A Broader View of the Immigration Adjudication Problem

54 Pages Posted: 16 Jan 2009 Last revised: 23 Jul 2015

See all articles by Jill E. Family

Jill E. Family

Widener University - Commonwealth Law School

Date Written: January 15, 2009


Are too many individuals diverted from civil immigration adjudication? Each year, the government completes millions of diversions from civil immigration adjudication through explicit and implicit waivers, the expedited removal program and the increasing criminalization of immigration law.

By uncovering and analyzing this diversion phenomenon, this article exposes an important piece of the immigration adjudication problem that has been largely undiagnosed. While judges, scholars, government officials and practitioners have acknowledged serious problems within the civil immigration adjudication system, this article widens the view to incorporate the issue of whether too many are being sidetracked from the system altogether.

This article concludes that too many are being rerouted from the civil immigration adjudication system because some of the identified diversions are not true to the administrative process design criteria of efficiency, accuracy and acceptability. The government should reevaluate its efforts to steer foreign nationals away from civil immigration adjudication under the four guiding principles proposed here: (1) not all diversions are bad; (2) government coercion, misinformation or a lack of information should play no role in the diversion process; (3) no-option waivers should not be implemented and (4) open-ended, prospective waivers also should not be used.

Keywords: immigration, judicial review, administrative adjudication, executive power, administrative law, administrative process design, separation of powers

JEL Classification: K1, K33

Suggested Citation

Family, Jill E., A Broader View of the Immigration Adjudication Problem (January 15, 2009). Georgetown Immigration Law Review, Vol. 23, No. 595, 2009, Widener Law School Legal Studies Research Paper No. 09-02, Available at SSRN: https://ssrn.com/abstract=1328495

Jill E. Family (Contact Author)

Widener University - Commonwealth Law School ( email )

3800 Vartan Way
Harrisburg, PA 17110-9380
United States
717-541-3911 (Phone)

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