Notice & Comment

Attorney General Referral in Democratic Administrations, by Patrick Glen

Barring a sweep of the Georgia Senate runoff elections, the Biden Administration will have to work with a divided Congress for at least two years. That reality makes it unlikely that the incoming administration can press an immigration policy agenda through legislative means. Rather, as with the Obama Administration before it, the Biden Administration will likely have to rely on Executive Branch mechanisms to advance its agenda. Unlike the Obama Administration, however, the Biden Administration should not shy away from using Attorney General referral to advance its policy objectives.

Attorney General referral is a regulatory mechanism that allows the Attorney General to review immigration cases in removal proceedings. It has existed in roughly its current form since immigration functions were transferred to the Department of Justice in 1940, and Head of Department review for immigration cases has an even longer pedigree. By the time the Obama Administration left office in 2017, however, the authority had become a rarely utilized and often misunderstood mechanism. The Obama Administration never used the authority to issue a substantive decision, a failure largely paralleled in the Clinton Administration. In contrast, the Bush Administration Attorneys General issued 16 decisions over two terms on a variety of immigration issues. The Trump Administration was similarly active, creating the optical illusion of an adjudicatory mechanism peculiarly suited to conservative aims.

As I argue in a new paper, however, the authority was and remains a neutral mechanism that is as suited to advancing liberal constructions of the Immigration and Nationality Act as it is stricter interpretations. In essence, the mechanism provides an avenue for the Attorney General to resolve issues, but it need not dictate any particular resolution in cases where there is statutory ambiguity that calls for interpretation. But to find a practical model for how Attorney General referral can be utilized by a Democratic Administration, the Biden Administration should look beyond the examples of Obama and Clinton, to that set by John Kennedy and his Attorney General, Robert F. Kennedy. In under four years in office, Attorney General Robert Kennedy issued 11 decisions on issues ranging from visa eligibility and the collateral consequences of a criminal conviction, to citizenship, denaturalization, and the proper interpretation of the grounds of inadmissibility.

Kennedy’s decisions demonstrate a humane solicitousness towards the noncitizen caught within the system and recognize the very real consequences adverse rulings may have on not only that individual’s life but the lives of others. Given this constant concern, Kennedy invariably opted to adopt as precedent the more liberal construction in cases where the statute admitted of multiple reasonable interpretations. He prioritized family unity in cases where the statute could just as easily be read to prohibit preference categorization, declined to find a forfeiture of citizenship in circumstances where the noncitizen committed a denaturalizing act without knowledge of his claim to citizenship, and interpreted the misrepresentation ground of inadmissibility narrowly to avoid findings of removability premised on irrelevant or non-material statements. The common current running through all these cases is a desire to err on the side of the noncitizen – if the statute permitted that construction.

To be sure, in cases where the statute was plain Kennedy showed no hesitation in applying the text despite the harsh consequences that would follow. But Attorney General referral is fundamentally about the former, rather than latter, class of cases. Where the statute is clear, neither the noncitizen or the government has a claim to any other interpretation. In contrast, where there is ambiguity, the Attorney General has Congressionally delegated responsibility for filling that gap. That gap may be filled by a reasonable interpretation, which under the more recent presidential administrations has taken the form of enforcement-minded constructions. Kennedy’s example establishes that such interpretations do not exhaust the range of possible constructions, and that it is possible for an administration to advance a liberal policy agenda through referral. However else the Biden Administration may end up pressing its immigration policy, it would do well to take Kennedy’s cue and make Attorney General referral a central component of its agenda.

Patrick Glen is an adjunct professor at Georgetown University Law Center and an attorney with the federal government. The views and opinions expressed in this post are made in his personal capacity, and do not reflect those of the federal government or any component thereof.

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