Abstract

Excerpted From: Esther Sungeun Yoo, Avoiding Conscription by the Deportation Bureaucracy: Resistance Through Storytelling, 39 Georgetown Immigration Law Journal 331 (Spring 2025) (231 Footnotes) (Full Document).

Are immigration courts properly called “courts,” or are they merely bureaucracies with court-like trappings? And if the latter description is more accurate, what does that mean for lawyers who participate in this performative process? On a formal level, immigration courts are not courts created under Article III of the Constitution, but instead are located within the U.S. Department of Justice’s Executive Office of Immigration Review (EOIR), the very sub-agency charged with enforcing immigration laws. In practice, they fall far short of the ideal envisioned by the adversarial legal tradition, which “theoretically entails an independent and impartial adjudicator who resolves a dispute between equally situated parties.” Instead, immigration courts function more like a bureaucracy, “a hierarchical structure through which the executive branch advances policy goals.”

One of the primary policy goals of the deportation bureaucracy is efficiency in the enforcement of immigration laws, with much less importance placed on due process and the substantive fairness of its outcomes. Yet, as Amit Jain explains, immigration courts have also adopted the “trappings” of real courts, such as holding trial-like hearings set in courtrooms presided over by officers wearing black judicial robes. These trappings enhance the perception of the deportation bureaucracy’s legitimacy and help mask the grave substantive and procedural injustices that it perpetrates.

One of the trappings of a real court is the presence of the immigration attorney. For the system to appear legitimate and look as though it is providing some semblance of due process, the deportation bureaucracy must conscript an unlikely partner: counsel for the respondent. Without counsel, the unjust nature of the deportation bureaucracy becomes more apparent, even to the casual observer, heightening the risk that the public would lose confidence in the system’s legitimacy. This risk became especially visible in the widespread public outrage over stories of toddlers - as young as three years old - representing themselves in deportation proceedings.

In the limited contexts of mentally ill detainees and unaccompanied children, immigrant advocates have been able to create enough pressure through the courts or organized lobbying to secure some government-funded representation. Moreover, the deportation bureaucracy itself has made attempts to increase representation for respondents, including distributing lists of pro bono immigration service providers in the area, allowing law student representatives supervised by an attorney to represent respondents, permitting limited-scope representation by counsel unwilling to undertake full-scope representation, and funding “legal orientation” programs in the courthouse for legal service providers to offer advice and counsel to pro se respondents. Nonetheless, these attempts by the deportation bureaucracy to increase representation for respondents at the margins can be understood as an effort to conscript immigration attorneys into supporting its own objectives rather than actually aimed at achieving justice. Those objectives include enhancing the bureaucracy’s legitimacy as well as increasing its efficiency, as the involvement of competent counsel can streamline the agency’s workload.

In light of these concerns, Angélica Cházaro argues that even universal representation for respondents would not achieve the aim of justice and could instead be counterproductive, drawing an analogy to the explosion in mass incarceration following Gideon v. Wainwright and its guarantee of counsel to all criminal defendants. In the criminal law context, Gideon was seen as a landmark ruling that would help make the process fairer for indigent defendants. But the reality, as Paul Butler argues, has been very different: although “Gideon is not responsible for the exponential increase in incarceration or the vast rise in racial disparities in criminal justice,” the decision “bears some responsibility for legitimating these developments and diffusing political resistance to them.” Likewise in immigration, there is a danger that increasing access to representation would distract from efforts to reform the substantive harshness of immigration laws, by legitimating the deportation bureaucracy’s foundations. Indeed, rather than merely distracting from more fundamental reforms, increased access to counsel would affirmatively contribute to the bureaucracy’s goal of deporting more people more efficiently. At the same time, the concern about unwittingly strengthening an unjust system must be weighed against the reality that increasing representation undoubtedly benefits real people on the ground.

