Appellate Exceptionalism?

2020 U. Ill. L. Rev. Online 129 (July 2020) available at

10 Pages Posted: 3 Jun 2020 Last revised: 29 Jul 2020

Date Written: May 5, 2020


Immigration law is “exceptional” in ways that have significant ramifications for immigrants, the government and tribunals. Within the context of immigration law, a hierarchy of courts and administrative bodies exists. Immigrants are able to challenge unfavorable Board of Immigration Appeals (BIA) decisions in the appropriate circuit court of appeals; however, contrary to the binding authority generally bestowed upon decisions issued by higher courts in the federal system, BIA decisions vacated by federal appellate courts are considered to retain their precedential value. This odd practice implicates a variety of concerns: including, e.g., the separation of powers, the horizontal relationship between circuit courts, and the uniformity of national immigration law, among other issues. The practice also provides an implicit rationale for legitimizing blatantly partisan Attorney General decisions. These decision may be poorly reasoned, politically motivated, or lead to absurd results with unintended consequences. This article explores these concerns, identifying proscriptive recommendations. Chevron deference receives particular emphasis as its theoretical underpinnings closely reflect many of the concerns implicated by the judicial deference shown vacated BIA decisions.

Keywords: Appeals, Administrative Law, Immigration, Separation of Powers, Agencies, EOIR, BIA, Federal Courts

Suggested Citation

Sheffy, R. Parker and Hoffman, Geoffrey A., Appellate Exceptionalism? (May 5, 2020). 2020 U. Ill. L. Rev. Online 129 (July 2020) available at, Available at SSRN: or

R. Parker Sheffy

Independent ( email )

Geoffrey A. Hoffman (Contact Author)

University of Houston Law Center ( email )

100 Law Center
Houston, TX 77204
United States

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