VSB Annual Meeting Presentation on Immigration and the Rule of Law

This last June I had the opportunity to present about immigration topics at the Virginia State Bar Annual Conference at Virginia Beach.

This was my first time at the VSB Annual Conference, and I really enjoyed it. I’m definitely grateful for all the people that put together the seminar, and glad I’m a member of an organization that organized presentations like mine on immigration, or others about body camera footage in criminal defense cases.

Lawyers have an opportunity to bring about a lot of good in the world, and so it’s nice to see the VSB, and the Diversity Conference in particular, work to discuss important topics in the law.

Immigration Panel

I participated in a conversation on immigration, where three of us were invited to speak for about 15 to 20 minutes, and then field questions as part of a panel discussion.

The other speakers were George Fishman, who works at the Office of General Counsel at the U.S. Department of Homeland Security, and Lisa Johnson-Firth, an immigration attorney with her own private practice.

George shared some government perspectives and statements from official documents about the Deferred Action for Childhood Arrivals, or DACA, program initiated by President Obama.

Lisa passionately advocated in favor of immigrants and their right to an asylum hearing, providing a background of U.S. involvement in Central America, and explaining why immigrants are coming to the U.S.

I was the third to present, and I spoke about issues relating to attorney general certification of immigration cases and the need for an independent Article I immigration court.

What is Attorney General Certification?

Our immigration courts are part of the Executive Branch of our government. That means the ultimate bosses over the immigration courts aren’t the judges, but the current president and his appointees. In the case of immigration courts, that means the boss is the Attorney General.

Because the Attorney General is the boss of both the immigration judges, and immigration enforcement officers, that presents a problem for our immigration courts and judges who are supposed to make impartial decisions that aren’t influenced by politics.

But the potential for the executive branch to wield influence over the immigration courts doesn’t end there. Pursuant to 8 C.F.R. ยง1003.1, the Attorney General can certify virtually any immigration case to himself.

When the AG certifies a case to himself, it means he can re-decide the outcome of the case, and establish precedent for all the immigration courts. I imagine the original purpose behind this law was to enable the AG to standardize interpretations of immigration law among the courts, or to resolve splits in decision making among different immigration judges.

Instead, AG certification in this context has been used as political weapon to “interpret” the laws in a way that’s favorable to whoever happens to be president at a given moment.

The way it has been used in the Trump administration has seen the attempted overturn of years of judicial precedent over a wide range of issues, but more particularly with how asylum laws are interpreted.

What’s an Article I Court?

An Article I court is a court established by Congress under its authority pursuant to Article I of the constitution. Examples of other Article I courts include the U.S. Court of Military Appeals, the U.S. Court of Veteran Appeals, the U.S Tax Court, Territorial Courts, and others.

Article I courts are sometimes called “legislative” courts.

Since 2013, the Federal Bar Association has supported the creation of an Article I Immigration Court. You can read more about their reasons for advocating this move here.

I agree with their reasons. I also just want to add my voice to the growing chorus of lawyers asking for more justice in our nation’s immigration courts. As someone who practices regularly in immigration court, I see firsthand the growing frustration on the part of immigration judges, government attorneys, private attorneys, and frankly, clients.

An Article I Immigration Court is probably our best current bet to return our immigration court system to fairness for immigrants and ensure due process moving forward.

The Rest of the Conference

I attended a few of the other CLEs at the VSB Annual Meeting, but mostly got to spend time on the beach with my family. I had never been to the VSB annual meeting before, but definitely plan on going back.