Jennifer Lee Koh (Pepperdine University — Rick J. Caruso School of Law) has posted Incapacitating the Immigration Courts, forthcoming in S.M.U. Law Review, on SSRN. Here is the abstract:
Amidst the dizzying array of developments taking place under the banner of mass deportation, the second Trump Administration is engaged in a sustained effort to fundamentally transform the country’s immigration courts by incapacitating them. Although the immigration courts have long been the subject of extensive criticism, they also seek to function as neutral forums in which the Department of Justice adjudicates the removability of noncitizens and certain types of immigration relief, governed by due process principles. Rendering those courts unable to perform their functions could potentially give rise to a more fundamental deterioration of even the semblance of due process in immigration adjudication. This Article identifies several mechanisms used to achieve this incapacitation. The first is the expansion of removals designed to bypass immigration court adjudication altogether. The second involves the transformation of immigration courts into physical sites of chaos and violence. Third, management strategies designed to alter the composition of the immigration judge (IJ) corps through the firing, politicization, and hiring of judges have impacted the courts. The trends described in this Article carry implications for due process doctrine, the role of the federal judiciary in overseeing immigration policy, and administrative adjudication more broadly.
Recommended.
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