ILW.COM - the immigration portal Immigration Daily

Home Page


Immigration Daily

Archives

Processing times

Immigration forms

Discussion board

Resources

Blogs

Twitter feed

Immigrant Nation

Attorney2Attorney

CLE Workshops

Immigration books

Advertise on ILW

VIP Network

EB-5

移民日报

About ILW.COM

Connect to us

Make us Homepage

Questions/Comments


SUBSCRIBE

Immigration Daily


Chinese Immig. Daily




The leading
immigration law
publisher - over
50000 pages of
free information!
Copyright
© 1995-
ILW.COM,
American
Immigration LLC.

View RSS Feed

Lory D. Rosenberg on Appeal Matters

Restricting Judicial Review Would Undermine CIR

Rate this Entry

Judical review
is an essential component of a fair and reasonable system of agency
adjudication,and no more is this true than in the context of the proposed
comprehensive immigration reform provisions that would afford lawful status to
the some 11 million undocumented students, family members, relatives, neighbors,
employees, employers, armed forces personnel, and other members of the U.S.
community.


The
judicial review provisions in S.744 include a mechanism for review of
individual denials in district court or the court of appeals under the
Administrative Procedures Act ("APA") standards.   In addition,
the bill provides for full review of pattern and practice violations and class
action litigation in the district court, a mechanism that proved to be quite
important in guaranteeing the legalization rights were observed and honored
under the Immigration Reform and Control Act (IRCA, 1986).  


What
is Grassley 17
?


The
Grassley 17 amendment is a misguided effort on the Senator's part to curtail
and deny access to such judicial review for individual beneficiaries of the
provisions of S. 744, as well as to eliminate the possibility of review of
practices that have a broader impact on the program overall.


Specifically,
the Grassley 17 amendment would severely restrict review, providing only:


1)
review in the district court in DC and in no other district court, and


2)
review over challenges to the constitutionality of sections of the program and
implementing regulations.


In
short, Grassley 17 would eliminate all judicial review of decisions relating to
RPI and adjustment of status applications, including those relating to
Dreamers, agricultural workers, and the spouses and children of all these
individuals -- other than where the litigation would be brought for the purpose
of challenging the constitutionality of the statute or the regulations.  


Why Is Judicial Review Necessary?



Judicial review is critical to any fair and reasoned implementation and enforcement of statutory provisions.  In the case of the new provisions included in S.744,  the RPI, Dream, and AgJobs classifications require the agency to assess applications and evaluate eligibility using new terms and new standards.   In implementaing new programs such as these, oversights, miswunderstandings and, let's be frank, mistakes are inevitable. 


According to Grassley 17, if adopted, there will be no way to address an executive branch regulation, policy or practice that
erroneously denies thousands of eligible people legalization. Gutting judicial review from S. 744 means that there would be no way to
correct such errors, even if the regulation, policy or practice was manifestly
inconsistent with the terms of the legalization provisions created by Congress.  Without judicial review, Congress's intent could be thwarted.   


It is never wise allow an agency employee unfettered adjudicative authority to render a decision that can have such a drastic effect on the future of any individual, let alone 11 million.   Gutting judicial review places far too much unchecked power in the hands of a single
agency employee, or at the middle management level.  A single error by a
single agency employee will destroy the once in a life-time opportunity that Congress has
chosen to make available to the individual.  


By restricting judicial review to the DC district court
only, Grassley 17 would be highly unfair to RPI applicants who are unable to
travel to DC.  Undoubtedly, hundreds or thousands would forego judicial review, an outcome that no democratic, fairminded legislator should encourage or desire.  Moreover, as long as the DC District Court says
a provision or regulation is constitutional, an individual can be deported even
if the legalization denial was blatantly wrong under the standards created by
Congress.


This is an untenable proposal by Senator Grassley.   As the ACLU reminds us, In our justice system, it would be unprecedented to bar
judicial review of administrative agencies' decisions involving individual
interests of this magnitude.  Grassley 17 itself would be unconstitutional because it wouldn't provide review over
non-constitutional legal claims or even non-systemic constitutional claims, as
required by US v. St Cyr and other Supreme Court cases.


Stay tuned for more discussion on the judicial review provisions in S.744, right here, where appeal matters.


 


* Appreciation to the ACLU for their analysis and comments in opposition to the Grassley 17.


 

Submit "Restricting Judicial Review Would Undermine CIR" to Facebook Submit "Restricting Judicial Review Would Undermine CIR" to Twitter Submit "Restricting Judicial Review Would Undermine CIR" to Google Submit "Restricting Judicial Review Would Undermine CIR" to StumbleUpon Submit "Restricting Judicial Review Would Undermine CIR" to Reddit Submit "Restricting Judicial Review Would Undermine CIR" to Digg Submit "Restricting Judicial Review Would Undermine CIR" to del.icio.us

Tags: None Add / Edit Tags

Comments

Put Free Immigration Law Headlines On Your Website

Immigration Daily: the news source for legal professionals. Free! Join 35000+ readers Enter your email address here: