Facts versus discretion: the debate over immigration adjudication

• Author: Jayanth K. Krishnan
• Position: Milt and Judi Stewart Professor of Law and Director of the Stewart Center on the Global Legal Profession, Indiana University-Bloomington Maurer School of Law
• Pages: 1-28

ARTICLES

FACTS VERSUS DISCRETION: THE DEBATE OVER

IMMIGRATION ADJUDICATION

JAYANTH K. KRISHNAN*

ABSTRACT

Justice Amy Coney Barrett recently issued her first majority-led immigra-

tion opinion in Patel v. Garland (2022). As background, some immigrants

looking to avoid deportation may apply 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 im-

migration forums fall under the Department of Justice. Prior to Patel, immi-

grants 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 for such immigration proceedings involving

discretionary relief.

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 the BIA should give to

factual determinations made by immigration courts of first resort in discre-

tionary 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 divid-

ing 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

* Milt and Judi Stewart Professor of Law and Director of the Stewart Center on the Global Legal

Profession, Indiana University-Bloomington Maurer School of Law. The author was also recently

appointed to the Advisory Committee of the American Bar Association’s Presidential Commission on

Immigration. For their thoughtful assistance, advice, and input, the author is grateful to Lara Gose,

SangYeob Kim, Christiana Ochoa, Steve Sanders, Sean Santen, Jeff Stake, Collin Vonderahe, and Tung

Yin. © 2022, Jayanth K. Krishnan.

1

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 article 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 cir-

cuits to immigrants seeking relief from deportation.

TABLE OF CONTENTS

I. INTRODUCTION ..................................... 2

II. ADEYANJU AND THE FIRST CIRCUIT’S APPROACH TO BIA REVIEW. . . . 7

A. Balancing Equities............................. 7

B. Applying the Proper Review Standard . . . . . . . . . . . . . . . 9

III. THE NINTH CIRCUIT’S TAKE . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

IV. ADJUDICATION OF IMMIGRATION DECISIONS – THE AID MODEL . . . . 14

A. Setting the Background: Considering the Various

Discretionary Relief Categories. . . . . . . . . . . . . . . . . . . 14

B. Operationalizing the AID Model......... .......... 16

1. The First Stage ............................ 16

2. The Second Stage .......................... 21

V. CONCLUSION ...................................... 26

I. INTRODUCTION

On May 16, 2022, Justice Amy Coney Barrett issued her first major immi-

gration ruling since being confirmed to the U.S. Supreme Court. In Patel v.

Garland,

1

Justice Barrett was joined by Chief Justice Roberts as well as

Justices Thomas, Alito, and Kavanaugh. Justice Barrett’s opinion dealt with

§242(a)(2)(B)(i) of the main American immigration statute known as the

Immigration and Nationality Act.

2

In short, she wrote that, going forward, an

immigrant who seeks what is called “discretionary relief” from deportation –

and is denied by the Justice Department’s immigration courts – has no right

to appeal to an Article III court to review the facts of that case. As Justice

1. See Patel et. al v. Garland, 142 U.S. 164, 1618 (2022).

2. Id. (codified as 8 U.S.C. §1252(a)(2)(B)(i)).

2 GEORGETOWN IMMIGRATION LAW JOURNAL [Vol. 37:1