The recent flurry of case certifications by Attorney General Jeff Sessions (he has certified four BIA decisions to himself since January) raises the question of the continued appropriateness of the practice. Certification allows a political appointee who heads an enforcement agency, and is subject to the policy agenda of the administration he or she serves, absolute authority to overrule or completely rewrite the decisions of an ostensibly neutral and independent tribunal comprised of judges possessing greater subject matter expertise.
The issue has only become a matter of legitimate concern under the two most recent Republican administrations. In her eight years as Attorney General during the Clinton Administration, Janet Reno decided a total of three cases pursuant to certification. Under the Obama administration, AGs Eric Holder and Loretta Lynch decided a comparable number of cases (four). The number is artificially inflated by the fact that two of those consisted of Holder vacating late-term decisions by his predecessor, Michael Mukasey. In one of the vacated decisions, Mukasey’s reasoning had been rejected by five separate U.S. circuit courts of appeal.
In contrast, during the eight year administration of George W. Bush, his three Attorneys General issued 15 precedent decisions through the certification process. Sessions so far seems to be on a similar pace.
One of Bush’s AGs, Alberto Gonzales, co-authored an article in 2016 defending the use of certification.1 As part of his argument, Gonzales traced the history of the practice to the BIA’s origins as an advisory-only panel in the Department of Labor in the 1920s and 30s. When the Board was transferred to the Department of Justice in 1940, it was provided only limited decision-making authority, but was required to refer to the AG certain categories of cases, including those “in which a dissent has been recorded” or where “a question of difficulty is involved.”
I will add that the early appointees to the BIA were career bureaucrats with no prior expertise or experience in the field of immigration law. To me, such history seems to provide no real justification for the continued practice. The BIA has for decades enjoyed the authority to independently decide a broad class of cases. It’s members all come to the Board with far more expertise and experience in the field of immigration law than the AG possesses (although since the 2003 purge by then-AG John Ashcroft, its make-up is far more conservative). Furthermore, whereas in the past, it was the BIA itself, and later, the Commissioner of INS, requesting certification, at present, the AG is handpicking the cases and certifying them to himself, sometimes in order to decide an issue that wasn’t part of the decision below.
Law Professor Margaret H. Taylor has noted that the practice of AG certification “might be seen as objectionable because it conflicts with a core value of our legal system: that disputes are resolved by an impartial adjudicator who has no interest in the outcome.”2 Taylor further points out that many such decisions were issued in the final days of an AG’s term, meaning that the AG “refers a controversial issue to himself and renders a decision upending agency precedent on his way out the door.”3
In an article calling for the implementation of procedural safeguards on the AG’s certification power, the author accurately notes that the practice of “agency head review” is common and non-controversial.4 However, Professor Stephen Legomsky has pointed out that the strongest arguments for agency head review - inter-decisional consistency, and agency control (by politically-accountable officials) over policy - don’t translate well to the process of deciding asylum applications, for example.5 This harks back to a point I made in an earlier article - that immigration judges (including BIA Board member) are the only judges in the otherwise enforcement-minded Department of Justice, and that the Department has never really grasped the concept of independent decision-makers existing under its jurisdiction.
Legomsky pointed out in the same article that the BIA, as an appellate authority, “can yield the same consistency as agency head review” through the issuance of en banc decisions; adding that the AG could require the Board to decide certain cases en banc.6 Interestingly, the BIA has given up the use of en banc decisions in recent years. It has not decided a precedent decision en banc even in cases of major import, or following remands from the AG or circuit courts.
Sessions' use of certification thus far is unique in his redetermination of what the case he chooses is even about. In Matter of Castro-Tum, the DHS appealed an immigration judge’s decision to administratively close proceedings in which an unaccompanied minor did not appear on the grounds that it had met its burden of establishing proper notice of the hearing on the minor respondent. The BIA actually agreed with DHS and remanded the matter. However, Sessions has now turned the case into a referendum on whether any IJ or the BIA has the legal authority to administratively close any case, an argument that was never raised below. In Matter of A-B-, an immigration judge, in defiance of the BIA’s order to grant asylum on remand, refused to calendar the case for a hearing for an excessive length of time, and then disobeyed the Board’s order by denying asylum again for spurious reasons. Somehow, Sessions decided to certify this case to decide whether anyone seeking asylum based on membership in a particular social group relating to being a victim of private criminal activity merits such relief. His ultimate decision could curtail asylum eligibility for victims of domestic violence, members of the LGBTQ community, targets of gang violence, and victims of human trafficking.
Furthermore, two of the cases certified by Sessions involve tools of docket management, i.e. administrative closure and continuances. As immigration judges are the only judges within the Department, and as the BIA has set out uniform procedures for the proper use of these tools, how can the AG justify his need to weigh in on these issues, which clearly do not involve the need for intra-department consistency (as no other component of the department employs such tools), or for control by a politically-accountable official to ensure the coherent expression of agency policy?
Once again, the solution is to create an independent, Article I immigration court, allowing IJs to continue to decide cases with fairness and neutrality free from such policy-driven interference.
Copyright 2018 Jeffrey S. Chase. All rights reserved.
Alberto Gonzales and Patrick Glen, Advancing Executive Branch Immigration Policy Through the Attorney General’s Review Authority, 101 Iowa L.Rev. 841 (2016).
Margaret H. Taylor, Midnight Agency Adjudication: Attorney General Review of Board of Immigration Appeals Decisions, 102 Iowa L. Rev. 18 (2016).
Laura S. Trice, Adjudication by Fiat: The Need for Procedural Safeguards in Attorney General Review of Board of Immigration Appeals Decisions, 85 N.Y.U. L. Rev. 1766 (2010).
Stephen H. Legomsky, Learning to Live with Unequal Justice: Asylum and the Limits to Consistency, 60 Stan. L. Rev. 413, 458 (2007).