Abuse of Power: Immigration Courts and the Attorney General's Referral Power,
52 Case W. Res. J. Int'l L.
Available at: https://scholarlycommons.law.case.edu/jil/vol52/iss1/27
In June 2018, then Attorney General Jeff Sessions issued Matter of A-B-. This decision vacated the holding of the 2014 Board of Immigration Appeals decision, Matter of A-R-C-G-. In A-R-C-G-, the adjudicator held that, depending on the specific facts of the case, “married women in Guatemala who are unable to leave their relationship” constitutes a particular social group. Membership in a particular social group is one of five ways to qualify for asylum in the United States. Membership is based on a fact specific analysis conducted by an immigration adjudicator. Sessions’s decision to vacate Matter of A-R-C-G- had a devastating impact on the viability of asylum claims for individuals fleeing domestic violence.
Matter of A-B- is just one of many instances where the Attorney General has overruled the prior holding of the Board of Immigration Appeals. Immigration courts are housed under the Department of Justice, and as head of the Department, the Attorney General can exercise control over the immigration courts. Under federal regulation, the Attorney General may direct an immigration decision from the Board of Immigration Appeals to themself for review. The referral power then allows the Attorney General to either affirm or overrule decisions from the Board of Immigration Appeals.
Sessions’s decision in Matter of A-B- is illustrative of the issues with the Attorney General’s referral power. As a political appointee, the Attorney General can refer any case to himself or herself at their discretion and overturn years of precedent. In doing so, the Attorney General interferes with the case-by-case adjudications by the immigration courts. This delegation of power by Congress infringes on the principle of separation of powers, as set out in the Constitution. It is unwise to let a political authority hold so much power over immigration decisions and intrude on the independence of the immigration system. Decisions like Matter of A-B- illustrate how the referral power can be easily abused and manipulated, and why limits need to be placed on the Attorney General’s referral power.