Kangaroo Court
November 2023 | Otoniel Ramos (Staff Writer & Editor)
Forty years and ten months ago, the Executive Office for Immigration Review (EOIR) was created by the U.S. Department of Justice. [1] The immigration courts under the EOIR have the task of adjudicating the cases of detained individuals in the United States facing removal or deportation proceedings and ultimately decide whether or not an individual should be allowed to stay in the United States. [2] Last year, a piece of legislation, the Real Courts, Rule of Law Act of 2022, was introduced to the U.S. House of Representatives. It sought the establishment of U.S immigration courts independent from the Department of Justice and, by kinship, the Executive Branch. [3] These courts would fall under Article I of the Constitution and provide the need for appellate judges to receive a presidential appointment “by and with the advice and consent of the Senate” and move past the practice of these judges being career attorneys at the DOJ—appointed by the Attorney General. [4] What, then, does the introduction of such legislation signify?
By moving these courts under Article I, the bill’s sponsors signal a discontent with the lack of judicial and administrative independence in these courts and a recognition of the harm allowed due to these courts’ setup. The recognition of harm, which derives from the inadequate due process guardrails within the system, signifies, at the very least, that the perception of fairness is important — important to the legislators, their constituents, and the American people. However, it can be argued that the proposition of such legislation also signifies a level of judicial complicity — recognized by the lawmakers — in the disenfranchisement of non-citizens within our criminal justice system, or those seeking asylum, of fundamental rights.
Judicial complicity, as expounded by Robert Cover, comes from the examination of the judiciary and its role in the “enforcement of law which violates all that is worthwhile in human community.” [5] Cover’s work in the book Justice Accused is born of the Vietnam War era and seeks to answer the question of how judges responded when confronted with a law that they deemed unjust. [6] Cover turned to the Antebellum period in the U.S., where he noticed that leading judges of that period were sympathetic to the efforts of abolitionists. [7] Despite these sympathies, however, they demonstrated “powerlessness” toward permitting significant anti-slavery victories in court. [8] The judges remained constrained to what the federal law commanded, and despite other procurable sources of law from which to pull, a troubling trend emerged. [9] The courts maintained summary judgment for procedures involving fugitive slave laws, disallowed anti-kidnapping laws to be used as a defense, and ruled against the use of both juries and the application of habeas corpus in these cases. [10] In this regard, the charge of complicity in the enforcement of fugitive slave laws, laws rightfully considered unjust and immoral today and at that time, is warranted given the independence of the federal judiciary. The purpose of a charge of complicity, therefore, was for the exploration of pathways to justice through judicial activism. [11]
What we see, then, with immigration courts and their enforcement of this country’s immigration laws and executive policy is complicity in the enforcement of law that perpetuates structural racism. [12] However, when confronted with the structural setup of immigration courts, the same independence of the federal judiciary cannot be ascribed to them; while the enforcement of unjust and racist law remains, their complicity in this enforcement can only be described as “forced.” Therefore, while legislation like the Real Courts Rule of Law Act of 2022, which seeks to grant, at the very least, some level of further judicial independence to immigration judges, may remedy the “forced” aspect of this complicity, an independent judiciary who remains adherent to the enforcement of “immoral” laws because federal law or, as will be discussed in this paper, political pressure mandates it, will remain, nonetheless, complicit.
