Alberto Gonzales and Patrick Glen have provided a major service in their comprehensive summary and analysis of those decisions in the immigration field rendered personally by Attorneys General over more than seven decades. The basic Attorney General review procedure, created by regulation, is known (or actually little known) as “referral.” It allows this Cabinet-level official to serve, on selected occasions, as the highest administrative tribunal in formal removal proceedings, usually after a ruling by the Board of Immigration Appeals (“BIA”). Although I will take issue with a few of their assertions, Gonzales and Glen are quite right to highlight the potential value of this procedure, judiciously employed, for setting policy and providing authoritative guidance. I begin by expanding on the importance and propriety of the Attorney General’s role in light of the interpretive authority that agencies enjoy under the Supreme Court’s Chevron doctrine. Indeed, Cabinet-level head-of-agency review can be particularly appropriate here, in view of the potential linkage between immigration policy and foreign policy. I then draw on a critical history of one controversial Attorney General decision to suggest refinements that could make referral more reliable and enhance its acceptance and legitimacy.

Citation
David A. Martin, Improving the Exercise of the Attorney General’s Immigration Referral Power: Lessons from the Battle over the “Categorical Approach” to Classifying Crimes, 102 Iowa Law Review Online, 1–17 (2016).