An Immigration Court Just Asked If It Can Ignore the Constitution
The Board of Immigration Appeals wants outside briefs on whether Supreme Court precedent binds it — even when that precedent would strike down the law it enforces.
WASHINGTON — The Board of Immigration Appeals just asked the public a question no immigration court is supposed to have to ask: whether it’s bound by the Supreme Court at all.
In an amicus invitation posted July 14, the nation’s highest immigration appeals body — the court of last resort for hundreds of thousands of deportation cases before they ever reach a federal judge — is soliciting outside legal briefs on whether it must follow Supreme Court and circuit court precedent on constitutional law, even in cases where doing so would mean striking down a statute or regulation as unconstitutional.
Why It Matters
The BIA is not a court in the Article III sense. It’s part of the Executive Office for Immigration Review, an agency housed inside the Justice Department. Agencies typically can’t declare acts of Congress unconstitutional — that power sits with the judiciary. But immigration law runs on statutes and regulations that get challenged on constitutional grounds constantly: due process at…