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UH Law Center Spring 2020 External Workshop Series: Penn State Law professor dissects discretion, analyzes negative aspects and offers remedies

University of Houston Law Center professor and local businessman Anthony R. Chase will help lead the Houston area's efforts to the COVID-19 pandemic.Ashley Deeks of the University of Virginia School of Law delivered a remote presentation to University of Houston Law Center students on Monday. Her primary research and teaching interests are in the areas of international law, national security, intelligence and the laws of war.

Professor Shoba Sivaprasad Wadhia of Penn State Law School

April 9, 2020 - Shoba Sivaprasad Wadhia, a professor at Penn State Law School, presented her work-in-progress remotely via Zoom, “Darkside Discretion,” as part of UHLC’s spring 2020 external workshop series.

Wadhia’s draft addressed the exercise of discretion in the immigration context to rule against noncitizens even when they are legally entitled to relief.

“The way I use the phrase darkside discretion is to identify places in the immigration statute where Congress has listed a remedy or a benefit with specific requirements the individual has fulfilled, but is nevertheless denied that benefit in the exercise of discretion,” Wadhia said.

Wadhia argued that discretion should work in favor of, not against, noncitizens.

“In discretionary decision making, if it is to be used, it should generally favor the noncitizen,” she said. “Currently, the way discretionary decisions are being made is a discretionary blackhole.”

Her paper uses asylum, adjustment of status, and hardship waivers as examples of remedies where Congress has listed statutory requirements and included an undefined discretionary component.

Limiting discretion in this manner would have the positive effect of forcing Congress to explicitly define when it wants to deny relief to noncitizens — a practice it currently uses in some situations.

“Congress not only created these affirmative requirements, but Congress also wrote in a number of statutory ineligibilities,” she said. “Clearly when Congress wants to set limits or restrictions on these remedies, it can and will do so.”

To end dark side discretion, Wadhia believes the best solution is to eliminate discretion completely and to potentially implement a greater amount of judicial review.

Wadhia argued that her solution is valuable because it would enhance administrative law values, like government transparency, greater efficiency, greater consistency between cases involving similarly relevant facts, as well as public acceptability.

“This paper hopefully presents an opportunity to really show how immigration is a way to understand administrative law and how they’re in fact connected in meaningful ways.”

Wadhia will address Law Center students, faculty and staff again during a virtual book talk on April 14. She will discuss her book, "Banned: Immigration Enforcement in the Time of Trump."

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