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

Abstract:     
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.

Number of Pages in PDF File: 55

Keywords: Immigration, administrative law, administrative adjudication, adjudication, immigration reform, immigration adjudication, adjudication reform

Accepted Paper Series