Facts versus Discretion: The Debate over Immigration Adjudication

30 Pages Posted: 2 Sep 2022 Last revised: 27 Jan 2023

See all articles by Jayanth K. Krishnan

Jayanth K. Krishnan

Indiana University Maurer School of Law

Date Written: September 1, 2022


Justice Amy Coney Barrett recently issued her first majority-led immigration opinion in Patel v. Garland (2022). As background, immigrants looking to avoid deportation have historically applied for what is called “discretionary relief’ (e.g., asylum or adjustment of status) initially in an immigration court and then, if they lose, at the Board of Immigration Appeals (BIA). These immigration forums fall under the Department of Justice. Prior to Patel, immigrants who lost at the BIA could then ask a federal circuit court to review the factual findings of their case. Now, after Justice Barrett’s decision, Article III review is no longer available.

The decision in Patel serves as an important backdrop for the subject of this study. A related but distinct debate simmers one layer below the federal courts. Namely, the question is how much deference should the BIA give to factual determinations made by immigration courts of first resort in discretionary relief cases. Certain circuits have held that the BIA may intervene rather aggressively, while the largest circuit – the Ninth – has said that the BIA should display enhanced deference.

As this study argues, this circuit split conspicuously ignores how the dividing line between what is fact and what is discretion is often more blurred than discrete. Moreover, there is a gross inequity to this circuit discordance; the way that an immigrant’s appeal is analyzed and adjudicated depends upon the happenstance of the circuit from where that case originated.

For this reason, this study offers a new theoretical framework to improve the status quo. This model’s two-step proposal looks to raise the standard of justice in these immigration proceedings, remove the biases that presently favor the government, and provide greater fairness and equity across the circuits to immigrants seeking relief from deportation.

Keywords: Immigration Law, Immigration Courts, BIA, Agency Deference

Suggested Citation

Krishnan, Jayanth K., Facts versus Discretion: The Debate over Immigration Adjudication (September 1, 2022). Georgetown Immigration Law Journal, 2023 Forthcoming, Indiana Legal Studies Research Paper Forthcoming, Available at SSRN: https://ssrn.com/abstract=4206176 or http://dx.doi.org/10.2139/ssrn.4206176

Jayanth K. Krishnan (Contact Author)

Indiana University Maurer School of Law ( email )

211 S. Indiana Avenue
Bloomington, IN 47405
United States

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