In making wide-reaching changes to the U.S. immigration system, the Trump administration employed a range of executive action tools. One of them is a little known but powerful authority of the attorney general to alter or reinterpret the application of immigration laws.
Through a series of consequential decisions, the Trump administration’s attorneys general elevated the reach and public profile of this obscure bureaucratic tool, raising questions about its historic roots, appropriate use, and future relevance. Formally called the “referral and review power,” the authority allows the attorney general to review and overrule decisions made by the Board of Immigration Appeals (BIA), the immigration appellate body housed within the U.S. Department of Justice. Trump administration attorneys general referred more cases to themselves for review than under any prior administration, Democratic or Republican. These decisions stretched beyond the norms and traditional boundaries of the exercise of this power, making substantive changes to legal regimes—such as the U.S. asylum system—as well as to court procedures, including how immigration judges manage their individual dockets.
This increase in the frequency of use and impact of the attorney general’s power has exacerbated concerns that predate the Trump administration. Allowing the attorney general—the country’s chief law enforcement officer—to intercede in individual immigration cases has raised questions about the true independence of the immigration adjudication system. In addition, attorneys general have issued these decisions with minimal procedural safeguards or transparency; regulations require only that the decision be issued in writing to the affected parties. Attorneys general have frequently issued decisions without input from the parties in the case or other relevant stakeholders, and many times, the affected parties have not even been aware that the attorney general has taken up their case until after the decision is issued. The lack of transparency and, at times, failure to fully brief the legal issues also have negative implications for the legal and policy soundness of attorney general decisions and their acceptance by the broader populations ultimately affected by those decisions.
Beyond questions of procedural consistency and transparency, the fact that this authority has remained within the Justice Department is itself problematic. Before the creation of the U.S. Department of Homeland Security (DHS) under the Homeland Security Act of 2002, most immigration functions were under the jurisdiction of the Justice Department, headed by the attorney general. The 2002 law moved the bulk of immigration policy-making and operations to 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. Since 2003, attorneys general have used this power to make significant policy changes, ranging from abandoning well-established criteria for granting asylum and changing the immigration consequences of certain criminal convictions, to dissolving the constitutional right of foreign nationals in removal proceedings to effective assistance of counsel.
Referral and review provides a ready tool for any new administration to undo prior policy measures and nimbly and efficiently introduce different ideas for improving the performance of the U.S. immigration system, but it must be trusted to produce high quality decisions that advance a coherent and consistent immigration policy.