“To Remand, or Not to Remand”: Ventura’s Ordinary Remand Rule and the Evolving Jurisprudence of Futility

It is a foundational principle of administrative law that a reviewing court should not dispose of a petition for review or appeal on grounds not relied upon by the agency, and should not reach issues in the first instance not addressed administratively. In such circumstances, there is a strong presumption that the reviewing court should remand the case to the agency for further proceedings rather than reach out to decide the disputed issues. The United States Supreme Court explicitly extended operation of the “ordinary remand rule” to the immigration context in its 2002 decision in INS v. Ventura. Notwithstanding subsequent Supreme Court clarifications of how this rule operates in immigration law, several federal courts of appeals have begun to develop a jurisprudence of futility, declining to remand cases to the Board of Immigration Appeals, despite errors in the underlying decision, in certain set circumstances. This article assesses this evolving jurisprudence with the aim of discerning whether it is somehow complementary to the “ordinary remand rule,” or runs afoul of the general remand prescription. In fact, many of the cases in which courts have held remand would be futile have little, or nothing to do with the courts’ authority to remand, while a number of the other cases surveyed represent legitimate exercises of the courts’ discretion to decline remand. Nonetheless, several decisions either explicitly contradict the Supreme Court’s remand directive, or give hints that, in certain cases, the court would feel free to decide an issue delegated to the agency’s discretion, even in the absence of an administrative decision in the first instance. Although the decision of whether to hold and decide a case, or whether to remand to the agency for further proceedings, is necessarily a subjective and discretionary determination, the article concludes that there are broad operating procedures that may appropriately govern the exercise of this discretion, ensuring that both reviewing courts and administrative agencies fulfill their mandates