Notice & Comment

Gonzales & Glen on Immigration and Attorney General Referral Authority (AdLaw Bridge Series)

Earlier this week the State Respondents filed their merits brief in United States v. Texas—the challenge to the Obama Administration’s executive actions on immigration the Supreme Court will hear in April. In light of this important case, it seems fitting to highlight a new article just published in the Iowa Law Review by former Attorney General and now Dean Alberto Gonzales and his coauthor Patrick Glen, who is a senior attorney in the Justice Department’s Office of Immigration Litigation.

Their article, Advancing Executive Branch Immigration Policy Through the Attorney General’s Review Authority, chronicles another tool that the executive branch can use to develop and implement federal immigration policy: the Attorney General’s referral and review authority in immigration adjudication. Here are more details, from the SSRN 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.

I penned a short response—Referral, Remand, and Dialogue in Administrative Law—that the Iowa Law Review just published in its online companion. Here’s a summary of my response from the abstract:

In Advancing Executive Branch Immigration Policy Through the Attorney General’s Review Authority, former U.S. Attorney General and now Dean Alberto Gonzales and current Office of Immigration Litigation attorney Patrick Glen provide a rich account of a longstanding but little-used regulatory tool for immigration adjudication: the Attorney General’s referral and review authority. This Response argues that the Attorney General’s referral authority presents federal courts with a powerful, yet previously overlooked tool to engage in a dialogue with the agency when remanding cases to the BIA. In particular, this dialogue-enhancing tool helps courts exercise a more profound systemic effect on agency adjudication. The Response concludes by encouraging Congress, agencies, and courts to develop similar tools in other agency adjudication contexts in order to allow courts to have a more systemic effect on agency decisionmaking and a richer dialogue with agencies on remand.

As I also note in my response, there is something to be said for law reviews publishing more administrative law scholarship that has been coauthored by lawyers who have worked in the bureaucratic trenches and who can shed light on the empirical realities of the modern administrative state. This is a great example of the benefits.


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