Issue 3

A Response to David Blankfein-Tabachnick & Kevin A. Kordana, On Rawlsian Contractualism and the Private Law

Introduction

In their 2022 essay, David Blankfein-Tabachnick and Kevin Kordana reaffirm and further develop their long-standing position that John Rawls’s principles of justice, including the difference principle, should apply to determine and interpret private law, including not just property and contract law, but also torts.1 1.See David Blankfein-Tabachnick & Kevin A. Kordana, On Rawlsian Contractualism and the Private Law, 108 Va. L. Rev. 1657 (2022).Show More In recent papers, Samuel Scheffler and I have made similar arguments, though we have modestly departed from their views.2 2.Samuel Scheffler, Distributive Justice, the Basic Structure and the Place of Private Law, 35 Oxford J. Legal Stud. 213, 233 (2015); Samuel Freeman, Private Law and Rawls’s Principles of Justice, in Liberalism and Distributive Justice 167, 168 (2018) (arguing that Rawls’s principles apply to the private law).Show More I contend that, while the difference principle applies to much of the private law of property and contract, it does not apply to all tort law. Rather, in tort law, the difference principle applies primarily to economic torts in unjust economic systems that do not satisfy Rawls’s difference principle in the first place.3 3.Freeman, supra note 2, at 191–93 (arguing that in an unjust economy designed to maximally benefit the more rather than the less advantaged, the application of the difference principle to economic torts is a proper corrective to vast inequalities and economic injustices).Show More Blankfein-Tabachnick and Kordana (hereinafter “the Authors”) contest my argument, as well as my contention that Rawls’s difference principle requires maximizing the position of society’s less advantaged relative to the more advantaged, not their absolute position.4 4.Blankfein-Tabachnick & Kordana, supra note 1, at 1683–87 (contending that Rawls’s difference principle is “a maximizing and consequentialist theory, if a constrained one,” and not, as I contend, “an intra-schemic relational principle” of reciprocity that is nonconsequentialist and nonmaximizing).Show More After a brief summary of my position, I discuss why I believe the difference principle, under Rawls’s final interpretation of it, is often not suitable for consistent application in determining personal tort liability and remedies, even though the principle can play a significant role in economic torts involving the violation of economic rights and liberties. I also discuss why the difference principle is best understood to require society to maximize the relative, not absolute, position of the least advantaged. I conclude with some remarks on Rawls’s own reservations regarding courts’ interpretation and enforcement of the difference principle, or any principle that structures the economy, including economic efficiency and utilitarian wealth maximization.

  1.  See David Blankfein-Tabachnick & Kevin A. Kordana, On Rawlsian Contractualism and the Private Law, 108 Va. L. Rev. 1657 (2022). ↑
  2.  Samuel Scheffler, Distributive Justice, the Basic Structure and the Place of Private Law, 35 Oxford J. Legal Stud. 213, 233 (2015); Samuel Freeman, Private Law and Rawls’s Principles of Justice, in Liberalism and Distributive Justice 167, 168 (2018) (arguing that Rawls’s principles apply to the private law). ↑
  3.  Freeman, supra note 2, at 191–93 (arguing that in an unjust economy designed to maximally benefit the more rather than the less advantaged, the application of the difference principle to economic torts is a proper corrective to vast inequalities and economic injustices). ↑

  4.  Blankfein-Tabachnick & Kordana, supra note 1, at 1683–87 (contending that Rawls’s difference principle is “a maximizing and consequentialist theory, if a constrained one,” and not, as I contend, “an intra-schemic relational principle” of reciprocity that is nonconsequentialist and nonmaximizing). ↑

Free Exercise Claims Over Indigenous Sacred Sites: Justice Long Overdue

This Note argues for a change in the Supreme Court’s treatment of free exercise claims over Indigenous sacred sites. First, this Note reasons that, in Lyng v. Northwest Indian Cemetery Protective Ass’n, the Court set an impossibly high standard for parties bringing sacred site free exercise claims against the government. This insurmountable standard, masking itself as strict scrutiny, implicitly precludes any claimant from prevailing against a government action designated for a sacred site. Further, statutes aimed at protecting religious liberty have resolved little, leaving no choice but to rework the standard.

Next, this Note delves into three preexisting theories from like-minded critics of Lyng and analyzes the pros and cons of their proposed approaches to sacred site free exercise claims. Lastly, this Note sets forth a novel test that modifies the framework courts currently use in free exercise jurisprudence. Appreciating the fundamental distinctions between religious land and religious acts, this new test is uniquely tailored to address claims over sacred lands. This proposed test seeks to (1) give religious claimants a realistic opportunity to meet their initial burden in court, (2) put sacred site claims on equal footing with other free exercise claims, and (3) address the Supreme Court’s concerns with overexpanding free exercise doctrine.

Introduction

The Supreme Court’s treatment of Indigenous sacred sites in the free exercise realm1 1.U.S. Const. amend. I (“Congress shall make no law . . . prohibiting the free exercise [of religion] . . . .”).Show More is fatal both in theory and in fact. In its most recent decision in Lyng v. Northwest Cemetery Protective Ass’n,2 2.485 U.S. 439 (1988).Show More the Court authorized the government to proceed with a construction project that would damage a Native American3 3.I predominantly use the term “Native American” or “Indigenous” throughout the piece to refer to Native Peoples. Many cases referenced use the term “Indian.” I consider all these terms interchangeable for purposes of the Note.Show More sacred site on federal land.4 4.Lyng, 485 U.S. at 458 (holding that the government may permit timber harvesting and road construction on a Native American sacred site). The applicability of Lyng’s holding is limited to sacred sites on “publicly owned land.” Id. at 449.Show More In its opinion, the Court briefly acknowledged that Native American religious practices are “inextricably bound up with the unique features of the . . . area.”5 5.Id. at 451.Show More But in giving the government the green light to bulldoze a sacred site on federal land, the Court failed to meaningfully consider inherent distinctions between Native American religions and their Western counterparts. This Note argues that the legal standard established in Lyng kills most sacred site claims in the first instance because it fails to account for unique aspects of Native American sacred sites. In response, this Note proposes a modification to the legal standard to correct this problem and put Native Americans’ religious claims over sacred sites on equal footing with those of other religious claimants.

When contemplating Native American free exercise issues, it is important to understand that each Native American religion incorporates its own values, beliefs, and traditions into its practice.6 6.Native American Religions, Dialogue Inst., https://dialogueinstitute.org/native-american-religions [https://perma.cc/TV8G-XZZS] (last visited Nov. 20, 2023).Show More Yet there are commonalities across these religions, one of which is the importance of sacred sites.7 7.See Alex Tallchief Skibine, Towards a Balanced Approach for the Protection of Native American Sacred Sites, 17 Mich. J. Race & L. 269, 269 (2012) (“Protection of ‘sacred sites’ is very important to Native American religious practitioners because it is intrinsically tied to the survival of their cultures, and therefore to their survival as distinct peoples.”).Show More Sacred sites are specific locations with unique religious and cultural significance.8 8.The Protection of Indian Sacred Sites, Advisory Council on Hist. Pres., https://www.ach‌p.gov/indian-tribes-and-native-hawaiians/protection-indian-sacred-sites [https://perma.cc/J5‌K7-SJV8] (last visited Nov. 20, 2023).Show More Their existence is not exclusive to Native American religions, but the term’s connotation in such religions is unlike that embraced by most other religious groups.9 9.Thomas F. King, “Sacred Sites” Protection: Be Careful What You Ask For, Sacred Land Film Project (May 28, 2002), https://sacredland.org/wp-content/uploads/2017/07/Thomas_‌King-1.pdf [https://perma.cc/W5GK-SXTL].Show More For instance, Jerusalem is considered a sacred site in Christianity largely because of its rich history and centrality to the story of Jesus Christ’s death and salvation.10 10.What Makes Jerusalem So Holy?, BBC (Oct. 30, 2014), https://www.bbc.com/news/worl‌d-middle-east-26934435 [https://perma.cc/CUQ5-7KD2]; The Holy Land, Libr. of Cong. (Nov. 15, 2010), https://www.loc.gov/rr/amed/guide/hs-holyland.html#:~:text=For%20the%‌20Christian%2C%20the%20Holy,to%20have%20ascended%20to%20heaven [https://perma.‌cc/X5VG-AZ6N].Show More In contrast to Christianity and other major religions, the importance of sacred sites to Native American religions centers not around history or traditions, but rather, the individual spirits ever-present in sacred lands.11 11.King, supra note 9; see also Lyng v. Nw. Indian Cemetery Protective Ass’n, 485 U.S. 439, 460–61 (1988) (Brennan, J., dissenting) (“Where dogma lies at the heart of Western religions, Native American faith is inextricably bound to the use of land. The site-specific nature of Indian religious practice derives from the Native American perception that land is itself a sacred, living being.”).Show More This stems from the notion that Native American religions do not distinguish between the real world and the supernatural—the two dimensions are inherently intertwined.12 12.Native American Religions, Dialogue Inst., https://dialogueinstitute.org/native-american-religions [https://perma.cc/PC23-PDP8] (last visited Nov. 20, 2023).Show More Accordingly, each sacred site is markedly different from the next, possessing its own distinct spiritual beings and religious qualities.13 13.See King, supra note 9.Show More

