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Lory D. Rosenberg on Appeal Matters

The Harm That Confirmation of Jeff Sessions as Attorney General Can Do to Immigration Law and Due Process.

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Claiming a "cycle of amnesty" as justification for opposing all immigration reform ever proposed in Congress during his tenure, including the Dream Act, nominee Jeff Sessions responded to Senator Dick Durbin that by electing Trump as President, "the people have spoken."

Sessions argued in his confirmation hearing on January 10, 2017, that we should "fix this system" by passing immigration reform in Congress - reform that he opposed consistently while serving as a Senator. He refused to acknowledge the importance of protecting the status of those protected currently by DACA, President Obama's executive order, and gave no guarantees about the fate of these individuals once Trump assumes the Presidency or during any extended period while reform legislation would be pending.

Sessions' alarming refusal to acknowledge either his past or currently objectionable attitudes and actions as a Senator and a state official is made only more dismal by the Republican apologists on the Senate Judiciary Committee, who are attempting to paint Sessions' history as irrelevant or nothing more than one reflecting permissibly different views on policy.

If (when) he is confirmed as Attorney General, Jeff Sessions will have an exclusive level of authority over the course of immigration law and policy, as well as its impact on those subject to the immigration laws. This power will manifest in 2 principal ways:

  • in hiring and removing Immigration Judges and Board Members on the Board of Immigration Appeals
  • in certifying and deciding immigration decisions made by the Board of Immigration Appeals

The Attorney General, as head of the Department of Justice (DOJ) in which the Executive Office of Immigration Review (EOIR) is housed, selects and appoints all of the individual Immigration Judges (IJ) and the members of the Board of Immigration Appeals (BIA). The situation of Immigration Judges and appellate Board Members within an Executive Branch agency such as the DOJ presents an inherent institutional tension, even apart from the ideological or political leanings of the individual in the Attorney General position.

A.G. Control Over Immigration Judge and Board Member Hiring

Indeed, as the BIA is a creature of regulation and not of statute, the members of the BIA serve "at the pleasure" of the Attorney General. This unfettered authority has been exercised abusively in the all too recent past, when former Attorney General John Ashcroft removed several BIA members from their positions in 2002-2003, reportedly because they were considered "too liberal" in exercising their responsibilities of impartially and independently deciding appeals from removal decisions. 1/

The President of the National Association of Immigration Judges, Hon. Dana Marks, has observed that, "The current court structure is marked by the absence of traditional checks and balances, a concept fundamental to the separation of powers doctrine. This structural flaw is readily apparent to lawyers, scholars and jurists. At present, the Attorney General, our nation’s chief prosecutor in terrorism cases, acts as the boss of the judges who decide whether an accused non-citizen should be removed from the United States." 2/

Moreover, EOIR continues to be subject to criticism for the apparently preferential treatment given in hiring IJ applicants employed by the federal government to the exclusion of a fair representation of IJ candidates from the non-profit and private sector. The population of the IJ corps by persons who have served primarily as prosecutors of immigrants and refugees, with little or no exposure to the representation of and advocacy for these persons, tends to perpetuate a culture in favor of enforcement objectives no matter what the equities or how well-intentioned an IJ may be.

A.G. Power To Certify and Review BIA Decisions

Furthermore, the Attorney General has certification authority over all appellate decisions by the BIA -- authority to declare precedent that is reviewable only by the federal circuit courts of appeal.3/ The decision of the A.G. upon certification is binding on all lower bodies, and the impact of this authority is often disruptive, having unnecessarily adverse consequences on litigants and delaying hearings and the issuance of individual decisions nationwide. Although it is possible that a decision by the A.G. on certification can have a beneficial impact, the all-too-common prosecutorial, enforcement-oriented bent of many Attorneys General often results in undesirable, misguided, and even legally erroneous precedent.

An example of this disruption is the case of Matter of Silva-Trevino, 24 I. & N. Dec. 687 (A.G. 2008), in which former A.G. Michael B. Mukasey reversed upon certification a decision made by the BIA concerning the construction of section 212(a)(2)(A)(i)(I) of the Immigration and Nationality Act (INA). The A.G. ruled that IJs were permitted to inquire into the conduct of a respondent if it was not possible to determine that a conviction was for a crime involving moral turpitude (CIMT) under either the categorical or modified categorical approach.

As a result, for the past 8 years, IJs and the BIA were bound by this A.G. precedent. Countless respondents in removal proceedings were found to be deportable or ineligible for relief from removal on the basis that a conviction in their records amounted to a CIMT due to consideration of factors beyond the elements of the crime as defined in the criminal statute.

