Prioritizing Failure: Using the 'Rocket Docket' Phenomenon to Describe Adult Detention

• Author: Emily R. Summers
• Position: J.D. Candidate, The University of Iowa College of Law, 2017; B.A., Grinnell College, 2010
• Pages: 851-881

Prioritizing Failure: Using the ‘Rocket Docket’ Phenomenon to Describe Adult Detention Emily R. Summers * ABSTRACT: Activists and scholars consistently target inhumane immigration detention practices in the United States. They note the physical conditions of the centers, the lack of legal representation available, and that detained immigrants are at a much higher risk of losing their immigration cases. It is clear from these analyses that detention procedures do not always function as intended. Yet absent from these studies is an analysis of the effect of docket timelines and enforcement priorities on a detained immigrant’s case. By comparing expedited removal proceedings—a truncated removal process—to formal removal proceedings, this Note demonstrates that docket timelines and enforcement priorities also contribute to this unequal balance in process to detained, as opposed to non-detained, immigrants. Even though the law does not recognize a truncated removal process for detained immigrants in formal removal proceedings, this analysis points to troubling similarities between a detained immigrant’s procedure and the expedited removal procedure. In response, this Note examines comprehensive immigration reform, criminal justice reform, and standalone solutions to balance the playing field for detained and non-detained immigrants. This Note advocates for reexamining the overreliance on immigration detention, re-thinking the current immigration docket framework, and re-evaluating immigration enforcement priorities in order to restore the process legally afforded to detained immigrants. I. INTRODUCTION ............................................................................. 852 II. BACKGROUND ............................................................................... 854 A. I MMIGRATION D ETENTION AND I TS J USTIFICATIONS .................. 855 B. E XPEDITED R EMOVAL AND I TS P OLITICAL AND L EGAL J USTIFICATIONS ....................................................................... 856 * J.D. Candidate, The University of Iowa College of Law, 2017; B.A., Grinnell College, 2010. Thank you to Professors Bram Elias and Stella Burch Elias for their guidance, thoughtful advice, and infectious enthusiasm for this area of the law; to all the advocates who work tirelessly for a more just and fair immigration system; and to the Volume 101 and Volume 102 editors and student writers of the Iowa Law Review for their meticulous edits and camaraderie. Finally, thank you to my mom, Debora, for her optimism and support during this journey. 852 IOWA LAW REVIEW [Vol. 102:851 C. F ORMAL R EMOVAL P ROCEEDINGS : D ETAINED AND N ON -D ETAINED D OCKETS ........................................................ 862 D. B OND P ROCEDURES ................................................................. 865 III. A DOCTRINAL AND PRACTICAL COMPARISON ............................... 867 A. T HE I MPACT OF A DMINISTRATIVE P RIORITIES ........................... 868 B. D OCKET T IMELINE ................................................................... 870 1. Detained vs. Non-Detained Docket in Formal Removal Proceedings .................................................... 871 2. Detained Docket vs. Expedited Removal Proceedings ................................................................... 871 C. A CCESS TO L EGAL R EPRESENTATION ........................................ 872 1. Access to Legal Representation in Detention ............. 873 2. Contributing Factors to the Lack of Legal Representation .............................................................. 873 D. L IKELIHOOD OF R ELIEF OR T ERMINATION ................................. 875 IV. IMPLICATIONS AND SOLUTIONS .................................................... 876 A. C OMPREHENSIVE I MMIGRATION R EFORM .................................. 876 B. S TAND -A LONE S OLUTIONS ....................................................... 878 V. CONCLUSION ................................................................................ 880 I. INTRODUCTION In the midst of immigration debates in the United States today, the topic of immigration detention often draws significant attention. Scholars question the conditions of detention centers, the constitutionality of detaining immigrants, and, more broadly, the actual effectiveness of detention in the United States. 