Due to their incomparable religious worth, sacred sites are typically reserved for certain religious practices such as ceremonies and pilgrimages,14 14.Rosalyn R. LaPier, What Makes a Mountain, Hill or Prairie a ‘Sacred’ Place for Native Americans, Observer (Feb. 20, 2017, 11:43 AM), https://observer.com/2017/02/what-makes-a-mountain-hill-or-prairie-a-sacred-place-for-native-americans/ [https://perma.cc/WUL5-HR‌BF].Show More or left undisturbed entirely so as to not “disrupt[] the lives of deities” therein.15 15.Id.Show More Altering or destroying an Indigenous sacred site strips it of its spiritual essence,16 16.See Teisha Cloos, Destruction of Indigenous Sacred Site in the U.S. Heard Before Federal Court, Nat’l Indigenous Times (Nov. 17, 2021), https://nit.com.au/17-11-2021/2532/destructi‌on-of-indigenous-sacred-site-in-the-u-s-heard-before-federal-court [https://perma.cc/BS56-Q‌93Q] (“[W]ithout our sacred land, our religious traditions will be lost.”).Show More signifying to worshippers that their “prayers will not be heard”17 17.Amber L. McDonald, Note, Secularizing the Sacrosanct: Defining “Sacred” for Native American Sacred Sites Protection Legislation, 33 Hofstra L. Rev. 751, 751 (2004) (quoting Badoni v. Higginson, 638 F.2d 172, 177 (10th Cir. 1980)).Show More or their “ceremonies will be ineffective to prevent evil and disease,”18 18.Id.Show More among other potentially devastating impacts. Thus, preservation of sacred sites is essential to Native Americans’ ability to practice their respective religions, and irreparably damaging a sacred site can functionally eliminate a Native American religious group’s ability to freely exercise their religion.19 19.See Stephanie Hall Barclay & Michalyn Steele, Rethinking Protections for Indigenous Sacred Sites, 134 Harv. L. Rev. 1294, 1305 (2021) (“The practices attached to that specific locale are not portable. They must be performed in those places or the essential rites and the animating beliefs behind the rites are, by compulsion, extinguished.”).Show More

Despite the potentially catastrophic consequences of destroying sacred sites on religious freedom, free exercise claims seeking the protection of Indigenous sacred sites have seldom succeeded following the Supreme Court’s ruling in Lyng v. Northwest Indian Cemetery Protective Ass’n.20 20.485 U.S. 439 (1988).Show More In Lyng, Native American tribes brought a claim that the government’s construction project on a sacred site located on federally owned land violated their free exercise rights guaranteed by the First Amendment.21 21.Id. at 443.Show More The majority struck down this challenge, rejecting the claimants’ argument that the government imposed a substantial burden on their free exercise rights since they were not “coerced by the Government’s action into violating their religious beliefs.”22 22.Id. at 449.Show More Rather, it held that an individual has only been coerced into violating their religious beliefs if the government threatened to impose penalties for noncompliance.23 23.Id. at 440.Show More

Since Lyng, courts have repeatedly struck down free exercise claims involving Native American sacred sites,24 24.See, e.g., Apache Stronghold v. United States, No. 21-15295, slip op. at 27 (9th Cir. Mar. 1, 2024) (en banc), aff’g 38 F.4th 742 (9th Cir. 2022) (rejecting a claim seeking to prohibit construction of a copper mine on sacred ground); Badoni v. Higginson, 638 F.2d 172, 177–79 (10th Cir. 1980) (rejecting a claim that the government’s management and allowance of public access to a sacred monument and nearby lake has desecrated its sacredness); Slockish v. U.S. Fed. Highway Admin., No. 08-cv-01169, 2018 WL 2875896, at *1–2 (D. Or. June 11, 2018) (denying relief for plaintiffs seeking to enjoin a highway construction project on a sacred site).Show More reaffirming the notion that the government has imposed a substantial burden on a Native American party’s free exercise rights concerning a sacred site only when the government action amounts to an affirmative act of coercion under threat of sanctions.25 25.Apache Stronghold, slip op. at 27 (holding that the Tribe’s claim fails under Lyng because it does not coerce them to act contrary to their beliefs under threat of sanctions).Show More Although Congress subsequently passed multiple laws aimed at protecting religious freedom,26 26.See Religious Freedom Restoration Act, 42 U.S.C. §§ 2000bb–2000bb-4 (“Government shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability”); Religious Land Use and Institutionalized Persons Act, 42 U.S.C. §§ 2000cc–2000cc-5 (“No government shall impose or implement a land use regulation in a manner that imposes a substantial burden on the religious exercise of a person, including a religious assembly or institution, unless the government demonstrates that imposition of the burden on that person, assembly, or institution—(A) is in furtherance of a compelling government interest; and (B) is the least restrictive means of furthering that compelling governmental interest.”).Show More including one directed specifically at Native American religious liberty,27 27.See American Indian Religious Freedom Act, 42 U.S.C. § 1996.Show More these statutes have also failed to create a judicially enforceable cause of action.28 28.See Lyng, 485 U.S. at 455 (“[The American Indian Religious Freedom Act (“AIRFA”) does] not ‘confer special religious rights on Indians,’ [does] ‘not change any existing State or Federal law,’ and in fact ‘has no teeth in it.’” (quoting 124 Cong. Rec. 21444–45 (1978))); see also Wilson v. Block, 708 F.2d 735, 747 (D.C. Cir. 1983) (“AIRFA requires federal agencies to consider, but not necessarily to defer to, Indian religious values.”).Show More

This Note argues for a change in the Supreme Court’s characterization and treatment of sacred sites in free exercise cases. Part I provides a background of free exercise jurisprudence and legislation pertaining to Native American sacred sites. It presents an overview of the substantial burden test established originally in Sherbert v. Verner29 29.374 U.S. 398 (1963).Show More and Wisconsin v. Yoder30 30.406 U.S. 205 (1972).Show More and adopted in Lyng and its progeny, followed by an analysis of failed statutory attempts to protect Native American religious liberty. Part I also highlights why Lyng’s failure to protect free exercise rights calls for a reformulation of sacred site claims within the contours of the Sherbert/Yoder test. Part II provides a synopsis of existing proposed alternatives to the Lyng majority’s substantial burden test for sacred site free exercise claims. It analyzes and critiques theories posited by Justice Brennan in the Lyng dissent, Professor Alex Tallchief Skibine, and Professors Stephanie Barclay and Michalyn Steele. Part III synthesizes the benefits and drawbacks of the approaches laid out in Part II. Building off this analysis, it offers a new test which broadens the definition of “coercion” for land-based claims within the substantial burden framework. This test will put Native American sacred site claims on equal footing with other religious claims but remains sufficiently narrowly tailored to address concerns of overexpanding free exercise rights generally.

