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
SUMMARY

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 ... (see full summary)

 
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N5_SUMMERS (DO NOT DELETE) 12/27/2016 2:00 PM
851
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 re-
examining 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. IMMIGRATION DETENTION AND ITS JUSTIFICATIONS .................. 855
B. EXPEDITED REMOVAL AND ITS POLITICAL AND LEGAL
JUSTIFICATIONS ....................................................................... 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. FORMAL REMOVAL PROCEEDINGS: DETAINED AND
NON-DETAINED DOCKETS ........................................................ 862
D. BOND PROCEDURES ................................................................. 865
III. A DOCTRINAL AND PRACTICAL COMPARISON ............................... 867
A. THE IMPACT OF ADMINISTRATIVE PRIORITIES ........................... 868
B. DOCKET TIMELINE................................................................... 870
1. Detained vs. Non-Detained Docket in Formal
Removal Proceedings .................................................... 871
2. Detained Docket vs. Expedited Removal
Proceedings ................................................................... 871
C. ACCESS TO LEGAL REPRESENTATION ........................................ 872
1. Access to Legal Representation in Detention ............. 873
2. Contributing Factors to the Lack of Legal
Representation .............................................................. 873
D. LIKELIHOOD OF RELIEF OR TERMINATION ................................. 875
IV. IMPLICATIONS AND SOLUTIONS .................................................... 876
A. COMPREHENSIVE IMMIGRATION REFORM .................................. 876
B. STAND-ALONE SOLUTIONS ....................................................... 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. DEPT OF HOMELAND SEC., IMMIGRATION & CUSTOMS ENFT,
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”).

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