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102 Iowa L. Rev. Online 1 (2016-2017)

handle is hein.journals/iowalrb8 and id is 1 raw text is: 







   Improving the Exercise of the Attorney

   General's Immigration Referral Power:

         Lessons from the Battle over the

     Categorical Approach to Classifying

                              Crimes

                            David A. Martin*


I. INTRODUCTION AND BACKGROUND:   THE IMPORTANCE  OF CHEVRON.................2

II. PROCEDURES IN REFERRAL CASES        .........................................5

III. SUBSTANTIVE SOUNDNESS: THE DEFICIENCIES OF THE ATTORNEY
       GENERAL'S SLVA-TREVINO DECISION              ..............9..............9

       A. THE EARLY COURSE OF THE CASE ................... ....................9

       B. THE CASE ON REFERRAL TO THE ATTORNEY GENERAL ..      .............. 10

       C. THE SHORTCOMINGS OF THE DECISION ............................. 12

IV. CONCLUSION           ............................................................... 17



    Alberto Gonzales  and Patrick Glen have  provided a major service in
their comprehensive   summary   and  analysis of those decisions in the
immigration field rendered personally by Attorneys General over more than
seven decades.1 The basic Attorney General review procedure,  created by
regulation, is known (or actually little known) as referral. It allows this
Cabinet-level official to serve, on selected  occasions, as the  highest
administrative tribunal in formal removal proceedings, usually after a ruling
by the Board of Immigration Appeals (BIA). Although I will take issue with


    *  Warner-Booker Distinguished Professor of International Law Emeritus, University of
Virginia. The author served, on leave from the University, as General Counsel of the Immigration
and Naturalization Service from 1995 to 1998 and as Principal Deputy General Counsel of the
Department of Homeland Security, 2oo9 through 2oo. The views expressed here are the
author's own and do not represent the views of his fonner agencies or the U.S. government.
    1. Alberto R. Gonzales & Patrick Glen, Advancing Executive Branch Immigration Policy
Through the Attorney General's Review Authority, 101 IOWA L. REV. 841 (2016). Both authors have
considerable experience in the Department of Justice, and Dean Gonzales, of course, was the
steward of the referral power during his tenure as Attorney General of the United States.
    2. 8 C.F.R. § ioo3.1(h) (2015).

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