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Bringing “Civil”ity into Immigration Law: Using the Federal Rules of Civil Procedure to Fix Immigration Adjudication

Posted by on Friday, October 6, 2023 in Articles, Volume 76, Volume 76, Number 5.

Richard Frankel | 76 Vand. L. Rev. 1379

Government lawyers frequently argue, and courts have frequently held, that noncitizens in removal proceedings do not have the same rights as defendants in criminal proceedings. A common argument made to support this position is that removal proceedings are civil matters. Accordingly, a noncitizen facing deportation has fewer due process protections than a criminal defendant, and deportation proceedings similarly provide fewer protections than criminal proceedings.

In many ways, however, the rules governing immigration proceedings differ markedly from those governing civil actions in court. Immigration proceedings suffer from arcane and hypertechnical procedures that impede immigrants from having their claims reviewed on the merits. Notably, similar problems plagued the civil justice system back in the early twentieth century. The response was to create the Federal Rules of Civil Procedure, which emphasized a preference for deciding cases on their merits rather than on procedural technicalities. The modern Federal Rules have substantially simplified pleading requirements and emphasized flexibility in order to foster the goals of fairness, efficiency, and decisions on the merits.

This Article argues that the process that spawned the Federal Rules can offer valuable lessons for reforming immigration proceedings. The Article identifies several examples where immigration rules differ from the Federal Rules in ways that inhibit decisions on the merits. It then proposes a fundamental reexamination of immigration rules with an eye toward promoting decisions based on substance rather than procedure, as well as a structure for ongoing reform. Given the high stakes in removal proceedings, if society continues to treat immigration proceedings as civil matters, the least it can do is incorporate those aspects of the Federal Rules that best promote access to justice for noncitizens.

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Richard Frankel