Matthew Whitaker Is Shaping Immigration Law Per Trump’s Agenda

On December 3, 2018, Acting Attorney General Matthew Whitaker took the statistically rare step of “self-referral”: He assumed authority over a question of immigration law on which the Board of Immigration Appeals (BIA) had ruled, in its own normal course and purview, in 2017.

The BIA, the appellate panel that reviews decisions of the immigration courts, had, in the case Matter of L-E-A, dealt with the question that Whitaker is now positing for himself, issuing his referral less than a month after his November 7 appointment by President Trump as acting attorney general. In his own words, the inquiry is: “Whether, and under what circumstances, an alien may establish persecution on account of membership in a ‘particular social group’ … based on the alien’s membership in a family unit.”

According to The New York Times, pending before US Citizenship and Immigration Services is an asylum application for Victorina Morales and her family. Morales is an undocumented housekeeper who worked illegally at the Trump National Golf Club in Bedminster, New Jersey, for more than five years. Her application is based on her membership in a family unit — coincidentally or not, strikingly similar to the question Whitaker has now certified to himself. The White House declined to comment on The New York Times’s article about Morales, printed December 7, 2018.

It was expected that a decision would be rendered after January 18, 2019: the deadline that Whitaker had set for briefs. Whitaker postponed the deadline amid the ongoing government shutdown, and plans to revise the briefing schedule at an undetermined time, once the government reopens.

Reportedly, the basis of Morales’s asylum application is that several years ago, a group of men invaded her father-in-law’s home in Guatemala and hacked at him with a machete to extort money they assumed he possessed because he had family members in the United States. They then dragged him off to a field and shot him dead. The brutal assault happened in front of Morales’s son, Marvin Gonzalez, when he was only a child.

There has been speculation about what retribution might befall Morales for coming forward about her undocumented status and illegal work: The New York Times asked in its headline, “What Price Will She Pay?”

The attorney general’s self-referral authority is an exception to the reality that for most noncitizens undergoing deportation proceedings before an immigration court, there is no higher level of administrative appeal than the BIA. Once an immigration judge renders a decision granting or denying immigration relief, either party — the “respondent” noncitizen or the Department of Homeland Security (DHS) — may appeal the decision to the BIA. Federal courts of appeal can review decisions of the BIA.

However, the attorney general has the right under federal regulations to intervene in the appeals process by self-certifying a BIA decision, or accepting referral of a BIA decision by DHS or the BIA itself. Once a case has been referred to the attorney general, the BIA decision is no longer final and cannot be reviewed by a federal court or relied on as precedent. The decision issued by the attorney general becomes the final agency decision, a binding precedent for future cases to be decided by immigration judges and the BIA.

It seems convenient that Whitaker happened, quite swiftly, to certify to himself a question involving the viability of family-unit-based asylum claims such as Morales’s. How exactly did this category of cases come to the attention of the new acting attorney general? Did Morales’s status as a now publicly undocumented figure defying the administration have anything to do with Whitaker’s decision to refer the family-unit question to himself?

A Politicized Process

In 2010, the New York University Law Review published an article by Laura Trice chronicling instances in which advocates have speculated that attorneys general received inappropriate guidance from actors such as the Office of Immigration Litigation (OIL), choosing cases for self-referral that were aligned with OIL’s prosecutorial agenda or the attorney general’s political objectives. Trice cautioned in her article that, “the lack of procedural requirements for Attorney General certification results in haphazard, secretive, and sometimes politicized review, with [the] process determined by the Attorney General in an ad hoc, case-by-case manner.” Such a politicized process only threatens to further delegitimize Whitaker’s current tenure, which has already been marred by claims of an unconstitutional appointment.

Placing the respective roles of the attorney general and the BIA in historical context, former Attorney General Alberto Gonzales and Patrick Glen, professor of law at Belmont University College of Law, noted in 2016 that the BIA “has acted as the Attorney General’s delegate, without any independent statutory existence since the Board’s creation in 1940.” The pair cited a 1958 Fordham Law Review article by Harry N. Rosenfield, who pointed out a fact that is striking for the ease with which it can be forgotten: The BIA was “not even mentioned in the 119 page [Immigration and Nationality] Act of 1952.” Only the attorney general and the secretary of the Department of Homeland Security remain statutorily charged with the administration and enforcement of immigration laws. The BIA’s authority to act is provided by regulations of the attorney general and is therefore derivative of the attorney general’s office.

