Midnight Agency Adjudication: Attorney General Review of Board of Immigration Appeals Decisions

In Advancing Executive Branch Immigration Policy Through The Attorney General’s Review Authority, 101 Iowa L. Rev. 841 (2016), former Attorney General Alberto Gonzales and Patrick Glen provide a rich history and detailed study of the power of the Attorney General to refer and review decisions of the Board of Immigration Appeals (“BIA”). Their account is both descriptive and normative. After a review of contemporary decisions where the Attorney General has exercised review authority, Gonzales and Glen conclude that “[i]n many cases, the Attorney General was able, through referral and review, to provide a clear, cogent, and definitive legal or policy prescription for immigration officials on the issue resolved.” They also argue that Attorney General review should happen more often, contrasting “the robust exercise of [review] authority in the George W. Bush Administration to the near-absence of usage in the Obama Administration.” Finally, the authors dismiss objections to the fairness and transparency of Attorney General review. Gonzales and Glen conclude that procedural due process objections, which have been voiced most prominently regarding Attorney General Mukasey’s decision in Matter of Silva-Trevino, are ill-founded, and that reform proposals to provide notice and an opportunity to be heard prior to Attorney General review “are premised mostly on superficial gains in the optics of referral” and not worth pursuing.My response Essay will explore one key aspect of contemporary Attorney General review authority that is not examined in the otherwise comprehensive account provided by Gonzales and Glen: timing. Both Matter of Compean and Matter of Silva-Trevino, which were issued by Attorney General Mukasey and later vacated by Attorney General Holder, were decided after President Obama was elected and before he was inaugurated. And Matter of R-A- was referred by Attorney General Ashcroft to himself just as the functions of the former Immigration and Naturalization Service (“INS”), an agency within the Department of Justice, were transferred to the newly-created Department of Homeland Security (“DHS”). These are what administrative law scholars might term “midnight agency adjudications,” although the phrase has not been used because this practice has never been examined. Indeed, the rich literature on the topic of regulations promulgated in times of presidential transitions has not yet considered the adjudication analog of an agency head who refers a controversial issue to himself and renders a decision upending agency precedent on his way out the door.From an administrative law perspective, this is an important phenomenon. The same concerns voiced about midnight rules arise when an agency head in the incumbent administration refers a case to himself to decide on the eve of a presidential transition, particularly when the decision seems rushed and the outcome upends settled agency precedent and is likely to conflict with the policy preferences of the incoming administration. In addition, two key features distinguish midnight agency adjudication from midnight rulemaking — the comparative ease with which a decision can be reversed, and the absence of procedures that require notice and an opportunity to provide input for those who will be impacted by the agency decision. These features create remarkable flexibility for agency policy formulation via referral and review of agency adjudication, but they also raise concerns when an agency head aims to use midnight adjudication to entrench a policy choice in a time of transition. The failure of Gonzales and Glen to acknowledge the prevalence of midnight agency adjudication in their otherwise comprehensive account undermines their conclusions about the efficacy and procedural fairness of the practice.