Excerpted From: Christopher Levesque, Kimberly Horner and Linus Chan, Process as Suffering: How U.S. Immigration Court Process and Culture Prevent Substantive Justice, 86 Albany Law Review 471 (2022-2023) (270 Footnotes) (Full Document)

LevesqueHornerChan.jpegIn this article, we argue that there is a form of double punishment unique to the immigration court system that attorneys and their noncitizen clients must navigate throughout changing political contexts. The first form of punishment is the court process during removal proceedings, and the second form of punishment is removal from the United States. Our interviews with removal defense attorneys in the U.S. Upper Midwest illustrate how these punishments intersect with one another and push attorneys to adopt strategies that may not lead to winning a case, but intend to protect their clients by losing as slowly as possible. These strategies reaffirm how the severity of deportation can be so harsh that non-citizens are willing to risk more exacerbated forms of punishment via extended contact with the court process to avoid removal from the United States. Focusing on the process-as-punishment, we explore what limitations there may be to past understandings of how legal stakeholders-- i.e., defense attorneys, judges, and prosecutors--mete out and negotiate “just” punishment in U.S. courts.

In what follows, we first engage Malcolm Feeley's work to re-frame the concept of double punishment in the context of the immigration court system--pointing out how fluctuation in immigration policy and the lack of access to substantive justice in immigration courts alter the way legal representatives navigate double punishment on behalf of their noncitizen clients. We analyze interviews with 35 removal defense attorneys conducted between August 2021 and December 2021 to understand why and how attorneys use time to navigate the double punishment faced by noncitizens in a way that often extends--rather than curtails--their clients' exposure to the punitive removal process. The timing of these interviews--during the first year of the Biden administration-- is a key component of our analysis, as it allows for insights into the role lawyers play in the context of changing national political rhetoric regarding immigrants.

Our interview sample includes removal defense lawyers who have defended clients in the immigration courts in Omaha, Nebraska, or Fort Snelling, Minnesota who are either practicing or had been in the past five years (13 operate out of Omaha, while 22 practice in Fort Snelling). Using Nvivo 12, a qualitative coding software, we use text-based queries and inductive coding schemes to identify conversations with attorneys that directly discuss double punishment (first as court process, second as deportation) and what time-based strategies they employ to work against these sanctions.

Our interviewees detail how attorneys' use of time first acts as a practical response to serve their client. By speeding a case up (or slowing it down), they are able to act upon the political volatility that shapes immigration adjudication at various institutional levels; this includes volatility at the top, such as changing presidential administrations who have diverging policy agendas, as well as volatility at the “street” or “meso” level where government employees (such as judges) shift and adapt their interactions with individuals subject to the law.

Second, attorneys use time to resist an unjust system and delay or prevent the imposition of punishment in the form of deportation. Our interviewees point out that their time-based strategies reflect the widely-held perception among removal defense attorneys that the immigration court process is unable to negotiate substantively just outcomes. As a form of resistance lawyering, attorneys advocate for their clients while also calling a referendum on an unjust and illegitimate legal system. Their work aims to mitigate harm through the act of slowing the process down, or--to use one attorney's words--“losing slowly.” Ultimately, we argue that immigration court serves as a counterfactual to Feeley's work, demonstrating how political instability and the lack of access to substantive justice require immigration attorneys to utilize time to navigate the “double punishment” faced by immigrants, either by speeding the process up or slowing it down.

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When describing the punitive nature of deportation, one temptation is to try and alleviate the punitive nature of the process and make it less harsh. One prime example has been the move to abolish immigration detention, which arguably is the most punitive aspect used in the deportation process. But our examination of the deportation process through the strategic considerations of removal defense attorneys reveals that the deportation process may be resistant to change its punitive nature. Recent studies of the Alternatives-to-Detention (“ATD”) model highlight some positives but maintain the critique that immigrant punishment is simply rearing its head beyond brick and mortar sanctions. In anticipating the future of immigration law and punishment, our results point out how the severity of the deportation sanction - coupled with an inability to produce equitable and substantively just results for the vast majority of those facing deportation - incentivizes making the process punitive in new and ever-expanding ways.

As such, backlogs and delays in the immigration court system signal a deeper and more complex set of concerns within immigration law itself. State power and boundary-making today criminalize immigrants in ways that encourage unbridled bias, discrimination, and a legislated system of exclusion. While attorney representation, judicial independence, and court efficiency are desirable goals, our interviews with attorneys demonstrate that any systemic change to immigration law necessitates greater reflection over whom the law chooses not to protect and how the state defines belonging in the first place.

Christopher Levesque, Assistant Professor, Kenyon College Department of Sociology.

Kimberly Horner, PhD candidate, University of Minnesota Humphrey School of Public Affairs.

Linus Chan, Associate Professor of Clinical Law at the University of Minnesota Law School.