The Inquisitorial Advantage in Removal Proceedings

Abstract

This article takes a radically different and unique approach to improving due process in removal/deportation proceedings. It argues that the existing adversarial system of adjudication, which is incontrovertibly inefficient, expensive and unfair, is a product of cultural imaginary. It demonstrates that if the current adversarial model is measured by contemporary utilitarian standards, it is utterly counterproductive. The article then recommends the adoption of the inquisitorial model of the civilian system by converting the majority of the 951 government lawyers, who now serve as the non-citizens’ adversaries, into administrative law judges. Through a comparative analysis of the common law and civil law systems, the article demonstrates that the civilian or inquisitorial model saves a significant amount of resources while improving accuracy, fairness and general acceptability of the system. It finally argues that there is no principled reason why the inquisitorial model cannot be adopted.

Keywords: Civil law, Common law, adversarial system, inquisitorial system, removal proceedings, immigration adjudication, immigration enforcement, representation in immigration proceedings, deportation proceedings