Immigration courts are not Article III courts but instead operate as part of the Department of Justice, which is simultaneously charged with enforcing immigration laws. Accordingly, immigration courts fall short of the adversarial legal tradition’s ideal and function more like a bureaucracy aimed at advancing the executive branch’s policy goals. A primary goal of the bureaucracy is efficiency in deportations, with less importance placed on due process and substantive fairness. Yet immigration courts have adopted court- like “trappings,” such as holding trial-like hearings presided over by officers wearing judicial robes, to enhance their legitimacy. One key trapping is the immigration attorney, without whose participation the bureaucracy’s unjust nature would become more readily apparent, at great cost to its legitimacy. The deportation bureaucracy therefore has an interest in increasing representation and has undertaken initiatives to do so. However, these attempts are best understood as an effort to conscript immigration attorneys into sup-porting the bureaucracy’s objectives. Although there is no doubt that representation improves outcomes for individual respondents, attorneys should understand how their work is used to reinforce the system’s efficiency and legitimacy.

This Article explores how immigration attorneys can best navigate the tensions in their role. In particular, the Article contends that storytelling, both inside and outside the court, may be one effective tool of resistance. There are both instrumental and intrinsic benefits to eliciting and amplifying their clients’ counternarratives. The instrumental benefits include improving out-comes in the courtroom and building momentum for systemic reform, while the intrinsic benefits include empowering clients to shape their own narratives and sustaining the attorneys who do the tireless work of serving them.

Continue reading Avoiding Conscription by the Deportation Bureaucracy