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

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 GENERAL’S REFERRAL AUTHORITY: BACKGROUND,

HISTORY, CONTEXT, AND MECHANICS .......................................... 848

A. THE HISTORY AND AUTHORITY OF THE BOARD OF

IMMIGRATION APPEALS ........................................................... 848

B. THE ATTORNEY GENERAL’S 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.