Advancing Executive Branch Immigration Policy Through the Attorney General's Review Authority

Author:Hon. Alberto R. Gonzales & Patrick Glen
Position:Former Counsel to the President and the United States Attorney General under the George W. Bush Administration/Senior Litigation Counsel, Office of Immigration Litigation, United States Department of Justice
Pages:841-921
SUMMARY

Prospects for comprehensive immigration reform look dim in light of past failures to enact legislation, such as the DREAM Act, and a continued period of divided government placing a skeptical Republican Congress in opposition to a sympathetic Democratic President. With legislative fixes for the United States' immigration system unlikely in the near future, the Obama Administration will continue... (see full summary)

 
FREE EXCERPT
841
Advancing Executive Branch Immigration
Policy Through the Attorney General’s
Review Authority
Hon. Alberto R. Gonzales & Patrick Glen
ABSTRACT: Prospects for comprehensive immigration reform look dim in
light of past failures to enact legislation, such as the DREAM Act, and a
continued period of divided government placing a skeptical Republican
Congress in opposition to a sympathetic Democratic President. With legislative
fixes for the United States’ immigration system unlikely in the near future, the
Obama Administration will continue to press its immigration agenda via
executive order and enforcement memorandum. Such initiatives do provide
real short-term benefits, but they are by nature temporary and lack the ability
to provide any permanent status to their beneficiaries. Importantly, however,
they are not the only tools that the executive branch wields if it is intent on
implementing certain reforms even in the face of a divided Congress.
This Article focuses on a little used mechanism, Attorney General referral and
review, which could play an efficacious role in the executive branch’s
development and implementation of its immigration policy. This procedure
permits the Attorney General to adjudicate individual immigration cases and
thereby provide a definitive interpretation of law or institute new policy-based
prescriptions to guide immigration officials in the future. Although used only
four times by the Obama Administration, and sparingly in prior
administrations, the history of its invocation establishes it as a powerful tool
through which the executive branch can assert its prerogatives in the
immigration field.
Structurally, this Article presents both a historical overview of the referral
authority and a doctrinal assessment of its prior use by modern Attorneys
For mer Counsel to the President and the United States Attorney General under the
George W. Bush Administration; Dean and Doyle Rogers Distinguished Professor of Law,
Belmont University College of Law.
 Senior Litigation Counsel, Office of Immigration Litigation, United States Department
of Justice.
The authors thank Samantha Simpson, J.D. Candidate 2016, Belmont University College of
Law, for her valuable assistance. The views and opinions expressed in this Article are the authors’
own and do not represent those of the U.S. government or Department of Justice.
842 IOWA LAW REVIEW [Vol. 101:841
General. It also refutes common, but fundamentally misplaced, criticisms of
the authority, including the purported lack of due process attendant upon
referral. Finally, it concludes by considering certain proposals for reform that
could make the authority a more robust avenue for executive branch
immigration policy.
I. INTRODUCTION ............................................................................. 843
II. THE ATTORNEY GENERALS REFERRAL AUTHORITY: BACKGROUND,
HISTORY, CONTEXT, AND MECHANICS .......................................... 848
A. THE HISTORY AND AUTHORITY OF THE BOARD OF
IMMIGRATION APPEALS ........................................................... 848
B. THE ATTORNEY GENERALS REFERRAL AUTHORITY: A
HISTORY ................................................................................. 849
C. THE MECHANICS OF ATTORNEY GENERAL REFERRAL AND
REVIEW ................................................................................... 852
III. ATTORNEY GENERAL REVIEW IN PRACTICE ................................... 857
A. HOW HAVE ATTORNEYS GENERAL UTILIZED THE REFERRAL
AUTHORITY? ........................................................................... 857
B. WHAT TYPES OF CASES HAVE DOMINATED THE REFERRAL
PROCESS? ................................................................................ 860
1. Resolution of Legal Questions ..................................... 861
i. Eligibility Determinations for Asylum and Related
Protection .................................................................. 861
ii. Expungement Issues ................................................... 868
iii. Relief Under Former Section 212(c) ............................ 870
2. Setting Policy and Establishing New Decisional
Frameworks .................................................................... 874
3. Foreign Policy-Related Decisions ................................. 882
4. Remand and Attorney General Inaction ..................... 886
i. Remands for Further Consideration ............................ 886
ii. Attorney General Inaction .......................................... 891
C. WHY IS THE ATTORNEY GENERAL REVIEW AUTHORITY NOT
UTILIZED MORE FREQUENTLY? ................................................ 894
IV. THE REFERRAL AUTHORITY AND THE ADVANCEMENT OF
EXECUTIVE BRANCH IMMIGRATION POLICY .................................. 896
A. IS REFERRAL A VALID AVENUE FOR EXECUTIVE BRANCH
POLICY-MAKING? .................................................................... 896
2016] ADVANCING EXECUTIVE BRANCH IMMIGRATION POLICY 843
B. CRITICISMS OF ATTORNEY GENERAL REFERRAL AND REVIEW ..... 898
1. Should the Attorney General Referral Mechanism
Exist in any Form? ......................................................... 899
2. Do the Procedures That Govern Attorney General
Referral and Review Comport with Due Process? ....... 902
C. POSSIBILITIES FOR REFORM ...................................................... 912
1. Revise the Regulation to Establish Set Procedures
Governing Referral and Review ................................... 912
2. Revise the Regulation to Provide for a Greater Flow
of Cases to the Attorney General for Review ............... 914
3. Delegate Greater Responsibility for Advising the
Attorney General on Referred Cases to a Special
Assistant or the Civil Division ....................................... 917
V. CONCLUSION ................................................................................ 920
I. INTRODUCTION
On June 15, 2012, Janet Napolitano, then Secretary of the Department
of Homeland Security, announced the Deferred Action for Childhood
Arrivals (“DACA”) initiative with a memorandum to component directors.1
Napolitano’s memo set out criteria for the exercise of the Department’s
prosecutorial discretion in instituting or terminating removal proceedings,
focusing on the alien’s age, period of residence in the United States,
educational attainment or status, and lack of disqualifying criminal
convictions.2 Justifying this focus, Napolitano wrote:
Our Nation’s immigration laws must be enforced in a strong and
sensible manner. They are not designed to be blindly enforced
without consideration given to the individual circumstances of each
case. Nor are they designed to remove productive young people to
countries where they may not have lived or even speak the language.
Indeed, many of these young people have already contributed to our
country in significant ways. Prosecutorial discretion, which is used in
so many other areas, is especially justified here.3
1. Memorandum from Janet Napolitano, Sec’y, U.S. Dep’t of Homeland Sec., to David V.
Aguilar, Acting Comm’r, U.S. Customs & Border Prot., et al. (June 15, 2012) [hereinafter
Napolitano Memorandum], http://www.dhs.gov/xlibrary/assets/s1-exercising-prosecutorial-
discretion-individuals-who-came-to-us-as-children.pdf. See generally Elisabeth M.W. Trefonas,
Deferred Action for Childhood Arrivals, WYO. LAW., June 2014, at 32.
2. See Napolitano Memorandum, supra note 1, at 1.
3. Id. at 2.

To continue reading

FREE SIGN UP