Delineating Discretion: How Judulang Limits Executive Immigration Policy-Making Authority and Opens Channels for Future Challenges

Abstract:     
I argue that Judulang v. Holder moved beyond prior doctrine by demonstrating that courts could subject immigration policies to a rigorous “arbitrary and capricious” review under the Administrative Procedure Act (APA) and Chevron analysis, even where those policies did not conflict with, or depart from, existing laws, regulations, or policies. In other words, it applied a thicker standard of review than ever before, meaningfully evaluating the merits of an agency’s policy against an independent “arbitrary and capricious” metric, rather than simply asking whether the policy’s formation abided by proper process, did not conflict with controlling law, or met some inescapably low threshold. In exposing the merits of a Board of Immigration Appeals policy to “arbitrary and capricious” attack, Judulang pushed back against a (perceived) history of special deference to the executive branch on immigration matters, and thus supports a reading of the executive’s role in immigration law as no — or, at least, not significantly — different from its role in ordinary domestic jurisprudence. I conclude that Court’s use of the APA (or, alternatively, Chevron) to substantively circumscribe executive policy-making discretion gives rise to a number of potential challenges to other BIA policies and decisions that may prove vulnerable to Judulang’s coin-flipping litmus. I review and evaluate two of them.

Number of Pages in PDF File: 52

Keywords: Administrative Procedure Act, immigration, Judulang, executive, deference, arbitrary and capricious review, administrative removal, cancellation

Accepted Paper Series