Immigration Article of the Day: Process as Suffering: How U.S. Immigration Court Process and Culture Prevent Substantive Justice

The Immigration Article of the Day is Process as Suffering: How U.S. Immigration Court Process and Culture Prevent Substantive Justice by Linus Chan, Kimberly Horner, and Chris Levesque, forthcoming in the Albany Law Review. 

Here is the abstract:

This article draws from 35 semi-structured interviews conducted between August and December 2021 to understand how removal defense attorneys strategically navigate the shifting landscape of the US immigration court system. We argue that deportation proceedings represent a distinct form of punishment for non-citizens: first within the court process itself, and once again in the judge’s final decision. Critical to our study is examining how this punitive nature of the deportation process prompts removal defense attorneys to act in ways that often diverge from representation strategies in the misdemeanor criminal court system. Our findings suggest that formalized legal options in immigration proceedings are limited and put pressure on the legal process, which results in lawyers employing time-based strategies with an aim to arrive at better results for their clients. Interviews detail how and why removal defense attorneys often strategically increase exposure to the deportation process or conversely find ways to help their clients exit the legal process as quickly as possible. We also illustrate how attorneys’ time-based strategies fluctuate with the political ebb-and-flow of immigration enforcement, examining how the cultural and procedural norms of the immigration court process make it difficult for non-citizens to receive substantively just outcomes. In the article’s conclusion, we discuss our findings’ broader contribution to the argument that U.S. immigration law lacks fairness so long as it resides within the pillars of criminal justice, punishment, and exclusion.

IE