Both types of administrative immigration adjudication, removal and benefits, are in crisis. This article explores the challenges facing each and argues that both crises are linked to a lack of transparency in immigration law. In the removal context, the lack of transparency is exemplified by the complexity of the law and by the negative discretion infused into the law. In the benefits context, the lack of transparency is exemplified by the use of administrative guidance to adjudicate benefits applications and by the obscurity of the administrative appellate adjudicating body, the Administrative Appeals Office.

This lack of transparency presents big challenges for both removal and benefits adjudication, and once recognized, opens new lines of inquiry. In the removal context, the lack of transparency: (1) must be considered as a contributor to overwhelming caseloads; (2) highlights a lack of decisional independence for immigration adjudicators; (3) must be considered as a factor in the extreme lack of lawyers in the system; and (4) adds to the negative mystique surrounding immigration law. In the benefits context, the use of administrative guidance and the obscurity of the Administrative Appeals Office help to explain the confusion, uncertainty and extreme lack of confidence characteristic of the benefits adjudication system.

The opacity of immigration law presents challenges to both removal and benefits adjudication. This connection suggests that the lack of transparency in immigration law is a broad and deep problem, and that this murkiness must be considered in crafting any reform.

While decisional independence is crucial, it is vital to understand and to emphasize that achieving decisional independence will not fix all of what ails immigration adjudication. Focusing attention away from this one factor reveals five other substantial contributors to the shortcomings of immigration adjudication: substantive immigration law; the conflicting signals of immigration adjudication; the lack of de facto independence; the use of diversions from the system; and weakened judicial review. If these other contributors are not addressed, any reform likely will produce disappointing results.

By uncovering and analyzing this diversion phenomenon, this article exposes an important piece of the immigration adjudication problem that has been largely undiagnosed. While judges, scholars, government officials and practitioners have acknowledged serious problems within the civil immigration adjudication system, this article widens the view to incorporate the issue of whether too many are being sidetracked from the system altogether.

This article concludes that too many are being rerouted from the civil immigration adjudication system because some of the identified diversions are not true to the administrative process design criteria of efficiency, accuracy and acceptability. The government should reevaluate its efforts to steer foreign nationals away from civil immigration adjudication under the four guiding principles proposed here: (1) not all diversions are bad; (2) government coercion, misinformation or a lack of information should play no role in the diversion process; (3) no-option waivers should not be implemented and (4) open-ended, prospective waivers also should not be used.