Wednesday, April 27, 2016
Abstract: The crisis in immigration court adjudication is well-documented. This Article contends that critiques of immigration adjudication are incomplete and understated, because they have failed to account for the following reality: the vast majority of persons ordered removed never step foot inside a courtroom. Even when cases are filed with the immigration courts, a substantial number result in removal orders irrespective of the merits of the case. Removal in what this Article calls the “shadows of immigration court” have far eclipsed standard removal proceedings. The Article provides a descriptive account of five types of removal orders that comprise immigration court’s shadows: (1) expedited removal at the border, (2) administrative removal of non-lawful permanent residents with aggravated felony convictions, (3) reinstatement of prior removal orders, (4) in absentia orders for failure to appear in immigration court, and (5) stipulated removal orders following waivers of the right to a court hearing. The Article identifies several concerns that apply to mainstream immigration court proceedings, and asserts that those critiques are amplified in the shadows of immigration court. It concludes by arguing for more sustained inclusion of those shadows in reform proposals directed at improving immigration adjudication.