Advancing Executive Branch Immigration Policy Through the Attorney General's Review Authority

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  Former 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. T HE H ISTORY AND A UTHORITY OF THE B OARD OF I MMIGRATION A PPEALS ........................................................... 848 B. T HE A TTORNEY G ENERAL ’ S R EFERRAL A UTHORITY : A H ISTORY ................................................................................. 849 C. T HE M ECHANICS OF A TTORNEY G ENERAL R EFERRAL AND R EVIEW ................................................................................... 852 III. ATTORNEY GENERAL REVIEW IN PRACTICE ................................... 857 A. H OW H AVE A TTORNEYS G ENERAL U TILIZED THE R EFERRAL A UTHORITY ? ........................................................................... 857 B. W HAT T YPES OF C ASES H AVE D OMINATED THE R EFERRAL P ROCESS ? ................................................................................ 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. W HY I S THE A TTORNEY G ENERAL R EVIEW A UTHORITY N OT U TILIZED M ORE F REQUENTLY ? ................................................ 894 IV. THE REFERRAL AUTHORITY AND THE ADVANCEMENT OF EXECUTIVE BRANCH IMMIGRATION POLICY .................................. 896 A. I S R EFERRAL A V ALID A VENUE FOR E XECUTIVE B RANCH P OLICY -M AKING ? .................................................................... 896 2016] ADVANCING EXECUTIVE BRANCH IMMIGRATION POLICY 843 B. C RITICISMS OF A TTORNEY G ENERAL R EFERRAL AND R EVIEW ..... 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. P OSSIBILITIES FOR R EFORM ...................................................... 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. 844 IOWA LAW REVIEW [Vol. 101:841 Despite this strong sentiment, however, the policy was recognized for what it was—temporary, subject to rescission, and the source of no substantive rights to the beneficiaries: “This memorandum confers no substantive right, immigration status or pathway to citizenship. Only the Congress, acting through its legislative authority, can confer these rights.” 4 In his remarks that afternoon, President Obama framed the promulgation of the DACA policy as an issue of executive action in response to legislative inaction, specifically the defeat of the DREAM Act, which would have provided more permanent benefits to approximately the same class of undocumented aliens eligible for relief under DACA. 5 The President also placed the new initiative in the context of prior administrative measures to focus its enforcement discretion, such as the so-called Morton Memo, which outlined the enforcement and prosecutorial priorities for Immigration and Customs Enforcement. 6 As the President noted in regard to these prior initiatives: “We focused and used discretion about whom to prosecute, focusing on criminals who endanger our communities rather than students who are earning their education. And today, deportation of criminals is up 80 percent. We’ve improved on that discretion carefully and thoughtfully. Well, today, [with DACA] we’re improving it again.” 7 But the President also echoed Secretary Napolitano in presenting DACA as a temporary measure, simply an exercise of prosecutorial discretion in the absence of more comprehensive congressional action. 8 Many people welcomed DACA, not least the demographic of young, undocumented aliens the action was meant to benefit. 9 Prominent immigration scholars, with a caveat regarding the precedent for unilateral executive action being set by the administration, 10 defended the Obama Administration’s use of executive authority to implement DACA and to 4. Id. at 3. 5. Barack Obama, President of the U.S., Remarks by the President on Immigration (June 15, 2012), http://www.whitehouse.gov/the-press-office/2012/06/15/remarks-president-immigration; see also Marjorie S. Zatz & Nancy Rodriguez, The Limits of Discretion: Challenges and Dilemmas of Prosecutorial Discretion in Immigration Enforcement , 39 L. & SOC. INQUIRY 666, 675–76 (2014). 6. See Memorandum from John Morton, Dir., U.S. Immigration & Customs Enf’t, to all field office directors, all special agents in charge...