The need for consistency, fairness and predictability in administrative rule making and decision making is imperative and desired by foreign nationals, employers, immigration practitioners and adjudicators alike. Although agencies – none more so than those that deal with immigration issues – operate within a political forum rife with tension, competing interests and high stakes, the Supreme Court’s recent decision in Judulang v. Holder reminds us that fair and consistent rule making and decision making cannot be sacrificed. As Justice Kagan pointedly wrote in her unanimous opinion, “When an administrative agency sets policy, it must provide a reasoned explanation for its action. That is not a high bar, but it is an unwavering one.”
There is a long history of inconsistency and irrationality in the immigration field as a whole: agency policies that deviate from established standards and represent inappropriate rule making; arbitrary tests that disregard the plain language of the Immigration and Nationality Act or its accompanying regulations; and a proliferation of subjective decision making across the spectrum of immigration law. Although Judulang dealt specifically with the removability of foreign nationals and can be narrowly read to pertain only to the removal context, such an interpretation does not fully capture what should be viewed as a ripe opportunity for reflection about administrative decision making and policy making within the immigration context as a whole, agency deference, and the need for predictability and fairness in agency action.
For Judulang matters not just to foreign nationals in the removal process but more widely to employers, to foreign nationals to our country’s economic interests, and in the interest of justice. The Court’s rebuke reminds us that above all, administrative decision making and rule making must be fair, reasonable and consistent. Unfortunately, the poor quality of decision making and regulatory interpretation is a recurring problem in immigration law that has had a negative impact on all areas of immigration practice. In recent times, inconsistent adjudication policies have significantly affected several different areas of immigration law, from removal (as focused on in Judulang) to employment-based and family-based practices. Such policies have lent enormous discretionary authority to individual administrative officers and created an unchartable and unpredictable course that participants to the process must continuously navigate.
By way of background, Judulang highlights the way in which inconsistent adjudication and policy making can have serious repercussions in immigration law. When a noncitizen is placed in removal proceedings, he or she receives a charging document called a Notice to Appear that contains allegations, along with a charge(s) of removability specifying the particular subsection of the INA that he or she has violated. However, as Judulang made clear, where multiple charging options exist, a DHS officer’s decision as to which ground of removability to charge can make a significant difference in the relief available, limiting options for relief down the road.
Judulang centered on whether a lawful permanent resident in deportation proceedings could apply for a waiver from deportation, where the law (since repealed) explicitly provided the waiver for individuals charged in exclusion proceedings with inadmissibility. In determining whether the waiver was available as well to deportable individuals, the board utilized an approach, known as the “comparable-grounds approach,” that looked at the basis for deportation: If the legal basis for deportation was “essentially equivalent” to a legal basis for exclusion, the deportable foreign national could apply for a waiver.
In Judulang, the Supreme Court found the board did not rationally limit the scope of the waiver’s availability, stating that the comparable-grounds approach “does not rest on any factors relevant to whether an alien . . . should be deported. It instead distinguishes among aliens . . . solely by comparing the metes and bounds of diverse statutory categories into which an alien falls.” The Court highlighted how “the outcome of the board’s comparable-grounds analysis itself may rest on the happenstance of an immigration official’s charging decision,” where a noncitizen’s crime could fall into several deportation grounds, only some of which correspond to a ground of excludability.
Judulang’s holding can and must be extended beyond rejecting the comparable-grounds approach. The Court rightly rejected the current system’s overreliance on officer discretion in the deportation context. Now, USCIS must “get the message” in regard to business immigration programs. When agency policy – be it one dealing with nonimmigrants, green card applicants, or removable individuals – allows for “everything [to hang] on the fortuity of an individual officer’s decision,” the “rational operation of the immigration laws” becomes a “sport of chance” filled with unpredictability, uncertainty, and inconsistency. That such inconsistent decision making and rule making can lead to uneven results in the business immigration context is especially ironic in light of the current economic climate and the Obama administration’s “Start-up America” initiative. When legitimate foreign business owners, shareholders, and entrepreneurs can be denied visas based upon one adjudicator’s broadly subjective determination, exercised without predictable guidelines, even our national interest can suffer. As our country looks increasingly to foreign investment and entrepreneurship to spur job and economic growth, the Judulang decision serves as a sharp reminder that consistency, fairness and predictability in adjudication of all immigration applications has never been more crucial.
Michael D. Patrick is a Partner at Fragomen, Del Rey, Bernsen & Loewy, LLP, resident in its New York office. He may be contacted via email at firstname.lastname@example.org. Lyndsey Yoshino, an Associate at the firm, and Nancy Morowitz, Counsel at the firm, assisted in the preparation of this column. To learn more about Fragomen, please visit http://www.fragomen.com.