  1.  U.S. Const. amend. I (“Congress shall make no law . . . prohibiting the free exercise [of religion] . . . .”). ↑
  2.  485 U.S. 439 (1988). ↑
  3.  I predominantly use the term “Native American” or “Indigenous” throughout the piece to refer to Native Peoples. Many cases referenced use the term “Indian.” I consider all these terms interchangeable for purposes of the Note. ↑
  4.  Lyng, 485 U.S. at 458 (holding that the government may permit timber harvesting and road construction on a Native American sacred site). The applicability of Lyng’s holding is limited to sacred sites on “publicly owned land.” Id. at 449. ↑
  5.  Id. at 451. ↑
  6.  Native American Religions, Dialogue Inst., https://dialogueinstitute.org/native-american-religions [https://perma.cc/TV8G-XZZS] (last visited Nov. 20, 2023). ↑
  7.  See Alex Tallchief Skibine, Towards a Balanced Approach for the Protection of Native American Sacred Sites, 17 Mich. J. Race & L. 269, 269 (2012) (“Protection of ‘sacred sites’ is very important to Native American religious practitioners because it is intrinsically tied to the survival of their cultures, and therefore to their survival as distinct peoples.”). ↑
  8.  The Protection of Indian Sacred Sites, Advisory Council on Hist. Pres., https://www.ach‌p.gov/indian-tribes-and-native-hawaiians/protection-indian-sacred-sites [https://perma.cc/J5‌K7-SJV8] (last visited Nov. 20, 2023). ↑
  9.  Thomas F. King, “Sacred Sites” Protection: Be Careful What You Ask For, Sacred Land Film Project (May 28, 2002), https://sacredland.org/wp-content/uploads/2017/07/Thomas_‌King-1.pdf [https://perma.cc/W5GK-SXTL]. ↑
  10.  What Makes Jerusalem So Holy?, BBC (Oct. 30, 2014), https://www.bbc.com/news/worl‌d-middle-east-26934435 [https://perma.cc/CUQ5-7KD2]; The Holy Land, Libr. of Cong. (Nov. 15, 2010), https://www.loc.gov/rr/amed/guide/hs-holyland.html#:~:text=For%20the%‌20Christian%2C%20the%20Holy,to%20have%20ascended%20to%20heaven [https://perma.‌cc/X5VG-AZ6N]. ↑
  11.  King, supra note 9; see also Lyng v. Nw. Indian Cemetery Protective Ass’n, 485 U.S. 439, 460–61 (1988) (Brennan, J., dissenting) (“Where dogma lies at the heart of Western religions, Native American faith is inextricably bound to the use of land. The site-specific nature of Indian religious practice derives from the Native American perception that land is itself a sacred, living being.”). ↑
  12.  Native American Religions, Dialogue Inst., https://dialogueinstitute.org/native-american-religions [https://perma.cc/PC23-PDP8] (last visited Nov. 20, 2023). ↑
  13.  See King, supra note 9. ↑
  14.  Rosalyn R. LaPier, What Makes a Mountain, Hill or Prairie a ‘Sacred’ Place for Native Americans, Observer (Feb. 20, 2017, 11:43 AM), https://observer.com/2017/02/what-makes-a-mountain-hill-or-prairie-a-sacred-place-for-native-americans/ [https://perma.cc/WUL5-HR‌BF]. ↑
  15.  Id. ↑
  16.  See Teisha Cloos, Destruction of Indigenous Sacred Site in the U.S. Heard Before Federal Court, Nat’l Indigenous Times (Nov. 17, 2021), https://nit.com.au/17-11-2021/2532/destructi‌on-of-indigenous-sacred-site-in-the-u-s-heard-before-federal-court [https://perma.cc/BS56-Q‌93Q] (“[W]ithout our sacred land, our religious traditions will be lost.”). ↑
  17.  Amber L. McDonald, Note, Secularizing the Sacrosanct: Defining “Sacred” for Native American Sacred Sites Protection Legislation, 33 Hofstra L. Rev. 751, 751 (2004) (quoting Badoni v. Higginson, 638 F.2d 172, 177 (10th Cir. 1980)). ↑
  18.  Id. ↑
  19.  See Stephanie Hall Barclay & Michalyn Steele, Rethinking Protections for Indigenous Sacred Sites, 134 Harv. L. Rev. 1294, 1305 (2021) (“The practices attached to that specific locale are not portable. They must be performed in those places or the essential rites and the animating beliefs behind the rites are, by compulsion, extinguished.”). ↑
  20.  485 U.S. 439 (1988). ↑
  21.  Id. at 443. ↑
  22.  Id. at 449. ↑
  23.  Id. at 440. ↑
  24.  See, e.g., Apache Stronghold v. United States, No. 21-15295, slip op. at 27 (9th Cir. Mar. 1, 2024) (en banc), aff’g 38 F.4th 742 (9th Cir. 2022) (rejecting a claim seeking to prohibit construction of a copper mine on sacred ground); Badoni v. Higginson, 638 F.2d 172, 177–79 (10th Cir. 1980) (rejecting a claim that the government’s management and allowance of public access to a sacred monument and nearby lake has desecrated its sacredness); Slockish v. U.S. Fed. Highway Admin., No. 08-cv-01169, 2018 WL 2875896, at *1–2 (D. Or. June 11, 2018) (denying relief for plaintiffs seeking to enjoin a highway construction project on a sacred site). ↑
  25.  Apache Stronghold, slip op. at 27 (holding that the Tribe’s claim fails under Lyng because it does not coerce them to act contrary to their beliefs under threat of sanctions). ↑
  26.  See Religious Freedom Restoration Act, 42 U.S.C. §§ 2000bb–2000bb-4 (“Government shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability”); Religious Land Use and Institutionalized Persons Act, 42 U.S.C. §§ 2000cc–2000cc-5 (“No government shall impose or implement a land use regulation in a manner that imposes a substantial burden on the religious exercise of a person, including a religious assembly or institution, unless the government demonstrates that imposition of the burden on that person, assembly, or institution—(A) is in furtherance of a compelling government interest; and (B) is the least restrictive means of furthering that compelling governmental interest.”). ↑
  27.  See American Indian Religious Freedom Act, 42 U.S.C. § 1996. ↑
  28.  See Lyng, 485 U.S. at 455 (“[The American Indian Religious Freedom Act (“AIRFA”) does] not ‘confer special religious rights on Indians,’ [does] ‘not change any existing State or Federal law,’ and in fact ‘has no teeth in it.’” (quoting 124 Cong. Rec. 21444–45 (1978))); see also Wilson v. Block, 708 F.2d 735, 747 (D.C. Cir. 1983) (“AIRFA requires federal agencies to consider, but not necessarily to defer to, Indian religious values.”). ↑
  29.  374 U.S. 398 (1963). ↑

  30.  406 U.S. 205 (1972). ↑

Detained Immigration Courts

This Article traces the modern development and institutional design of detained immigration courts—that is, the courts that tie detention to deportation. Since the early 1980s, judges in detained immigration courts have presided over more than 3.6 million court cases of persons held in immigration custody, almost all men from Latin America, most of whom are charged with only civil violations of the immigration law. Primary sources indicate that detained immigration courts are concentrated outside major urban areas, most commonly in the South, and often housed in structures not traditionally associated with courts, including inside prisons, jails, detention processing centers, makeshift tents, shipping containers, and border patrol stations. Other defining features of these detained courts include case completion goals prioritizing speed, minimal representation by counsel, heavy reliance on video adjudication, constrained public access, and arrest and venue rules that give the government unfettered control over the court that hears the case. Accompanying these developments, judges working inside detained courts have become increasingly separated from the rest of the immigration judge corps and, when compared to their counterparts in the nondetained courts, are more likely to be male, to have served in the military, and to have worked as prosecutors.

This Article argues that the largely unregulated design elements of detained immigration courts threaten due process and fundamental fairness by fostering a segregated court system that assigns systematic disadvantage to those who are detained during their case. Recognizing the structure and function of the detained immigration court system has a number of important implications for organizing efforts to reduce reliance on detention, policy proposals for restructuring the immigration courts, and future research on judicial decision-making.

Introduction

Immigration judges have long played an important role as arbiters of individual deportation cases. Although immigration judges are entrusted with ensuring fairness and due process in agency adjudication, their caseloads, priorities, and funding have historically been inexorably tied to the government’s deportation agenda. This fundamental tension between guarding the integrity of the judicial process and advancing the executive’s enforcement priorities has consistently plagued the immigration courts. Nowhere is this tension more apparent than inside detention, where presidential administrations of both parties have focused their deportation efforts.

