A Lack of Uniformity, Compounded, in Immigration Law

24 Pages Posted: 1 Feb 2023 Last revised: 13 Mar 2023

See all articles by Jill E. Family

Jill E. Family

Widener University - Commonwealth Law School

Date Written: January 31, 2023


The Administrative Procedure Act is known for bringing standardization to federal agency behavior. The APA’s framework for adjudication, however, is lax and incomplete. It provides standards, but only meaningfully for formal adjudication, and Congress rarely requires agencies to follow the APA’s formal adjudication procedures. The APA, therefore, expressly allows for nonuniform adjudication in that it requires little of the informal adjudication that makes up the lion’s share of agency adjudication.

This lack of uniformity in adjudication is prominent in immigration law. When federal agencies adjudicate whether to remove (deport) an individual from the United States, those agencies act pursuant to the Immigration and Nationality Act (INA) and not the APA. The INA establishes removal adjudication before an immigration judge. The lack of uniformity is compounded in immigration law, however, because most removals are achieved not through the INA’s immigration judge procedures but rather through various diversions from immigration court. These diversions provide fewer procedural protections and deviate from the supposed standard of a hearing before an immigration judge. In practice, there are no centralized, uniform procedures for removal adjudication. The INA theoretically provides a substitute North Star in place of the APA, but in practice the INA’s immigration court procedures only apply to a minority of cases.

This phenomenon in immigration law raises questions about the strength of the APA and the value of uniformity in administrative law. If the APA’s aim was to improve adjudication, it has failed in immigration law. The removal adjudication system is extremely dysfunctional. Removal adjudication does not have the constitutional-like, uniform standards it desperately needs.

Keywords: administrative procedure act, APA, immigration, immigration and nationality act, INA, adjudication, administrative law judge,

JEL Classification: K1, K37

Suggested Citation

Family, Jill E., A Lack of Uniformity, Compounded, in Immigration Law (January 31, 2023). Notre Dame Law Review, Vol. 98, Widener Law Commonwealth Research Paper No. 23-03, Available at SSRN: https://ssrn.com/abstract=4344083

Jill E. Family (Contact Author)

Widener University - Commonwealth Law School ( email )

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717-541-3911 (Phone)

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