{"id":1161,"date":"2023-01-21T12:16:41","date_gmt":"2023-01-21T17:16:41","guid":{"rendered":"https:\/\/www.law.georgetown.edu\/immigration-law-journal\/?page_id=1161"},"modified":"2025-05-12T11:10:06","modified_gmt":"2025-05-12T15:10:06","slug":"facts-versus-discretion-the-debate-over-immigration-adjudication","status":"publish","type":"page","link":"https:\/\/www.law.georgetown.edu\/immigration-law-journal\/in-print\/volume-37-issue-1-fall-2022\/facts-versus-discretion-the-debate-over-immigration-adjudication\/","title":{"rendered":"Facts versus Discretion: The Debate over Immigration Adjudication"},"content":{"rendered":"

Justice Amy Coney Barrett recently issued her first majority-led immigration opinion in <\/span>Patel v. Garland <\/span>(2022). As background, some immigrants\u00a0 looking to avoid deportation may apply for what is called <\/span>\u201c<\/span>discretionary\u00a0 relief\u2019 (e.g., asylum or adjustment of status) initially in an immigration court\u00a0 and then, if they lose, at the Board of Immigration Appeals (BIA). These immigration forums fall under the Department of Justice. Prior to <\/span>Patel<\/span>, immigrants who lost at the BIA could then ask a federal circuit court to review the\u00a0 factual findings of their case. Now, after Justice Barrett\u2019s decision, Article III\u00a0 review is no longer available for such immigration proceedings involving discretionary relief.\u00a0\u00a0<\/span><\/p>\n

The decision in <\/span>Patel <\/span>serves as an important backdrop for the subject of\u00a0 this study. A related, but distinct debate simmers one layer below the federal\u00a0 courts. Namely, the question is how much deference the BIA should give to\u00a0 factual determinations made by immigration courts of first resort in discre<\/span>tionary relief cases. Certain circuits have held that the BIA may intervene\u00a0 rather aggressively, while the largest circuit<\/span>\u2014<\/span>the Ninth<\/span>\u2014<\/span>has said that the\u00a0 BIA should display enhanced deference.\u00a0\u00a0<\/span><\/p>\n

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\u00a0 discrete. Moreover, there is a gross inequity to this circuit discordance; the <\/span>way that an immigrant\u2019s appeal is analyzed and adjudicated depends upon the happenstance of the circuit from where that case originated.\u00a0 For this reason, this article offers a new theoretical framework to improve\u00a0 the status quo. This model\u2019s two-step proposal looks to raise the standard of\u00a0 justice in these immigration proceedings, remove the biases that presently\u00a0 favor the government, and provide greater fairness and equity across the circuits to immigrants seeking relief from deportation.\u00a0\u00a0<\/span><\/p>\n

Continue reading Facts versus Discretion: The Debate over Immigration Adjudication<\/strong><\/em><\/a><\/p>\nGT-GILJ220036<\/a>\n","protected":false},"excerpt":{"rendered":"

Justice Amy Coney Barrett recently issued her first majority-led immigration opinion in Patel v. Garland (2022). As background, some immigrants\u00a0 looking to avoid deportation may apply for what is called […]<\/p>\n","protected":false},"author":10435,"featured_media":0,"parent":1155,"menu_order":3,"comment_status":"closed","ping_status":"closed","template":"abstract.php","meta":{"_acf_changed":false,"_price":"","_stock":"","_tribe_ticket_header":"","_tribe_default_ticket_provider":"","_tribe_ticket_capacity":"0","_ticket_start_date":"","_ticket_end_date":"","_tribe_ticket_show_description":"","_tribe_ticket_show_not_going":false,"_tribe_ticket_use_global_stock":"","_tribe_ticket_global_stock_level":"","_global_stock_mode":"","_global_stock_cap":"","_tribe_rsvp_for_event":"","_tribe_ticket_going_count":"","_tribe_ticket_not_going_count":"","_tribe_tickets_list":"[]","_tribe_ticket_has_attendee_info_fields":false,"footnotes":"","_tec_slr_enabled":"","_tec_slr_layout":""},"class_list":["post-1161","page","type-page","status-publish","hentry"],"acf":[],"ticketed":false,"_links":{"self":[{"href":"https:\/\/www.law.georgetown.edu\/immigration-law-journal\/wp-json\/wp\/v2\/pages\/1161","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/www.law.georgetown.edu\/immigration-law-journal\/wp-json\/wp\/v2\/pages"}],"about":[{"href":"https:\/\/www.law.georgetown.edu\/immigration-law-journal\/wp-json\/wp\/v2\/types\/page"}],"author":[{"embeddable":true,"href":"https:\/\/www.law.georgetown.edu\/immigration-law-journal\/wp-json\/wp\/v2\/users\/10435"}],"replies":[{"embeddable":true,"href":"https:\/\/www.law.georgetown.edu\/immigration-law-journal\/wp-json\/wp\/v2\/comments?post=1161"}],"version-history":[{"count":5,"href":"https:\/\/www.law.georgetown.edu\/immigration-law-journal\/wp-json\/wp\/v2\/pages\/1161\/revisions"}],"predecessor-version":[{"id":1187,"href":"https:\/\/www.law.georgetown.edu\/immigration-law-journal\/wp-json\/wp\/v2\/pages\/1161\/revisions\/1187"}],"up":[{"embeddable":true,"href":"https:\/\/www.law.georgetown.edu\/immigration-law-journal\/wp-json\/wp\/v2\/pages\/1155"}],"wp:attachment":[{"href":"https:\/\/www.law.georgetown.edu\/immigration-law-journal\/wp-json\/wp\/v2\/media?parent=1161"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}