Beyond Saints and Sinners: Discretion and the Need for New Narratives in the U.S. Immigration System

Abstract

This article examines the forces affecting the exercise of discretion in American immigration courts, and argues that in this present age of immigration anxiety, the same facts that place an individual in deportation proceedings may constitute the reasons a judge will, relying on discretion, deny them relief for which they are otherwise eligible. The article explores the polarized narratives told about “good” and ”bad” immigrants, the exceptionally difficult task of adjudicating in overburdened immigration courts, and the ways in which these polarized narratives interact with psychological short-cuts, or heuristics, that affect judicial exercises of discretion. After engaging in this analysis, the article concludes that awareness of the force of broader societal narratives in immigration court can equip lawyers with tools to understand what might drive a judge’s use of discretion, help them tell the most effective narrative possible for their clients, and be aware of the opportunities - and need - to broaden the narrative space outside the courtroom in ways that can positively shape the cases of their clients of tomorrow.

Keywords: Immigration, Judges, Discretion, Narrative