The manner in which immigration laws and the surrounding enforcement apparatus, Immigrations and Customs Enforcement (ICE), Department of Homeland Security (DHS), Immigration courts, etc., perpetuate the enforcement of racist law was acknowledged by Judge Miranda Du of the U.S. District Court of the District of Nevada. In 2021, Judge Miranda Du dismissed a case against Gustavo Carillo-Lopez, who was indicted for violating the federal reentry law. The reentry law, under which Carillo Lopez was indicted, “makes it a crime for persons to enter, re-enter or attempt to enter the U.S. if they have previously been denied admission to the U.S., been removed, departed, excluded from the U.S., or left the U.S. under an order of removal or deportation order.” [13] What Judge Du held in her dismissal, however, was that the defendant, Carillo-Lopez, demonstrated that the re-entry law was “enacted with discriminatory purpose,” “has a disparate impact on Latinx persons,” and that “the government failed to show that Section 1326 would have been enacted absent racial animus.” [14] Judge Du’s decision is significant when one considers that cases under the re-entry statute make up almost a third of all federal criminal cases. [15] In her dismissal, Judge Du pointed to the legislative history of provisions within the reentry statute, specifically to provisions that dated to the early 20th century, [16]
“The evidence clearly indicates, as both parties and other district courts agree, that the Act of 1929 was passed during a time when nativism and eugenics were widely accepted, both in the country at large and by Congress, and that these racist theories ultimately fueled the Act's passage.” [17]
Eugenics today is widely discredited, and any attempt at replicating or enacting policy that serves the interest of eugenics proponents can rightfully be considered morally reprehensible considering the horror and misery “carried out in the name of eugenics in the 20th century.” [18] In the same way, the continuing enforcement of a law, or at least provisions within a law, which the proponents of eugenics brought forward, makes that law and its enforcement racist and immoral. For this very reason, like with the enforcement of antebellum fugitive slave laws, continued enforcement of such laws represents in much the same ways a continuing injustice and the court's complicity in perpetuating it.
Judge with a Boss
When the framers of the Constitution laid out the provisions for the U.S. Supreme Court in Article III, they prescribed that the judges “hold their office during good behaviour.” [19] This provision, of course, has come to be understood to provide for the lifetime appointments of Justices to the Supreme Court. It was justified by the requisite that these courts be independent and “considered as the bulwarks of a limited Constitution against legislative encroachments” and because the “independence of the judges is equally requisite to guard the Constitution and the rights of individuals…” [20] The manner in which immigration courts under the Justice Department’s EOIR have functioned for the past 40 years, under administrative policy pressure and with the enforcement requirements prescribed within the Immigration and Nationality Act (INA), gives credence to the premonitions in mind at the time of the Supreme Court’s framing.
What immigration courts fail to live up to is precisely that ability to guard the rights of the individuals who stand before it. In the most extreme cases, the “Tent Courts,” established under the Trump administration, demonstrate the palest disregard for any perception of fairness and impartiality. These courts, established in 2019 to operate as temporary Migrant Protection Protocols (MPP) courts and as part of President Donald Trump’s “Remain in Mexico” program, were widely criticized for their perceived lack of Due Process guardrails. [21] The courts were closed to the public, the press, and any legal observers. [22] As Sarah Towle, a reporter who was able to sneak into one of these courts while accompanying an Iranian Immigration attorney, describes: “What I witnessed at US immigration tent court that morning was not just. It was not legal. It was a sham, a dystopian, Kafka-esque travesty of jurisprudence that hops — like a kangaroo — right over legal due process.” [23] The Trump-era tent courts provide a glimpse into the epitome of pressure from administrative policy-making on the enforcement of immigration law and its real function in the transgression of the notions of fundamental fairness.
However, the problem is not necessarily that due process protections do not exist in immigration court but with how they have been interpreted to apply in such limited and counterproductive ways that they not only lose usefulness but bring harm. Precedents relating to immigration law and what constitutes a violation of the Fourth Amendment, for example, demonstrate a grave incompatibility between their interpretations in an immigration law context and notions of fundamental fairness as they are thought to apply to U.S. citizens. For example, the requirement to stop an individual suspected of being unlawfully present in the United States is that an officer be able to “articulate objective facts to support that suspicion.” [24] That consideration becomes troubling when, for example, speaking a foreign language or the inability to speak English is an allowable consideration United States v. Manzo-Jurado (2006), [25] and further yet, that the proximity of an individual to the border can serve to support any officer’s given suspicion United States v. Garcia-Barron (1997). [26] Disregarding for a moment whether or not these allowable considerations in any form constitute “objective facts,” what interpretations like these do, at first look, is sanction the application of racial profiling for the enforcement of these laws. As Fatma Marouf describes, “Permitting immigration stops based partly or entirely on race/ethnicity undercuts the role that the reasonable suspicion standard is meant to play in protecting a presumption of innocence by acting as a check on unbridled government power.” [27] What can be gleaned from these few examples is that the interpretation of constitutional protections in such a harmful manner is essentially a requirement for the enforcement of laws such as the 8 U.S.C. 1326 or the Re-entry law to be possible. It is then reasonable to think that such a requirement brings into question the true compatibility of these immigration laws within the scope of the intended protections of the Fourth and Fifth Amendments.
