Attorney General to Consider the Consequences of State 'Judicial Nullification' of Immigration Laws

By Dan Cadman on May 31, 2019

As my colleague Andrew Arthur has noted, Attorney General Barr has certified to himself for review two removal cases, Matter of Matter of Michael Vernon Thomas and Matter of Joseph Lloyd Thompson, decided by the Board of Immigration Appeals (BIA) to determine whether should be reconsidered and overturned.

The outcome of the cases relied on past precedents of the BIA in finding that aliens, including aggravated felons as defined in the Immigration and Nationality Act (INA), are not deportable as the result of their convictions if, after the fact and clearly for the purpose of defeating the language of the law found in the INA, state judges reopen aliens' cases, vacate their original sentences and then deliberately re-sentence those aliens for lesser periods of time that stop just short of the requirements laid out in the INA to render aliens deportable.

When such a sequence of events occurs, it is as obvious an example of "judicial nullification" of the federal immigration laws as one can get. It is ironic and outrageous that jurists – who at least in theory should be against the notion of deliberately finding ways to sabotage the workings of a legal system, especially one outside of their jurisdiction – should engage in such conduct.

Undoubtedly the question before Barr will be to sustain the past BIA precedents holding that such actions are lawful even when designed to circumvent the INA or whether such actions deliberately and unlawfully compromise the integrity and proper functioning of federal law and therefore should be given no credence, since they are obvious post-hoc attempts to undermine congressional intent.

It's probably not hard to figure out where I stand on this issue. I hope that Barr determines that such attempts on the part of state jurists cannot be countenanced.

While he's at it, I hope that he also gives a long, hard look at the practice of some state parole and pardon boards (such as in New York) which have actually established policies allowing some alien felons to seek commutation of their sentences, or even pardons, for the specific and sole purpose of ensuring that they cannot be removed from the United States under the workings of the immigration laws.

Can anyone imagine U.S. citizens being given pardons for the purpose of evading some other legal consequence of their own criminal misbehavior? I can't. Whatever happened to "equal justice under the law"?