Obscure but Powerful: Shaping U.S. Immigration Policy through Attorney General Referral and Review

Since Congress moved most immigration policy and operational authority from the Department of Justice (DOJ) to the Department of Homeland Security (DHS) in 2003, the Attorney General, who is no longer responsible for immigration policymaking, has nevertheless increasingly used his office’s “referral and review” power to influence immigration policy and exercise control over DHS. This power allows the attorney general to self-refer any Board of Immigration Appeals (BIA) decision for review and modify it with minimal transparency. Obscure but Powerful: Shaping U.S. Immigration Policy through Attorney General Referral and Review, published by the Migration Policy Institute, highlights due process concerns and issues with this granting of policymaking power to the attorney general. The Trump administration’s unprecedented and aggressive use of this power had wide-reaching effects on the immigration system, with attorneys general using it to take such actions as restricting asylum access and limiting the discretion of immigration judges. The author suggests that attorneys general in the Biden administration could use the referral and review power to expeditiously reverse the decisions of Trump’s attorneys general. However, the author argues the referral and review power in and of itself is problematic, given that it places a significant amount of power in the hands of an administrator who does not have jurisdiction over immigration policy. She therefore recommends that the Biden administration adopt safeguards, such as formal guidelines or regulations issued by the DOJ with procedures for referral and review, and requirements to increase transparency, predictability and trust. While these protections would fix some aspects of the problem, the referral and review process still gives the attorney general power beyond the DOJ’s purview and allows the attorney general to bind DHS, a key structural issue. As a result, the report argues that the Biden administration should pursue a legislative solution that aims to consolidate immigration policymaking authority within DHS. (Jasmina Popaja for The Immigrant Learning Center’s Public Education Institute)

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