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

TL;DR: The Attorney General referral and review (AGR) authority as discussed by the authors has been used only four times by the Obama Administration, and sparingly in prior administrations, but the history of its invocation establishes it as a powerful tool through which the executive branch can assert its prerogatives in the immigration field.
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 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.
Citations
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Journal ArticleDOI
TL;DR: In this article, the authors discuss the evolution of the particular social group ground in both domestic and international law and review the disparate treatment of PSGs by the Board of Immigration Appeals and federal circuit courts.
Abstract: An applicant seeking asylum in the United States must demonstrate that she fears persecution on account of one of five protected grounds—race, religion, national origin, political opinion, or membership in a particular social group (PSG). The PSG ground has long been the most complex and challenging avenue for relief, and in the Trump era, already precarious protections for groups such as survivors of intimate partner and gang violence are at great risk. The Board of Immigration Appeals’ first, and longstanding, definition of a PSG in Matter of Acosta required members to possess “common immutable characteristics,” those that, like the other statutory grounds, either could not be changed or were so fundamental that one should not be required to change them. This article will reveal that since the Board imposed two additional requirements—that PSGs possess social distinction and particularity—over a decade ago, the Board has recognized only two new particular social groups. Both of those groups, one protecting survivors of intimate partner violence and the other family membership, were invalidated by Trump administration attorneys general. Thus, when examining BIA jurisprudence, it appears that the particular social group is dead. This article will discuss the evolution of the particular social group ground in both domestic and international law and review the disparate treatment of PSGs by the Board of Immigration Appeals and federal circuit courts. It will then make recommendations—including legislation, reconsideration of the Attorney General’s broad authority to overrule cases using the power of self-referral, and consideration of whether Chevron deference remains appropriate for PSG jurisprudence—for a return to the more equitable, and legally sound, Acosta immutability test.

11 citations

Posted Content
TL;DR: Chevron deference is at the height of its powers in refugee and asylum cases, with the highest possible human consequences as mentioned in this paper, and there are cogent arguments justifying more deference in asylum cases than in other kinds of deportation cases.
Abstract: Chevron deference is at the height of its powers in refugee and asylum cases, with the highest possible human consequences. Why does the Supreme Court seem so comfortable with Chevron deference in asylum cases, when it has been reluctant to defer to the government in other kinds of deportation cases? More to the point, is this deference justified? There are cogent arguments justifying more deference in asylum cases than in other kinds of deportation cases. These arguments rest to a great extent on the premise that greater political accountability is a good thing when interpreting a statute. Yet, in a highly politicized environment, political accountability is achieved at the expense of legal stability. Recently, some circuit courts have used arbitrary and capricious review as a limitation on Chevron deference, suggesting reservations about allowing an administration to radically depart from past interpretations of the law.

7 citations

Journal ArticleDOI
TL;DR: Seminole Rock deference may be living on borrowed time as mentioned in this paper, which requires courts to defer to an agency's interpretation of its own ambiguous regulations, to the detriment of regulated parties who lack notice regarding their legal obligations.
Abstract: Seminole Rock deference — which requires courts to defer to an agency’s interpretation of its own ambiguous regulations — may be living on borrowed time. Although it might seem harmless, many worry that Seminole Rock violates the maxim that the same hands should not both make and interpret the law. Indeed, the fear is that this combination of powers may create incentives for agencies that value flexibility to promulgate ambiguous rules whose meaning they can later clarify retroactively, to the detriment of regulated parties who lack notice regarding their legal obligations. The upshot is that several Justices of the Supreme Court have called for Seminole Rock to be revisited.What has been overlooked, however, is that overruling Seminole Rock would have unintended consequences. This is so because another case, Chenery II, enables agencies to put parties in a similar bind simply by not promulgating rules at all. Under Chenery II, an agency has discretion whether to promulgate industry-wide rules or instead to give meaning to statutes by case-by-case adjudication. Because the doctrines are substitutes for each other, albeit imperfect substitutes, if the Court were to overrule Seminole Rock, agencies that place a high value on their own future flexibility could achieve it by pivoting to Chenery II. Yet for regulated parties, this could be worse than the status quo because even an ambiguous rule generally provides more notice than an open-ended statute. Equally troublesome, because overruling Seminole Rock would discourage rulemaking, it would reduce public participation in the regulatory process.The insight that Seminole Rock and Chenery II are interconnected — meaning what happens to one affects the other — counsels in favor of stare decisis. Importantly, however, if the Supreme Court is inclined to overrule Seminole Rock, it should also revisit aspects of Chenery II to prevent problematic substitution. For instance, the Court could begin affording Skidmore rather than Chevron deference to statutory interpretations announced in adjudications and could also bolster fair notice. Absent such revisions, overruling Seminole Rock may harm the very people the Justices hope to help.

