You Can’t Get There from Here: Managing Judicial Review of Immigration Cases
42 Pages Posted: 21 May 2011
Date Written: June 12, 2007
This paper argues that Congress and policy analysts must stop hunting for the magical alchemy that can transform immigration law enforcement into a perfect or “golden” system. Rather, we must turn our energies to developing a better understanding of the fundamental elements that combine or divide and shape the existing process before we can successfully design a better system. I add my voice to a growing body of administrative law scholars urging a more robust examination of the complex operation of systems before Congress or the agencies endeavor to solve problems of design and administration.
This paper is being written as Congress once again embarks on its search for the process and techniques that will result in clearer and more efficient enforcement of our immigration laws. While there are many different immigration policy initiatives in Congress, in this paper I will focus on the narrow example of judicial review of administrative immigration orders. Congress has once again considered restricting or re-channeling judicial review of immigration orders as an essential part of successful immigration law enforcement. I describe some of the current legislative proposals below. Knowing the history of judicial review of immigration orders and having read the transcripts of recent Congressional hearings, I have concluded that the statutory approaches reflect a search for a miracle “mercury” rather than a scientific approach.
Congress must require greater inquiry and analysis before it designs the process, without this analysis it is likely to implement changes that simply do not achieve the legislative goals. More than just calling for Government Accountability Office (“GAO”) studies or other empirical assessments, I urge these legislators to think about the process in action. What are the dynamics of the judicial review process? What are the forces that work upon the design of the system and change the predicted outcomes or influence the cost and efficiency of the system?
Keywords: immigration reform, immigration law enforcement, immigration law, administrative law
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