Judicial Review in Immigration Cases after Aadc: Lessons from Civil Procedure

Abstract

In 1996, Congress substantially revised the statute that governs judicial review of immigration decisions by administrative agencies. This article analyzes the provisions that govern the timing of judicial review, especially Immigration and Nationality Act section 242(b)(9). This provision seems to defer judicial review of all issues until administrative proceedings are over. For example, Eleventh Circuit has held that a noncitizen detained during removal proceedings may not go to court to challenge his detention until after a removal order issues, possibly years later. This article explains why this reading of (b)(9) is wrong. The only sensible reading of (b)(9) is a narrow one that lets courts hear matters before a final removal order, if those matters are significant and independent of a decision to remove a noncitizen from the United States. Detention pending removal proceedings is one example of such a matter.

I also use timing consolidation under (b)(9) to explore four broader themes. First, (b)(9) implicates fundamental choices about how to read jurisdictional statutes in immigration cases. When courts interpret rules for judicial review of immigration and other administrative law decisions, they should rely on the same procedural values that guide courts in interpreting similar rules outside administrative law. With this in mind, I discuss some analogous problems concerning appeals in civil litigation. Second, I analyze the relationship between timing consolidation and multi-party joinder in judicial review of immigration decisions. Rules that delay judicial review or bar multi-party joinder can impair the substantive accuracy of judicial review. Third, I discuss the analytical roles that "exhaustion of administrative remedies" and "adequacy of the administrative record" play in interpreting judicial review statutes in immigration cases. I argue that exhaustion and adequacy play only secondary roles in deciding when immediate judicial review is appropriate. Fourth, I analyze the notion that judicial review must be streamlined to limit opportunities for "dilatory" appeals. What is dilatory depends entirely on our view of the merits, and that view is shaped by jurisdictional rules.

Keywords: Immigration, judicial review, administrative law, civil procedure

JEL Classification: K20, K23, K29, K39, K40, K41