Another Limit on Federal Court Jurisdiction - Immigrant Access to Class-Wide Injunctive Relief

By analyzing both the text of 8 U.S.C. § 1252(f)(1) and relevant Supreme Court precedent, this article attempts to decipher the meaning of § 1252(f)(1). If a federal court were to interpret § 1252(f)(1) to be a broad bar against class-wide injunctive relief, such an interpretation would raise constitutional concerns, as the Supreme Court has ruled that individual actions based on the administrative record of a single hearing are an ineffective means to challenge an immigration pattern or practice of the federal government. The analysis in this article leads to the conclusion that the text of § 1252(f)(1) does not, in fact, demand a broad bar against the issuance of class-wide injunctive relief. This article also considers whether habeas jurisdiction is a viable alternative method to obtain class-wide injunctive relief if § 1252(f)(1) bars such relief

The Executive Power of Process in Immigration Law

This article, part of an AALS symposium on executive power during the Obama administration, focuses on the role of procedure in the president’s implementation of immigration law. The president undeniably has power over immigration law, but the exact contours of that power are not clear. At times, the president acts via delegation from Congress. The president also may have inherent power over immigration law that is not dependent on a delegation. Such inherent power would be subject to the president’s discretion. Even when acting pursuant to delegated immigration power, the president operates within a wide ring of discretion granted by the delegation. While we debate the exact boundaries of executive power over immigration law and the extent of the president’s discretion, we must not forget that executive implementation of immigration law includes procedural power and that procedural mechanisms affect fairness: Does the executive implementation of immigration law function with just procedural mechanisms? This article explores the nature and variety of executive procedural power over immigration law by looking at examples from executive agencies that contribute to executive action in immigration law. This article identifies themes across the procedures that these agencies use to carry out immigration decision-making. These themes are: (1) the structure of executive branch implementation of immigration law is complex; (2) the use of agency guidance documents is a popular procedural choice; and (3) minimal process is a prominent feature. This article explores the implications of these themes and raises some questions for future inquiry. The procedural mechanisms that accompany the implementation of immigration law deserve sustained attention. Executive branch procedures are an essential element of the president’s power over immigration law

Another Limit on Federal Court Jurisdiction - Immigrant Access to Class-Wide Injunctive Relief

By analyzing both the text of 8 U.S.C. § 1252(f)(1) and relevant Supreme Court precedent, this article attempts to decipher the meaning of § 1252(f)(1). If a federal court were to interpret § 1252(f)(1) to be a broad bar against class-wide injunctive relief, such an interpretation would raise constitutional concerns, as the Supreme Court has ruled that individual actions based on the administrative record of a single hearing are an ineffective means to challenge an immigration pattern or practice of the federal government. The analysis in this article leads to the conclusion that the text of § 1252(f)(1) does not, in fact, demand a broad bar against the issuance of class-wide injunctive relief. This article also considers whether habeas jurisdiction is a viable alternative method to obtain class-wide injunctive relief if § 1252(f)(1) bars such relief

Immigration Adjudication Bankruptcy

The Trump Administration is pushing an adjudicatory system on the brink over the edge. The system designed to decide whether to remove (deport) individuals from the United States has longstanding problems that predate the Trump Administration. Those problems are being exasperated rather than improved. It is time to consider the notion of immigration adjudication bankruptcy. Immigration adjudication bankruptcy involves a declaration that the removal adjudication system is not satisfying the basic principles of administrative process: accuracy, acceptability, and efficiency. This Article, a part of a symposium on executive power and immigration law, raises questions about when bankruptcy should be declared and examines issues surrounding the restructuring of immigration removal adjudication

Beyond Decisional Independence: Uncovering Contributors to the Immigration Adjudication Crisis

This is the published version

Easing the Guidance Document Dilemma Agency by Agency: Immigration Law and Not Really Binding Rules

Immigration law relies on rules that bind effectively, but not legally, to adjudicate millions of applications for immigration benefits every year. This Article provides a blueprint for immigration law to improve its use of these practically binding rules, often called guidance documents. The agency that adjudicates immigration benefit applications, United States Citizenship and Immigration Services (USCIS), should develop and adopt its own Good Guidance Practices to govern how it uses guidance documents. This Article recommends a mechanism for reform, the Good Guidance Practices, and tackles many complex issues that USCIS will need to address in creating its practices. The recommended reforms promote increased accessibility, transparency, and fairness for immigration law stakeholders, including unrepresented parties. This Article also contributes to the larger administrative law debate about guidance documents. Guidance documents present a conundrum for administrative law because they have powerful positive and negative features. Because the Administrative Procedure Act does not require agencies to consider public input in the crafting of these rules, agencies may respond more quickly and flexibly than notice and comment rulemaking would allow. On the other hand, an agency policy statement (a type of guidance document that explains an agency’s current thinking on a particular issue) is effectively binding even though it is not legally binding. Applicants are free to argue in an adjudication that a different approach should apply. Yet, stakeholders tend to follow the rule announced in the policy statement as if it were legally binding. Thus, there is a practically binding effect without the opportunity for notice and comment. In developing a prescription for USCIS, this Article concludes that the best approach to reforming agency use of guidance documents is an agency-by-agency approach. It rejects a one-size-fits-all approach in favor of the opportunity for each agency to formalize its own practices. Such tailored reform recognizes that every agency is different, with its own guidance culture and communities of stakeholders. This approach is designed to ease the negative effects of guidance documents while maximizing their positive features

