No Room for Error: The Issues of Limited Judicial Review in Immigration Adjudication

As immigration has surged to the forefront of national attention amid a growing, polarized public, questions regarding its evolving legal mechanisms have emerged. Shifts in enforcement and policy reversals have rendered immigration policy in the United States increasingly dominated by executive authority over legislative or judicial action. As the political and legal boundaries between the branches blur, any discussion of immigration jurisdiction should be evaluated against the Immigration and Nationality Act (INA) of 1952, the primary body of U.S. immigration law. Under 8 U.S.C. § 1252(a)(2)(B), “no court shall have jurisdiction to review—(i) any judgment regarding the granting of relief,” and the discretion is instead granted to the “Attorney General or Secretary of Homeland Security” [1]. Supreme Court cases, such as Guerrero-Lasprilla v. Barr (2020), Patel v. Garland (2022), and most recently Bouarfa v. Mayorkas (2024), have narrowed the scope of the judgment to just legal interpretation — as opposed to full consideration of both subjective and factual findings.
Consequently, the court’s role as the interpreter of the law and protector of rights has been reduced to mere oversight of statutory interpretation, leaving many substantive determinations insulated from judicial review. Despite the Supreme Court’s efforts to preserve its institutional legitimacy by limiting its scope to only legal interpretation, I argue that modern immigration judicial review doctrine prioritizes finality-based decisions over accuracy, places proceedings at odds with due process, and muddies factfinding with discretion. As a result, thousands of immigrants seeking adjustment of status outside of deportation proceedings are left without any kind of review of the denial of their applications.
Article III, Section 1 of the Constitution provides that Article III courts — such as the U.S. District Courts and the U.S. Courts of Appeals — are federal courts established as one of the lower "inferior" courts under the Supreme Court [2]. Immigration courts, however, are not Article III courts; instead, they are Article I courts, functioning as an administrative body under the Department of Justice’s Executive Office for Immigration Review (EOIR). Unlike Article III court judges, who serve for life to ensure independence, Article I court judges are administrative employees of the Department of Justice, answerable to the Attorney General [3]. This lack of judicial independence results in a politicized, inconsistent system that enables the executive branch to influence immigration rulings.
The INA’s language leaves uncertainty as to the scope of judicial review. However, in the broadest sense, immigration judgments either take the form of mandatory or discretionary relief. Mandatory analyses are legally binding eligibility requirements that must be followed without exception [4]. On the other hand, discretionary analysis involves the “review of all relevant, specific facts and circumstances in an individual case” to make a subjective judgment [5].
Only in 2020 did the Supreme Court clarify the scope of judicial review in Guerrero-Lasprilla v. Barr, addressing what is reviewable by Article III courts and what remains to executive immigration agencies. In Guerrero-Lasprilla, petitioner Pedro Pablo Guerrero-Lasprilla, a Colombian citizen, had entered the U.S. legally but was shortly removed after committing drug crimes. Years after his final decision, Guerrero filed a motion to the Board of Immigration Appeals (BIA) to reopen his case, but was denied because it was not timely filed within the 90-day deadline. Subsequently, Guerrero argued that extraordinary circumstances had impeded a timely filing [6]. On appeal, despite the undefined scope of review, the Fifth Circuit held that it lacked jurisdiction to review the BIA’s decision. Ultimately, the Supreme Court never directly granted or denied Guerrero-Lasprilla’s request for relief, but rather vacated the Fifth Circuit's decision and remanded the case. Instead, the Court focused on whether the federal courts’ jurisdictional scope: in a 7 - 2 decision, they held that, although Congress generally bars noncitizens convicted of certain crimes from seeking judicial review, federal courts retain jurisdiction over “questions of law” [7]. This ruling established that Article III federal courts generally can review questions concerning the application of law to undisputed or established facts.
However, a 2022 ruling narrowed the scope of the immigration review established by Guerrero-Lasprilla. In Patel v. Garland (2022), Pankajkumar Patel, who had entered the U.S. illegally with his wife in the 1990s, applied for adjustment of status under 8 U.S.C. § 1255 — a section of the INA that enables noncitizens in the U.S. to apply for a green card — and was rejected. The United States Citizenship and Immigration Services (USCIS) reasoned that Patel was ineligible because he had previously checked a box on a driver’s license application, falsely stating that he was a U.S. citizen. Despite Patel’s argument that he had made a clerical mistake on the application and thus lacked the subjective intent necessary to violate the federal statute, the BIA denied relief after finding no clear error in the factual findings. Similarly, the Court of Appeals, 11th Circuit, held that it lacked the jurisdiction to review the findings of the BIA based on the INA’s ambiguous language. Accordingly, the Supreme Court evaluates whether Article III courts have the jurisdiction to review facts found as part of any discretionary-relief judgments in immigration proceedings. This singular checkbox led to the 5 - 4 Supreme Court ruling in Patel, establishing the precedent that federal courts do not have jurisdiction to review facts found as part of discretionary-relief proceedings under §1255 and the other provisions enumerated in §1252(a)(2)(B)(i) [8][9].
In the absence of judicial review of discretionary findings, factual errors become uncorrectable*.* As a result, factual determinations made by immigration judges and the Board of Immigration Appeals are effectively final and irreversible — even when there is, as Justice Gorsuch noted in his dissent, “obvious factual errors” [10]. For non-citizens seeking lawful status, this decision leaves them with little recourse for mistakes that carry life-long consequences.
