AG Sessions’ Allegedly Unprecedented Creation of Precedent



The open-borders lobby has made a pastime out of drumming up false hysteria every time the Trump administration takes an action aimed at restoring the rule of law to our immigration system. The latest installment in this fiesta of hyperbole is over-the-top criticism of Attorney General (AG) Jeff Sessions’ choice to issue precedent decisions overturning Board of Immigration Appeals (BIA) opinions in a number of recent immigration cases.

According to immigration advocates, “Jeff Sessions is exerting unprecedented control over immigration courts – by ruling on cases himself.” They deliberately try to portray him as power-hungry xenophobe searching for any opportunity to poke immigrants in the eye.

Except that, in reality, AG Sessions isn’t doing anything improper or even unusual. Generally speaking, federal agency heads retain the authority to review decisions by administrative tribunals that are part of their agency. And the Attorney General’s authority to review cases decided by the BIA is expressly set forth in Section 1003.1(h)(1) of Title 8 in the Code of Federal Regulations, which spells out a review process colloquially known as “certification.”

Nevertheless, New York area immigration lawyer and blogger Jeffrey S. Chase, who should be well aware of 8 C.F.R. § 1003.1(h)(1) still whines, that the AG is rewriting, “the decisions of an ostensibly neutral and independent tribunal.”

But Chase’s characterization of the BIA is wildly inaccurate and describes it as though it were law court in the judicial branch of government. In reality, the BIA is a unit of the executive branch Department of Justice (DOJ). And it is classed as an administrative tribunal.

The role of an administrative tribunal is to determine whether an executive branch action was taken in a manner consistent with the parent agency’s interpretation of the applicable law. Thus, the BIA is neither neutral, nor independent, in the sense that a judicial court must remain “neutral and detached.” And the AG may review and overturn BIA decisions, in order to maintain consistency in the DOJ’s interpretation of the immigration statutes it enforces.

This principle is so ingrained in American administrative law that courts actually defer to an agency’s interpretation of an unclear statutory provision, so long as that interpretation is reasonable and consistent with congressional intent. The concept is formally known as “Chevron deference.”

So, why is the open-borders contingent foaming at the mouth? Because they can’t stand any kind of immigration enforcement, even though average Americans believe strongly that our borders should be secure. That leaves the border-haters only one option: Feed the false narrative that President Trump is being both unlawful and un-American when he applies our immigration laws, as written.

But, as FAIR has pointed out before, nothing that the Trump administration is doing when it comes to immigration is new. All of it is based on established legal authorities. Team Trump has simply flipped the script, using those authorities to promote the well-being of the American public, rather than the interests of immigration violators and their shrill advocates.

About Author

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Matthew J. O’Brien joined the Federation for American Immigration Reform (FAIR) in 2016. Matt is responsible for managing FAIR’s research activities. He also writes content for FAIR’s website and publications. Over the past twenty years he has held a wide variety of positions focusing on immigration issues, both in government and in the private sector. Immediately prior to joining FAIR Matt served as the Chief of the National Security Division (NSD) within the Fraud Detection and National Security Directorate (FDNS) at U.S. Citizenship and Immigration Services (USCIS), where he was responsible for formulating and implementing procedures to protect the legal immigration system from terrorists, foreign intelligence operatives, and other national security threats.He has also held positions as the Chief of the FDNS Policy and Program Development Unit, as the Chief of the FDNS EB-5 Division, as Assistant Chief Counsel with U.S. Immigration & Customs Enforcement, as a Senior Advisor to the Citizenship and Immigration Services Ombudsman, and as a District Adjudications Officer with the legacy Immigration & Naturalization Service. In addition, Matt has extensive experience as a private bar attorney. He holds a Bachelor of Arts in French from the Johns Hopkins University and a Juris Doctor from the University of Maine School of Law.

4 Comments

  1. avatar

    Just remember that the BIA is not the end of the road for those appealing an Order Of Removal !

  2. avatar

    It’s important not to let activist EOIR and BIA judges create immigration laws to serve their own agendas, that then get used by other in the system with such leanings.