The Case of El Salvador’s State of Exception
Today, another example arises. El Salvador, in March 2022, as a response to extreme homicide rates under President Nayib Bukele, enacted what was then called “un Estado de excepción,” or a state of exception “that suspended certain civil liberties, including due process.” [28] The purpose of this state of exception was the mass incarceration of members of street gangs like the MS-13 and Barrio 18 (18th Street); as can be expected, however, with such a suspension of civil liberties and mass incarceration, many of the individuals caught up in the arrests are innocent and have been subject to immense human rights abuses. [29] El Salvador has gone about arresting as many as 39,000 individuals for “unlawful association” and defines that charge broadly to include individuals with relations “of any nature” to gangs. [30] These arrests usually target young men and individuals with tattoos but, notably, also include those who arrive in El Salvador after being deported. [31]
Asylum, like the withholding of removal and protections under the Convention against Torture, represents forms of relief for noncitizens that have already been found removable in deportation proceedings when there is a danger of facing human rights violations in the country they are being deported to. [32] In the most basic of terms, eligibility for asylum comes from a fear of persecution due to an individual’s race, religion, nationality, political opinion, or inclusion in a particular social group. [33] Given that the government of El Salvador was associating deported individuals with the activities of gangs [34] and further taking into account the harms actual gang members (who may have renounced their membership) faced from the gangs themselves, what deporting an individual to El Salvador meant was placing them into a “particular social group” which was likely to face the threat of persecution. Despite this, precedent in the Board of Immigration Appeals did not always accept the idea that gang members qualify as members of a “particular social group” eligible for asylum. [35] The decision reached by the 4th Circuit Court of Appeals challenged the BIA’s standard for determining “whether a group of former gang members is sufficiently particular” because that standard was considered “too narrow and exacting.” [36]
However, forms of relief like asylum are discretionary, meaning it is ultimately within the judge's scope to decide whether or not an individual is eligible to receive relief such as asylum. [37] Presidential administrations understand this and are among the myriad sources of pressure on immigration judges. That is not, however, to say that immigration judges act as political agents responsive to the wishes of any given administration; in fact, there is very little evidence to suggest immigration judges strictly adhere to the policy goals of any given administration. [38] What is true, however, is that immigration judges navigate in an in-between world, as both “bureaucrats with robes” expected to make decisions based on the law and facts of a given case [39] and as bureaucrats, there is an expected prioritization for the implementation of public policy sometimes over “due process and independent justice.” [40]
Returning to El Salvador’s state of exception, where two opposing forces seem to be at play. First, the judicial responsibility of immigration judges to adhere, as is expected, to the ruling of a higher court, and second, the public policy pressure exerted by a given administration in response to the potential unpopularity of granting asylum to gang members. Data relating to the granting of asylum demonstrates that, beyond these two sources of pressure, both local and state politics also significantly impact the percentages of asylum granted. [41] Immigration judges operating in states where Republicans are in control were less likely to grant asylum, and the same was the case for judges working in pro-republican communities that had a desire to limit immigration into the country. [42] This, without a doubt, creates tension for immigration judges. With this added pressure in mind, the question becomes, how can immigration judges navigate this in-between world without jeopardizing the rights of the individuals they are adjudicating cases for? What the Trump-era tent courts demonstrate is that they really can’t. [43]
Adversarial court?
