Judicial Remands of Immigration Cases: Lessons in Administrative Discretion from INS v. Cardoza-Fonseca

This article is a symposium contribution for a symposium issue of the ASU Law Journal. One might not imagine that there could be much to say about the topic of remands, that is when a court reverses or vacates a decision and remands the case to a lower court or administrative agency for further proceedings. However, the first remand symposium in the 2004 Arizona State Law Journal offered multiple insights into the nature of remands and garnered considerable attention. It included contributions that investigated an array of remand situations, including those involving punitive damages, administrative law, criminal sentencing, and international tribunals. Indeed, one article looked at an incredibly important practical issue about which many lawyers and law professors are familiar: when the Supreme Court grants a petition for writ of certiorari, vacates the lower court judgment, and remands the case for further consideration. Despite what some critics say about legal scholarship, the symposium did not focus on esoterica, i.e., topics that only a law professor could love. In its wisdom, the editors of the Arizona State Law Journal have seen fit to hold an encore of the original remand symposium. As frequently is the case, it unquestionably will be hard to replicate the success of the original. However, this symposium will no doubt offer novel observations from a diversity of perspectives about the operation and impacts of judicial remands. Our contribution to this symposia considers the lessons that can be learned from the remand by a reviewing court of an immigration ruling by an administrative agency. We use as the cornerstone of our analysis the Supreme Court’s path-breaking decision in INS v. Cardoza-Fonseca, which affirmed a court of appeals’ reversal of a removal order by the Board of Immigration Appeals with instructions for the Board, on remand, to apply the proper legal standard to a claim for asylum. Asylum, the substantive issue at the core of INS v. Cardoza-Fonseca, is a particularly high stakes claim under American law. The noncitizen claims that, if deported to his or her native land, he or she will suffer likely persecution — including possible imprisonment, torture, or even death — because of their race, religion, nationality, political opinion, and related grounds. The decision in an asylum case determines as a legal matter whether the noncitizen will be allowed to remain in the United States or involuntarily returned to his or her homeland. Similar to a death penalty case, an asylum decision can literally have life or death consequences for the noncitizen. After a quarter century, the Supreme Court’s seminal decision in INS v. Cardoza-Fonseca remains at the heart of modern asylum and refugee law. It almost unquestionably is the leading American decision in the field. Most relevant to a symposium analyzing remands, Cardoza-Fonseca is a notable example of the U.S. government in effect abandoning a removal case upon remand by the highest court in the land. There are other prominent examples as well, suggesting that it is not an outlier. Much scholarly commentary in recent years has been critical of the tightening relationship between criminal law and immigration law, both in criminalizing violations of the immigration laws and deporting noncitizens caught up in the American criminal justice system. Needless to say, the increasing use of the criminal law in the enforcement of the U.S. immigration laws has grabbed considerable scholarly attention. Indeed, a new genre of cutting-edge immigration law scholarship — “crimmigration” law — has emerged from these developments. In this Article, we attempt to sketch out an important disjunction between immigration law and criminal law. A state criminal conviction that is vacated by a higher court is most likely to be retried on remand. The reason is painfully simple: a local district attorney is not inclined to allow a criminal case that has been reversed to languish on remand without further proceedings (and thus let a criminal suspect go free). Political pressures on prosecutors to punish a perceived criminal are likely to be at their strongest at the local level where the crime was committed. Local prosecutors’ offices are ordinarily headed by people who are directly politically accountable to local citizens, usually a district attorney or the equivalent who must run for office. Put simply, a local district attorney will be held accountable at the polls if perceived by the public as not zealously prosecuting serious criminal offenders. Especially with respect to serious crimes, a crime victim and family, as well as public opinion in the community, will tend to place great pressure on local prosecutors to prosecute the alleged offender both in the first instance and on remand. In contrast, the federal government, through Congress and the Executive Branch, regulates immigration on a national level. The political pressures on the system for removal of individual noncitizens from the United States in no way resemble the kind of direct, localized political pressure on local criminal prosecutors. There generally is no direct and specific political pressure, especially like that emerging from the community in which a crime was committed, in the structure of the U.S. immigration bureaucracy. Nor is there evidence, whatever administrative law theorists might claim generally, that a president, who oversees the operation of the modern administrative state, is generally elected based on the prosecution of individual removal cases. That is the case, even though the general enforcement of the U.S. immigration laws can be a hot-button political issue. Nor are the attorneys of the U.S. government who pursue removal cases subject to a direct check through the ballot box. Part I of this Article considers the leading Supreme Court decision in INS v. Cardoza-Fonseca and analyzes the failure of the U.S. government on remand to seek to remove the asylum-seeker from the United States. Part II identifies important distinctions between the treatment of removal and criminal cases on remand, and analyzes why there are significant differences about what might occur on remand in those two types of cases.