Update

Update (June 17, 2021): Former Attorney General Barr’s decision in Matter of L-E-A- was vacated in its entirety by Attorney General Merrick Garland on June 16, 2021. However, in a footnote to the vacature, Attorney General Garland noted that he agreed with former Attorney General Barr’s analysis on the specific issue regarding the Attorney General’s review authority, discussed in this article. Because former Attorney General Garland expressly cited to Attorney General Barr’s analysis on this point, we presume that this portion of Matter of L-E-A- remains good law. Please see our full article [see article] on Attorney General Garland’s decision to learn more.

Introduction: Matter of L-E-A-, 27 I&N Dec. 581 (A.G. 2019)

On July 29, 2019, Attorney General William P. Barr issued a published decision in Matter of L-E-A-, 27 I&N Dec. 581 (A.G. 2019) [PDF version]. In the decision, the Attorney General concluded that, in most cases, nuclear families do not constitute particular social groups because they are not inherently socially distinct. The Attorney General overruled the Board of Immigration Appeals’ (BIA’s) decision in Matter of L-E-A-, 27 I&N Dec. 40 (BIA 2017) [PDF version], only to the extent it found that the respondent’s father’s immediate family constituted a particular social group.

We discuss the Attorney General’s analysis of particular social groups in a separate article [see article]. We also have an article on the Board’s 2017 decision in Matter of L-E-A- [see article]. In this article, we will examine the Attorney General’s disposition of arguments relating to his authority to review Matter of L-E-A- and resolve the case in the first place. The analysis largely tracks that provided by former Attorney General Jeff Sessions on similar challenges to his authority to review and decide a case referred for his review in Matter of A-B-, 27 I&N Dec. 316 (A.G. 2018) [PDF version], which we discuss in a separate article [see article].

Path Traveled by Matter of L-E-A- to the Attorney General

Before examining Attorney General Barr’s responses to challenges to his jurisdiction to decide Matter of L-E-A-, we must first examine how he came to review the matter in the first place. The Board published its decision in Matter of L-E-A- in 2017 as Matter of L-E-A-, 27 I&N Dec. 40 (BIA 2017). The Board ultimately denied the respondent’s application for asylum, but it referred the matter to the immigration judge for consideration of the respondent’s application for protection under the Convention Against Torture. 27 I&N Dec. at 47 (BIA 2017). On December 3, 2018, then-Acting Attorney General Matthew Whitaker directed the Board to refer Matter of L-E-A- to him for review, invoking his authority under 8 C.F.R. 1003.1(h)(1)(i). At that time, the case remained pending before the immigration judge. That decision was published as Matter of L-E-A-, 27 I&N Dec. 494 (A.G. 2018) [PDF version]. We discuss the 2018 referral in a separate article [see article].

Arguments Against Attorney General Barr’s Jurisdiction

Although former-Acting Attorney General Whitaker commenced the Attorney General review of Matter of L-E-A-, he did not decide the case. While the review was pending, William Barr was sworn in as the U.S. Attorney General on February 14, 2019 [see blog]. He then undertook his own review of the matter before rendering his decision. Below, we examine Attorney General Barr’s responses to four distinct challenges to his jurisdiction to decide Matter of L-E-A-.

1. Acting Attorney General Whitaker Could Not Certify Case Because BIA Had Remanded to IJ For Further Proceedings (27 I&N Dec. at 585)

The respondent argued that Acting Attorney General Whitaker did not have authority to certify Matter of L-E-A- for review because the Board had remanded the case to the immigration judge for further proceedings. Attorney General Barr cited to the decision of Attorney General Jeff Sessions in Matter of A-B-, wherein 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.” Matter of A-B-, 27 I&N Dec. 316, 323-24 (A.G. 2018). Attorney General Barr agreed with the conclusion of Attorney General Sessions and rejected this first argument for the reasons stated in Matter of A-B-. We examine the reasoning of Matter A-B- in a section of our article on the decision [see section].

2. The Acting Attorney General Had No Authority to Refer the Case Because He Was Not Properly Appointed to His Position (27 I&N Dec. at 585)

The respondent argued that Acting Attorney General Whitaker had no authority to refer the case to himself for review because he was not properly appointed to his position. This argument refers to the view that, upon the resignation of former Attorney General Jeff Sessions, President Donald Trump did not have the constitutional authority to appoint Matthew Whitaker — who had not been confirmed by the Senate to his prior position at the Department of Justice (DOJ) — as Acting Attorney General.

Attorney General Barr rejected this argument for several reasons. First, he took the position that President Trump’s designation of Whitaker as Acting Attorney General was expressly authorized by the Federal Vacancies Reform Act of 1998, codified at 5 U.S.C. 3345-3349d. Furthermore, Attorney General Barr took the position that it was consistent with the Appointments Clause of the U.S. Constitution, U.S. Const. art. II, sec. 2, cl. 2. The DOJ’s Office of Legal Counsel (OLC) articulated this position in an opinion: Designating an Acting Attorney General, 42 Op. O.L.C. __ (Nov. 14, 2018) [PDF version].

In addition to the above reasons for rejecting the respondent’s argument, the Attorney General held that the question was moot in any case. He noted that “the respondent has not argued, and cannot argue, that my appointment as Attorney General is subject to such a challenge.”

Attorney General Barr explained that, as Attorney General, he had the authority to ratify the initial certification of Matter of L-E-A- for review, which he then stated that he was doing. He added that he decided the case on his own independent review of the record before him. He noted that the United States Court of Appeals for the District of Columbia Circuit held that “ratification can remedy a defect arising from the decision of ‘an improperly appointed official … when … a properly appointed official has the power to conduct an independent evaluation of the merits and does so.” Wilkes-Barre Hosp. v. NLRB, 857 F.3d 364, 371 (D.C. Cir. 2017) [PDF version], quoting Intercollegiate Board. Sys., Inc. v. Copyright Royalty Bd., 796 F.3d 111, 117 (D.C. Cir. 2015) [PDF version]. Thus, Attorney General Barr held that “the validity of the Acting Attorney General’s appointment is not relevant to my disposition of this case.”

3. Prior Statements of Attorney General Regarding Asylum and Immigration Issues Prevented Him From Acting as an Unbiased Adjudicator (27 I&N Dec. at 585)

The respondent argued that Attorney General Barr’s prior statements on asylum and immigration issues prevented him from acting as an unbiased adjudicator. Attorney General Barr was unpersuaded. The Attorney General quoted from Attorney General Jeff Sessions’ response to a similar challenge to his authority in Matter of A-B-: “I ‘have made no public statements regarding the facts of respondent’s case, and I have no personal interest in the outcome of the proceedings.” (Internal quotes and citations omitted.) Matter of A-B-, 27 I&N Dec. at 325 (A.G. 2018). For this reason, Attorney General Barr rejected the argument that he was a biased adjudicator. We discuss Attorney General Sessions’ response to similar arguments in a section of our article on Matter of A-B- [see section].

4. Attorney General Had No Jurisdiction Because the Immigration Judge Never Properly Acquired Jurisdiction (27 I&N Dec. at 585-86)

The respondent argued that the Attorney General did not have jurisdiction to decide the case because the Board had never properly acquired jurisdiction. This argument was based on the Notice to Appear (NTA) issued to the respondent.

The respondent argued that jurisdiction never vested in the immigration judge because the NTA issued to the respondent by the Department of Homeland Security (DHS) did not include the time and place of the first hearing in the matter — as required by the Immigration and Nationality Act (INA) and 8 C.F.R. 1003.15.

The Attorney General noted that the Board has held that similarly deficient NTAs are adequate to vest jurisdiction over proceedings in the immigration judge provided that subsequent notices provide the information. Matter of Bermudez-Cota, 27 I&N Dec. 441 (BIA 2018) [PDF version] [see article]. Several circuit courts have approved of the Board’s position. Karingithi v. Whitaker, 913 F.3d 1158, 1161 (9th Cir. 2019) [PDF version].

The Attorney General added that 8 C.F.R. 1003.15 does not — contrary to the respondent’s claim — specify what information must be included in the NTA to vest jurisdiction in the immigration judge. The jurisdictional regulation — found at 8 C.F.R. 1003.14(a) — also does not specify what information must be in the NTA to vest jurisdiction. Matter of Bermudez-Cota, 27 I&N Dec. at 445.

The Attorney General observed that, although the respondent’s NTA did not include the time and place of the respondent’s initial removal hearing, the immigration court subsequently issued to the respondent a notice of hearing with all the required information. Thus, the Attorney General concluded that jurisdiction properly vested in the immigration court, and the jurisdictional challenge did not block his review.

Conclusion

Attorney General Barr’s rejection of the jurisdictional challenges to his authority to review decisions of the BIA largely tracks a similar opinion by former Attorney General Jeff Sessions in Matter of A-B-. The instant matter presented two arguments that did not appear in Matter of A-B-. The first argument related to the appointment of Acting Attorney General Matthew Whitaker and the second argument related to the NTA. For different reasons, Attorney General Barr rejected both arguments. This portion of Matter of L-E-A- serves as an additional precedent asserting a broad position on the Attorney General’s authority to review BIA decisions.