Murky Immigration Law and the Challenges Facing Immigration Removal and Benefits Adjudication

Immigration adjudication is more diverse than it may seem. Scholars tend to focus on one aspect of administrative immigration adjudication, the decision-making process established to determine whether an individual may be removed (deported) from the United States. But there is a whole other function of administrative immigration adjudication that relatively is ignored in the legal literature. Immigration adjudicators are also tasked with determining whether to grant immigration benefits, such as whether to grant lawful permanent resident (green card) status. Both types of administrative immigration adjudication, removal and benefits, are in crisis. This article explores the challenges facing each and argues that both crises are linked to a lack of transparency in immigration law. In the removal context, the lack of transparency is exemplified by the complexity of the law and by the negative discretion infused into the law. In the benefits context, the lack of transparency is exemplified by the use of administrative guidance to adjudicate benefits applications and by the obscurity of the administrative appellate adjudicating body, the Administrative Appeals Office. This lack of transparency presents big challenges for both removal and benefits adjudication, and once recognized, opens new lines of inquiry. In the removal context, the lack of transparency: (1) must be considered as a contributor to overwhelming caseloads; (2) highlights a lack of decisional independence for immigration adjudicators; (3) must be considered as a factor in the extreme lack of lawyers in the system; and (4) adds to the negative mystique surrounding immigration law. In the benefits context, the use of administrative guidance and the obscurity of the Administrative Appeals Office help to explain the confusion, uncertainty and extreme lack of confidence characteristic of the benefits adjudication system. The opacity of immigration law presents challenges to both removal and benefits adjudication. This connection suggests that the lack of transparency in immigration law is a broad and deep problem, and that this murkiness must be considered in crafting any reform

Removing the Distraction of Delay

Immigration adjudication is in an awkward position. There is an intricate system to adjudicate immigration removal (deportation) cases, but that system is hindered by restrictions, and the constant threat of further restrictions, that reflect distaste for providing process to foreign nationals facing removal. There is a push and pull phenomenon, with immigration adjudication stretched uncomfortably in between two forces. On the one side, there is a push to apply common notions of due process to immigration removal cases, to push that the same concepts of procedural justice should apply in immigration cases as they would in any other context. On the other side, there is a pull away from those common conceptions and a belief that less process is not only acceptable, but also preferable when it comes to foreign nationals facing removal. One often stated justification for cutting back on access to justice in the immigration removal context is that providing access to justice gives foreign nationals means to delay removal. This stated concern about delay places the blame on individual foreign nationals, and their attorneys, for accessing justice. It promotes the idea that foreign nationals seek review for less than honorable reasons, and that therefore court access must be curtailed. This article argues that the delay rationale is window dressing for a much deeper disagreement about the role of individual rights in immigration law. The delay rationale rests upon, and promotes, a conception of national sovereignty that places the will of the national government above all else in the context of immigration law. Once the disagreement about individual rights is revealed, this article argues, there is a need to eliminate the delay distraction. The debate should be held along the terms of the role of individual rights in immigration law, rather than placing the blame on foreign nationals and their attorneys for seeking access to justice. The debate about the role of individual rights is essential, but the experience of the United Kingdom shows that formal legal resolution of the question is not enough to ease immigration adjudication from its awkward position. The experience of the United Kingdom shows that it is also necessary to change public perception of what government power should be in immigration law. The United Kingdom has incorporated into its domestic law international obligations that recognize a more modern notion of sovereignty that respects the individual. In the United Kingdom, however, there is still a fierce battle about immigration adjudication. Arguments about delay are still raised to promote limits on process. The lack of a cultural progression, despite formal legal acknowledgement, has left immigration adjudication in the United Kingdom still subject to efforts to restrict access to justice. The lesson for the United States is that a cultural shift must accompany any formal legal resolution

Senyals contradictoris: entendre la reforma de la immigració mitjançant l'evolució de la legislació sobre immigració dels Estats Units d'Amèrica

Aquest estudi posa de manifest els senyals contradictoris transmesos al llarg de la història per la legislació sobre immigració dels EUA. Una característica constant del desenvolupament de la legislació sobre immigració és que ha mostrat signes tant d'acollida com de control estricte. Entendre aquesta lectura contradictòria ajuda a explicar els debats actuals sobre la reforma de la immigració als Estats Units. Els senyals contradictoris són evidents en els debats sobre l'eficàcia del sistema destinat a seleccionar els immigrants (incloent-hi les funcions d'execució) i en els debats sobre el futur del sistema de resolució administrativa sobre immigració. Les visions oposades en aquests debats reflecteixen els senyals històrics d'acollida i de control estricte