Shaping Immigration Policy Through Federal Courts

Shaping Immigration Policy Through Federal Courts

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Robert Pauw ^*

Abstract: It is often assumed that federal courts have very little role in shaping immigration policy. Jurisdictional provisions in the Immigration and Nationality Act purport to eliminate judicial review of discretionary decisions, and where the Chevron or Kisor doctrines are applied, courts tend to defer broadly to the agency's decision. This article argues that to the contrary, federal courts have an important role in shaping immigration policy. Courts can and should review discretionary agency decisions under the arbitrary and capricious standard, which calls for a careful review of the agency's decision. Under this standard, although courts cannot properly make the policy decisions themselves, they have broad authority to ensure that in the implementation of immigration laws, the agency fairly considers and reasonably protects the individual rights and interests at stake.

Immigration policy at the administrative level is developed primarily through two agencies: the Department of Homeland Security (DHS) (acting under the direction of the secretary of DHS) and the Executive Office for Immigration Review (EOIR) (acting under the authority of the U.S. attorney general). ¹ DHS typically adopts policies either through executive action; that is, through notice and comment rulemaking or by issuing agency guidelines or memos. EOIR, although it uses rulemaking at times, more often than not adopts policies in the context of adjudication; that is, through the Board of Immigration Appeals' (BIA) issuance of precedent decisions that interpret immigration statutes. ² In either case, when agency policies are challenged the government typically argues that courts should not interfere. It is often assumed that jurisdiction-stripping provisions enacted in the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) ³ eliminate judicial review of a broad range of discretionary decisions. If the court does have jurisdiction, then given the agency's broad authority (or "plenary power") to interpret and implement immigration laws, the government argues that courts should defer to the agency. In terms of Chevron/Auer deference, the view is that if a statute or regulation is ambiguous, then—in terms of courts shaping immigration policy—the game is (almost always) over: courts should simply defer to the agency interpretation. ⁴ I believe this understanding of the role of federal courts is inaccurate. Although in the past there may have been a judicial tendency to give special deference to the executive branch on immigration issues, times are changing. Even given the limitations on judicial review in

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IIRIRA and the policy of Chevron/Auer deference, whether policies are adopted through executive action or through adjudication, courts do have a significant role in shaping immigration policy and in ensuring that immigration laws are implemented in a fair manner sensitive to the individual rights at stake. ⁵

Judicial Review of Constitutional Claims and Questions of Law

In 1996 Congress enacted an array of jurisdiction-stripping provisions that purport to limit or eliminate judicial review of immigration policies. ⁶ It has been said that the theme of these provisions is to eliminate judicial review of discretionary decisions made by the executive branch. ⁷ The provision most relevant for our purposes, 8 U.S.C. § 1252(a)(2)(B), explicitly purports to eliminate judicial review of discretionary decisions. It states:

[N]o court shall have jurisdiction to review—
(i) any judgment regarding the granting of relief [for certain listed discretionary immigration benefits], or
(ii) any other decision or action . . . the authority for which is specified [in the INA] to be in the discretion of the Attorney General or the Secretary of Homeland Security . . . .

Thus, it may initially appear that there is no role for courts to play in reviewing or shaping the immigration policies adopted by the agency as a matter of discretion; review of discretionary policy decisions is precluded by IIRIRA's jurisdiction-stripping provisions.

That view, however, is not accurate. First, there is a strong general presumption that executive actions are reviewable. ⁸ Courts have interpreted § 1252(a)(2)(B) narrowly. In St. Cyr, the Supreme Court limited the reach of IIRIRA's jurisdiction-stripping provisions, stating that "[a] construction of the amendments at issue that would entirely preclude review of a pure question of law by any court would give rise to substantial constitutional questions." ⁹ Following St. Cyr, several lower courts held that § 1252(a)(2)(B) does not preclude review of constitutional claims or questions of law. ¹⁰ And in enacting the REAL ID Act ¹¹ in May 2005, Congress accepted this view and added amendments to § 1252 making it clear that—at least in the context of judicial review of orders of removal—§ 1252(a)(2)(B) does not prevent a court from reviewing constitutional claims or questions of law. According to § 1252(a)(2)(D), "Nothing in [§ 1252(a)(2)(B)] . . . shall be construed as precluding review of constitutional claims or questions of law raised upon a petition for review filed with an appropriate court of appeals" in accordance with § 1252. Thus, in spite of IIRIRA's jurisdiction-stripping provisions, there is still room for judicial review of constitutional claims and questions of law. ¹²

