The veterans among us know all too well the vast power that the Attorney General of the United States (AG) has in immigration matters, but for those who are new to the practice of immigration law, or just interested members of the press or public, here is a primer on the power of this office only as it relates to immigration:
(1) The AG has the power to remake the Board of Immigration Appeals (BIA). In 2002, Attorney General John Ashcroft decided to “streamline” BIA review of immigration decisions and he was able to do so without any enabling legislation because the BIA is a creature of regulations promulgated by the Attorney General. Before 2002, most immigration appeals were reviewed by three-judge panels which almost always issued written opinions. But Ashcroft changed that to require single-member review of most cases. He also cut the number of BIA members from 23 to 11and dismissed the more “pro-immigrant” members. Since that time, the board has grown to 17, but there is nothing to prevent our new AG from remaking the entire Board in whatever form he wishes.
(2) The AG has the power to review, modify, and/or reverse any BIA decision that does not meet his approval. Though this power has been rarely used in the past, it could be invoked by an AG who seeks to change as much BIA precedent as possible.
(3) The AG has the power to hire immigration judges who agree with his policies and fire those who don’t. Immigration judges do not have lifetime tenure. They are hired by the Executive Office of Immigration Review (EOIR), a division of the Department of Justice, and work in an atmosphere where “decisional independence” can be penalized. IJs can be fired for any reason during their initial two-year probationary period. Many immigration courts (including Louisville, Los Angeles, San Francisco, Houston, and New York) have been understaffed for years and have huge backlogs of cases. At present, 522,000 deportation cases are pending in immigration courts. The Obama administration recently hired 61 immigration judges, bringing the total to 294 – still far below the 374 IJs Congress has authorized. Many of these judges are expected to retire in the next few years because they are, simply put, tired. The AG will be the one appointing new IJs.
(4) The AG has the power to interpret provisions of immigration law. For example, our current laws state that a person who claims asylum must prove persecution or fear of persecution on account of one of five protected grounds. One of those grounds is membership in a “particular social group/” But what does that mean and what can it include? In 1994, Janet Reno announced that a “particular social group” could include sexual orientation. Under pressure from conservative groups, the next AG could attempt to re-write that entire policy, and direct U.S. attorneys to argue that the policy is protected from review under the “Chevron” doctrine. Arguments exist to counter that position, but who knows what a conservative panel of a Circuit Court may decide? And who knows what a majority of a reconstituted Supreme Court may do?
(5) The AG has the power to rewrite large swaths of asylum law.
(6) The AG has the power to challenge the legality of state or local immigration policies through the 93 appointed U.S. Attorneys.
(7) The AG has the power to order U.S. Attorneys to prosecute low-level immigration-law violations, such as illegal entry or attempting to enter the United States, a misdemeanor under 8 USC §1325.
(8) As the overseer of the Bureau of Justice Assistance, a body that reimburses local jails for holding federal prisoners, the AG has the power to cut off law enforcement funds to cities that don’t cooperate with federal enforcement directives.
(9) The AG plays a major role in administering immigration law, and can influence how quickly immigrants can be deported. The AG can multiply detention capacity by contracting with private prison companies which can in turn contract with local jails to serve as holding tanks for immigrants awaiting transport to detention facilities with remote video links to immigration courts.
(10) The AG has the power to play immigration hardball with local officials. For years, the Center for Immigration Studies has advocated for Justice Department lawyers to file suit against non-compliant cities and criminally prosecute city council members and supervisors for “illegally harboring illegal aliens.”
Since every AG has had these powers, why has the nomination of Senator Sessions as AG roused such urgent concerns? Here are some of the reasons:
(1) Sen. Sessions and President-elect Trump have both stated that they are opposed to “birthright citizenship,” which is,” guaranteed under the 14th Amendment. ,
(2) Sen. Sessions led the fight against the Senate Gang of Eight’s 2013 Comprehensive Immigration Reform bill and played a key role in killing an earlier bill in 2007.
(3) Also in 2013, Sen. Sessions supported an Alabama law aimed at encouraging “self-deportation” that required public schools to verify the immigration status of students and their parents and made it a crime for failing to carry their legal papers. Federal courts overturned it.
(4) Former aides to Sen. Sessions were instrumental in adding tough immigration proposals to the party platform adopted at the Republican National Convention in July 2016 that included cutting federal funding to cities that don’t cooperate with ICE and increasing penalties for immigrants convicted of re-entering the U.S. after being removed.
(5) During the 2016 Republican National Convention, Sen. Sessions said, “The president has the clear power to suspend immigration to protect America.” In 2013, proposed an amendment to the comprehensive immigration bill to limit legal immigration. Sen. Sessions was the only member to vote for it, and it failed 17-1. Sen. Sessions has mocked business leaders who defend current legal immigration levels for playing “masters of the universe.”
(6) Sen. Sessions favors turning away unaccompanied children who arrive at the border alone and are attempting to reunite with families living in the U.S.
(7) Sen. Sessions has called DACA “backdoor amnesty” and could provide legal support for the rescission of the executive order that established the policy.
So, what can we do?
Call and email your senators. Recently, Republican efforts to defang the House Congressional Ethics Committee were abandoned because of the volume of calls that flooded House member offices. The same needs to happen with the Senate. Call now and continue every day until the Sessions floor vote which is expected soon. But please don’t waste your efforts on senators outside your state unless you know them personally.
But we need more than just AILA members to call. It is also important to ask for help from the companies you represent on immigration matters. The AG could institute policies that negatively impact the business community. Contact your business clients, make them aware of the threat an AG with these priorities poses, and ask them to email and call their senators.
Written by AILA Member Elliott Ozment
To learn more, watch this Quicktake video with AILA’s Director of Advocacy Greg Chen who discusses the Senate confirmation hearings of Senator Jeff Sessions for Attorney General and Retired General John Kelly for Department of Homeland Security Secretary held on January 10, 2017, and January 11, 2017.