Over the past four decades, the number of people experiencing detention during their immigration court process has ballooned. In 1983, when the Executive Office for Immigration Review (“EOIR”) was established as an agency to house the immigration courts within the Department of Justice (“DOJ”), only 678 people began their deportation cases in detention; by 2019, that number had reached an all-time high of 198,490 persons.1 1.See infra Figure 3.Show More Across Republican and Democratic administrations, a range of immigration enforcement policies have solidified the tie between detention and adjudication.2 2.See, e.g., Exec. Order No. 13,767, 82 Fed. Reg. 8793, 8795 (Jan. 25, 2017) (ordering detention for “[noncitizens] apprehended for violations of immigration law pending the outcome of their removal proceedings”); Memorandum from Jeh Charles Johnson, Sec’y, U.S. Dep’t of Homeland Sec., to Thomas S. Winkowski, Acting Dir., U.S. Immigr. & Customs Enf’t, R. Gil Kerlikowske, Comm’r, U.S. Customs & Border Prot., Leon Rodriguez, Dir., U.S. Citizenship & Immigr. Servs., Alan D. Bersin, Acting Assistant Sec’y for Pol’y, Policies for the Apprehension, Detention and Removal of Undocumented Immigrants (Nov. 20, 2014) (directing that immigration detention bed space be utilized to pursue the agency’s removal priorities).Show More Detention has also garnered approval of the U.S. Supreme Court, which has declined thus far to limit the government’s power to detain noncitizens in the name of removal.3 3.See, e.g., Johnson v. Arteaga-Martinez, 142 S. Ct. 1827, 1833 (2022) (concluding that § 241 of the Immigration and Nationality Act (“INA”) does not allow for a bond hearing for those seeking withholding of removal in immigration court after a prior removal order); Dep’t of Homeland Sec. v. Thuraissigiam, 140 S. Ct. 1959, 1970 (2020) (noting that “[m]andatory detention” under INA § 235(b)(1)(B) applies during a credible fear review proceeding before an immigration judge); Nielsen v. Preap, 139 S. Ct. 954, 970–71 (2019) (holding that INA § 236(c) mandates arrest and detention of any noncitizen with certain predicate offenses, including if the arrest occurs years after release from criminal custody); Jennings v. Rodriguez, 138 S. Ct. 830, 846–47 (2018) (finding no implicit six-month limit to pre-removal detention under the INA).Show More Yet we know little about the trial-level courts that decide the cases of individuals who are detained, and how these courts may differ from their sister courts that hear the cases of individuals who are not detained.4 4.One of the reasons for this blind spot, as Stephen Yeazell has noted, is that scholars tend to focus their research on appellate courts and the Supreme Court, rather than trial courts. Stephen C. Yeazell, Courting Ignorance: Why We Know So Little About Our Most Important Courts, 143 Daedalus 129, 130 (2014). Our Article thus contributes to the small but growing body of scholarship that investigates these lower-level courts. See, e.g., Alexandra Natapoff, Criminal Municipal Courts, 134 Harv. L. Rev. 964, 965 (2021) (documenting how the lowest tier of criminal courts—municipal courts—have been overlooked in criminal law scholarship); Daniel Wilf-Townsend, Assembly-Line Plaintiffs, 135 Harv. L. Rev. 1704, 1706 (2022) (revealing how the civil dockets of state trial courts have become dominated by massive, repeat filings of large corporations); Tonya L. Brito, Kathryn A. Sabbeth, Jessica K. Steinberg & Lauren Sudeall, Racial Capitalism in the Civil Courts, 122 Colum. L. Rev. 1243, 1243 (2022) (examining consumer debt collection actions in civil courts as a case study to show how court practices facilitate racial capitalism); Kathryn A. Sabbeth, Eviction Courts, 18 U. St. Thomas L.J. 359, 360 (2022) (tracing how the structure of eviction courts undermines tenants’ rights); Colleen F. Shanahan, Jessica K. Steinberg, Alyx Mark & Anna E. Carpenter, The Institutional Mismatch of State Civil Courts, 122 Colum. L. Rev. 1471, 1471 (2022) (arguing that state civil courts function as a type of emergency room for the social needs of litigants); Andrew Hammond, Pleading Poverty in Federal Court, 128 Yale L.J. 1478, 1478 (2019) (studying lower-level district court practices for reviewing in forma pauperis).Show More

This Article is the first to trace the emergence, growth, and significance of what we call detained immigration courts—that is, U.S. immigration courts dedicated to hearing the removal cases of individuals who are in custody.5 5.The Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub. L. No. 104-208, Div. C, 110 Stat. 3009-546, replaced the former exclusion and deportation proceedings with a unified “removal proceeding.” Although removal is by far the most common case type today, judges in detention preside over other case types as well, such as credible fear review proceedings. See infra Section III.A & Appendix, Sections A, E.Show More Tracing the history of immigration adjudication, we show how, over time, detained courts and the judges who work inside them have been severed organizationally from the rest of the immigration court system—the nondetained immigration courts that hear the immigration cases of noncitizens who are not imprisoned.6 6.Shoba Sivaprasad Wadhia and Christopher J. Walker have recently explained that the modern immigration court “has two dockets: one for respondents outside of detention and a second for those detained.” Shoba Sivaprasad Wadhia & Christopher J. Walker, The Case Against Chevron Deference in Immigration Adjudication, 70 Duke L.J. 1197, 1207 (2021). We show how these splintered dockets have actually fostered two separate immigration court systems, each with its own set of judges, courtrooms, and procedures.Show More Relying on a range of primary sources—including public records,7 7.We obtained internal memoranda and other documents regarding the operation of the immigration courts through the Freedom of Information Act. Additionally, as described in the Appendix, we analyzed EOIR’s administrative database of court records made available on the agency’s web page.Show More legislative history, agency reports, and court observations8 8.Observations included immigration courts and associated detention facilities in Adelanto, California; Chicago, Illinois; Elizabeth, New Jersey; Houston, Texas; Los Angeles, California; Newark, New Jersey; Pearsall, Texas; and San Antonio, Texas.Show More—we identify defining features of detained immigration courts that distinguish them from nondetained courts, including courtrooms built inside carceral facilities, lightning-fast case completion goals, court locations concentrated in small and rural cities and in the South, and loosening of jurisdictional boundaries in assigning judges to cases. Since 1983, when the EOIR was established, detained courts have operated as sites of mass adjudication with sky-high deportation rates and little representation by counsel: 93% of detained individuals were deported, and only 16% found lawyers.9 9.See infra notes 187, 292 and accompanying text.Show More

Persons who are detained during the adjudication of their immigration court case are held in a growing complex of immigration detention facilities, county jails, and state and federal prisons, many of which are owned and/or operated by private, for-profit contractors.10 10.For an analysis of the significance of privatized immigration enforcement, including in the detention context, see Jennifer M. Chacón, Privatized Immigration Enforcement, 52 Harv. C.R.-C.L. L. Rev. 1, 2 (2017).Show More On the border, migrants are sometimes incarcerated in temporary Border Patrol facilities, or—through a controversial Trump-era court program known as the Migrant Protection Protocols (“MPP”)—taken in the custody of Border Patrol officers to makeshift tent courts where immigration judges appear from distant locations on a video screen.11 11.The MPP has been embroiled in litigation since the Biden Administration first attempted to terminate the program in January 2021. See infra note 170. Meanwhile, time spent in inhospitable conditions in Border Patrol facilities has increased under the Biden Administration’s expedited asylum policy. Priscilla Alvarez, Adult Migrants Are Held in Border Facilities Too Long Amid Biden Administration Policy Changes, Sources Say, CNN (July 18, 2023, 6:00 AM), https://www.cnn.com/2023/07/18/politics/migrants-border-facil‌ities-biden-policies/index.html [https://perma.cc/L39U-9RTE].Show More Unaccompanied children, who we find were also sometimes detained during their entire court proceeding, have been held in shelters, hotels, and even juvenile jails designed for youth who have been adjudicated as delinquent.12 12.Amnesty Int’l, United States of America, “Why Am I Here?”: Children in Immigration Detention 17–21 (June 2003), https://www.amnestyusa.org/wp-content/uploads/2017/09/why‌_am_i_here.pdf [https://perma.cc/4P9X-UBZP].Show More

Although immigration proceedings are legally characterized as “civil,”13 13.Immigr. & Naturalization Serv. v. Lopez-Mendoza, 468 U.S. 1032, 1038 (1984) (“A deportation proceeding is a purely civil action to determine eligibility to remain in this country, not to punish an unlawful entry . . . .”).Show More the parallels between pretrial detention in immigration court and criminal court are striking.14 14.See generally Cecilia Menjívar, Andrea Gómez Cervantes & Daniel Alvord, The Expansion of “Crimmigration,” Mass Detention, and Deportation, 12 Socio. Compass 1, 2 (2018) (examining the global expansion of “crimmigration” and how criminalization practices in immigration have expanded in the United States in particular).Show More As those familiar with the criminal legal system know well, the use of pretrial detention can turn the court system into one that pressures individuals to waive their rights and plead guilty.15 15.Malcolm M. Feeley, The Process is the Punishment: Handling Cases in Lower Criminal Court 33–34 (1979) (demonstrating that the pretrial process informally punishes defendants and pressures guilty pleas); Alexandra Natapoff, Misdemeanors, 85 S. Cal. L. Rev. 1313, 1317 (2012) (showing how the misdemeanor pretrial system results in “vulnerable, underrepresented defendants” pleading guilty, “even in the absence of evidence”).Show More Study after study has found that persons who are detained during the criminal process have worse outcomes than those who are released from custody.16 16.See, e.g., Paul Heaton, Sandra Mayson & Megan Stevenson, The Downstream Consequences of Misdemeanor Pretrial Detention, 69 Stan. L. Rev. 711, 717 (2017) (finding that “defendants who are detained on a misdemeanor charge are much more likely than similarly situated releasees to plead guilty and serve jail time”); Megan T. Stevenson, Distortion of Justice: How the Inability to Pay Bail Affects Case Outcomes, 34 J.L. Econ. & Org. 511, 511 (2018) (demonstrating that pretrial detention increases the likelihood of conviction, the length of sentence, and court fees owed).Show More Research has also documented how pretrial detention not only fails to reduce future crime, but also comes at a high cost to taxpayers and poses broader societal harms, including reduced labor market participation and detrimental impacts on families separated from their loved ones.17 17.See, e.g., Crystal S. Yang, Toward an Optimal Bail System, 92 N.Y.U. L. Rev. 1399, 1416–29 (2017) (summarizing research on the costs of pretrial detention, including societal and economic impacts); Will Dobbie, Jacob Goldin & Crystal S. Yang, The Effects of Pretrial Detention on Conviction, Future Crime, and Employment: Evidence from Randomly Assigned Judges, 108 Am. Econ. Rev. 201, 201 (2018) (finding that pretrial detention increases the probability of conviction and lowers labor market participation).Show MoreMoreover, the pains of detention are felt disproportionately by communities of color and the poor, who are unable to afford to post bond and are more likely to be labeled a “danger” or “flight risk” by a judge.18 18.See, e.g., Marvin D. Free, Jr., Race and Presentencing Decisions in the United States: A Summary and Critique of the Research, 27 Crim. Just. Rev. 203, 206–07 (2002) (concluding that disparities in bail amounts are likely the result of racial discrimination); Ellen A. Donnelly & John M. MacDonald, The Downstream Effects of Bail and Pretrial Detention on Racial Disparities in Incarceration, 108 J. Crim. L. & Criminology 775, 775 (2019) (analyzing how pretrial detention contributes to the Black-white disparity in rate of conviction and sentence length).Show More

