Excerpted From: Richard Frankel, Bringing “Civil”ity into Immigration Law: Using the Federal Rules of Civil Procedure to Fix Immigration Adjudication, 76 Vanderbilt Law Review 1379 (October, 2023) (297 Footnotes) (Full Document)

RichardFrankel.jpegAn injured creditor who incorrectly labeled the damages resulting from an unpaid debt was thrown out of court because the damages proved at trial were a half cent greater than the damages he pled in the complaint. A noncitizen fleeing life-threatening violence lost his asylum claim and may end up deported, even if the underlying facts supported granting asylum, because he categorized himself as a former gang member rather than a former gang leader when pleading his claim. The injured creditor can now bring his claim because the federal judiciary adopted the Federal Rules of Civil Procedure to stop cases like his from failing due to technical errors that do not affect the merits. The asylum seeker, however, remains subject to rigid pleading constraints notwithstanding the fact that he faces far more severe consequences than the creditor. This Article asserts that this distinction is incongruous and that the changes implemented by the Federal Rules of Civil Procedure should serve as a guide for reforming the immigration court system toward deciding cases on the merits rather than on procedural technicalities.

The stakes in deportation proceedings are high. Deportation can mean the difference between life and death for individuals fleeing harm and persecution in their home countries. It can mean separation from one's family and permanent exile from one's home. It can mean forced return to a country one does not know and has little connection to other than the fact of citizenship. The Supreme Court has recognized that deportation can deprive an individual of “all that makes life worth living.”

Despite deportation's severe and lasting consequences, noncitizens in removal proceedings do not receive the protections afforded to defendants in criminal proceedings. The Supreme Court has determined that because a “deportation proceeding is a purely civil action to determine eligibility to remain in this country ... various protections that apply in the context of a criminal trial do not apply in a deportation hearing.” Government lawyers, judges, and anti- immigrant activists frequently invoke this principle to argue against granting protections to noncitizens in removal hearings.

Given the “civil action” label affixed to immigration proceedings, one might imagine that deportation hearings resemble hearings in the civil justice system and that they follow rules similar to the Federal Rules of Civil Procedure. Those Rules were developed to reform a system known for its procedural traps and complex requirements and to replace it with a more simplified and orderly procedural regime that promoted decisions on substance rather than technicality. The drafters were unafraid to jettison longstanding rules of practice that they found antiquated, counterproductive, or overly technical. In their view, “[P]rocedure was to step aside and let the substance through.”

By contrast, the civil immigration court system is neither simplified nor focused on reaching decisions on the merits. Immigration court is famously described as a space in which “death penalty cases [are] heard in traffic court settings.” Others describe the laws and rules governing deportation cases as a “labyrinth,” “a maze of hyper-technical statutes and regulations that engender waste, delay, and confusion,” or as just plain harsh.

Immigration statutes, regulations, and court procedures often erect unnecessarily high procedural hurdles that impede claimants from having their cases resolved on their merits. In addition to the asylum seeker described above, noncitizens may find themselves with a mandatory in absentia deportation order--the immigration court equivalent of a default judgment--with limited ability to reopen their case, simply because car troubles, language barriers, or life emergencies caused them to miss a scheduled court date. Other noncitizens may find themselves facing deportation even when they have claims for relief pending before other agencies because the immigration judge did not stay or continue the case to allow the agencies to resolve those claims. Still others may fail to prove their case because they did not receive discovery materials in the government's possession that could help them prepare their case. In each of these situations, a person with a potentially valid case may lose for reasons that have nothing to do with the substance of their claims.

If courts are going to continue applying the “civil” label to immigration proceedings, then they should look to the foundational features of the civil litigation system to guide the conduct of immigration proceedings. This Article argues that the Federal Rules of Civil Procedure, and the process that gave rise to them, can offer valuable lessons for reforming immigration proceedings to promote decisions on the merits. This Article identifies several immigration rules that make it harder for courts to decide noncitizens' cases on the substance of their claims and explains how adopting principles from the Federal Rules could provide a solution without creating undue administrative burdens. It then proposes an overarching reexamination of immigration rules--inspired by the Federal Rules supporters' ambitious investigation and overhaul of the civil justice system--and offers a model for ongoing reform and review of immigration proceedings. Drawing on the flexibility of the Federal Rules to replace the rigidity of some immigration rules may help ensure that noncitizens with valid claims are able to remain in the United States while also allowing the government to discharge its enforcement responsibilities.