In 2024, Bouarfa v. Mayorkas further limited the scope of judicial authority. In this case, Amina Bouarfa, a U.S. citizen, began the process of obtaining permanent legal residence for Ala’a Hamayel, her noncitizen spouse, by filing a visa petition with the USCIS. Although USCIS initially approved the visa petition, it revoked the approval two years later because Hamayel had previously entered into a marriage for the purpose of evading immigration laws — an action termed “sham” marriage. Bouarfa argued that the requirement to deny an immigrant visa petition based on the finding of a “sham” marriage is a mandatory decision, and, therefore, should be subject to judicial review. However, the Court rejected this argument, building upon the ruling in Patel and holding that predicate determinations embedded in discretionary decision-making are not reviewable. Therefore, the Supreme Court unanimously held that discretionary revocation decisions are to be completely within the federal agency’s authority [11] as the Secretary of Homeland Security or Attorney General “may, at any time, for what he deems to be good and sufficient cause” [12]. Consequently, Article III Courts lack jurisdiction to review decisions grounded on anything in the government’s discretionary judgment.
The facts presented in Bouarfa demonstrate an institutional imbalance as the current judicial review standards vest executive agencies with excessive authority. Consequently, there is no stable boundary between reviewable, eligible facts and unreviewable discretionary judgments. For example, executive agencies may therefore characterize convoluted factual findings — like the “sham marriage” — as discretionary to avoid judicial scrutiny, and thereby operate with minimal oversight and diminished accountability.
This lack of judicial review of irreversible mistakes or factual errors places immigration procedures at odds with due process rights. The Fifth Amendment provides that “no person shall be…deprived of life, liberty, or property, without due process of law” [13], a protection that requires people to have an opportunity to be heard and challenge the evidence against them. As Justice Scalia reaffirmed in Reno v. Flores (1993), the Supreme Court has long recognized that the Fifth Amendment “entitles aliens to due process of law in deportation proceedings” [14]. While applicants may still challenge initial denials made in court, Bouarfa effectively made challenges to discretionary executive revocations impossible, undermining the procedural safeguards that due process is intended to ensure. This is a sharp break from ordinary administrative norms, where courts review findings for substantive evidence and are allowed to reverse clear mistakes.
Interestingly, one of the executive standards for the cancellation of a removal order, outlined in 8 U.S.C. § 1229b(b)(1)(D), requires that the removal would result in “exceptional and extremely unusual hardship” [15]. Wilkinson v. Garland (2024) addressed whether Article III courts have jurisdiction to review these hardship determinations, holding that courts do retain some jurisdiction in judicial review in terms of evaluating whether the agency has correctly applied the standard, but not in reweighing the evidence [16]. In other words, judicial review is not entirely eliminated, and the judiciary continues to act as the interpreter of legal application.
While there is merit in Wilkinson's preservation of this judicial role, the issue is in its practical effect. The “exceptional and extremely unusual hardship” inquiry, among many other standards, is so fact-dependent that reviewing the application of law is inseparable from subjective factual assessment. Take, for instance, that immigration judges often need to evaluate ambiguous evidence, such as personal testimony or affidavits from family members. Judges must decide what facts are legally relevant and apply legal standards to these findings, which itself requires discretionary judgment. This demonstrates the difficulty of applying Wilkinson in practice: discretion is embedded in fact-finding, and when judicial review of these discretionary decisions is eliminated, many erroneous judgments would become uncorrectable.
The growing trend of judicial deference to executive branch discretion in immigration adjudication renders factual error effectively uncorrectable and collapses fact-finding into discretion. If the government makes a serious, outcome-determinative mistake, no neutral body remains to correct it, placing immigration proceedings in direct tension with due process. In prioritizing finality over accuracy, the Court has shifted away from decisions designed to uphold rights to an administration in which even the smallest error can trigger a lifetime of life-altering consequences. At stake is not merely the outcome of individual cases, but the role of the judiciary as a meaningful check on executive power in a system where thousands of lives are on the line.

Footnotes:
[1] Immigration and Nationality Act § 1252(a)(2)(B), 8 U.S.C. (1965).
[2] U.S. Const. art. III, § 1.
[3] Executive Office for Immigration Review. “Office of the Chief Immigration Judge.” U.S. Department of Justice. Accessed March 5, 2026. https://perma.cc/A8QG-3W39
[4] U.S. Citizenship and Immigration Services. 2004. “Volume 1, Part E, Chapter 8: Discretionary Analysis.” USCIS Policy Manual. Accessed March 5, 2026. https://www.uscis.gov/policy-manual/volume-1-part-e-chapter-8
Immigration and Nationality Act § 1155.
[5] Ibid.
[6] Lugo-Resendez v. Lynch, 831 F.3d 337 (5th Cir. 2016).
[7] Guerrero-Lasprilla v. Barr, 589 U.S. (2020).
[8] Patel v. Garland, 596 U.S. 328 (2022).
[9] Immigration and Nationality Act § 1255 (2024).
[10] 596 U.S. 328 (2022) (Gorsuch, J., dissenting).
[11] Bouarfa v. Mayorkas, 601 U.S. __ (2024).
[12] Immigration and Nationality Act, 8 U.S.C. § 1155 (2024).
[13] U.S. Const. amend. V.
[14] Reno v. Flores, 507 U.S. 292 (1993).
[15] Immigration and Nationality Act, 8 U.S.C. § 1229b(b)(1)(D) (2024).
[16] Wilkinson v. Garland, 598 U.S. __ (2024).