Tuesday, June 17, 2014
Immigration Article of the Day: The Rise of Speed Deportation and the Role of Discretion by Shoba Sivaprasad Wadhia
Abstract: In 2013, the majority of people deported never saw a courtroom or immigration judge, and instead were quickly removed by the Department of Homeland Security. The policy goals of speed deportation are economic because government resources like a trial attorney, immigration judge and a fundamentally fair hearing are saved. Higher deportation numbers may also benefit the image the government seeks to portray to the policymakers who support amplified immigration enforcement. On the other hand, the human consequences of speed deportation can result in the ejection of breadwinners, spouses and parents of United States citizens and others who could qualify for relief before an immigration judge. Moreover, the risk that the government may wrongly classify a person as a candidate for speed deportation is more than a remote possibility. Importantly, the government has "prosecutorial discretion" to provide more procedural justice for these individuals. While there are many types of prosecutorial discretion in immigration law, the exercise of such discretion to place a noncitizen who could be subject to speed deportation as a matter of law before an immigration judge instead is less understood and largely absent from immigration scholarship. Building on my body of work on immigration prosecutorial discretion, this Article will examine deportations resulting from the expedited removal, administrative removal and reinstatement of removal orders programs and argue that individuals who present equities identified by the government as such should be given a more complete court proceeding before an immigration judge. This Article will also explore the possibility that an agency’s decision to place a person in hurried deportation instead of a full court proceeding is “arbitrary and capricious” under administrative law.