Most binding interpretations of immigration law are made by the Board of Immigration Appeals, but the Attorney General himself has authority to decide cases and issue precedential decisions, and may overrule Board decisions with which he disagrees. The Board decides 40,000 cases per year; it seems improbable that the Attorney General would learn of a Board decision (particularly an unpublished Board decision) unless attorneys within the Department of Homeland Security or the Department of Justice brought the matter to the attention of the Attorney General, arguing for a different result. Yet any such filings are not commonly sent to the attorneys for the non-citizen. This lawsuit seeks to obtain briefs and memoranda which were submitted in relation to a number of published Attorney General decisions:
Matter of Compean, 24 I&N Dec. 710 (A.G. 2009) (right to counsel)
Matter of Silva-Trevino, 24 I&N Dec. 687 (A.G. 2008) (overturning the categorical test for crimes involving
Matter of R-A-, 24 I&N Dec. 629 (A.G. 2008) (domestic violence-based asylum cases)
Matter of A-T-, 24 I&N Dec. 617 (A.G. 2008) (asylum claim related to female genital mutilation)
Matter of J-S-, 24 I&N Dec. 520 (A.G. 2008) (asylum for husbands of women subjected to forced abortion or
Matter of A-H-, 23 I&N Dec, 774 (A.G. 2005) (involving individual allegedly involved with terrorist group,
charged with persecution of others)
Matter of Luviano-Rodriguez, 23 I&N Dec. 718 (A.G. 2005) (expunged conviction counts as conviction for
Matter of Marroquin-Garcia, 23 I&N Dec. 705 (A.G. 2005) (expunged conviction counts as conviction for
Matter of C-Y-Z-, 23 I&N Dec. 693 (A.G. 2004) (asylum for husbands of women subjected to forced abortion
Matter of Jean, 23 I&N 373 (A.G. 2002) (creating new test for individuals convicted of "violent or dangerous
Matter of Y-L, A-G- & R-S-R-, 23 I&N Dec. 270 (A.G. 2002) (finding drug trafficking presumptively precludes a
person from seeking protection from persecution)
Many of these cases are significant in the field of immigration law. This list includes several cases which continue to be litigated in the federal courts. For instance, Matter of Silva-Trevino has now been rejected in the 4th, 11th, and 3d circuits, and upheld in other circuits. Several litigants, including Silva-Trevino himself, have raised the question of whether that process was fair and proper.
NIJC filed a FOIA request seeking to obtain the legal arguments, briefs, and memoranda which were submitted to the Attorney General prior to these decisions being reached. When the Department of Justice failed to respond, after more than a year, NIJC filed suit in the Northern District of Illinois. The matter has been assigned to the Honorable Robert Gettlemen.
In this matter, NIJC is represented by pro bono attorney Brian Murray of Jones Day LLP.