4 citations

References
More filters
Journal ArticleDOI
TL;DR: In this article, the authors discuss the evolution of the particular social group ground in both domestic and international law and review the disparate treatment of PSGs by the Board of Immigration Appeals and federal circuit courts.
Abstract: An applicant seeking asylum in the United States must demonstrate that she fears persecution on account of one of five protected grounds—race, religion, national origin, political opinion, or membership in a particular social group (PSG). The PSG ground has long been the most complex and challenging avenue for relief, and in the Trump era, already precarious protections for groups such as survivors of intimate partner and gang violence are at great risk. The Board of Immigration Appeals’ first, and longstanding, definition of a PSG in Matter of Acosta required members to possess “common immutable characteristics,” those that, like the other statutory grounds, either could not be changed or were so fundamental that one should not be required to change them. This article will reveal that since the Board imposed two additional requirements—that PSGs possess social distinction and particularity—over a decade ago, the Board has recognized only two new particular social groups. Both of those groups, one protecting survivors of intimate partner violence and the other family membership, were invalidated by Trump administration attorneys general. Thus, when examining BIA jurisprudence, it appears that the particular social group is dead. This article will discuss the evolution of the particular social group ground in both domestic and international law and review the disparate treatment of PSGs by the Board of Immigration Appeals and federal circuit courts. It will then make recommendations—including legislation, reconsideration of the Attorney General’s broad authority to overrule cases using the power of self-referral, and consideration of whether Chevron deference remains appropriate for PSG jurisprudence—for a return to the more equitable, and legally sound, Acosta immutability test.

11 citations

Posted Content
TL;DR: Chevron deference is at the height of its powers in refugee and asylum cases, with the highest possible human consequences as mentioned in this paper, and there are cogent arguments justifying more deference in asylum cases than in other kinds of deportation cases.
Abstract: Chevron deference is at the height of its powers in refugee and asylum cases, with the highest possible human consequences. Why does the Supreme Court seem so comfortable with Chevron deference in asylum cases, when it has been reluctant to defer to the government in other kinds of deportation cases? More to the point, is this deference justified? There are cogent arguments justifying more deference in asylum cases than in other kinds of deportation cases. These arguments rest to a great extent on the premise that greater political accountability is a good thing when interpreting a statute. Yet, in a highly politicized environment, political accountability is achieved at the expense of legal stability. Recently, some circuit courts have used arbitrary and capricious review as a limitation on Chevron deference, suggesting reservations about allowing an administration to radically depart from past interpretations of the law.

7 citations

Journal ArticleDOI
TL;DR: Seminole Rock deference may be living on borrowed time as mentioned in this paper, which requires courts to defer to an agency's interpretation of its own ambiguous regulations, to the detriment of regulated parties who lack notice regarding their legal obligations.
Abstract: Seminole Rock deference — which requires courts to defer to an agency’s interpretation of its own ambiguous regulations — may be living on borrowed time. Although it might seem harmless, many worry that Seminole Rock violates the maxim that the same hands should not both make and interpret the law. Indeed, the fear is that this combination of powers may create incentives for agencies that value flexibility to promulgate ambiguous rules whose meaning they can later clarify retroactively, to the detriment of regulated parties who lack notice regarding their legal obligations. The upshot is that several Justices of the Supreme Court have called for Seminole Rock to be revisited.What has been overlooked, however, is that overruling Seminole Rock would have unintended consequences. This is so because another case, Chenery II, enables agencies to put parties in a similar bind simply by not promulgating rules at all. Under Chenery II, an agency has discretion whether to promulgate industry-wide rules or instead to give meaning to statutes by case-by-case adjudication. Because the doctrines are substitutes for each other, albeit imperfect substitutes, if the Court were to overrule Seminole Rock, agencies that place a high value on their own future flexibility could achieve it by pivoting to Chenery II. Yet for regulated parties, this could be worse than the status quo because even an ambiguous rule generally provides more notice than an open-ended statute. Equally troublesome, because overruling Seminole Rock would discourage rulemaking, it would reduce public participation in the regulatory process.The insight that Seminole Rock and Chenery II are interconnected — meaning what happens to one affects the other — counsels in favor of stare decisis. Importantly, however, if the Supreme Court is inclined to overrule Seminole Rock, it should also revisit aspects of Chenery II to prevent problematic substitution. For instance, the Court could begin affording Skidmore rather than Chevron deference to statutory interpretations announced in adjudications and could also bolster fair notice. Absent such revisions, overruling Seminole Rock may harm the very people the Justices hope to help.

4 citations