The Federal Rules of Civil Procedure provide a useful lens for guiding immigration court reform for several reasons. First, the civil justice system already went through the process of reforming its rules to promote substance over form when the Federal Rules were adopted. That process can shed light on how to promote merits-based decisionmaking in immigration court as well. Both the federal judiciary and the immigration courts espouse similar goals of resolving disputes in a fair and expeditious way. While immigration courts are administrative tribunals rather than judicial courts, administrative agencies and agency advisory bodies often look to the Federal Rules as a model. Taking guidance from the Federal Rules could promote greater procedural consistency, as many immigration rules change across different presidential administrations, with one administration altering or overruling the prior administration's policies. Finally, all adjudication systems should strive to prioritize decisions on substance rather than procedure because of the due process guarantee of having “the opportunity to be heard 'at a meaningful time and in a meaningful manner.”’

That is not to say that every Federal Rule of Civil Procedure should automatically be imported into immigration court. As this Article discusses, some Federal Rules, such as the civil discovery rules, may be a poor fit for immigration proceedings or may be inapplicable. Additionally, there may be situations in which other rules better serve the goal of promoting decisions on the merits. But if the government continues to treat immigration proceedings as civil matters, the least it can do is incorporate those aspects of the Federal Rules that are most applicable and strive to fulfill the Rules' overarching purpose of fostering merits-based decisions, especially given the high stakes in removal proceedings.

This Article proceeds in five parts. Part I explains how immigration hearings came to be classified as civil proceedings and describes the essential features of the immigration court system. Part II examines the early twentieth century reforms that led to the creation of the Federal Rules of Civil Procedure and describes how the Federal Rules displayed a preference for deciding cases based on the substance of a claim rather than on procedural failings. Part III focuses on certain Federal Rules, including those related to pleading, default judgment, and joinder, and explains how they function to promote decisions on the merits. It then compares those Federal Rules to specific immigration rules that create strict procedural requirements and explains how amending the immigration rules to track the Federal Rules of Civil Procedure more closely could better advance the goal of deciding cases fairly. It also identifies some limitations of using the Federal Rules as a model and highlights situations where the Federal Rules might not be a good fit for immigration court.

Part IV proposes a path for applying the lessons from Part III to build a framework for broader reform. This could include, as was done for the federal civil justice system, undertaking a comprehensive review of immigration rules with an eye toward addressing which promote, and which impede, decisions on the merits. Additional reforms could include creating a rules advisory committee comprised of judges, practitioners, and academics that would operate similarly to the advisory committees for the Federal Rules and have authority to propose and assess rule changes on an ongoing basis. Finally, Part V discusses potential objections to using the Federal Rules of Civil Procedure in an administrative adjudication system, such as immigration court.

It also is important to not overlook the increasing criminalization of immigration law. As Congress has tightened immigration protections and expanded the grounds for deportation, many scholars argue that noncitizens deserve many of the protections provided to criminal defendants--including the right to counsel, equivalent Fourth Amendment rights, protection against ex post facto application of newly enacted law, and limits on indefinite detention. This Article does not disagree with those proposals. Instead, it makes a different point: Even if courts continue to treat immigration hearings as civil matters, it is worth looking at the rules of the civil justice system in assessing whether immigration courts could be deciding cases more fairly. Aspiring to decide cases based on substantive law and evidence should not be a controversial proposition. Looking to the Federal Rules of Civil Procedure can further this goal.

[. . .]

If immigration cases are going to be treated as civil cases, then immigration rules should be guided, as appropriate, by the rules of the civil justice system and the process that created them. The civil justice system went through a period of reform that rejected arcane and overly proceduralized litigation rules and replaced them with the modern Federal Rules of Civil Procedure in order to foster decisions on the merits. These Rules, while frequently amended, have withstood the test of time, and no one is advocating a return to the overly strict pre-Federal Rules era. By contrast, immigration proceedings continue to be plagued by overly strict and overly harsh procedural requirements--requirements that make it harder for cases to be decided on the merits. Immigration proceedings are often a matter of life and death. Cases with such weighty interests should be heard on the merits. Looking to the history and enactment of the Federal Rules of Civil Procedure can provide a framework for reform of an immigration system that better promotes fair, efficient, and just decisionmaking.

Professor of Law, Drexel University Thomas R. Kline School of Law.