EMPLOYMENT OPPORTUNITY COMMISSION
(EEOC), and the Bureau of Citizen and Immigration Services (BCIS), formerly the Immigration and Naturalization Service (INS), make both rules and adjudicative decisions, which means that they not only promulgate regulations but also decide conflicts dealing with their area of concern.
For example, the Social Security Administra-
tion promulgates regulations concerning the
provision of income for totally disabled people
and also decides who is or is not disabled. The
EEOC promulgates regulations and guidance
dealing with SEXUAL HARASSMENT and also
decides whether PROBABLE CAUSE exists to pur-
sue a particular claim of harassment. (Probable
cause, which is a reasonable basis to believe the
facts alleged, must be established before litiga-
tion can commence.) The BCIS not only helps
to set immigration quotas but also makes indi-
vidual decisions regarding deportation.
To review an agency decision under the stan-
dard of abuse of discretion, courts must follow a
three-part analysis. First, courts must look to the
legislation passed by Congress that gave the
decision-making authority to the particular
agency and determine if the administrator acted
within the limits of that authority. Second,
courts must determine if a clear error of judg-
ment has occurred.Without clear error, a court
cannot substitute its own judgment; if it did so,
the court would itself commit an abuse of dis-
cretion. Third, courts must determine whether
the administrator followed the procedural
requirements.
Courts reviewing administrative decisions
for abuse of discretion give great deference to
the administrator or agency, who not only is an
expert in the area of concern but also had access
to all the facts that influenced the decision. This
“hands-off” approach gives administrative
agencies the opportunity to execute the author-
ity granted them by Congress efficiently and
effectively.
An administrative decision that is difficult to
reverse or challenge is that made by the Board of
Immigration Appeals to uphold an immigration
judge’s decision to deport an ALIEN. Once a
deportation decision is made and upheld, the
alien can seek to have the attorney general
reverse it. Should the attorney general uphold
the deportation, a court reviewing this discre-
tionary decision will have limited opportunity
to challenge it, because the Board of Immigra-
tion Appeals clearly has authority to make the
decision in the first place. The alien must show
either failure to follow procedure or clear error
of judgment on the part of the board. Deporta-
tion challenges are common, but successful
challenges are rare because the great discretion
afforded to the BCIS makes an abuse of discre-
