Darkside Discretion in Immigration Cases
72 Admin. L. Rev. 367 (2020).
49 Pages Posted: 27 Feb 2020 Last revised: 2 Oct 2020
Date Written: June 28, 2020
“Darkside Discretion” refers to a situation where the noncitizen satisfies the statutory criteria set by Congress to be eligible for remedy but in the end, the adjudicator invokes discretion as the reason the noncitizen loses, resulting in tangible harms. Imagine a woman who arrived in the United States six months ago who meets her burden of proving she is a refugee based on a fear of persecution in the form of severe physical harm or torture by the government in her home country because of her religious beliefs which are different from the dominant religion, but who is denied asylum for discretionary reasons. Another example might include a father of U.S. citizen children who has lived in the United States for more than a decade and who provides for his children financially and emotionally and meets the statutory requirements but who is denied relief for undefined discretionary reasons. A final example might include a spouse of a U.S. citizen who is present in the United States and eligible for a green card based on their marriage and has proven that she is admissible to the United States, but is denied status with no reason in the exercise of discretion. These outcomes expose the “darkside” of discretion because the government uses the tool of discretion negatively even in the face of a robust statute and subsequent harms. Some of the remedies examined in this Article include asylum, “adjustment of status,” “extreme hardship” waivers, and waiver under the “travel” ban. This Article is the first to examine a cross section of discretionary decisions across federal agencies under a single normative framework.
This Article argues that discretion in immigration cases should center on humanitarian concerns and be informed by compassion. How discretion is used matters, and functions best when exercised favorably toward the noncitizen. Further, in cases where Congress has already listed statutory requirements for immigration benefits or relief, it is generally unsuitable for agencies to issue a discretionary denial because they undermine the statutory language and legislative purpose for these remedies. Darkside Discretion also causes broader harms by fostering arbitrary decisionmaking and eliminating commonsense from immigration adjudication. This Article is the first to consider broad solutions for responding to Darkside Discretion. One solution is to eliminate the discretionary component in statutory remedies that already include statutory requirements. A second solution is for Congress to create a rebuttable presumption in favor of noncitizens. A final but less optimal solution is for agencies to adopt a clearer standard for discretion. This Article shows how eliminating or transforming the discretionary standard in immigration cases will lead to the reduction of haphazard outcomes by federal agencies, adherence to administrative law values and greater opportunity for federal court review when cases are denied.
Keywords: immigration, discretion, asylum, adjustment of status, waivers
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