For the most part, scholars have explored the topics of immigrant detention and immigration courts separately, without focusing on the connection between the two. On the detention side, the emerging multi-disciplinary field of detention studies has exposed the deplorable conditions in immigration prisons, such as the lack of programming, inferior health care, and abuse by guards.19 19.See, e.g., Anil Kalhan, Rethinking Immigration Detention, 110 Colum. L. Rev. Sidebar 42, 43 (2010) (outlining the ways that immigrant detention has transformed into a quasi-punitive system); Jamie Longazel, Jake Berman & Benjamin Fleury-Steiner, The Pains of Immigrant Imprisonment, 10 Soc. Compass 989, 990 (2016) (discussing the pain detention inflicts on migrants and their communities); Margaret H. Taylor, Detained Aliens Challenging Conditions of Confinement and the Porous Border of the Plenary Power Doctrine, 22 Hastings Const. L.Q. 1087, 1117–19 (1995) (detailing inadequate conditions at INS detention facilities); Valeria Gomez & Marcy L. Karin, Menstrual Justice in Immigration Detention, 41 Colum. J. Gender & L. 123 (2021) (highlighting the inadequate access to menstrual products inside detention).Show More Researchers have also highlighted the ways in which U.S. detention policies are grounded in racialized presumptions about community safety and criminality.20 20.See, e.g., David Manuel Hernández, Pursuant to Deportation: Latinos and Immigrant Detention, 6 Latino Stud. 35, 49–53 (2008); Tamara K. Nopper, Why Black Immigrants Matter: Refocusing the Discussion on Racism and Immigration Enforcement, in Keeping Out the Other: A Critical Introduction to Immigration Enforcement Today 204, 209–13 (David C. Brotherton & Philip Kretsedemas eds., 2008). Show MoreGeographers have probed the powerful role of private companies, states, and localities in detention’s expansion.21 21.See, e.g., Lauren L. Martin & Matthew L. Mitchelson, Geographies of Detention and Imprisonment: Interrogating Spatial Practices of Confinement, Discipline, Law, and State Power, 3 Geo. Compass 459, 472 (2009).Show MoreLegal scholars have published widely on the constitutionality of mandatory detention provisions that have thus far survived legal challenge before the U.S. Supreme Court.22 22.See, e.g., Geoffrey Heeren, Pulling Teeth: The State of Mandatory Immigration Detention, 45 Harv. C.R.-C.L. L. Rev. 601, 603 (2010); Faiza W. Sayed, Challenging Detention: Why Immigrant Detainees Receive Less Process than “Enemy Combatants” and Why They Deserve More, 111 Colum. L. Rev. 1833, 1835 (2011); Philip L. Torrey, Rethinking Immigration’s Mandatory Detention Regime: Politics, Profit, and the Meaning of “Custody,” 48 U. Mich. J.L. Reform 879, 881 (2015).Show More A common theme running through these diverse literatures is that migrant detention, despite its “civil” status, functions as a form of punishment and is experienced by migrants and their communities as cruel and inhumane.23 23.See, e.g., Kristina Shull, Detention Empire: Reagan’s War on Immigrants and the Seeds of Resistance 3 (2022) (“In practice, detention looks and feels like prison . . . .”); Mark Dow, Designed to Punish: Immigrant Detention and Deportation, 74 Soc. Res. 533, 536 (2007) (“I have seen that immigration detention punishes . . . .”); Jessica Ordaz, Migrant Detention Archives: Histories of Pain and Solidarity, 102 S. Cal. Q. 250, 259 (2020) (“[M]igrants describe detention as a place of punishment and pain.”); César Cuauhtémoc García Hernández, Immigration Detention as Punishment, 61 UCLA L. Rev. 1346, 1360 (2014) (“The legislative origins of today’s immigration detention system show a desire to punish noncitizens . . . .”).Show More

