A LACK OF UNIFORMITY, COMPOUNDED, IN IMMIGRATION LAW.

• Author: Family, Jill E.

INTRODUCTION 2116 I. THE APA'S NONUNIFORMITY FEATURE IN ADJUDICATION 2118 II. COMPOUNDED NONUNIFORMITY IN IMMICRATION LAW 2121 A. Non-APA Removal Adjudication 2121 1. Congress Removed Removal Adjudication from the APA 2121 2. Removal Adjudication Under the INA 2126 B. Diversions from Removal Adjudication Procedures 2130 III. APA NONUNIFORMITY AND IMMICRATION REMOVAL ADJUDICATION 2135 IV. DOES UNIFORMITY MATTER? 2139 CONCLUSION 2141 INTRODUCTION

The Administrative Procedure Act (APA), as currently interpreted, approaches adjudication with a split personality. (1) If Congress requires an agency to use the APA's formal adjudication procedures, then a robust, standard, and uniform set of procedures applies. (2) If Congress fails to trigger formal adjudication and instead allows an agency to follow the APA's informal adjudication procedures, then a weak gathering of only a few basic features applies. (3) Congress, through statutes separate from the APA, may require more than the APA's informal adjudication procedures by supplying alternative procedures that are different from the APA's formal adjudication requirements. (4)

When Congress veers from formal adjudication, the APA provides only a limited guide because the APA only provides detailed procedures for formal adjudication. (5) Therefore, when Congress creates custom procedures, the only benchmark the APA provides are the formal adjudication requirements. The APA fails to provide a robust norm for informal adjudication. (6) This makes it harder to argue that any agency adjudication system is deviant, at least from a subconstitutional perspective. Because of the disunity in adjudication, Professor Emily Bremer has concluded it is an oversimplification to say that the APA provides uniform standards across the administrative law landscape. (7)

Immigration law provides a major example of the APA's lack of uniformity in adjudication. The APA's formal adjudication requirements do not apply to immigration removal adjudication because Congress has taken advantage of the APA's opt-out feature. Soon after the APA was enacted, Congress made clear that it wanted removal proceedings to follow independent, custom-made procedures. (8) Today, immigration removal procedures still are governed by the Immigration and Nationality Act (INA) and not the APA.' (9)

The exemption of immigration law from the APA is not surprising, given that immigration regulation was not top of mind when Congress created the APA. (10) The APA was a political compromise to end a battle over the expansion of federal agency power tied to the New Deal. The APA was designed to address concerns over economic regulation. The unique concerns presented by the regulation of humans through immigration law were not top of mind.

Immigration removal adjudication reflects the limits of the APA to direct congressional action related to agencies. While the idea of the APA as quasi constitutional and providing at least the influence of standardized procedures is widespread, (11) the experience of removal adjudication suggests otherwise. From soon after the enactment of the APA, the APA has not governed removal adjudication. Instead, Congress has supplied alternative procedures. Removal adjudication has not fared well under the APA's sphere of influence. (12) In fact, the removal adjudication system fails to satisfy basic administrative design process values. (13) No aspect of the APA has forced Congress' hand to fix removal adjudication, nor does the APA provide a clear alternative path for removal adjudication.

Congress has avoided uniformity in removal adjudication in two major ways. First, Congress has avoided the application of any centralized and uniform procedures in removal adjudication because there are not any for informal adjudication and Congress has not triggered the APA's formal adjudication requirements. Instead, it has created bespoke procedures for removal adjudication in the INA. (14) Second, Congress has created diversions from the custom immigration judge procedures it established in the INA as the supposed norm for immigration adjudication. (15) Thus, the INA does not demand uniform procedures either. The reality of immigration removal adjudication is that it mostly takes place before frontline border officers with few procedural protections, rather than before an immigration judge in immigration court (the INA norm) or before an Administrative Law Judge (the APA formal adjudication norm).