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Review for Arbitrary and Capricious Decisions

It is well established that a court cannot substitute its policy judgment for that of the agency; where an agency has discretion under a statute, the court must defer to the agency's decision regarding the best policy. ¹³ However, what is important for our purposes here is that the manner in which the agency exercises its discretion is reviewable as a question of law. Decisions made by federal agencies are generally reviewable under the Administrative Procedure Act (APA), which "sets forth the procedures by which federal agencies are accountable to the public and their actions subject to review by the courts." ¹⁴ The APA requires agencies to engage in "reasoned decisionmaking." ¹⁵ Agency actions that are "arbitrary" or "capricious" are to be "held unlawful and set aside." ¹⁶ In this context, the court is required to assess whether, when the agency adopts a policy, its decision was "based on a consideration of the relevant factors and whether there has been a clear error of judgment." ¹⁷

Immigration policies adopted through executive action (that is, by notice-and-comment rulemaking or by executive memorandum or guidelines, not in the context of removal proceeding adjudication) are generally not subject to the jurisdiction-stripping provisions in § 1252. ¹⁸ Section 1252(a)(2)(B) in particular does not preclude challenges to the agency's regulations, orders, or directives adopting policies. Subsection (a)(2)(B)(i) applies to the adjudication of applications for certain types of benefits, not to agency action adopting general policies. And although subsection (a)(2)(B)(ii) is potentially relevant in that it bars review of "any other [discretionary] decision," it precludes review only if the authority for such decisions is specified by statute to be in the discretion of the agency, which is normally not the case for immigration policies adopted through executive action outside of removal proceedings. ¹⁹ Thus, challenges to agency decisions adopting policies outside the removal context are filed in the district court and are generally subject to review under the APA's "arbitrary and capricious" standard. ²⁰

Immigration policies adopted through adjudication by the BIA are subject to different considerations. Judicial review of those decisions is more complicated because the jurisdiction-stripping provisions in § 1252 apply. Nevertheless, important aspects of the BIA's decisions are reviewable under an "arbitrary and capricious" standard similar to that under APA § 706(2)(A). ²¹

Consider, for example, the case of Patel v. Garland. ²² Patel's application for adjustment of status was denied by an immigration judge based on a finding that Patel had made a false claim to U.S. citizenship and therefore was ineligible under 8 U.S.C. § 1182(a)(6)(C)(ii). In adjudicating the application, the immigration judge was called on to do a variety of things, including the following:

1. decide whether an immigrant visa was immediately available for Patel,

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2. decide how § 1182(a)(6)(C)(ii) should be interpreted, ²³
3. determine the relevant findings of fact,
4. apply the interpretation of § 1182(a)(6)(C)(ii) to the findings of fact to determine whether Patel was inadmissible for having made a false claim to U.S. citizenship,
5. determine whether there is a waiver available of the ground of inadmissibility, and
6. finally (assuming eligibility for adjustment of status), decide whether the application should be granted as a matter of discretion.

Section 1252(a)(2)(B)(i) clearly prohibits judicial review of the ultimate decision whether to approve adjustment of status as a matter of discretion. It says that no court has jurisdiction to review any judgment regarding the granting of an application for adjustment of status. In Patel, the Supreme Court held further that § 1252(a)(2)(B)(i) prohibits federal court review of the agency's findings of fact. ²⁴ But importantly, the Court also noted that § 1252(a)(2)(D) restores review of constitutional claims and questions of law. ²⁵ This includes review to ensure that procedural requirements have been complied with ²⁶ and review to ensure that discretion is exercised in a lawful manner. ²⁷ Moreover, just recently the Supreme Court held that courts have jurisdiction to review the agency's application of law to facts (called "mixed questions"). ²⁸

For purposes of this article, we will focus on the second item of the list above: the proper interpretation of the...