researching immigration administrative law · bna are often the easiest and most reliable print...

Researching Immigration Administrative Law

Karen Breda Boston College Law Library

Today’s Agenda

Overview of Agency Decisions Administrative and Judicial Review of

Agency Decisions in general and in BIA in particular

Quick review of immigration agencies Researching immigration agency

decisions in print and online

Presenter

Presentation Notes

First two sections of this lecture assume that you know nothing of administrative law & procedure. If you’ve taken ad law or have clerking experience with an agency matter, you can relax for awhile.

Overview of Agency Decisions

Types of Agency Decisions: 1. Advisory Opinions

2. Informal Adjudications

3. Formal Adjudications

Advisory Opinions

Not Binding

Often interpret statutes and regulations on a hypothetical set of facts

Indicate agency’s policies and expectations

Presenter

Presentation Notes

Are usually prepared in response to a question posed by an official, a practitioner, or member of the public

Informal Adjudications

Governed by specific statute or agency’s own regs

Due process applies Discretionary Generally not reviewable by a court Conducted by officials rather than

ALJs

Presenter

Presentation Notes

Eg that we’re all familiar with is consular processing of visa petitions. Authority to adjudicate is vested entirely in the discretion of the consul by statute. No judicial review.

Formal Adjudications

Quasi-Judicial in nature Usually involves written opinion Usually published or made available to

public ALJ, commissioner or board decides Sometimes are precedent (eg. BIA &

AG precedent decisions)

Publication of Agency Decisions

Official publications of agency decisions vary greatly from agency to agency

Commercial legal loose-leaf services, such as Matthew Bender, CCH and BNA are often the easiest and most reliable print source of specific agency decisions

Presenter

Presentation Notes

There is no official reporter for federal agency decisions which encompasses all agencies. Publication is left up to the agencies individually.

Publication of Agency Decisions

Official agency publications are often poorly indexed and are often not current – each agency has own method of indexing

By comparison, unofficial commercial publications are organized for use by practitioners and are usually more current.

Administrative Review of Agency Decisions

Once an ALJ has issued a formal decision, the decision can usually be appealed to a higher entity within the agency.

Parties to an administrative proceedings must exhaust administrative remedies before filing for relief in federal court

Presenter

Presentation Notes

This is both to conserve judicial resources AND to defer to the specialized agency’s expertise and the regulatory process. Eg. IJ decision is appealed to BIA before going to Circuit Court, USCIS asylum officer’s decision is appealed to AAU

Administrative Review of Agency Decisions

Look to Administrative Procedures Act, 5 USC 554 through 559, for administrative review procedures in general

Look to agency’s own regulations for specific administrative review procedures and remedies

Judicial Review of Agency Decisions

The final agency decision can usually be appealed:

-to a federal circuit court if Congress has provided an appeals process

-to a federal district court if no

provision for appeal has been specified

Presenter

Presentation Notes

Recommend Kurzban’s chapter 10 as an outline of which matters are reviewed by District Court and which by Circuit Court.


Judicial cases reviewing agency decisions are reported as usual in the Federal Reporter or Federal Supplement


Common issues are: -constitutionality -agency acted outside of delegated

authority -interpretation of statute or regs -arbitrary or capricious decision or

abuse of discretion

Judicial Review -- Chevron Deference Doctrine

When a statute grants power to an administrative agency and the statute is ambiguous, court must defer to the agency’s interpretation, so long as it is reasonable.

Chevron USA, Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1984)

Presenter

Presentation Notes

You know that, for the most part, Circuit Courts, are higher in the hierarchy of legal authority than agencies. You may have noticed that Circuit Courts, at times, defer to an agency’s decision and may have noticed that agencies sometimes act contrary to known Circuit Court precedent. This is all related to the Chevron Deference Doctrine.

Chevron Deference Doctrine

If Congress expresses its intent in unambiguous language, no deference is due. Chevron, supra.

Chevron deference is only due where Congress

delegated authority to make rules having the force of law and the interpretation was reach pursuant to this delegated authority. U.S. v. Mead Corp., 533 U.S. 218, 226-227 (2001).


Agency interpretations of a statute contained in policy statements and other documents lacking the force of law are not entitled to deference.

Christenson v. Harris County, 529 U.S. 576 (2000)


Where Chevron deference is not due, a court will defer to an agency’s interpretation only to the degree that it is “persuasive”, is thorough, contains valid reasoning, and is consistent with other pronouncements. Skidmore v. Swift and Co., 323 U.S. 134 (1944).

Presenter

Presentation Notes

What Skidmore comes down to is that courts will respect agency decisions as non-binding, persuasive authority unless Chevron deference is due.


A court’s prior interpretation of a statute is binding on an agency only when the statute is unambiguous.

