Expanded Use under Trump of the Attorney General’s Immigration Power Spotlights Longstanding Concerns
WASHINGTON — While the Trump administration’s reliance on executive authority to achieve sweeping immigration changes across the federal government has long been examined, far less attention has been given to the expanded use of a relatively obscure yet significant authority that allows the attorney general to set immigration policy. Using the “referral and review” power, the attorney general can reach into the immigration courts system, which is housed in the Justice Department, and overrule decisions made by the Board of Immigration Appeals (BIA) — thus setting new policy.
Attorneys general during the Trump administration, Senate-confirmed and acting alike, referred more cases to themselves for review than under any prior U.S. administration. In one notable decision, Attorney General Jeff Sessions in 2018 vacated a BIA decision recognizing domestic violence as a cause to grant asylum, and further decreed gang violence also would generally not serve as a qualifying reason. With that one decision, Sessions nearly negated the chief protection arguments cited by many Central American families seeking refuge in the United States.
A new Migration Policy Institute (MPI) report examines the origins, varying uses and legal and political implications of this increasingly used tool. The author, Policy Analyst Sarah Pierce, details concerns about the use of the referral and review authority for due process, transparency and the independence of immigration adjudications, as well as the integrity of immigration policymaking.
And she notes the Trump administration’s reliance on the referral and review power has cast a spotlight on the fact this authority remains within the Justice Department, even as most federal immigration functions were transferred from Justice in 2003 to the newly created Department of Homeland Security (DHS). “Thus, attorneys general no longer hold the expertise that is derived from overseeing immigration operations nor are they tasked with immigration policymaking, yet their decisions can bind DHS, even over that agency’s protests,” Pierce writes.
During the Trump administration, Attorneys General Jeff Sessions and William Barr, and Acting Attorneys General Matthew Whitaker and Jeffrey Rosen self-referred more than 17 cases, including in the final days of the administration. By comparison, the practice was used four times during the eight years of the Obama administration, and the prior peak of 11 referrals occurred during the two-term administrations of Bill Clinton and George W. Bush.
The decisions made through these reviews by Trump attorneys general served the administration’s policy agenda, including by restricting the grounds for requesting asylum, and limiting immigration judges’ discretion to suspend or terminate removal proceedings or release an immigration detainee on bond.
Historically, the referral and review authority was primarily used to settle inter-departmental disputes or complicated legal questions. With the passage of the Homeland Security Act (2002), which left the immigration court system under the Justice Department but moved most immigration policy functions and operations to DHS, the attorney general has increasingly used this channel to help implement the executive branch’s immigration agenda.
As the new Biden administration faces pressure to reverse many executive actions implemented by its predecessor, the referral and review tool may present an appealing opportunity to act swiftly on immigration. Nonetheless, this will do little to improve the integrity of the immigration bureaucracy, the report argues, and the Justice Department should issue formal guidelines or promulgate regulations detailing procedures that must be followed for each referral and review.
The referral and review authority “started as a pragmatic mediating measure and policy tool for the executive branch head of the immigration system to direct its work,” the report concludes. “Through a gradual transformation that was largely unintended or foreseen, it has become a powerful political tool that has proven to have sweeping implications for the nation’s immigration system.”
Read the report, Obscure but Powerful: Shaping U.S. Immigration Policy through Attorney General Referral and Review, here: www.migrationpolicy.org/research/obscure-powerful-immigration-attorney-general-referral-review.
This report is part of the multi-year Rethinking U.S. Immigration Policy Initiative, launched in 2019. The initiative is generating a big-picture, evidence-driven vision for the role immigration can and should play in America’s future. Reports focusing on unauthorized immigrant populations that could be the focus for legalization efforts, the immigration detention system, the immigration courts and a range of other topics will be published in the coming weeks and months.
To keep up with the latest developments in the Rethinking initiative, sign up for updates here.
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The Migration Policy Institute (MPI) is an independent, non-partisan, non-profit think tank in Washington, D.C. dedicated to analysis of the movement of people worldwide. MPI provides analysis, development and evaluation of migration and refugee policies at the local, national and international levels. For more on MPI, please visit www.migrationpolicy.org.