Fitting the Formula for Judicial Review: The Law-Fact Distinction in Immigration Law

Abstract

The ill-defined law-fact distinction often stands as the gatekeeper to judicial review of an agency deportation order, restricting non-citizens facing deportation to raising only questions of law when appearing before an appellate court. The restriction on review most affects cases whose dispositions typically turn on the resolution of factual issues, including claims under Article 3 of the Convention Against Torture and claims for discretionary relief from deportation like cancellation of removal. Convention Against Torture claims, for example, often involve extensive fact-finding on the part of the immigration judge regarding conditions in the applicant’s home country and the applicant’s personal circumstances. At the same time, these claims raise a plethora of issues that arguably are not purely factual, including such critical questions as: Does the feared mistreatment rise to the level of torture? Is the mistreatment likely to happen? Has the judge followed the standards governing factual adjudications? Whether or not a federal appellate court can answer these questions depends on which side of the law-fact divide they fall. This article demonstrates that the basic, analytical concept of a question of law in immigration court decisions is more expansive than is typically understood. It focuses on questions that involve the application of law to facts that have already been established - questions that are commonly called mixed questions. The article briefly traces the history of immigration judicial review, culminating with the REAL ID Act of 2005 and the jurisdictional savings clause contained in it. It discusses the concept of a mixed question of law and fact, offering a basic formula that captures the concept of a mixed question as a question of law. It also proposes a meta-rule formula for mixed questions that offers a way to identify and categorize mixed questions involving a breach of the rules of decision-making. Also addressed is the interplay between the concepts of law-fact and discretion, as this has been a focal point of confusion. The article concludes with thoughts about how courts and litigators should proceed in their thinking about the law-fact distinction.