The United States Law Week

ABA to Weigh Proposal on AG Powers Over Immigration Appeals

Aug. 5, 2019, 8:51 AM

The Justice Department should set clear standards for when the attorney general intervenes in the immigration appeals process, says an American Bar Association resolution urging the agency to address a practice that’s become more common in the Trump administration.

The proposal over the attorney general’s certification powers is one of six immigration-related resolutions being advanced to the ABA’s policy-making body for a vote at the annual meeting beginning this week in San Francisco.

The resolutions “speak to the lack of fairness, transparency, and due process in the current immigration system,” said Wendy Wayne, chair of the ABA’s immigration commission, which submitted the resolutions.

ABA has long advocated for due process and fairness in immigration law, and the resolutions are intended to lay the groundwork for it to tackle access to justice and rule of law issues.

“They’re grounded in frustration over immigration laws and policies that no longer reflect the reality of today’s migration issues and thus lack the flexibility, creativity, and due process protections necessary to ensure fair, efficient, and humane treatment under our immigration laws,” Wayne said.

Votes on immigration proposals coincide with boiling legal and political controversies over U.S. border policies, forced separations of families, use of immigrant detention camps, expanded criteria for expedited deportation, and tightened asylum rules.

Changing Times

Resolutions are policy statements voted on by the ABA’s House of Delegates. A majority of delegates are private practice attorneys and resolutions, for example, have covered ethics and legal services, civil rights, access to justice, criminal justice, and federal law and policy.

The large number of immigration resolutions being offered by the commission can be traced to a March update of its 2010 report on reforming the immigration system. The resolutions are meant to bring ABA policy in line with the report recommendations and allow the group to advocate for them, Wayne said.

Under ABA rules, its officials can’t advocate on issues that delegates haven’t acted on, immigration commission member Michael J. Churgin said.

The commission wanted to release the report sooner than it did but delayed it to include “significant and widespread systemic changes” to immigration beginning in 2017, the report said.

Times have changed since the first report’s release, former commission Chair Karen Grisez said.

When the 2010 report was released, there was also a “large package” of resolutions that accompanied it, she said. But in 2010, the “background environment” was more static, she said.

The current immigration system “isn’t staying the current system,” Grisez said. There are new changes every day and they’re changing “for the worse,” she said.

AG Power

Resolution 121A is one such example of change. It urges the Justice Department to create standards and procedures for the attorney general’s power to self-certify Board of Immigration Appeals decisions.

The BIA is the highest administrative body for interpreting and applying immigration laws, and its decisions are binding unless “modified or overruled” by the attorney general or a federal court. Most of the cases revolve around deportation.

Attorneys general can refer BIA decisions to themselves but traditionally that office hasn’t had an active role in immigration matters, said Churgin, whose teaching specialties at the University of Texas at Austin School of Law include immigration.

The certification process was used only twice per year during the Bush administration, and only four times during the eights years of the Obama presidency, a footnote to the resolution said.

Under Trump, then-Attorney General Jeff Sessions certified eight cases to himself between Jan. 1, 2018, and Oct. 18, 2018. His successor, Matthew Whitaker, certified two cases for review in December 2018 and in April 2019. And current Attorney General William Barr decided a case “that overturned long-standing BIA precedent making asylum-seekers who pass a credible fear interview ineligible for a custody re-determination hearing before an Immigration Judge.”

The Trump administration is using this power to change law, Churgin said.

The nation’s top law enforcement official can serve as both prosecutor and adjudicator in certified cases because the BIA’s authority to decide deportation is delegated from the attorney general, the resolution says.

Because of this conflict, the attorney general’s “exercise of the certification authority without more transparency and due process safeguards can undermine the legitimacy and acceptability of the immigration adjudication process,” it says.

Legal Aid

Another resolution calls on federal courts of appeals to establish programs to provide pro bono representation to pro se appellants similar to what the Second and Ninth circuits have established to ensure “due process, fairness, and efficiency in immigration proceedings.”

It cites a recent study that found that representation rates for noncitizens in detention have been around 30 percent in recent years.

The resolution shines light on an issue that only a few appeals courts are addressing, Churgin said.

Deportation proceedings are civil, not criminal, in nature, so noncitizens aren’t entitled to representation, but the assumption that a non-citizen could navigate this “really complex areas of law” is absurd, Churgin said.

But the resolution isn’t the answer, Grisez said.

“I’m happy to hear people say we need to promote more pro bono,” she said.

But the resolution offers the government “a cop-out,” Grisez said. It’s being offered as a stop-gap measure, she said. Pro bono isn’t the solution to the problem, and there should be appointed counsel for those who can’t afford a lawyer, Grisez said.

Among the other immigration commission resolutions, the delegates will be asked to:

  • Urge the Justice Department to expressly provide a good cause exception to the strict 30-day deadline for filing an appeal to the Board of Immigration Appeals for pro se appellants, or those representing themselves;
  • Urge Congress and the Justice Department to amend laws to ensure that noncitizens who have the right to seek judicial review of deportation orders in circuit courts can exercise that right without relinquishing protections granted during their administrative immigration proceedings.

A summary of all the ABA resolutions can be found here.

To contact the reporter on this story: Melissa Heelan Stanzione in Washington at mstanzione@bloomberglaw.com

To contact the editors responsible for this story: Jessie Kokrda Kamens at jkamens@bloomberglaw.com; Rebekah Mintzer at rmintzer@bloomberglaw.com

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