Superlawyer, Co-Editor, immigrationcourtside.com
Memphis, TN
Dr. Triche Blog #2: Stare Decisis, the Board of Immigration Appeals, and the Attorney’s General’s “Certification” Power: Strategies for Preservation of the Rule of Law (When and if the Deluge Ensues)
Featured authority:
8 C.F.R. § 1003.1(h) (ecfr.gov) (accessed Dec. 21, 2024)[i]
Hon. Alberto R. Gonzales & Patrick Glen, Advancing Executive Branch Immigration Policy Through the Attorney General’s Review Authority, 101 Iowa L. Rev. 841 (2016)[ii]
Overruling precedent is never a small matter. Stare decisis—in English, the idea that today’s Court should stand by yesterday’s decisions—is “a foundation stone of the rule of law.” Justice Elena Kagan, Kimble v. Marvel Entertainment, LLC, 576 U.S. 446, 455 (2015).[iii]
Under current immigration law, the Attorney General has independent and direct power to set national precedent. 8 C.F.R. § 1003.1(h)(1)(i) says the “Board shall refer to the Attorney General …all cases… [t]he Attorney General directs the Board to refer to him.” This is commonly referred to as “certification” power. It means that precedential decisions carry an equally binding effect, whether or not they are issued by the Board of Immigration Appeals itself, or by the Attorney General,[iv] personally.
What this has done, in recent years, is to set up many of the more contentious issues dealt with by the Board for a continuous game of admin-law ping pong. For example, in the domestic violence-based asylum context, three different Attorneys General issued three different “Matter of A-B-s” between 2018 and 2021. Each of those substantively altered—or, in the last case, restored—the Board’s own decision from 2014.[v] The substantive criteria for family-based asylum claims—meaning when and if family membership constitutes a “particular social group”—underwent similar oscillation during the same short period.[vi] The ball has also gone back and forth on the Immigration Judge’s authority to terminate[vii] and to administratively close.[viii] Finally, AG Garland vacated former AG Barr’s troubling requirement that the BIA revisit every required element of a persecution-based claim, whether or not the issue had been raised on appeal.[ix]
At the time they occurred, those above which were AG Garland decisions were viewed favorably by removal defense advocates, myself included. Ping-pongy as they might seem at first glance, Garland’s certification decisions were actually much-needed course-corrections. They were issued in response to what had been, at the time, an unprecedented and far-reaching activism. The certification power had been used, for the first time, to pro-actively, substantively, restrict the rights of noncitizens. And there is every reason to believe that, whoever the new Attorney General may be, the use of the certification power is about to be used that way again, and its frequency will increase exponentially.
This is problematic on a conceptual level, because the nature of the certification power is rooted in DHS’s power over the “administration and enforcement” of the Immigration and Nationality Act. 8 U.S.C. § 1103(a)(1) (2024). It is within this context that the INA provides a “ruling by the Attorney General with respect to all questions of law shall be controlling.” 8 U.S.C. § 1103(a)(1).[x] In other words, the Department of Justice, as a whole, is supposed to be enforcing immigration laws set by Congress. It is solely within the purview of Congress to decide the substantive criteria for who is to be let into (or deported out of) the country—including, for example, the legal criteria for asylum and refugee status. The “executive” branch, which includes, of course, the Department of Justice, is meant to be just that–the executor of Congressional intent.
In 2016, however, former Attorney General Alberto Gonzalez advocated that the certification power should be used to advance “policy” preferences of a presidential administration. Citing Obama’s creation of the DACA program, Gonzalez stated that certification, like DACA, was also within “the executive branch’s scope of action in advancing its conception of immigration policy in the face of a recalcitrant Congress.”[xi] He went on to state, “the referral authority is unquestionably an appropriate and efficacious mechanism for advancing a wide variety of legal interpretations and policy initiatives.”[xii]
To the extent that certification is divorced from the enforcement authorized at INA § 101(a)(3), it is ultra vires—and should be challenged as such. But, setting that aside, using certification power as an instrument of policy raises even larger concerns, for it constitutes an existential threat to the legitimacy of the BIA as a legal body. The BIA is an institution that issues legal precedent, and purports to derive legitimacy through the basic legal principles of due process and stare decisis. Stare decisis is not just an aspirational principle; it is a judicial necessity, “because it promotes the evenhanded, predictable, and consistent development of legal principles, fosters reliance on judicial decisions, and contributes to the actual and perceived integrity of the judicial process.” Payne v. Tennessee, 505 U.S. 808, 827 (1991) (citations omitted). If the BIA endlessly flip-flops, it becomes increasingly difficult to discern the content of the law, substantively; and even when that can be done, it detracts from the institution’s authority. It shreds the “rule of law,” because decisions of the BIA are not based in agreed-upon words passed by Congress or regulation, but by people (i.e., the Attorneys General). It shreds due process, because neither the IJs making the decisions, or the non-citizens fighting against removal, have any settled expectation of the standards which are to apply in each case.
Nonetheless, it seems almost inevitable that, if the BIA remains intact, certification is coming—and coming fast. And, this begs the question, can anything be done, at the individual level, to defend basic concepts of due process and the rule of law? I do have several suggestions. The first one is to hold fast to the concept that there is a “rule of law,” even at the BIA, and that it is discernible. The basic requirements for legal briefing have not changed, and foremost among those is the duty to find—and accurately represent—the complete landscape of binding legal authority that is relevant to a given issue. Certification zig-zags are not the only reason that the sheer amount of words that comprise US immigration law are increasing to a degree we have never before seen in legal history.
