Law Commons^™

Presidential Ideology And Immigrant Detention, Catherine Y. Kim, Amy Semet

Journal Articles

In our nation’s immigration system, a noncitizen charged with deportability may be detained pending the outcome of removal proceedings. These individuals are housed in remote facilities closely resembling prisons, with severe restrictions on access to counsel and contact with family members. Given severe backlogs in the adjudication of removal proceedings, such detention may last months or even years.

Many of the noncitizens initially detained by enforcement officials have the opportunity to request a bond hearing before an administrative adjudicator called an Immigration Judge (IJ). Although these IJs preside over relatively formal on-the-record hearings and are understood to exercise “independent judgement,” …

An Empirical Study Of Political Control Over Immigration Adjudication, Catherine Y. Kim, Amy Semet

Journal Articles

Immigration plays a central role in the Trump Administration’s political agenda. This Article presents the first comprehensive empirical assessment of the extent to which immigration judges (IJs), the administrative officials charged with adjudicating whether a given noncitizen will be deported from the United States, may be influenced by the presidential administration’s political preferences.

We constructed an original dataset of over 830,000 removal proceedings decided between January 2001 and June 2019 after individual merits hearings. First, we found that every presidential administration—not just the current one—disproportionately appointed IJs with backgrounds in the former Immigration and Naturalization Service, the Department of Homeland …

Darkside Discretion In Immigration Cases, Shoba Wadhia

Journal Articles

"Darkside Discretion" refers to a situation where the noncitizen satisfies the statutory criteria set by Congress to be eligible for remedy but is denied by an adjudicator in the exercise of discretion. Imagine a woman who arrived in the United States six months ago who meets her burden of proving she is a refugee based on a fear of persecution by the government in her home country because of her religious beliefs, but who is denied asylum for discretionary reasons. This kind of decision exposes the "darkside" of discretion because it reflects how the government uses the tool of discretion …

The Case Against Chevron Deference In Immigration Adjudication, Shoba Wadhia, Christopher Walker

Journal Articles

The Duke Law Journal’s fifty-first annual administrative law symposium examines the future of Chevron deference—the command that a reviewing court defer to an agency’s reasonable interpretation of an ambiguous statute the agency administers. In the lead article, Professors Kristin Hickman and Aaron Nielson argue that the Supreme Court should narrow Chevron’s domain to exclude interpretations made via administrative adjudication. Building on their framing, this Article presents an in-depth case study of immigration adjudication and argues that this case against Chevron has perhaps its greatest force when it comes to immigration. That is because much of Chevron’s theory for congressional delegation …