AG Discusses Broad Authority to Certify and Review BIA Decisions (Matter of A-B-)

 

Introduction: Matter of A-B-, 27 I&N Dec. 316 (A.G. 2018)

On June 11, 2018, former Attorney General Jeff Sessions published an important immigration precedent decision in Matter of A-B-, 27 I&N Dec. 316 (A.G. 2018) [PDF version]. The decision articulates new rules on what constitutes a “particular social group” for purposes of asylum and withholding of removal and on the requisite nexus between a proposed social group and the asserted harm — most notably in the context of cases involving private violence. We discuss Matter of A-B- with regard to its particular social group analysis in a separate article [see article].

In this post, we will examine a short section of Matter of A-B- wherein the former Attorney General addressed his authority to review the matter because the Board had not reacquired jurisdiction over the proceedings after having remanded the case to the immigration judge. The Attorney General rejected this and related arguments, concluding that his broad authority to certify and review immigration cases extended to the instant matter.

Relevant Factual and Procedural History: 27 I&N Dec. 316, 320-23

The respondent, a native and citizen of El Salvador, was placed in removal proceedings after being apprehended by Border Patrol agents in July 2014.

The respondent sought relief from removal in the form of asylum. In December 2015, the immigration judge denied the respondent's application for asylum and ordered her removed to El Salvador. The respondent appealed from the denial to the Board of Immigration Appeals (BIA).

In December 2016, the Board reversed the decision of the immigration judge and remanded the case for the granting of asylum after the completion of background checks.

On remand in August 2017, “the immigration judge issued an order purporting to certify and administratively return the matter to the Board in light of intervening developments in the law.”

On March 7, 2018, Attorney General Sessions directed the Board to refer the case to him for review of its decision under 8 C.F.R. 1003.1(h)(l)(i) in the Matter of A-B-, 27 I&N Dec. 227 (A.G. 2018) [PDF version] [see article].

Matter of A-B-, 27 I&N Dec. 247 (BIA 2018): Attorney General's Prior Discussion of IJ's Improper Certification

On March 30, 2018, the Attorney General issued a second decision regarding his review in Matter of A-B-, 27 I&N Dec. 247 [PDF version] [see article]. The Attorney General denied requests from the Department of Homeland Security (DHS) and the respondent to suspend the briefing schedules and clarify the question presented.

The DHS had requested that the Attorney General suspend the briefing schedules until the Board could act on the immigration judge's certification request. The DHS argued that the case “does not appear to be in the best posture for the Attorney General's review” because the Board had not yet issued a final decision.

The Attorney General responded by holding that “[t]he certification from the Immigration Judge pending before the Board does not require the suspension of briefing because the case is not properly before the Board” — a position that he would take again in his final resolution of the matter. The Attorney General held that “[t]he Immigration Judge did not act within his authority, as delineated by the controlling regulations, when he purported to certify the matter [to the Board].” He explained that under 8 C.F.R. 2003.7 (2017), an immigration judge may only certify a case after an initial decision has been made but before an appeal has been taken.

In the instant matter, “the Immigration Judge did not issue any 'decision' on remand that he could certify to the Board.” Instead, the immigration judge had the case on remand after the Board had sustained the respondent's appeal of the immigration judge's initial decision. The purpose of the remand was to allow “[DHS] the opportunity to complete or update identity, law enforcement, or security investigations or examinations, and further proceedings, if necessary, and for the entry of an order as provided by 8 C.F.R. 1003.47(h).” The Attorney General explained that “[u]nder 8 C.F.R. 1003.47(h) (2017), the Immigration Judge on remand was directed to 'enter an order granting or denying the immigration relief sought' after considering the 'results of identity, law enforcement, or security investigations.'” In the event that new information was presented, the regulation provided discretion for the immigration judge to “hold a further hearing if necessary to consider any legal or factual issues…”

In the instant case, the DHS informed the immigration judge that the respondent's background checks were clear. The Attorney General explained that, at that point, “the Immigration Judge was obliged to issue a decision granting or denying the relief sought.” If the immigration judge believed that an intervening change in the law necessitated a different outcome, “he may have had the authority to hold a hearing, consider those legal issues, and make a decision on those issues.” The Attorney General held that the action ultimately taken by the immigration judge — certification to the Board — did not fall within the scope of his authority under remand. It was for these reasons that the Attorney General concluded that “the Immigration Judge's attempt to certify the case back to the Board was procedurally defective and therefore does not affect my consideration of the December 16, 2016, Board decision.”

