Excerpted From: Valeria Gomez, Geography as Due Process in Immigration Court, 2023 Wisconsin Law Review 1 (2023) (225 Footnotes) (Full Document)


ValeriaGomezEsperanza is a fourteen-year-old girl who entered the United States without a visa as an unaccompanied minor and reunited with her single mother in Sevier County, Tennessee. She was called to respond to charges of removability at the Memphis Immigration Court, the immigration court that hears cases for all respondents residing in Tennessee. Because Esperanza challenged the propriety of how Immigration and Customs Enforcement (ICE) served her charging document, the assigned immigration judge to her case denied her request to appear telephonically and required Esperanza, her mother, and her attorney to appear in person for Esperanza's 8:30 AM master calendar hearing. The drive from Esperanza's home to the Memphis Immigration Court would take about seven hours, though the hearing itself would likely last less than ten minutes.

Because Esperanza's mother was undocumented and did not have access to a credit or bank card, she was unable to book a hotel to stay the night before the early morning hearing. There is no train service between Esperanza's home and Memphis, and the bus trip, which would take about eight-and-a-half hours, would drop Esperanza and her mother on the outskirts of the city and about a twenty-minute drive from the immigration court's location, risking tardiness.

An hourly worker, Esperanza's mother lost two days of wages to bring her child to court. And because she had trouble securing childcare for such a long period of time, both Esperanza and her younger siblings missed two days of school. To make the hearing, Esperanza's mother began her drive at 1:00 AM and drove through the night without a driver's license through jurisdictions that have cooperative immigration enforcement agreements with ICE. Luckily, Esperanza arrived at her hearing on time without encountering adverse weather, traffic delays, or detours. When the immigration judge called Esperanza's case, however, she was informed that the hearing would have to be postponed. ICE failed to come to court with Esperanza's file and could not proceed with the hearing.

The United States immigration court system is in a state of crisis. Though the immigration courts' dysfunction received renewed attention during the Trump Administration, scholars, advocates, and even judges have long highlighted the ways that immigration courts *4 continuously fail to provide noncitizen respondents with a fair opportunity to present claims for deportation relief and to hold the government accountable to its obligations. Notwithstanding the myriad structural and procedural shortcomings that impede noncitizen respondents' ability to advocate for themselves, observers have largely failed to consider the effect that the geographic distribution of immigration courts, and the distance some respondents must travel to appear, has on the ability of a person to meaningfully participate in removal proceedings. To the extent that distance and geography in immigration settings has been addressed as a due process issue, the focus has largely been on the effects of immigration detention centers, which are commonly located in remote areas far from urban centers, transportation hubs, detainees' families, and retained counsel.

Though the Supreme Court has come to recognize that deportation can be as severe a punishment as a criminal conviction, the Court-created plenary power doctrine has continued limiting the constitutional safeguards available to noncitizens in immigration proceedings, particularly as it compares to those afforded to criminal defendants. Nonetheless, the Court has recognized that noncitizen respondents in removal proceedings are entitled to due process before immigration courts. Courts interpret the right to due process in removal proceedings as a right to “fundamental fairness.” At its core, fundamental fairness entails the right to meaningfully contest the government's charges of removability and fully and fairly raise any applications for relief from removal that may be available to an individual.

Implicit in the right to meaningfully participate in proceedings is the ability to access the tribunal adjudicating a claim. Yet, the geographic distribution of immigration courts in the United States, which in some cases requires that respondents travel five hundred miles or more for hearings, can make access to the immigration courts nearly impossible for respondents. This is the situation faced by individuals in removal proceedings living in Johnson City, Tennessee, for example, who are *5 called to appear for removal proceedings at the immigration court in Memphis, Tennessee, a city that is just under five hundred miles away. A person in Johnson City must drive seven-and-a-half hours (one-way)--almost an entire work day--for all immigration court appearances, including master calendar hearings that typically last no longer than five minutes. Failing to appear or arriving late to a hearing most often leads to the severe consequence of having an in absentia order of removal entered, an outcome that can permanently separate a person from their family and home, and for which opportunities for appeal or recourse are limited as a matter of law.

The burden that this geographic problem imposes goes well beyond mere inconvenience and raises serious barriers to justice for those availing themselves of the immigration courts. This is especially the case for indigent and other particularly vulnerable immigrant populations. For those located far from the courts, attendance may require taking long absences from work or school, or may be impossible due to the inability to secure transportation for the long trek. Driving long distances may expose immigrants to safety risks inherent to driving long distances and pose an additional risk of arrest and detention, particularly for those who live in states that do not offer drivers' licenses to undocumented drivers or for those who drive through jurisdictions who have entered cooperative agreements with ICE. Key witnesses may find it cost-prohibitive to travel long distances to provide material testimony. To the extent that court accommodations, like telephonic appearances, could alleviate these burdens, they are generally reserved for represented respondents (and are subject to the discretion of presiding immigration judges, who routinely deny such requests).

In this Article, I propose a novel consideration in the field of due process in immigration law--to provide due process and fundamental fairness in removal proceedings, the government must tailor the *6 geographic distribution of its immigration courts in a way that ensures that immigrants have fair access to the tribunals, not just for detained respondents but for all called to defend a charge of removability. I argue that the geographic distribution of immigration courts does not comport with the government's constitutional obligation to ensure fundamental fairness for respondents in removal proceedings and has troubling consequences not just for the individuals ensnared in the immigration enforcement apparatus but for the community as a whole.

Part I introduces the administrative agencies involved in removal proceedings, explains the rules and guidance that govern venue in immigration court proceedings, and describes the geographic distribution of immigration courts in the United States. Part II explores modern due process jurisprudence for immigration-related proceedings and the varying degrees to which noncitizens are considered to have a property or liberty interest in immigration-related proceedings. Applying the framework set forth by the Supreme Court in Mathews v. Eldridge for determining the constitutional sufficiency of administrative procedures, Part III of this Article weighs the interests of the government and noncitizen respondents, highlighting the considerable legal and economic injuries resulting from the uneven geographic distribution of immigration courts. Part IV explores the extent to which immigration courts can meet their constitutional obligations by adopting procedural accommodations. In proposing solutions, I weigh the costs and benefits of using increased video-conferencing technology, immigration judge circuit rides, and the addition of new immigration courts to facilitate meaningful participation for the most burdened regions of the United States. I conclude by recognizing that by facilitating access to the immigration courts, the Biden Administration can demonstrate its commitment to preserving the legitimacy of the United States immigration system and delivering on its promise to make the immigration system more just and humane.

[. . .]

In recent years, the legitimacy of the U.S. immigration system has reached a state of crisis. Political interference, bureaucratic mismanagement, and, in some cases, bad faith have wreaked havoc in the immigration court system and caused many to see the institution as dysfunctional at best and at worst, a farce.

Much of this chaos is the federal government's own doing. It cannot follow, then, that noncitizens alone should bear the brunt of the government inefficiencies and prosecutorial policies, especially if that burden comes by way of sacrificing a noncitizen's constitutional rights. While many of the problems plaguing the immigration courts are ones that the EOIR, on its own, cannot solve, what the EOIR can control is a commitment to preserving the essence of what a tribunal is--a space where individuals can expect fairness and a meaningful opportunity to be heard. By taking affirmative steps to help noncitizen respondents reach the immigration courts, the Biden Administration can deliver on a promise on which it has so far largely failed--making the United States immigration system more just, humane, and worthy of respect.

Assistant Professor of Law, University of Baltimore School of Law.