Finally, what cannot be ignored is the reality faced by those “respondents” who find themselves navigating the world of immigration courts. What the current immigration court setup leaves unanswered is whether an individual finding themselves in these courts could perceive impartiality, especially when the judge and opposing counsel share the same employer. It is hard to argue that they should. The Department of Homeland Security and the Department of Justice both operate under the Executive Branch, and it is hard to argue that the two do not have, at least some, shared institutional interests and are, as discussed earlier, susceptible to the same external pressures when adjudicating these cases. Such a setup should understandably present doubts about the appearance of impartiality and fairness within these courts. A further troubling data point in removal proceedings is what Professor Michael Kagan refers to as a “mass voluntary surrender of fundamental rights.” [44] In removal proceedings, what can be seen is that respondents admit and concede to charges “in nearly every case, without getting anything concrete in return.” [45] Kagan argues that this trend of mass surrender has allowed for the adjudication of removability cases to become incredibly quick, with 94.6% of the cases observed in Las Vegas immigration courts taking less than 18 minutes to find a respondent removable. [46] What this represents is a troubling development; similar to the requirement of summary procedure in cases involving fugitive slave laws, the mass surrender present in immigration courts today, facilitated by immigration judges and DHS attorneys, is a roadblock to any serious recourse to justice.
However, this discussion of mass surrender is incomplete without addressing the proverbial elephant in the room, which is the lack of a right to counsel in removal proceedings for noncitizens. In the year 2023, of all individuals who had pending cases with at least one hearing adjournment, only 59% were represented, and the same was the case for Unaccompanied Children who had cases pending for more than one year. [47] Unaccompanied Children (UACs) are “migrants under eighteen years old with no lawful status in the United States and who have no parent or legal guardian available to care for them.” [48] The reason such a right to counsel does not exist in these proceedings is because removal proceedings are considered civil. [49] That categorization is troubling when confronted with the actual reality of immigration proceedings. While civil procedures are understood as disputes among two private entities, persons, or organizations, removal proceedings involve a “full flex of government power” in the arrests, searches, interrogations, filing of charges, detentions, and finally, the deportations of individuals. [50] Add to that the Supreme Court’s recognition in Padilla v. Kentucky (2010) that deportation is “intimately related to the criminal process,” [51] and what remains is an undertaking that pretends to be civil while applying the punishment and state power requisite of a criminal procedure. The only reason to pretend immigration court is something that it is not is because the mass surrender of individuals is particularly what is desired. The kind of pressure described earlier and manifest here, is reflected in the amount of immigration judge-ordered deportations in just the past 20 years. The amount of deportations in that period represents an immense increase — equal almost to the number of deportation orders in the century before. [52] This trend was additionally accompanied by a venture into the deportation of the parents of U.S. citizens — a practice that was not common before 1976. [53] Extending to noncitizens the due process rights common in criminal procedures, like the right to counsel at government expense, presents a barrier to the bureaucratic responsibility mentioned before. What rulings in the federal judiciary that don't question, grant, or extend these rights to noncitizens in removal proceedings do is acquiesce to that bureaucratic responsibility, which appears like a responsibility to deport in an almost summarily fashion individuals of Hispanic, Asian, or African descent, [54] over the responsibility to due process considerations and impartial justice.
Conclusion
In his dissent in the case of Perez v. Brownell (1958), Chief Justice Earl Warren articulated the following: “Citizenship is man’s basic right, for it is nothing less than the right to have rights. Remove this priceless possession, and there remains a stateless person, disgraced and degraded in the eyes of his countrymen. He has no lawful claim to protection from any nation, and no nation may assert rights on his behalf. His very existence is at the sufferance of the state within whose borders he happens to be.” [55] In the context of the modern immigration court system, these words resonate profoundly. Immigration courts, in their current form, have become the tools by which the U.S. exacts that same sufferance described by Chief Justice Warren. While the proposed legislative reform within the Real Courts Rule of Law Act of 2022 offers a substantial change in the right direction, it is not enough to address the sufferances exacted by the state on the “stateless person.” Perhaps the increased independence of the courts gives space for judicial activism against these laws, but if the denial of rights to these individuals — rights held in reverence by U.S citizens — has already taken place, then it represents the imposition of a hierarchy of law that is incompatible with the norms already generated and held — as espoused by Chief Justice Earl Warren — by society. [56] By this same token, the continued imposition of these “incompatible” hierarchies of law will inevitably lead to the recognition that the methods of adjudication applied by courts are no longer better than the political pressures that forced or enabled this complicity on them in the first place. As such, the only natural path to remedy said complicity and the harm already perpetrated is to begin extending elements of that “right to have rights” to the “stateless person” or, in other words, to inaugurate his emancipation from the legal binds of U.S immigration law.