AG Has Authority to Certify and Review Cases When Board Does Not Retain Jurisdiction: 27 I&N Dec. 316, 323-24

Returning to the instant case, the Attorney General addressed the first jurisdictional argument against his authority to review Matter of A-B-. He explained that the respondent, along with certain amici, took the position that “the Attorney General's authority to certify and review immigration cases is restricted to cases over which the Board expressly retains jurisdiction, excluding any cases that have been remanded for further proceedings.” For the forthcoming reasons, the Attorney General would conclude that “[t]his restrictive interpretation of my jurisdiction finds no support in the law.”

The United States Court of Appeals for the Fourth Circuit, in discussing section 103(a)(1) of the Immigration and Nationality Act (INA), held in Blanco de Belbruno v. Ashcroft, 362 F.3d 272, 279 (4th Cir. 2004) [PDF version] ,that “[t]he Attorney General enjoys broad powers with respect to 'the administration and enforcement of [the INA itself] and all other laws relating to the immigration and naturalization of aliens.'” The United States Court of Appeals for the Second Circuit opined in Henderson v. I.N.S., 157 F.3d 106, 126 (2d Cir. 1998) [PDF version], that “the extraordinary and pervasive role that the Attorney General plays in immigration matters is virtually unique.”

Section 103(g)(2) of the INA provides that the Attorney General has the authority to “review … administrative determinations in immigration proceedings, delegate such authority, and perform such other acts as the Attorney General determines to be necessary for carrying out” his duties under the INA. Implementing regulations found in 8 C.F.R. 1003.1(h)(1) include among these authorities the authority of the Attorney General to refer cases for his or her review. The authority set forth in 8 C.F.R. 1003.1(h)(1) was described by the United States Court of Appeals for the First Circuit in Xian Tong Dong v. Holder, 696 F.3d 121, 124 (1st Cir. 2012) [PDF version], as an “unfettered grant of authority.”

For the foregoing reasons, the Attorney General held that “[n]othing in the INA or the implementing regulations precludes the Attorney General from referring a case for review simply because the Board has remanded the case for further proceedings before an immigration judge.”

AG Has Authority to Certify and Review Where There is No Final Decision by Board Granting or Denying Relief: 27 I&N Dec. 316, 324

The Attorney General held that “[i]t is likewise irrelevant that there has not been a final decision from the Board either granting or denying relief,” as was the case in the instant matter. The Attorney General explained that 8 C.F.R. 1003.1(h)(1) states that “[t]he Board shall refer to the Attorney General for review of its decision all cases that … the Attorney General directs the Board to refer to him.” The Attorney General noted the broad language of the statute that refers to “decision” generally rather than specifying a narrower subset of decisions, such as “final” decisions of the Board either granting or denying relief. He added that section 101 of the INA also does not define “decision” as a “final” decision.

No Due Process Concern in Certification Before Board Renders a Decision: 27 I&N Dec. 316, 324

The respondent and certain amici argued that the Attorney General's certifying Matter of A-B- for review before the Board could consider the certified question in the first instance raised due process concerns.

The Attorney General cited to his prior precedent decision in Matter of Castro-Tum, 27 I&N Dec. 271, 282 (A.G. 2018) [PDF version] [see article], wherein he held that the Board exercises “only the authority provided by statute or delegated by the Attorney General.” Regarding the instant case, the Attorney General again noted that 8 C.F.R. 1003.1(h) provides the Attorney General with the general authority to certify any cases that is before the Board or where the Board has already rendered a decision.

