The Trump administration is planning to revive a decade-old proposal that will cement Attorney General William Barr’s say over what goes on in America’s federal immigration courts.
In short, the rule, which was put forward by the Department of Justice’s Executive Office for Immigration Review and published in the federal register Tuesday, codifies the power of the attorney general to decide which immigration court cases will create binding precedent for future immigration decisions, according to information from the DOJ.
An official regulatory document from the Department of Justice explains that the rule itself is not necessarily a new one, but was proposed by former Attorney General Alberto Gonzalez’s Department of Justice as part of streamlining efforts during the Bush administration in 2006.
Federal immigration courts are separate from the federal judiciary and are under the administration of the DOJ. Appeals from immigration decisions by those courts are heard by the Board of Immigration Appeals, which is the “highest administrative body for interpreting and applying immigration law” in the United States government and is under the EOIR.
“The BIA has been given nationwide jurisdiction to hear appeals from certain decisions rendered by immigration judges and by district directors of the Department of Homeland Security (DHS) in a wide variety of proceedings in which the Government of the United States is one party and the other party is an alien, a citizen, or a business firm,” the DOJ’s website explains.
According to the San Francisco Chronicle, a DOJ official, who briefed reporters on Monday, said the new regulatory proposal would be a “cleanup rule more than anything else” but also added that the changes were necessary to make immigration courts “as efficient or as effective through the process as possible.”
Under current law, decisions made by the BIA are considered binding precedent only if published, the Chronicle said, and that only happens if a majority of all 21 members agree on the ruling. Attorney General Jeff Sessions, the Chronicle explained, however, often used the attorney general’s position to issue binding immigration decisions after referring cases to himself.
Background information on the rule from the Department of Justice sent to Blaze Media via email says that the proposed rule would not create but codify the power of the attorney general to pick which of the otherwise unpublished opinions would be binding on future immigration decisions.
The proposal would also expand the circumstances under which the Board of Immigration Appeals can hear cases for potentially binding precedent, such as “the need to resolve a complex, novel, unusual, or recurring issue of law or fact,” and clarifies that the BIA can use its discretion to rule on issues that weren’t raised by parties but were brought up in their decision.
The regulation will take effect 60 days after its Tuesday publication in the Federal Register.