This Article does not take a position on such systemic questions or attempt to resolve the broader, recurring dilemma of whether to pursue incremental reforms or focus on radically overhauling the regime. I focus instead on the challenges facing the individual immigration attorney trying to navigate these tensions. While always prioritizing their clients’ needs, immigration practitioners must also resist becoming mere role players in the deportation bureaucracy’s efforts to enhance its legitimacy and efficiency. I suggest that one potential tool of resistance is the effective use of storytelling, both inside and outside the court setting. Drawing on my experience practicing immigration law as well as insights from critical race theory and applied legal storytelling scholarship, I will explore how telling client stories can counter the dehumanization that the bureaucracy fosters and empower immigrants by centering their experiences as they challenge a system that has failed their communities.

This Article proceeds in four parts. Part I will develop the idea that immigration courts are not real courts, but a bureaucracy with the trappings of courts. The trappings give the appearance of legitimacy by suggesting a neutral, adversarial process when in reality the immigration courts are actually serving the bureaucracy’s goals of efficiency in immigration law enforcement, while giving short shrift to due process and substantive justice.

Part II will explore the role of respondent’s counsel in this bureaucracy. The lawyers themselves, especially respondent’s counsel, are part of the immigration court’s “trappings” that enhance the system’s legitimacy. Although representation undoubtedly improves individual outcomes, true justice is impossible, even with universal representation, so long as immigration law remains deeply unfair in substance. This Part highlights, without attempting to resolve, the dilemmas that immigrant advocates face in seeking to reform a fundamentally flawed system.

Part III shares two stories from my own practice experience. The stories will explore how bureaucracies tend to dehumanize and how attorneys serving clients on the ground struggle to avoid being conscripted into reinforcing an unjust bureaucracy.

Finally, Part IV describes how storytelling can be an effective tool of resistance, drawing on the canonical work of critical race theorists as well as recent research by scholars of applied legal storytelling. I detail the dominant narratives that paint immigrants as an “invading horde,” allowing them to be dehumanized both by the bureaucracy and in the broader public discourse. I then argue that immigration attorneys can resist that dehumanization as well as build toward better outcomes and long-term reform by eliciting and amplifying their clients’ counternarratives.

Before proceeding, it is worth pausing to acknowledge current events taking place as this Article is being completed. The Trump Administration is dramatically transforming the way that the deportation bureaucracy functions from how it operated in prior Democratic and Republican administrations. The current Administration has abruptly terminated even the extremely minimal legal help programs described in this Article, deployed maximalist enforcement tactics, and abridged or completely denied due process in many cases. These dramatic, highly publicized moves have provoked an intense public outcry. Nonetheless, this Administration’s actions and the public response to them underscore this Article’s thesis. As predicted, when the trappings cloaking the substantive and procedural injustices of the immigration legal system are ripped away and the system’s cruelties exposed, the legitimacy of the system is severely undermined in the eyes of the public. Moreover, the lesson for immigration attorneys remains the same. Whether under this Administration or under a more “normal” administration in the future, immigration attorneys should not allow themselves to be unwittingly used to mask the defects of a profoundly unjust legal system. Rather, they should be prepared to resist conscription by the system and to work toward deeper and more lasting change.

[ . . . ]

Immigration courts are not traditional courts but function more like a bureaucracy aimed at advancing the executive branch’s policy goals. The goal of this deportation bureaucracy is efficiency in deportation, with less and less attention paid to due process and substantive fairness. Historically, the immigration courts have adopted “trappings” of traditional courts to mask their role as part of the bureaucracy. Over time, the deportation bureaucracy has adopted the immigration attorney as one of its trappings, as the absence of immigration attorneys would undermine the bureaucracy’s legitimacy and even make it less efficient.

Faced with the threat of being conscripted into this process, immigration attorneys could choose to exit the system entirely. However, the evidence shows that representation does have a significant impact in individual cases. Rather than exiting, immigration attorneys have at least one method of resistance available, which is to elicit and amplify the counternarratives of their clients. Currently, the dominant narratives of immigrants depict them as criminals and national security threats. Both inside and outside the courtroom, immigration attorneys should elevate the counternarratives of their clients, which may have both instrumental and intrinsic benefits. The instrumental benefits include improving case outcomes and building momentum toward systemic reform, while the intrinsic benefits include empowering immigrants and sustaining their attorneys in the face of overwhelming odds.

Assistant Professor of Law, Director of the Refugee and Immigration Law Clinic, University of Hawai’i at Mānoa, William S. Richardson School of Law..