Widener Law Professor Jill E. Family has penned an article on explicit and implicit waivers in our civil immigration adjudication system, and concludes - not surprisingly - that it is out of control.
This cannot come as a shock to anybody who has paid more than five minutes' attention to our immigration system in the past 30 years.
She published her research in the Social Science Research Network online database, whose abstract of her paper is reproduced below.
A Broader View of the Immigration Adjudication Problem
Jill E. Family, Widener University - School of Law
Widener Law School Legal Studies Research Paper No. 09-02
Are too many individuals diverted from civil immigration adjudication? Each year, the government completes millions of diversions from civil immigration adjudication through explicit and implicit waivers, the expedited removal program and the increasing criminalization of immigration law.
By uncovering and analyzing this diversion phenomenon, this article exposes an important piece of the immigration adjudication problem that has been largely undiagnosed. While judges, scholars, government officials and practitioners have acknowledged serious problems within the civil immigration adjudication system, this article widens the view to incorporate the issue of whether too many are being sidetracked from the system altogether.
This article concludes that too many are being rerouted from the civil immigration adjudication system because some of the identified diversions are not true to the administrative process design criteria of efficiency, accuracy and acceptability.
The government should reevaluate its efforts to steer foreign nationals away from civil immigration adjudication under the four guiding principles proposed here: (1) not all diversions are bad; (2) government coercion, misinformation or a lack of information should play no role in the diversion process; (3) no-option waivers should not be implemented and (4) open-ended, prospective waivers also should not be used.