Removal in the Shadows of Immigration Court
57 Pages Posted: 27 Apr 2016 Last revised: 6 Sep 2019
Date Written: August 25, 2016
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 commence before the immigration courts, a substantial number result in removal orders without adjudication 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) reinstatement of prior removal orders, (3) administrative removal of non-lawful permanent residents with aggravated felony convictions, (4) stipulated removal orders following waivers of the right to a court hearing, and (5) in absentia orders for failure to appear in immigration court. The Article identifies several concerns that apply to mainstream immigration court proceedings, and asserts that those critiques are amplified in such shadow proceedings. It concludes by arguing for more sustained inclusion of shadow proceedings in reform proposals directed at improving immigration adjudication.
Keywords: immigration, deportation, removal, summary removal, expedited removal, reinstatement, administrative removal, in absentia, stipulated removal, due process, administrative law, immigration adjudication
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