National Cable & Telecommunications Association v. Brand X Internet Services, 545 U.S. 967 (2005).

Brand X

Under some circumstances, agencies may ignore circuit court interpretations of a statute.

But only when the statute is

ambiguous

Brand X

American Immigration Council’s Legal Action Center maintains a list of immigration cases, both in federal courts and in immigration agencies, that apply the Brand X doctrine.

www.legalactioncenter.org/clearinghouse/litigation-issue-pages/brand-x-immigration-cases

Deference in Regulatory Interpretation

Chevron Deference applies to agency interpretations of an ambiguous statute.

Must a court defer to an agency’s interpretation of its own regulation which doesn’t involve a statutory interpretation?

Yes, unless plainly erroneous or inconsistent with the regulation. Auer v. Robbins, 519 U.S. 452 (1997).

Original Jurisdiction in Federal District Court

Federal District Court has original jurisdiction:

Agency is a plaintiff (28 UCS 1345) Mandamus action

Specific statute provides for original

jurisdiction

Judicial Review • To Court of Appeals if statute provides for appeal • To District Court if there is no provision for appeal

Decision by Presiding Officer, Commissioner, or

ALJ

Appeal to higher entity within the Agency:

Exhaustion of Agency Remedies

Original Jurisdiction by District Court • By statute • Agency is plaintiff • Mandamus action

AGENCY ACTIONS

COURT ACTIONS CONTROVERSY

BIA Review of IJ Decisions

Jurisdiction in 8 CFR 1003.1(b)

BIA reviews IJ factual findings under a clearly erroneous standard, 8 CFR 1003.1(d)(3)(i)

BIA reviews legal issues de novo, 8 CFR 1003.1(d)(3)(ii)

BIA Review of IJ Decisions

Procedures are found in 8 CFR 1003 Streamlining (reduce backlog) Deadlines and procedures Rules for re-opening

Judicial Review of BIA Decisions

Petition for review starts the process Statute sets forth jurisdiction, scope of

review, venue, deadlines and procedures. Eg. INA 242

Overview of Federal Immigration Agencies

5 departments share responsibility for immigration regulation:

1. Department of Homeland Security 2. Department of Justice 3. Department of Labor 4. Department of Health & Human Services 5. Department of State

Overview of Immigration Agencies

Homeland Security: Primary authority since end of INS • Citizenship & Immigration Services (including Asylum Adjudication) • Customs & Border Protection • Immigration & Customs Enforcement

Dept of State: Shares visa issuance with USCIS

Dept of Justice: • Runs immigration court system • Handles employment discrimination

Dept of Labor: effect of immigration on workforce

Health & Human Services: • Refugee resettlement and unaccompanied minors • pre-entry health examinations

Outline of Immigration Regulations in CFR

Code of Federal Regulations • Aliens & Nationality Regs, Title 8

Homeland Security, Chapter 1 DOJ Review, Chapter V

• DOJ Regs, Title 28, parts 44, 68 and 0 • Labor Regs, Title 20, parts 655-656; Title 29, parts 500-

501 • DOS Regs, Title 20, pts 40-42; Title 22, pts 7, 50-51, 62-

65 • Health & Human Services Regs, Title 42, pt 34

Immigration Administrative Adjudication

Board of Immigration Appeals: review of individual cases

Office of Chief Immigration Judge: oversees immigration courts

Office of Chief Adm. Hearing Officer: employment disc, sanctions and document fraud

Board of Alien Labor Certification Appeals: alien labor certification and unfair employment practices

Office of Immigration Litigation: coordinates litigation of civil matters in federal court system

Administrative Appeals Unit: Reviews denials of petitions by asylum officers and other USCIS officials

Where to Find the BIA Decisions

Administrative Decisions under Immigration & Nationality Laws (print -official)

Bender’s Immigration Case Reporter (print -unofficial) Hein Online>Federal Agency Documents, Decisions & Appeals

Library>Adm. Dec. under Immigration & Nationality Laws Westlaw: Federal Immigration – Board of Immigration Appeals

(FIM-BIA) Lexis: Immigration Precedent Decisions

Where to Find BIA Decisions

EOIR Virtual Law Library http://www.usdoj.gov/eoir/vll/intdec/lib_indecitnet.html

Where to Find AAU Decisions

AAU precedent decisions are published in print in Administrative Decisions Under Immigration and Nationality Laws and in Bender’s Immigration Case Reporter

Recent AAU decisions available online: USCIS website>Laws>Administrative Decisions

Westlaw: FIM-AAU

Where to Find IJ Decisions

Selected IJ decisions can be found in Interpreter Releases and Bender’s Immigration Case Reporter