A separate body of literature has studied the U.S. immigration courts, yet for the most part has not addressed detained courts as a distinct area of inquiry. For example, without acknowledging detained courts, scholars have critiqued the overburdening of immigration judges and the court backlog,24 24.See, e.g., Stuart L. Lustig, Kevin Delucchi, Lakshika Tennakoon, Brent Kaul, Dana Leigh Marks & Denise Slavin, Burnout and Stress Among United States Immigration Judges, 13 Bender’s Immigr. Bull. 22, 22 (2008) (concluding that immigration judges suffered from secondary traumatic stress and high amounts of burnout); Lindsay M. Harris, The One-Year Bar to Asylum in the Age of the Immigration Court Backlog, 2016 Wis. L. Rev. 1185, 1205 (“In recent years, increasing caseloads have begun to overwhelm courts and judges.”); Donald Kerwin & Evin Millet, The US Immigration Courts, Dumping Ground for the Nation’s Systemic Immigration Failures: The Causes, Composition, and Politically Difficult Solutions to the Court Backlog, 11 J. on Migration & Hum. Sec. 194, 194 (2023) (attributing the immigration court backlog “to systemic failures in the broader immigration system that negatively affect the immigration courts,” including visa backlogs and Congress’s failure to reform the immigration law).Show More the lack of decisional independence among immigration judges,25 25.See, e.g., Stephen H. Legomsky, Deportation and the War on Independence, 91 Cornell L. Rev. 369, 369–85 (2006) (identifying how independence among immigration judges has been “eviscerat[ed]”); Mary Holper, Taking Liberty Decisions Away from “Imitation” Judges, 80 Md. L. Rev. 1076, 1087–88 (2021) (outlining how the DOJ “reined the judges in” to align with the Attorney General’s priorities).Show More the politicization of immigration courts,26 26.See, e.g., Alison Peck, The Accidental History of the U.S. Immigration Courts: War, Fear, and the Roots of Dysfunction 5–7 (2021) (arguing that the basic structure of the U.S. immigration courts is flawed); Catherine Y. Kim, The President’s Immigration Courts, 68 Emory L.J. 1, 22–34 (2018) (demonstrating how the Trump Administration politicized immigration adjudication); Fatma E. Marouf, Executive Overreaching in Immigration Adjudication, 93 Tul. L. Rev. 707, 707 (2019) (outlining how the executive can interfere with the process of adjudicating immigration cases); Amit Jain, Bureaucrats in Robes: Immigration “Judges” and the Trappings of “Courts,” 33 Geo. Immigr. L.J. 261, 265 (2019) (characterizing the immigration courts as a hierarchical bureaucracy that advances executive branch policy); Jayanth K. Krishnan, Judicial Power—Immigration-Style, 73 Admin. L. Rev. 317, 323 (2021) (“Ideology and politics are an inescapable part of the atmosphere in which [immigration judges] hear cases and issue their decisions.”).Show More and the insufficiency of constitutional and procedural protections in removal proceedings.27 27.See, e.g., Stella Burch Elias, “Good Reason to Believe”: Widespread Constitutional Violations in the Course of Immigration Enforcement and the Case for Revisiting Lopez-Mendoza, 2008 Wis. L. Rev. 1109, 1115; Jennifer M. Chacón, A Diversion of Attention? Immigration Courts and the Adjudication of Fourth and Fifth Amendment Rights, 59 Duke L.J. 1563, 1563 (2010); Tania N. Valdez, Pleading the Fifth in Immigration Court: A Regulatory Proposal, 98 Wash. U. L. Rev. 1343, 1343–44 (2021) (highlighting the lack of procedural protections in immigration court).Show More Empirical scholarship on immigration courts has often drawn conclusions by examining judicial decision-making only in cases that do not involve detention,28 28.See, e.g., Dylan Farrell-Bryan, Relief or Removal: State Logics of Deservingness and Masculinity for Immigrant Men in Removal Proceedings, 56 L. & Soc’y Rev. 167, 173–74 (2022) (studying a Northeast immigration court that “primarily handles the cases of individuals who are not detained”); David Hausman & Jayashri Srikantiah, Time, Due Process, and Representation: An Empirical and Legal Analysis of Continuances in Immigration Court, 84 Fordham L. Rev. 1823, 1826 (2016) (analyzing the nondetained cases of children and families); Jaya Ramji-Nogales, Andrew I. Schoenholtz & Philip G. Schrag, Refugee Roulette: Disparities in Asylum Adjudication, 60 Stan. L. Rev. 295, 327 (2007) (taking steps to exclude detained cases from analysis).Show More or treated detained and nondetained cases as coexisting in a unitary court system.29 29.See, e.g., Nicholas R. Bednar, The Public Administration of Justice, 44 Cardozo L. Rev. 2139, 2162–63 (2023); Daniel E. Chand, William D. Schreckhise & Marianne L. Bowers, The Dynamics of State and Local Contexts and Immigration Asylum Hearing Decisions, 27 J. Pub. Admin. Rsch. & Theory 182, 191–93, tbls.3, 4 & 5 (2017); Catherine Y. Kim & Amy Semet, An Empirical Study of Political Control Over Immigration Adjudication, 108 Geo. L.J. 579, 588–89 (2020); Emily Ryo & Ian Peacock, Represented but Unequal: The Contingent Effect of Legal Representation in Removal Proceedings, 55 L. & Soc’y Rev. 634, 635 (2021); Banks Miller, Linda Camp Keith & Jennifer S. Holmes, Immigration Judges and U.S. Asylum Policy 10 (2015).Show MoreTo the extent scholars have turned their lens on detained courts, such work has focused on one slice of adjudication, such as bond hearings30 30.See, e.g., Emily Ryo, Representing Immigrants: The Role of Lawyers in Immigration Bond Hearings, 52 L. & Soc’y Rev. 503, 503 (2018); Denise L. Gilman, To Loose the Bonds: The Deceptive Promise of Freedom from Pretrial Immigration Detention, 92 Ind. L.J. 157, 157 (2016).Show Moreand representation by counsel,31 31.See, e.g., Steering Comm. of the N.Y. Immigrant Representation Study Rep., Accessing Justice: The Availability and Adequacy of Counsel in Removal Proceedings, 33 Cardozo L. Rev. 357, 361 (2011); Aditi Shah, Constitutional and Procedural Pathways to Freedom from Immigration Detention: Increasing Access to Legal Representation, 35 Geo. Immigr. L.J. 181, 181 (2020); Talia Peleg & Ruben Loyo, Transforming Deportation Defense: Lessons Learned from the Nation’s First Public Defender Program for Detained Immigrants, 22 CUNY L. Rev. 193, 193 (2018).Show More or presented a case study of a single detained immigration court.32 32.See, e.g., Asad L. Asad, Deportation Decisions: Judicial Decision-Making in an American Immigration Court, 63 Am. Behav. Scientist 1221, 1241–44 (2019) (drawing on observations of hearings in the Dallas immigration court); Robert E. Koulish, Systemic Deterrence Against Prospective Asylum Seekers: A Study of the South Texas Immigration District, 19 N.Y.U. Rev. L. & Soc. Change 529, 553 (1992) (observing the Harlingen immigration court); Peter L. Markowitz, Barriers to Representation for Detained Immigrants Facing Deportation: Varick Street Detention Facility, A Case Study, 78 Fordham L. Rev. 541, 553 (2009) (studying the Varick Street court in New York); Christopher Levesque et al., Crimmigrating Narratives: Examining Third-Party Observations of US Detained Immigration Court, 48 L. & Soc. Inquiry 407, 407 (2023) (analyzing data from a court observation project conducted in the Fort Snelling immigration court). All of these detained courts are included in Figure 1, infra.Show More

Our project seeks to meld together these two important areas of research—on immigrant detention and immigration courts—to place a sustained focus on the understudied realm of the detained immigration court system. To borrow Juliet Stumpf’s words, we seek to understand how “[d]etention [d]rives [d]eportation,” or perhaps more precisely in our case, the role that detained immigration courts have played in the institutional development of sites and practices that fuel deportation in ways that threaten due process and fundamental fairness.33 33.Juliet P. Stumpf, Civil Detention and Other Oxymorons, 40 Queen’s L.J. 55, 96 (2014).Show More Nancy Hiemstra and Deirdre Conlon have called detention “a cornerstone of border enforcement.”34 34. Nancy Hiemstra & Deirdre Conlon, Beyond Privatization: Bureaucratization and the Spatialities of Immigration Detention Expansion, 5 Territory, Pol., Governance 252, 254 (2017).Show MoreWe show how the detained immigration courts serve as another foundational component, one in need of further interrogation.

This Article proceeds in four Parts. Part I provides the historical background on how detention came to be merged with the adjudication of deportation and exclusion cases. Part II turns to the modern era of detained adjudication by the EOIR and reveals how the agency has been an integral, yet largely unnoticed, partner in the detention empire, collaborating in the placement of court spaces in remote carceral facilities and the prioritization of segregated urban courtrooms dedicated exclusively to detained cases. Part III provides a geographic and demographic sketch of the modern detained court system: how big is it, where does it operate, and who is swept up in these courts? Part IV digs deeper, identifying the institutional design elements embedded in detained immigration courts that distinguish them from their nondetained counterparts—including their remote geography, adjudication speed, heightened barriers to access by counsel and the public, specialization of the judiciary, and flexible venue rules. We argue that each of these features of the detained courts has the potential to change the decisional environment of incarcerated litigants in ways that may impose systematic structural disadvantage over and above the fact of their detention.

Existing discourse about immigration adjudication has labored under the understanding that the U.S. immigration court is one unified court system. Through study of the evolution and modern structure of immigration adjudication, we seek to convince readers that there are actually two immigration courts in the United States today—one for persons who are detained and the other for persons who are not detained—and that this segregation matters. As we develop in the Conclusion, recognizing that there is a separate immigration court system deeply intertwined with detention informs current conversations about how to restructure the court system and reduce reliance on detention. Additionally, the spotlight that this Article places on the detained immigration courts should illuminate future empirical research on judicial decision-making in immigration.

