Volume 37
Issue
1
Date
2022

Facts versus Discretion: The Debate over Immigration Adjudication

by Jayanth K. Krishnan

Justice Amy Coney Barrett recently issued her first majority-led immigration 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 immigration forums fall under the Department of Justice. Prior to Patel, immigrants 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 discretionary relief cases. Certain circuits have held that the BIA may intervene  rather aggressively, while the largest circuitthe Ninthhas said that the  BIA should display enhanced deference.  

As this study argues, this circuit split conspicuously ignores how the dividing 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 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 circuits to immigrants seeking relief from deportation.  

Continue reading Facts versus Discretion: The Debate over Immigration Adjudication

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