The Attorney General’s Disruptive Immigration Power

37 Pages Posted: 15 Feb 2016 Last revised: 27 Nov 2020

See all articles by Bijal Shah

Bijal Shah

Boston College Law School

Date Written: 2016

Abstract

This essay responds to a piece by former Attorney General Gonzales and an Office of Immigration Litigation attorney advocating more frequent use of the Attorney General's "referral and review" mechanism. First, it disputes the authors' fundamental characterization of the referral and review mechanism as a purely political tool, like other forms of executive discretion. Second, it challenges the authors' supposition that the referral and review mechanism has contributed to a stronger immigration framework by aggregating information that shows how the recent usage of this tool has disrupted the consistent development of immigration law by the judiciary, Congress, and agencies themselves. This essay concludes, briefly, by noting how additional exploration of the referral and review mechanism could advance the investigation of immigration law's distinctive identity, including the extent to which it is both excused from and beholden to general tenets of administrative law.

Keywords: administrative law, adjudication, immigration, executive power, Attorney General, Department of Justice, Department of Homeland Security

Suggested Citation

Shah, Bijal, The Attorney General’s Disruptive Immigration Power (2016). Iowa Law Review, Vol. 102, No. 129, 2017, Available at SSRN: https://ssrn.com/abstract=2729951

Bijal Shah (Contact Author)

Boston College Law School ( email )

885 Centre Street
Newton, MA 02459-1163
United States

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