  1.  See infra Figure 3. ↑
  2.  See, e.g., Exec. Order No. 13,767, 82 Fed. Reg. 8793, 8795 (Jan. 25, 2017) (ordering detention for “[noncitizens] apprehended for violations of immigration law pending the outcome of their removal proceedings”); Memorandum from Jeh Charles Johnson, Sec’y, U.S. Dep’t of Homeland Sec., to Thomas S. Winkowski, Acting Dir., U.S. Immigr. & Customs Enf’t, R. Gil Kerlikowske, Comm’r, U.S. Customs & Border Prot., Leon Rodriguez, Dir., U.S. Citizenship & Immigr. Servs., Alan D. Bersin, Acting Assistant Sec’y for Pol’y, Policies for the Apprehension, Detention and Removal of Undocumented Immigrants (Nov. 20, 2014) (directing that immigration detention bed space be utilized to pursue the agency’s removal priorities). ↑
  3.  See, e.g., Johnson v. Arteaga-Martinez, 142 S. Ct. 1827, 1833 (2022) (concluding that § 241 of the Immigration and Nationality Act (“INA”) does not allow for a bond hearing for those seeking withholding of removal in immigration court after a prior removal order); Dep’t of Homeland Sec. v. Thuraissigiam, 140 S. Ct. 1959, 1970 (2020) (noting that “[m]andatory detention” under INA § 235(b)(1)(B) applies during a credible fear review proceeding before an immigration judge); Nielsen v. Preap, 139 S. Ct. 954, 970–71 (2019) (holding that INA § 236(c) mandates arrest and detention of any noncitizen with certain predicate offenses, including if the arrest occurs years after release from criminal custody); Jennings v. Rodriguez, 138 S. Ct. 830, 846–47 (2018) (finding no implicit six-month limit to pre-removal detention under the INA). ↑
  4.  One of the reasons for this blind spot, as Stephen Yeazell has noted, is that scholars tend to focus their research on appellate courts and the Supreme Court, rather than trial courts. Stephen C. Yeazell, Courting Ignorance: Why We Know So Little About Our Most Important Courts, 143 Daedalus 129, 130 (2014). Our Article thus contributes to the small but growing body of scholarship that investigates these lower-level courts. See, e.g., Alexandra Natapoff, Criminal Municipal Courts, 134 Harv. L. Rev. 964, 965 (2021) (documenting how the lowest tier of criminal courts—municipal courts—have been overlooked in criminal law scholarship); Daniel Wilf-Townsend, Assembly-Line Plaintiffs, 135 Harv. L. Rev. 1704, 1706 (2022) (revealing how the civil dockets of state trial courts have become dominated by massive, repeat filings of large corporations); Tonya L. Brito, Kathryn A. Sabbeth, Jessica K. Steinberg & Lauren Sudeall, Racial Capitalism in the Civil Courts, 122 Colum. L. Rev. 1243, 1243 (2022) (examining consumer debt collection actions in civil courts as a case study to show how court practices facilitate racial capitalism); Kathryn A. Sabbeth, Eviction Courts, 18 U. St. Thomas L.J. 359, 360 (2022) (tracing how the structure of eviction courts undermines tenants’ rights); Colleen F. Shanahan, Jessica K. Steinberg, Alyx Mark & Anna E. Carpenter, The Institutional Mismatch of State Civil Courts, 122 Colum. L. Rev. 1471, 1471 (2022) (arguing that state civil courts function as a type of emergency room for the social needs of litigants); Andrew Hammond, Pleading Poverty in Federal Court, 128 Yale L.J. 1478, 1478 (2019) (studying lower-level district court practices for reviewing in forma pauperis). ↑
  5.  The Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub. L. No. 104-208, Div. C, 110 Stat. 3009-546, replaced the former exclusion and deportation proceedings with a unified “removal proceeding.” Although removal is by far the most common case type today, judges in detention preside over other case types as well, such as credible fear review proceedings. See infra Section III.A & Appendix, Sections A, E. ↑
  6.  Shoba Sivaprasad Wadhia and Christopher J. Walker have recently explained that the modern immigration court “has two dockets: one for respondents outside of detention and a second for those detained.” Shoba Sivaprasad Wadhia & Christopher J. Walker, The Case Against Chevron Deference in Immigration Adjudication, 70 Duke L.J. 1197, 1207 (2021). We show how these splintered dockets have actually fostered two separate immigration court systems, each with its own set of judges, courtrooms, and procedures. ↑
  7.  We obtained internal memoranda and other documents regarding the operation of the immigration courts through the Freedom of Information Act. Additionally, as described in the Appendix, we analyzed EOIR’s administrative database of court records made available on the agency’s web page. ↑
  8.  Observations included immigration courts and associated detention facilities in Adelanto, California; Chicago, Illinois; Elizabeth, New Jersey; Houston, Texas; Los Angeles, California; Newark, New Jersey; Pearsall, Texas; and San Antonio, Texas. ↑
  9.  See infra notes 187, 292 and accompanying text. ↑
  10.  For an analysis of the significance of privatized immigration enforcement, including in the detention context, see Jennifer M. Chacón, Privatized Immigration Enforcement, 52 Harv. C.R.-C.L. L. Rev. 1, 2 (2017). ↑
  11.  The MPP has been embroiled in litigation since the Biden Administration first attempted to terminate the program in January 2021. See infra note 170. Meanwhile, time spent in inhospitable conditions in Border Patrol facilities has increased under the Biden Administration’s expedited asylum policy. Priscilla Alvarez, Adult Migrants Are Held in Border Facilities Too Long Amid Biden Administration Policy Changes, Sources Say, CNN (July 18, 2023, 6:00 AM), https://www.cnn.com/2023/07/18/politics/migrants-border-facil‌ities-biden-policies/index.html [https://perma.cc/L39U-9RTE]. ↑
  12.  Amnesty Int’l, United States of America, “Why Am I Here?”: Children in Immigration Detention 17–21 (June 2003), https://www.amnestyusa.org/wp-content/uploads/2017/09/why‌_am_i_here.pdf [https://perma.cc/4P9X-UBZP]. ↑
  13.  Immigr. & Naturalization Serv. v. Lopez-Mendoza, 468 U.S. 1032, 1038 (1984) (“A deportation proceeding is a purely civil action to determine eligibility to remain in this country, not to punish an unlawful entry . . . .”). ↑
  14.  See generally Cecilia Menjívar, Andrea Gómez Cervantes & Daniel Alvord, The Expansion of “Crimmigration,” Mass Detention, and Deportation, 12 Socio. Compass 1, 2 (2018) (examining the global expansion of “crimmigration” and how criminalization practices in immigration have expanded in the United States in particular). ↑
  15.  Malcolm M. Feeley, The Process is the Punishment: Handling Cases in Lower Criminal Court 33–34 (1979) (demonstrating that the pretrial process informally punishes defendants and pressures guilty pleas); Alexandra Natapoff, Misdemeanors, 85 S. Cal. L. Rev. 1313, 1317 (2012) (showing how the misdemeanor pretrial system results in “vulnerable, underrepresented defendants” pleading guilty, “even in the absence of evidence”). ↑
  16.  See, e.g., Paul Heaton, Sandra Mayson & Megan Stevenson, The Downstream Consequences of Misdemeanor Pretrial Detention, 69 Stan. L. Rev. 711, 717 (2017) (finding that “defendants who are detained on a misdemeanor charge are much more likely than similarly situated releasees to plead guilty and serve jail time”); Megan T. Stevenson, Distortion of Justice: How the Inability to Pay Bail Affects Case Outcomes, 34 J.L. Econ. & Org. 511, 511 (2018) (demonstrating that pretrial detention increases the likelihood of conviction, the length of sentence, and court fees owed). ↑
  17.  See, e.g., Crystal S. Yang, Toward an Optimal Bail System, 92 N.Y.U. L. Rev. 1399, 1416–29 (2017) (summarizing research on the costs of pretrial detention, including societal and economic impacts); Will Dobbie, Jacob Goldin & Crystal S. Yang, The Effects of Pretrial Detention on Conviction, Future Crime, and Employment: Evidence from Randomly Assigned Judges, 108 Am. Econ. Rev. 201, 201 (2018) (finding that pretrial detention increases the probability of conviction and lowers labor market participation). ↑
  18.  See, e.g., Marvin D. Free, Jr., Race and Presentencing Decisions in the United States: A Summary and Critique of the Research, 27 Crim. Just. Rev. 203, 206–07 (2002) (concluding that disparities in bail amounts are likely the result of racial discrimination); Ellen A. Donnelly & John M. MacDonald, The Downstream Effects of Bail and Pretrial Detention on Racial Disparities in Incarceration, 108 J. Crim. L. & Criminology 775, 775 (2019) (analyzing how pretrial detention contributes to the Black-white disparity in rate of conviction and sentence length). ↑
