ARTICLES
FACTS VERSUS DISCRETION: THE DEBATE OVER
IMMIGRATION ADJUDICATION
JAYANTH K. KRISHNAN*
ABSTRACT
Justice Amy Coney Barrett recently issued her first majority-led immigra-
tion opinion in Patel v. Garland (2022). As background, some immigrants
looking to avoid deportation may apply for what is called “discretionary
relief’ (e.g., asylum or adjustment of status) initially in an immigration court
and then, if they lose, at the Board of Immigration Appeals (BIA). These im-
migration forums fall under the Department of Justice. Prior to Patel, immi-
grants who lost at the BIA could then ask a federal circuit court to review the
factual findings of their case. Now, after Justice Barrett’s decision, Article III
review is no longer available for such immigration proceedings involving
discretionary relief.
The decision in Patel serves as an important backdrop for the subject of
this study. A related, but distinct debate simmers one layer below the federal
courts. Namely, the question is how much deference the BIA should give to
factual determinations made by immigration courts of first resort in discre-
tionary relief cases. Certain circuits have held that the BIA may intervene
rather aggressively, while the largest circuit—the Ninth—has said that the
BIA should display enhanced deference.
As this study argues, this circuit split conspicuously ignores how the divid-
ing line between what is fact and what is discretion is often more blurred than
discrete. Moreover, there is a gross inequity to this circuit discordance; the
* Milt and Judi Stewart Professor of Law and Director of the Stewart Center on the Global Legal
Profession, Indiana University-Bloomington Maurer School of Law. The author was also recently
appointed to the Advisory Committee of the American Bar Association’s Presidential Commission on
Immigration. For their thoughtful assistance, advice, and input, the author is grateful to Lara Gose,
SangYeob Kim, Christiana Ochoa, Steve Sanders, Sean Santen, Jeff Stake, Collin Vonderahe, and Tung
Yin. © 2022, Jayanth K. Krishnan.
1
way that an immigrant’s appeal is analyzed and adjudicated depends upon
the happenstance of the circuit from where that case originated.
For this reason, this article offers a new theoretical framework to improve
the status quo. This model’s two-step proposal looks to raise the standard of
justice in these immigration proceedings, remove the biases that presently
favor the government, and provide greater fairness and equity across the cir-
cuits to immigrants seeking relief from deportation.
TABLE OF CONTENTS
I. INTRODUCTION ..................................... 2
II. ADEYANJU AND THE FIRST CIRCUIT’S APPROACH TO BIA REVIEW. . . . 7
A. Balancing Equities............................. 7
B. Applying the Proper Review Standard . . . . . . . . . . . . . . . 9
III. THE NINTH CIRCUIT’S TAKE . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
IV. ADJUDICATION OF IMMIGRATION DECISIONS – THE AID MODEL . . . . 14
A. Setting the Background: Considering the Various
Discretionary Relief Categories. . . . . . . . . . . . . . . . . . . 14
B. Operationalizing the AID Model......... .......... 16
1. The First Stage ............................ 16
2. The Second Stage .......................... 21
V. CONCLUSION ...................................... 26
I. INTRODUCTION
On May 16, 2022, Justice Amy Coney Barrett issued her first major immi-
gration ruling since being confirmed to the U.S. Supreme Court. In Patel v.
Garland,
1
Justice Barrett was joined by Chief Justice Roberts as well as
Justices Thomas, Alito, and Kavanaugh. Justice Barrett’s opinion dealt with
§242(a)(2)(B)(i) of the main American immigration statute known as the
Immigration and Nationality Act.
2
In short, she wrote that, going forward, an
immigrant who seeks what is called “discretionary relief” from deportation –
and is denied by the Justice Department’s immigration courts – has no right
to appeal to an Article III court to review the facts of that case. As Justice
1. See Patel et. al v. Garland, 142 U.S. 164, 1618 (2022).
2. Id. (codified as 8 U.S.C. §1252(a)(2)(B)(i)).
2 GEORGETOWN IMMIGRATION LAW JOURNAL [Vol. 37:1