Immigration Court websites sometimes have decisions/dockets online

Where to Find OCAHO Decisions

Administrative Decisions Under Employment Sanctions, Unfair Immigration-Related Employment Practices and Civil Penalty Document Fraud Laws of the United States (HeinOnline and in print)

EOIR’s Virtual Law Library>OCAHO Decisions

Bender’s Immigration Case Reporter

Westlaw: FIM-OCAHO

Where to Find BALCA & OALJ Labor Decisions

DOL Office of Administrative Law Judge’s Immigration Collection

http://www.oalj.dol.gov/libina.htm Lexis: BALCA Westlaw: FIM-BALCA

Presenter

Presentation Notes

DOL’s immigration collection is much more extensive than either WL or LN – there’s just more stuff there (ETA, wage & hour and more)

http://www.oalj.dol.gov/libina.htm

Tips for Finding Agency Decisions

Use secondary sources, annotated codes, digests, KeyCite/Sheperd’s and current awareness materials to find names, docket numbers and citations, then retrieve on government websites, HOL, Lexis or Westlaw.

Essential Immigration Treatises: Kurzban’s

Immigration Law Sourcebook, Gordon, Mailman’s Immigration Practice & Procedure, and Martin’s Asylum Law Sourcebook

Tips on Finding Agency Decisions

Immigration statutes, regulations, agency decisions, agency memoranda and government manuals are available on AILALink.org (get password from librarian)

AG, BIA, BALCA, CBP, CDC, DOS, ICE, ORR, USCIS materials and interagency materials on AILALink.org


When full-text searching on Lexis & Westlaw, be sure to select appropriate databases to search (egs. FIM-BIA, FIM-AAU, FIM-OCAHO, FIM-BALCA)


Browse/search government websites for alerts, newsletters and press releases on decisions

Browse government websites for indexes of decisions


Don’t hesitate to try keyword searches of entire government websites – works remarkably well with EOIR’s VLL; not so well with USCIS.gov

-use party names, phrases, terms of art as keywords

Agency Websites

Department of Homeland Security, http://www.dhs.gov • U.S. Citizenship and Immigration

Services, http://www.uscis.gov • Immigration and Customs Enforcement,

http://www.ice.gov • Customs and Border Protection,

http://www.cbp.gov

http://www.dhs.gov/

http://www.uscis.gov/

http://www.ice.gov/

http://www.cbp.gov/

Agency Websites continued

Department of Justice, http://www.doj.gov

• Executive Office for Immigration Review, http://www.doj.gov/eoir Board of Immigration Appeals,

http://www.usdoj.gov/eoir/vll/intdec/lib_indecitnet.html Office of Chief Immigration Judge,

http://www.usdoj.gov/eoir/ocijinfo.htm Office of Chief Administrative Hearings Officer,

http://www.usdoj.gov/eoir/OcahoMain/ocahosibpage.htm

• Office of Special Counsel for Immigration-Related Unfair Employment Practice, http://www.usdoj.gov/crt/osc

• Office of Immigration Litigation, http://www.usdoj.gov/civil/oil

http://www.doj.gov/

http://www.doj.gov/eoir

http://www.usdoj.gov/eoir/vll/intdec/lib_indecitnet.html

http://www.usdoj.gov/eoir/ocijinfo.htm

http://www.usdoj.gov/eoir/OcahoMain/ocahosibpage.htm

http://www.usdoj.gov/crt/osc

http://www.usdoj.gov/civil/oil


Department of Labor, http://dol.gov

• Employment & Training Administration (ETA) http://www.doleta.gov/

• Employment Standards Administration, Wage & Hour Division (WHD)

http://www.dol.gov/esa/whd/

• Board of Alien Labor Certification Appeals (BALCA) http://www.oalj.dol.gov/libina.htm

http://dol.gov/

http://www.doleta.gov/

http://www.dol.gov/esa/whd/

http://www.oalj.dol.gov/libina.htm


Department of Health and Human Services, http://dhhs.gov

• Division of Global Migration and

Quarantine, http://www.cdc.gov/ncidod/dq/

• Office of Refugee Resettlement,

http://www.acf.hhs.gov/programs/orr/

http://dhhs.gov/

http://www.cdc.gov/ncidod/dq/

http://www.acf.hhs.gov/programs/orr/


Department of State, http://state.gov • Bureau of Population, Refugees and Migration,

http://www.state.gov/g/prm/

• Bureau of Educational and Cultural Affairs, http://exchanges.state.gov/

• Bureau of Consular Affairs, http://travel.state.gov/

Index of U.S. Embassies and Consulates Worldwide, http://www.usembassy.gov/

http://state.gov/

http://www.state.gov/g/prm/

http://exchanges.state.gov/

http://travel.state.gov/

http://www.usembassy.gov/