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Administrative vs Judicial remedial powers


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Administrative vs Judicial remedial powers

  1. 1. Administrative vs. Judicial Remedial Powers and Relief OptionsThe U.S. Constitution vests the Legislative Branch with the authority to make thelaw. The Executive Branch is charged with enforcing the law. The Judicial Branchis 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 sometangible outcomes but does not provide a step-by-step blueprint to implement thelaws it passes. The Executive Departments and Agencies are then left to find a wayto implement the laws passed by Congress. In short, to make it work, make itfunction, or simply handle it. Therefore, out of necessity agencies must writeregulations and/or, other interpretive and instructional materials to work out thenuts and bolts of many primary, secondary, and ancillary matters. The U.S.Supreme Court has begrudgingly acknowledged that the regulations promulgatedby the Executive in order to interpret, implement and enforce the laws passed bythe Legislature are generally due substantial deference as long as they do not runafoul 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 theother Branches of government. The Judiciary is left with heady questions to ponderin evaluating the Constitutionality of the laws passed by Congress and theExecutive’s regulations, policies, and procedures to give practical effect to thoselaws. In short, Congress is free to argue about and debate ad nauseum variousissues (often compromising on points or their principles), and be vague or overtlypolitical while the Courts are allowed to be thoroughly impractical in search of dueprocess and fundamental fairness. However, both of the other Branches givedeference to the Executive’s practical utilitarian applications in most instances andin the immigration context especially1. This is most likely because the Executiveagencies are the ones that must either do it or might simply ignore it. Rememberthat neither a Judge or Justice, nor a Member of Congress will be the one drudgingthrough the desert apprehending illegal entrants who violate our internationalborders or detaining and then deporting them.1 See 6 USC § 522
  2. 2. In addition, it will also usually be a USCIS Officer or Official who will adjudicatenaturalization applications or claims to citizenship as well as actually prepare andpresent a Certificate of Naturalization or Citizenship. In a growing number ofnaturalizations, USCIS administers the Oath of Renunciation and Allegiance.It is especially in the naturalization and citizenship cases where USCIS gives greatdeference to, and fully observes every last word of, the Congressionally-mandatedrequirements as well as, the Judicially-determined interpretations of them, and avariety of ancillary matters such as burdens and standards of proof as well asevidentiary weight. In effect, USCIS is tightly bound by the letter of the law aswritten by Congress and the spirit of the law as expressed by the Courts. Inaddition, USCIS, along with the rest of the Executive Branch, is not in the positionto challenge, interpret or even consider the Constitutionality of the laws itadministers and enforces. It is because of that last matter being within the authorityof the Courts that USCIS, AAO, IJs, and the BIA etc.., are unable to even entertainrequests 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 ConsularReports of Birth and/or passport applications filed at consulates and embassiesabroad. DOS is similarly situated as USCIS in regard to remedial authority. Belowis an excerpt from a non-precedent case on point issued November 25, 2011, in theFifth 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.”2 See:
  3. 3. 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. 3-4The Courts have devised various tests and frameworks for the exercise of itsremedial powers, which although limited, exceed the remedial powers available tothe administrative appellate bodies. Such remedies that derive from theConstitution and/or those provisions within the old common law system that havesurvived since 1789, when Congress was first in session and the Constitutionbecame effective are only available in Courts. There are many forms of reliefavailable from the Executive agencies when such authority has been given to it in astatute as a matter of discretion. In addition, an agency is free to correct itsmistakes such as when it enters a decision nunc pro tunc or reverses a decision onadministrative appeal or via a motion to reopen and/or reconsider. Administrativeagencies do from time to time reverse their own Precedents; or distinguishes them;or may depart, or deviate from them in part, or by exceptions. Executiveinterpretations continue to evolve along with the laws, or via reinterpretations as itlearns new subject matter in the same manner as the Courts continue to evolve itsdoctrines. In the final analysis, the remedial powers of the Judicial andAdministrative Jurists have diverse underlying bases that control not just preciselywhat remedial power is available, but also just how far it goes.Joseph P. Whalen November 25, 2011(e-mail: ) See: