Law Commons^™

Overstepping: U.S. Immigration Judges And The Power To Develop The Record, Jayanth K. Krishnan

Articles by Maurer Faculty

In 1952, Congress established a new federal position to be filled by “special inquiry officers” charged with overseeing deportation cases. These immigration judges—as they eventually came to be called—were assigned to work within the executive branch, namely, the Department of Justice, and they were to be answerable ultimately to a political appointee, the attorney general. Importantly, they received specific statutory authority allowing them to “develop the record” during an immigration case. This power enabled immigration judges to assemble evidence and call, “interrogate, examine, and cross‑examine . . . any witnesses.”

Given that many immigrants who appear in immigration court do …

Facts Versus Discretion: The Debate Over Immigration Adjudication, Jayanth K. Krishnan

Articles by Maurer Faculty

Justice Amy Coney Barrett recently issued her first majority-led immigration 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 immigration forums fall under the Department of Justice. Prior to Patel, immigrants 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 …

Judicial Power—Immigration-Style, Jayanth K. Krishnan

Articles by Maurer Faculty

Throughout this current global pandemic, but of course, even before, former President Trump advocated enacting restrictive immigration measures. Under his tenure, the Department of Homeland Security (DHS) assumed enhanced judicial authority and issued decisions that often adversely affected noncitizens. However, in June 2020, the U.S. Supreme Court struck down one of the DHS's most well-known initiatives, which sought to end the 'DACA' program. The Court held that the agency could not do so arbitrarily and had to comply with the requirements set forth in the Administrative Procedure Act.

Yet, there have been other areas where the DHS, particularly through its …