  19.  See, e.g., Anil Kalhan, Rethinking Immigration Detention, 110 Colum. L. Rev. Sidebar 42, 43 (2010) (outlining the ways that immigrant detention has transformed into a quasi-punitive system); Jamie Longazel, Jake Berman & Benjamin Fleury-Steiner, The Pains of Immigrant Imprisonment, 10 Soc. Compass 989, 990 (2016) (discussing the pain detention inflicts on migrants and their communities); Margaret H. Taylor, Detained Aliens Challenging Conditions of Confinement and the Porous Border of the Plenary Power Doctrine, 22 Hastings Const. L.Q. 1087, 1117–19 (1995) (detailing inadequate conditions at INS detention facilities); Valeria Gomez & Marcy L. Karin, Menstrual Justice in Immigration Detention, 41 Colum. J. Gender & L. 123 (2021) (highlighting the inadequate access to menstrual products inside detention). ↑
  20.  See, e.g., David Manuel Hernández, Pursuant to Deportation: Latinos and Immigrant Detention, 6 Latino Stud. 35, 49–53 (2008); Tamara K. Nopper, Why Black Immigrants Matter: Refocusing the Discussion on Racism and Immigration Enforcement, in Keeping Out the Other: A Critical Introduction to Immigration Enforcement Today 204, 209–13 (David C. Brotherton & Philip Kretsedemas eds., 2008). ↑
  21.  See, e.g., Lauren L. Martin & Matthew L. Mitchelson, Geographies of Detention and Imprisonment: Interrogating Spatial Practices of Confinement, Discipline, Law, and State Power, 3 Geo. Compass 459, 472 (2009). ↑
  22.  See, e.g., Geoffrey Heeren, Pulling Teeth: The State of Mandatory Immigration Detention, 45 Harv. C.R.-C.L. L. Rev. 601, 603 (2010); Faiza W. Sayed, Challenging Detention: Why Immigrant Detainees Receive Less Process than “Enemy Combatants” and Why They Deserve More, 111 Colum. L. Rev. 1833, 1835 (2011); Philip L. Torrey, Rethinking Immigration’s Mandatory Detention Regime: Politics, Profit, and the Meaning of “Custody,” 48 U. Mich. J.L. Reform 879, 881 (2015). ↑
  23.  See, e.g., Kristina Shull, Detention Empire: Reagan’s War on Immigrants and the Seeds of Resistance 3 (2022) (“In practice, detention looks and feels like prison . . . .”); Mark Dow, Designed to Punish: Immigrant Detention and Deportation, 74 Soc. Res. 533, 536 (2007) (“I have seen that immigration detention punishes . . . .”); Jessica Ordaz, Migrant Detention Archives: Histories of Pain and Solidarity, 102 S. Cal. Q. 250, 259 (2020) (“[M]igrants describe detention as a place of punishment and pain.”); César Cuauhtémoc García Hernández, Immigration Detention as Punishment, 61 UCLA L. Rev. 1346, 1360 (2014) (“The legislative origins of today’s immigration detention system show a desire to punish noncitizens . . . .”). ↑
  24.  See, e.g., Stuart L. Lustig, Kevin Delucchi, Lakshika Tennakoon, Brent Kaul, Dana Leigh Marks & Denise Slavin, Burnout and Stress Among United States Immigration Judges, 13 Bender’s Immigr. Bull. 22, 22 (2008) (concluding that immigration judges suffered from secondary traumatic stress and high amounts of burnout); Lindsay M. Harris, The One-Year Bar to Asylum in the Age of the Immigration Court Backlog, 2016 Wis. L. Rev. 1185, 1205 (“In recent years, increasing caseloads have begun to overwhelm courts and judges.”); Donald Kerwin & Evin Millet, The US Immigration Courts, Dumping Ground for the Nation’s Systemic Immigration Failures: The Causes, Composition, and Politically Difficult Solutions to the Court Backlog, 11 J. on Migration & Hum. Sec. 194, 194 (2023) (attributing the immigration court backlog “to systemic failures in the broader immigration system that negatively affect the immigration courts,” including visa backlogs and Congress’s failure to reform the immigration law). ↑
  25.  See, e.g., Stephen H. Legomsky, Deportation and the War on Independence, 91 Cornell L. Rev. 369, 369–85 (2006) (identifying how independence among immigration judges has been “eviscerat[ed]”); Mary Holper, Taking Liberty Decisions Away from “Imitation” Judges, 80 Md. L. Rev. 1076, 1087–88 (2021) (outlining how the DOJ “reined the judges in” to align with the Attorney General’s priorities). ↑
  26.  See, e.g., Alison Peck, The Accidental History of the U.S. Immigration Courts: War, Fear, and the Roots of Dysfunction 5–7 (2021) (arguing that the basic structure of the U.S. immigration courts is flawed); Catherine Y. Kim, The President’s Immigration Courts, 68 Emory L.J. 1, 22–34 (2018) (demonstrating how the Trump Administration politicized immigration adjudication); Fatma E. Marouf, Executive Overreaching in Immigration Adjudication, 93 Tul. L. Rev. 707, 707 (2019) (outlining how the executive can interfere with the process of adjudicating immigration cases); Amit Jain, Bureaucrats in Robes: Immigration “Judges” and the Trappings of “Courts,” 33 Geo. Immigr. L.J. 261, 265 (2019) (characterizing the immigration courts as a hierarchical bureaucracy that advances executive branch policy); Jayanth K. Krishnan, Judicial Power—Immigration-Style, 73 Admin. L. Rev. 317, 323 (2021) (“Ideology and politics are an inescapable part of the atmosphere in which [immigration judges] hear cases and issue their decisions.”). ↑
  27.  See, e.g., Stella Burch Elias, “Good Reason to Believe”: Widespread Constitutional Violations in the Course of Immigration Enforcement and the Case for Revisiting Lopez-Mendoza, 2008 Wis. L. Rev. 1109, 1115; Jennifer M. Chacón, A Diversion of Attention? Immigration Courts and the Adjudication of Fourth and Fifth Amendment Rights, 59 Duke L.J. 1563, 1563 (2010); Tania N. Valdez, Pleading the Fifth in Immigration Court: A Regulatory Proposal, 98 Wash. U. L. Rev. 1343, 1343–44 (2021) (highlighting the lack of procedural protections in immigration court). ↑
  28.  See, e.g., Dylan Farrell-Bryan, Relief or Removal: State Logics of Deservingness and Masculinity for Immigrant Men in Removal Proceedings, 56 L. & Soc’y Rev. 167, 173–74 (2022) (studying a Northeast immigration court that “primarily handles the cases of individuals who are not detained”); David Hausman & Jayashri Srikantiah, Time, Due Process, and Representation: An Empirical and Legal Analysis of Continuances in Immigration Court, 84 Fordham L. Rev. 1823, 1826 (2016) (analyzing the nondetained cases of children and families); Jaya Ramji-Nogales, Andrew I. Schoenholtz & Philip G. Schrag, Refugee Roulette: Disparities in Asylum Adjudication, 60 Stan. L. Rev. 295, 327 (2007) (taking steps to exclude detained cases from analysis). ↑
  29.  See, e.g., Nicholas R. Bednar, The Public Administration of Justice, 44 Cardozo L. Rev. 2139, 2162–63 (2023); Daniel E. Chand, William D. Schreckhise & Marianne L. Bowers, The Dynamics of State and Local Contexts and Immigration Asylum Hearing Decisions, 27 J. Pub. Admin. Rsch. & Theory 182, 191–93, tbls.3, 4 & 5 (2017); Catherine Y. Kim & Amy Semet, An Empirical Study of Political Control Over Immigration Adjudication, 108 Geo. L.J. 579, 588–89 (2020); Emily Ryo & Ian Peacock, Represented but Unequal: The Contingent Effect of Legal Representation in Removal Proceedings, 55 L. & Soc’y Rev. 634, 635 (2021); Banks Miller, Linda Camp Keith & Jennifer S. Holmes, Immigration Judges and U.S. Asylum Policy 10 (2015). ↑
  30.  See, e.g., Emily Ryo, Representing Immigrants: The Role of Lawyers in Immigration Bond Hearings, 52 L. & Soc’y Rev. 503, 503 (2018); Denise L. Gilman, To Loose the Bonds: The Deceptive Promise of Freedom from Pretrial Immigration Detention, 92 Ind. L.J. 157, 157 (2016). ↑
  31.  See, e.g., Steering Comm. of the N.Y. Immigrant Representation Study Rep., Accessing Justice: The Availability and Adequacy of Counsel in Removal Proceedings, 33 Cardozo L. Rev. 357, 361 (2011); Aditi Shah, Constitutional and Procedural Pathways to Freedom from Immigration Detention: Increasing Access to Legal Representation, 35 Geo. Immigr. L.J. 181, 181 (2020); Talia Peleg & Ruben Loyo, Transforming Deportation Defense: Lessons Learned from the Nation’s First Public Defender Program for Detained Immigrants, 22 CUNY L. Rev. 193, 193 (2018). ↑
  32.  See, e.g., Asad L. Asad, Deportation Decisions: Judicial Decision-Making in an American Immigration Court, 63 Am. Behav. Scientist 1221, 1241–44 (2019) (drawing on observations of hearings in the Dallas immigration court); Robert E. Koulish, Systemic Deterrence Against Prospective Asylum Seekers: A Study of the South Texas Immigration District, 19 N.Y.U. Rev. L. & Soc. Change 529, 553 (1992) (observing the Harlingen immigration court); Peter L. Markowitz, Barriers to Representation for Detained Immigrants Facing Deportation: Varick Street Detention Facility, A Case Study, 78 Fordham L. Rev. 541, 553 (2009) (studying the Varick Street court in New York); Christopher Levesque et al., Crimmigrating Narratives: Examining Third-Party Observations of US Detained Immigration Court, 48 L. & Soc. Inquiry 407, 407 (2023) (analyzing data from a court observation project conducted in the Fort Snelling immigration court). All of these detained courts are included in Figure 1, infra. ↑
  33.  Juliet P. Stumpf, Civil Detention and Other Oxymorons, 40 Queen’s L.J. 55, 96 (2014). ↑

  34.  Nancy Hiemstra & Deirdre Conlon, Beyond Privatization: Bureaucratization and the Spatialities of Immigration Detention Expansion, 5 Territory, Pol., Governance 252, 254 (2017). ↑

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