The Administrative Procedure Act of 1946 is the general law of how federal agencies make decisions and how courts review them. USCIS, the State Department and the Department of Labor all act under it, and most federal lawsuits against immigration agencies other than removal cases are, at bottom, APA cases.

Quick Facts

  • Code: 5 U.S.C. §§ 551–559 (procedure) and 701–706 (judicial review)
  • A rule looks forward; an order decides a particular matter (5 U.S.C. § 551)
  • Review requires: final agency action (§ 704)
  • Remedies: compel action (§ 706(1)); set action aside (§ 706(2))

Rules and orders

The Act divides agency action into two kinds. A rule is an agency statement of general or particular applicability and future effect designed to implement, interpret or prescribe law or policy (5 U.S.C. § 551(4)). An order is the final disposition of a matter other than rulemaking, including licensing (§ 551(6)), and the process of producing one is adjudication (§ 551(7)). A regulation on who qualifies for a benefit is a rule. The decision on one person’s application is an order.

Making rules: notice and comment

For legislative rules, the agency must publish a notice of proposed rulemaking in the Federal Register, give the public an opportunity to comment, and issue the final rule with a concise statement of its basis and purpose (5 U.S.C. § 553). Interpretive rules, general statements of policy and rules of agency procedure are exempt, as are rules for which the agency finds good cause to skip the process. Whether a policy is really a binding rule in disguise is a frequent ground of challenge.

Deciding cases: adjudication

The APA’s trial-type procedures (§§ 556–557) apply only when a statute requires a decision “on the record after opportunity for an agency hearing.” Most immigration benefit decisions are informal adjudications governed by the agency’s own statutes and regulations. Removal hearings in immigration court follow their own statutory procedure, which the Supreme Court held displaces the APA’s hearing provisions (Marcello v. Bonds, 349 U.S. 302 (1955)).

Getting into court

  • Reviewability. The APA does not apply where a statute precludes review or the action is committed to agency discretion by law (5 U.S.C. § 701(a)). In immigration, 8 U.S.C. § 1252 removes review of many decisions.
  • Final agency action. Review is available for final agency action (§ 704): action that marks the end of the agency’s decision-making process and determines rights or obligations (Bennett v. Spear, 520 U.S. 154, 177–78 (1997)).
  • Exhaustion. Required only when a statute or the agency’s rules make an administrative appeal mandatory (Darby v. Cisneros, 509 U.S. 137 (1993)).

What the court can do

Under § 706(1) the court can compel action unlawfully withheld or unreasonably delayed, the APA counterpart of mandamus. Under § 706(2) it can hold unlawful and set aside action that is arbitrary, capricious or an abuse of discretion, contrary to law or the Constitution, beyond the agency’s statutory authority, or adopted without required procedure. Three principles shape that review:

  • The agency must offer a reasoned explanation connecting the facts to its choice (Motor Vehicle Manufacturers Ass’n v. State Farm, 463 U.S. 29 (1983)). The rescission of DACA failed that test (DHS v. Regents of the University of California, 591 U.S. 1 (2020)).
  • The action is judged on the reasons the agency actually gave, not on reasons supplied later in litigation (SEC v. Chenery Corp., 318 U.S. 80 (1943)).
  • Courts decide what a statute means without deferring to the agency’s interpretation (Loper Bright Enterprises v. Raimondo, 603 U.S. 369 (2024)).

How the two halves of § 706 work in practice is covered in Mandamus, the APA or Habeas and Vacatur.

Sources

Related Articles