Why Noncitizens Won’t Find Justice in Immigration Court
April 1, 2019
Immigration policy and enforcement are in flux under the Trump administration. The separation and detention of families at the Mexico-U.S. border; the spike in arrests of noncitizens in apparent violation of immigration laws; and the uncertainty surrounding the future of legal protections such as DACA are all examples of this instability.
But this instability is not unique to the Trump administration. It is instead a defining feature of contemporary immigration policy and practice in the United States.
I am a sociologist who has spent over five years studying how fluctuations in immigration practices since the mid-1980s have undermined noncitizens’ real and perceived sense of stability in the United States. My in-progress book examines how Latin American families living in Dallas, Texas navigate daily life without attracting the attention of a merciless U.S. immigration system. Were they to become swept into the country’s widening deportation dragnet, the families in my study might find themselves before one of over 400 judges in the country’s 64 immigration courts arguing for their own or a loved one’s right to remain in their adopted country.
But, as I found in a recent study, noncitizens who find themselves in immigration court are unlikely to find meaningful justice. Once notified to appear in court, about one in two will ultimately be deported. The structure of the U.S. immigration system makes it difficult for noncitizens to contest their deportability, given unforgiving immigration laws that unduly criminalize immigrants and that deny noncitizens a constitutional right to court-appointed counsel. And even when well-intentioned immigration judges try to find ways to spare the most “deserving” of noncitizens before them, they often find that their hands are tied by the same punitive laws they are tasked with interpreting. Rather than a court of adjudication, immigration court is in many ways a court of deportation.
What is immigration court?
Immigration court is not a criminal court, and immigration judges are not criminal law judges. A casual observer may be surprised to learn this distinction. After all, an immigration judge wears a judicial robe, sits atop a bench, presides over proceedings between a federal prosecutor from the Department of Homeland Security and a noncitizen defendant, and employs a law clerk.
Closer scrutiny reveals important contrasts with criminal court. First, immigration judges are political appointees. They are administrative judges under the executive—not judicial—branch of government and subject to replacement should they make decisions unaligned with the goals of the U.S. Attorney General. Second, unlike in criminal law, noncitizens in immigration court lack any constitutional right to court-appointed lawyers. Noncitizens are thus often left to decipher complex immigration laws on their own, facing federal prosecutors trained to efficiently make a case for their deportation. With a growing backlog of more than 800,000 cases, immigration judges find themselves in the uncomfortable position of shepherding—but not advising—unrepresented noncitizens through removal proceedings.
How do immigration judges make deportation decisions?
With the very structure of immigration court stacking the deck against noncitizens, a majority of those who enter this system are ordered deported. In fiscal year 2018, 56 percent of all completed cases ended in deportation. But this rate varied between states, with New York (42%), California (45%), and Texas (60%) examples of this diversity. Some of these differences are explained by the various statutes, precedents, and court rules governing the eleven distinct federal court districts within which immigration courts are found. But immigration judges’ deportation decisions varied within states too.
In Texas, where I conducted my research, 78% of completed cases in Houston, and 67% of completed cases in Dallas, ended in deportation. I studied Dallas Immigration Court to learn more about the real-time justifications immigration judges give to alleviate or worsen the conditions of the noncitizens who appear before them.
The judges in Dallas Immigration Court usually relied on one of two strategies to make their decisions. In most of the completed cases observed, immigration judges seemed to blindly enforce the law. The judges often noted the limited rights and remedies available to certain classes of noncitizens—such as recent entrants to the country who were undocumented, or those convicted of certain crimes—under current immigration law. This approach could sometimes seem rote, with the judges having similar, rapid-fire conversations with scores of noncitizens who fell into these categories before ordering them deported.
When noncitizens’ cases did not lend themselves to ready-made decisions due to more complicated matters of fact, judges deliberated in greater depth about the circumstances surrounding noncitizens’ cases. These included noncitizens’ ties to U.S. citizens or the context leading to the commission of certain unlawful acts. In doing so, judges’ personal attitudes, biases, and motivations were often revealed as they offered forms of relief from deportation to noncitizens they saw as “deserving” of reprieve but for whom there were few opportunities for complete protections under current laws. These forms of relief, though not resulting in an immediate deportation order, nevertheless left noncitizens vulnerable to a future deportation order if they did not comply with judges’ decisions.
For example, one Honduran national I observed reported entering the United States undocumented with her four-year-old son in search of medical treatment for his convulsive syndrome. The woman appeared without an attorney, and the judge guided her through a series of questions before determining that no relief was available for her to remain in the country. Rather than ordering her deported, the judge granted the mother a voluntary departure (i.e., allowing her to leave the country at her own expense by a certain date). After she left the courtroom, the judge told me he did not believe the noncitizen would leave the country, but that she was “well dressed, pretty, and has good manners,” and she “may very well be able to live here just fine.” If the noncitizen does not comply with the voluntary departure, however, her order of voluntary departure becomes an order of deportation—placing the noncitizen in a precarious legal situation should she come into contact with the U.S. immigration system again.
What effect do immigration judges’ deportation decisions have on noncitizens?
Whether ordered deported or granted temporary protections from deportation, the consequences for noncitizens are often severe. In both cases, noncitizens ultimately become marked as “noncompliant” with immigration law. If swept into the widening deportation dragnet again, their record of legal non-compliance is likely to result in a federal prison sentence and to deny them opportunities for legalization that might one day become available. In this way, noncitizens are unlikely to find lasting justice in immigration court.
About the author
Asad L. Asad completed his PhD in Sociology at Harvard University and served as a postdoctoral fellow at the Center for the Study of Inequality at Cornell University before joining the faculty of Stanford University as Assistant Professor of Sociology in the summer of 2019. His work focuses on social stratification; migration and immigrant incorporation; and race/ethnicity. See his website (asadasad.org) for more information. Follow him on Twitter (@asasad).