Immigration Article of the Day: Bringing “Civil”ity into Immigration Law: Using the Federal Rules of Civil Procedure to Fix Immigration Adjudication by Richard Frankel

Bringing “Civil”ity into Immigration Law: Using the Federal Rules of Civil Procedure to Fix Immigration Adjudication by Richard Frankel, Vanderbilt Law Review, Forthcoming

Abstract

Government lawyers frequently argue, and courts have frequently held, that non-citizens in removal proceedings do not have the same rights as defendants in criminal proceedings. A common argument made to support this position is that removal proceedings are civil matters. Accordingly, a non-citizen facing deportation has fewer due process protections than a criminal defendant and deportation proceedings similarly provide fewer protections than criminal proceedings.

In many ways, however, the rules governing immigration proceedings differ markedly from those governing civil actions in court. Immigration proceedings suffer from arcane and hyper-technical procedures that impede immigrants from having their claims reviewed on the merits. Notably, the civil justice system was plagued by similar problems back in the early Twentieth Century. The response was to create the Federal Rules of Civil Procedure, which emphasized a preference for deciding cases on their merits rather than on procedural technicalities. The modern rules substantially simplified pleading rules and emphasized flexibility in order to foster the goals of fairness, efficiency, and decisions on the merits.

This article argues that the process which spawned the Federal Rules can offer valuable lessons for reforming immigration proceedings. The article identifies several examples where immigration rules differ from the Federal Rules in ways that inhibit decisions on the merits. It then proposes a fundamental re-examination of immigration court rules and practices with an eye toward promoting decisions based on substance rather than procedure as well as a structure for ongoing reform. Given the high stakes in removal proceedings, if society continues to treat immigration proceedings as civil matters, the least it can do is to incorporate those aspects of the Federal Rules that can best promote access to justice for non-citizens.

KJ