The question arises as to exactly what influence Sessions would have over immigration policy if he were confirmed as Attorney General. The answer is that the influence can be considerable, particularly with respect to immigration policy in deportation and removal cases.
The Department of Justice does not have the day to day responsibility for enforcing and administering the immigration law of the United States. That role belongs to the Department of Homeland Security. But this doe not mean that the Department of Justice has no say or influence over how immigration law is interpreted and enforced.
First the Department of Justice is responsible for representing the United States in litigation before the U.S. courts. This means that the Justice Department, through the Office of the U.S. Attorney, assesses litigation risk and advises the agency being sued.
This can mean that the Justice Department injects a bit of reasonableness when an agency is being sued. The U.S. Attorney's Office can advise an agency that its action is not likely to convince a judge. In this way, the Justice Department can subtly influence agency policy.
But the Justice Department can also agree to take a more extreme litigation position, thereby encouraging an agency to push the boundaries of the law.
The more important role that the Department of Justice plays in U.S. immigration law is through the operation of the administrative courts used to enforce the deportation and removal law.
Contrary to what many people believe, the U.S. Government cannot simply pick up a person who is present in the country in violation of the immigration law and deport him or her. The U.S. Constitution guarantees the right to due process of law. That is, it has to be proven that a person does not have legal status in the United States or that the person has violated that status by, for example, committing a crime. Then, even if a person is present in the United States in violation of the immigration law, there may still be legal grounds for relief to allow that person to stay, such as asylum law. Some entity has to make determination.
The entity that makes that determination is the Executive Office of Immigration Review (EOIR), which is housed by the Department of Justice. The EOIR consists of the first level trial courts, that is the Immigration Courts, and the appellate body, known as the Board of Immigration Appeals (BIA).
In the first place, the Attorney General influences how immigration law is interpreted and enforced through the power of appointment and supervision. The Attorney General appoints the Immigration Judges, the Members of the BIA, the Chief Immigration Judge and the Chair of the BIA. Thus, so long as the people appointed meet the minimum requirements of competency, the Attorney General can be sure to appoint people who will interpret immigration law congruent with his thinking. The EOIR also ensures of the training of Immigration Judges and BIA Members. Such training programs can be used to subtly influence how the law is viewed and interpreted.
More importantly, by developing case law, the BIA, and indeed the Attorney General, can issue opinions binding on Immigration Judges in similar cases. The BIA publishes its case decisions. The BIA can vote to make a decision precedential, which means it announces an interpretation of the law that is binding on Immigration Judges. The Attorney General may also decide to take jurisdiction over a case on appeal, and issue a decision announcing an interpretation of the law that is precedential. Indeed, if the Attorney General takes jurisdiction over the case, he does not need to give the parties to the case an opportunity to brief the issues before him.
This power has been used in the past, for example, to define what constitutes a crime involving moral turpitude. This can be an issue where a state criminal law defines an offense so broadly that it can include both behavior that is morally reprehensible, and behavior that isn't.
This is the case with assault and battery. To be considered a crime involving moral turpitude, assault and battery must be a crime of violence. But, in many states, assault and battery can include a mere unwanted touching, such as a tap on the shoulder. Moreover, when a defendant pleads guilty, the plea agreement may be worded so as to avoid admitting to actions that would constitute a crime of violence. This leaves Immigration Judges in a tough position in determining if the conviction before them is actually a deportable offense or not.
In this situation, the Attorney General took jurisdiction over a case, and announced a rule that Immigration Judges could look beyond the record of conviction to determine if an assault and battery is a crime of violence, and thus a crime involving moral turpitude. The Attorney General's decision permitted the Immigration Judge to go so far as to make conclusions based on the police report. This particular rule was then the subject of extensive legislation, and has since been withdrawn by a successive Attorney General decision.
Nonetheless, the Attorney General can have substantial sway over immigration law as it applies to deportation and removal cases. Given Sessions' history, I would expect that immigration law as it applies to deportation and removal cases will be interpreted more harshly. Indeed, I would even expect interpretations that are constitutionally questionable for the sole purpose of pushing the envelope and seeing if the courts permit it.
By: William J. Kovatch, Jr.
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