Immigration Adjudication
The Missing “Rule of Law”
Bibliographic Data
| ID | 13089579 |
|---|---|
| Authors | Lenni B Benson (0000-0002-9404-3567, New York Law School, corresponding author) |
| Year | 2017 |
| Volume | 5 |
| Issue | 2 |
| Pages | 331-355 |
| Publication date | 2017-01-01 |
| Open Access | No |
| Type | ARTICLE |
| Venue | Journal on Migration and Human Security (JOURNAL) |
| Journal identifiers | ISSN: 2330-2488 • E-ISSN: 2331-5024 |
| Publisher | SAGE Publishing (PUBLISHER • US) |
| DOI | 10.14240/jmhs.v5i2.87 |
| OpenAlex | W2610068319 |
| Language | EN |
| Citations received | 2 |
| References cited | 1 |
Journal on Migration and Human Security of appointed counsel has a dramatic impact on case outcomes.Without counsel, the rule of law is barely a constraint on government authority.Conversely, a system of appointed counsel could lead to efficiencies and to a culture of negotiation and settlement within the immigration court system.DHS has increasingly used every tool in its arsenal to expeditiously remove people from the United States and most of these tools bypass judicial hearings.In these "ministerial" or expedited forms of removal, there is no courtroom, there is no administrative judge, and there are rarely any opportunities for legal counsel to participate.Moreover, there is rarely an opportunity for federal judicial review.In these settings, the rule of law is entirely within the hands of Immigration and Customs Enforcement (ICE) or Customs and Border Protection (CBP) officers who serve as both prosecutor and judge.There is little record keeping and almost no avenue for administrative or judicial review.This paper will argue that the rule of law is missing in the US removal adjudication system, and will propose ways in which it can be restored. Assembly Line Adjudicationthe Need for Priorities and Process ProtectionsFor many years, the DHS has increased removal enforcement and Congress has similarly increased the funding for detention as a part of the removal process.In 1990, Congress revised the statutes to create an integrated immigration removal system that would both adjudicate the claims of those seeking initial admission or apprehended at entry and those who are found in the interior and subject to a ground of deportation.Over time, the adjudications before the immigration courts, a division within the Department of Justice, grew to over 200,000 new cases a year (EOIR 2017).4Frustrated with delays and intent on stiffer enforcement at the border with Mexico, the federal agencies expanded their reliance on forms of ministerial or expedited removal.'Today at least 80 percent of all removal orders are prepared and executed largely without the involvement of an immigration judge.In these cases, only a claim of persecution or torture can prevent a rapid deportation executed solely by DHS personnel.In many of these cases, the unrepresented individual is unable to persuade an immigration judge that a fuller hearing is required.The growing reliance on expedited procedures has raised concerns about the adequacy and accuracy of the agency determinations
Adjudication · Immigration · Political science · Rule of law · European Criminal Justice and Data Protection · Law
| Citations per year | 0.22 |
|---|---|
| Citation span | 2017 - 2017 (1) |
| Highly cited | No |