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Ibid.
Paulsen, Michael S. 1989. “Accusing Justice: Some Variations on the Themes of Robert M. Cover's Justice Accused.” At 35.
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8 USC 1326
United States v. Carrillo-Lopez, 555 F. Supp. 3d 996 (D. Nev. 2021)
Koh, Jennifer. 2021. “Court to decide requirements for noncitizens defending against federal prosecution for criminal re-entry.” SCOTUSblog, April 26, 2021.
United States v. Carrillo-Lopez, 555 F. Supp. 3d 996 (D. Nev. 2021).
Ibid.
Caplan, Arthur, Glenn McGee, and David Magnus. 1999. “What is immoral about eugenics?” British Medical Journal, (November).
U.S Const. Art.3 §1.1
Hamilton, Alexander. 1788. “No. 78.” In The Federalist Papers. New York.
Hennessy-Fiske, Molly. 2019. “Trump administration bars access to immigration tent courts.” Los Angeles Times, September 11, 2019.
Ibid.
Towle, Sarah. 2020. “An Unlikely Witness to Trump’s Kangaroo Courts.” Medium, March 18, 2020.
United States v. Brigoni-Ponce 442 U.S 873, 887 (1975)
United States v. Manzo-Jurado 457 F.3d 928, 937 (9th Cir. 2006)
United States v. Garcia-Barron 116 F.3d 1305, 1308 (9th Cir. 1997).
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Zulver, Julia, and José Méndez. 2023. “El Salvador's “State of Exception” Makes Women Collateral Damage.” Carnegie Endowment for International Peace.
Ibid.
“El Salvador: Leaked Database Points to Large-Scale Abuses.” 2023. Human Rights Watch.
“Deported to Danger: United States Deportation Policies Expose Salvadorans to Death and Abuse.” 2020. Human Rights Watch.
“Asylum in the United States.” 2022. American Immigration Council. Under “What is Asylum”.
Ibid.
“Deported to Danger: United States Deportation Policies Expose Salvadorans to Death and Abuse.” 2020. Human Rights Watch.
Weissner, Daniel. 2021. “Former Gang Members are a distinct 'social group' that can qualify for asylum - 4th Circuit.” Reuters Legal, January 25, 2021.
Ibid.
U.S. Congress. United States Code: Immigration and Nationality Act, 8 U.S.C. 1158.
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Chand, Daniel E., William D. Schreckhise, and Marianne L. Bowers. 2017. “The Dynamics of State and Local Contexts and Immigration Asylum Hearing Decisions.” Journal of Public Administration Research And Theory, 182 - 196. At 193.
Ibid.
Towle, Sarah. 2020. “An Unlikely Witness to Trump’s Kangaroo Courts.” Medium, March 18, 2020.
Kagan, Michael. 2023. “Mass Surrender in Immigration Court.” UC Irvine Law review 14, no. Forthcoming (March): 1 - 54. At 2.
Ibid.
Ibid.
““Current Representation Rates.” 2023. EXECUTIVE OFFICE FOR IMMIGRATION REVIEW ADJUDICATION STATISTICS.
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Marouf, Fatma. n.d. “Immigration Law's Missing Presumption.” At 987.
Padilla v. Kentucky, 559 U. S. 356 (2010)
Asad, Asad L. 2019. “Deportation Decisions: Judicial Decision-Making in an American Immigration Court.” American Behavioral Scientist 63, no. 9 (August): 1221-1249. (Cited in Blasingame Elise, et al. “How the Trump Administration’s Quota Policy Transformed Immigration Judging.” At 2.)
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Kamasaki, Charles. 2021. “US immigration policy: A classic, unappreciated example of structural racism.” Brookings Institution
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