Dissecting In Re D-J-: The Attorney General, Unchecked Power, and the New National Security Threat Posed by Haitian Asylum Seekers

摘要

Judicial review provides a safety valve for the protection of individuals and imposes a check on abuse of government power. The Attorney General's decision in D-J- represents an unreasonable abuse of discretion that should be checked by the judiciary in all cases. Statutory withholding of judicial review under INA § 236(e), in combination with de novo determination of both fact and law by the Attorney General, lays the foundation for unchecked power. In D-J-, the Attorney General abused his power by ignoring individual circumstances in favor of generalized "national security" considerations that were really a pretext for imposing punishment on an undesirable immigrant group. Whether Congress changes INA § 236(e) or the Court strikes it down as unconstitutional, there must be regular judicial review of immigration-related detentions. Reference to protections afforded to asylum seekers under international and U.S. law further demand a check on the Attorney General's power to order such detentions.