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Immigration law relies on rules that bind effectively, but not legally, to adjudicate millions of applications for immigration benefits every year. This article provides a blueprint for immigration law to improve its use of these practically binding rules, often called guidance documents. The agency that adjudicates immigration benefit applications, United States Citizenship and Immigration Services (USCIS), should develop and adopt its own Good Guidance Practices to govern how it uses guidance documents. This article recommends both a mechanism for reform, the Good Guidance Practices, and tackles many complex issues that USCIS will need to address in creating its practices. The …

In a unanimous decision on Monday, the Court held that the Department of Justice’s Board of Immigration Appeals (BIA) reasonably construed a statute to forbid the imputation of a parent’s U.S. residency and immigration status to a child to compute the child’s eligibility for relief from removal (deportation).  The Court reversed the decision of the Ninth Circuit in Holder v. Gutierrez, consolidated with Holder v. Sawyers.

At oral argument on January 18, the Court questioned the attorneys in Holder v. Gutierrez and Holder v. Sawyers about calculating relief from removal.  At issue in these consolidated cases is whether a parent’s immigration status and residency in the United States may be imputed to a minor child to calculate eligibility for relief from removal.  The Board of Immigration Appeals (BIA) said no; the U.S. Court of Appeals for the Ninth Circuit said yes.

Holder v. Gutierrez and Holder v. Sawyers call into question the BIA’s decision to forbid the imputation of a parent’s immigration status and residency in the United States to a minor child for the purpose of calculating eligibility for relief from removal.  Scratching that simple surface reveals a complex history of imputation and relief from removal.

Immigration law does lag behind in the advancement of public law, but not in all respects. While immigration law is idiosyncratic in many ways, this article finds immigration law in the administrative law mainstream when it comes to its troubles with nonlegislative rules (sometimes called guidance documents). There are concerns throughout administrative law that agencies use such rules to bind regulated parties practically, even if not legally, without the procedural protections of notice and comment.

This article analyzes immigration troubles with nonlegislative rules and makes three main contributions. First, it casts new light on the negative effects of guidance documents …