The Attorney General noted that, even notwithstanding his authority to certify Matter of A-B-, “the respondent ha[d] already received full and fair opportunities to present her asylum claim before the immigration judge and the Board.”

No Basis in Claim that AG's Alleged Impartiality Raised Due Process Concerns: 27 I&N Dec. 316, 324-25 & n.3

The respondent argued that the Attorney General's certification of her case for his review violated her due process rights on two grounds. First, she argued that there were “irregularities” in the certification. Second, she argued that the certification reflected the Attorney General's “prejudgment of her claim and lack of impartiality, in contravention of her right to a full and fair hearing by a neutral adjudicator.” The Attorney General rejected these arguments in turn.

The Attorney General addressed the “irregularity” argument in a footnote. The respondent alleged that because her case was not under active consideration by either the immigration judge or the BIA at the time of the initial referral order, “it is not clear how the Attorney General became aware of [her] case.” The Attorney General explained that under section 101(g)(2) of the INA, he had the express authority to review any and all “administrative determinations in immigration proceedings.” For that reason, he held that “[t]he suggestion that there is something 'irregular' about my exercise of that authority is meritless.”

The respondent and certain amici claimed that the Attorney General's reviewing of Matter of A-B- implicated due process concerns because he had advanced policy views on immigration matters as a United States Senator and then as the Attorney General. The Attorney General held that the statements identified in the briefs had “no bearing upon my ability to faithfully discharge my legal responsibilities in this case.” He added that he had made no public statements about the facts of the respondent's case and that he had no personal interest in the outcome of her proceedings. In any event, the Attorney General noted that there is no “requirement that an administrator with significant policymaking responsibilities withdraw from 'interchange and discussion about important issues.'” (Citing to Ass'n of Nat'l Advertisers, Inc. v. FTC, 627 F.2d 1151, 1168 (D.C. Cir. 1979) [PDF version]. He added that the Supreme Court of the United States held in Hortonville Joint Sch. Dist. No. 1 v. Hortonville Educ. Ass'n, 426 U.S. 482, 493 (1976) [PDF version], that a decision maker need not be disqualified solely for having taken a position on a policy issue related to the dispute in question. The Attorney General concluded this section by stating that “[i]f policy statements about immigration-related issues were a basis for disqualification, then no Attorney General could fulfill his or her statutory obligations to review the decisions of the Board.”

Conclusion

The section on Matter of A-B- dealing with the Attorney General's review authority is significant and easy to overlook given the importance of the decision to asylum and withholding claims involving particular social groups and/or private violence. Attorney General Sessions took the clear position that the Attorney General has the authority to review cases that are not currently pending before the Board, and cases in which the Board did not render a final ruling granting or denying relief. To reach this result, the Attorney General gave broad effect to the statutes and regulations codifying the Attorney General's authority to review immigration decisions. Finally, the Attorney General conclusively rejected arguments that his prior statements on public policy issues relating to immigration rendered him unable to adjudicate the matter impartially.

It is worth noting, however, that the Attorney General will not review cases where the central issue has been mooted. Shortly after the publication of Matter of A-B-, Attorney General Sessions referred to himself Matter of M-G-G-, 27 I&N Dec. 469 (A.G. 2018) [PDF version]. Less than one month later, he published Matter of M-G-G-, 27 I&N Dec. 475 (A.G. 2018) [PDF version], explaining that the issue had become moot because the respondent had been removed, and he remanded the case to the Board for any further proceedings that may be necessary. We discuss Matter of M-G-G- in a separate article [see article].

There have been a large number of Attorney General referrals under the Trump Administration, and several of the resulting decisions — including Matter of A-B- — have made sweeping changes to significant parts of the immigration laws. With more Attorney General decisions likely in store, any litigation concerning the scope of the Attorney General's review authority will be worth watching closely.