Appellate Exceptionalism?

Abstract

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