1 Current debates began to take shape in 1996 when Congress passed the Illegal Immigrant Reform and Immigrant Responsibility Act 1. See DORA SCHRIRO, U.S. DEP’T OF HOMELAND SEC., IMMIGRATION & CUSTOMS ENF’T, IMMIGRATION DETENTION OVERVIEW AND RECOMMENDATIONS 2–3 (2009), http://www.ice.gov/ doclib/about/offices/odpp/pdf/ice-detention-rpt.pdf (“With only a few exceptions, the facilities that ICE uses to detain aliens were built, and operate, as jails and prisons to confine pre-trial and sentenced felons. ICE relies primarily on correctional incarceration standards . . . . These standards impose more restrictions and carry more costs than are necessary to effectively manage the majority of the detained population.”); see also MARK NOFERI, AM. IMMIGRATION COUNCIL, A HUMANE APPROACH CAN WORK: THE EFFECTIVENESS OF ALTERNATIVES TO DETENTION FOR ASYLUM SEEKERS 10 (2015), http://cmsny. org/noferi-detention-asylum (citing sources that show immigration detention costs $158 per day, as compared to ICE alternatives to detention, which cost $10.55 per day); 1 EILEEN SULLIVAN ET AL., VERA INST. OF JUSTICE, TESTING COMMUNITY SUPERVISION FOR THE INS: AN EVALUATION OF THE APPEARANCE ASSISTANCE PROGRAM 31 (2000), http://archive.vera.org/sites/default/files/resources/downloads/ INS_finalreport.pdf (concluding that “[a]sylum seekers do not need to be detained to appear”). 2017] PRIORITIZING FAILURE 853 (“IIRIRA”). 2 IIRIRA, one of the most recent overhauls of the immigration system, enhanced immigration enforcement procedures, established new and expanded grounds of inadmissibility and forms of relief, and re-defined criminal actions as ways in which to remove immigrants from the United States. 3 Significantly, IIRIRA provided for new forms of detention procedures under the Immigration and Nationality Act (“INA”), leading to an increased use of detention in the United States for immigrants of all ages, nationalities, and prior immigration statuses. 4 Yet under IIRIRA and our current immigration enforcement priorities, 5 detention procedures are not functioning as Congress envisioned them. During fiscal year 2013, the Department of Homeland Security (“DHS”) apprehended 662,000 immigrants. 6 Of those 662,000, some 441,000 were detained. 7 Most of these immigrants violated an immigration law and were therefore placed into removal proceedings. In the same period, many more immigrants were also placed in removal proceedings but were not detained. Under the law, detained and non-detained immigrants should receive the same amount of process during removal proceedings: the same ability to build their case and find support for their claim, regardless of whether or not they are detained. 8 But due to their detainment, detained immigrants are less likely to obtain counsel and less likely to be able to gather evidence to support their claims than non-detained immigrants. 9 As such, detained immigrants are much more likely to lose their case in immigration court. 10 Immigration advocates often note that detained immigrants are significantly disadvantaged by the immigration system in comparison to non-detained immigrants. In the quest for immigration and detention reform, advocates protest against conditions in detention centers and often cite a detainee’s inability to find representation, as well as the struggles in finding and developing evidence to bolster claims for relief from removal. 11 Yet few address the effect that docket timelines and enforcement priorities have on this phenomenon in the adult detention setting. 2. Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub. L. No. 104-208, 110 Stat. 3009-546 (codified as amended in scattered sections of 8 U.S.C.). 3. See generally id. 4. See generally id. 5. See infra Part II.B. 6. See JOHN F. SIMANSKI, U.S. DEP’T OF HOMELAND SEC., OFFICE OF IMMIGRATION STATISTICS, IMMIGRATION ENFORCEMENT ACTIONS: 2013 1 (2014), https://www.dhs.gov/sites/default/files/ publications/ois_enforcement_ar_2013.pdf. 7. Id. 8. See infra Part III. 9. See infra Part III.C. 10. See infra Part III.D. 11. See infra Part III. 854 IOWA LAW REVIEW [Vol. 102:851 As described below, many immigration courts have one docket for the non-detained immigrants and another docket for detained immigrants. 12 As it stands, the detained docket moves much faster than the non-detained, both because fewer immigrants are on the detained docket than the non-detained, but also because the immigration system prioritizes the hearing and adjudication of detained cases. Scholars have used the term “rocket dockets” to describe this phenomenon in relation to unaccompanied alien children, yet it is rarely discussed in the context of detained, adult immigrants. This Note places the adult detained docket in the “rocket docket” context, and compares three distinct immigration procedures—expedited removal at the border, formal removal proceedings in immigration courts, and bond procedures—to demonstrate that detained immigrants in the United States do not receive the same process as those immigrants that are not detained, even though the law indicates that they should. 13 The reality of the current docket system and administrative removal and enforcement priorities alter detainees’ procedural rights, and ultimately, the outcome of their case for immigration relief. 14 Part II of this Note introduces the role of various agencies involved in these proceedings, then examines the legal justifications and current trends in expedited removal procedures, formal removal procedures, and bond proceedings. Part III compares these procedures, both...