Thursday, March 26, 2020
The nation’s immigration courts are rapidly deteriorating. But focusing exclusively on the immigration courts reveals only part of the urgency, and tells only part of the story, associated with how deportation adjudication is unfolding in the Trump era. This Essay pivots away from the state of the immigration courts and instead focuses on multiple executive branch efforts that prevent (or seek to prevent) non-citizens from accessing those courts altogether. The executive branch is using a wide array of tools — unwritten practices, revisions of substantive asylum law through regulation, agency guidance to officers, and direct expansion of applicable rules — to effectively block access to the immigration courts. The Administration’s efforts to prevent adjudication in the immigration courts thus resemble a barricade: an improvised barrier, subject to dismantling and enjoining, and yet still effective in creating short-term obstacles amidst the chaos. In shifting our focus to the barricading of the immigration courts, we see even greater dysfunction in the current state of immigration adjudication than commonly appreciated, as well as the heightened importance of reform efforts for the future.
This Essay identifies four categories of activity that together reflect the rapidly developing trend referred to here as the barricading of the immigration courts. Part I provides necessary background on expedited removal, the cornerstone of the executive branch’s barricading of the immigration courts. Part II discusses the types of barricading currently underway — metering, asylum bans, sub-regulatory guidance and bureaucratic reorganization related to credible fear interviews, and the attempt to expand expedited removal — as well as the legal challenges they have invoked, and constitutes the bulk of the Essay. Part III briefly analyzes the implications of the barricading of the immigration courts for our understanding of contemporary immigration adjudication, judicial review, and future-looking immigration reform and advocacy.