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Administrative VS. Judicial Remedial Powers And Relief Options

by Joseph P. Whalen

The U.S. Constitution vests the Legislative Branch with the authority to make the law. The Executive Branch is charged with enforcing the law. The Judicial Branch is left to interpret the laws passed as they are interpreted, applied, and enforced.

Congress frequently passes laws that express an intent and a desire to achieve some tangible outcomes but does not provide a step-by-step blueprint to implement the laws it passes. The Executive Departments and Agencies are then left to find a way to implement the laws passed by Congress. In short, to make it work, make it function, or simply handle it. Therefore, out of necessity agencies must write regulations and/or, other interpretive and instructional materials to work out the nuts and bolts of many primary, secondary, and ancillary matters. The U.S. Supreme Court has begrudgingly acknowledged that the regulations promulgated by the Executive in order to interpret, implement and enforce the laws passed by the Legislature are generally due substantial deference as long as they do not run afoul of the Constitution and/or societal expectations and sensibilities (norms).

The Executive's approach is a much more practical one than that of either of the other Branches of government. The Judiciary is left with heady questions to ponder in evaluating the Constitutionality of the laws passed by Congress and the Executive's regulations, policies, and procedures to give practical effect to those laws. In short, Congress is free to argue about and debate ad nauseum various issues (often compromising on points or their principles), and be vague or overtly political while the Courts are allowed to be thoroughly impractical in search of due process and fundamental fairness. However, both of the other Branches give deference to the Executive's practical utilitarian applications in most instances and in the immigration context especially[1] . This is most likely because the Executive agencies are the ones that must either do it or might simply ignore it. Remember that neither a Judge or Justice, nor a Member of Congress will be the one drudging through the desert apprehending illegal entrants who violate our international borders or detaining and then deporting them.

In addition, it will also usually be a USCIS Officer or Official who will adjudicate naturalization applications or claims to citizenship as well as actually prepare and present a Certificate of Naturalization or Citizenship. In a growing number of naturalizations, USCIS administers the Oath of Renunciation and Allegiance.

It is especially in the naturalization and citizenship cases where USCIS gives great deference to, and fully observes every last word of, the Congressionally-mandated requirements as well as, the Judicially-determined interpretations of them, and a variety of ancillary matters such as burdens and standards of proof as well as evidentiary weight. In effect, USCIS is tightly bound by the letter of the law as written by Congress and the spirit of the law as expressed by the Courts. In addition, USCIS, along with the rest of the Executive Branch, is not in the position to challenge, interpret or even consider the Constitutionality of the laws it administers and enforces. It is because of that last matter being within the authority of the Courts that USCIS, AAO, IJs, and the BIA etc.., are unable to even entertain requests for equitable estoppel or consider arguments relating to res judicata. Those remedies are only within the power of the Courts. The Department of State (DOS) may entertain claims to citizenship and nationality via requests for Consular Reports of Birth and/or passport applications filed at consulates and embassies abroad. DOS is similarly situated as USCIS in regard to remedial authority. Below is an excerpt from a non-precedent case on point issued November 25, 2011, in the Fifth Circuit Court of Appeals.

Jose Dominguez-Gonzalez v. Hillary Clinton, No. 11-50033 Summary Calendar (5th Cir., 11/25/2011)[2] , notes in pertinent part:

"Equitable relief is generally not available with respect to the conferral of citizenship. "[T]he power to make someone a citizen of the United States has not been conferred upon the federal courts, like mandamus or injunction, as one of their generally applicable equitable powers." I.N.S. v. Pangilinan, 486 U.S. 875, 883-84 (1988).

"An alien who seeks political rights as a member of this Nation can rightfully obtain them only upon terms and conditions specified by Congress. Courts are without authority to sanction changes or modifications; their duty is rigidly to enforce the legislative will in respect of a matter so vital to the public welfare." Id. at 884 (quoting United States v. Ginsberg, 243 U.S. 472, 474 (1917)).

"Naturalization is available only as provided by Acts of Congress and, even then, only in strict compliance with the terms of such acts." Bustamante- Barrera v. Gonzales, 447 F.3d 388, 394 (5th Cir. 2006) (internal quotation marks and citations omitted). "[C]ourts cannot employ equitable remedies to confer citizenship where the statutory requirements for citizenship are unsatisfied . . . ." Mustanich v. Mukasey, 518 F.3d 1084, 1089 (9th Cir. 2008).

"[T]he alleged wrongfulness of the Government's conduct does not create an exception to the rule." Id. A plaintiff "has the burden of proving that he qualifies for naturalization, and he must do so in the face of the Supreme Court's mandate that we resolve all doubts in favor of the United States and against those seeking citizenship." Bustamante-Barrera, 447 F.3d at 394-95 (internal quotation marks and citation omitted)." At pp. 3-4

The Courts have devised various tests and frameworks for the exercise of its remedial powers, which although limited, exceed the remedial powers available to the administrative appellate bodies. Such remedies that derive from the Constitution and/or those provisions within the old common law system that have survived since 1789, when Congress was first in session and the Constitution became effective are only available in Courts. There are many forms of relief available from the Executive agencies when such authority has been given to it in a statute as a matter of discretion. In addition, an agency is free to correct its mistakes such as when it enters a decision nunc pro tunc or reverses a decision on administrative appeal or via a motion to reopen and/or reconsider. Administrative agencies do from time to time reverse their own Precedents; or distinguishes them; or may depart, or deviate from them in part, or by exceptions. Executive interpretations continue to evolve along with the laws, or via reinterpretations as it learns new subject matter in the same manner as the Courts continue to evolve its doctrines. In the final analysis, the remedial powers of the Judicial and Administrative Jurists have diverse underlying bases that control not just precisely what remedial power is available, but also just how far it goes.



1See 6 USC 522

About The Author

Joseph P. Whalen is not an attorney. He is a former government employee who is familiar with the INA. His education is in Anthroplogy with a concentration in Archaeology and has both a BA (from SUNY Buffalo) and an MA (from San Francisco State University) in Anthroplogogy. He previously worked as an Archaeologist for the U.S. Forest Service before becoming an Adjudicator with INS which became USCIS.

The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.