Article
Immigration Law Exceptionalism and the Administrative Procedure Act
Public Affairs Quarterly (forthcoming)
(2022)
Abstract
Immigration law is exceptional enough to deserve an administrative law focus of its own. This is a debatable proposition because Congress weaved exceptionality into the design of the Administrative Procedure Act (APA). While the APA does promote uniformity, it also incorporates plenty of give. Congress allowed itself generous opportunities to exempt areas of agency activity from the APA’s procedures. If the APA does not demand uniformity in adjudication, it seems counterintuitive to argue that any one area of administrative adjudication is exceptional. This paper argues that immigration law is indeed exceptional in administrative adjudication. Removal adjudication is abnormal because: (1) Congress’ parallel scheme for immigration adjudication has resulted in an extremely dysfunctional system; (2) it operates in a double void, with fewer constitutional protections and without the protections of the APA; (3) it relies on a vast network of civil detention; and (4) it is of a different genre than the type of regulation that drove the development of the APA. The exceptionality of immigration adjudication demands a review of administrative law doctrine with this exceptionality in mind.
Keywords
- immigration,
- APA,
- Administrative Procedure Act,
- administrative law,
- administrative adjudication,
- deportation
Disciplines
Publication Date
2022
Citation Information
Jill E. Family. "Immigration Law Exceptionalism and the Administrative Procedure Act" Public Affairs Quarterly (forthcoming) (2022) Available at: http://works.bepress.com/jill_family/40/