This compounded lack of uniformity shows how the APA has failed to provide subconstitutional guardrails in removal adjudication. This is disappointing. The need for centralized administrative law principles is especially strong in immigration law because constitutional protections are often limited. (16) The absence of norms for informal adjudication in the APA hits immigration law hard because there is little to measure Congress' choices against when the Constitution is weak and administrative law principles are minimal. The situation is intensified by the lack of uniformity even under the INA's procedures. If uniformity matters, there is little of it in removal adjudication.

1. THE APA'S NONUNIFORMITY FEATURE IN ADJUDICATION

   The APA contains uniform procedures for formal adjudication, but formal adjudication is rarely required. (17) Formal adjudication has eleven requirements, including a hearing before an Administrative Law Judge who has job protections not afforded to other administrative adjudicators. (18) Formal adjudication is required only if Congress uses precise language that triggers it. (19) Because of this tough trigger, most agency adjudication under the APA is subject only to the APA's informal adjudication procedures. The APA contains only limited requirements for informal adjudication, (20) including the right to be represented by counsel (at private expense), the right to the conclusion of the adjudication within a reasonable time, and the right to prompt notice of a decision with a brief explanation of reasons. (21) That is the extent of the uniform rules for informal adjudication. (22)

   The upshot is that the APA itself does not require much of agencies engaged in adjudication if formal adjudication is not triggered. For adjudication, the lack of APA-based requirements for informal adjudication and the high bar to trigger formal adjudication results in a de facto "exceptionalism norm" in agency adjudication. (23) As Professor Bremer has described, because the APA provides little uniformity for informal adjudication and because so much adjudication is informal adjudication under the APA, adjudication governed by principles from outside the APA is the norm. (24) The APA is not providing central principles. (25) In this context, the APA is not providing uniformity, but rather is promoting variation. This calls into question the mythos of the APA as a standardizing force. (26) Not only is it easy for Congress to avoid the APA's formal adjudication norms, but the APA contains virtually no norms for informal adjudication, which means there is no uniform standard to measure congressional design against. (27)

   The lack of uniformity in adjudication under the APA is the result of political compromise. The APA was enacted in 1946, but that enactment followed legislative efforts that began in the late 1920s and early 1930s. (28) The legislative efforts sought to restrict the growing power of federal agencies. The fight that resulted in the APA has been described as a "pitched political battle for the life of the New Deal." (29) Upset by the New Deal's shift of power to the government to regulate business, advocates pushed for procedural protections. (30) Some advocates saw procedure as a mechanism to control policies that they otherwise could not control. (31) The New Deal was meant to be an engine for social change, and some sought to stop it by gumming up the works of certain administrative agencies. (32)

   President Roosevelt in 1940 vetoed one of those pre-APA legislative reform efforts, the Walter-Logan bill. (33) The Walter-Logan bill would have judicialized agency action by demanding trial-like hearings before agency action. (34) This reform would have severely restricted agency action. After President Roosevelt's veto of the Walter-Logan bill, he tasked the Department of Justice to study federal agencies and to recommend reforms. (35) The Department of Justice ultimately issued a report, but that report did not lead to immediate legislative action due to the onset of World War II. (36)

   After the war, administrative law reform returned to the legislative agenda. Policymakers continued to tussle over how much agency power should be restrained (both by Congress and by court review) and whether all agencies should be subject to uniform principles. (37) The APA emerged as a compromise. For example, notice and comment rulemaking arrived as a concession between those who wanted full hearings for every rulemaking and those who did not. (38) Much of the APA's language is ambiguous due to an inability to reach consensus on every issue, (39) and the fight over its interpretation began almost immediately. (40) The APA was an acceptable compromise; neither side was thrilled. (41) Federal agency power remained strong, but some restrictions were implemented.

   The compromise inherent in the APA is evident in how it deals with questions of uniformity. The APA does provide some uniform principles and procedures, but the APA makes it easy for Congress to abandon the APA's procedures and to promote variation among agencies instead. For adjudication, the APA only provides uniform, detailed procedures for formal adjudication. (42) If Congress does not activate formal adjudication, agencies retain the flexibility to establish their own informal procedures, unless Congress supplies requirements through another statute. (43) This treatment of uniformity was not just the result of political compromise, but also...