Jill Family on reforming immigration adjudication through notice and comment

In An Invisible Border Wall and the Dangers of Internal Agency Control, Jill Family explores the Trump policies that created barriers to legal migration, arguing that it represents a collapse of internal administrative law allowed for unchecked executive branch power.  She calls for courts to provide a check on agency behavior and makes these suggestions in a Yale JREG blog. 

To strengthen internal administrative law, the Biden administration should adopt guiding principles for USCIS adjudication through a notice and comment regulation.  Here are suggested guiding principles for USCIS:

• USCIS’s adjudicatory standards, procedures, and interpretations of law should be formulated and applied to promote values of clarity, predictability, timeliness, fidelity to existing law, and equal treatment.
• USCIS’s adjudicatory standards, procedures, and interpretations of law should be formulated with an eye to increase the protection of human rights.
• USCIS’s exercises of discretion should promote clarity, predictability, equal treatment, and human rights.
• The formulation of USCIS policies should be open and transparent, with clear policy rationales adopted.
• USCIS insists on fidelity to its statutory mission and competence in its operations.

Formalizing these principles through notice and comment rulemaking will not guarantee that USCIS would resist the impulses of a future president insistent on ignoring rule of law values.  Such a regulation, however, would stand as an additional line of defense and would help to illuminate the intentions of a future president who wishes to operate in contradiction to these principles.  

MHC