Whoever has the Power, Remember the Procedure, by Jill Family

by Guest Blogger — Monday, Mar. 14, 2016

Procedural fairness is not a policy priority in immigration law.

Yes, the Supreme Court will hear oral argument soon in Texas v. United States, a case that raises questions about whether the Department of Homeland Security used appropriate procedures in formulating a prosecutorial discretion plan. In that case, some states are challenging the policy, arguing that the Administrative Procedure Act (APA) required more procedures (i.e. notice and comment rulemaking). Those states are pursuing more procedures not as a method to expand the rights of foreign nationals, but rather as a litigation strategy to block a policy that would permit immigration officials to grant prosecutorial discretion to certain parents of US citizen children. I havetestified before the US Senate that President Obama’s Deferred Action for the Parents of Americans (DAPA) policy meets the minimum requirements of the APA. This post will not revisit that debate. You can read more about it here and here.

Instead, let’s take a step back for a broader look at the procedural choices made both by the executive and by Congress in immigration law. As our understanding of the allocation of immigration law power between Congress and the president deepens, it is important to remember, whoever has the power, that power comes with procedural responsibilities. In two recent articles I explore the nature of executive and congressional procedural choices in immigration law. These articles are not limited to discussing what meets the minimum requirements of the APA or the Constitution. Rather, the goal is to get a better sense of what procedures are used and how those procedures are faring.

DAPA is just one example of a presidential exercise of power over immigration law. The entire executive engages a variety of procedures to enforce immigration law. At times these are procedures delegated to the executive, but at times they are procedural frameworks the executive created. The executive branch makes choices about which procedures it will use to implement immigration law.

In “The Executive Power of Process in Immigration Law,” I explore the executive branch’s choices when it comes to establishing procedural frameworks. These choices surround how a particular adjudication will take place. Will reasoning for a result be given? Will there be a hearing? If so, what kind? How will the executive explain the adjudication rules to the foreign national? By looking at procedural choices across the array of federal agencies who implement immigration law (Department of Homeland Security, Department of Justice, Department of State, and Department of Labor), the paper highlights three themes: (1) the structure of immigration law decision-making is complex; (2) the use of guidance documents is a popular procedural choice; and (3) minimal process is a prominent feature.

Congress also has power over immigration law procedure; it has power through the Immigration and Nationality Act and because it controls the amount of money appropriated to executive agencies to carry out adjudications. Congressional failure to insist on and to fund a robust system to adjudicate immigration removal (deportation) cases is a strong signal that fairness in immigration adjudication cases is not a policy priority for Congress.

In “The Procedural Fortress of US Immigration Law,” I discuss how the removal adjudication system has itself become a procedural barrier for foreign nationals. The system is an obstruction and it does not facilitate fair process. The conclusion that the process is dysfunctional is not controversial; it is hard to find anyone willing to praise it. Even the head of the immigration courts has called for anoverhaul of the “broken” system.

The failure to fix the immigration courts is the real controversy. Despite a multitude of calls for reform and despite the proliferation of suggestions for reform, nothing changes. There are almost 475,000cases awaiting adjudication in the immigration courts and the average wait for a hearing in immigration court is 667 days. There is still no right to government-funded counsel in immigration court. Instead, in litigation there is testimony asserting that a three year old can defend herself in immigration court.

Why does procedure matter if the respondents are not US citizens? I trace much of the apathy surrounding providing meaningful procedure to foreign nationals to a hopefully waning (but maybenot) view of national sovereignty that leaves little room for procedural protections for individuals. Calls for fewer protections usually are couched in the terms of delay; that procedural protections only delay removal. Well, some measure of delay is inherent in providing procedural protections. And too much delay can be a problem. Right now, for example, the immigration courts have too much delay without much procedure to show for it. But we should remember that while efficiency is a legitimate goal, there are other adjudication goals, like accuracy and acceptability.

Procedural power, whether flexed by the president or Congress, means a lot to individual foreign nationals making their way through the immigration bureaucracy. It also should mean a lot to the rest of us, if we believe that fairness is an essential guiding procedural moral. The status quo reflects that immigration law has lost its procedural way, or perhaps has never found it. So I ask Congress and the president, whoever has the power, to remember the procedure.

* Jill E. Family is Professor of Law and Director of the Law and Government Institute at Widener University Commonwealth Law School.

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