Notice & Comment

Removing the Distraction of Delay

The Department of Justice is developing a new strategy to reduce a huge backlog in the immigration courts. A recent report of this plan contains this sentence: “DOJ officials criticized immigration lawyers, saying they ‘have purposely used tactics designed to delay’ immigration cases.”

Raising claims of delay tactics is a recurring theme in certain efforts to reform immigration adjudication. These efforts seek to provide less process. I examined this phenomenon in the context of proposals to restrict judicial review of immigration cases. I argued that attempts to invoke delay as a rationale to provide less process unfairly places blame on lawyers and foreign nationals for accessing available process.

I also argued that proponents of the delay rationale should not hide behind accusations that classify accessing justice as untoward. The delay rationale is a distraction from what it rests upon. The delay rationale rests upon, and promotes, a conception of national sovereignty that places the will of the national government above all else in the context of immigration law. Proponents of the delay rationale are arguing that foreign nationals are not worthy of process.

Those who believe that due process represents universal values should insist that the debate over immigration adjudication take place with the delay distraction removed.

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