Professor Jenny Breen’s article “Labor, Law Enforcement, and ‘Normal Times’: The Origins of Immigration’s Home within the Department of Justice and the Evolution of Attorney General Control over Immigration Adjudications”, 42 Hawai’i L. Rev. 1, 58 (2019) was recently cited in a concurring opinion in the United States Court of Appeals for the Eleventh Circuit. The case, Edwards v. United States Attorney General, considered whether an immigrant was entitled to relief from removal based on a modification to his state court criminal conviction. In reaching its decision that the immigrant was not entitled to relief from removal, the Eleventh Circuit had to consider the impact of an opinion by then-Attorney General William Barr that overturned a long string of precedent on the relationship between state court criminal convictions and removal orders.
Though he agreed with the panel that the new rule applied to the immigrant petitioner in this case, concurring Judge Adalberto Jordan expressed concern about courts mechanically giving retroactive effect to Attorney General opinions like the one at issue in this case. Part of Judge Jordan’s concern was grounded in the unpredictable nature of these opinions and particularly how those opinions have evolved in recent decades.
Professor Breen’s article examines the highly discretionary and unchecked power of the United States Attorney General to review decisions in individual immigration adjudications. Her empirical survey of decades of these decisions revealed that the Attorneys General of the administration of President George W. Bush wrought a profound transformation in the use of this formerly rarely used power, one that slowed briefly during the administration of President Obama, and then accelerated again under President Donald J. Trump.
In his concurring opinion, Judge Jordan cited Professor Breen’s research as demonstrating the ways in which the Attorney General has increasingly used the particular procedural mechanism of Attorney General self-referral to “reshape immigration procedure and settled areas of immigration law” in recent decades. Though declining to “voice any opinion on whether these vacillating policy decisions are substantively good or bad (individually or collectively) for the body politic in general or the immigration system in particular,” Judge Jordan urged his colleagues to convene en banc to reconsider Eleventh Circuit precedent on this important issue. Judge Jordan observed that “in light of these mercurial changes, the notion of automatic retroactivity (á la Yu) for Attorney General rulings (and similar administrative decisions of general applicability) seems ill-advised.”
Professor Breen’s article also considered the historical development of immigration enforcement, charting its politically controversial move out of the Department of Labor and into the Department of Justice during the administration of President Franklin Roosevelt.
The case is Edwards v. United States Attorney General, 97 F.4th 725 (11th Cir. 2024) (Jordan, J., concurring).