Following 7 years of litigation and the involvement of numerous federal circuit courts of appeal, the Mukasey approach was rejected by A.G. Eric H. Holder Jr. See Matter of Silva-Trevino (“Silva-Trevino II”), 26 I&N Dec. 550 (A.G. 2015)(vacating Matter of Silva-Trevino (“Silva-Trevino I”), 24 I. & N. Dec. 687 (A.G. 2008) and remanding the record to the BIA for a new decision).
Too late for some, this odyssey resulted in a 2016 decision in which the BIA declared a uniform standard for the proper construction and application of the INA -- one that did not involve an inquiry into what the defendant had done -- consistent with the categorical approach as repeatedly articulated and affirmed by the U.S. Supreme Court. See Matter of Silva-Trevino, 26 I&N Dec. 826 (BIA 2016).

Placing the power in the Attorney General to appoint the Board Members on the BIA and the IJs, and to review BIA decisions on certification, has the potential for harm that goes well beyond the implicit bias that accompanies all decision making. Simply stated, the policy making functions of an Executive Branch agency such as the DOJ simply do not facilitate the impartial decision making expected of a judicial body. This situation only is exacerbated when an Attorney General who has a racially biased history and a documented anti-immigrant agenda is confirmed.


1. See
Peter J. Levinson, The Façade of QuasiJudicialIndependence in Immigration Appellate Adjudications 15 (2004) (conference paper delivered at the 2004 Annual Meeting of the American Political Science Association), 9 Bender’s Immigr. Bull. 1154 (Oct. 1, 2004). The existence of ideological bias also is established by the testimony of former government attorney and Republican staffer Monica Goodling before the Senate Judiciary Committee on May 23, 2007, admitting that political considerations influenced the hiringdecisions for the career position of Immigration Judge. See e.g., Susan Crabtree, Goodling Asked DoJ Applicants PoliticalQuestions,, May, 23, 2007; Sandra Hernandez & Lawrence Hurley, Goodling Weighed Politics inRecommendations, Daily J., May 24, 2007.

Hon. Dana Leigh Marks, 13 Benders Immigration Bulletin 3, "An Urgent Priority:Why Congress Should Establish an Article I Immigration Court" (January 2008).

3. 8 CFR 1003.1(h) provides for referral to the Attorney General for review all cases (1) that are directed by the AG for referral, (2) that the BIA Chairman or a majority of the Board Members believe should be referred, or (3) that the Secretary of DHS or specific DHS officials in concurrence with the AG, believe should be referred for review.

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Updated 01-13-2017 at 12:34 PM by Lrosenberg

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  1. ImmigrationLawBlogs's Avatar

    The Hill reports on January 11 that Rep. Mo Brooks (R-Alabama), who in 2014 claimed that immigration reform itself was a "war on whites", has now said the same thing about the opposition to confirming Jeff Sessions as attorney general.


    GOP rep: Sessions attacks part of 'war on whites'

    (Sorry, I cannot find a link that works - please go to Google.)

    Isn't it about time for America to acknowledge that opposition to immigration, first and foremost, above all else, always has been and still is an expression of racial prejudice - of a belief that white people are racially superior to all others?

    America's tragedy is that Donald Trump and his incoming administration are Making Anti-Immigrant Racism Great Again, in the minds of all too many Americans.

    My original comment follows:

    The above is a compelling, powerful article, but it only deals with one aspect of the tremendous damage that Sessions can and no doubt will cause to America's immigration system - namely destroying due process on the enforcement or deportation side of the equation.

    The other side of the equation, namely the power that Sessions will have to destroy our employment-based legal immigration system by harassing and intimidating US employers who hire foreign workers with H-1B or other legal employment based visas through Trumped-up (no pun intended) criminal investigations or prosecutions, is just as dangerous.

    Thirty years ago, when he was a US attorney in Alabama, Sessions had no compunctions about bringing groundless "voter fraud" criminal charges against African-American voting rights workers, who were acquitted of all counts. Is there any reason to think he has changed?

    Sessions has made clear again and again that he regards legal foreign workers as threats to the jobs, wages and living standards of American workers (a class of people he has not shown much interest in helping outside the immigration context - when has he ever supported union rights or minimum wage laws?).

    But are these legal foreign workers (over 1,000 of whom Sessions' boss, Donald Trump, has hired through though his businesses in various legal visa programs) really a "threat" to America because of their jobs and working conditions?

    Or is it because of the color of their skin or the non-white areas of the world they come from?

    The answer to this question is clear. Sessions is on record (in his January, 2015 immigration "Handbook" for the 114th Congress - see page 10 of that document), as saying that he supports the 1924 Coolidge era immigration restrictions which were among the most bigoted and racially biased in America's entire history.

    As is certainly well known to Sessions, the 1924 law which he praised so highly only two years ago, excluded not only Asians, Africans and Middle Easterners, but also Eastern European Jews and Southern European Catholics, as well as many other immigrants who were considered to be of inferior racial "stock" under the "eugenics" theories of the time which had so much influence on Adolf Hitler.

    Has Sessions changed his racial views on immigration
    since 2015? Where is there even the slightest sign that he has done so?

    Roger Algase
    Attorney at Law
    Updated 01-11-2017 at 07:47 PM by ImmigrationLawBlogs
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