The Non-Adversarial Fiction of Immigration Adjudication

Abstract

Amid the Trump administration’s crackdown on immigration, policies aimed at constructing an “invisible wall” in the legal immigration system have been overshadowed by atrocities at the border. Immigration agencies have quietly and effectively created barriers to lawful immigration. Significantly, increased enforcement policies and an emphasis on securing the homeland within the United States Citizenship and Immigration Services (USCIS), the agency charged with administering the legal immigration process, have fortified a pipeline from applications for immigration benefits to deportation proceedings.

This Article is the first to analyze a model of adjudicating immigration benefits requiring individuals to appear before a USCIS decision-maker. In so doing, it makes an important contribution in bridging immigration and administrative law scholarship through analyzing the often overlooked, high-volume immigration agency’s adjudication model through an administrative lens. Recently, the Administrative Conference of the United States adopted a new approach to categorizing informal agency adjudications that do not come within the ambit of the Administrative Procedures Act’s formal hearing requirement. In articulating this new framework, it indicated that analyzing the amorphous informal hearing category, that encompasses USCIS proceedings, is difficult to assess as a group. Therefore, case studies are necessary to glean insight into what can otherwise be an elusive procedural black hole in the study of agency adjudication.

This Article provides such a case study by utilizing agency adjudication theories concerning procedural protection as a framework to analyze existing safeguards for private parties in immigration benefits cases. In so doing, it exposes weaknesses within the current model that have been amplified by recent anti-immigration policies. As this Article demonstrates, strengthening procedural safeguards would bolster the system’s integrity and perception of fairness, while bringing procedures in line with the current realities.

Keywords: immigration law, agency adjudication, administrative law, immigration benefits, immigration enforcement