Discretion in Immigration Law
Guest blogger: Sofia Trevisani, Migration Studies Graduate Student, University of San Francisco
In 1998, a man from Bangladesh had a taste of how much discretion a judge has within the U.S. Immigration system. See Matter of A-S-, 21 I&N Dec. 1106 (BIA 1998).
The man was part of a political party called the Jatiyo party. He worked really closely with then Bangladeshi President Mohammed Ershad until 1991, when his party lost general elections to the Bangladesh National Party (BNP). He was afraid that the members of the opposing party would hunt him down and seek retaliation for his work for the Jatiyo party. His fears were justified when in 1993 members of the BNP broke into his house, looking for him. He wasn’t home, so they threatened his parents. Finally, in 1994 the police in Bangladesh issued a warrant for his arrest, falsely alleging that he had committed various political crimes. He then got a fake passport and fled. When he arrived in the United States, he applied for asylum. When this man testified, his dates were off by a couple of days or months, and he tended to hesitate and stare off towards the wall. These are clear signs of trauma, but the immigration judge didn’t see that. The judge denied his asylum case because he didn’t believe the applicant. The man appealed to the Board of Immigration Appeals (BIA), which sided with the immigration judge stating that if the judge doesn’t believe you, then there is not much we can do. This puts the most vulnerable people at a disadvantage. Trauma can cause inconsistencies in stories, such as blocking out particularly awful experiences, for example. This case also leads one to reflect on how this system, the immigration system, claims to be humanitarian, but operates through skepticism and gatekeeping. But most importantly, it is an example of the amount of discretion that judges hold.
TRAC reports website has a great resource to visualize this discretion. They have a Judge-by-Judge Asylum Decisions in Immigration Courts tracker where they list every immigration judge and the percent of cases they approve. The numbers vary greatly. For example, Judge Kevin Riley in the Adelanto Immigration Court denies 95.1% of the asylum cases that go to his desk. Judge Lawrence Burman in Arlington Immigration Court denies only 7.1% of the asylum cases that go before him. These numbers vary so greatly, that immigration advocates find it crucial to research the judge their client is going before, to foresee success or failure.
Importantly, discretion doesn’t only appear at the time the migrant reaches their judge. The immigration law system works with a tremendous amount of discretion, in various different capacities. Even before an individual enters the country, they could be denied without explanation. U.S. Consulates abroad fall under Consular Nonreviewability. This means that one cannot sue the U.S. Consulate for discrimination, there is no jurisdiction that you can get. The only possible remedy could be political, but even then, the Consulate gets the final word. Look at the case of Mayle v Holder, 2015 WL 4193864 (N.D. Cal 2015). In this case, Mayle met a woman through her sister in Lagos, Nigeria. Six months after meeting her on the phone, he went to Lagos and spent four days with her. They decided to get married. When Mayle came back to the U.S., he put in an application for a Visa petition. His application was approved, but the Consul in Lagos denied her visa, claiming that Mayle did not travel to her village. They repeated the process the following year, and she got denied again, now because she failed to convince the consular officer that the relationship was bona fide. After that, Mayle had exceeded the 2-year period necessary for the approval, and the government moved to dismiss the case. When this was brought to court in the U.S., the judge said that this is not a matter of family unity. She says that the consulate has high discretion and consular denials are rarely reviewed, if they have statutory proof, which the consulate provided. Whether that proof is reasonable or not, that is not something the U.S. can bring to the table, due to consular nonreviewability.
Another important case to discuss is Kleindienst v Mandel, 408 U.S. 753 (1972). This is the case of a Marxist professor who was invited to speak at a U.S. university. He was denied for advocating communism. The Attorney General denied a waiver without explanation because they don’t always need one. The citizens who invited the professor sued under First Amendment rights. The Supreme Court here recognized that denying the professor from lecturing at a university within the United States was in fact infringing the First Amendment right of those who invited him, but the professor isn’t protected under the Constitution, so that doesn’t apply. It is important to mention that Congress has plenary power over Immigration. This means that Congress has complete, absolute, and exclusive authority over immigration. In other words, as long as the consular official appears to have come to this conclusion in a bona fide -genuine- way, the Courts will not question it. The Court refused embraced the proposition that "when the Executive exercises immigration authority 'on the basis of a facially legitimate and bona fide reason, the courts will [not] look behind the exercise of that discretion.'"
Discretion shows up in the administration of immigration laws in many different ways. A lot of discretion comes into play when looking at the agencies. For example, there is Executive/agency discretion, which is how immigration officials choose whom to prioritize for enforcement, relief or detention. This impacts outcomes more than rules alone. It is structural and not exceptional. That means that discretion exists at every phase, such as border control, charging decisions, removal, etc.. Prosecutorial discretion is yet another example of the structural nature of this. It refers to the agency’s authority to not enforce immigration laws against certain individuals and groups of their choosing. United States v. Texas, 599 U.S. 670 (2023). It can reduce harm, but it augments arbitrariness and bias. In other words, the high degree of discretion means an individual’s case in immigration hinges less on acceptable evidence than on a judge’s beliefs.
