Surrounding the Hole in the Doughnut: Discretion and Deference in U.S. Immigration Law

Abstract

Among the many problems facing u.s.immigration law is a crisis of discretion and judicial deference.Through two recently passed laws, the United States Congress and the President have seriously limited judicial review of discretionary immigration decisions of the Board of Immigration Appeals.This Article focuses on this preclusion of judicial review of discretionary agency decisions.The Article begins with an examination of discretion from a theoretical perspective, and goes on to examine areas of immigration law in which discretion was traditionally most imponant.That examination is followed by a discussion of immigration-law scholarship and critique.The Article concludes that what is needed in U.S. immigration law is greater restraint, and calls on the Judiciary to provide more oversight regarding discretionary agency decisions.I.

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