In short, without a good head-start, it is growing beyond the capacity of any one lawyer to discern the complete legal landscape on a given subject. In such an environment, practice advisories, legal treatises, CLE panels and webinars are now essential resources. It is now the duty of every appellate writer to keep apprised of these resources. Some of my own go-tos are the Center for Gender and Refugee Studies, the American Immigration Council, the Anker/Chase treatise (The Law of Asylum in the United States), and the National Immigration Project; I also (at this time) keep up with LinkedIn, stay on Dan Kowalski’s e-mail list, listen (when I can) to Kevin A. Gregg’s “Immigration Review” podcast. To keep on top of which resources are out there; and, more importantly, what is happening overall, I participate in AILA and FBA committees, where I am apprised of who is doing the latest research and/or litigation on important ongoing issues as they arise.
My second suggestion is less of a strategy, and more of an observation. The AG’s future certifications are now subject to Loper-Bright Enterprises v. Raimondo, 144 S.Ct. 2244, 2273 (2024), which of course held: “Chevron is overruled. Courts must exercise their independent judgment in deciding whether an agency has acted within its statutory authority, as the APA requires.” Part of the reasoning behind Loper-Bright is specifically to discourage agency flip-flopping. Id. at 2288 (Thomas, J., concurring). My hope is that, especially in light of Loper-Bright, when a Court of Appeals has spoken directly on an issue, the BIA is unlikely to get away with invoking Brand X in the end. (I’m thinking, for example, of the recent Sixth Circuit decisions mandating a version of the but-for nexus test, directly rejecting Matter of M-R-M-S-).[xiii]
My final thought is simple; perhaps deceptively so. Just don’t stop appealing. Keep using the system, keep insisting that the BIA be “legal,” not political; keep discerning and asserting the state of the law and the contents of jurisprudence; keep insisting upon due process and the basic rule of law. As Judge Schmidt said in his keynote to FBA-National in 2019—“take your appeals to the BIA and the Circuit Courts of Appeals”.[xiv]
[i] https://www.ecfr.gov/current/title-8/chapter-V/subchapter-A/part-1003/subpart-A/section-1003.1 (accessed Dec. 23, 2024).
[ii] Available at https://ilr.law.uiowa.edu/print/volume-101-issue-3/advancing-executive-branch-immigration-policy-through-the-attorney-generals-review-authority (accessed Dec. 21, 2024).
[iii] Citations omitted.
[iv] Such decisions appear side in the “Immigration and Nationality” reporter, but they are labeled as “A.G.”, rather than BIA, in the parentheticals.
[v] Matter of A-B-, 27 I&N Dec. 316 (A.G. 2018) [A-B- I], Matter of A-B-, 28 I&N Dec. 199 (A.G. 2021) [A-B- II], Matter of A-B-, 28 I&N Dec. 307 (A.G. 2021) [A-B- III], Matter of A-R-C-G-, 26 I&N Dec. 388 (BIA 2014).
[vi] Matter of L‑E-A-, 27 I&N Dec. 40 (BIA 2017) [L-E-A- I], Matter of L-E-A-, 27 I&N Dec. 581 (A.G. 2019) [L-E-A- II], Matter of L-E-A-, 28 I&N Dec. 304, 05 (2021) [L‑E-A- III].
[vii] Matter of Coronado-Acevedo, 28 I&N Dec. 648 (A.G. 2021), overruling Matter of S-O-G- & F-D-B-, 27 I&N Dec. 462 (A.G. 2018).
[viii] Matter of Cruz-Valdez, 28 I&N Dec. 326 (A.G. 2021), overruling Matter of Castro-Tum, 27 I&N Dec. 271 (A.G. 2018).
[ix] Matter of A-C-A-A-, 28 I&N Dec. 351 (A.G. 2021) [A-C-A-A-II-], vacating 28 I&N Dec. 84 (A.G. 2020) [A-C-A-A-I].
[x] In full, paragraph (1)(a) provides: “The Secretary of Homeland Security shall be charged with the administration and enforcement of this chapter and all other laws relating to the immigration and naturalization of aliens, except insofar as this chapter or such laws relate to the powers, functions, and duties conferred upon the President, Attorney General, the Secretary of State, the officers of the Department of State, or diplomatic or consular officers: Provided, however, That determination and ruling by the Attorney General with respect to all questions of law shall be controlling.”
[xi] Hon. Alberto R. Gonzales & Patrick Glen, Advancing Executive Branch Immigration Policy Through the Attorney General’s Review Authority, 101 Iowa L. Rev. 841, 846 (2016).
[xii] Id. at 897.
[xiii] Mazariegos-Rodas v. Garland, 117 F.4th 860 (6th Cir. 2024) (rejecting the dicta in Matter of M-R-M-S-, 28 I&N Dec. 757 (BIA 2023), and essentially adopting the “but-for” nexus standard, 17 F.4th at 876–78).
[xiv] https://immigrationcourtside.com/appellate-litigation-in-todays-broken-and-biased-immigration-court-system-four-steps-to-a-winning-counterattack-by-the-relentless-new-due-process-army/ (accessed Dec. 21, 2024).