It seems that any change to the status quo in the immigration policy arena is going to upset someone these days, even if the changes are innocuous good governance and efficiency-driven initiatives.
Take the Trump administration’s interim rule to amend the regulations related to the internal organization of the Executive Office for Immigration Review, announced Aug. 23.
It proposed minor clarifications and changes to the rules related to the Office of Policy, the Office of the General Counsel, and the Office of Legal Access Programs. It also updated the organizational chart and provided more delegation of authority from the attorney general to the director of the Executive Office for Immigration Review in order to efficiently dispose of cases.
Ashley Tabaddor, the president of the National Association of Immigration Law Judges, called the interim rule a “bold-faced power-grab.”
It’s “a wolf in sheep’s clothing” that would end “transparency and independent decision-making over individual cases,” and is a step toward dismantling the Immigration Court by “collapsing the policymaking role with the adjudication role into a single” person, according to Tabaddor.
The Catholic Legal Immigration Network also weighed in, writing that the interim rule delegating authority from the attorney general to the director of the Executive Office for Immigration Review “raises concerns about a political appointee having significant power to make decisions.”
But when you read the interim rule, you quickly realize that it’s not at all what Tabaddor or others claim it to be. Their main concern, that a political appointee would have power to make decisions (as though there’s something inherently wrong with that) on immigration appeals, is just false.
First, some background.
The Executive Office for Immigration Review is a component of the Justice Department, and its primary mission is to adjudicate immigration cases “fairly, expeditiously, and uniformly” and to apply the nation’s immigration laws, also uniformly.
Before the attorney general added the Office of Policy, the Executive Office for Immigration Review contained eight components. Three are adjudicatory: the chief immigration judge, the Board of Immigration Appeals, and the Office of the Chief Administrative Hearing Officer.
Three are non-adjudicatory: the Office of General Counsel, the Office of Administration, and the Office of Information Technology.
The other two are the Office of the Director and the Office of the Deputy Director.
The director of the Executive Office for Immigration Review is a career Justice Department employee, not a political appointee, and is the boss of the seven other component heads.
In 2017, the attorney general added the Office of Policy to “assist in effectuating authorities given to the Director [by statute], including the authority to … issue operational instructions.”
Prior to this change, the Office of the General Counsel handled—in addition to legal advice—several policy matters. Under the new regulation, policy matters will be handled in the policy shop, and legal matters will be handled in the legal shop. That only makes sense.
Tabaddor and others charge that the new organizational structure allows the director to decide cases based not on the law, but rather, on policy. That is simply incorrect.
That concern arises out of a minor change to the way the Board of Immigration Appeals deals with cases that it cannot decide within the time frame set by immigration regulations.
Under the current system, the Board of Immigration Appeals chairman can assign delayed cases to himself, to a vice chairman, or to the attorney general himself for expedited review.
The new rule simply substitutes the director for the attorney general because “due to his numerous other responsibilities and obligations, the attorney general is not in a position to adjudicate any [Board of Immigration Appeals] appeal.”
Thus, the director adjudicates those cases on the attorney general’s behalf.
Still, the director retains the ability to elevate a case up to the attorney general, but the chairman may not do so directly. Regardless, the director can only decide cases that the Bureau of Immigration Appeals could not resolve in a timely fashion and that the chairman assigns to the director.
Thus, contrary to Tabaddor’s assertion, this is not a situation where a political appointee is taking politically sensitive cases away from the judges, because the director of the Executive Office for Immigration Review is a career employee of the Justice Department.
Furthermore, the director has no power to take cases away from the judges. He can only resolve cases that the Bureau of Immigration Appeals cannot resolve within the regulatory time frame: 90 days after briefs are filed or within 180 days of assignment to the Bureau of Immigration Appeals panel, plus a 60-day extension for “exigent circumstances.”
What’s more, even if the director is making policy determinations, that’s permissible. The attorney general has substantial power to make immigration policy.
Section 103(a)(1) of the Immigration and Nationality Act (codified at 8 U.S.C. § 1103(a)(1)) anticipates that the attorney general will shape immigration policy by issuing binding rulings on legal questions.
It provides: “The secretary of homeland security shall be charged with the administration and enforcement of this chapter … [p]rovided, however, that determination and ruling by the attorney general with respect to all questions of law shall be controlling.”
And the director wields the attorney general’s delegated authority—just like all immigration judges and Bureau of Immigration Appeals members do.
Of course, the counter argument is: “issuing binding legal rulings is not policy; it’s just interpreting the law.” But that ignores the reality of the Immigration and Nationality Act.
Like so many laws these days that defer to executive agency expertise, the Immigration and Nationality Act leaves so much up to the attorney general that it is impossible to issue legal rulings and determinations without considering policy.
Indeed, the law seems to specifically anticipate, even require, the attorney general to make policy determinations.
We addressed one particularly stark example of that in another paper.
The bottom line is that these changes should make the Executive Office for Immigration Review run more smoothly by clarifying the roles of the various departments. They should also speed resolution of delayed immigration appeals by giving them to the director, who has more time to spend on resolving them than the attorney general does.
These are commonsense, good-governance changes, and much of the criticism of them is either overblown or divorced from reality.