Removing the Distraction of Delay

Abstract

Immigration adjudication is in an awkward position. There is an intricate system to adjudicate immigration removal (deportation) cases, but that system is hindered by restrictions, and the threat of further restrictions, that reflect distaste for providing process to foreign nationals facing removal. There is a push and pull phenomenon, with immigration adjudication stretched uncomfortably in between two forces. On the one side, there is a push to apply concepts of procedural justice in immigration cases as in any other context. On the other side, there is a pull away from those common conceptions and a belief that less process is not only acceptable, but also preferable.

One often stated justification for cutting back on access to justice in the immigration removal context is that providing access to justice gives foreign nationals means to delay removal. This stated concern about delay places the blame on individual foreign nationals, and their attorneys, for accessing justice. It promotes the idea that foreign nationals seek review for less than honorable reasons, and that therefore court access must be curtailed.

This Article argues that the delay rationale is window dressing for a much deeper disagreement about the role of individual rights in immigration law. The delay rationale rests upon, and promotes, a conception of national sovereignty that places the will of the national government above all else in the context of immigration law. Once the disagreement about individual rights is revealed, this Article asserts, there is a need to eliminate the delay distraction. The debate should be held along the terms of the role of individual rights in immigration law, rather than placing the blame on foreign nationals and their attorneys for seeking access to justice.

The debate about the role of individual rights is essential, but the experience of the United Kingdom shows that formal legal resolution of the question is not enough to ease immigration adjudication from its awkward position. The experience of the United Kingdom reveals that it is also necessary to change public perception of what government power should be in immigration law. The United Kingdom has incorporated into its domestic law international obligations that recognize a more modern notion of sovereignty that respects the individual. In the United Kingdom, however, there is still a fierce battle about immigration adjudication. Arguments about delay are still raised to promote limits on process. The lack of a cultural progression, despite formal legal acknowledgement, has left immigration adjudication in the United Kingdom still subject to efforts to restrict access to justice. The lesson for the United States is that a cultural shift must accompany any formal legal resolution.

Keywords: immigration, judicial review, administrative law, comparative administrative law, access to justice, due process, comparative law

JEL Classification: K10, K19, K39, K23