Attorney General Barr Self-Refers Cases on Postconviction Relief

On May 28, Attorney General William Barr used his authority to self-refer the cases of Matter of Thomas and Matter of Thompson, 27 I&N Dec. 556 (A.G. 2019), for the issuance of a decision which will bind all immigration adjudicators.  In the less than 2.5 years of the Trump presidency, this marks the 11^th time the Attorney General has self-referred a case for a precedential decision (8 under Sessions, 2 under Whitaker, and now 1 under Barr).  For perspective, during the 8 years of the George W. Bush presidency, the Attorney General self-referred 9 cases.  And during the 8 years of the Barack Obama presidency, the Attorney General self-referred just 4 cases.

In this case, Attorney General Barr intends to address whether, and under what circumstances, judicial alteration of a criminal conviction or sentence—whether labeled “vacatur,” “modification,” “clarification,” or some other term—should be taken into consideration in determining the immigration consequences of the conviction.

While the issue defined by Barr is vague, the fear is that he intends to order immigration adjudicators to disregard a criminal court judge’s decision to modify or vacate a conviction or sentence, potentially even where the modification or vacatur was due to an underlying constitutional or procedural defect in the criminal proceedings.  It is far from certain just how broadly Barr will rule in this case, but the fact that he self-referred the case at all points to an intention to make a significant change in long-standing law.  Though any such ruling would face nearly immediate legal challenges in federal courts, people could be deported in the interim.

With briefs due before July 12, it is likely that the final decision in this case will not be issued until late summer or fall of 2019 at the earliest.