Lest you think I am an egotist (which I very well might be, but that is beside the point), the Post implicitly admitted I am an expert on the issue, linking to that same November 2019 post in its article in stating: "Proponents of the certification power argue that it's a necessary tool to correct erroneous immigration court decisions and quickly enact needed changes." (Link in original.) "Argue"? No. I explained in detail why it was a necessary tool to correct erroneous immigration court decisions, and if anything, Matter of R-A-F- itself proves that I was right.

That is why the Post should have asked me for my take on the issue, rather than implicitly (and in a truncated fashion) referencing my work. Keep in mind this is a "news article" — not an opinion piece — and should present a balanced view of the issue for its readership.

With respect to the paper's statement that I am a "proponent" of the AG's certification authority, that is a correct statement (I am likely the only person referenced in that article, explicitly or implicitly, who has ever actually argued cases to the AG on certification), but I would have appreciated the opportunity to have explained my reasons and responded to the assertions of other "experts" therein.

As for the legal points, I will first also note that the references in that article to denaturalization and the use of confidential therapy notes are non-sequiturs. Whether the AG is allowed to or should issue cases to correct BIA decisions on certification is a straightforward point — he is and he should.

Should DOJ denaturalize citizens who failed to disclose they were "terrorists, war criminals, [and] sex offenders", or who otherwise engaged in fraud in obtaining citizenship? Yes, but that is a different issue from the AG's certification authority.

Should DOJ "us[e] an immigrant's confidential therapy notes in a deportation case against them"? That is an open question that will ultimately be decided by the federal courts, but it has nothing to do with the AG correcting legal errors on certification.

And, with respect to this issue, according to the Washington Post in a February 2020 article, that was the work (as an initial matter) of attorneys from U.S. Immigration and Customs Enforcement (ICE) — an agency within DHS — in a case in which those notes allegedly contained information that the alien in question (with purported gang affiliations) had committed some pretty serious offenses (you can read the article to see the evidence and the facts alleged).

DOJ's Office of Immigration Litigation (OIL) in the department's Civil Division apparently only became involved in the matter when the alien in question filed what looks like a habeas with the district court (that lengthy article curiously does not go into many details about this, although it discusses what the subject eats). Of course, it is OIL's job to provide such representation when DHS is sued (a point I will discuss in a future post, as promised), a job that touches in no way on the AG's personal decision-making on certification.

Which raises an important point (non sequiturs aside). DOJ and DHS (which, as the foregoing shows, prosecutes removal cases before the immigration courts and BIA) are two separate departments within the executive branch. Only if you view one-third of the federal government (the one with the most employees, by the way) as a monolith that moves in lock-step does the Post's underlying argument about certification "erod[ing] neutrality and due process" even make sense. And if you do, you have not been following the news lately.

But even that does not consider the AG's ethical responsibility to act as a neutral arbiter in the cases before him. Canon 3 of the Code of Conduct for United States Judges (which is not binding on the AG, but provides a useful guide in cases like this) states: "A Judge Should Perform the Duties of the Office Fairly, Impartially and Diligently." There is no indication that AG Barr failed to live up to this standard in Matter of R-A-F- and to suggest otherwise without proof (which the Post fails to supply) is, frankly, shameful. I received plenty of decisions as a lawyer I disagreed with, but never questioned the ethics of the judge who issued them — regardless of who held the White House at the time.

Returning to the March 5 Post article, it quoted a former IJ who expressed concerns "that certification could be used to circumvent the lengthy and detailed regulatory process, which can take years or even decades." She never explains why the AG would want to spend years or even decades in the regulatory process (this is like arguing that flying from D.C. to L.A. "circumvents" a 2,674-mile drive), but in any event, the AG is entrusted by Congress with the authority to act in the manner he did, again, under section 103(a)(1) of the INA.

The AG actually addressed this very point in a separate, October 2019 certification decision, Matter of Thomas and Matter of Thompson, where he noted:

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.

The Supreme Court has long recognized that agencies may decide whether to announce reinterpretations of a statute through rulemaking or through adjudication. See NLRB v. Bell Aerospace Co., 416 U.S. 267, 294 (1974) ("[T]he choice between rulemaking and adjudication lies in the first instance within the [agency's] discretion."). ... Indeed, in the decades since Bell Aerospace, the Supreme Court "has not even suggested that a court can constrain an agency's choice between rulemaking and adjudication.'" ... And agencies retain their discretion even when announcing interpretations that may conflict with prior decisions. ... I accordingly conclude that it is appropriate to address these Board precedents in the context of an administrative adjudication, and there is no legal requirement to do so by regulation. [Emphasis added.]

In other words, the AG had a choice, and chose certification over rulemaking. Importantly, however, there was no need for rulemaking in Matter of R-A-F-, because all that the AG was doing was correcting a decision that was in error based on existing regulations and precedent — as my analysis above and the AG's decision shows. In fact, rulemaking in this context would be redundant (it would simply restate existing law), and would not prevent the release of this particular alien (who had a serious criminal offense) into the public.

I will note that the Post reported that the former IJ referenced above contended: "Had Barr wanted to propose new standards for defining torture in asylum cases ... they would be subject to public notice, debate, revision and public comment." This is not dissimilar to the role that the press should play in our society, providing an opportunity for public notice, debate, and public comment. When, as in this instance, only one side of the argument is made, that process is short-circuited.

To be fair, the paper did reach out to DOJ for comment:

The Justice Department did not respond when asked to address concerns from immigration judges and lawyers about the recent decision to narrow the torture definition for asylum seekers. Nor did it respond to questions on whether it views the current remedies available to asylum seekers as overly broad.

That does not alleviate the duty of the Post to seek differing viewpoints, however, for three reasons.

First, it has been the policy of DOJ not to respond to questions about pending cases for as long as I can remember — almost three decades, and likely ever. Comment in this case would have been particularly inappropriate because the case was remanded and therefore is actually pending before DOJ. This would be like expecting Chief Justice John Roberts to comment on a case after arguments were completed before the Supreme Court, but before a decision was issued.

Second, the first question is loaded and erroneous. The AG, as I explain above, did not "narrow the torture definition for asylum seekers" in Matter of R-A-F-. And CAT and asylum are two different forms of protection, which I could have explained if the Post had called me, instead of just linking to my work.

Third, whether the "current remedies available to asylum seekers [are] overly broad" is irrelevant because Matter of R-A-F- involved CAT, not asylum. Nor are federal adjudicators (like the immigration judges, BIA, and AG) constitutionally allowed to issue advisory opinions explaining how they would rule in a hypothetical case. They certainly cannot answer such hypotheticals asked by reporters without abandoning their roles as neutral adjudicators. What the Post wants is an opinion — a question for pundits like me, not DOJ.

To quote the paper of record in our Nation's Capital: "Democracy Dies in Darkness." Its editors should read their own website.