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E.g., 07/01/2023
Obscure but Powerful: Shaping U.S. Immigration Policy through Attorney General Referral and Review
January 2021

Obscure but Powerful: Shaping U.S. Immigration Policy through Attorney General Referral and Review

Over the course of four years, the Trump administration used a wide range of executive action tools to make sweeping changes to the U.S. immigration system. Among them is an obscure but powerful bureaucratic authority known as the attorney general’s “referral and review” power. By allowing the attorney general to review and overrule decisions made by the Board of Immigration Appeals (the immigration appellate body within the U.S. Department of Justice), referral and review makes it possible to alter or reinterpret the application of immigration laws—at times with wide-reaching effects.

While the frequent and consequential use of this power by Trump-era attorneys general drew increased attention to it, many of the concerns that have been raised about it predate the Trump administration. Among them: that it allows the attorney general—the country’s chief law enforcement officer—to intercede in individual cases, raising questions about the independence of the immigration adjudication system; that referral and review decisions are made with minimal procedural safeguards or transparency; and that the power has remained in the Justice Department, even as most immigration functions were moved to the Department of Homeland Security when that agency was created nearly two decades ago.

This report explores how referral and review has evolved over time, including under the Trump administration, whose attorneys general referred more cases to themselves for review than those in any prior administration, Republican or Democrat. The report also looks closely at the two areas of U.S. immigration policy most affected by Trump-era referral and review decisions: the U.S. asylum system and court procedures, including how immigration judges manage their own dockets. Finally, it looks ahead to how the power might be used in the future and recommends ways to improve its use and placement within the immigration bureaucracy.

Table of Contents 

1  Introduction

2  History of the Attorney General’s Referral and Review Power
A. The Homeland Security Act and Its Effects
B. Referral and Review as an Administrative Tool

3 The Trump Administration’s Use of Self-Referral
A. Restricting Access to Asylum
B. Eliminating Immigration Judge Discretion

4  The Future of Self-Referral
A. Beyond the Trump Administration
B. Establishing Procedural Requirements to Increase Transparency and Support High-Quality Decisions

5  Conclusion