6/20/2021
Should Immigration Courts Operate under the Attorney General? History Says this is an Accident that Should be Undone
by Alison Peck
Alison Peck is Professor of Law, Director of International Programs, and Co-Director of the Immigration Law Clinic at West Virginia University College of Law. She is the author of The Accidental History of the U.S. Immigration Courts (University of California Press, 2021).
Last week, Attorney General Merrick Garland vacated two controversial immigration decisions issued by attorneys general during the Trump administration. Those cases, Matter of A-B- and Matter of L-E-A-, had announced restrictive interpretations of the asylum laws for individuals fleeing domestic violence or gang violence against families. Garland’s actions set aside the Trump era decisions and announced that the underlying legal question would be considered by the Department of Justice (DOJ) and the Department of Homeland Security (DHS) in a rulemaking process ordered by President Biden in February.
While most immigration lawyers applauded Garland’s decision to return the parties to the status quo pending the rulemaking, the decisions raise a deeper question: Why are the attorney general and DOJ – the nation’s top law enforcement officer and agency – deciding immigration cases in the first place? Most Americans assume that the judicial power – deciding a case brought by the United States against an individual – will be exercised by, well, a judge. Since when did the nation’s top law enforcement officer have the power to act as judge and jury?
https://historynewsnetwork.org/article/180550
