A Lack of Uniformity, Compounded, in Immigration Law
A LACK OF UNIFORMITY, COMPOUNDED, IN IMMIGRATION LAW
Jill E. Family*
The Administrative Procedure Act (APA) 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 category 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.
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,11the 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.
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©2023 Jill E. Family. Individuals and nonprofit institutions may reproduce and distribute copies of this Article in any format at or below cost, for educational purposes, so long as each copy identifies the author, provides a citation to the Notre Dame Law Review, and includes this provision in the copyright notice.
*Professor of Law and Faculty Advisor, Law and Government Institute, Widener Law Commonwealth. Thank you to the Notre Dame Law Review for the invitation to participate in its Symposium, “History of the Administrative Procedure Act and Judicial Review.” I especially appreciate the efforts of Nicholas D’Andrea, Joseph Graziano, Courtney Klaus, Jensen Rehn, and Professor Emily Bremer in executing a wonderful Symposium. I thank all the Symposium participants for their insights and interest in my contribution.
1Emily S. Bremer, The Rediscovered Stages of Agency Adjudication, 99 Wash. U. L. Rev. 377 (2021) (arguing that informal and formal adjudication were intended to be stages of adjudication rather than modes).
25 U.S.C. §§ 554, 556, 557 (2018).
35 U.S.C. § 555 (2018); see also Emily S. Bremer, The Exceptionalism Norm in Administrative Adjudication, 2019 Wis. L. Rev. 1351, 1382, 1401.
4See Michael Asimow, Admin. Conf. of the U.S., Federal Administrative Adjudication Outside the Administrative Procedure Act 4 (2019). Professor Asimow comprehensively categorized the agency adjudication that takes place pursuant to bespoke direction outside of the APA. His study reveals that removal adjudication is not unique in that its direction does not come from the APA. Under Professor Asimow’s categorization, removal hearings in immigration court belong to a category of agency adjudication he labels “Type B.” Id. at 15–21, 151. As immigration court adjudication has developed, Congress has given it more formal characteristics, despite that it falls under the APA’s informal adjudication category. Infra subsection II.A.2. This Article argues that even the more formalistic immigration court proceedings that have developed under the INA are not enough for immigration law. Infra Part IV. Neither are the formal adjudication provisions of the APA. Infra Part IV. Also, the more formalistic immigration court proceedings in fact only make up a small minority of removal hearings. Infra Section II.B. Removal adjudication outside of immigration court falls under Professor Asimow’s “Type C” proceedings. Asimow, supra, at 151 n.714.
5Bremer, supra note 3, at 1353–54.
6Id. at 1401.
7See Bremer, supra note 3, at 1353–54.
8See infra subsection II.A.1.
9See infra subsection II.A.2.
10Jill E. Family, Regulated Immigrants: An Administrative Law Failure, 66 How. L.J. (forthcoming 2023).
11William N. Eskridge Jr. & John Ferejohn, The APA as a Super-Statute: Deep Compromise and Judicial Review of Notice-and-Comment Rulemaking 98 Notre Dame L. Rev. 1893, 1894 (2023); Bremer, supra note 3, at 1352, 1357–61.
12See infra subsection II.A.2 and Section III.B.
13See infra subsection II.A.2.
14See infra subsection II.A.2.
15See infra Section II.B.
16See infra Part III.