The roller coaster ride of immigration law stare decisis

Arguably, stare decisis in the immigration law context is the most susceptible to frequent and fundamental changes as compared to other areas of law. This stare decisis roller coaster results in a disparate and unfair application of the nation's immigration laws.

Our immigration system is often described as "broken." Supreme Court Justice Sonia Sotomayor and other jurists have rightly described our immigration laws as "labyrinthine," Garland v. Aleman Gonzalez, 142 S.Ct. 2057, 2076 (2022), with the 2nd Circuit Court of Appeals further describing them as of "labyrinthine character... a maze of hyper-technical statutes and regulations that engender waste, delay, and confusion for the Government and petitioners alike." Drax v. Reno, 338 F.3d 98, 99 (2d Cir. 2003). The frequent and fundamental changes to immigration law stare decisis add to its complexity and unfair application.

The nation's immigration system is primarily managed by three executive branch departments, 1) the Justice Department, headed by the Attorney General, or AG, which oversees the country's immigration courts and the Board of Immigration Appeals, or BIA, which adjudicate removal/deportation proceedings, 2) the Department of Homeland Security that includes US Citizenship and Immigration Services, which adjudicates immigration benefits applications filed within the US, and 3) the State Department that oversees US embassies and consulates, which adjudicate immigration benefits applications filed abroad.

The primary immigration law of the land is the Immigration and Nationality Act, or INA, codified under Title 8 of the US Code. Interpreting the INA are myriad regulations, binding legal opinions, and agency policies. The hierarchy of binding stare decisis in the immigration law context are, in descending order, 1) Supreme Court opinions, 2) opinions of the US Circuit Courts of Appeals, which are binding in their respective circuits, 3) AG legal opinions, 4) BIA opinions and 5) agency policies.

Given the above-described framework, two non-citizens with identical cases may have completely opposite results depending on where their cases arise. For example, a non-citizen living in Texas, within the 5th Circuit, who entered the country legally, is married to a U.S. citizen, and has a single cocaine possession conviction from 1999, is inadmissible and ineligible for residency due to violating a controlled substance law. 8 USC § 1182(a)(2)(A)(i)(II). However, a non-citizen with the same case facts living in California, within the 9th Circuit, may qualify for residency under the Federal First Offender Act exception, which applies only in the 9th Circuit. This exception requires that the conviction be for simple possession, occurred on or before July 14, 2011, is the non-citizen's first drug conviction, and the individual did not violate probation terms. Nunez-Reyes v. Holder, 646 F.3d 684 (9th Cir. 2011).

Disparate case results more often occur due to frequent changes in binding legal authority depending on who is president. Because the departments that execute the immigration laws are within the executive branch, presidents and their appointees have the authority to change binding administrative opinions and agency policies, which typically track their political party's views on immigration. For example, in Matter of A-R-C-G-, 26 I&N Dec. 388 (BIA 2014), the BIA held that domestic violence suffered in a non-citizen's home country could be a basis for a grant of asylum. In Matter of A-B-, 27 I&N Dec. 316 (A.G. 2018), Attorney General Jeff Sessions, appointed by Republican President Donald J. Trump overruled the BIA and, thus, excluded domestic violence as a basis for asylum. In Matter of A-B-, 28 I&N Dec. 307 (A.G. 2021), Attorney General Merrick Garland, appointed by Democrat President Joe Biden, overruled Sessions, restored the BIA's opinion in Matter of A-R-C-G- and, thus, restored domestic violence as a possible basis for an asylum grant. Consequently, two non-citizens with identical asylum claims based on domestic violence could have opposite outcomes in their cases depending on who sat in the Oval Office when their cases were adjudicated. Incidentally, immigration law practitioners fully expect that Trump 2.0 appointee Attorney General Pam Bondi will overrule Garland and again exclude domestic violence as a basis for asylum.

In another example involving procedural immigration law, in Matter of S-O-G- & F-D-B-, 27 I&N Dec. 462 (A.G. 2018), Sessions held that immigration judges have no authority to terminate removal proceedings to allow non-citizens to apply for visas abroad. Such a scenario would involve, for example, a non-citizen who entered the country illegally and then married a US citizen. Because the non-citizen entered the country illegally, she would need to apply for a spousal visa at a US consulate abroad. However, if the non-citizen is in removal proceedings, said non-citizen cannot exit the US to apply for a visa. In Matter of Coronado Acevedo, 28 I&N Dec. 648 (A.G. 2022), Garland again overruled Sessions, holding that immigration judges can terminate proceedings to allow non-citizens to apply for visas abroad. Thus, whether a non-citizen spouse of a US citizen in removal proceedings was issued a removal/deportation order, or if she was able to obtain a visa abroad, can depend largely on who was president when her case was adjudicated. Incidentally, it is expected that Bondi will overrule Garland's decision in Matter of Coronado Acevedo.

The disparate and frequently-changing binding legal authority and outcomes described above reflect an inherent unfairness in our nation's immigration system. One possible change to resolve that unfairness is the long-called-for creation of an independent immigration judiciary that is not beholden to the executive branch whose leadership, and associated binding legal authority, can change every four years. However, based on currently apparent congressional priorities, such a change is unlikely anytime soon. Thus, immigration law practitioners and their clients will have to continue on the climbs and drops of the immigration law stare decisis roller coaster for the foreseeable future.