Justice Department’s Latest Action Violates Federal Immigration Law

Attorney General Eric Holder announced on June 6 the Justice Department will use taxpayer funds to “enroll approximately 100 lawyers and paralegals as AmeriCorps members to provide legal services” to “young people who must appear in immigration proceedings.” This will be accomplished through Justice Department grants to the Corporation for National and Community Service, a federal agency that administers AmeriCorps. Holder is calling it a “strategic partnership” that will establish a “justice AmeriCorps.”

There is one big problem with Holder’s plan to fund legal representation for illegal aliens: It violates federal law. Federal immigration law (8 U.S.C. §1229a) lays out the rules governing removal proceedings in the immigration courts, which are administrative courts run by the Justice Department, not Article III federal courts. Under Section 1229a(b)(4)(A), aliens have the “privilege of being represented, at no expense to the government, by counsel of the alien’s choosing.” Thus, there is no question illegal aliens can be represented by lawyers in immigration removal proceedings, but it also is clear representation cannot be at the expense of the government.

Holder’s press release cites no legal authority for this move other than a supposed “direction” from Congress to the Executive Office of Immigration Review “to better serve vulnerable populations such as children and improve court efficiency through pilot efforts aimed at improving legal representation.” Where this “direction” came from is not explained. In any event, any such “direction” from Congress cannot overcome a direct, statutory prohibition on providing legal representation at the expense of the government.

Holder claims that with this program, “we reaffirm our allegiance to the values that have always shaped our pursuit of justice.” But the value that has primarily “shaped our pursuit of justice” is allegiance to the rule of law. As explained in a previous Heritage paper and by John Fund and me in our new book, “Obama’s Enforcer: Eric Holder’s Justice Department,” the attorney general and the president have shown no qualms about bending, breaking or ignoring laws passed by Congress when it suits their purposes.

Not only has Congress not authorized the use of federal funds by the Justice Department to provide legal representation to illegal aliens in removal proceedings, it has absolutely banned it. But that doesn’t seem to matter to Attorney General Eric Holder. Whether you are a liberal, a moderate, or a conservative, everyone should fear having an attorney general who establishes the precedent that prior laws passed by our elected representatives and signed into law by a popularly elected president can be wiped out by one person in a new administration deciding the Department of Justice will ignore or even violate the law.

Hans A. von Spakovsky is a Senior Legal Fellow at The Heritage Foundation. Along with John Fund, he is the coauthor of “Obama’s Enforcer: Eric Holder’s Justice Department” (HarperCollins/Broadside June 2014).

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