As Trice points out, “Under the current regulations, the government has absolute control of what cases are brought before the Attorney General for review. The BIA, DHS, or the Attorney General can pick and choose among the 30,000-plus cases decided by the BIA each year to find the case that presents the issues in the light most favorable to its own position.”

Nonetheless, as Gonzales and Glen state, the BIA has the authority to exercise independent judgment, and the attorney general is precluded from influencing or dictating its decisions. As the Supreme Court held in United States ex rel. Accardi v. Shaughnessy:

In unequivocal terms the regulations delegate to the Board discretionary authority as broad as the statute confers on the Attorney General; the scope of the Attorney General’s discretion became the yardstick of the Board’s…. In short, as long as the regulations remain operative, the Attorney General denies himself the right to sidestep the Board or dictate its decision in any manner.

In order for an attorney general to decide an individual case, the case must be referred to the attorney general for review. Unlike prior versions of the relevant regulations, the current regulations do not contain any substantive criteria or standard that cases must meet in order to be referred for review; the regulations focus exclusively on who may refer the cases.

Only three main actors can initiate this process — the attorney general, the BIA (acting through its chairperson or a majority of its members) and the secretary of DHS (although other possible DHS officials are allowed to do this as well, so long as the attorney general concurs in their designation). The people most directly affected by the ultimate decisions — variously called the “aliens,” the “respondents” or the “undocumented” — do not have the authority under the regulations to refer cases to the attorney general, although Gonzales and Glen note that there is no necessary bar against a respondent’s submission of a request that the attorney general certify a case for review.

Self-Referral’s “Design Flaw”

Since 1940, there has been a gradual drop in cases referred to the attorney general by the BIA and DHS. This decrease coincides generally with less overall utilization of the referral authority, down from its peak through the middle of the 1950s. The early versions of the referral regulation dictated referral when a Board member dissented, when a “question of difficulty” arose or in certain substantive cases, ensuring that the BIA would refer cases to the attorney general. The “question-of-difficulty” basis for referral predominated in cases through the 1950s. As these criteria were replaced by a regulation centered only on the identities of the referring parties, the BIA became less essential as a referral source.

Gonzales and Glen also posit that due to the vast development of immigration law since 1940, with detailed case law and regulations, and especially since the enactment in 1952 of the Immigration and Nationality Act (INA), “It is perhaps less important or less necessary for the Board to seek definitive guidance from the Attorney General…. The development of the law may have entailed a higher proportion of cases where the Board could simply apply extant law or make a reasonable extension of that law.”

Gonzales and Glen point out that the Supreme Court’s admonition in Accardi could be another possible explanation for the mid-1950s decline in referrals from the BIA. With the Court’s statement that the BIA must exercise its independent judgment in cases it decides, the BIA may have been discouraged from referring cases to the attorney general in situations where it was confident in the judgment it rendered. Attorneys general may have been eager to adopt a clear separation between their own roles and that of the BIA, letting BIA decisions stand on their own. Gonzales and Glen also point to “a busier Attorney General, whose broad oversight functions look significantly different and more expansive” since 1940. The attorney general “simply has less time to exercise review authority in immigration cases notwithstanding any desire to do so.” When such review does happen then, the desire must be quite great indeed.

Attorneys general have used the authority “sparingly,” averaging only about 1.7 certified decisions annually between 1999 and 2009. Even in the relatively “active” administration of George W. Bush, the attorneys general only issued 16 decisions, an average of two per year. This is significantly lower than the average of eight per year issued between 1953 and 1956, which in turn was substantially lower than the average of 37 decisions issued in the period between 1940 and 1952.

As the American Immigration Lawyers Association wrote in September 2018 of the self-referral authority:

Under the previous administration, Attorneys General Eric Holder and Loretta Lynch employed this power only four times over the course of eight years. In just the last year, Attorney General Sessions has certified six cases to himself and issued five decisions that are transforming immigration law in ways that run contrary to decades of judicial practice and established law. Overall, the decisions are aimed at minimizing the role of judges in immigration courts by restricting their authority to manage their dockets or make decisions based on the facts of each case. In the words of Judge Tabaddor [president of the National Association of Immigration Judges], ‘When you provide a prosecutor with a super veto power, that’s a design flaw.’

The attorney general’s self-referral power has been among the less publicized immigration-related “design flaws” favoring the current administration, which is perhaps one factor emboldening the further abuse of this power.

Attorney general referral is a potential form of dialogue, an opportunity for collaboration among governmental branches on the development of immigration policy. The current pattern of its use, however, smacks of intergovernmental circumvention, batter-ramming new policies into place within whatever time the extant attorney general may have in office.

Returning to the Rule of Law

The federal courts, however, are taking notice. On December 19, 2018, the US District Court for the District of Columbia, in the case Grace v. Whitaker, issued an injunction halting enforcement of former Attorney General Jeff Sessions’s June 11, 2018, decision in Matter of A-B-, a case that Sessions had referred to himself.

In Matter of A-B-, Sessions had reversed a grant of asylum to a Salvadoran woman who had fled several years of domestic violence at the hands of her then-husband. The decision began by overruling a 2014 BIA decision recognizing “married women in Guatemala who are unable to leave their relationship” as a “particular social group” within the meaning of the asylum provisions of the INA. Sessions wrote in Matter of A-B-, “Generally, claims by aliens pertaining to domestic violence or gang violence perpetrated by non-governmental actors will not qualify for asylum,” and, “Accordingly, few such claims would satisfy the legal standard to determine whether an alien has a credible fear of persecution.”

Applying Sessions’s decision, asylum officers at the US Southern border encountered individuals whose accounts of fear were admittedly sincere, but the officers nonetheless issued negative “credible fear” determinations. The plaintiffs in the case before the District Court for the District of Columbia were 12 of these individuals. They had credibly alleged that they feared rape, pervasive domestic violence, beatings, shootings and death in their countries of origin. They had sought review of the negative credible fear determinations by an immigration judge, but the judge upheld the asylum officers’ findings. The plaintiffs found themselves subject to final orders of removal; some were removed pursuant to such orders before the start of the District Court litigation in Grace v. Whitaker.

The District Court held that,

Not only does Matter of A-B- create a general rule against such claims at the credible fear stage, but the general rule is also not a permissible interpretation of the statute. First, the general rule is arbitrary and capricious because there is no legal basis for an effective categorical ban on domestic violence and gang-related claims. Second, such a general rule runs contrary to the individualized analysis required by the INA.

The District Court issued an injunction permanently prohibiting the government from continuing to apply Sessions’s directive in Matter of A-B-. The District Court’s order also prohibited the removal of the plaintiffs who are currently in the US, without first providing credible fear determinations consistent with pre-existing immigration laws. In addition, remarkably, the Court ordered the government to return to the US the plaintiffs who were unlawfully deported and to provide them with new credible fear determinations.

In response, Executive Director of the American Immigration Lawyers Association Benjamin Johnson stated with the support of retired immigration judges and BIA panel members that, “Though substantial due process barriers persist for these survivors even after today’s ruling, we take heart in knowing that in this case, the rule of law was restored.”

On January 15, 2019, confirmation hearings will begin for William Barr, Trump’s nominee for attorney general. Barr was previously attorney general under George H.W. Bush, during which time Barr made clear his disdain for the rights of asylum seekers. More recently, he has written in support of the Trump administration’s Muslim ban, and has praised Sessions’s tenure as attorney general. Barr wrote with delight: “He attacked the rampant illegality that riddled our immigration system, breaking the record for prosecution of illegal-entry cases.”

If Barr’s nomination is confirmed, it is of course likely that he will follow the path of Sessions and Whitaker. What this means for Morales is that she could be forced to endure a cycle similar to that of Matter of A-B-. The new attorney general, bearing the torch passed by Whitaker, could issue an order trying to incinerate eligibility for asylum based on membership in a family unit. Hope for Morales’s case — and the others affected by such a decision — might come only from the federal courts, with the balance they can provide against the whims of the executive branch.